18 March 2016

Spring Break Pop Quiz--Alexander Hamilton and Tim Cook

Okay, it’s Spring Break for the college kids, but we grownups are in the midst of a serious test period.  This is a two part quiz: Grades are pass/fail.

How do you respond to the following hypotheticals?

1.You have waited three months and you finally scored two orchestra seats to Hamilton.The producers donated a batch of tix to local churches and you earned yours by waiting in line from 4 a.m to noon. So you paid $50 for a babysitter, and train and cab fares came to another $62.50. The curtain goes up and you are enjoying the show immensely when, in the middle of the first act, eight people seated in front of you stand, unfold cardboard signs that had been hidden in their jackets, and chant slogans proclaiming that Hamilton was a tool of George III, the Federalists were Fascists, and the real hero of the American Revolution was slave owner Republican, Thomas Jefferson.

The rest of the audience is enraged. Screaming, threats of violence ensue. A few minutes later, the stage manager comes out and reports the performance is cancelled. In the ensuing departure melee, you bruise your shoulder and break the heel on your new Manolos.

The press later reports that the interruption of the show was part of a planned effort by three Jeffersonian organizations acting in concert. The organizations assert their conduct was protected by the First Amendment, and they refuse to promise to refrain from disrupting future performances of the show unless the Hamilton producers agree to change the script by removing all praise for Hamiltonian programs.

Which of the following options do you pursue:

A. You do nothing, because you reluctantly agree the people who disrupted the performance were legally exercising their First Amendment rights.

B. You institute a Small Claims Court claim against the disrupters and the Jeffersonian organizations that planned the demonstration. You seek money damages, arguing the disruption was not protected speech.

C. A class action is commenced on behalf of all the theatre goers who were pissed at the disruption, seeking the same relief. You opt in.

D. You write your local District Attorney and ask him or her to investigate whether the concerted action to disrupt the performance advocated or threatened imminent lawless action, i.e, was this the equivalent of shouting fire in a crowded theatre.

E. You write to the New York Times, MSNBC, FOX NEWS, AND CNN, expressing your disappointment the media gave insufficient or no consideration to the proposition that what the demonstrators did was CONTRARY to First Amendment values, and their conduct created a dangerous situation. You do this despite your recognition this is surely a waste of your time.

If you chose A, please go sit in the corner and read the First Amendment. This is something few people in the media have actually done, though lots of them bloviate on the subject as if they knew WTF they were talking about. Please focus on the language "Congress shall make no law" and think about how that sentence supports your view that the demonstrators had the right to disrupt a theatrical performance.

Then go to the New York Times and look for this Letter to the Editor:

"To the Editor:

Watching Fox, MSNBC, and CNN report and comment on the cancelled Trump rally, I heard a lot of talk about protesters' First Amendment rights, and no talk about Trump's First Amendment rights. I think Donald Trump's political views are an anathema and his past language respecting individual protesters at his rallies was despicable and encouraged violence. And perhaps this venue was a poor choice. But in stressing the protesters' First Amendment rights, the talking heads universally missed the point: the Amendment does not allow anybody to say anything at any time in any place. It is not absolute, and lots of speech is restricted, e.g, threats, incitement, child pornography, conspiracy, some libels, etc. That speech is not constitutionally protected because it is deemed to have no ''value" to the full and free exchange of ideas, which is what the First Amendment is all about.  Trump, Cruz, Clinton, Sanders, et al, are entitled to inform the public of their views, criticize each other, criticize the government, and try to persuade people to vote for them. Conduct, whether "speech" or otherwise, designed to frustrate those rights offends constitutional goals.  While previously, there were individuals who interrupted Trump's rallies and were removed from the hall, in this instance, reports suggest several organizations planned (conspired?) to act together and encourage their members to disrupt the rally and prevent Trump from expressing his views. That conduct is directly contrary to First Amendment values. It would be interesting to see the talking heads' reactions if Trump or Cruz sent in a thousand adherents to disrupt a Clinton or Sanders rally. I suspect the television conversation would focus on Hitler and Mussolini, not the First Amendment. Fair enough.”

What? You couldn’t find my letter?  Hmm, maybe they forgot to print it? Or didn’t print it because they don’t like what it says?  Nah, not my NYT!

Hypothetical No. 2. This one touches on a subject discussed in an earlier blog, but it is important enough to revisit. Here's the question:

Assume, please, the FBI and Homeland Security have obtained irrefutable evidence that a terrorist group has built a nuclear device, which it has placed in the basement of an office building in downtown Chicago.  In exchange for immunity, three members of the terrorist cell, (actually only two, and the wife of a third) have withdrawn from the conspiracy and provided the information to the government. However, to reduce the possibility that the authorities would learn the details of the plan, the cell leader has carefully partitioned the information among his followers, so that no one person knows all the details. Piecing together the shreds from the three informants has yielded the “what” and “when”, but not the “where”.  The authorities know the power of the device (it is the size of the Hiroshima bomb), the details of the timing mechanism (it will detonate in 48 hours), and how the terrorists built the bomb (they got all their information on the internet) but they do now know where in Chicago the device is hidden. They believe it is impossible for all people in the area to flee the reach of the blast and radiation, and should the bomb go off, the nation’s economy, its transportation and communication network, its manufacturing capacity, etc, will be set back 100+ years.
Fortunately, they have recovered from one of the informants one of the leader's iPhones that likely contains the precise location of the nuke, but the phone is encrypted and the government can not crack it. It fears further decryption efforts will erase all the information on the phone.  
The government immediately secures from a federal judge an order directing Apple to decrypt the phone. Apple says it has the ability to do that, but refuses on the ground that it has promised absolute privacy to its millions of current and future customers, and it will not dishonor that pledge. Besides, if it does this for the United States government, then other nations will make similar demands.

