Adult Photography Record-Keeping and Inspection Law Threatens Free Speech

By Andrew Crocker

EFF and the ACLU of Pennsylvania have joined forces to file an amicus brief in a long-running challenge to two criminal statutes that unconstitutionally limit the free expression of millions of adults who use the Internet and other electronic forms of communication. These statutes bring the threat of criminal sanctions for private, lawful speech and also violate important privacy rights, including both the First and the Fourth Amendment of the Constitution.

At issue in the case, Free Speech Coalition v. Attorney General, are provisions of federal law that require anyone who produces a visual depiction of sexually explicit expression to maintain extensive records--including copies of drivers' licenses, the dates and times images were taken, and all URLs where images were posted--and often force public disclosure of a creator's home address. Even more troubling, the regulations allow law enforcement warrantless entry into homes or offices in order to inspect the records that are supposed to be kept. In this case, the plaintiffs are a range of producers of adult material. But while these statutes regulate the commercial pornography industry, they also potentially apply to a staggering number of Americans who create and share images of themselves over social networks, online dating services, personal erotic websites, and text messaging.

The case has followed a complex procedural trajectory. EFF previously filed an amicus brief when it was first heard before a Pennsylvania federal district court in 2010. Subsequently, the case was dismissed, appealed to the Third Circuit Court of Appeals, and remanded back to the district court. In September 2013, the district court sided with the plaintiffs on one issue--the statutes' authorization of warrantless entry into homes or offices--which could not be squared with the Fourth Amendment. However, the court found that the statutes did not violate the First Amendment, and the plaintiffs have appealed once again to the Third Circuit.

EFF hopes the Third Circuit will take this opportunity to protect individuals' First Amendment rights to produce and share private, lawful speech.

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Assassination as Speech Suppressor

by Jacob G. Hornberger

As most everyone knows, after President Obama?s election, most liberals went silent with respect to the defense of civil liberties and condemnation of the war on terrorism. Of course, there have been a few notable exceptions, such as Glenn Greenwald and the ACLU and others, but by and large liberals ended up doing what conservatives do when their man is in office. They sealed their lips.

But there is another factor that Americans now have to consider with respect to criticism of the president, the Pentagon, the CIA, or any other of the activities of the federal government in general.

That factor is the government?s publicly proclaimed power to assassinate Americans, along with the government?s lesser power to round up Americans, cart them away to concentration camps or military installations, incarcerate them indefinitely without trial, torture them, and even execute them as enemy combatants in the war on terrorism.

Sure, it?s true that so far the Pentagon and the CIA have exercised these extraordinary powers against only a few Americans, including the American they assassinated while he was riding in a car in Yemen at the start of the war on terrorism and, more recently, Anwar al-Awlaki and his teenage son.

There?s also the case of Jose Padilla, the American citizen who was removed from federal court jurisdiction and transferred into the custody of the military, which kept him incarcerated for some 3 years in a military dungeon, where the military employed techniques of psychological torture, including isolation and sensory deprivation, knowing that such torture would be likely to cause permanent mental damage.

But the number of victims is not the point. The point is that everyone knows that the federal government now possesses these extraordinary powers. If they can legally exercise such powers against a few Americans, they can employ them against all Americans. All they need is the right crisis or emergency to make it politically palatable.

Let?s not forget that the federal courts have upheld what they did to Padilla knowing that the holding would apply to all Americans. Let?s also not forget that the federal courts denied Awlaki?s father?s request to prevent them from assassinating his son.

The point is this: Everyone now knows that given the right crisis, U.S. officials now wield the omnipotent power to round up, detain, and torture large numbers of Americans and to even assassinate them, right here in the United States because, as U.S. officials have emphasized ever since 9/11, in the war on terrorism the entire world, including the United States, is the battlefield.

Who are the people likely to be targeted for such actions in an extreme crisis, such as a major war or some devastating terrorist attack?

The answer: The critics of government. They are the ones that government officials inevitably view as potential or real enemies ? fifth columnists ? people who are hurting the war effort ? people who are demoralizing the troops ? people who are encouraging the enemy with their criticisms of the government.

