] "Certainly broadcasters and cable operators have
] significant First Amendment rights, but these rights are
] not without boundaries," he wrote. "They are limited by
] law. They also should be limited by good taste."

The new FCC commissioner thinks your first amendment rights are limited by "good taste."

The New York Times - Under New Chief, F.C.C. Considers Widening Its Reach

] There has been a rule on the books since 1952 requiring
] foreign journalists to obtain special "I visas," but
] foreign journalists say it was invariably ignored by
] Immigration and Naturalization Service officials who
] required only that citizens of friendly countries apply
] for a visa waiver, an exemption allowing most residents
] of 27 enumerated countries to visit the United States for
] business or pleasure for up to 90 days without jumping
] through any INS hoops.
]
] No more. When the INS was folded into the Department of
] Homeland Security in March 2003, the I-visa rule began to
] be enforced in earnest, sometimes, resulting in at least
] 15 journalists from friendly countries being forcibly
] detained, interrogated, fingerprinted, and held in cells
] overnight with most denied access to phones, pens,
] lawyers, or their consular officials.

So, the context here is that if Bloggers are Journalists then Everyone is a Journalist and so everyone must have these visas. I think its troubling that this rule exists at all. Why do we require journalists to have special visas?

Click through to the Slate article for an interesting rant about INS.

Bloggers are Journalists: The Down Side: Corante

] In the early 90's, Kramer became interested in the idea
] that the public might do a better job of protecting its
] rights than the courts. He became convinced that the
] framers of the Constitution expected it to be interpreted
] not by unelected judges but by the people themselves --
] through petitions, juries, voting and civil disobedience.
] Several years later, he was astonished to find the
] Supreme Court striking down laws one after the other and
] claiming to do so in the name of the founders' vision.

Frankly, the people of the United States are not particularly interested in freedom, nor do we seem to understand it very well. We want to be safe from the scary things we see on our televisions. We want to control things that we don't like. Whether they are administrated by the federal, state, or local governments, tort/civil cases, or voluntary mandatory contractual arrangements like employment contracts and homeowners associations, laws regulate every aspect of our lives, from when you can buy a beer, to what color you can paint your garage door.

The freedom that we have consists of a vauge choice between two extremely entrenched political parties, the ability to pursue most economic business with comparatively little restriction versus many other societies (assuming you have the means), and a precious few fundamental rights which are enshrined in the Constitution and defended only by the court system.

The later rights are extremely controversial as a practical matter. They've received quite a battering as people have argued time and time and time again that the thing they want to control really isn't the thing that the founders were trying to defend. If the court's ability to uphold the bill of rights and act as a check upon the power of our popularly elected government was done away with, great swathes of our culture would be banned on short order, and our anti-terrorism efforts would see us rapidly deteriorate into a police state.

This observation isn't anti-populist. Its realist. I wish that I found myself in a society that valued freedom. I don't. America values wealth over freedom; safety over freedom; religious morality over freedom; even aesthetics over freedom. It is natural now that we turn to wrapping our calls for a tyranny of the majority in the rhetoric of populism. Its the only way we'll be able to smash those miserable amendments for good. This effort isn't populist. Its anti-freedom.

The argument presented here is tortuous in its logic. The court system is the only institution in our government that respects fundamental rights, so people who are interested in protecting fundamental rights ought to work to limit the power of the court system? This seems an attempt by the right to build sympathy from some of the duller minds on the left for its ongoing campaign against checks and balances.

Popular Constitutionalism

] When I pointed out to the officials that they only had
] authority to search for threats to the aircraft, one of
] them, a bug-eyed, crew-cutted troglodyte, declared that,
] if I had taken any of these substances, then I would have
] endangered Flight 310. That such an obviously ungifted
] person was capable of so imaginative a conceptual leap
] remains a marvel to me.

Barlow is contesting charges stemming from the discovery of drugs in his baggage by airport security personnel, claiming that the search was unconstitutional because it was not limited to what is minimally needed to discover explosives.

