PEN on Twitter

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The appeals court properly recognized that our clients have a reasonable basis to fear that the government may be monitoring their conversations, even though it has no reason to suspect them of having engaged in any unlawful activities. The constitutionality of the government’s surveillance powers can and should be tested in court. We are hopeful that the Supreme Court will agree.

Jameel Jaffer, ACLU Deputy Legal Director, on the Supreme Court’s decision to hear a challenge to the broad, sweeping surveillance powers of the FISA Amendments Act. PEN American Center is a partner in this case.

BREAKING NEWS: Supreme Court Will Hear ACLU Case Challenging Warrantless Wiretapping Law

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Supreme Court Decision on Stolen Valor Act Promotes Free Expression
The Supreme Court decided in favor of free expression on Thursday by striking down the 2006 Stolen Valor Act.
…For PEN, the issue had echoes of some of the defamation cases we have confronted overseas, where governments have tried to penalize speech deemed offensive to abstract entities or constitutions, as when the Turkish governmentthreatened to jail writers for “insulting Turkishness” or the Turkish military.
In signing on to the Amicus brief by the Media Coalition, PEN did not dispute the idea that military honors have value, but rather that lying about having received these honors somehow diminishes the institution of the award. Moreover, enforcing the Stolen Valor Act would pave the way for the government to enforce the truth, as the brief notes:

Fear of public exposure, rather than fear of criminal sanction, is the inducement to truth on which the Constitution requires us to rely outside of the traditional First Amendment exceptions such as fraud, defamation, and perjury.

The universal solvent of falsity is truth. According to Media Coalition director David Horowitz, ”the best way to counter false speech is always more speech—not censorship, and certainly not criminal prosecution.”
Click here to read the full article
photo by bobstovall on a Creativecommons license

Supreme Court Decision on Stolen Valor Act Promotes Free Expression

The Supreme Court decided in favor of free expression on Thursday by striking down the 2006 Stolen Valor Act.

…For PEN, the issue had echoes of some of the defamation cases we have confronted overseas, where governments have tried to penalize speech deemed offensive to abstract entities or constitutions, as when the Turkish governmentthreatened to jail writers for “insulting Turkishness” or the Turkish military.

In signing on to the Amicus brief by the Media Coalition, PEN did not dispute the idea that military honors have value, but rather that lying about having received these honors somehow diminishes the institution of the award. Moreover, enforcing the Stolen Valor Act would pave the way for the government to enforce the truth, as the brief notes:

Fear of public exposure, rather than fear of criminal sanction, is the inducement to truth on which the Constitution requires us to rely outside of the traditional First Amendment exceptions such as fraud, defamation, and perjury.

The universal solvent of falsity is truth. According to Media Coalition director David Horowitz, ”the best way to counter false speech is always more speech—not censorship, and certainly not criminal prosecution.”

Click here to read the full article

photo by bobstovall on a Creativecommons license

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berfrois:


