This is a news story that attracts me from all my perspectives (Wisconsin native, journalist, lawyer, teacher, and of course critic).

All night, I’ve been checking in on this Wisconsin “bellweather” election — an amazing cliffhanger. (Late Wednesday, with all precincts reporting, the AP now reports the liberal candidate now leads by 204 votes, or 0.014%.)

In Wisconsin, many citizens feel betrayed and violated by the actions of the Republican governor and legislature, barring collective bargaining by public-employee unions which didn’t support the governor’s election (while retaining it for other public-employee unions).  Many others, of course, believe the Republican rhetoric blaming public-employee unions for the state’s budget deficit (which appeared only after the new Republican legislative majority enacted huge tax cuts for the wealthy).

Let’s be clear: it’s very unlikely that this election (for Supreme Court Justice) will change the outcome of this particular battle.  (The current law will likely be stricken down as invalid because its enactment was in violation of the state’s Open Meeting law, but the legislature will re-enact the law anyway, and I doubt the Wisconsin Supreme Court will strike down the law on other grounds before new elections lead to its reversal.)

But just weeks after the political adventures surrounding the collective-bargaining provisions, this was the first opportunity voters had to weigh in — and despite the overwhelming 2:1 lead that the conservative incumbent had (just a few weeks ago), exactly half of Wisconsin’s voters voted for each candidate.

Where are the lessons here? Well, let’s start with the obvious: every vote really does count.  This election will probably end with the winner leading by just a few hundred votes out of 1.5 million — probably less than one-fiftieth of one percent difference between the vote counts for the two candidates.

Another lesson: money was immensely influential, probably pivotal. In the final days of the election, “independent groups” spent at least $3.5 million (probably more than $5 million). While a substantial amount was spent by union supporters, most was spent by business groups supporting the conservative incumbent.

Wisconsin Republican legislators facing recall campaign should be worried — even in districts which voted 60% or 70% in favor of the incumbent Supreme Court justice in this election.

Instead, I quickly recognized that some of the headlines were deceptive, as reporters sought to churn a minor clarification into a major story.

Here are some examples that I don’t think are objective (I’ve underlined wording I think is unfair):

• USA Today: “A divided Supreme Court scaled back the well-known Miranda right….”
• Los Angeles Times: “Supreme Court Loosens Miranda Rule” (headline), “The Supreme Court retreated from strict enforcement of the famous Miranda right on Tuesday….”
• Vanity Fair: “In the New America, You Must Invoke Your Own Miranda Rights”
• Detroit News: “Supreme Court narrows Miranda rights….”
• Newsday: “Supreme Court expands limits on Miranda rights”

Several commentators, writing before the Supreme Court issued its ruling, described the case as an attempt to “expand” or “clarify” Miranda, which required that before questioning, suspects must be advised of their Constitutional rights (to have an attorney, and not to incriminate themselves), and police must terminate questioning if a suspect invokes those rights.

But when the ruling was announced on June 1, most reporters and editors immediately transformed the “non-expansion” story into a “limitation” or “retreat” story.

There are two reasons why the media may have sought to magnify the ruling’s importance and impact.  First, the dissenting opinion was written by newly-appointed Justice Sotomayor. Second, when the case was briefed and argued, the U.S. government sought the ruling that the majority delivered — and the government was represented by current Solicitor General Elena Kagan, who is now President Obama’s nominee for appointment to the Supreme Court.

I assume that in the next few days, we’ll hear pundits proclaim that this case demonstrates that Ms. Kagan is more moderate (less liberal, more conservative) than Justice Sotomayor, which might make her appointment seem more acceptable to some Senators (and perhaps less acceptable to other Senators).  Undoubtedly, we will also hear some  pundits complain that Obama should withdraw Kagan’s nomination because she’s too conservative, and different pundits will claim that this case was a “smoke screen” intended all along to make Kagan appear more moderate than she “really is.”