Which option do you pursue:

A. Jack Bauer is unavailable, so you urge the government to fly Tim Cook to Chicago and waterboard him there. If that gets no results, use battery cables, etc, but please hurry.

B. Write a letter to the NYTimes supporting iPhone owners' constitutional rights to privacy, and urge Cook to hold his ground.

C. Ask the NYTimes to put together a panel of lawyers, philosophers, and Times editors to discuss i) how serious the threat must be before the government may compel a citizen to act to help prevent a crime, ii) how much effort is it appropriate to require of a private citizen under the All Writs Act, iii) whether the magnitude of the crime is a factor for a court to consider in determining whether it should issue an order of compulsion. The experts should also consider who makes the ultimate decision, i.e, the government, Tim Cook, or some impartial third party, like a court.  I assume the panel will want to meet immediately--in the South of France.

D. Cash in your stocks and bonds, withdraw your money from your bank, convert everything to gold, charter a plane and fly to St. Barths. Check in with me when you get here, and I can help you buy a villa. My fee is reasonable, but act now before I get too busy and prices rise. Oh, yeah, bring a paper French/English dictionary because I am not sure your iPhone will any longer be able to reach GoogleTranslate.

Ahh, don’t bother with the grades on this part of the test.  A Supreme Court Justice once wrote: “The Constitution is not a suicide pact.”  Lots of people repeat that quote without mentioning it was in a dissent!
Keep up the good fight!
Marty London

05 March 2016

Politics is Pissing on Paradise

 Politics is Pissing on Paradise:

I do not regard myself as a “political junky.” Politics is frequently boring, even when I see politicians doing or saying bad or stupid things. Life has too many other interests for me, e.g, in alphabetical order, beach, family, fishing, friends, et al.  Here in St. Barths, “Beach” is an absolute.

But recent events have overwhelmed me. I am totally fascinated by the destruction of the Republican party, and this week, for the first time in years, I have watched television in the afternoon.  Lucky for me it was a rainy day when Mitt Romney spoke. Then I got to watch the responses, the extraordinary Republican debate, and in the interim, listen to the talking heads discuss the R’s refusal to consider a replacement for Scalia, the Supremes hearing the argument of the scandalously dishonest Texas anti-abortion legislation, and Apple thumbing its nose at the FBI.

But the sun is shining today, I will NOT turn on the tv this afternoon, and instead will vent my frustrations here and now, so I can hit the sand right after lunch.

First, I am appalled at the R presidential choices offered up for November. While I have no vote on this (or on anything else, for that matter, because the NY electors will certainly vote for the Democratic candidate no matter what I do or say), it is simply inconceivable that any of the three leading R candidates will be President of the United States. And while I disbelieve any current poll that says Cruz or Trump will beat Hillary in the general election, I worry about the next Clinton damaging revelation, be it about Bill, money, emails, another “whitewater”, whatever.  Or even an R “Swiftboat” attack that will be accepted by enough voters to change the result.  Ya can’t hold your breath for eight months! It’s like going into my basement without a flashlight when looking for the fusebox. Who knows what I will stub my toe on, what spider web will plaster itself on my face. Yuch. Only thing I know for sure: these are the Clintons, so the risk is great.

Second, the Texas abortion regulations heard by the eight-person court the other day: The whole thing is so dishonest, I am almost speechless. The alleged justification for the the regulations that will shut down virtually all abortion clinics in the state, i.e,”we are protecting women’s health, (wink, wink) are so transparently false that every politician who utters those words is a flat out liar. Period. And everybody knows it. And the likes of Cruz et al, who support those lies, nevertheless have the gall to attack Donald Trump, because he is a liar? If this is a contest as to which lies are more important,  they ought to say so. How did the Fox interrogators miss this? ( Wink, wink, --a rhetorical question.)  And the judiciary, including the Supremes? The latter either overturn Roe and Casey, and say women no longer have a constitutional right to choose abortion, or they strike the Texas statute. Unanimously. There is no middle ground.  Anything else is simply intellectually dishonest and a vote for the lying Texas pols.

Apple vs. the FBI. It’s getting late, so I will cop out and simply quote here an email I sent to a lawyer friend who asked my opinion on the dispute:
"My own view is that this is a marketing ploy. Cook gets to be a hero and parade his independence from the gov. The legal position, I think, turns on the All Writs Act, a piece of legislation I have never dealt with in my practice, but have learned about recently. Requires cooperation with the subpoena, but within limits. Major Supreme Court case required telephone company to install a pen register, but that was simple chore. I gather Apple does not deny it can write a piece of code to override the auto-destruct feature of the phone.
When it comes to security issues, I am inclined to take a flex position. Privacy and security are sometimes opposite ends of the teeter totter, and neither is entitled to absolute primacy.  Would Apple take the same position if the gov said: 'There is a suitcase nuclear device in downtown Chicago that is scheduled to detonate in 24 hours, and we have an encrypted iphone that will reveal the location?'  If Cook said 'Sorry, I refuse to interfere with our customer's privacy', I would bring on the waterboarding specialists.
(Then I would immediately catch Jetblue and Winair to Paradise.)"

Okay, sun is shining, my lovely assistant has fetched mon jambon et fromage en petit pain. Lunch, then the beach, then cocktail hour. Busy day ahead.

A bientot.