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Rep. Peter King (R., New York) Wants Journalists Prosecuted As Spies

newsman

New York Congressman Peter King thinks that journalists who public classified material should be prosecuted just like the people who have leaked classified information to them:

(CNN) - Rep. Peter King said Tuesday night that journalists tied to leaks involving classified programs should be punished along with those who leaked the information.

“If they willingly knew that this was classified information, I think actions should be taken, especially on something of this magnitude,” King told CNN’s Anderson Cooper.

A New York Republican, King leads the House Homeland Security subcommittee on Counterintelligence and Terrorism.

His comments come as many in his party have sharply criticized the Department of Justice for seeking a search warrant of a Fox News reporter’s emails and phone records following his involvement with a 2009 leak case.

“There is an obligation both moral, but also legal, I believe, against a reporter disclosing something which would so severely compromise national security,” he said. “As a practical matter, I guess there have been in the past several years a number of reporters who have been prosecuted under (the Espionage Act).”

Here’s the interview

Frankly, I’m not so sure that King is correct. While I haven’t researched the matter in depth, I can’t think of any recent case where a reporter was prosecuted under the Espionage Act or any similar law as he suggests. The closest case  would seem to be when Judith Miller was jailed for nearly three months for refusing to identify her source for the information in an article she did in which Valerie Plame, the wife of former Ambassador Joe Wilson, was outed as an CIA Agent, something which is a violation of law. Miller, however, was not convicted of a crime. She was found in contempt of court for refusing to reveal her source to the Grand Jury and had no legal protections because there is no “Shield Law” for journalists under Federal Law. There was certainly no prosecution of the journalists from The New York Times or Washington Post connected with the publication of The Pentagon Papers. So, I wonder exactly what King is referring to, assuming he isn’t just making thing up out of whole cloth.

This afternoon, King doubled down on his comments and specifically stated that Glenn Greenwald, whose articles in The Guardian have been at the forefront of releasing the information that Edward Snowden has admitted to leaking, should be arrested:

“Not only did he disclose this information. He has said that he has the names of CIA agents and assets around the world and threatening to disclose that. The last time that was done in this country, we saw a CIA station chief murdered in Greece,” the New York Republican told Fox News’s Megyn Kelly on Wednesday. “Legal action should be taken against him. This is a very unusual case with life and death implications for Americans.”

King said that “no right is absolute” and that Greenwald had clearly crossed a line.

“No right is absolute and even the press has certain restrictions. I think it should be very targeted, very selective and certainly a very rare exception, but in this case when you have someone who has disclosed secrets like this and threatens to release more … that to me is a direct attack against Americans,” he said. “Obviously, freedom of the press has to be cherished in this country, but in this case where some people are glorifying Snowden, making him a hero and now acting as if Greenwald was acting as a legitimate journalist … It clearly violates U.S. code, which talks about releasing classified information.”

Here’s the interview:

One fact which King’s comments about Greenwald directly ignore completely is the fact that last week Greenwald specifically said that there is some information that he received from his at that point unidentified source that he will never release:

“We’re not engaged in a mindless, indiscriminate document dump, and our source didn’t want us to be,” said Glenn Greenwald, the Guardian writer, in an email to BuzzFeed Saturday. “We’re engaged in the standard journalistic assessment of whether the public value to publication outweighs any harms.”

“I’m sure the Guardian has consulted lawyers about all of this, but as far as I know, none of the decisions have been legal, only journalstics,” Greenwald said. Hetweeted earlier on Saturday that the Guardian would not be publishing one of the full unredacted PowerPoint slides related to the PRISM datamining program, because “it contains very specific technical NSA means for collection – we’d probably be prosecuted if we did.”

“We’re applying the standard judgment test that journalists apply every day: first, is it newsworthy and relevant, ie, is there public interest in knowing this?” Greenwald told BuzzFeed. “If so: is there genuine harm that comes from publication? And if there is harm, does the public value outweigh/justify the harm?”

He said he didn’t think there was “even a conceivable argument that anything we’ve published thus far causes any harm.”