Would federal officials do such a thing?

Well, they did it at the outset of World War II, when they rounded up thousands of Americans of Japanese descent and carted them away to concentration camps.

And in World War I, they prosecuted, convicted, and punished people for simply questioning the draft or advocating ?un-American? beliefs.

Combine those powers with the post-9/11 powers to assassinate Americans or to round them up, take them to concentration camps, detain them for life, torture them, or execute them as enemy combatants.

How can Americans not consider such things today even though the government is so far employing such powers against only a small number of Americans?

After all, the FBI was compiling secret lists of potential American enemy sympathizers long before America entered World War II. During the Cold War, they kept lists of suspected communists and did their best to destroy those Americans. Most everyone knows that the government today has compiled a secret list of people to be assassinated.

Thus, it doesn?t take a rocket scientist to figure out that speaking out against the military?s and the CIA?s conduct today ? or indeed the conduct of any federal agency ? could well subject the critic to severe retribution in the midst of some future crisis or emergency.

Consider the military dictatorship in Egypt, which has long been a favorite of both the Pentagon and the CIA. Ironically, that dictatorship has long possessed the same omnipotent powers over the Egyptian people that the U.S. government now possesses over the American people.

Egypt?s military dictatorship has justified such powers with the same rationale that the U.S. regime has justified its post-9/11 powers: the war on terrorism.

Who have been the ones targeted by the Egyptian military dictatorship? Critics of the regime, which the regime has labeled terrorists and enemies of the state. They?re the ones who have been rounded up for some 30 years, incarcerated without trial, tortured, and even executed. That?s why the one of the principal demands of the Egyptian protestors has been the relinquishment of such powers, a demand that the dictatorship steadfastly refuses to grant.

Through it all, the U.S. government has continued to subsidize Egypt?s dictatorship with billions of dollars in foreign aid, knowing full well how it was employing its omnipotent ?emergency? powers against the Egyptian people. In fact, don?t forget that the CIA even chose the torture branch of Egypt?s military dictatorship to torture the suspected terrorist that the CIA kidnapped in Italy and renditioned to Egypt.

Or recall the Pinochet military dictatorship in Chile, which the Pentagon and the CIA and other U.S. officials enthusiastically supported. After assuming office in the midst of an ?emergency,? it proceeded to round up thousands of ?enemy sympathizers,? detained them without trial, tortured them, and executed them, all without a peep of protest by U.S. officials. Indeed, the CIA even participated in the assassination of a young American journalist, Charles Horman, in the midst of the Chilean ?emergency.?

Libertarians have long been ardent defenders of civil liberties and continue to be. Undoubtedly, we would be among those targeted in a major crisis or emergency. Obviously that possibility has not dissuaded us from continuing to speak out, in the hopes that we can change the direction of the country and restore a constitutionally limited republic to our land before it?s too late.

Conservatives have always been a disaster when it comes to civil liberties. Therefore, it?s no surprise at all that they have been fully supportive of President Bush?s and President Obama?s assumption of the powers of indefinite detention, torture, and assassination.

Liberals, however, have traditionally been supportive of civil liberties. That tradition, however, came to a screeching halt with Obama?s election. One reason obviously was a warped sense of political loyalty. But who can say that the federal government?s post-9/11 powers to round up, detain without trial, torture, execute, and assassinate haven?t played a role in the silence as well?
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Jacob Hornberger is founder and president of the Future of Freedom Foundation.

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Why They Hate Free Speech

by Jeffrey Tucker

Sometimes ? why not now? ? you just have to reflect on what an amazing man Thomas Jefferson was. I mean, he really got the whole idea of liberty, maybe better than anyone before him, and far better than most people today. What a man! What a dream he had!

I?m reminded of his bravery and brilliance from reading this magisterial work: Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism by Geoffrey R. Stone. It?s a strangely thrilling history of villainy, wickedness, despotism and lies by the U.S. government.

Yet the book gives great comfort. It shows that there?s nothing new about the current repressive climate. I mean, you can land yourself in jail pretty quickly these days with the wrong Tweet or Facebook status. It?s dreadful, but it?s happened many times in the past. Yet liberty has always won over the tyrants.

