We reported a couple weeks ago that South Carolina Attorney General Henry McMaster told craigslist to remove certain content from their site.
Now, craigslist has filed suit in Federal Court against McMaster, et al. From the blog of Jim Buckmaster, CEO or craigslist:
craigslist has filed suit against SC AG Henry McMaster in federal court in South Carolina, seeking declaratory relief and a restraining order with respect to criminal charges he has repeatedly threatened against craigslist and its executives. [...]
In addition to being unwarranted by the facts, legal experts agree that the charges threatened represent an unconstitutional prior restraint on free speech, and are clearly barred by federal law (sec 230 CDA).
Interestingly, if you read Mr McMaster’s ultimatum carefully, you’ll note that the only way to definitively comply with it is to take down the craigslist sites for South Carolina in their entirety. The open architecture of craigslist, quintessential to the value it provides for users, simply does not allow for the absolute prevention of solicitation or pornography, with respect to any of its categories and functions.
Given Defendant McMaster‘s persistent and continuing public threats, craigslist is presently faced with the untenable choice of either completely shutting down all portions of its website that are directed at South Carolina or else putting itself and its management at risk of imminent criminal prosecution by Defendant McMaster.
In addition to the suit itself, craiglist has asked the court for a temporary restraining order and a preliminary injunction so that they can keep the site active as the case moves through the legal system.
It will be interesting as this is a true free speech case. Like the Nazis marching on Skokie: do you defend the action even if you vehemently disagree with the position?
I read two articles recently that made me think about this topic. The first one is about a 2004 case in the Seventh Circuit, written by Judge Ann Williams, and joined in by Judge Diane Wood. The latter is on many of the SCOTUS short lists, and the former is on some lists. (Yes, the speculation...). Here is their finding:
John Doe was banned for life from all park property in the City of Lafayette, Indiana — including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.
So, we're not even up to "free speech", we're thinking about "free thought."
For the record, the case was reheard en banc by the Seventh Circuit, and Williams' ruling was reversed 8 - 3.
Confused? Here's what you probably don't know:
John Doe is a convicted sex offender. His criminal history includes convictions for child molestation, voyeurism, exhibitionism, and window peeping. His last conviction was in 1991, ten years before this litigation. Doe's crimes were committed in schools, a convenience store, and outside private residences, and he claims that his urges are triggered by emotional vulnerability, typically in the late evening. As a result of these criminal convictions, Doe has been hospitalized, imprisoned, under house arrest, and on probation. He has been in active psychological treatment since 1986, and voluntarily attends a self-help group for sex offenders. Doe admits he still has fantasies about children, and his psychologist opines that he will likely have these urges for the rest of his life, although he recently began taking medication to control his sexual urges.
In January 2000, Doe was driving home from work and began to have sexual thoughts about children. He drove to a City of Lafayette parkand watched several youths in their early teens playing on a baseball diamond. Doe admits that, while observing them, he thought about having sexual contact with the children. After watching them for 15-30 minutes, and without having any contact with them, Doe left the park. Because he was upset about the incident, Doe contacted his psychologist to report the incident. He also reported the incident to his self-help group.
Now the question, which is more important: the First Amendment, or keeping a sexual predator away from "temptation"?
The case concerned the F.C.C.'s rule regarding "fleeting expletives."
The essential facts were that, after the 1970 decision involving Pacifica Foundation and a telecast of George Carlin's bit on "filthy words" the FCC drafted a policy based on its understanding of what that case allowed them to regulate. In 2004, after an incident at the Golden Globes at which Bono used the phrase "f***ing brilliant", the FCC issued an order clarifying that it could penalize even the single use of an expletive. At the time of the Golden Globe order, there were two pending complaints involving award shows on Fox. One involved the 2002 Billboard Music Awards in which Cher described her response to critics who kept on saying that her career was over as "f*** em." The following year at the 2003 Billboard Music Awards in a little of that sparkling self-promoting chatter from the presenters prior to introducing the next act or announcing the award, Nicole Ritchie and Paris Hilton describing their reality show, The Simple Life, stated "Have you ever tried to get cow s*** out of a Prada purse. It's not so f***ing simple." Rather than wait around for potential fines from the FCC, Fox and other parties challenged the finding that those statements subjected Fox to sanctions.
The Second Circuit found for Fox on the basis of the Administrative Procedure Act (a statute governing the making of rules and regulations). In particular, it found that the FCC did not provide sufficient factual support for the change in policy. In doing so, the Second Circuit avoided any direct constitutional issue.
Today, by a 5-4 decision, the Supreme Court found that the Second Circuit had imposed too high a burden on the FCC. They found that under the facts of the case that the stricter approach to such fleeting expletives was sufficiently justified. The story behind the story, however, is what the opinions said about an issue that was not directly in front of the court, the First Amendment and regulation of broadcast tv.
Thanks to Doc Jess for the first post on this topic. I saw this last week and didn't have a chance to post on it.
Supreme Court cases are always a difficult topic for the MSM to deal with. When the Supreme Court takes a case, they agree to decide specific questions raised by the parties (or on rare occassions by the Court itself). The media, however, likes to talk about the juicy facts in the case even though those facts may have nothing to do with the questions presented.
In this case, there are four questions presented. Three of them have to do with prior decisions -- the McConnell decision generally upholding McCain-Feingold and the Wisconsin Right to Life decision which excluded certain types of advertising from the concept of electioneering communications. The last question has to deal with whether a movie should be treated like an ad or if it is exempt from the concept of electioneering communication.
These questions give some hint about what to expect in this case. Two of the Justices (Scalia and Thomas) were clear in the McConnell decision that they thought that McCain-Feingold was completely unconstitutional (and actually that they would overturn prior decisions and hold additional parts of the previous regime unconstitutional too). Basically, the most that Scalia and Thomas will accept are disclosure requirements. They are not likely to add anything to the reach of FEC regulations.
It is less clear as to what Alito and Roberts will do. They weren't on the Supreme Court when McConnell was decided. Their positions since joining the Supreme Court seem to indicate that they are close to the Scalia-Thomas position but that may be a feature of the cases that were heard.
That makes two Justices crucial on this case -- Kennedy and Breyer. Kennedy is crucial because his prior opinions indicate that he will allow limited regulations. The regulation in this case may seem like too much for him. Breyer is key because he will focus on the intent of the legislation and will ask is this the type of thing that was meant to be covered.
Ms. Currie's title is "U.S. District Judge" and yesterday, she did her best to support the ideal of the separation of Church and State. It was a great action on the part of a judge for direct affirmation of the U.S. Constitution.
Here's the back story. That bastion of rights, freedom and Republicanism, South Carolina, decided that a good license plate would look like this:
Yup, that's right, "I Believe", with an implied endorsement of a Christian Church. (Note the cross and the stained glass window.)
A number of people felt that states are not supposed to endorse one religion over another, or any religion, for that matter, and sued. Yesterday, Judge Currie said the case must be heard in court, and issued an injunction so that the state cannot take any more orders for the plates. (They had sold 400 of them.)
We will keep you updated as the case proceeds through the court system.
