ACLU Calls for Censorship

No, really.

[Via The Agitator.]

Comments

[joe]

I don't know about the merits here...

But a judge forbidding the publication of information during a trial isn't usually considered "censorship," is it?

[Jesse Walker]

Prior restraint on the press is pretty much the classic definition of censorship, Joe.

[pigwiggle]

I think their concern for his safety is valid. Now that they are representing him they are bound to act in their clients best interests.

[joe]

Then you have an astoundingly broad definition of the term, Jesse. Every gag order issued by the judge, federal rules preventing cameras in the courtroom, rape shield laws...

If you're going to define each of those as censorship, then yes, this counts.

[joe]

Since we're talking definitions, is the "fire in a crowded theater" scenario "censorship," but an acceptable variety, or does the legitimate public purpose argument mean it is not censorship, but something else?

[n]

What do rape shield laws or gag orders have to do with forbidding media from publishing information?

[michael]

Jesse:

Prior restraint on the press is pretty much the classic definition of censorship, Joe.

eh. Joe's point (I think) is that gag orders from judges during trials are not all that unusual; "Rape-shield" laws for example; or child abuse cases...though I'm not sure how common it is to embargo the identity of parties to a civil suit, or to restrain third parties.

It may offend your Libertarian orthodoxy, but it doesn't strike me as a huge "gotcha" moment. Besides, as pigwiggle points out; they're not an advocacy group in this instance, they're the guy's lawyers and their duty is to him.

m

[Tyson]

I'm against the ACLU's position (on court-enforced anonymity) here, but, as one example, it wasn't called "Roe v. Wade" for nothing. This doesn't sound as novel as it is being portrayed.

[dhex]

nothing like the good old fashioned 11th commandment: thou shalt smash motherfuckers when they fuck with you.

[n]

Gag orders apply only to the participants in a trial. Rape shield laws only keepo certain evidence from juries.

If media want to print the names and sexual histories of alleged rape victims, they can. That's a settled matter of law. Most don't. Some do. Witness the Kobe Bryant case or, going back a long time, the William Kennedy Smith trial.

Jesse's right. This is a bad request and extemely hypocritical for th ACLU

[Ken Shultz]

If the judge rules against the newspaper and the newspaper prints the man?s name anyway, will the ACLU represent the newspaper pro bono?

[Shannon Love]

One does have to wonder just how effective a gag order will be in the internet era.

It would be trivial for somebody to anonymously post the man's identity in numerous locations on the web. Within hours the identity would be spread all over the world far beyond the jurisdiction of the court that issued the gag order.

The era when anybody can rely on the restriction on the flow of information to accomplish any goal is rapidly coming to an end.

[thoreau]

The era when anybody can rely on the restriction on the flow of information to accomplish any goal is rapidly coming to an end.

Interesting that you would say that.

What do you think about reporting on terrorist incidents?

BTW, for the record, I strongly disagree with the ACLU in this case. If anybody wants to know why I'm not canceling my membership, it's because I look at the big picture when deciding which groups to freely associate with, and overall I still think they do a lot of good. But, those who want to can flame me anyhow.

[Jim Walsh]

"This doesn't sound as novel as it is being portrayed."

True enough...unfortunatly, that won't stop the Bible-thumpers and the right-wing talk radio morons from Mau-Mauing this one into submission...

[Ken Shultz]

"...that won't stop the Bible-thumpers and the right-wing talk radio morons from Mau-Mauing this one into submission..."

ba ba ba ooh mau mau ba ba ooh mau mau...thump thump...ba ba ba ooh mau mau ba ba ooh mau mau...thump thump...

[Mona]

Shannon Love has it exactly right; that court does not have jurisdiction over the entire globe, much less the U.S. As newspaper accounts of the ACLU's motion travel around the 'net (as is happening here), the identity of the "frightened" plaintiff is sure to be also spread around.

I have not googled the question, but I would not be surprised if that name is already "out here."

"Roe" of Roe v. Wade could not have been anonymous in the Internet age. (Norma McCorvey (sp?) has long ago outed herself, anyway.) Look how long -- as in, not very -- before both bloggers and the MSM had started to zero in on Rather's confidential source for the bogus memos, a source who claimed to fear retaliation. Bill Burkett did not stand a chance of remaining anonymous.

No matter what the ACLU or any other lawyer requests, and no matter what any judge may order, henceforth the ability to maintain anonymity is almost certainly going to be very rare.

--Mona--

[Toxic]

While it is true that a gag order will not be 100% effective, I think it will probably be fairly effective.

Got to remeber, not everyone spends a lot of time on the net, or gets their news from it in any significant degree. Keeping a name out of the papers is still pretty effective; I'm a net newshound, and I still don't know the name of Kobe's rape victim. I could know; but it hasn't been shoved down my throat and I'm not motivated to find out (since its unlikely I know her anyway)

[Mona]

Toxic: But what you write is partially the point; people didn't much care about the identity of Kobe's accuser. Those who do can find it, however -- online.

There is much more interest in learning the names of anonymous, politically controversial sources. I don't think the identity of the plaintiff in the case the ACLU is litigating here is something many will clamor to know. But, for those who do wish to learn that name, they will.

