Lost In America, Org.

A Forgotten Society

By Christopher Cross

In 1961, President John F. Kennedy stated that "the rights of mankind do not come by the generosity of the state ~ but by the hand of God."   

While true, the countervailing reality in our modern day, is that the overt arrogance and power driven greed of state officials commonly predisposes citizens to the mentality and practice that citizens are subserviant to the state officials rather than state officials being servants of the public.  Yet, there is no class of people more familiar with the discriminatory effects that come with having to beg state officials for their inherent rights given by God but denied by man, than that of people who have mental disabilities. 

Throughout all history, this class of people has been treated in the most degrading and humiliating manners possible; far more than any other class who themselves frequently look upon those having a mental disability as societal leapords. 

..What Is Meant By Justice ~ When Justice Fails..

  PREAMBLE

By Christopher Cross

Have you ever wondered what is meant by "Justice" ?

Websters New Collegiate Dictionary defines "Justice" in section one as:

"1a: the maintenance of administration of what is just esp. by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishment"

Findlaw Legal Dictionary defines "Justice" in section two as:

"2 a: the administration of law Example: a fugitive from justice esp : the establishment or determination of rights according to law or equity: Example: system of justice"

Judge Edith Jones of the U.S. Ct. of App. for the Fifth Cir.,told the Federalist Society of Harvard Law School on February 28, 2003 that:

"The American legal system has been corrupted almost beyond recognition" . . .  "the question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism."

So often we hear people say "I Know My Rights" and yet, by all accounts it is far more likely that they do not.  And while one branch of government wishes to blame the others, I believe there are three primary reasons that our system of "justice" has gone afoul. 

The first is that of an "unregulated enterprise" that has greatly presupposed that "justice" is for sale.  The second is that of "qualified & soveregin immunity" that has destroyed official accountability and the third is that of "societal indifferences" that have allowed the other two to gain their life in their full impact that we are now facing tenfold in repercussion.  To the point that no longer can we securely or even semi-confidently say ...

  "I Know My Rights !"

This report will focuse on these three primary components; examining them in their historical, leglislative and judicial complexities and existence for educational purposes. 

Part One

  Unregulated Enterprise = Justice For Sale

U.S. Supreme Court Justice Kennedy once stated in reference to the law making a promise of neutrality to the people that:

"There's a rule of law, [and it has] three parts. One: the government is bound by the law. Two: all people are treated equally. And three: there are certain enduring human rights that must be protected. There must be both the perception and the reality that in defending these values, the judge is not affected by improper influences or improper restraints. That's neutrality".

But are Judges truly neutral when there are multiple exterior influences involved that not only encompass political aspects by virtue of Judges being appointed by politicians and elected by the people. Yet, the financial aspects involved that frequently determine they type of attorney one is represented by and his or her skill level.

U.S. Supreme Court Justice Breyer believes that:

"Judges are appointed often through the political process. At least there's a political input, but when you put on the robe, at that point the politics is over. And, at that point, a judge must think through each case with the total neutrality that you mentioned. . . All anyone has to ask himself is, Suppose I were on trial? Suppose somebody accused me. Would I want to be judged by whether or not I was popular?"

And yet most recently, in October 2004, Texas Criminal Court Judge Faith Johnson "welcomed a former fugitive back to her courtroom with balloons, streamers and a cake before sentencing him to life in prison." Stating:

"You just made my day when I heard you had finally come home." "We're so excited to see you, we're throwing a party for you."

Seana Willing, Executive Director of the Texas Commission on Judicial Conduct, stated in response that:

"It's the kind of thing I look at and scratch my head and wonder, 'What was she thinking?'"

Trent Touchstone, a supervisory deputy U.S. marshal, stated:

"Johnson took a special interest in Williams' case after he jumped bail that she had set following the 2002 assault".

Herein lays the problem when Judges presuppose that their position as a Judge permits them to take a "special interest" in a case rather than remaining neutral to all parties involved, including the accused and therein run afoul.

Captain Ronald L. Davis, Oakland Police Dept., once wrote in Justice By Action that:

"The symbol of Justice is a woman holding a scale – blindfolded. The symbol does not suggest the woman is free of bias or that justice is blind. The symbol represents the need to blindfold those empowered to administer justice from personal and societal prejudices when exerting the authority and power of office".

Therefore, to assume that a Jude becomes neutral once and merely because he/she puts on the robe is problematic to why the greater harms continue to occur.