In fairness, the “change” and “limitation” language was not the only “angle” that editors seized upon.  Many other articles instead emphasized the apparent contradiction in the court’s ruling that one must “speak up in order to assert the right to remain silent” (for example, the New York Times editorial, “Speaking Up to Stay Silent”).

__________________________

The actual issue in this case was whether a statement made by a suspect during interrogation, after remaining “largely silent” for nearly three hours, could be admitted at his trial, or should be excluded.

Mr. Thompkins was arrested for murder.  During his interrogation, he was advised of his right to remain silent, and he remained “almost completely silent and unresponsive”.  However, “At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney.”

After nearly three hours of an interrogation best described as a “monologue,” a detective asked Thompkins if he believed in God, and if he prayed; Thompkins answered “yes” to both questions. The detective then asked, “Do you pray to God to forgive you for shooting that boy down?” and the suspect answered “Yes.” Thompkins’ attorneys sought to have this statement excluded, arguing that by remaining mostly silent for nearly three hours, Thompkins had effectively communicated his intent to remain silent, and police should have ended the interview before then.

The “real issue” in the case, I think, was this: after police insisted that Thompkins read a portion of the Miranda rights from a card, and after police read all these rights to him, and after Thompkins refused to sign an acknowledgment that he “had been advised of and understood his rights,” police did not ask him if he expressly waived those rights.

The Supreme Court was presented with an opportunity to clarify the Miranda decision by deciding whether or not police were required to ask that question (and if so, whether they could insist that the defendant reply; or if the defendant did not reply, whether police should infer either a waiver or invocation of that right).

In a 5-4 decision, the Court ruled that police were not required to ask, nor were they required to infer from silence that a suspect was “invoking his right to remain silent,” which would end the interrogation.

In her dissent, Justice Sotomayor wrote:

The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counter-intuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona, 384 U. S. 436 (1966), has long provided during custodial interrogation.” (Berghuis v. Thompkins).

While I don’t agree with the majority’s decision, I don’t agree with Justice Sotomayor that this case represents a “substantial retreat,” and I don’t think the majority decision will “limit” or “change” existing law, nor will it change police procedure.

Most journalists adopted the dissent’s view that this decision was a significant change from existing law.  I find this a fascinating example of “pack-mentality media distortion.”

While I’d love to join the chorus criticizing both Apple and law enforcement, I simply don’t have enough information to make a reasonable decision about the conduct of various parties. Some key questions: did the “finder” of the phone make a reasonable effort to return it; was it legal to sell or buy the “found” item; was it legal to open and dissect the “found” phone; did Apple act reasonably to find and reclaim the phone; did Apple accurately describe the facts to law enforcement; did law enforcement properly investigate; did law enforcement properly describe the situation when seeking the search warrant; did the judge properly apply the law when issuing the search warrant; did law enforcement act reasonably in conducting the search after recognizing that the “shield law” might be applicable; did law enforcement act properly under the “shield law” both before and after the blogger and Gizmodo expressly asserted its applicability; and did law enforcement allow Apple agents to participate in the residential search?

One key issue, of course, is whether or not a “blogger” is protected under California’s laws protecting “journalists.”  While many people have strong opinions, the issue is one of interpreting a statute. (There’s a helpful column by Gillian Reagan at BusinessInsider.com discussing the California “reporter’s shield law” and how it includes bloggers.)  In short, there is no doubt that the “shield law” applies in this case — but it’s not an absolute protection.

The shield law protects journalists against being compelled to identify their sources or to reveal “unpublished information obtained or prepared in the course of newsgathering activities.” The “shield law” is actually part of the California Constitution (Article I, section 2, subdivision (b)), and in a 2006  decision by the California Court of Appeals (also involving an alleged theft of confidential information from Apple) the court wrote:

“We decline the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalis[m].’ The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here. We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news.”  O’Grady v. Superior Court (2006) (emphasis added).

The O’Grady case didn’t reach the California Supreme Court, and the ruling doesn’t hold that all bloggers are protected by the shield law. But the facts in O’Grady were remarkably similar to the current Gizmodo situation: both involved disclosure of Apple’s “confidential” materials.

