FDR did not pack the court with statists. In fact, the proposal he had advanced (of adding more justices to the supreme court), never went through. Instead, one justice on the court changed his mind about how to approach these matters and turned what had once been a 4-5 court into a 5-4 court. http://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine
But go ahead and blame FDR, that's easier than learning about history.
The reason it takes so long to check the list is that the airlines are not giving the manifest data back to the TSA. The TSA updates the lists, but it doesn't have access to the manifests, so it cannot check. Instead, the airlines check the lists whenever they chose, but no less than every two (previously eight) hours.
The big government solution would be to compel the airlines to provide the data to the TSA, which can then check the manifests against the lists as the data comes in. But privacy advocates and European governments are opposed to giving the "big government" real time access to people's travel plans. The government has been willing to accept the current system as a compromise.
Ultimately, the question is whether you want to allow the private sector to actually perform the no fly list reconciliation and keep your data relatively secret, or whether you want the government to be able to instantly identify people on the no fly list, but have access to your movements via air travel.
The choices are not great, and I won't express my preferences.
Except that, in a lawsuit, you can only recover for the damages you suffer. As one of those personal injury lawyers people are always talking about, a case with a slightly cut hand is not worth the time and money involved. A case with an amputated hand is going to have substantial medical bills and other economic losses, which would justify the time and expense involved in prosecuting the case.
What you're talking about is the difference between a ~$1 case, and (potentially) a $2,000,000.00 case. As a matter of professional ethics, I'm not going to spend $150,000 hiring expert witnesses to recover $1.
Great. How do we get the data for those long-term studies?
Do we do the experiment and then check the patients for an extended period of time? But before we can get there, we have to do the experiment.
Also, how do you know what Dr. Centeno tells his patients in the process of obtaining informed consent. I know the man professionally, and have found him to have the highest ethical standards. I don't know the precise information he provides when he obtains informed consent, but neither do you.
Isn't that the nature of an experiment, though? I mean really, when you do the experiment, you don't have proof to back up your claims. You have a hypothesis.
Now, in his case, there is actually some proof. Apparently, these kinds of stem cell treatments have been shown to be efficacious in animal trials, right? So actually, there is some basis for believing that they will do so in human trials as well.
At the same time, however, he doesn't have data showing that his treatments work. But he is gathering that data and publishing his studies in peer-reviewed journals. So, in fact, he is engaged in the science of medicine.
In a few years, if he's right, he'll be a pioneer in stem cell treatment. If he's wrong, he'll have to face the legal, ethical, and professional consequences of his failed experiment.
But, I'm sure you'll agree, it's a bit hasty to claim that he is "a con man bring shit that doesn't work to the people." As you must acknowledge, there is no proof EITHER WAY as to whether the treatments work in human beings.
Please, do try to restrain yourself from defaming people you don't know.
A bug that you know about. If, by chance, you find yourself in an accident, and get sued, I doubt a jury is going to look kindly on the "I passed up on the fix for the known bug because I thought it might brick my car" defense. If you pass on the deal, you are essentially taking full responsibility for Toyota's bad code.
Not exactly. They need a reasonable belief. See, because the Bill of Rights does not apply to private actors. Instead, the store-customer relationship is governed by longstanding principles of common law. At common law, you have the right to freedom of movement, and can sue individuals who wrongfully and intentionally limit your freedom of movement by confining you to a bounded area. This is the tort of false imprisonment. However, a store keeper has a limited privilege to infringe your right where he reasonably believes that doing so is necessary to protect his property. So the while the mere failure to show a receipt upon leaving a store may not be sufficient to justify a store owner's decision to detain you, if there are other facts that the store owner is aware of, such a detention may be legally authorized.
Technically, FRCP 5.2(a) only requires redaction of the first 5 digits. Since these digits are the ones that can easily be guessed, the redaction rules are ineffective at achieving their primary purpose, which is the prevention of the dissemination of an individuals SSN.