In a poll taken in 2003 by the Texas State Supreme Court and the Texas State Bar Association that questioned the neutrality of Judges, the poll found that:

83% of the public think judges are already unduly influenced by campaign contributions.

79% of the lawyers who appear before the judges think campaign contributions significantly influence courtroom decisions.

Almost half of the justices on the Court think the same thing.

In response to these findings, Justice Kennedy stated:

"This is serious, because the law commands allegiance only if it commands respect. It commands respect only if the public thinks the judges are neutral. And when you have figures like that, the judicial system is in real trouble. And that's why we should have a national conversation about it".

But to no avail has this "national conversation" taken place and in all probability it never will, because as Judge Edith Jones pointed out in her 2003 speech before the Federalist Society:

"The American legal system has been corrupted almost beyond recognition" "…the question of what is morally right is routinely sacrificed to what is politically expedient"

And while there is an oversight board responsible for reviewing the conduct of Judges, they are under no obligation to do so unless they so choose by virtue of their discretionary authority or a complaint is filed against a Judge. Rather than recognizing the dangers existing and mandating that an investigation be conducted when a Judge exhibits such conduct that fails to honor the promise given to the people in the application of law.  And therein cease selling "Justice" in what has become a grossly unregulated enterprise of politcal expectations and contribution's. 

Part Two

  Qualified & Soveregin Immunity = Destruction of Accountability

Although Alexander Hamilton was not seen as a "good politician" because of his unwillingness to speak softly to appease others, in 1775 he wrote:

"The sacred rights of mankind are not to be rummage for, among old parchments, or musty records. They are written, as with a sun beam in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power."

And Earl Warren wrote in "A Republic If You Can Keep It" p. 48 that:

"The [only] protection of [every] citizen from such deprivation of rights is a [strict adherence] to the Bill of Rights [by everyone for everyone]…." (emphasis brackets added)

Yet, while our framers were abundantly clear in the rights and liberties created in and given by our Federal Charters. Man’s obsessive greed for political power and moreover, the pathway for personal vindictive expressions, such things constantly erode the gifts in rights and liberties that our framers intended for us to have.  For example:

Findlaw Legal Dictionary defines "qualified immunity" as:

"specif : official immunity from damages for acts that violate another's civil rights that is granted if it can be shown that the acts do not violate clearly established statutory or constitutional rights of which a reasonable person would be aware."

I submit however, that there can be no greater threat to democracy and the very sanctity of life and liberty itself than what comes from the predisposition of these immunities against the people. For the very consequence in their application, presupposes that official’s are above the law and the people therefore hold the greater burdens of proving otherwise.

All early American history testifies to the fact that the right of power lays in the hands of the people or though their elected officials as plainly evident in that:

"In the United States the people are sovereign. The powers of the government are only those delegated to it by the people. The democratic process, by definition, is one in which "The supreme power is vested in the people and exercised by them or by their elected agents under a free electoral system." Earl Warren, Id at Pp. 60-61

However, official’s, both legislative and judicial alike have adopted the belief that in order for the government to have the ability to enforce the law, they must therefore be above the law.

In doing this, both legislative and judicial official’s alike have undermined the integrity of their Oath tenfold, which is their solemn promise to the people to ensure the laws will be upheld in neutrality and not therefore be marked by the corrupt individual’s power. And while Harlan F. Stone, noted in "The Common Law in the United States, 50 Harv. L. Rev. 4 (1936)" that:

"The law itself is on trial, quite as much as the cause, which is to be decided."

When such immunities are imposed against the people, it cannot be the law that is on trial or even the official, but the people instead as a means to silence their dissent for the government to retain its power sot it may achieve conformity.

Part Three

Societal Indifferences = The Path To Whimpers End

Earl Warren went on to say:

"…This should be self evident but the danger or erosion of rights stems largely from the fact that so many citizens of the majority, who have never been deprived of any of these rights, find it difficult to understand what the deprivation of them means in the lives of others."

The indifferences existing in society is the common binding ground that forges greater deprivations of rights to occur, until there can be only one end shared by the swallowing of us all. For the voice of silence is the surest pathway to bring about our whimpers end.....for the sake of conformity.