After O’Grady, Apple knew it couldn’t compel disclosure of the iPhone-prototype “source,” and so it chose instead to report the phone as “stolen property” and encourage a law-enforcement task force to instead search the blogger’s home to try to identify the source, while also “fishing for” any other confidential Apple property that might be there.

What stinks here is that Apple knew that it was actively seeking to circumvent the protections of the “shield law.”  By conducting the search without warning while the blogger was not home, law enforcement sought to capture the critical information (the identity of the source) before the blogger could assert the privilege.  As hoped, the search disclosed the identity of the source.

It also seems quite likely that Apple already knew the identity of the source (who found the phone), if he actually did call Apple to report finding it.  If so, then did Apple tell law enforcement?

One key issue is whether the purchase of the “lost” iPhone prototype was legal; was this “stolen property”?  (If it was “stolen property,” then an effort to recover the stolen property, or to identify the thief, might reasonably appear to law enforcement to justify a search warrant, and law enforcement might also reasonably worry that if the search were delayed, the blogger might destroy evidence.  Note that days before the search, the iPhone prototype had already been returned to Apple.)

Gizmodo reported that the person who found the phone:

“… called a lot of Apple numbers and tried to find someone who was at least willing to transfer his call to the right person, but no luck. No one took him seriously and all he got for his troubles was a ticket number.”

Although the phone worked when found, it was completely disabled the next morning; apparently, Apple remotely “wiped” the phone to prevent its prototype software from being disclosed.

At that time, it seemed a distinct possibility (to both the “finder” and to Gizmodo) that the phone might be a hoax, intended to be “found” and reported about.  But the Gizmodo blogger paid $5,000 for the iPhone prototype; it’s hard to imagine anyone paying that much without the belief that it was “more likely than not” that it was genuine, and of course it was the hope that it was a genuine phone that led the blogger to pay for the phone. Once Gizmodo recognized that the phone was genuine, it knew it did not legally own the phone (and Gizmodo asserts that it always intended to return the iPhone prototype to Apple, if Apple would accept it).

Regardless of the “genuineness” of the phone, it clearly wasn’t the legal property of the person who found it.  (When I was a young teen, I found a nice watch in the snow one day, and after failing to find the owner at the scene, I dutifully turned it over the local police department; after the rightful owner failed to claim it within 90 days, the police gave me the watch to keep as my own.)

I started this column by writing that “I simply don’t have enough information to make a reasonable decision about the conduct of various parties.”  The situation certainly “stinks” — it appears highly likely that Apple deliberately sought to circumvent the protection of the “shield law” which is part of the California constitution, and it appears highly likely that law enforcement exercised very poor judgment in obtaining and executing the search warrant.  But all the facts aren’t in yet.

In 1989, I graduated from Boalt Hall (the law school at the University of California, Berkeley), passed the bar exam, and was admitted to practice law in California.  I worked for a small law firm for three years, before opening my own law office in Pleasanton in 1993, focusing exclusively on estate planning, probate and trust law.

And then came the Internet.  In late 1995, I created a web page to promote my law practice, and by late 1996 my web site was the most popular internet resource on California Estate Planning.  At about the same time, I discovered some dubious companies promising web-site owners money for advertising, and I created a separate web site identifying some of the crooks and con artists in  that nascent industry. By 1998, I earned more money from my “Online Advertising” web site than from my law practice.  In early 1997, I began doing consulting work for e-commerce startups, advising them on how to profitably sell online (initially focusing on “affiliate programs” and later “pay-per-click search”).

I stopped accepting new legal clients in 1999, and effectively closed my law office in 2000, although I maintained my office in an “executive suite” until last September. Each January for the past 10 years, I’ve considered switching from “active” to “inactive” status, but each time I chose to retain “active” status (and pay the $400 annual dues).  Finally, this year, I could no longer think of any reason to remain “active.”  I am seriously considering resigning entirely as a member of the State Bar of California, but for 2010 I’ve decided to only change my status to “inactive” (paying a reduced fee of $125).