It's even better than that. Consider that the Federal Rules of Civil Procedure call for the redaction of all but the last four digits of an individual's social security number if it must be part of a court record (for example a discovery response).
Much of the discovery I have seen asks for the party's date of birth, place of birth, and social security number. While the rule "protects" the SSN from release by redacting the first five numbers, with a typical set of interrogatory responses, and the techniques pioneered by these researchers, I can get the holy trinity of identity theft information: SSN, DOB, and location of birth.
Even worse, most of the country now uses PACER for electronic filing in Federal Courts. For $.08/page, anyone can access filings in a Federal case. This seems ripe for abuse.
You have to understand the legal arenas in which the cases you look at are decided. The strip-search case involved a state actor who engaged in conduct arguably prohibited by the U.S. Constitution. That gave rise to a 1983 action (a suit for damages based on a violation of your Constitutional Rights). In those kinds of cases, there is a defense called qualified immunity. It can be invoked by state actors to say "The rule I broke was not well settled by the Supreme Court. I did not know I was violating your rights. Because I did not know, and there was no way for me to know, I should not be held liable."
But that defense only comes up where a state actor is sued for violating someone's rights. This case involves a criminal prosecution against a private citizen. The private citizen does not have a "I didn't know" rule. In fact, the general rule is that ignorance of the law is not a defense. He can still defend himself by arguing that Tennessee's law is unconstitutional, but he cannot say that he did not know that what he was doing was illegal.
Is "Posting Anonymously" any less anonymous because I use a pseudonym online? At the end of the day, aren't most slashdotters really anonymous cowards?
I sign my posts --AC because there's little difference between anonymous internet postings behind a handle, and anonymous internet postings with no handle.
I am sorry that you find the annual foolery un-funny. I typically find portions of the April Fools Day slashdottery humorous, and other parts tedious. This particular bit got a chuckle today.
Perhaps you should consider altering your browsing habits on this one, entirely predictable, date. That way, you won't be tempted to bring down anyone else's enjoyment of the holiday.
Waivers have to be in writing witnessed by three parties?
Are you smoking Matanuska Thunder*uck?
Morons waive their rights on a daily basis without a writing or a witness. Any time an officer says "Hey, mind if I look in your backpack?" and the moron says "Nope, not at all officer!" the moron has waived his rights. All that is required to show a waiver of a right is evidence that the defendant knowingly and voluntarily allowed the officer to conduct a search. Hell, criminals waive their Miranda rights all the time, and by law, they have to be read those rights. If you're ever incarcerated, be smart and stfu. The only words that should ever come out of your mouth after your arrest are "I want a lawyer." If you need to pee, and you don't have a lawyer, wet yourself before speaking with the police. Because if you invoke your right to remain silent, and then you start talking to them, a trial judge may well find that you waived your rights.
The general rule is that arguments raised for the first time on appeal are waived. That means that the appellate court should summarily dismiss those arguments.
For example, would it type my username as Goobermunch or Gobermunch? How would it know the difference? How does Swyping accommodate the William Wallaces of the world? Are they doomed to being Wiliam Walaces?
The press release leaves the question open. The ability to detect a repeated input seems to be an advantage of keypad type input. Perhaps, if you dwell for a sufficiently long period of time, it will count the character beneath the stylus twice.
Right, but if the rationale for the conviction for possessing the anime images was "merely" that the defendant possessed child pornography, his conviction would be impermissible without meeting the Miller Obscenity Test, correct?
That's because the rationale for banning child pornography is largely based on the negative impacts that child pornography has on actual children. See, for example, Ashcroft v. Free Speech Coalition, where the Supreme Court struck down the predecessor to the statute at issue here because it did not require proof that an actual child was involved in the production of the alleged child pornography.
So what makes these images illegal is not that they depict children having sex. It is that they depict children having sex in an obscene manner. In other words, not all hentai is illegal. Only obscene hentai is illegal.
