New York City’s embrace of a policy that openly ignores constitutional rights in the name of a tiny bit of transitory safety, stop and frisk, has been a regular topic of discussion here.  But written words rarely capture the flavor of a wrong as well as a video.

This video by Ross Tuttle, via Radley Balko, needs to be seen by as many people as possible if there is to be an appreciation of just how wrong things can get when we trade off the appearance of safety for constitutional rights. 

The video is quite revealing, in some ways intentionally and in other ways not so much. Pay particular note to the police officers on the video, and their dissociation of responsibility for their conduct.  They know what they’re doing. They know it’s wrong. They’re ashamed of their conduct, but not so ashamed to not do it because that might mean they get a bad assignment or lose a promotion.  Just following orders, and certainly won’t refuse to abuse people if it means they will suffer any inconvenience. 

In the meantime, Mayor Bloomberg and Police Chief Ray Kelly calm the public below 96th Street by explaining how they are saving them from crime, the violent, marauding masses who would steal their money and rape their women.  And they shouldn’t have to endure any inconvenience either. 

Watch the video. Spread the video. This is what it looks like when we trade constitutional rights for the pretense of safety.

In Ithaca, New York, a charlatan told a worldwide crowd of serious academics that in the future, everybody will be a lawyer for 15 minutes.  Unlike Andy Warhol, Clay Shirky thought this was a good thing, and that they, and lawyers everywhere, should dedicate their careers to making this happen.

At the Law Via the Internet 2012 conference, Clay Shirky talked about how social tools can help close the gap in comprehension between the law and the public. People don’t just need access to legal codes, they need to be able to understand them. They need context.

Shirky argues that we need to embrace this impulse and assist in the interpretation of law online.

At A Public Defender, Gideon is trying, but it isn’t going well. He’s been incensed at a  HuffPostCrime story about the Connecticut Supreme Court’s decision in State v. Fourtin, and similar stories at  Think Progress and Boing Boing, In each of these stories, the narrative is the same: A rapist went free because a court held that a woman, in this case one with cerebral palsy, failed to fight back.

The story sounds outrageous, a throwback to the old days of women who didn’t fight a rapist to the death, wanted it. Just like women who deserved it for dressing provocatively, or couldn’t be raped because of their loose, sexually indiscriminate behavior.  Outrage ensued.

Except, as Gideon tried desperately to explain, that wasn’t what the decision held.  To lawyers, criminal defense lawyers at least, it was quite a solid decision.  The defendant was charged under a narrow statute, limited to the rape of an unconscious person, and the victim may have had cerebral palsy, but wasn’t unconscious.  There were other subdivisions of the law under which the defendant could have been charged, but wasn’t. The prosecutor blew it. He charged the defendant for the wrong crime.

Because of this, all the other safeguards of the criminal justice system kicked in, from due process to double jeopardy.  People at HuffPo and Boing Boing usually like these aspects of the law, except when they don’t. Then they become technicalities and produce injustice, because the outcome doesn’t comport with their sensibilities. Rape is one of the sacred cow crimes, and no law should get in the way of conviction.

It’s all about outcome?  As Ken at  Popehat points out, people across the political spectrum pick their positions based on outcomes, just different ones.  It’s not about thinking, but feeling.  The law, however, isn’t about feeling.

The writers at HuffPo, Think Progress and Boing Boing should be somewhat attuned to the substance about which they write.  After all, someone decided to give them a big megaphone to announce their views to an audience that believed they knew what they were talking about.  While they sell keyboards to pretty much anyone these days, and any nutjob can stand on his own internet soapbox and yell, these are putatively legitimate sources of information. 

People, lots of people, go there to read and, they expect, learn.  If someone is going to write about a subject, and someone decides to give them the megaphone, there should be an obligation inherent in broadcasting their thoughts to the groundlings that they be reasonably substantively accurate.  They may not be lawyers (which some think would be a wiser choice of author if popular publishers are going to write about law), but they are intelligent, educated people with a keen interest in the law. Certainly they should be capable of writing an accurate story about a decision.

But as Gideon points out, line by line, the stories are not accurate. In fact, they are fundamentally wrong, and by being wrong, create outrage rather than illumination.  The readers of these stories are stupider for having done so.  Worse still, they not only show no interest in understanding why they are wrong, but are aggressively antagonistic toward anyone who tries to explain.  They call them “rape apologists,” and tell them to shut up before deleting their comments.