As an “inactive” member of the bar, I cannot give legal advice, nor appear in court on behalf of clients, nor hold myself out as being entitled to practice law.  For all practical purposes, “I Am Not A Lawyer” (IANAL), this year.

The first is an editorial in the New York Times criticizing Supreme Court “Justices” Scalia and Thomas for their dissenting opinion in the case In Re Troy Anthony Davis, arguing that not only is it permissible, but legally required, that we execute an innocent person. (There is also a NY Times news article about the case.)  These two “justices” argued, in part, that a federal law should preclude an innocent death-row inmate from being allowed to present proof of innocence — and that it is constitutionally permissible to execute an innocent person.

The second issue was also widely reported (in many media outlets, including CNN, NPR, CNET, and the New York Post): New York Judge Joan Madden ordered Google to reveal the identity of an anonymous blogger who offended a model by describing her as “whoring,” “lying,” and “skanky.” (You might also wish to read a vivid account of the March court hearing here.)

This is a fascinating case because it illustrates some mistakes that lawyers and judges make.

• First, of course, model Liskula Cohen made a huge mistake when she hired Steven Wagner as her attorney. It’s hard to imagine any competent attorney advising a client to file suit against an anonymous blogger whose insults were visible to only a handful of people on a single day, knowing that the litigation would result in vast re-publication of the insults, and guarantee that news headlines would (quite properly) refer to Ms. Cohen as the “Skank Model.”  This case should never have been filed; the only “justification” for litigating this is to generate publicity for Ms. Cohen’s lagging modeling career (which would be an improper abuse of the courts).
• Second, the judge made a mistake (perhaps acting in a “legally correct, but unjust” way) by concluding that obviously-absurd comments about the sexual experience of a 37-year-old fashion model could potentially create a valid claim for defamation.  I can’t find a complete copy of the offensive post, but news accounts report that the blog described Ms. Cohen as the “Skankiest in NYC” and as a “psychotic, lying, whoring … skank.”  What I find absurd is that Ms. Cohen (or anyone else) could believe that the blogger’s statements were “factual” in nature. They are insults, and nothing more; nobody would believe that the anonymous blogger actually knew anything about Ms. Cohen’s sexual history.  Even if Ms. Cohen asserted that she was a virgin desparately concerned about her moral reputation, there would be no defamation case here; since she has now publicly described herself as a “serial monogamist,” it’s even harder to understand her objection to the hyperbolae in the anonymous blog posts.

If I focused exclusively on the legal issue here, I might conclude that Judge Madden’s ruling was correct, but Judge Madden clearly understood that this case raised serious First Amendment issues, and that anonymous speech is actually constitutionally protected.  Accordingly, I believe that her ruling was not just “wrong,” but “unjust and immoral.” I hope that the anonymous blogger finds support to appeal this incorrect ruling.

In a 6-3 decision, accompanied by a broad and sweeping written opinion, the Court struck down a Texas law which criminalized consensual sexual conduct between two persons of the same sex. In doing so, the Court overturned a 1986 decision in the case of Bowers v. Hardwick, which had upheld a Georgia “sodomy” law.

It is rare for the U.S. Supreme Court to so emphatically discard a prior legal decision, especially one so recently decided. It is also rare for the Court to reach beyond the narrow confines of a specific case, but the opinion in thie case does so, going far beyond the requirements of the case presented.

What the Case Does Not Say: The ruling does not require the government to allow or respect gay marriages.

This case arose after police invaded a private home (allegedly based on a crime tip), surprising two men who were engaged in sexual activity, and then arrested both men for violation of a Texas law prohibiting “deviate sexual intercourse” (defined to include sex acts between two persons of the same sex, but not between two persons of opposite sex).

When the court first decided to hear this appeal, it identified two questions:

• first, whether the law violates the “equal protection” clause of the 14th Amendment to the U.S. Constitution when it outlawed specific conduct between two persons of the same gender, but not between two persons of opposite gender (discrimination);
• second, whether the law violates the “due process” clause of the 14th Amendment by regulating “adult consensual sexual activity in the home.”