Finally, if you'd read the opinion, you'd know that, in this case, Mr. Whorley was downloading the images to a computer at what appears to be the local state employment office. Thus, Stanley v. Georgia (the case holding that mere possession of obscene materials in the privacy of ones own home is protected by the penumbra of rights between the first and the fourteenth amendment) is inapposite. The Fourth Circuit also explained why, although Stanley v. Georgia holds that mere possession is not punishable, distribution of obscenity may violate the law.
"But Stanley's holding was a narrow one, focusing only on the possession of obscene materials in the privacy of one's home. The Court's holding did not prohibit the government from regulating the channels of commerce. In an unbroken line of Supreme Court decisions since Stanley, the Court has repeatedly rejected the notion, urged by Whorley, that as a matter of logic, because the First Amendment prohibits the criminalization of private possession of obscene materials within the home, there exists a correlative "right to receive" obscene materials. See United States v. Reidel, 402 U.S. 351, 354-55 (1971) (explicitly rejecting the notion that Stanley's recognition of the defendant's right to possess obscenity meant that "someone must have the right to deliver it to him" through the channels of commerce (internal quotation marks omitted)); see also Smith v. United States, 431 U.S. 291, 307 (1977) ("Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home"); United States v. Orito, 413 U.S. 139, 141 (1973) (holding that Stanley's tolerance of obscenity within the privacy of the home created no "correlative right to receive it, transport it, or distribute it"); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971) ("That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce")."
However, your comment does raise an interesting legal question. What would be the result if Mr. Whorley had merely possessed the obscene anime images in his home, rather than in a public place? If the police were able to access Mr. Whorley's YAHOO account and locate the images in that account, then, most likely, the conviction would stand (as the statute specifically prohibits "moving" the images in interstate commerce). However, if they were unable to determine how Mr. Whorley obtained the images, then I would argue Stanley applies, and the images would not violate the provisions of the act.
So obviously, I was too brief in my comment, so let's put the big asterisk by the brief conclusion:
UNDER CURRENT FEDERAL STATUTORY AND DECISIONAL LAW, child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene.
The key here being that because the First Amendment doesn't protect obscene speech, there is no First Amendment issue with these convictions.
Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors.
By my read, the key factor that made these prosecutions legitimate from a First Amendment standpoint is not that they were "child pornography," but that they were obscene.
Slashdot Mirror
Please, please, please. Learn your history.
FDR did not pack the court with statists. In fact, the proposal he had advanced (of adding more justices to the supreme court), never went through. Instead, one justice on the court changed his mind about how to approach these matters and turned what had once been a 4-5 court into a 5-4 court. http://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine
But go ahead and blame FDR, that's easier than learning about history.
--AC
There is a great brief filed by a Colorado Public Defender addressing this issue (specifically the word Fuck and its history and uses).
The brief can be found at: http://scofacts.org/The-F-Motion.html
--AC
The reason it takes so long to check the list is that the airlines are not giving the manifest data back to the TSA. The TSA updates the lists, but it doesn't have access to the manifests, so it cannot check. Instead, the airlines check the lists whenever they chose, but no less than every two (previously eight) hours.
The big government solution would be to compel the airlines to provide the data to the TSA, which can then check the manifests against the lists as the data comes in. But privacy advocates and European governments are opposed to giving the "big government" real time access to people's travel plans. The government has been willing to accept the current system as a compromise.
Ultimately, the question is whether you want to allow the private sector to actually perform the no fly list reconciliation and keep your data relatively secret, or whether you want the government to be able to instantly identify people on the no fly list, but have access to your movements via air travel.
The choices are not great, and I won't express my preferences.
--AC
Except that, in a lawsuit, you can only recover for the damages you suffer. As one of those personal injury lawyers people are always talking about, a case with a slightly cut hand is not worth the time and money involved. A case with an amputated hand is going to have substantial medical bills and other economic losses, which would justify the time and expense involved in prosecuting the case.