BarlowFriendz: A Taste of the System

] "There is something wrong with the principle of
] neutrality," said Scalia, considered among the court's
] staunchest conservatives. Neutrality as envisioned by the
] founding fathers, Scalia said, "is not neutrality between
] religiousness and nonreligiousness; it is between
] denominations of religion."

Our founding fathers and other great national leaders were brilliant men who developed powerful ideas about how to build a successful society. However, you have to put them in a context. Abraham Lincoln, for example, would be viewed as a contemptible bigot were he alive today, but that does not mean that we should not honor him and the value of his ideas. What Scalia misses is that the society which existed in 1776 is not the same society which exists today, and in fact it was a great deal less mature.

The valuable idea here is that the government should not get involved in the task of dictating religious beliefs or doctrine. However, in the context of the late 1700's all of the white people in America practiced some form of Christianity or Judaism. Other religions were certainly practiced by people who weren't white, but this mattered little in an institutionally racist society. So, in that context, references to God were not understood to fall into the scope of dictating religious doctrine. People were simply not aware of an example of a way of thinking which did not include God.

Today we are much more mature. There are a far wider array of religions acknowledged and practiced in our society, including a growing minority of the population that does not practice any religion at all. In that context the fundamental philosophy of the founders must be applied differently then it would have been applied 200+ years ago. That means building a society which respects religious beliefs but doesn't require them.

Of course, the cynical thought here is that Scalia is far too intelligent to have missed this distinction, or to be unaware of the context in which he lives. Its clear in the quotes taken in this article that he promotes a religious government, and opposes secularism. In doing so, he in fact advocates the establishment of religion, and stands opposed to the fundamental constitutional law that he is tasked with defending.

There is another argument in there, which Scalia does not make, but which must be asked...

Insofaras we can see that philosophically the values inherent in our system of government require protecting rights that the populace, on the whole, doesn't respect, how should we respond? One might argue that the democratic government ought to drive these changes, as if the court out steps the democracy too far its legitimacy is threatened. On the other hand, we don't need to defend popular rights. The whole purpose of limited government is to protect unpopular minorities from the tyranny of the majority. The Constitution, and the court, mean nothing, if we are simply operating on majority rule. How do you strike that balance?

To be honest, the impeachment mechanism provides a safety value through which a court that went too far could be reigned in by the democracy without violence and without threatening the basic institution.

So my answer is, Insofaras we can see that philosophically the values inherent in our system of government require protecting rights that the populace, on the whole, doesn't respect, we should respond by protecting those rights unless we would be impeached for doing so.

Scalia opposed to separation of church and state

] The most common charge levied against critics of the
] Patriot Act -- one that Alberto Gonzales, the new face of
] Justice, is likely to repeat in his days ahead -- is that
] they're "misinformed." Well, as a former U.S. attorney
] appointed by President Reagan, a former CIA lawyer and
] analyst, and a former Congressman who sat on the
] Judiciary Committee, I can go mano a mano with any
] law-enforcement or intelligence official on the facts.
] And the facts say that the Patriot Act needs to be
] reviewed and refined by Congress.

The most reasonable position on the Patriot act that I have ever read.

www.bobbarr.org: Patriot Act fixes

] With support from both Republicans and Democrats, the
] Federal Communications Commission is poised to get even
] more aggressive about enforcing moral values throughout
] broadcasting, even putting cable television in its cross
] hairs and taking aim at Howard Stern's right to talk
] dirty on satellite radio.

Oh Great. CDA 2.0, the Cable wars.

Wired News: FCC Crackdown Could Spread

] Three years ago, the high court surprised law enforcement
] experts by ruling that it was unconstitutional for drug
] agents to use heat-seeking devices to detect marijuana
] plants growing inside a home. Usually, the plants grow
] under hot lights that emit heat that can be detected from
] the street.
]
] But on Wednesday, Justice Antonin Scalia, the author of
] the 2001 opinion, said it did not mean the use of
] drug-sniffing dogs was unconstitutional. The heat
] detectors are a new technology that can, in effect, look
] inside a house, he said.
]
] "This is not a new technology. This is a dog," Scalia
] said.