The Future Of Weblog's In The Presence Of Governmental And Internal Regulations

By Christopher Cross

In an effort to address the broader range of subject matters through comprehensive Ed-Op articles, associated with the role of the press, web publishers and the First Amendment, this report will focus on the following areas:

I. Is there such a thing as having too much Internet freedom:

II. The Weblog Community and the Uncharted Territory:

III. Statutory, ISSN and Internal Regulation’s of Weblog’s

IV. The Future of Weblogs:

V. Summation:

_________________________

I. Is there such a thing as having too much Internet freedom:

This question, and its’ factual answer depends largely, if not solely upon which side of the isle you stand on for clearly there are those who will argue that the answer is a decisive yes, while others will categorically say the answer is no. Whatever the truth is, it is clear that the rising controversy over weblog’s will inevitably spark large-scale debates in more official channels.

In the first of a series of conferences being hosted by the Library of Congress, Kluge Centr; panel guest David Weinberger stated that: "You cannot rely on any blog by itself to be trustworthy".  I do not agree with his claim in its' factually asserted pretense, in part because such erroneously generalizes [all] web publisher's into the same category and in absolute terms. Neglecting, in its consequence, that there are countless of web publishers who go to great efforts to report newsworthy matters in both factual and ethical realms. I do however agree with the implied per se principle, insofar that the general public holds a responsibility to carefully weigh what they are reading, the communication pattern of the web publisher's and any public comments made.  And as such, web publisher’s cannot bear the full blunt of criticism since they are writing to appease their audiences.

Clearly there are many web publisher’s who use their freedom to intentionally bash others, spread political propaganda or to act in reckless disregard for the rights of others. So in this respect, it is suffice to say that web publisher’s have created their own mess and controversy to a large degree in part, by failing to self-regulate themselves and their peers. But also due to the immense competitive aspects involved that has produced a type of territorial mindset as well as a rank and file system. And within these aspects, web publisher’s grossly fail to regulate their own community on the premise that they hold the right of free speech in its’ absolute terms.

II. The Weblog Community and the Uncharted Territory:

If we have learned anything from our last presidential election in regards to web publisher’s it is that these individual's have achieved and maintain incredible amounts of political capital. And because of this, it is inevitable that politician’s will turn to using their own weblog’s and outside weblog publisher’s more and more, to assist them in campaigning for elections. But there is also a great deal of legal capital held by web publisher’s as well, to influence public policy decision-making on any given proposed legislation or judicial action.

Web publisher’s have only begun to scratch the surface of the intrinsic value they can achieve on broad-based platforms such as political, legal, social, educational and religious areas. However, because of this extraordinary opportunity to influence these societal and governmental areas in such profound ways, we will equally see a rising counter-dissent from both government officials and special interest groups.

Weblog domain hosts also hold their own amount of political capital in their ability to generate public interest and discussion not only on their own web site, but also in advertising specific weblog’s. Thus, with this power also comes responsibility, if responsibility is to be had, to not only assist in exploring the uncharted territories, but doing so in positive, factual and ethical manner’s.

III. Statutory, ISSN and Internal Regulation’s of Weblog’s

A.  Statutory Regulation's:

In October 2004, Cam Edwards of NRANews.com wrote a report wherein he asked Bradley Smith, Chairman of the Federal Election Commission: "If we're eventually looking at the FEC deciding what blogs run afoul of McCain/Feingold"? In response, Smith replied:

"…that's the direction we're heading. Not just in determining what blogs might be in violation of McCain/Feingold, but determining what blogs would be able to claim a media exemption".

In one respect, granting weblog’s "official" government recognition of a media status will serve greatly in weeding out the ones whose only real intent is to bash political figures with propaganda or act in reckless disregard to the rights of others; from those whose purpose is to legitimately report the news in ethical and factual manners. However, in doing so, we are at the same time setting the stage that unless and until a person receive "official federal government sanction" for the work they do, they will not be viewed as being either credible in their views or seen as a journalist.

B.  Bipartisan Campaign Reform Act of 2001

Perhaps at the heart of the controversy here is that of Title 1 - Reduction of Special Interest Influence, of the Bipartisan Campaign Reform Act of 2001, and the asserted premise that weblog publisher's constitute a "special interest group" who can therefore receive and coverty distribute soft money. 

In this, the question seems to center on whether or not political communication over the Internet can be legally defined as "coordinated" and if so, subject to FEC regulations. If true, then both weblog publisher's and weblog domain hosts might be held to a strict set of standards in federal regulations.

