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That page is terrible. Many so-called "two party" states are actually "all party" states. And there are more than two parties on every call: In many cases, the phone company is a "party" your call as well, who must consent to recording.

Can we Tape? is quite a bit better (though apparently a bit out of date).

Under the statute, consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.
...
Anyone whose communication has been unlawfully intercepted can recover actual damages in the amount of $100 per day of violation or $1,000, whichever is greater, and also can recover punitive damages, litigation costs and attorney fees.

Wash. Rev. Code 9.73.030: All parties generally must consent to the interception or recording of any private communication, whether conducted by telephone, telegraph, radio or face-to-face, to comply with state law. The all-party consent requirement can be satisfied if "one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted." In addition, if the conversation is to be recorded, the requisite announcement must be recorded as well.

http://www.rcfp.org/taping/states/washington.html

That would depend on the state law. Most states only require one person to be aware that the call is being recorded. Only 12 require that all parties be aware of the recording.

http://www.callcorder.com/phone-recording-law-amer ica.htm
http://www.rcfp.org/taping/states.html

Also I recall someone taping a Customer Service call to AOL (iirc) and noting that the automated system said "Your call may be monitored or recorded, etc, etc" the obvious inference being recorded by AOL, but not explicitly stated that way, and could easily be taken as granting permission to record the call. Maybe they had a disclaimer on their recorded message too.

it's illegal to tape a telephone conversation without both parties' consent.

Wrong. It depends on the state you're in, and most states do not require the consent of both parties. http://www.rcfp.org/taping/

Cal. Penal Code 631, 632: It is a crime in California to intercept or eavesdrop upon any confidential communication, including a telephone call or wire communication, without the consent of all parties.

It is also a crime to disclose information obtained from such an interception. A first offense is punishable by a fine of up to $2,500 and imprisonment for no more than one year. Subsequent offenses carry a maximum fine of $10,000 and jail sentence of up to one year.

Eavesdropping upon or recording a conversation, whether by telephone (including cordless or cellular telephone) or in person, that a person would reasonably expect to be confined to the parties present, carries the same penalty as intercepting telephone or wire communications.

Conversations occurring at any public gathering that one should expect to be overheard, including any legislative, judicial or executive proceeding open to the public, are not covered by the law.

An appellate court has ruled that using a hidden video camera violates the statute. California v. Gibbons, 215 Cal. App. 3d 1204 (1989). However, a television network that used a hidden camera to videotape a conversation that took place at a business lunch meeting on a crowded outdoor patio of a public restaurant that did not include "secret" information did not violate the Penal Code's prohibition against eavesdropping because it was not a "confidential communication." Wilkins v. NBC, Inc., 71 Cal. App. 4th 1066 (1999).

Anyone injured by a violation of the wiretapping laws can recover civil damages of $5,000 or three times actual damages, whichever is greater. Cal. Penal Code 637.2(a). A civil action for invasion of privacy also may be brought against the person who committed the violation. Cal. Penal Code 637.2.

Note to self: hit preview to perserve lists. Here it slightly easier to read. Sorry about that.

The following states require only ONE person to be aware of it being taped. That can be the person recieving the call. Alabama, Alaska, Arizona, Arkansas, Colorado, Delaware, District of Columbia, Georgia, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolinas, North Dakota, Ohio ,Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, Wyoming.

The follow require all parties to consent. California, Connecticut, Florida, Illinois, Maryland, Massachusetts,
Michigan Montana ("the law does not apply to public officials or employees speaking in the course of their duties, to anyone speaking at a public meeting, or to anyone who has been warned of the recording." I think cops are public officals.)
New Hampshire (A misdemeanor if you have only one, felony if you have none) Pennsylvania ("consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.")
Washington

Other Vermont "There is no legislation specifically addressing interception of communications in Vermont, but the state's highest court has held that surreptitious electronic monitoring of communications in a person's home is an unlawful invasion of privacy. Vermont v. Geraw, 795 A.2d 1219 (Vt. 2002); Vermont v. Blow, 602 A.2d 552 (Vt. 1991). The state's highest court, however, also has refused to find the overhearing of a conversation in a parking lot unlawful because that conversation was "subject to the eyes and ears of passersby." Vermont v. Brooks, 601 A.2d 963 (Vt. 1991)."