Another point: This book shows precisely why government fears words more than anything else?because ideas are more powerful than guns. Otherwise, what would be the point of cracking down?

But back to Jefferson. He would have been happy to retire in his Virginia home, living in peace and contentment, but duty called him to run for president. What was happening? Incredibly, the new central government was cracking down on free speech. A 1798 law criminalized ?false, scandalous and malicious writing,? and 25 people were arrested for saying nasty things about the president.

Keep in mind: The ink was still wet on the U.S. Constitution and the Bill of Rights, which included the First Amendment guarantee of free speech. Two states refused to go along, and there was talk of secession in the air. People were shocked and appalled and even then commented on the sheer farce that we fought a revolution against exactly the actions the new government was taking. It was out of the frying pan and back into the frying pan.

In 1800, Jefferson was swept into office on popular acclaim. How his enemies must have burned with fury at these words in his inaugural address: ?And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked and capable of as bitter and bloody persecutions."??

(In the same address, he blasted taxes, standing armies, high spending, regulations and every manner of despotism.)

The incident is hugely important for many reasons. Knowing of it helps sweep away the mythology that our ?Founding Fathers? were universally in love with liberty. It turns out that once they got control of the government, liberty began to slip and slip on the list of priorities, which is one reason that no man should ever be trusted with power (another subject well covered by the great Jefferson). It helps put into historical context just what a threat war always and everywhere is to human rights and liberties.

The author, a law professor at Chicago (along with an army of researchers), covers the six great periods in which government chilled the environment for free political speech:
1798, when war with the French was heating up The Civil War, when the ?Great Liberator? suspended habeas corpus and persecuted and jailed his enemies World War I, when thousands were sentenced to prison for daring to disagree World War II, when Japanese citizens were rounded up and you got your name on a list for bad associations The Cold War, when every political dissident was called a communist The War on Terror, which has turned into a war on freedom itself.Professor Stone chronicles them all in amazing and riveting detail. His biographies of each of the victims (this guy can really write well!) make you realize at every step that this could have been you or me. It causes you to respect the people who dare to go against the government line, which always ends up meaning that the dissidents go against the dominant strain of public opinion, too.

I loathe communism, but I have to admit that the commies often spoke truth during wartime!

It takes guts to stand up to the state, yet it is enormously necessary. Chances are that if the government criminalizes some words, those words need to be said more than ever, probably because they embody a truth that no one wants to hear. And even if the words aren?t true, the cause of freedom is well served by those who dare to speak out.

Some people have written that this very book has changed their life. I can see why. For one thing, it is hard to stop reading because the detail is so vivid, the historical sweep is so good and the writing itself is so compelling. It is also right up to the minute in terms of timeliness. We are blasted in every public space these days by Orwellian messages to rat out any suspicious people to the authorities. Yes, it is creepy, but hardly new.

Stone himself is not nearly as much an absolutist on free speech as I?ve come to be after learning of all these cases. He seems to think that there might be good reasons to suppress speech, even if the government gets carried away; my own view is that government should never be trusted with that power and that any that exercise it deserve to lose power. This power will always be abused.

We might say that controls on free speech are the great compliment that government pays to the power of words. And you wonder why the power elite hates the Internet? It?s the worst enemy that would-be despots have ever faced. We?ve seen its power at work not only in Arab countries, but also every day in the U.S. It has recruited millions into the ranks of the dissidents.

Imagine how much worse our times would be if the government had the same amount of control today as it had during World War I or the Cold War! Thanks to digital technology, that cannot happen. The cat?s out of the bag, and every attempt by the government to put it back in produces protests of the type that put Jefferson in office in 1801.

It?s the highest compliment I can give to say that Jefferson himself would have loved reading Perilous Times. So will you.
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Jeffrey Tucker, publisher and executive editor of Laissez-Faire Books, is author of Bourbon for Breakfast: Living Outside the Statist Quo and It's a Jetsons World. You can write him directly here.

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