Shirky’s future of law was uttered at a conference at Cornell University, where there is a project, the Legal Information Institute, dedicated to putting statutes and caselaw online, freely available to anyone who seeks knowledge.  This is an important project, as these laws and decisions belong to all, not just the expensive duopoly that has controlled our access to the output of our government.  

The LII’s efforts to make law freely available isn’t at odds with Clay Shirky’s nonsense, but isn’t consistent with it either.  Rather, Shirky takes the ball and runs sideways, toward a goal that doesn’t exist.  People, meaning non-lawyers, want unfettered access to the law. That’s fine. They want not only access, but the ability to understand it and use it without need to pay for lawyers. That’s not so fine.

Shirky says lawyers must help them to do so because it will make people happy.  Shirky had no business at this conference. Just as the writers at HuffPo, Think Progress and Boing Boing couldn’t grasp the meaning of the Fourtin decision, even though they thought themselves worthy of publicly criticizing it, people less educated, less interested, less astute, can’t become lawyers by reading a couple paragraphs on a wiki page. 

Anyone reading any of the grossly inaccurate stories about the Fourtin decision could have read the decision itself, read the underlying statutes, read the caselaw on due process and double jeopardy, and come to their own conclusion that they story they read was completely wrong.  But they didn’t.  Instead, they were more than happy to be fed nonsense and take the writers’ words for it. 

Law on the internet is a powerful tool. But like any tool, its utility is only as good as the skills of the person using it. Prosecutors in Connecticut used the law poorly, and as a result, a rapist may walk free.  Writers at popular websites used the law poorly, and as a result, got a lot of people worked up about the wrong problem and made them stupider in the process.  Clay Shirky thinks anybody can be a lawyer if we give them access to the tool, learning nothing from the potential of one rapist walking free because the tool was put in the hands of a bad mechanic. 

The prosecutor in Connecticut was a lawyer. The writers were educated and interested in legal issues. The public just wants a freebie and couldn’t care less about making the effort to become truly knowledgeable.  If this is the future of the law, it’s going to be a disaster.

Jerry Sandusky will be sentenced later today for his conviction on 45 counts of child molestation.  In advance of his sentence, he released a recording, related in this AP story :

In the three-minute monologue aired Monday night by Penn State Com Radio, the former Penn State assistant football coach said he knows in his heart that he did not do what he called “these alleged disgusting acts” and described himself as the victim of Penn State, investigators, civil attorneys, the media and others.

“They can take away my life, they can make me out as a monster, they can treat me as a monster, but they can’t take away my heart,” he said. “In my heart, I know I did not do these alleged disgusting acts. My wife has been my only sex partner and that was after marriage.”

And they will take away his life. Given the nature of the charges upon which he was convicted, combined with his age, there isn’t a lot of wiggle room. Beyond that, it’s just a message. 

The more interesting question is what strategy is available to Sandusky at sentence.  This three-minute monologue suggests that he’s taking the position that he’s innocent, the crimes for which he stands convicted never happened, and he will face the court and his accusers with the knowledge that he has done no wrong.

Will anyone buy this?  Probably not.

Does Sandusky have an alternative?  He could concede that it’s all true, that he’s a sick man in desperate need of therapy, and had he received that therapy decades ago, perhaps none of this would have happened.  Of course, that won’t mean that he’ll ever walk out of prison, but it might make him less of a monster.

Assuming, as seems pretty likely, that he will appeal his conviction and assert innocence, admission of the crimes at sentence in the hope of garnering what little mercy a judge might muster will make it impossible.  You can’t be guilty and innocent at the same time. Not even if you’re Jerry Sandusky.

Having pondered the options available, there doesn’t appear to be any choice but to assert innocence at sentence and take whatever the court dishes out. Not because it’s likely to help him, either at sentence or on appeal since there is little doubt as to the sufficiency of the evidence, but because there is no good alternative.

Sometimes, there is no argument, no strategy, no option, that has any potential to work.  In this case, none comes to mind.  Maybe someone else can see a viable option, but I can’t.

Update:  Via AP, the sentence was 30 to 60 years:

Jerry Sandusky was sentenced Tuesday to at least 30 years in prison – effectively a life sentence – in the child sexual abuse scandal that brought shame to Penn State and led to coach Joe Paterno’s downfall.