from http://www.rcfp.org/taping/

Chances are it is legal where you are. Only a few states require all parties to consent. Most only require one party (the reciever) The following states require only ONE person to be aware of it being taped. That can be the person recieving the call. Alabama Alaska Arizona Arkansas Colorado Delaware District of Columbia Georgia Hawaii Idaho Indiana Iowa Kansas Kentucky Louisiana Maine Minnesota Mississippi Missouri Nebraska Nevada New Jersey New Mexico New York North Carolinas North Dakota Ohio Oklahoma Oregon Rhode Island South Carolina South Dakota Tennessee Texas Utah Virginia West Virginia Wisconsin Wyoming The follow require all parties to consent. California Connecticut Florida Illinois Maryland Massachusetts Michigan Montana ("the law does not apply to public officials or employees speaking in the course of their duties, to anyone speaking at a public meeting, or to anyone who has been warned of the recording." I think cops are public officals.) New Hampshire (A misdemeanor if you have only one, felony if you have none) Pennsylvania ("consent is not required for the taping of a non-electronic communication uttered by a person who does not have a reasonable expectation of privacy in that communication.") Washington Other Vermont "There is no legislation specifically addressing interception of communications in Vermont, but the state's highest court has held that surreptitious electronic monitoring of communications in a person's home is an unlawful invasion of privacy. Vermont v. Geraw, 795 A.2d 1219 (Vt. 2002); Vermont v. Blow, 602 A.2d 552 (Vt. 1991). The state's highest court, however, also has refused to find the overhearing of a conversation in a parking lot unlawful because that conversation was "subject to the eyes and ears of passersby." Vermont v. Brooks, 601 A.2d 963 (Vt. 1991)." from http://www.rcfp.org/taping/

Testimonial privileges require a court to weigh the government's evidence as to why they need her testimony. Yet Judith Miller was tried, convicted and sentenced to prison based exclusively upon written evidence from witnesses whose identities and testimony were kept secret from her and her lawyers. They were given no opportunity to defend her against, question, or rebut the secret evidence the courts relied upon exclusively in convicting her. Indeed, a full eight pages of the D.C. Court of Appeals decision discussing and analyzing this secret evidence was redacted from the published opinion.
Source

Feb. 7, 2006 Significant sections of a previously redacted judicial opinion were released Friday after an appellate court ruled that certain information about grand jury testimony in the CIA leak investigation is no longer secret.

Dow Jones Inc. had filed a motion asking the U.S. Court of Appeals in Washington, D.C., to release eight redacted pages from Judge David S. Tatel's concurring opinion in a February 2005 court ruling that then-New York Times reporter Judith Miller and Time magazine's Matt Cooper must testify before a grand jury that was investigating who leaked the identity of CIA operative Valerie Plame to the press.

Judge Tatel, in one of three concurring opinions written by the three-judge panel, found that there is a common law privilege but that special prosecutor Patrick Fitzgerald had overcome it. Tatel explained how Miller's testimony was critical to the investigation, how the grand jury had exhausted all other available resources, and that the public interest favored compelling her testimony. In doing so, eight pages of his decision were sealed from the public to preserve grand jury secrecy and to protect classified information.

The same three judges replied to Dow Jones' motion Friday and allowed large sections of Tatel's decision to be released, stating, in a decision written by the court as a whole, "we are satisfied here that there is no longer any need to keep significant portions of the eight pages under seal. Libby's indictment, now part of the public record, reveals some grand jury matters, and we see little purpose in protecting the secrecy of grand jury proceedings that are no longer secret."

No, actually that is not true in some states (12 to be exact) which require the consent of all parties and in all but Montana (which has only a criminal penalty) there can be criminal and civil penalties for violations and in some additional penalties if the taped conversation is disclosed.

Recording Laws at a Glance

A telephone mic may do the trick for you. They have a litle suction cup that attaches to the handset and picks up the signal from the speaker. Since your voice is also being fed back to the earpiece, it picks up both sides of the conversation. They're usually designed for regular handsets, but if the earpiece speaker is strong enough and I'd think it would work with a cell phone as well.