Liberty and privacy (but mostly liberty?): The opinion notes that the Texas law regulates “the most private human conduct, sexual behavior, and in the most private of places, the home.” The Court rejects the prior decision in Bowers v. Hardwick as focusing on “homosexual acts” instead of the broader issue of consensual, intimate acts in private homes, and also rejects the Bowers Court’s claim that “proscriptions against [homosexual] conduct have ancient roots.” The latter point serves (quite poorly, I think) to undermine claims that neither the “Founding Fathers” who wrote the Constitution nor the legislators who ratified the 14th Amendment would have expected their Constitution to prevent such laws.

Discrimination / Equal Protection? Normally, a court need only find a single basis for its opinion; thus, having decided that the Texas law violated the due process clause (“liberty”), it was not necessary to also rule on the “discrimination” issue, which was not addressed directly in the majority opinion (but is cited as the sole basis for Justice O’Connor’s concurrence). It will be hard for most people to believe this if they read Justice Kennedy’s majority opinion, which is quite emphatic in repeatedly noting that the petitioners had engaged in “homosexual” acts and a gay relationship and lifestyle, and that “The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.”

How Far (physically)? The court’s opinion repeatedly refers to “the home,” and would not appear to prohibit laws that prohibit public conduct, even if those laws discriminate against gays (prohibiting certain conduct by same-sex couples but not by opposite-sex couples). The decision should certainly extend to other private places, including hotel rooms, but not to semi-private or public places.  However, it seems unlikely that states would enact laws to exploit this “loophole,” since there are few acts that lawmakers would allow to occur in public between opposite-sex couples but not same-sex couples.

How Far (scope)? The majority opinion’s language decrying the Texas law for “demeaning” gay couples, and insisting that they be entitled to “respect,” would seem to infer that certain other laws or regulations that treat people differently based solely on their private, intimate activities or based on the fact that they are in a “homosexual relationship.” As Justice Scalia notes in his dissent, that language completely undermines any claim to legitimacy for discharge of gay men and lesbians from the military, based solely on what they do in the privacy of their homes.

This Decision is Right, but Not Secure. In fairness to the three dissenting justices, there is little to support the majority’s claim that the decision is founded firmly on established principles of jurisprudence. In some ways, the sweeping references to “liberty” are a cop-out.  This is simply one of those cases in which the Court recognizes that it must do The Right Thing, and reject attempts by a tiny minority of small-minded bigots to punish others for being different, or worse, for being happy — or gay.

And the 6-3 ruling is not very secure, given Justice O’Connor’s limited concurrence and the likelihood that the next appointment to the Supreme Court will be made by President George W. Bush.

But invariably, when I think about why I chose to attend law school, and when I think about what I would like to achieve as an attorney, I am drawn back to a newspaper article I read in the spring of 1980, while I was a freshman in college. I can’t find that clipping, but here’s what I remember:

The State of Virginia had discovered that certain individuals who were institutionalized decades earlier had never been told that they had been sterilized. One of those women was named Doris, and she was surprised to be told that the operation she had been forced to undergo when she was a teenager was not an appendectomy. She had later married and she and her husband tried for many years to conceive a child, but they believed that God had decided they would not, and they had accepted it.

As it turned out, Doris was the sister of Carrie Buck, who was famous for having been the subject of a U.S. Supreme Court case, Buck v. Bell. In that case, the state of Virginia sought to sterilize Carrie Buck, because so-called “experts” testified that she, her mother, and her illegitimate daughter were all “imbeciles.” In a unanimous, sweeping decision written by Justice Oliver Wendell Holmes, the U.S. Supreme Court gave states broad license to sterilize persons deemed defective.

But no one ever told Doris Buck that she was being sterilized, until a half-century later.

It was a poignant news article, published on a slow news day (Saturday). For reasons I could not comprehend, the story gripped me. Assigned to compile a research bibliography for an English class, I chose the subject of “eugenic sterilization.” I scoured the college library for related articles and books, and I made my first trip to a law library to read the U.S. Supreme Court case.