In 2002 Representatives Christopher Shays (R-Conn.) and Marty Meehan (D-Mass) filed suit against the Federal Elections Commission, Shays v. F.E.C., Civ. No. 02-1984, (D.D.C. Sept. 18, 2004), to challenge the regulations developed pursuant to the Bipartisan Campaign Reform Act of 2002. The U.S. District Court found that:

"numerous regulations promulgated by the Commission in the wake of the Bipartisan Campaign Reform Act ("BCRA") undermined and thwarted congressional purposes behind BCRA and either failed Chevron review or violated the strictures of the APA".

The U.S. District Court ordered the FEC to correct the problems existing.

In September 2004, the Federal Elections Commission filed its’ Notice of Appeal to challenge the lower federal Court’s ruling in Shays-Meehan v. FEC, and asked the District Court to issue a stay on its’ previous ruling, in part to "clarify for the public the state of the law in the wake of the Court’s decision." Def.’s Mot. for Stay at 2. The District Court issued its Order and Memorandum Opinion Denying Stay on October 19, 2004, and held in part:

"Upon a careful consideration of these filings and the relevant legal authority, the Court declines to stamp the Commission's "business-as-usual" tactics and request for delay with the judicial imprimatur of approval.  Rather, the Court concludes that the FEC has failed to meet the stringent standards required to justify the extraordinary remedy of a stay pending appeal and therefore shall deny the Commission's motion.  Importantly, while the Court has determined that it lacks jurisdiction to go beyond identifying he FEC's errors of law in the defective regulations, Shays, Civ. No. 02-1984, slip op. at 156 (D.D.C. Sept. 18, 2004), and notes that the deficient rules technically remain "on the books," the Commission should conduct proceedings consistent with the Court's opinion and remand in order to assuage its abrogation of both congressional intent and the public interest'. 

The FEC is continuing in its’ appeal and if won, it will be the first set of what is sure to be many more federal regulations to come.

C.  USA Patriot Act:

Of notable concern is Sec. 814 of the USA Patriot Act, Titled "Deterrence and Prevention of Cyberterrorism", which has removed the safeguards from the Computer Fraud and Abuse statute that prevented civil prosecution of a person due to the "negligent design or manufacture of computer hardware, computer software, or firmware."  In other words, a weblog publisher might be held liable under Sec. 814 even though they held no control whatsoever over the computer programs or systems they were accessing.

Another alarming provision of the USA Patriot Act is that of Sec. 217, which classifies people who, for example, violate the Terms of Service, as a "computer trespasser." 

In regards to the aforementioned Patriot Act provisons, weblog publisher's are at great personal risk for being held liable since these individuals are constantly surfing the Internet for stories to report on and could very well innocently become a victim of these provisions. 

D.  Copyright Infringement:

Of rising concern is that of weblog publisher's accessing computer databases or other information and copying such onto their actual web site design board or to use in a specific article. 

Curently the U.S. Supreme Court is hering the case of NXIVM Corporation v. Ross Institute, which addresses these kinds of questions and perhaps the most interesting aspect about this case centers on the use of alleged legally confidential information said to be protected in part, the under free enterprise and trade laws. 

One aspect that does not appear to be properly examined by weblog publishers is that of second and third party copyright infringement matters.  For example, when someone copy's information that was orginally obtained from a CD ROM of, which in and of itself was copyrighted and a good example of this is photograps, icons and clip art.  Many appear to believe that the "public domain" laws apply and therefore release weblog publishers of all liability, when in fact they may not apply in any given specific circumstance or situation.

There is a distinct difference between using information that may be classified as "public records" and that of "privately held information".  A good example of this might be quoting a public official's comments that are listed in a newspaper or aired on television.  And that of devulging trade secretes of a corporation or reporting on information about a private citizen that might be seen as defaming their character or reputation.   

E.  ISSN Regulations:

To assist in regulating the content found on weblog’s, many web publisher’s have registered their weblog sites under what is called the International Standard Serial Number classification, though some argue that there is no definable reason to register. The counter-argument stems from the view that an automatic copyrighting of the articles and weblog contents occurs by virtue of the following guidelines described by the Fawny Org

1. Weblogs are publications in a certain medium (electronic).

2. Nearly all Weblogs have numeric or chronological designations.

3. Weblogging software may automatically provide a serial number for each posting (as Blogger and Movable Type do), or the author may custom-define a date-stamp for each posting, or the author may provide a date-stamp and a serial number.