Assuming you're in the US, if you want to be able to use that recording as proof in any kind of legal proceeding you'll need to be *really* sure you're adhering to the law if either you or they are in a state that requires the consent of all parties to record a conversation. This site has a pretty good overview of what the laws are for the various states, and for recording in general.

The attention paid to anyone on the street with a camera has gone up since 9/11. If you spend much time taking pictures of a federal building you'll probably get to talk with the security guards. If you are actually standing on their grounds when you take the shots they'll confiscate your gear and at the very least give it a thorough going through before giving it back.

You also have some people who just don't want their stuff photographed. If you look too professional while shooting the Flat Iron building in New York their guys will come tell you that the building's likeness is protected and you can't shoot it, which is wrong but they'll give it a go anyway. I've kept my camera in the face of doped up militia troops in the Congo though, so I'm a harder target for them than most.

Be very, very careful. Do not trust the other people here who are waving their hands saying, "oh, it's perfectly legal under such and such circumstances."

Really, you need to talk to a lawyer, but you could at least start investigating the legality of the topic by reading a guide from The Reporters Committee for Freedom of the Press titled, "Can we Tape?"

One very brief excerpt from the linked page:

"...there are important questions of law that must be addressed first. Both federal and state statutes govern the use of electronic recording equipment. The unlawful use of such equipment can give rise not only to a civil suit by the 'injured' party, but also criminal prosecution."

In other words, if you don't know precisely what your rights are and what the rights are of each of the other parties involved (i.e. if you get transferred from one person to another, or worse, if you get transferred from one person to another that are in different call centers located in different places where different laws apply), the business you're interacting with could come down on you like a ton of bricks.

Talk to a lawyer, get a detailed answer from him or her in writing, and then tread carefully.

Not exactly anyone. First, all the state shield laws define who is intended to protect. IE, it says who is and who isn't considered a reporter, press ect.

I didn't realize there was such a difference in legal definitions until someone pointed me to this page. More can be found here. In california though, he seems to be considered a jounalist for a number of reasons but the most compelling is that a news agency already purchased some of his work reguarding this.

If some one witnessed a crime first hand, I don't see a problem with compelling them to give testimoney or evidence. If they didn't witness it first hand, then I can understand the hesitation. Lots of criminals get away with if because the witness is given an option to not provide evidence. This allows the criminals to create a sence of fear of reprisals if the witness helps. If they were compelled to testify or turn over evidence, this fear would be pointless. But that is a chicken and egg problem.

Many people who claim the press "should be free no matter what" would change thier minds if the press witnessed a crime commited directly against them. I have seen these positions reverse first hand when someone recorded a vehicle breakin resulting in over $5,000 in damages. The champion of free speech and freedom of the press turned into a whinning wimp complaining that the criminals (who he thinks he knows) would be caught if they could view the tape. Unfortunatly the tapes were destroyed as the story goes but after letting the person know that they recorded the crime and refusing to let the cops see it. Of course i doubt the reporter actualy recorded the instance, he was more likley antagonizing the person because of some other issues between them.

Not exactly anyone. First, all the state shield laws define who is intended to protect. IE, it says who is and who isn't considered a reporter, press ect.

I didn't realize there was such a difference in legal definitions until someone pointed me to this page. More can be found here. In california though, he seems to be considered a jounalist for a number of reasons but the most compelling is that a news agency already purchased some of his work reguarding this.

If some one witnessed a crime first hand, I don't see a problem with compelling them to give testimoney or evidence. If they didn't witness it first hand, then I can understand the hesitation. Lots of criminals get away with if because the witness is given an option to not provide evidence. This allows the criminals to create a sence of fear of reprisals if the witness helps. If they were compelled to testify or turn over evidence, this fear would be pointless. But that is a chicken and egg problem.

Many people who claim the press "should be free no matter what" would change thier minds if the press witnessed a crime commited directly against them. I have seen these positions reverse first hand when someone recorded a vehicle breakin resulting in over $5,000 in damages. The champion of free speech and freedom of the press turned into a whinning wimp complaining that the criminals (who he thinks he knows) would be caught if they could view the tape. Unfortunatly the tapes were destroyed as the story goes but after letting the person know that they recorded the crime and refusing to let the cops see it. Of course i doubt the reporter actualy recorded the instance, he was more likley antagonizing the person because of some other issues between them.

