Week+7+-+Lessig+II

__**Week 7 - Lessig II.**__ __**Levy 309-337**__ What we have been seeing the initial push towards an overarching or absolute freedom granted by the First Amendment. Personally I can’t say that I would want it any other way. Levy wrote on Madison’s thought about the fundamental differences of government in England and America and how those differences required, for America, “a different [larger] degree of freedom of the press”. So, “America… did not hold the executive to be infallible nor the legislature unlimited, and both being elective, were responsible…because the electoral process comprised the essence of a free and responsible government, a wide latitude for political criticism was indispensable to keep the electorate free, informed, and capable of making intelligent choices” (317). This seems to strike me as a lose idea of a fourth branch of government, much like we talked about weeks ago in class. Furthermore, Levy expressed more evidence towards the totality of the scope of the First Amendment with the opinions of Tucker, one who was largely in agreement with Madison. In what seems like additional support to the idea of the fourth branch of government Levy wrote that Tucker “claimed that the First Amendment freedoms had been purposely undefined so that they could be transmitted to future generations unshackled and unlimited… [I]n America the government, whether state or federal, served the sovereign people, making indispensably necessary that the people have the broadest freedom of inquiring into and criticizing the conduct of its servant” (326). I especially like this passage and its phrasing of the government as our servant. Although I know we have breeched the subject, I cannot help but see an inherent contradiction with our need to examine the interworkings of our government in order to be certain that our servant is not deceiving us, or more basically that it is still serving us, and a need of secrecy for the government in order to protect us. Naturally, I suppose this is why we have a clear conception of “classified” files and “need to know basis” and “security clearances”, yet at the same time is this not the exact shroud that would be used to hide harmful/necessary information that we as the sovereign deserve/need to know? In our current age it seems that more and more people are willing to alleviate their freedoms for superficial security. Is there a balance we can reach with our right to know and the governments right to protect? If so, are we anywhere near this balance today? Lastly are we certain that our government is still the “servant” to the sovereign that Tucker proposed. Levy, characterizing Wortman’s argument on page 330 states: “Only a government whose administration and policies cannot survive investigation needs to resort to the punishment of seditious utterance, although coercion can never vindicate the character of a government or its officers, nor remove an erroneous impression.” We see this today pretty clearly. The Obama administration has used the Espionage Act to prosecute whistleblowers six times since Obama took office. Former CIA agent, John Kiriakou allegedly disclosed classified information about the CIA’s interrogation program. He told ABC news that he led the team that captured accused terrorist Abu Zubaydah and that the techniques to which Zubaydah was subjected to during interrogation included waterboarding and clearly constituted torture. He is being prosecuted under the Espionage Act; this drew the sarcastic comment that “At long last, someone will face a waterboarding related prosecution.” The Obama administration uses the Espionage Act as a kind of federal sedition law that bypasses the NYT v. Sullivan (1964) decision’s malice standard for prosecution and truth defense. In these cases, the intent is not malice but exposing crime or injustice, and the information is in fact true. My question is thus: Is espionage (as exemplified through whistleblower of military secrets) a different category of punishable speech acts, or does it simply fit under seditious libel? If that is the case, what is the justification for punishing somebody for libel which is true and which concerns actions that were against the law? Is there such a justification?
 * Cody Witko:**
 * Brendan O'Donnell:**


 * Susan Thomas:** On page 327, Levy discusses Tucker's defense of truth as a necessary condition for press conduct as it pertains to libelous statements against people, regardless of whether they were 'public figures'. Tucker argued, "The right of character is a sacred and invaluagle right, and is not forfeited by accepting a public employment." I was wondering if, given this argument and those that followed, a person's reputation, whether public or private, should or does enjoy any protection as personal property? It might be defensible to put forth a case in which a man's character cannot be falsely disparaged (as in the case of the televangelist), but, if the man himself truthfully committed a crime or an act that showed his character to be less than savory, printing that information could not be considered damaging his reputation, since the damage (or its source) has already been done. I find myself, in reading these papers, wanting to preserve the freedom of expression, but at the same time, I am disgusted by how some people are needlessly abused. So, if one's character, as Tucker called it, could be protected as private property, couldn't we eliminate the ugly and retain the good of free speech? In other words, one human right should not be used as an excuse to trample another human right.