4. The URLs of many Weblogs themselves contain date-stamps and/or serial numbers; those URLs are themselves sufficient as designations. Weblogs rarely have a predetermined end. The default intent is to continue publishing indefinitely. The Weblog format encompasses the past (the form dates back to the late 1990s), present (hundreds of thousands of Weblogs are published today), and the future (nearly all of them will continue to be published, and new Weblogs will be created).

5. Weblog contents can often be characterized as directories (as of links), series, and/or memoirs, among many other forms.

In this respect, ISSN and standard copyright avenues, sometimes referred to as the "poor man’s copyright", help to establish web publisher’s as published Journalist whose work is protected under relevant copyright laws.

F.  Internal Regulations:

Other than the "Terms of Service" domain hosts have in place, there does not appear to be any significant internal regulation of weblog’s themselves or weblog publisher’s and in this respect, the weblog community grossly fails to regulate itself.

At best, internal regulation is achieved far more by public opinion demonstrated either by the public comments left or the number of 'hits' any given weblog site receives.  Unfortunately, in many respects this holds a double edged sword because the tendency might exist for the general public to frequent weblog’s that engage in over-zealous bashing of political figures, religious groups or any given individual. And completely ignore weblog sites that strive very hard to maintain a high journalistic ethical standard of conduct; sometimes called the "morbid effect". 

Of particular interest is that of the rank and file system applied to weblog’s both by what is called a "popularity ranking" set up by some weblog domain hosts or weblog search engines. And that of listing of weblog publisher’s on other weblog’s so as to seemingly declare that those listed are better than the rest.

On one hand there is nothing inappropriate about this, as it is simply a personal view held by the weblog publisher who is listing the names of other weblog sites. Yet, on the other hand it might involuntarily be sending out the wrong singles when considering that the general public does not fully grasp the context of why they are being listed.

Another interesting area that is grossly underutilized is that of the public comment section that the majority of weblog publisher’s offer as a feature to any given article they write.  Wherein the reader may leave and therefore publicize their own opinions about the article. And while this is a primary resource that could greatly assist in the internal self-regulation process by the comments of one’s peers, it is not an avenue that is being used enough or correctly. Since generally you find like-minded people writing comments and very few who hold opposing views or who critique the appropriateness or professionalism of the work done.

IV. The Future of Weblogs:

The future of weblog’s holds only three real guarantees:

1. We will continue to see a strong push for governmental and judicial regulations by an assortment of individuals or special interest groups;

2. Weblog publisher's will continue to diversify Internet communication with the sane and outlandish topics being discussed and conclusions drawn;

3. Internet communication will most certainly continue to be a sore spot for mainstream media and those who believe that we must curtail or stifle such speech solely to achieve societal or Internet conformity.

V. Summation:

Though I do not believe in or support the concept and practice of "conformity for the sake of conforming". I do support the need to use weblog’s in more pro-social manners that serves the betterment of society. Defining what pro-social is exactly is a very difficult and sensitive thing to do because of the widespread different views on its’ definition.  Free speech and free enterprise is one thing, but having too much freedom that is unregulated on all levels, can actually work against a society.  So while the Internet provides us many useful tools and on all levels we can sometimes take a good thing too far.

This article, its' contents, subject matters and opinions expressed are not intended and should not be construed as legal advice or legal opinions, but solely in the scope of educational reasons in or related to current events of public interest or concern and/or related to other political matters.  If you have a specific legal question or problem you are encouraged to consult with a licensed attorney. 

The Role Of The Press, Web Publishers And The First Amendment

By Christopher Cross

In a continuing comprehensive series of Ed-Op educational articles (located in the web site section heading "blogger info") centering on Internet communication and the role of the press and web publishers. This article examines:

I. The close nexus between the two entities involved;

II. The intrinsic value of Internet communication;

III. The application of the First Amendment into Internet communication;

IV. The application of immunity from harm in journalism

V.  Summation

______________________

I. The close nexus between the two entities involved

It is important to understand that the terms "Blogger and Blogs" have sadly become the slang for what both Congress and the Court's have often referred to as 'web publishers'. Therefore, merely because these slang terms are used does not devalue the work these individuals do.