Even if we assume that King is correct that Snowden gave Greenwald the names and locations of covert CIA agents, then, that doesn’t mean that information will ever see the light of day. The last time something like that happened in the 1970s when a man name Philip Agee, a former CIA agent who became disgruntled for one reason or another, disclosed the names of agents in Europe who later ended up dead. While I disagree with him ideologically quite strongly, I’ve largely defended Greenwald since The Guardian started publishing the NSA stories. Whether you agree with Snowden making the information public or not, it strikes me that Greenwald and his editors were well within standard journalistic practices in publishing the stories that they have to date. If they were to turn around, though, and start making information like the identities of CIA agents public, my opinion of their actions would very likely change. Under the very standards that Greenwald sets out above, such disclosures would not be justified largely because the potential dangers to American national security and the lives of the individual agents would far outweigh any potential public interest. Greenwald hasn’t done that, however, and nonetheless King is already proposing to prosecute him for something he hasn’t done and, hopefully, will never do. To be fair, though, King obviously believes that Greenwald has already done enough to make him liable for criminal prosecution.

Leaving aside the specifics of the Greenwald case, though, King’s entire argument seems to forget that the First Amendment even exists. We generally don’t, or at least we shouldn’t, prosecute journalists for publishing truthful information precisely because the value of a free press that aggressively pursues stories that question government authority and engage in a quest for truth far outweighs whatever public interest there might be in putting a reporter in jail. Indeed, if it were common practice in this country to prosecute journalists for publishing “secret” information the end result would be that such information would never be made public and the government would be free to continue acting under the excuse of secrecy without the American people ever finding out what is being done in their name. Moreover, given the tendency inside the Federal Government to overclassify information, the arguments in favor of secrecy are far less compelling than the arguments in favor of a free press.

That doesn’t mean that leaking classified information should go unpunished. Even though I think that Edward Snowden did, in some sense, perform a national service in making these NSA programs  public knowledge, he did  potentially violate both the law and the terms of his employment. I’m not calling him guilty, but If he truly did do it for political reasons, then the honorable thing to do would be to face the justice system and accept the sentence handed down to him if he were to be convicted after a fair trial before a jury. That’s what Martin Luther King, Jr. and Rosa Parks did when they stood up for what they believed in. And, no I’m not equating Snowden with King or Parks, but it is true that those two did engage in what was then illegal actions for which they were arrested. They didn’t contest those arrests, and they served their time in jail as much as a continuation of their respective protests as anything else. If Snowden is really doing this for political reasons, then running really doesn’t help his political argument even if it is a wise move in terms of his own immediate personal freedom.

Getting back to the issue of King’s assertion that journalist should be treated like criminals, though, it’s easy to dismiss his statements as just more idiocy from a blowhard Congressman. After all, this is the same guy who regularly goes off about “radical Islam” and terrorism despite the fact that he once had very close ties to the political wing of the Irish Republican Army, a terrorist organization. I think that would be a mistake. Any time an officeholder of any kind talks about doing what King proposes we need to stand up, call attention to it, and say Hell no! If we don’t then people are going to start thinking it’s something that’s actually worth debating, and at that point we’ll be in real trouble.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Keep in mind this is the same Peter King that was funding actual terrorists back in the 80s:

    “We must pledge ourselves to support those brave men and women who this very moment are carrying forth the struggle against British imperialism in the streets of Belfast and Derry,” Mr. King told a pro-I.R.A. rally on Long Island, where he was serving as Nassau County comptroller, in 1982. Three years later he declared, “If civilians are killed in an attack on a military installation, it is certainly regrettable, but I will not morally blame the I.R.A. for it.”

    Highly-rated. Helpful or Unhelpful: Thumb up 26 Thumb down 0

  2. Tillman says:

    But journalists are spies!

    Spies….for THE PEOPLE!

    Like or Dislike: Thumb up 12 Thumb down 0

  3. HarvardLaw92 says:

    When they reprint classified information, IMO they are equally guilty of violating the Espionage Act and deserve the same punishment as the leaker. There are limits to any right, including the 1st Amendment.