Really? >>> http://www.rcfp.org/privilege/index.html

Simply another 100% incorrect, disengenuous, bullshit post moderated +5 by the depressingly thick Slashdot crowd too lazy to expend seconds Googling a topic. If it feels good it must be right, right? Play reporter for a day and investigate reality. You might find the change refreshing and your republic will be the better for it... hey, is Futurama on !!?!?

N. H. Rev. Stat. Ann. 570-A:2: It is a felony to intercept, or disclose the contents of, any telecommunication or oral communication without the consent of all parties. However, it is a misdemeanor for a party to a communication, or anyone who has the consent of only one of the parties, to intercept a telecommunication or oral communication. Civil damages are expressly authorized for unlawful interceptions for the greater of actual damages, $100 a day for each day of violation, or $1,000 in addition to punitive damages, attorney fees and litigation costs. N.H. Rev. Stat. Ann. 570-A:11. Use of a hidden camera in a private place without the consent "of the persons entitled to privacy therein" is a misdemeanor. N.H. Rev. Stat. Ann. 644:9. A classroom was not a private place where a school custodian could reasonably expect to be safe from video surveillance. State v. McLellan, 744 A.2d 611 (N.H. 1999). from http://www.rcfp.org/taping/states/newhampshire.htm l Notice the phrase "of the persons entitled to privacy therein" NO WAY can that apply to the cop on the doorstep.

Florida: According to the Florida Supreme Court, the concept of implied consent extends to any type of property where a newsworthy event has occurred, "whether or not the place of the (event) is a burned out home, an office or other building or place." (Florida Publishing Co. v. Fletcher)

Florida: According to the Florida Supreme Court, the concept of implied consent extends to any type of property where a newsworthy event has occurred, "whether or not the place of the (event) is a burned out home, an office or other building or place." (Florida Publishing Co. v. Fletcher)

Florida: According to the Florida Supreme Court, the concept of implied consent extends to any type of property where a newsworthy event has occurred, "whether or not the place of the (event) is a burned out home, an office or other building or place." (Florida Publishing Co. v. Fletcher)

Florida: According to the Florida Supreme Court, the concept of implied consent extends to any type of property where a newsworthy event has occurred, "whether or not the place of the (event) is a burned out home, an office or other building or place." (Florida Publishing Co. v. Fletcher)

recording calls to businesses might be good practice.. is that legal?

The second you hear "This call may be recorded..." it is legal to record in the US, in all states.

For more information check out: http://www.rcfp.org/taping/

I am not a lawyer, these folks are or have consulted one, use at your own risk.

Wow, I was sure you were wrong on the one party rule but a search showed my otherwise. Here is a link with more details of the different states.

Fewer than half. Some of those have been invalidated. Prosecution under those that remain is exceedingly rare. For all intents and purposes, libel is civil. http://www.rcfp.org/handbook/c01p10.html

Don't be so sure. What the government is doing is not something that the Bush administration just came up with. It is doctrine with long-standing in Anglo-American law called the State Secrets Doctrine and it has been successfully invoked in the past, including the very recent past. Only a year ago it was successfully invoked to terminate the whistleblower retaliation lawsuit by Sibel Edmonds, the former translator for the FBI who revealed incompetance and security breaches. The way it is supposed to work is that the head of the relevant agency (by law the only person who can invoke the doctrine) certifies to the court that continuation of the case would require the disclosure of information damaging to national security. The courts give great deference to such certification.

Even an advocate of open government such as myself can see reasons for having such a doctrine. Suppose that a deep cover agent of the US, who is providing critical intelligence about a hostile foreign power, cheats somebody in a business transaction. The person cheated sues. It could easily be the case that the information disclosed in the course of the suit would make the agent look suspicious. In a case like this, there would be a legitimate reason for the government to want to put a stop to the lawsuit. (One would of course expect the government to assume the financial burden for its action and compensate the injured party, but that's a different issue.)