The recapitulation of Tucker’s argument, as noted by Levy, relied heavily on the term //absolute//, which strikes me as interesting and worth exploring. The term //absolute// seems to allude to a desire for something certain. With this certainty we think that we //ought// to have, there is an unrelenting yearning for an unwavering commitment to protection. We want to have our absolutism protected. (Ironic.) And if Tucker’s use and reliance on the word //absolute// is warranted, which is what is in question, then we ought to investigate what something //absolute// elicits. Levy writes, “Tucker habitually used the word “absolute” as a prefix to the right of speaking, writing, and publishing, which he described as “unlimited as the human mind,” subject to the penalties of the law only for personal defamation” (326). We would like to believe that the protection of free speech is //absolute, certain,// and //unyielding.// However, how can something be absolute if it is regulated?—which is what I take to be the critique offered by Tucker. How can there be reconciliation between our desire for absolutism and the restrictions that are imprisoned on our liberty via the government? Absolutism is an illusion that is seductive and prolongs our deception of our being free.
 * Bryce Blankenship:**

On page 317 when characterizing Madison’s second theoretical point, Levy states, “America, however, did not hold the executive to be infallible nor the legislature unlimited, and both, being elective, were responsible. Necessarily, therefore, American constitution-makers contemplated a different degree of freedom of the press. An elective, limited, and responsible government required a much greater freedom of animadversion than might be tolerate by a government such as that of Great Britian.” It’s an argument that very much reminds me of Rousseau when he made the distinction between the Sovereign and a government and warned that the government could fail in its responsibility’s by working to achieve its own will rather than the common will. Madison seems to support a system where this is held in check by the media but wouldn’t the media be subject to the same flaw as government? That is, wouldn’t a media conglomerate be just as likely to forward their own causes over the common good as the government? And worse yet, a elective government is somewhat held in check by the people, what power to citizens have in controlling those in charge of say, News Corp?
 * Travis Dawson:**

"The First Amendment's injunction, that there shall be no law abridging the freedom of speech or press, was boldly stated if narrowly understood. The bold statement, not the narrow understanding, was written into the fundamental law. "It is far better," as Tunis Wortman wrote, "to err on the side of Latitude than that of restraints." On this point the Framers would probably have agreed with Wortman." - (Levy 348) Consider today's news that the U.S. Attorney General has defended targeted drone attacks on U.S. citizens without any burden of proof and a broad definition of due process ( http://www.democracynow.org/2012/3/6/attorney_general_eric_holder_defends_legality ). Does the New York Times or the ACLU have a legitimate claim to the governments information in a time of war? If we are to accept the Framers meaning for the First Amendment as a bold statement, not a narrow understanding, what, if any, restrictions are there for information on drone strikes on U.S. citizens? Is there a different standard for law, the press and due process in a time of war? Would the same argument the U.S. Attorney General used apply to attacks on U.S. soil under the NDAA? What other problems are there with a broad understanding of the U.S. Constitution that Eric Holder argues in regards to due process? What are the dangers of this broad interpretation and are there any limits to it?
 * Matthew Baughman:**

Levy’s argument of the writing of the first amendment as being as broad as can be read is a fair one in that it makes it open for interpretation and personal understanding of it. I agree with Levy on that because if the laws were written so strictly that it was black and white in all ways it would make it hard for them to age well with time and the changes in culture that come with the passing of time. A reason that one could argue for this is with how Thomas Jefferson looked at the freedom of speech and religion. Jefferson a Deist/possible atheist who made his own bible that took out all the miracles and claims of divinity of Christ, which would be a huge problem if the first amendment only protected clear and distinct religions and types of speech. Another benefit of having a law written more broadly rather than one that clear is that it gives us more freedoms in the greyness of the space of what is covered and what is not and allows us to act on those actions of the grey areas. what does the class feel like when it comes to living in the grey rather than in the black and white?
 * Brian Malone: **


 * Ben Gearheard**

I have several questions about Wortman’s views that Levy presents. Levy writes, characterizing Wortman, “Prosecutions fail, however, to achieve their underlying purpose of establishing public transqullity, and they can never effect a cure of the complaints that give rise to libels. Indeed, by damming up discontent and removing the possibility of its verbal expression, prosecutions make a resort to violence more likely. . . The wise government understands that free speech is a preventative of revolutions.” (p. 331) The idea is that revolution is caused by discontent of the people, and free speech allows the people to vent their discontent, but prosecution of speech acts would block this vent. This argument seems ironic in that suppression of certain types of speech is supposed to prevent this kind of violence; but is he wrong? No matter what, no one has taped our mouths shut or tied our hands behind our backs- we can vent out what we want before being punished. But, if punishment looms as a deterrent, that is probably enough for Wortman to say we’re sufficiently “dammed.”