    Like or Dislike: Thumb up 3 Thumb down 11

  4. Jeremy R says:

    No need to still be so even-handed with Snowden. Now that he’s leaking to a Chinese paper supposed documentation and claims of a US cyber espionage program targeting China in order to “demonstrate the hypocrisy of the US government” and he’s saying that the U.S. is trying “bully” his extradition in order to prevent these sorts of revelations… well, I just think any question as to whether or not he’s some sort of misunderstood patriot has been answered:

    http://www.scmp.com/news/hong-kong/article/1259508/edward-snowden-us-government-has-been-hacking-hong-kong-and-china

    Oh, and yes, Rep. King, as usual, is making moronic statements.

    Like or Dislike: Thumb up 7 Thumb down 0

  5. Mikey says:

    @HarvardLaw92: As wholeheartedly as I agree with you re: Snowden, I disagree with you on this point. The press should be allowed as close to free rein as we can, because as someone said a few weeks back about what the DoJ did with James Rosen, the alternative is a press that publishes only what the government approves. And there could be at some point in the future a real instance of Constitutional violation the government tries to cover up via classification.

    The controls, and the penalties, should be placed on those who swore to protect classified information but revealed it to our adversaries anyway.

    Like or Dislike: Thumb up 9 Thumb down 0

  6. stonetools says:

    Peter King said something stupid? That never happens!

    Like or Dislike: Thumb up 5 Thumb down 0

  7. Ron Beasley says:

    I am old enough to Remember the Pentagon Papers – I was actually working for the Defense Intelligence Agency at the time. An attempt was made to indict the New York Times but it never happened. They did take Ellsberg to court but the Federal Prosecutors were so incompetent the case was thrown out.

    Like or Dislike: Thumb up 1 Thumb down 0

  8. PD Shaw says:

    Frankly, I’m not so sure that King is correct. While I haven’t researched the matter in depth, I can’t think of any recent case where a reporter was prosecuted under the Espionage Act or any similar law as he suggests.

    I don’t think there is either, absent specific circumstances like the reporter physically takes (steals) original documents or is engaged in a private cash transaction for a procurer (i.e., he is not receiving the information for public distribution). I think the closest situation is U.S. v. Franklin, Rosen, and Weismann, which was against an AIPAC lobbyist group. Wikipedia The judge ruled the case could go forward, but that an Espionage case against non-government employees is subject to more demands as a result of the First Amendment, and after the ruling, the government dropped the case finding the conditions too difficult to meet.

    Like or Dislike: Thumb up 2 Thumb down 0

  9. Jack says:

    @HarvardLaw92: I disagree. The government can classify anything. I’m sure at one time the Tuskegee Syphilis experiment was classified. Should a reporter be jailed for disclosing a government “secret” that embarrasses the government but does no harm? Who gets to decide? The mere fact that the government can and does access metadata from all Verizon telephone calls is more an embarrassment than a threat to national security. Disclosing that an ambassador is frequenting prostitutes and diddling children while embarrassing to the government is not a nation security concern. Our government classifies or over classifies crap just because they don’t want the people to know, not because it’s a “National Security” concern.

    Like or Dislike: Thumb up 8 Thumb down 0

  10. Just 'nutha' ig'rant cracker says:

    @Jack: I see your point. Alas, embarrassing the government is the “crime” and “the National Security concern” in these situations, sadly.

    Like or Dislike: Thumb up 2 Thumb down 0

  11. Ben Wolf says:

    The Supreme Court voted 6-3 to deny the government’s prior restraint enacted against the New York Times when it published The Pentagon Papers. Justice Black wrote in the decision:

    I adhere to the view that the Government’s case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe that every moment’s continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

    Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

    In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms. They especially feared that the new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people’s freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men that they were, wrote in language they earnestly believed could never be misunderstood: “Congress shall make no law . . . abridging the freedom . . . of the press . . . .” Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

    Like or Dislike: Thumb up 8 Thumb down 0

  12. Woody says:

    the honorable thing to do would be to face the justice system and accept the sentence handed down to him if he were to be convicted after a fair trial before a jury. That’s what Martin Luther King, Jr. and Rosa Parks did when they stood up for what they believed in

    Problem is, the Federal Government has not shown ‘innocent until proven guilty’ quality when it deals with whistleblowers – look at how upright and moral the Feds have been concerning Pfc. Manning.