The problem is that the doctrine relies on the truthfulness of the certification that national security would be damaged if the suit were to proceed. It assumes that he or she is telling the truth in claiming that the damage would really be to national security rather than embaressment to government officials or disclosure of their criminal activities. It also assumes that there isn't a workaround, e.g. limitations on certain evidence, requirement that evidence be seen only by attorneys with security clearance, in camera review of evidence by the judge, so that the only way to prevent the damage is putting an end to the lawsuit.

Unfortunately, it isn't safe to assume that agency heads will certify truthfully. That is particularly true of this administration. I say that not just on grounds of the unusually high levels of dishonesty and and self-serving hallucination in this administration but because we have strong reasons to believe that they have repeatedly lied about security issues. There are the bald-faced lie that the US does not countenance torture, the lies about the reasons for invading Iraq, and the laughable rationalization for warrantless surveillance. They have repeatedly made the bizarre claim that the disclosure of warrantless surveillance itself damaged national security. How could that POSSIBLY be? It told nobody anything about the US's surveillance capabilities, how it is done, or who is targetted. The only thing that was disclosed was that they are not getting warrants. As far as I can see, the only way in which this could lead to a security problem would be if the Foreign Intelligence Surveillance Court had a leak, so that terrorist organizations were falsely assumin that they knew when they were under surveillance. The Bush administration hasn't come up with any explanation for how this disclosure could have security implications - they just yammer about it loudly and hope that nobody will notice what a crock this is.

I hope that the EFF and other plaintiffs in these suits will be able to persuade the courts to require an offer of proof from the government. Unfortunately, I am concerned that they will not succeed in this, due to the dangerous and undemocratic, but established tradition of deference the government in such cases.

Not where I live: http://www.rcfp.org/taping/.

For the curious, here's a list of how each of the fifty U.S. states handle tape recording of telephone calls.

Our judicial system is fucked if they don't bring charges against Mr. Chase for slandering Mr. Siegenthaler.

Here's a project for ya:

- Go to eBay and buy one. (wait for the DRMO auction for the 7-track unit)
- Build a box to acess the drive - not real hard for a good hardware hacker
- build a Linux driver to access it (presuming no driver exists already for the card you connect it to)
- get the tapes via FOIA

Conclusion: get the data for next to nothing.

Oh, yeah, one last step:

- ship the 245,000 smackers you didn't use to my house, in .9999 gold coins please.

Lac

For instance, New Hampshire (just picked at random).
'N. H. Rev. Stat. Ann. 570-A:2: It is a felony to intercept, or disclose the contents of, any telecommunication or oral communication without the consent of all parties.'

For instance, New Hampshire (just picked at random).
'N. H. Rev. Stat. Ann. 570-A:2: It is a felony to intercept, or disclose the contents of, any telecommunication or oral communication without the consent of all parties.'

Here is all of *real* information regarding reporter privilege. Reporter Privilege site

It matters not whether bloggers are journalists. Judges can compel journalists (or "journalists") to reveal their sources for a variety of reasons, most pertinent being if a crime has been committed, gathering evidence for a civil trial or any other reason for which a judge decides to subpoena a journalist.

As I said, in many jurisdictions in the US it is legal to record telephone conversations with the consent of only one party. If I'm talking to you on the phone (intra-state) in many cases I can legally record the conversation without saying a word to you about it.

The charges against Linda Tripp were dropped after the court decided that Monica Lewinsky was not a credible witness to the crime. http://archives.cnn.com/2000/ALLPOLITICS/stories/0 5/24/trippcase.cnn/index.html

Linda Tripp sued the Pentagon for the leaking of details in her personnel file. The Pentagon settled for $595,000, all of which apparently went to pay for Tripp's legal expenses. http://www.cnn.com/2003/US/12/02/tripp/index.html

But I agree, you should be careful with that. Laws vary by state. http://www.rcfp.org/taping/states.html summarizes the law for each state.

Take a look at the Tape Recording Laws at a Glance.
http://www.rcfp.org/taping/quick.html

Tape-recording laws at a glance

In California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, Pennsylvania, and Washington, IT IS ILLEGAL to record conversations without the consent of ALL parties involved.

And if you are engaging in a telephone conversation across state lines, you are subject to federal regulations as well.

... is always going to be problematic given the legal implications. Different states have different laws, and things only get worse once you factor in the international implications. (Come to the EU and you have to deal with data protection problems as well as interception of communications problems.) So I don't see Skype offering this anytime soon.