And I slowly realized something, seemingly for the very first time in my life: the law can be wrong. Even a unanimous opinion by the nine most powerful judges in the nation can be one hundred percent wrong. And somehow, I wanted to fix that. I wanted to step in and figure out why the world could be so wrong.

As I did my research, I learned a lot about how the law had changed, and why, and I was pleased to learn that eugenic sterilization had been thoroughly discredited. A later Supreme Court decision even prohibited sterilization of convicted criminals. But still I was dissatisfied, because it was so clear that something was wrong.

Today, I know what was grinding at me: the U.S. Supreme Court ruled that someone could be sterilized only under stringent safeguards to insure that “due process” was honored — it should never have been done secretly, without the patient knowing. And the testimony and evidence should be compelling, not weak.

Several years ago, I bought a book on natural history by Steven Jay Gould (“The Flamingo’s Smile”), to read on an airplane. I was shocked to find that one chapter was about this same family, the Bucks. Mr. Gould, clearly no fan of eugenic sterilization, had done some homework and discovered that Carrie Buck had been sterilized based on the flimsiest of “evidence.” She had been impregnated by a foster brother, and institutionalized not because she was mentally defective but because it was an embarassment to the foster family. Her daughter was diagnosed as being “slow” at the age of two months, by an incompetent social worker whose measure was that the baby was less developed than another six-month-old baby she saw at the same time. And it turns out that this “imbecile” baby later enrolled in regular school and was an honor student (but died from illness in childhood). It turns out that the “facts” in the case were compiled by a “scientist” who sought broad authority to permit eugenic sterilization across the country. And that’s exactly what happened during the next few decades.

In the end, eugenic sterilization was not abandoned because of legal jurisprudence, or better science: instead, the primary reason was that it became offensive when Hitler abused it, citing the false science of eugenics as authority to exterminate millions of people, all branded as “defective.” Slowly, or perhaps suddenly at the end of World War II, Americans realized that it was impossible for human scientists to set aside their own prejudices when evaluating “defects” in others.

As compelling as this story is, it took me more than a dozen years to understand why it grasped me so tight.

Today, the newspaper reported that the Nobel Peace Price was awarded to two men working to resolve another injustice: the annexation and repression of the former Portuguese colony of Timor by Indonesia over the apst 20 years. Oddly enough, that tiny and short-lived independent nation was the subject of another research paper I wrote during my second year of college. At the time, I was amazed that such injustice could be tolerated and ignored by the rest of the world.

In the end, it was not Carrie Buck or her sister Doris, or the repressed people of Timor, but something my own experience that was gripping me: the experience of having the American system of law and justice fail completely.

You see, as a child, I was sexually abused by my brother, and when I found the courage to report it, I found no justice. My parents, and psychologists, and even police, could not decide what was true and what was not (although my brother had molested several other children already), and in the end the abuse even resumed, and after that the abuse was not just my brother but the whole “system.”

A decade later, while I was in college, my brother was finally arrested convicted of abusing other children; five years after that, he was convicted again and imprisoned for seven years. But I found no justice in that; it was too late.

I researched the case of Buck v. Bell and related issues of eugenic sterilization because I wanted to see that in the end, injustice can be ended. But it wasn’t ended: Doris Buck was denied due process and children, and being told after fifty years that she had been lied to was hardly justice. And in my own case, seeing my brother in prison didn’t bring me justice either. And it was those experiences that drew me into the law, and made me want to do something to change the system.

Over these last few years, as I have practiced law, I have learned how unfair and arbitrary the law can be. I have seen lawyers lie, cheat, and steal from their own clients. I have seen judges make bad rulings, and I have felt helpless as I saw injustice occur.

And gradually, I have begun to adjust my expectations of what the law can do, what the system can do, and what I can do. And this makes me uncomfortable. No, more than that: it makes me feel less human. What kind of person am I, if I can shrug off a story about the incompetence of a child protective services worker, or the sight of a judge ignoring the facts and the law to return a vulnerable child in a dangerous home?