    This in no way reflects on guilt or innocence of either Manning nor Snowden. However, the state has not behaved as an honest arbiter to this point imho.

    Like or Dislike: Thumb up 5 Thumb down 0

  13. michael reynolds says:

    @HarvardLaw92:

    Yeah, I have to break with you on this, too. Don’t arrest reporters. Bad idea.

    Now, Snowden on the other hand, is a traitor, and a spy, and should be arrested, charged, tried and shown the inside of a nice federal prison. He’s also a narcissistic, smug, dishonest asshole, but I doubt we can start charging people for that.

    Like or Dislike: Thumb up 7 Thumb down 1

  14. Ben Wolf says:

    @michael reynolds: Spy?

    Like or Dislike: Thumb up 2 Thumb down 2

  15. HarvardLaw92 says:

    @Mikey:

    I respect that, but we’ll just have to agree to disagree.

    I’m by no means a civil libertarian. In fact, I have a difficult time maintaining patience with them as I don’t believe that they live in the real world. Here in the real world, we have threats that must be guarded against. We have programs that, by necessity, have to be kept secret in order to remain effective.

    I realize that it isn’t a popular view, but as far as I’m concerned, printing classified documents is little more than committing espionage on a grand scale. I’ve heard all of the arguments about “the public has a right to know everything it wants to know” and I just don’t buy them. I’m not going to buy them.

    18 USC §798 is in no way ambiguous or unclear.

    “Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

    (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

    (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

    (3) concerning the communication intelligence activities of the United States or any foreign government; or

    (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

    Shall be fined under this title or imprisoned not more than ten years, or both. “

    The law is the law, and reporters who publish classified information violate the law. Greenwald certainly violated it. They should be charged and those charges should be prosecuted. Those reporters will have every opportunity to mount a defense based on the 1st Amendment and receive a fair trial.

    Will they be convicted? Who knows, but “the public has a right to know” is no justification for ignoring blatant violations of the law. Saying that they shouldn’t be convicted is one thing. Saying that they should never be charged is entirely another.

    I don’t make exceptions for violations of the law. It should be followed without exception or restraint, and uniformly enforced with passion free from prejudice or preference. It’s really that simple.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. michael reynolds says:

    @Ben Wolf:

    He just flew to a foreign (and at least somewhat hostile) country and informed them of a secret program to hack their systems. Yeah: spy. No better than Jonathan Pollard, who at least sold us out to an essentially friendly government.

    Like or Dislike: Thumb up 4 Thumb down 1

  17. HarvardLaw92 says:

    @Ben Wolf:

    People consistently misread New York Times Co. v. United States.

    Prior restraint is not the same thing as indictment after the fact. I agree that we should only be able to restrain newspapers, et al, from printing material before the fact when absolutely necessary to do so.

    That is not the same thing as saying that we can never hold them accountable after the fact for what they print. That ruling is a strong statement against prior restraint. It’s not nearly the strong statement against immunity from prosecution after the fact that civil libertarians (or reporters) want to believe that it is.

    Like or Dislike: Thumb up 2 Thumb down 0

  18. Anonne says:

    @michael reynolds: Wholeheartedly disagree about being a traitor & spy. He may not be a hero, but he is neither a traitor nor a spy.

    Like or Dislike: Thumb up 1 Thumb down 1

  19. Phillip says:

    @HarvardLaw92:

    prejudicial

    A highly subjective term. No wonder I steered clear of studying law. I make a poor pretzel.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. HarvardLaw92 says:

    @Jack:

    Should a reporter be jailed for disclosing a government “secret” that embarrasses the government but does no harm?