The Reporters' Committee for Freedom of the Press has a superb guide ("Can we tape?") to state and federal laws: http://www.rcfp.org/taping/.

The 31 states which have enacted a "shield law" would beg to differ with you.

In ALL states you can record a call with two party consent. In MOST states (but not PA), you can record the call even if only ONE party knows it's being recorded.

Of course, you probably need to check the laws of both states before you make the call. I'm in a single-party consent state, but I could potentially be found guilty in a PA court if I recorded you without your consent. Federal law requires only one-party consent, though, so I don't really know how the laws would interact.

Here is a handy site with laws for the various states. They have a section on interstate calls too.

Not necessarily. Interstate taping has gone both ways in the courts. See some examples here.

The 1st Ammendment doesn't protect a citizen from being responsible for what they say - there still is accountability. It only prevents the creation of a law.

Quoted from The Reporters Committee for Freedom of the Press:
"The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

It helps to actually read the Ammendments beforehand.

Your citing of the abortion doctor case is relevant, but doesn't prove your point. In the abortion doctor address case, doctors were ACTUALLY MURDERED. The people publishing the information were being held liable for the deaths of doctors killed and injured. A jury awarded Planned Parenthood $107 million in the case. It still is being battled out in the courts. Here's a great legal discussion of the case.

Note the difference here. That's a civil case where a victim of violence is suing a 'publisher'. This Indymedia situation would appear to be a criminal case in that the FBI doesn't confiscate stuff unless they are looking to put people in jail for something. Hopefully nothing has happened to anyone listed on the Indymedia site.

No one has said a website can't publish the names and addresses of abortion doctors. A jury has said that someone who did is responsible for the deaths and injuries committed against people on said list. It also didn't help the Nuremburg Files website defendents that they were marking off pictures of doctors as they were killed or greying them out if they were only injured. It functioned as a sort of scorecard for psychopaths.

In terms of free speech, prior restraint is a serious defense that has been upheld in countless cases. The Supreme Court describes prior restraint as "the most serious and the least tolerable infringement on First Amendment rights." In the IndyMedia and the Nuremburg Files case, the government is going to wait and see what the result is of speech rather than intercede with assumptions on what could happen. Probably what has happened with the IndyMedia situation is that the govt. is harrassing them by claiming that something posted was stolen from a comprimised server and they are confiscating the hard drives to investigate the theft of the data.

Here are the exemptionsexemptions.

The Reporters' Committee for Freedom of the Press has an excellent guide to the laws regarding taping in all 50 states.

Here's their section on New Hampshire law:

N. H. Rev. Stat. Ann. 570-A:2: It is a felony to intercept, or disclose the contents of, any telecommunication or oral communication without the consent of all parties. However, it is a misdemeanor for a party to a communication, or anyone who has the consent of only one of the parties, to intercept a telecommunication or oral communication.

Civil damages are expressly authorized for unlawful interceptions for the greater of actual damages, $100 a day for each day of violation, or $1,000 in addition to punitive damages, attorney fees and litigation costs. N.H. Rev. Stat. Ann. 570-A:11.

Use of a hidden camera in a private place without the consent "of the persons entitled to privacy therein" is a misdemeanor. N.H. Rev. Stat. Ann. 644:9. A classroom was not a private place where a school custodian could reasonably expect to be safe from video surveillance. State v. McLellan, 744 A.2d 611 (N.H. 1999).

One is that the law of libel and slander is part of English Common Law; as such, it pre-dates the U.S. Constitution, never mind the First Amendment,

Why does a foreign code matter at all, just because it happens to be older? Hammurabi's Code predates both the Constitution and Common Law, so by your reasoning, I guess it's "still" in force.

there's no sense in which subsequent acts of Congress governing it have *abridged* the right to free speech by making it less free.

Of course there's no sense- nobody said something foolish like that. Obviously, North American free speech rights were *created* by Congress in proposing the Bill of Rights. They extended it well beyond traditional English law. Where did you get "abridged"?

The second is that defamation is not a crime; you *do* have the right to libel or slander someone. But they have the right to sue you when you do.

Are you claiming that libel is not a criminal offense? That's just wrong. It's on a state-by-state basis.