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Politics : Just the Facts, Ma'am: A Compendium of Liberal Fiction -- Ignore unavailable to you. Want to Upgrade?

To: Sully- who wrote (71582)	4/30/2009 5:15:59 PM
From: TimF	Read Replies (1) \| Respond to of 90947

[Eugene Volokh, April 30, 2009 at 4:07pm] Trackbacks Federal Felony To Use Blogs, the Web, Etc. To Cause Substantial Emotional Distress Through "Severe, Repeated, and Hostile" Speech? That's what a House of Representatives bill, proposed by Rep. Linda T. Sanchez and 14 others, would do. Here's the relevant text: Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.... ["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ... ["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages. 1. I try to coerce a politician into voting a particular way, by repeatedly blogging (using a hostile tone) about what a hypocrite / campaign promise breaker / fool / etc. he would be if he voted the other way. I am transmitting in interstate commerce a communication with the intent to coerce using electronic means (a blog) "to support severe, repeated, and hostile behavior" -- unless, of course, my statements aren't seen as "severe," a term that is entirely undefined and unclear. Result: I am a felon, unless somehow my "behavior" isn't "severe." 2. A newspaper reporter or editorialist tries to do the same, in columns that are posted on the newspaper's Web site. Result: Felony, unless somehow my "behavior" isn't severe. 3. The politician votes the wrong way. I think that's an evil, tyrannical vote, so I repeatedly and harshly condemn the politician on my blog, hoping that he'll get very upset (and rightly so, since I think he deserves to feel ashamed of himself, and loathed by others). I am transmitting a communication with the the intent to cause substantial emotional distress, using electronic means (a blog) "to support severe, repeated, and hostile behavior." (I might also be said to be intending to "harass" -- who knows, given how vague the term is? -- but the result is the same even if we set that aside.) Result: I am a felon, subject to the usual utter uncertainty about what "severe" means. 4. A company delivers me shoddy goods, and refuses to refund my money. I e-mail it several times, threatening to sue if they don't give me a refund, and I use "hostile" language. I am transmitting a communication with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: I am a felon, if my behavior is "severe." 5. Several people use blogs or Web-based newspaper articles to organize a boycott of a company, hoping to get it to change some policy they disapprove of. They are transmitting communications with the intent to coerce, using electronic means "to support severe, repeated, and hostile behavior." Result: Those people are a felon. (Isn't threatening a company with possible massive losses "severe"? But again, who knows?) 6. John cheats on Mary. Mary wants John to feel like the scumbag that he is, so she sends him two hostile messages telling him how much he's hurt her, how much she now hates him, and how bad he should feel. She doesn't threaten him with violence (there are separate laws barring that, and this law would apply even in the absence of a threat). She is transmitting communications with the intent to cause substantial emotional distress, using electronic means "to support severe, repeated, and hostile behavior." Result: Mary is a felon, again if her behavior is "severe." The examples could be multiplied pretty much indefinitely. The law, if enacted, would clearly be facially overbroad (and probably unconstitutionally vague), and would thus be struck down on its face under the First Amendment. But beyond that, surely even the law's supporters don't really want to cover all this speech. What are Rep. Linda Sanchez and the others thinking here? Are they just taking the view that "criminalize it all, let the prosecutors sort it out"? Even if that's so, won't their work amount to nothing, if the law is struck down as facially overbroad -- as I'm pretty certain it would be? Or are they just trying to score political points here with their constituents, with little regard to whether the law will actually do any good? I try to focus my posts mostly on what people do, not on their motives, but here the drafting is so shoddy that I just wonder why this happened. volokh.com

To: Sully- who wrote (71582)	4/30/2009 8:40:44 PM
From: Sully-	1 Recommendation Read Replies (3) \| Respond to of 90947