    Again, should (s)he be jailed? That’s for a court to decide. Should (s)he be charged with violating the law? Absolutely. (S)he violated it. I don’t do situational enforcement of the law.

    Who gets to decide?

    A court of law, no differently than with any other violation of the law.

    Like or Dislike: Thumb up 0 Thumb down 1

  21. HarvardLaw92 says:

    @Phillip:

    Hence the multitude of “ors” in that passage. Each condition is a separate test, any one of which can be met independently of the others to constitute a violation.

    “or publishes” makes publishing classified information a criminal act independent of and equal in stature to communicates, furnishes and/or transfers. Each is its own independent condition.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. TastyBits says:

    @HarvardLaw92:

    … Here in the real world, we have threats that must be guarded against. …

    Most of the people living in the US have little to fear from terrorists. People living in Cleveland, St.Louis, a trailer park in West Virginia, the Chicago inner city, or flyover country are more threatened by drunk drivers, gang members, tornados, disgruntled co-workers than by terrorists.

    People who are concerned about terrorist threats will move. Those who stay must accept the consequences of their actions. I believe it is called personal responsibility.

    Like or Dislike: Thumb up 1 Thumb down 0

  23. Jenos Idanian says:

    King’s on the same track here as the Obama administration was in its treatment of Fox News’ James Rosen. He was listed as a “co-conspirator” and “flight risk” in applications for warrants for his records.

    Like or Dislike: Thumb up 1 Thumb down 4

  24. bill says:

    so in this day and age of “bloggers”, who is an actual “reporter” and why are they so “special”? remember, the obama admin is going after them too now!

    Like or Dislike: Thumb up 0 Thumb down 3

  25. HarvardLaw92 says:

    @TastyBits:

    I’m sure that the folks in OKC would have voiced much the same sentiment before McVeigh came along.

    Like or Dislike: Thumb up 4 Thumb down 0

  26. TastyBits says:

    @HarvardLaw92:

    After the Oklahoma City Bombing, buildings were re-engineered. Blast resistant windows were installed. Concrete barriers were installed to increase the standoff distance thereby decreasing the damage potential. General awareness was increased, and citizens were required to report suspicious activity. Fertilizer sales were monitored, but I do not remember if it was voluntary. I do remember that there were few cries of “safety at any cost.”

    Every year thousands of people are the victims of violence, but I hear few cries about the horror people in these sh*tholes endure. These are the people who cannot afford a high priced lawyer when their civil liberties are violated, and they do not have the luxury of moving.

    It is time to stop whining and man-up. If you are scared of where you live, move. I am sure our Chicago friends could suggest a few choice neighborhoods where there are no terrorists.

    Like or Dislike: Thumb up 1 Thumb down 2

  27. TastyBits says:

    @TastyBits:

    … citizens were required to report suspicious activity …

    should be:

    … citizens were requested to report suspicious activity …

    Like or Dislike: Thumb up 1 Thumb down 0

  28. Ben Wolf says:

    @HarvardLaw92: According to Justice Black the press should not be censored in any way. That was the point of posting a long quote from him on the necessity of total press freedom.

    @Michael Reynolds,

    I think you might be taking this topic too personally.

    http://www.washingtonsblog.com/
    NSA Leaks Help – Rather than Hurt – the United States

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Boyd says:

    @michael reynolds:

    He’s also a narcissistic, smug, dishonest asshole, but I doubt we can start charging people for that.

    Not to mention the likelihood of such an approach clearing out the OTB commentariat. :-)

    Like or Dislike: Thumb up 1 Thumb down 0

  30. Boyd says:

    I consider Peter King to be a statist, and as such is dangerous to have in the position of a legislator, regardless of where he falls on the liberal-conservative spectrum.

    On the other hand, young Mr Snowden was well aware of his responsibilities and limitations relative to handling classified information. If he’s as guilty as he confessed he is, he should be imprisoned for the rest of his life.

