On Sat, 21 Apr 2001, Bill Stewart wrote:
> >Tim:
> > > It does _not_ say that writings may not be compelled to be disclosed
> > > in a court case, it does _not_ say that witnesses may not be
> > > subpoenaed, and it most certainly does _not_ say that John Doe, who
> > > may be a chatroom sysop or ISP, is somehow exempt from producing
> > > subpoenaed material in a criminal or civil trial!
>
> I'm a bit confused by Tim's use of the nym John Doe,
> since in cases like that, the John Doe isn't the sysop,
> John Doe is/are the unknown-to-the-court person or persons
> who made the allegedly libelous comments,
> and the court is or is not deciding whether to force the
> known sysop to reveal the names of the Does.
The distinction is irrelevant. What the 4th says is that any possession
(including press output) may be searched. It doesn't include speech
itself, the 5th guarantees that can NEVER be compelled.
> Some recent courts have made (IMHO good) decisions that say
> that the plaintiff needs to prove that the allegedly
> libelous or otherwise actionable statements
> are in fact actionable before forcing the sysop to reveal the names.
> There's some conflict between this and the right to
> confront your accusers in court - probably the real mechanism
> needs to be something like "preliminary decision,
> if yes, then out the Does, then retry the case",
> though if you've got two-way anonymous communication,
> the Does may be able to argue their preliminary anonymously.
Agreed that the 4th requires 'probable cause' prior to ANY search for ANY
reason in ANY condition, no exceptions. "It's quicker" or "It's cheaper"
not withstanding.
> Choate:
> >What IT DOES say is, that NO LAW MAY BE PASSED -
> >including ones that might 'compel' one to reveal them;
>
> That doesn't necessarily follow from the first amendment -
Actually it does, the 1st says "...no laws...", there are no "...,
but..." involved. It's worth noting that Tim's reference to the 14'th
about 'extending rights' is invalid, in no place in the 14'th is the word
'right' used, only 'privileges and immunities', neither of which are
equivalent to 'rights' (see the first two para's of the DoI for definition
of 'rights').
The intent was to let individual states decide according to their own
constitutions (see 10'th, there is NO limitation on speech applied to the
states themselves in the Constitution). The Constitution itself only
guarantees 'representative' governments in the states, it does not say
they have to be the same or otherwise allow the fed's to define what is
permissible. That is up to the people of the individual states (ie vote
with your feet).
The US is NOT the "Federated States of America", it's the "United States
of America", there is no question as to where issues not covered
explicitely in the Constitution (per the 10'th) should be decided. Note
that the potential for multiplicity in views, and as a result a difference
in state laws on fundamental issues, is EXACTLY what the Constitution was
meant to foster. It was not meant to create a society of homogenous state
laws over-seen by the fed's. It's why the Constitution DOES say that the
fed's will guarantee respect of one states laws by other states (why I
hold that if Texas for example doesn't allow pot and Louisiana did, if I
were a citizen of Louisiana I couldn't be prosecuted for pot possesion or
use under state law in Texas, the Fed's control 'interstate commerce' so
if I gave the pot to a Texas citizen it would be a federal issue and not a
state issue, and under the 1st the only thing the fed's can do is ship my
but back to Louisiana).
> Supreme Court cases in recent decades have been fairly consistent
> in interpreting freedom of the press to include the right to
> try to publish anonymously if you can figure out how,
> but they're addressing whether you can be punished for anonymity,
> not whether it's legal for someone to out you if you're careless
> (e.g. leaving your fingerprints on your anonymous leaflets),
> or whether someone who does know your identity can be compelled
> to reveal it.
What the SC does is irrelevent with respect to the form of basic
government and the 'balance of power', the Constitution says '...under
this Constitution...'.
If the SC wants to punish somebody for anonymit they can start with
'Publius'. The 'precedence' as well as original intent is clear.
> Besides, in most of these cases, the people who know the
> information are businesses, and under a Choatean theory of
> business regulation, businesses don't have rights and
> must be regulated, so telling the business to reveal what
> IT knows is perfectly ok, right?
Not hardly.
I never said business needs to be regulated, you should pay closer
attention. All I've ever said is business is nothing more than the
expression of INDIVIDUALS right to pursue happiness. To speak of a
business outside of that context is simply ignorant, misleading, or
insane. To speak of it under the Constitution in particular is just plain
silly. There is a reason that 'corporations' weren't 'artificial people'
until after Lincoln and his federalist cohorts destroyed the Constitution.
Under the Constitution if you want a 'business' to do something you must
first demonstrate (re 10'th) that you can compell the INDIVIDUAL who owns
it to do it (re 4'th).
____________________________________________________________________
The ultimate authority...resides in the people alone.
James Madison
The Armadillo Group ,::////;::-. James Choate
Austin, Tx /:'///// ``::>/|/ [EMAIL PROTECTED]
www.ssz.com .', |||| `/( e\ 512-451-7087
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