And, if there are TONS of people who want to know who a confidential source is, as in the Rathergate affair, the likelihood of CBS or anyone else to maintain the anonymity of their source is now vanishingly small.

--Mona--

[Steve]

joe,

Gag orders & such are censorship, as in (by the closest dictionary I've got on my desk) "stopping the transmission or publication of material considered objectionable."

We've just been so trained to think censorship = evil (which it usually does) that it sounds funny to think of legitimate censorship. But a reasonable, lawful gag order is legitimate censorship. So is the supression of child porn, or information on troops movements.

To bring it back to the story at hand, I think this gag order is going way too far, unless there are reasons I don't know about to suspect that these threats are very serious. Even if the gag order is justified, I think it's stupid that the ACLU is involved. If the ACLU doesn't have anything pro-civil liberties to say on an issue, they should shut the hell up.

[joe]

Makes sense, Steve. But since the ACLU has never defended child porn or the publication of troop movements, Jesse's attempt to portray this as hypocritical falls flat. If stopping those things is "censorship," then the ACLU has supported censorship since its founding.

As for your last line, about the ACLU shutting up about anything that isn't their core mission; they're not just a lobbying shop, they're a law firm. Their attornies, once they take a case, are legally, professionally, and ethically bound to represent their clients' interests.

[Tim Higgins]

Steve,

It was my impression that the ACLU was involved as a litigant against the religous monument on government property. Seems like a pretty legitimate cause for ACLU involvement to me.

[Jason Bourne]

thoreau,

Nice question.

Mona,

And, if there are TONS of people who want to know who a confidential source is, as in the Rathergate affair, the likelihood of CBS or anyone else to maintain the anonymity of their source is now vanishingly small.

No one knows who "deep throat" was; and the court has so far had to file a contempt charge in the Plame affair. One can still keep sources anonymous.

[Jesse Walker]

Joe: I didn't suggest that the ACLU's position is "hypocritical."

For that matter, I didn't even suggest that I disagree with it, though as it happens I do.

[Mona]

Jason Bourne writes: "No one knows who "deep throat" was; and the court has so far had to file a contempt charge in the Plame affair. One can still keep sources anonymous."

1. Deep throat? That source was not an issue in the Internet age.

2. Who cares who the source was in the Plame affair?

--Mona--

[Cletus Nelson]

Jesse:

ACLU censorship isn't the oxymoron you'd think it is.

Back in the mid-90's when me and a buddy wrote and edited our affiliate's Drug Policy Committee newsletter, we were told to excise ANY references to the "will of the people," when we addressed government attempts to block the implementation of California's Medical Marijuana initiative.

As they were in the process of attempting to block Prop. 209 (an anti-affirmative action referendum) in federal court, we were told our states' rights rhetoric would "confuse" people.

Don't get me started! 🙂

[Jason Bourne]

Mona,

1. Deep throat? That source was not an issue in the Internet age.

Yet in the internet age we should be able to find out who this person is, right?

Let me quote you:

And, if there are TONS of people who want to know who a confidential source is...

Don't TONS of people want to know who deep throat is? Hell, entire books are written on who he/she might me.

2. Who cares who the source was in the Plame affair?

A lot of people do; entire weeks of press coverage have been devoted Plame. Honestly, I have to admit that I expected more than this lame response.

[Mark Draughn]

Reading between the lines a little, it looks like the ACLU got involved a while ago because of the issue of establishment of religion which is the main point of the litigation.

However, as is the case with any lawyer-client relationship, the ACLU lawyers have an ethical obligation to represent their client's best interests, not their own interests. If their client wants this motion, I don't think they have a choice.

(Eugene Volokh has more on this.)

[joe]

"Who cares who the source was in the Plame affair?"

You mean, besides the FBI, CIA, and a federal grand jury?

Well, there's that segment of the public who respect the need for covert activities, and who oppose abuse of power by the White House to punish its political opponents.

[Skeptikos]

Well, it does seem to be an incorrect focus to try to supress that information. I don't really find that reconcilable with free speech. I think that the ACLU is spending it's efforts in the wrong area. The real question is whether or not local law enforcement will withdraw protection form this individual.

The highest probablility is that local law enforcement will do exactly that. So that when the "mob" comes to get him, they won't be there. That's how they did down south when I was growing up.

The local KKK would burn crosses, threaten, and just generally hang around in full public. Making public, and identifiable threats, but local lawmen would just refuse to act on these examples of definitive threats, and then act suprised when a local black man would be found hanged.

On the other hand, this guy may take some grief. Well, the price of freedom. Didn't Jefferson say something like "The tree of liberty must be watered with the blood of tyrants and patriots alike, for this is it's natural manure" ? (I'm just going by memory, but that's real close)

If you stand up for your rights, you may meet community disapproval. That is inevitable. But should you expect to be "illegally harassed" which seems to be the real worry here.

And there is a difference between legal harassment, and illegal harassment. One has to do with public censure, the other a physical threat.

I have to admit, I'll be watching this one to the end. Interesting, it should tell everyone quite a bit of information about who we really are.
Ho hum.

[dhex]

clearly he's a man who doesn't know how to have fun with death threats.

of course, i'd move his family out of the area first, but whoo boy, you can really get the devotees in a tizzy if you try hard enough.