To quote Wortman again, “The worst misrepresentation of the government cannot result in public disrespect for it, nor in a breach of peace. To believe to the contrary libels society by assuming that the people cannot differentiate truth from error when given the facts.” (p. 330) Wortman assumes that the people can differentiate truth from error, at least when given ‘the facts.’ Does this imply that only if we aren’t given the facts we can err collectively in our judgment? Is Wortman assuming a “marketplace of ideas” that sorts out the good from bad by itself if unrestricted (this seems to be a recurring theme)? Some evidence that leans me in that direction would be “Falsehood might temporarily triumph, but never for long if the remedy of “Reason and Argument” be relied upon.” (p. 330)

You had asked us to look at the historical contexts of the framers and Levy's writings as we read for today. Looking at Levy's view in __Emergence of a Free Press,__ it is clear that he did not believe the framers had a libertarian view of freedom of speech. Since sedition was a component of the common law of Britain, as Levy states, I think this distinction between practiced and written law is important to clarify. I think this may be why Levy views the "seditious utterance" from a different direction than Meiklejohn. I see Levy's position unique in that he is saying the "American constitution-makers contemplated a different degree of freedom of the press" (p.317) and therefore the way we look at the first amendment should be the way the framers looked at it, with consideration to time, space and cultural traditions - to conclude that the framers would not have wanted Congress to be able to make statutory laws against seditious libel, erring on the side of leniency of discretion with this newly democratic and free governing body. (p.348)
 * Aly Lamar -**

In discussing Madison’s impact in terms of the first amendment, it is stated that: “The people, not the government, possessed ‘the absolute sovereignty’ and placed the legislative as well as the executive under limitations of power by constitutions that were paramount to legislative acts.” This seems to go along with Rousseau’s idea of the ‘general will’. However, under the United States constitution, aren’t the legislators suppose to be the “means” from which the general will or opinion of the citizens is carried out, especially in a country with the population of the States. Rousseau knew of the problems of a large population, so he didn’t seem completely opposed to the idea of “representatives” of the general will. It seems to me that, //potentially//, to have “checks”, such as the first amendment, lends to the idea that the legislators of the United States do not function towards Rousseau’s ‘general will’, but rather to some different capacity. Its seems that through Rousseau’s idea of a representative, they could never make a law that went against the general will, therefore a systems of “checks” would not be necessary as it is in the United States today.
 * Tyler Morrison**

On page 328, Levy surmises that Wortman, "Implied the existence of an 'unlimited right' in both the individual and society to express political opinions. Any attempts by the government to coerce opinion or abridge the freedom of inquiry 'materially violates the most essential principles of the social state." While I agree with this, there is a modern dilemma when it comes to information, inquiry, and dissemination of information. An issue I have always struggled with is the dichotomy between freedom of speech and national security (a very 21st century concern in America). It is important to have free speech for many reasons: increase knowledge, place checks on the government, etc. But where is the line between national security interests and public investigation and speech? The internet makes this even more tricky, for anyone who does apply their "freedom of inquiry" to government secrets can quickly disseminate that information, which potentially hostile nations can view. How do we reconcile the issue of freedom of inquiry and speech with that of national security. I wouldn't want any citizen looking into Pentagon secrets, because there is a risk of adding our 'enemies'. I also don't want the government to have completely free reign for sweeping things under the rug and out of public scrutiny under the guise of national security. It creates a dangerous precedent. It seems that there isn't a rule that can be made to apply to all these gray areas and it has to be a case by case consideration. To me this seems impossible.
 * Jordan Howser**

On 324, Levy explains how state bills of rights were drafted: "In the glorious act of reverting from a state of nature to a civil government by framing a social compact, Americans tended simply to draw up a glittering catalogue of "rights" that satisfied their urge for an expression of first principles. It was a terribly important and serious task executed in an incredibly haphazard fashion that verged on ineptness." While Levy is specifically talking about the bills of rights drafted at the state level, the claim obviously applies to the federal bill of rights to some degree. The entire discussion here is about vague wording in federal documents of law. The judicial branch of the United States government exists primarily to interpret the law and apply it to specific situations. Under this system, judges and justices wield enormous power reagrdless of the era in which they serve. As Brendan has pointed out, the executive branch of the United States government has increasingly siphoned off much of this interpretative responsibility (and power) by appealing to the inviolatability of the "State's Secrets" doctrine and the collective fear associated with terms like 'espionage' and 'terrorism.' As the power of interpretation becomes more and more concentrated in the hands of a smaller and smaller elite, the stench of corruption springs forth, and the redeeming function of options like jury annullment becomes less and less effective as matters are more routinely settled out of court (such as the Obama administration assassinating US citizens). Does it not seem obvious that something needs to be done to stop this usurpation of power?
 * Ryan Braun**

"The 89 percent of Americans who have no confidence in Congress (as reported by the latest Gallup poll)1 are not idiots." Lessig 2

There is little confidence in those who write our laws, and those who enforce them are often entitled to interpret them how they please. Does there not exist an enormous conflict of interest in the actions of our executive branch of government over the past 20+ years (if not longer)?