...

] If the use of a sniffing dog is not a search, "why can't
] police go up to the front door of every house on the
] street?" asked Souter. When the homeowner comes to the
] door, the dog could sniff for drugs inside, he said.
]
] The government lawyers said police were unlikely to
] undertake such efforts.

!@#! Our Constitutional rights are not defined by technology, nor are they defined by what the police are "likely" or "unlikely" to do! A drug sniffing dog is a TOOL that is used to DETECT DRUGS.

There is no difference between a drug sniffing dog, and a silicon based air borne molecule detection device. They have the same application and they work the same damn way. Either they both constitute a search, or neither does!

Furthermore, Constitutional rights don't go away because they are "unlikely" to be abused!

The fact is that you EMIT PARTICLES that humans cannot detect without tools. Your drugs emit air-borne particles. Your grow lamps emit thermal energy. Your cellphone emits photons. So does your BRAIN.

Either its a search to detect these particles, or its not. If its not, we're going to have some serious privacy problems as we get better at detecting this stuff. If it is, then we're going to have a lot of bullshit security that doesn't really work.

We need to come to a realistic consensus on how to handle this.

Frankly, I think that if the police need special tools to detect the stuff, then it is a search, unless there are reasonable means that the person could go to if they wanted to conceal the particles, in which case its not a search.

Reasonable means would imply that drug sniffing dogs are a search, but listening to unencrypted radio communications are not a search. Cracking poorly encrypted radio communications is a search.

My 2 cents, but more valuable then a standard that says:
We can detect drug particles with a dog, but not a machine. Its OK for the cops to listen to unencrypted wireless communications, but its illegal for anyone else to do it, even accidentally. But using a thermal camera is a search... Its totally random and based on nothing but the whim of the court.

Stupid broken SCOTUS rulings

] The Supreme Court shall not have jurisdiction to review,
] by appeal, writ of certiorari, or otherwise, any matter
] to the extent that relief is sought against an element of
] Federal, State, or local government, or against an
] officer of Federal, State, or local government (whether
] or not acting in official personal capacity), by reason
] of that element's or officer's acknowledgement of God as
] the sovereign source of law, liberty, or government.'.

This thing just went into Committee in September. Its about as Constitutional as nazi death camp, but its got 37 cosponsors in the house and 5 in the Senate, including Zell Miller, who is orchestrating his conversion from the left to the radical right in order to keep riding the local vote in a red state.

This is the prelude to the big amendment that I talked about in an earlier post. I can't believe it slunk around in the house for this long and I didn't hear about it. This is literally a knife being slung at the heart of democratic government in this country. A government of God is one you can't question. A government you can't question is one that isn't democratic.

Holy Shit! H.R.3799

] "Let history be witness I am a criminal."

This story is interesting on a number of levels.
Outwardly, you've got the small town library fighting to protect it's patron list.

Secondly, you've got the FBI not using the Patriot act to collect that list. Its informative on that level. They likely didn't use the patriot act because the conservatives are fond of defending the ability to collect library records by saying that its never been used. On the other hand, because they didn't use the patriot act the library is screaming to high heaven about the inquiry. If they had reason to suspect that an Islamic terrorist did actually read this book that guy has lots and lots of notice that the feds are on to him. In a way, by running screaming to the press the library is demonstrating why the feds need gag orders on libraries. (My defense here of gag orders should not be misconstrued as a defense of the collection of this data without a court order.)

The third level is the interest in the first place. Why get a grand jury involved just because someone scribbled a quote in the margins of a book? Is this a Bin Lauden quote? Googling the quote only returns references to this story. One blogger from the area claims to have seen another quotation in a TV news report about the incident. I wonder if the quotation is entirely different then these two and one which hasn't been made public... Something only someone connected to the base would know...

(Turns out the correct quote is "Let history be witness that I am a criminal." Google it.)

komo 4 news | Small Town Library Takes On The Feds