mnemonic@walt.cc.utexas.edu (Mike Godwin) (09/07/90)
In article <11608@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes: > >What does it mean to be "protected by the First"? Mark means that the same Constitutional provisions apply to newsletter publishers that apply to THE NEW YORK TIMES. >If the sheet you have run off in your basement slanders several >private citizens, and if it contains people's MasterCard numbers with >instructions on how to use those numbers to commit fraud, you are >definitely not "protected." Neither is the publisher or editor of a >regular newspaper who publishes the same thing. Gene, please read the cases. As I noted before, you can publish anything you want, in any form you want, so long as the publication is not itself part of a scheme to defraud. In the case you describe above, it is probable that such activity *would* be part of such a scheme. It is, of course, particularly vicious of you to try and analogize this to the Neidorf case. >The first amendment prohibits Congress from passing any law that >abridges the freedom of the press. That means, at least, there can be >no prior restraint. It also does NOT mean that the "press" has any >immunity from the law. It furthermore does not define "the press." Gene, I love it when you talk law. No one is arguing that the press is totally free from the law (e.g., obscenity or libel law). But the press IS totally free to publish *anything* that is not obscenity or libel (or, rarely, something the mere publication of which threatens national security, but there are few cases on this point, and fewer still in which the government has won). I own more than one book that actually includes instructions on how to break the law. Those books are protected, and my ownership of them also is protected. >I still contend that there is a significant difference between an >established newspaper and something run off in one's basement. >I have asked if there are any lawyers out there who *know* if that >difference has ever been the subject of a court case or law, or if >there is a formal legal definition of what "the press" is. Gene, I have a law degree. I can promise you that there is no difference. I keep citing you sources about the scope of press law (try Tribe's AMERICAN CONSTITIONAL LAW 2d, pp.785-1061, for a good overview of First Amendment jurisprudence, or try NIMMER ON FREEDOM OF SPEECH by Melville Nimmer), but you *never read any of them.* In any case, the Phrack cases also implicate First Amendment speech and associational freedoms. If you'd like to see how First Amendment jurisprudence applies specifically to the Phrack case, try reading the amicus curiae brief submitted by Terry Gross of Rabinowitz, Boudin on behalf of the Electronic Frontier Foundation. >Note that I have nowhere stated whether I believe there *should* be a >difference in the law. Actually, you seem to have implied this belief pretty strongly. Why not take a stand now, Gene? Shouldn't small publications have the same protections as THE NEW YORK TIMES? > I do believe that members of the press should >not be immune for their actions. This is a non sequitur. If their actions are Constitutionally protected, the members of the press are, perforce, immune to prosecution for them. >This thread of discussion started when I pointed out that comparing >the New York Times to Phrack for purposes of argument is probably >specious. Inventing some Constitutional law in the process. But, Gene, you haven't been reading your Supreme Court cases: "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets....The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion." --Lowell v. City of Griffin, 303 U.S. 444, 452 (1938) Moreover, freedom of the press includes "the right of the lonely pamphleteer who uses carbon paper or a mimeograph as much as of the large metropolitan publisher who utilizes the latest photocomposition methods." Branzburg v. Hayes, 408 U.S. 665, 704 (1972). You may also be interested, Gene, in Tucker v. Texas, 326 U.S. 517 (1946), in which a statute punishing door-to-door distribution of literature was held invalid as an abridgement of freedom of the press. > I asked for someone with proper background to post a >definitive reply so that people have some facts to talk to. What do you consider "the proper background," Gene? Agreeing with you? Obviously you consider my knowledge of Constitutional law and criminal law inadequate, although it is unclear what criterion you're applying to me. Perhaps if I get hired as a prosecutor you'll pay more attention? >Unfortunately, the only replies are from people who don't have the >information, and/or who choose to insult me for suggesting that the >current situation doesn't match their world-view. I keep providing the information, but you keep ignoring it. >I have a second question for any legal historian types out there. A >comparison has been made here between the Phrack case and the Pentagon >Papers. The theme has been that law enforcement didn't try to >confiscate the printing presses of the newspaper. That is certainly *one* of the themes. > Yes, but the >question I have is, did they obtain a search warrant and confiscate >any of the newspaper's files? The confiscations & searches done >recently on computer systems seems to have been done because they have >attached storage, not because they are used as publishing tools. If >that is the case, the comparison obviously falls to pieces. Gene, are you under the impression that the REASON for the search justifies shutting down a printing press or its electronic equivalent? Are you under the impression that a seizure that has the *incidental* effect of shutting down a publication has no First Amendment implications? You can be sure, Gene, that if there was a search warrant in the in the Pentagon Papers case, it would have been allowable if it *didn't* shut the paper down. See Zurcher v. Stanford Daily, 436 U.S. 547 (1978). But if a search warrant *did* have the effect of shutting down a publication, you may be sure that First Amendment interests are implicated, regardless of the size of the press involved. It takes only minimal reading of First Amendment law to determine this. In any case, the issue in New York Times Co. v. United States, 403 U.S. 713 (1971), was not the validity of a search warrant, but the government's desire to employ prior restraint. >I'm not going to pursue this point further unless someone with >appropriate research and facts cares to fill in the background for >the rest of us. I realize that I'm not a Spafford-approved source of information. But, then, I'm not an apologist for government excesses, either, which probably explains it. --Mike Mike Godwin, UT Law School | "We need a new cosmology. mnemonic@ccwf.cc.utexas.edu | New Gods. New Sacraments. (512) 346-4190 | Another drink." | --Patti Smith