Webster's Collegiate Dictionary defines 'Journalism' as:

1a:the collection and editing of material of current interest for presentation through news media  b: the editorial or business management of an agency engaged in the collection and dissemination of news  c: an academic study concerned with the collection and editing of news or the management of a news medium  2a: writing designed for publication in a newspaper or popular magazine  b: writing characterized by a direct presentation of facts or description of events without an attempt at interpretation  c: writing designed to appeal to current popular taste or public interest  3: newspapers and magazines

If we take Webster's definition in the literal sense then it is suffice to say that much of mainstream media now days could be ruled out as actually serving the role of 'journalism' since many news agencies are very bias in what they report. Sometimes this bias comes outright and sometimes it derives in more subtle ways, such as in what is known as 'interpretative writing or interpretative reporting'. Wherein the journalist essentially cherry-picks information to intentionally lead the readers in a particular direction that cannot help but draw the conclusion the journalist wants rather than what may actually be rooted in facts. A large percentage of this occurs in the editing stages, for example failing to insert a quote made by a person in opposition to the reporters' story. And media personnel rationalize this tactic of reporting on the predication that they have limited space in a newspaper or broadcasting time to air a story. Nevertheless, it is a form of bias reporting that has grossly undermined the integrity of journalism and forced society to suffer the results.

II. The intrinsic value of Internet communication

Now, because the Internet affords people with the opportunity to reach out to more people and in faster times, there has been a significant increase in the number of people using blogs; an estimated five (5) million people.

Many of these individual's spend enormous amounts of time researching their data to incorporate into the article that they are writing and publishing on the Internet for general societal consumption. I know that I have spent as much as three hours researching, writing and editing just one of the articles I have published in this series. So, it is certainly probable that there are many more like me who spend the time needed to produce quality articles that serve public interest or concern in newsworthy matters.

In 1996 Congress enacted the Communications Decency Act and of particular importance regarding the focus of this Ed-Op piece, is Section 230(a) which states in relevant parts:

The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive computer services available to individual American's represent an extraordinary advance in the availability of eductional and informational resources to our citizens;

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology devlops;

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity;

(4) The Internet and other interactive computer services have flourished, to the benefit of all American's, with a minimum of government regulation;

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services;

And of particular importance in terms of governmental intrusion is:

(b) Policy

It is the policy of the United States -

(1) to promote the continued development of the Internet and other interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

As a direct or proximate result of these seven (7) subsections to Sec. 230 there can be no doubt that weblogs hold a significant relationship and intrinsic value to providing a valuable service to society on many fronts beyond that of sharing 'cooking tips'.  Accordingly, it cannot be [legitimately] argued that those individual's who are dedicated to producing newsworthy articles for their readers are not Journalist.

III. The application of the First Amendment into Internet communication

In addition to Sec. 230, in 1997 the U.S. Supreme Court held in relevant parts:

Reno v. ACLU, 521 U.S. 844

"Communication over the Internet, including e-mail, is protected by the First Amendment (Striking down the Communications Decency Act of 1996 for violating the First Amendment) Since "the Internet is not in the same category as the broadcast media, the government has no basis for providing a limit on First Amendment protections, and the attempted limit on speech should receive full First Amendment protections" Id at 870

Since Reno, there have been several judicial efforts made in direct attack against Internet First Amendment rights and are being premised on claims of copyright infringement, liable and slander, free trade issues, confidentiality and so on.

In the case of NXIVM Corporation v. Ross Institute, which is currently before the U.S. Supreme Court and is a ground breaking case in many ways, two questions have been raised:

1. Can copyright law be employed to enforce a nondisclosure agreement by depriving a critic of the ability to raise the defense of fair use in a copyright infringement action when he quotes even a small portion of a cult's "training manual," which the critic obtained from a former victim of the cult, solely on the ground that the cult requires participants to promise to keep its "training program" confidential?

2. Does the fact that material is quoted for the purpose of "criticism" of its author support a finding that the first statutory fair use factor (the purpose and character of the use) favors the alleged infringer in a copyright infringement case?

This case presents two very challenging, yet, extraordinary questions that encompass a broad range of First Amendment rights related to journalistic efforts. As not only does it deal with matters of copyright infringement, but also confidential information and informants as well as trade secretes and free enterprise. And although this case is before the Supreme Court, the lower Court's have ruled in favor of the Defendant, Ross Institute, which gives further judicial evidence thus far that the First Amendment is closely inter-related to the use of Internet communications.