On June 27, 2011 the Supreme Court of the United States struck down a California law that would have banned the sale or rental of violent video games to minors, ruling in a 7-2 decision (Brown v Entertainment Merchants Association) that the law was a violation of the First Amendment. While the decision on its face is about the boundaries and horizons of Constitutionally protected speech, it’s also—like previous Court decisions that explore the convergence of artistic expression, ideas, and free speech—a fascinating document of interpretation, as the Justices “read” video games as postmodern media theorists, grappling with everything from the minutiae of photo-realistic graphics to larger philosophic concerns about what it means to become, literally, part of a narrative.
In theoretical terms, the ruling has a lot in common with reader-response criticism, which was pioneered by Stanley Fish and others in the 1960s and 70s in reaction to the New Critics and others who held that the meaning of a text was to be found primarily within the text itself. Reader-response critics shifted the focus away from the text as a sacrosanct repository of meaning (whether fiction, poetry, drama, etc.), and even its author, to suggest that meaning is created in a hard-to-define, super-charged zone of interaction between text and reader, and, even more radically, that the reader in fact activates the meaning of the text. In the Entertainment Merchants case, Justice Scalia’s arguments turn out to embody a kind of libertarian strain of reader-response theory. “All literature is interactive,” he writes, countering those who find special danger in violent video games because of their interactivity. He cites judge and legal theorist Richard Posner: “Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”
In his concurring opinion Justice Alito also explores the interactive dimension of video games (such as Mortal Kombat [1]) although, unlike Scalia, he finds that this quality fundamentally distinguishes video games—in potentially dangerous ways—from the interactivity of books and films. In language which is, paradoxically, a representation of violence in the same way that video game images are a representation of violence, Alito becomes, briefly, a horror writer depicting a gruesome murder, as he describes an avatar who
sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands.
“Alito recounts all these disgusting video games,” Scalia writes, “in order to disgust us—but disgust is not a valid basis for restricting expression.” It’s an argument that is both simple and complicated, veering into semiotics: the relationship between the signifier (words or images that represent something) and the signified (the idea or concept to which the signifier refers) is really a matter of imagination. The “real” to which language refers is always a product of language itself, so that reality is cajoled, conjured, and brought into being by the very signs we use to describe it. Scalia flirts with these deconstructive ideas throughout the majority opinion, as when he suggests that “Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its object effects, may be the real reason for governmental proscription.”
All of which raises the question: what does it mean when the sort of reality that the justices legislate is not so much reality per se, but representations of reality, and is there even a difference?

“The Supreme Court School of PoMo Theory”, Nicholas Rombes, The Rumpus

berfrois:

On June 27, 2011 the Supreme Court of the United States struck down a California law that would have banned the sale or rental of violent video games to minors, ruling in a 7-2 decision (Brown v Entertainment Merchants Association) that the law was a violation of the First Amendment. While the decision on its face is about the boundaries and horizons of Constitutionally protected speech, it’s also—like previous Court decisions that explore the convergence of artistic expression, ideas, and free speech—a fascinating document of interpretation, as the Justices “read” video games as postmodern media theorists, grappling with everything from the minutiae of photo-realistic graphics to larger philosophic concerns about what it means to become, literally, part of a narrative.

In theoretical terms, the ruling has a lot in common with reader-response criticism, which was pioneered by Stanley Fish and others in the 1960s and 70s in reaction to the New Critics and others who held that the meaning of a text was to be found primarily within the text itself. Reader-response critics shifted the focus away from the text as a sacrosanct repository of meaning (whether fiction, poetry, drama, etc.), and even its author, to suggest that meaning is created in a hard-to-define, super-charged zone of interaction between text and reader, and, even more radically, that the reader in fact activates the meaning of the text. In the Entertainment Merchants case, Justice Scalia’s arguments turn out to embody a kind of libertarian strain of reader-response theory. “All literature is interactive,” he writes, countering those who find special danger in violent video games because of their interactivity. He cites judge and legal theorist Richard Posner: “Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”

In his concurring opinion Justice Alito also explores the interactive dimension of video games (such as Mortal Kombat [1]) although, unlike Scalia, he finds that this quality fundamentally distinguishes video games—in potentially dangerous ways—from the interactivity of books and films. In language which is, paradoxically, a representation of violence in the same way that video game images are a representation of violence, Alito becomes, briefly, a horror writer depicting a gruesome murder, as he describes an avatar who

sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hears the thud of the axe hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands.

“Alito recounts all these disgusting video games,” Scalia writes, “in order to disgust us—but disgust is not a valid basis for restricting expression.” It’s an argument that is both simple and complicated, veering into semiotics: the relationship between the signifier (words or images that represent something) and the signified (the idea or concept to which the signifier refers) is really a matter of imagination. The “real” to which language refers is always a product of language itself, so that reality is cajoled, conjured, and brought into being by the very signs we use to describe it. Scalia flirts with these deconstructive ideas throughout the majority opinion, as when he suggests that “Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its object effects, may be the real reason for governmental proscription.”