I suppose I am only human, and somehow that does not make me feel satisfied.

Why did I become a lawyer? I wanted to change the world. I still want to change the world. But in the end, it is not “the world” or “the system” we must change: it is ourselves. The fault I find most often is not in the law or the legal system, but in the people whose judgement is wrong; and I cannot find in my heart any better tool for improving judgment, except time dedicated to the tasks at hand, and perhaps this is the one flaw in the legal system: it does not allocate enough time or attention to those who encounter it, and quick decisions are often wrong.

Some related web sites:

• Two New York Times news articles from Spring 1980: http://www.law.du.edu/sterling/Content/ALH/buck_ps.pdf (see also: http://www.buriedinside.com/sex.html).
• From the National Center for Human Genome Research: Scope Note: Eugenics (by Mary Carrington Coutts & Pat Milmoe McCarrick) and Eugenics Bibliography – includes many links related to Buck v. Bell
• Biographical information on eugenicist Harry Hamilton Laughlin (“worked on Buck v. Bell decision”) — written by the “American Life League” (pro-life group)
• Eugenics in Iowa – research paper by Catherine Ingram
• Choose Better Human Genes – by Howard Holme
• Morning and < a> afternoon Transcripts from Clarence Thomas’ confirmation hearing – including quote in which Thomas criticizes the opinion in Buck v. Bell.
• Roe v. Wade – portion of US Supreme Court opinion citing Buck v. Bell as authority – copy
• Chapter 12 from SHAPING GENES: Ethics, Law and Science of Using New Genetic Technology in Medicine and Agriculture – by Darryl R. J. Macer, Ph.D. Eubios Ethics Institute 1990
• “Techniques in Conflict: Science, Technology, and the Courts in American Public Policy” First Draft of Adam Stone’s thesis

(February 9, 1996) The First Amendment of the Constitution of the United States of America provides that Congress may enact no law which abridges “freedom of speech, or of the press.” The Supreme Court has interpreted this to mean that Congress may not prohibit speech merely because it offends some people; after all, Americans often offend each other, especially when discussing politics. Congress also may not impose restrictions that would reduce all discourse to the level of a child, or to avoid offending hyper-sensitive people.

In February 1996, Congress violated the Constitution of the United States by enacting the “Telecommunications Act of 1996,” which included provisions from the “Communications Decency Act” that outlaw any online communications which might be considered “indecent” or “patently offensive” to someone. (See the excerpts from the Act below.)

The law also expressly authorizes any online service or Internet service provider to censor any communications which it believes might be “objectionable” to someone, and removes all legal remedies otherwise available to those affected by that censorship. This amounts to an unlimited censorship license.

These provisions are designed to undermine free speech. And, although I’d like to blame this misguided law on the Republicans and their “Contract on America,” the truth is that about 90% of Congress voted for the law.

What can we do about it? Not much. Fortunately, theAmerican Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) filed a lawsuit challenging the Constitutionality of the Communications Decency Act in federal court immediately after President Clinton signed the law. But until that suit is resolved, anyone whose message might be “indecent” or “offensive” risks criminal prosecution, and online service providers have unlimited discretion to censor any information which someone might consider “indecent” or “offensive.”

I find this law to be indecent and offensive to the American people, and to the tradition of free speech in this country. I don’t want obscene pornography to be available to children on the Internet, but that’s not what this law is about. The “Communications Decency Act” is about imposing broad restrictions on speech protected by the U.S. Constitution. It’s about stifling public debate on issues like abortion and birth control; it’s about barring access to art and literature. It’s wrong.

“Whoever (1) in interstate or foreign communications
“(A) by means of a telecommunications device knowingly (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;
“(B) by means of a telecommunications device knowingly (i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication;
“shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

A new section 223(d) is added, which reads:

“Whoever (1) in interstate or foreign communications knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person’s control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.”

This law appears to prohibit most messages about abortion or birth control.

“No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”