One area of increasing controversy is that of prisoner rights in relationship to the utilization of the Internet and the associated First Amendment rights afforded to prisoners, for example:

In the case of Clement v. California Dept. of Corrections the 9th Circuit Court of Appeals held in April 2004, that the policy prohibiting inmates from downloading attachments sent to them by e-mail violated the First Amendment and therein upheld the lower Courts' injunction against the Department from enforcing this policy. However, the fact that such cases are being brought forward that involve prisoner rights means that web publisher's will inevitably be caught in the middle and the effects will certainly call into question the First Amendment rights of web publisher's in whole or in part.

IV. The application of immunity from harm in journalism

Of paramount importance regarding the Free Speech Protection Act of 2004 is that it is a pre-emptive legislative strike that safeguards the First Amendment rights of on-line web publisher's. More specifically, if web publisher's are in fact legitimately classified as journalist, which has not yet been called into judicial question that I know of, then the Act will provide us immunity from harm before the question is raised in a Court of law. 

Michael S. Overing, OJR Columnist once wrote, in regards to the Homeland Security Act: "You have to question the wisdom of legislation that encourages private citizens to share information they've collected with our federal government. Offer them immunity from civil prosecution for their information and you're asking for a witch hunt. Prevent the press from gaining access to the information and source materials, and you've got a formula for framing innocent citizens and a prescription for a cover-up".

In the case of Jim Taricani however, the Court found him guilty of criminal contempt because he refused to disclose his source before a grand jury, for obtaining a video tape that is said to show Providence Mayor Vincent A. Cianci Jr. allegedly taking a cash bribe in 2001. The video tape was subject to a Court protective order and Mr. Taricani's Attorney's argued that Mr. Taricani acted in "good faith" that the tape was essentially free and clear. The Prosecutor argued that he did not have to prove whether or not Mr. Taricani acted in good faith or not and the Court agreed.

In Blair v. United States, 250 U.S. 273, 281 (1919); United States v. Bryan, 399 U.S. 323, 331 (1950) arguments were made that the First Amendment guaranteed the press an exception clause of limited extent, to having to disclose their sources.  It was an argument later rejected in Branzburg v. Hayes, 408 U.S. 665 (1972) wherein the Court held:

''Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.''

Unlike the aforementioned cases, Mr. Taricani's Attorney was not asserting the same arguements but instead that Mr. Taricani was entitled to immunity from harm because he acted in "good faith and belief" when receiving the video tape; unknowing that it was under a Court order of protection.  Thus, the problem lays in that the Prosecutor counter-argued that he held no obligation to disprove the "good faith and belief" affirmative defense and because of this Mr. Taricani was therefore liable.

In contrast, Landmark Communications v. Virginia, 435 U.S. 829 (1978) presents a similar case wherein a Judge was under investigation by the State Judicial Disciplinary Board and as such, State law required that the proceedings and records of such remain confidential. A newspaper agency was indited and convicted for violating the confidentiality clause of the State law. Upon appeal to the U.S. Supreme Court, the Court held in relevant part: "While a State may have numerous and important valid interest in assuring the confidentiality of certain information, it may not maintain this confidentiality through the criminal prosecution of nonparticipant third parties, including the press, who disclose or publish the information".

So the question becomes whether or not it is judicially proper to hold a Journalist in contempt when he or she acts in good faith and belief that disclosing or otherwise publishing confidential information is not illegal and therein refuses to disclose their source?  If we say yes, as the Court did with Mr. Taricani, then we cannot help but be reminded of the aforementioned comments from Mr. Overing. 

In relationship to on-line Journalist or information sent by e-mail, the question becomes perhaps even more complex, in part because of the Courts' ruling in Reno v. ACLU.  But also the information may not even be solicited by the Journalist, yet, in the wake of Mr. Taricani they still might be held liable.  And merely because 31 States have shield laws in place to protect Journalist does not mean that some rogue judicial personnel won't seek to take action against the Journalist on a federal level.  To-wit plainly illustrates the overt necessity for the Free Speech Protection Act of 2004 to be enacted as it provides a decisive shield law on a federal level. 

V. Summation:

William Godwin (1756-1836) English novelist, biographer, philosopher once said that: "Justice is the sum of all moral duty" and if true, then the role of the press and web publisher's hold a heavy hand in the moral obligations. To assert otherwise in totality and therein leave these entities empty-handed, is to equally deny the people their right to know.

This article, its' contents, subject matters and opinions expressed are not intended and should not be construed as legal advice or legal opinions, but solely in the scope of educational reasons in or related to current events of public interest or concern and/or related to other political matters.  If you have a specific legal question or problem you are encouraged to consult with a licensed attorney.