All of which raises the question: what does it mean when the sort of reality that the justices legislate is not so much reality per se, but representations of reality, and is there even a difference?

“The Supreme Court School of PoMo Theory”, Nicholas Rombes, The Rumpus

photo by sipstar

A Floridian, Fane Lozman, bought the two-story floating residence in 2002, and had it towed to North Beach Village in Florida, where it stayed in two marinas until a hurricane destroyed the docks in the second marina where it was moored.  In March 2006, Lozman had it towed to a marina in Riviera Beach, and continued to use it as his primary home.   The marina was owned by the city, and it supplied the houseboat with electricity, as well as water from a city utility.   After three years, the city contended that Lozman had not been paying his dockage rent or for city services.  In March 2009, the city told him to pay up, sign a new dockage fee agreement, and improve the structure, or else face a legal claim in admiralty court for trespass and for failure to pay for marine “necessaries.”

Following the usual practice in such maritime cases, the city sued the houseboat itself, and the case became known as “City of Riviera Beach v. That certain unnamed, gray, two story vessel approximately 57 feet in length.”  Whether that court had jurisdiction to hear the city’s claims depended upon whether, legally, the houseboat was a “vessel.”   The city insisted that it was, Lozman argued that it was not.  The city ultimately won in both a federal district court and in the Eleventh Circuit Court.

The district judge concluded that it made no difference that Lozman’s floating home was not intended to be a transportation vehicle, since the prevailing law in the Eleventh Circuit was that any structure that can be towed on the water is a “vessel” for maritime purposes.   The judge ordered Lozman to pay $3,039.99 in delinquent dockage payments, plus $1 for “maritime trespass.”  Adding in interest and some other fees, the final judgment was for $3,053.26.  To cover those assessments, the judge ordered the houseboat to be sold.  It was sold at an auction in March 2010, with the city buying it as the highest bidder.

The Court did not learn until Lozman’s lawyers filed their merits brief in May that the houseboat had since been destroyed.  The brief mentioned that in a single sentence: “The City subsequently destroyed it.”  In July, the city told the Court in its brief that it had tried without success to sell the boat, and that it also could not give it away — both Habitat for Humanity and AMVETS would not accept it as a donation, the city said.  “Faced with the high costs of keeping the houseboat, respondent [the city] destroyed it.”

(Source: scotusblog.com)

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The Supreme Court drenched in rain during Hurricane Sandy

On a day when the rest of Washington was shuttered and hunkered down for Hurricane Sandy, the Supreme Court stuck it out and heard arguments over whether PEN and our co-plaintiffs have “standing” to press our lawsuit challenging the National Security Agency’s massive telephone and Internet surveillance program.

To establish legal standing to sue, parties need to show that they have been harmed by the law they are challenging; from the moment Justice Sotomayor interrupted Solicitor General Donald B. Verrilli’s opening statement to ask whether, in the government’s view, anybody would ever be in a position to challenge the top secret surveillance program, it was clear that the justices were prepared to take a hard look at the impact of the program on human rights advocates, lawyers, and journalists who communicate regularly with clients and colleagues overseas.

As Lyle Denniston has just posted in an excellent recap on SCOTUSblog.com,

Although the government’s top lawyer in the Court, Solicitor General Donald B. Verrilli, Jr., argued that no one should be allowed in court to contest this program unless they can show that the government’s potential overhearing of sensitive legal conversations is close to a certainty, several of the Justices seemed wary of making it that difficult to bring a challenge when it is entirely likely that such monitoring has occurred, or will occur.  Indeed, some of the Justices — especially Justice Ruth Bader Ginsburg — were clearly put off by the prospect that no one would ever be able to sue, not even lawyers who had actually cut back on how they represent their clients out of fear of being monitored.

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