    It seems as though some folks believe the law doesn’t include the Bill of Rights. Even our courts function in the context of our society, and it’s naïve to ignore that reality, just as it’s naïve to throw up our hands and say, “The law is the law, leave it to a judge to decide.” How we, the people, regard the law is an important context that the judiciary must consider.

    Like or Dislike: Thumb up 2 Thumb down 0

  31. HarvardLaw92 says:

    @Ben Wolf:

    Yup. Black was in the minority with regard to that viewpoint. 5 of the 9 justices opined that prosecution after the fact remains permissible.

    While dicta, since that issue wasn’t before the court, it’s a pretty telling statement. Had the government not stupidly pursued prior restraint instead of indictments after the fact, 5 of those 9 justices would have voted to uphold a conviction.

    Now, I’m sure you don’t need me to tell you what a 5-4 ruling means.

    Like or Dislike: Thumb up 1 Thumb down 0

  32. HarvardLaw92 says:

    @Boyd:

    How we, the people, regard the law is an important context that the judiciary must consider.

    LOL, no. Federal judges are appointed to life terms specifically to insulate them from the pressure of public opinion. Their sole context is, and indeed should only ever be, the verbiage of the Constitution and the verbiage of the laws in the context of existing precedent.

    The people’s input is limited to selecting the members of Congress that write the laws and approve the appointment of the judges. You expressed how you regard the law when you voted. Your involvement ends there.

    You have us confused with a democracy. We aren’t one. We’re a representative republic.

    Like or Dislike: Thumb up 1 Thumb down 0

  33. Boyd says:

    @HarvardLaw92:

    LOL, yes. You fall prey to the same blind spot as many professionals, you let your hubris and inflated sense of your profession lead you to believe you’re above society.

    You can rail at the tide, but you ignore its power at your peril.

    Like or Dislike: Thumb up 3 Thumb down 1

  34. rudderpedals says:

    @HarvardLaw92:

    I’m sure you don’t need me to tell you what a 5-4 ruling means.

    We should have a thread on this not IMO so much for discussing the prior restraint case but rather in light of the reality of 5-4s almost as far as the eye can see in modern day momentous decisions out of the Supreme Court from Rehnquist onwards.

    Like or Dislike: Thumb up 1 Thumb down 0

  35. HarvardLaw92 says:

    @Boyd:

    Be sure to drop me a note to let me know when this revolution I keep hearing about is set to kick off. I’ll want to pop some popcorn.

    Like or Dislike: Thumb up 0 Thumb down 0

  36. HarvardLaw92 says:

    @rudderpedals:

    5-4 rulings on contentious issues are nothing new. We’ve had them from the beginning. They represent, IMO, the court working through the context of the times. While they are supposed to be entirely insulated from public opinion, they are human, and as such we can’t insulate them from their own privately held opinions or their own humanity. We hope that they leave those at the door when weighing matters of law, but that isn’t always the case. Scalia’s intransigence with regard to matters concerning homosexuality is a prime example. He is a product of his era and his religiousity, and can’t leave either one of those at the door.

    The current court’s decisions run about 21% 5 to 4, with the vast majority of them being either unanimous or close to it (Uncle Cranky – who nobody really takes seriously – often goes off on his own little unique tangent regardless of the ruling).

    That’s well in line with historical ranges. If anything, it’s a tad low.

    Like or Dislike: Thumb up 0 Thumb down 0

  37. Boyd says:

    @HarvardLaw92:

    It’s much easier to “win” an argument by creating straw men and arguing against something your interlocutor never said. But you go right ahead, the more of this nonsense you spout, the more we realize the futility of having an intellectually honest discussion with you.

    Like or Dislike: Thumb up 1 Thumb down 1

  38. TastyBits says:

    @Boyd:

    What @HarvardLaw92 has been describing is correct. I believe that there are more cases he/she could cite. It is a legal argument based upon property. You cannot claim protection for property you do not own. If the police search my neighbors house, I cannot claim that my rights were violated. If I am not mistaken, a business does not have 4th Amendment protection.