What you're talking about is the difference between a ~$1 case, and (potentially) a $2,000,000.00 case. As a matter of professional ethics, I'm not going to spend $150,000 hiring expert witnesses to recover $1.
--AC
Great. How do we get the data for those long-term studies?
Do we do the experiment and then check the patients for an extended period of time? But before we can get there, we have to do the experiment.
Also, how do you know what Dr. Centeno tells his patients in the process of obtaining informed consent. I know the man professionally, and have found him to have the highest ethical standards. I don't know the precise information he provides when he obtains informed consent, but neither do you.
--AC
Isn't that the nature of an experiment, though? I mean really, when you do the experiment, you don't have proof to back up your claims. You have a hypothesis.
Now, in his case, there is actually some proof. Apparently, these kinds of stem cell treatments have been shown to be efficacious in animal trials, right? So actually, there is some basis for believing that they will do so in human trials as well.
At the same time, however, he doesn't have data showing that his treatments work. But he is gathering that data and publishing his studies in peer-reviewed journals. So, in fact, he is engaged in the science of medicine.
In a few years, if he's right, he'll be a pioneer in stem cell treatment. If he's wrong, he'll have to face the legal, ethical, and professional consequences of his failed experiment.
But, I'm sure you'll agree, it's a bit hasty to claim that he is "a con man bring shit that doesn't work to the people." As you must acknowledge, there is no proof EITHER WAY as to whether the treatments work in human beings.
Please, do try to restrain yourself from defaming people you don't know.
--AC
A bug that you know about. If, by chance, you find yourself in an accident, and get sued, I doubt a jury is going to look kindly on the "I passed up on the fix for the known bug because I thought it might brick my car" defense. If you pass on the deal, you are essentially taking full responsibility for Toyota's bad code.
That's not a good choice.
--AC
Technically, the 9th Circuit lacks authority to overturn Cruikshank.
--AC
Not exactly. They need a reasonable belief. See, because the Bill of Rights does not apply to private actors. Instead, the store-customer relationship is governed by longstanding principles of common law. At common law, you have the right to freedom of movement, and can sue individuals who wrongfully and intentionally limit your freedom of movement by confining you to a bounded area. This is the tort of false imprisonment. However, a store keeper has a limited privilege to infringe your right where he reasonably believes that doing so is necessary to protect his property. So the while the mere failure to show a receipt upon leaving a store may not be sufficient to justify a store owner's decision to detain you, if there are other facts that the store owner is aware of, such a detention may be legally authorized.
--AC
Technically, FRCP 5.2(a) only requires redaction of the first 5 digits. Since these digits are the ones that can easily be guessed, the redaction rules are ineffective at achieving their primary purpose, which is the prevention of the dissemination of an individuals SSN.
--G
It's even better than that. Consider that the Federal Rules of Civil Procedure call for the redaction of all but the last four digits of an individual's social security number if it must be part of a court record (for example a discovery response).
Much of the discovery I have seen asks for the party's date of birth, place of birth, and social security number. While the rule "protects" the SSN from release by redacting the first five numbers, with a typical set of interrogatory responses, and the techniques pioneered by these researchers, I can get the holy trinity of identity theft information: SSN, DOB, and location of birth.
Even worse, most of the country now uses PACER for electronic filing in Federal Courts. For $.08/page, anyone can access filings in a Federal case. This seems ripe for abuse.
--AC
That's not going to happen.
You have to understand the legal arenas in which the cases you look at are decided. The strip-search case involved a state actor who engaged in conduct arguably prohibited by the U.S. Constitution. That gave rise to a 1983 action (a suit for damages based on a violation of your Constitutional Rights). In those kinds of cases, there is a defense called qualified immunity. It can be invoked by state actors to say "The rule I broke was not well settled by the Supreme Court. I did not know I was violating your rights. Because I did not know, and there was no way for me to know, I should not be held liable."