Recall that Obama returned a bust of Churchill that the British government had loaned to the White House. At the time, the Telegraph noted, by way of possible explanation, that "It was during Churchill's second premiership that Britain suppressed Kenya's Mau Mau rebellion. Among Kenyans allegedly tortured by the colonial regime included one Hussein Onyango Obama, the President's grandfather." Obama's Daily Dish By Scott Power Line President Obama put on an impressive performance in his press conference last night. He is a formidable political talent. The journalists posing the questions, however, seemed as lame as ever. Jeff Zeleny of the New York Times gets special mention for the worst question of the night. If the Times goes under, he would be a natural for People or, even better, Us. The full text of the press conference is accessible here. I continue to be intrigued by Obama's knowledge of history. I think it is wafer thin, a point I tried to make with respect to his invocation of the Kennedy-Khrushchev conference during the campaign in "The Kennedy-Khrushchev conference for dummies." Last night he invoked Churchill rejecting the use of torture for interrogation: <<< I was struck by an article that I was reading the other day talking about the fact that the British during World War II, when London was being bombed to smithereens, had 200 or so detainees. And Churchill said, "We don't torture," when the entire British -- all of the British people were being subjected to unimaginable risk and threat. >>> The relevance of Obama's invocation depends on the accuracy of Obama's account (I doubt it) and agreement with his assertion that the enhanced interrogation techniques approved for use on high level detainees constitute torture. Obama thinks they did, and claims the warrant of "the opinion of many who have examined the topic" as well as an electoral mandate to support his view. The question is legal, however, not political. Congress has never defined any of the techniques in issue as torture, although it easily could have, and "the opinion of many who have examined the topic" can be invoked to support the contrary view. Assuming for the purposes of argument that the interrogation techniques are torture, the information gleaned from KSM et al. using these techniques suggests that they can be efficacious. In his introductory remarks, Obama sought, as usual, to have it both ways. He implied that the techniques are torture, but ineffective: <<< "We have rejected the false choice between our security and our ideals by closing the detention center at Guantanamo Bay and banning torture without exception." >>> Obama showed himself to be a fan of "alternate history" later in the press conference. In response to a question, Obama asserted that we could have obtained the same information using other methods. This is sheer speculation, and I think a fair case study would indicate otherwise. A close look at the information gleaned with the use of the enhanced interrogation techniques at issue in the "torture" memos strongly suggests their efficacy. Indeed, their efficacy is attested to in the redacted portions of DNI Blair's letter on the subject. What about Churchill? When the Allies first deliberated over the fate of the highest ranking members of the Nazis and German military who were ultimately tried at Nuremberg, Churchill supported their summary execution. He didn't think they deserved their day in court as a matter of right. Churchill was the leader ultimately responsible for the firebombing of Dresden. He was not particularly constrained by high minded liberal notions of wartime restraint, though late in the war (after Dresden) he opposed "the bombing of German cities simply for the sake of increasing the terror." Did Churchill ever say "we don't torture"? I don't know and I wonder what Obama was talking about. Obama's "knowledge" on this point may derive from the deep well of leaning afforded by a recent Andrew Sullivan post calling for the prosecution of Dick Cheney (why stop with Cheney?), based on a column last week by Ben Macintyre. Sullivan and Macintyre hail the interrogation techniques of Colonel Robin "Tin Eye" Stephens, the commander of the wartime spy prison and interrogation center codenamed Camp 020. According to Macintyre, Stephens eschewed "torure" in favor of psychological duress: <<< Stephens had ways of making anyone talk. In a top secret report, recently declassified by MI5 and now in the Public Records Office, he listed the tactics needed to break down a suspect: "A breaker is born and not made . . . pressure is attained by personality, tone, and rapidity of questions, a driving attack in the nature of a blast which will scare a man out of his wits." The terrifying commandant of Camp 020 refined psychological intimidation to an art form. Suspects often left the interrogation cells legless with fear after an all-night grilling. An inspired amateur psychologist, Stephens used every trick, lie and bullying tactic to get what he needed; he deployed threats, drugs, drink and deceit. But he never once resorted to violence. "Figuratively," he said, "a spy in war should be at the point of a bayonet." But only ever figuratively. As one colleague wrote: "The Commandant obtained results without recourse to assault and battery. It was the very basis of Camp 020 procedure that nobody raised a hand against a prisoner." >>> Drugs and drink go well beyond purely psychological duress. In any event, how do these methods stack up against those Obama has authorized? Unfortunately, that is a question that remains for another day. PAUL adds: Recall that Obama returned a bust of Churchill that the British government had loaned to the White House. At the time, the Telegraph noted, by way of possible explanation, that "It was during Churchill's second premiership that Britain suppressed Kenya's Mau Mau rebellion. Among Kenyans allegedly tortured by the colonial regime included one Hussein Onyango Obama, the President's grandfather." powerlineblog.com