    HIPAA provides some protection for medical records, and something similar could be enacted for other personal. This would require the politicians to act, but few have a problem with the existing situation.

    It is possible that the US Supreme Court could rule that data held by 3rd parties is the property of the principle. I doubt this will happen, but it could. Plessy v. Ferguson was the law until it was overturned in Brown v. Board of Education.

    In any case, the service providers would change the Terms of Service. Facebook, Google, MySpace, etc. own or have owners rights for your data, and you opted-in when you pressed the Agree button.

    Just because one is arrogant does not make the argument incorrect, and @HarvardLaw92 has made an objective argument. I do not like it, but it is correct.

    Like or Dislike: Thumb up 3 Thumb down 0

  39. HarvardLaw92 says:

    @Boyd:

    Sorry, but you lob some nebulous statement hinting at a popular uprising, and I’m the one creating a straw man?

    I think it’s more a case of you either not liking my writing style or not liking what I have to say.

    Neither concern me very much. I’m not concerned with being (and have never in my life been accused of being) cuddly and we’re not here to munch s’mores and sing Kumbahyah around the campfire.

    You make an argument; you can expect a rebuttal. That’s how it works, and if the rebuttal isn’t warm & fuzzy enough for you, that’s your issue, not mine.

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  40. rudderpedals says:

    @HarvardLaw92: OK the figures don’t agree with my perception. I hate when that happens. It’s proximity in time / memory then that accounts for a perception of greater frequency. Or maybe the mix of decisions?

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  41. rudderpedals says:

    (TastyBits brings up Brown vs Board, the model case I had in mind as far as best practices when ruling on something so contentious. End it, do it unanimously, resolve the forward looking uncertainty, but no one listens to zathros or rubberpedals.)

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  42. HarvardLaw92 says:

    @rudderpedals:

    It just seems more divided and contentious than it actually is because we tend to only hear about the divided rulings in news coverage – they make for better headlines.

    I’d add as well that 99% of what the court considers is mind-numbingly dull, razor thin disagreements about narrow provisions of the law that don’t affect the average viewer in ways that he remotely cares about (or usually even understands). Those are the ones that get the unanimous or near unanimous rulings. What they don’t get is airtime and column inches.

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  43. TastyBits says:

    @rudderpedals:

    My point was actually more extensive. Just because something is legal does not make it right, and it is just as wrong before it is overturned as it is after.

    Without the 13th Amendment, the Dred Scott v. Sandford would not have been overturned. Think about that. If the South and North had worked out a deal, slavery would have continued. Even with the 13th and 14th Amendments black folks were still second class citizens. The Plessy v. Ferguson decision made segregation legal in the whole country. This decision was not limited to the South, and the South’s disgraceful actions are shared by every US citizen.

    For almost 50 years, forcing black folks to the back of the bus, using separate drinking fountains, etc., etc., etc. was legal, and anybody who spoke out about the injustice was whining. They needed to understand that this was how things were. Anybody speaking too loudly was a rabblerouser, and they were endangering public security. Then as now, the security was limited to the people higher up the food chain (white people).

    The people who are making a legalistic argument today are no different than the KKK member’s argument. Public safety is paramount, and there people who are trying to harm us. People must understand that they must give up some liberty for the public good. What the government is doing is legal because the US Supreme Court ruled it to be legal. If there is a problem, the people can elect politicians who will make changes, but until then, shut up and get to the back of the bus.

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  44. rudderpedals says:

    @TastyBits: I understand. IIRC on another thread replying to Kathy you noted that this stuff was legal today but wrong. I agree with that completely. The Constitution has always meant what the Supreme Court says it meant, nothing more and nothing less, much like in a Lewis Carroll story. It’s a long haul political battle to replace the executive and senate with individuals who’ll populate the court with better jurists.

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  45. Artwell32 says:

    Lets just boil this down to its essence. Peter King is a f#cking moron. Seriously, every time he opens his mouth I am embarrassed for his district and our country. Are people in Queens really that stupid?

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  46. IamQueens says:

    Yes they are.

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