But that defense only comes up where a state actor is sued for violating someone's rights. This case involves a criminal prosecution against a private citizen. The private citizen does not have a "I didn't know" rule. In fact, the general rule is that ignorance of the law is not a defense. He can still defend himself by arguing that Tennessee's law is unconstitutional, but he cannot say that he did not know that what he was doing was illegal.
--AC
The Sun does revolve around the Earth.*
--AC
* For certain frames of reference.
And I fail at reading the entire subject line.
I'll have my order of crow, well done, with a side of my foot. And can you cover that in my own words?
--AC
It's not limited to Dems, thankyouverymuch.
Check out Steve Jackson Games, Inc. v. United States Secret Service. It's the case about a Secret Service Raid on SJ Games in which the Secret Service seized a number of computers, nearly crippling a business. The details can be found at: http://en.wikipedia.org/wiki/Steve_Jackson_Games,_Inc._v._United_States_Secret_Service.
For the record, the seizure of the computers took place in 1990, under the Bush (I) administration.
--AC
Is "Posting Anonymously" any less anonymous because I use a pseudonym online? At the end of the day, aren't most slashdotters really anonymous cowards?
I sign my posts --AC because there's little difference between anonymous internet postings behind a handle, and anonymous internet postings with no handle.
--AC
I am sorry that you find the annual foolery un-funny. I typically find portions of the April Fools Day slashdottery humorous, and other parts tedious. This particular bit got a chuckle today.
Perhaps you should consider altering your browsing habits on this one, entirely predictable, date. That way, you won't be tempted to bring down anyone else's enjoyment of the holiday.
--AC
Hell. It's even kinda fun.
--AC
Waivers have to be in writing witnessed by three parties?
Are you smoking Matanuska Thunder*uck?
Morons waive their rights on a daily basis without a writing or a witness. Any time an officer says "Hey, mind if I look in your backpack?" and the moron says "Nope, not at all officer!" the moron has waived his rights. All that is required to show a waiver of a right is evidence that the defendant knowingly and voluntarily allowed the officer to conduct a search. Hell, criminals waive their Miranda rights all the time, and by law, they have to be read those rights. If you're ever incarcerated, be smart and stfu. The only words that should ever come out of your mouth after your arrest are "I want a lawyer." If you need to pee, and you don't have a lawyer, wet yourself before speaking with the police. Because if you invoke your right to remain silent, and then you start talking to them, a trial judge may well find that you waived your rights.
--AC
The "AP" is the Associated Press. It's probably the largest news gathering organization in the world.
--AC
The general rule is that arguments raised for the first time on appeal are waived. That means that the appellate court should summarily dismiss those arguments.
--AC
How does it handle double letters?
For example, would it type my username as Goobermunch or Gobermunch? How would it know the difference? How does Swyping accommodate the William Wallaces of the world? Are they doomed to being Wiliam Walaces?
The press release leaves the question open. The ability to detect a repeated input seems to be an advantage of keypad type input. Perhaps, if you dwell for a sufficiently long period of time, it will count the character beneath the stylus twice.
--AC
Right, but if the rationale for the conviction for possessing the anime images was "merely" that the defendant possessed child pornography, his conviction would be impermissible without meeting the Miller Obscenity Test, correct?
That's because the rationale for banning child pornography is largely based on the negative impacts that child pornography has on actual children. See, for example, Ashcroft v. Free Speech Coalition, where the Supreme Court struck down the predecessor to the statute at issue here because it did not require proof that an actual child was involved in the production of the alleged child pornography.
So what makes these images illegal is not that they depict children having sex. It is that they depict children having sex in an obscene manner. In other words, not all hentai is illegal. Only obscene hentai is illegal.
