27 June 2014

A series of mostly good things and some things mixed in.

Abortion protesters

This one can't be blamed on horrid anti-choice conservatives, or decisions of powerful men not understanding the lives of women.

9-0 suggests that the underlying problem was a violation of freedom of speech unequivocally. There are provisions in the ruling that still permit cities and states to craft laws restricting obstructive, destructive, or vicious action. There is little evidence that "calm rational persuasion", of the variety of offering "counseling", literature, alternative services, etc, has much of any influence on decisions for or against abortions being performed. Most women have their minds well made up and the main feature that changes it is their health or changes in fetal health, not some stranger passing out literature. Despite this, I can't actually think of too many occasions where such activities should be restricted and prevented. I can think of occasions where a more generalized message opposing abortion on demand would be so counter-productive to deploy that I question the wisdom of standing around and trying to talk to every woman entering a clinic (for example, rape victims, or women who are in the aforementioned health circumstances and effectively have to abort a potential child they may have otherwise wanted, without any choice in the matter).

I can't likewise think of too many occasions where such activities should be mandated and imposed by force either, as many states have attempted to do by law and fiat imposing the properties required, the processes used, and affecting the timing of a medical procedure being offered and supplied primarily via private funds. And, sadly, such attempts have often succeeded. If an anti-choice protester encounters an individual who denies their "counsel" and presumptions of wisdom, they may not find that more assertive or aggressive tactics of "informational counseling" would have any more impact and indeed, on those grounds there may be a reasonable need for the state to intervene to protect the privacy and autonomy of the individual. By preventing such people from say, publicizing the identities of women they encounter without permission (I should think HIPPA would have to apply there), or preventing threatening activities, menacing, and other disturbances of public order and serenity, or allowing private property rights the ability to remove people who are trespassing and protesting there rather than in a public space, and so on. The court was careful to suggest that these forms of regulations were acceptable in the decision (many people are conflating these forms of action as speech in their outrage over the decision, suggesting they did not read the actual decision, or they would have seen this: "Massachusetts could also enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. §248(a)(1) , which imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services. Obstruction of clinic driveways can readily be addressed through existing local traffic ordinances.....The Commonwealth's interests include ensuring public safety outside abortion clinics, preventing harassment and intimidation of patients and clinic staff, and combating deliberate obstruction of clinic entrances. The Act itself contains a separate provision, subsection (e) -unchallenged by petitioners-that prohibits much of this conduct. ......We have previously noted the First Amendment virtues of targeted injunctions as alternatives to broad, prophylactic measures. Such an injunction "regulates the activities, and perhaps the speech, of a group," but only "because of the group's past actions in the context of a specific dispute between real parties." Madsen512 U.S., at 762. Moreover, given the equitable nature of injunctive relief, courts can tailor a remedy to ensure that it restricts no more speech than necessary. See, e.g., id., at 770 ; Schenck519 U.S., at 380-381 . In short, injunctive relief focuses on the precise individuals and the precise conduct causing a particular problem. The Act, by contrast, categorically excludes non-exempt individuals from the buffer zones, unnecessarily sweeping in innocent individuals and their speech."). The ruling was more limited in that a more general silencing of "counseling"* was not an acceptable government regulation in that it did not impact public safety. Silencing or removing from public spaces people whose speech we have little regard for, and whose speech was unasked for and generally annoying is not really a property that I find the state should be invested in carrying out activities, no matter how offensive or annoying such speech is to us as individuals.

There should be no requirement that a woman seeking an abortion should have to encounter a doctor or protester or friend or any other random person that counsels against such a decision during the entire process. Many states doing so suggests that the public or the minority governing bodies representing the said public do not and have not investigated the process, thinking, agonizing, moralizing, and practical obligations involved. But neither should there be any requirement that no one should be allowed to speak up. The wisdom of many of our life decisions is open to interpretations and criticisms by others. Who we marry or consort with sexually in our private affairs, when to have children, whether to have children, where to live, where to attend universities or what field of learning to embrace while there, how to educate or discipline our own children, and so on. In some of those cases, we are assessed and judged by random strangers, co-workers, and other middling associates with whom we share only a limited need, if any, for those assessments and opinions. We accordingly can assess little weight to those opinions, even where they are vociferously and persistently expressed.

The bigger problem with abortion isn't putting up with people who disagree with abortion expressing their opinions and beliefs. It's getting access to safe and legal methods in the first place.  This ruling does not significantly decrease that access in a way that many existing laws do and it is there that the majority of effort of reform should be placed in pushing back. Not against the right of dissenting views to be heard at a point which for them is of the gravest concern.

*- I do not regard most anti-choice demonstrations and their views as legitimate forms of "counseling", hence the scare quotes. But they are usually  types of speech that should be protected, however repugnant we find the format and location of expression. I find this issue very similar to the Westboro ruling a couple of years ago, or flag burning restrictions being overturned. Free speech for me and not for thee is not what the First Amendment says. If you don't like what someone has to say, that's not up to you to get the government to shut them up. The best the state can and should offer is time, place, and manner restrictions on the actual speech, which may in some effects be applied here still, and then protections against stalking, menacing, threats, eg, "behavior".


Aereo

This is fairly mixed. I'm tired of cable company regulatory monopolies. Anything that cuts the cord is great. My main concern is how we should be paying for content generation. If Aereo was offering a business model that reimbursed cable channels (but not cable companies) directly for streaming or rebroadcasting their content, great. I'm not as familiar as I should be with their business model clearly. It sounds like there was a bizarre dissent focusing on consumer choices in relation to how content was protected under intellectual property rights laws. Which doesn't make any sense really. It also sounds like a) it was intended to be a narrow ruling, so it doesn't resolve the grey zone that much of the Internet exists within as far as content generation and sharing, and b) it doesn't really tackle or suggest the fundamental need for intellectual property rights reforms which undo much of the very broad protections that current IP law offers.

Hiring and Canning. 

Basically a simple politics and political procedural issue. Boring for outsiders, but great for people who wanted to see executive power curtailed or constrained at all. Which I did, though this was hardly the most pressing concern among executive powers I'd like to have had constrained. I found the whining about the Senate being obstructionist mostly partisan in nature, but also mostly pointless because of reforms in the appointment process (no filibusters, just hearings and straight up or down votes).

Riley. Or, how your iPhone is sort of secure. Or at least needs a warrant to be not as secure.
This was probably my single favorite decision over the last several years in a civil liberties sense. Finally. Does it hint at a broader need for digital rights privacy and protection from search and seizure rules and government surveillance? Not yet. But it's a start. That police now require a warrant to search an arrestee's phone is not a serious obstacle to investigation of ongoing criminal activities, which is partly why the decision was made so easily and so convincingly (rarely can you get 9 people to agree on anything). Warrants can be obtained within minutes, and on site (in part thanks to the same mobile devices at issue in this case). Police would at least need to show cause for the warrant in the first place. This is unlikely to be more than a pro forma objection and rarely have advocates pushing back against such need, but it is still a stumbling block for some jurisdictions or some police procedures (seizing mobile phones with video on them for instance for the purposes of destroying evidence of possible police misconduct, as but one example, an activity for which some courts have begun to insist police be punishable and accountable for as illegal misconduct in its own right). So it rightly deserves to be seen as progress in the push back against civil liberties abridgements that took place in the wake of terrorism fears and the endless drug war.
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