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

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