Finally, if you'd read the opinion, you'd know that, in this case, Mr. Whorley was downloading the images to a computer at what appears to be the local state employment office. Thus, Stanley v. Georgia (the case holding that mere possession of obscene materials in the privacy of ones own home is protected by the penumbra of rights between the first and the fourteenth amendment) is inapposite. The Fourth Circuit also explained why, although Stanley v. Georgia holds that mere possession is not punishable, distribution of obscenity may violate the law.
"But Stanley's holding was a narrow one, focusing only on the possession of obscene materials in the privacy of one's home. The Court's holding did not prohibit the government from regulating the channels of commerce. In an unbroken line of Supreme Court decisions since Stanley, the Court has
repeatedly rejected the notion, urged by Whorley, that as a matter of logic, because the First Amendment prohibits the criminalization of private possession of obscene materials within the home, there exists a correlative "right to receive" obscene materials. See United States v. Reidel, 402 U.S. 351, 354-55 (1971) (explicitly rejecting the notion that Stanley's recognition of the defendant's right to possess obscenity meant that "someone must have the right to deliver it to him" through the channels of commerce (internal quotation marks omitted)); see also Smith v. United States, 431 U.S. 291, 307 (1977) ("Stanley did not create a right to receive, transport, or distribute obscene material, even though it had established the right to possess the material in the privacy of the home"); United States v. Orito, 413 U.S. 139, 141 (1973) (holding that Stanley's tolerance of obscenity within the privacy of the home created no "correlative right to receive it, transport it, or distribute it"); United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376 (1971) ("That the private user under Stanley may not be prosecuted for possession of obscenity in his home does not mean that he is entitled to import it from abroad free from the power of Congress to exclude noxious articles from commerce")."
However, your comment does raise an interesting legal question. What would be the result if Mr. Whorley had merely possessed the obscene anime images in his home, rather than in a public place? If the police were able to access Mr. Whorley's YAHOO account and locate the images in that account, then, most likely, the conviction would stand (as the statute specifically prohibits "moving" the images in interstate commerce). However, if they were unable to determine how Mr. Whorley obtained the images, then I would argue Stanley applies, and the images would not violate the provisions of the act.
--AC
So obviously, I was too brief in my comment, so let's put the big asterisk by the brief conclusion:
UNDER CURRENT FEDERAL STATUTORY AND DECISIONAL LAW, child porn involving actual children--always illegal because actual children are injured in the process. Images and stories of children having sex--illegal if obscene.
The key here being that because the First Amendment doesn't protect obscene speech, there is no First Amendment issue with these convictions.
--AC
Here's a link to the opinion: http://pacer.ca4.uscourts.gov/opinion.pdf/064288.P.pdf
Here's the language from the opinion:
Counts 1-20 charged Whorley with using a computer on March 30, 2004, to knowingly receive obscene cartoons in interstate and foreign commerce, in violation of 18 U.S.C. 1462. The 20 cartoons forming the basis of those counts showed prepubescent children engaging in graphic sexual acts with adults. They depicted actual intercourse, masturbation, and oral sex, some of it coerced. Based on the same cartoons, the jury also charged Whorley in Counts 21-40 under 18 U.S.C. 1466A(a)(1) with knowingly receiving, as a person previously convicted of illegally downloading child pornography, obscene visual depictions of minors engaging in sexually explicit conduct. In addition, the grand jury charged Whorley in Counts 41-55 with knowingly receiving, on March 11 and 12, 2004, 15 visual depictions of minors engaging in sexually explicit conduct, in violation of 18 U.S.C. 2252(a)(2). These counts were based on lascivious photographs of actual, naked children. Finally, the grand jury charged Whorley in Counts 56-75 with sending or receiving in interstate commerce 20 obscene e-mails during the period between February 5, 2004, and April 2, 2004, in violation of 18 U.S.C. 1462. The e-mails described sexually explicit conduct involving children, including incest and molestation by doctors.
By my read, the key factor that made these prosecutions legitimate from a First Amendment standpoint is not that they were "child pornography," but that they were obscene.
--AC