A defiant Sandusky gave a rambling statement in which he denied the allegations and talked about his life in prison and the pain of being away from his family.

I’m pretty sure Sandusky’s lawyer, Joe Amendola, was available for interviews after the sentencing, and plans to be ready early tomorrow morning just in case they want to have him on the Today Show or maybe Good Morning America to find out how he feels about the sentence.

The New York Times online version offers what they call an op-doc, which apparently is an op-ed with a video behind it.  How this will work, or even if this will appear, in the dead-tree version is unclear, as I haven’t see it yet, but it will be interesting to see whether the op-ed part, the writing without the video, plays in Peoria.

The Times allows me to link to a video called Three Strikes of Injustice.  It can’t be embedded in this post, at least not until someone more knowledgeable than me puts it on Youtube, and since the Times is so important that it hides behind a paywall, some won’t be able to see it.  It’s a shame, because the video is good and important. But what’s “good and important” compared to making a buck to a newspaper?  Priorities.

So within these constraints comes the point of the op-doc, the video and its accompanying text.

In 1994, California voters passed the harshest three-strikes law in the country. Soon after, stories began to emerge about people receiving life sentences for petty crimes such as stealing a pair of gloves or a slice of pizza. Such cases challenged the commonly held belief that the law applied only to violent criminals.

The case of Shane Taylor, the subject of this video, is common in many ways, but also unusual in that his judge and prosecutor have gone on record saying that his sentence is unfair and should be modified. Under current law, revising a sentence after it has been imposed is nearly impossible.

On Nov. 6, voters in California will decide whether to adopt Proposition 36, a ballot initiative that would reform the most draconian aspects of the law — and, in our view, restore the original intent of voters, which was to lock away violent career criminals for life, without unjustly throwing away the lives of small-time, nonviolent offenders like Mr. Taylor. Like most Californians, we believe that the punishment should fit the crime. We’re encouraged that polls show broad public support for the measure.

A perpetual wonderment is that a cop can take the witness stand at trial and remember minute, often inconsequential details of an incident that happened a year or two earlier.  In the interim, he may have confronted hundreds, maybe thousands of people in similar circumstances, but in the witness chair, his memory is razor sharp.  The wonderment isn’t that the cop has superhuman memory. No, it’s that juries believe the testimony.

Before testifying, you see, the cop reads over his reports, that contain the important details. He’s prepped and prodded by the prosecutor, much like testing a school boy to make sure he’s studied.  As for the minor details, the ones that blur with the hundreds of other things he’s done since the arrest, well, those he can just make up, as long as he makes it look like he knows. 

After all, there’s no one to contradict him, one of the foremost reasons the prosecution only calls one of the two cops on the scene.  If they have to call both, then they have to work harder to get their stories straight.  Even so, there are so basic answers to erroneous detail testimony (“I was focused on the gun in the defendant’s hand, so I didn’t pay attention to what type of sneakers he was wearing”) that can cover the goof. 

And juries believe it. It’s hard to blame them, as they don’t know that police officers are practiced at the art of testifying, have a pocket full of pat answers.  They haven’t heard the prosecutor’s carefully crafted responses to routine failings, the “why would he lie” argument that ordinary people find so very persuasive. Sure, criminal defense lawyers are jaded, as they’ve heard it a hundred times, but to a juror hearing it for the first time, it makes enormous sense.

And so people are convinced that, for better or worse, the testifying cop is telling the truth.

Which makes the fact that no officer remembered anything about what happened to Matthew Olson all the more ridiculous.  From the Daytona Beach News-Journal :

“It was a pretty egregious set of facts,” said Olson’s Orlando-area attorney, Howard Marks. “He was in his house sleeping. He just opened the door a crack and two officers barged in and beat the hell out of him. … Then they did an illegal search without probable cause.”

It’s sufficiently outside the norm that it’s the sort of thing a cop remembers, right?  Well, not in Daytona Beach.

Police Chief Mike Chitwood said some aspects of the case don’t add up, such as Olson not complaining of any medical issues when he was booked into the jail. But it would have been a tough case to take to trial because there was no internal affairs report, no 911 recordings and officers couldn’t remember much of anything, the chief said.

It was as if it never happened. Except it did. No paper work. No memory. There were six cops involved, Craig Buth and Scott Goss were the ones who pushed their way in, Robert Atkins and Scott Barnes tossed the place for fun, and Elizabeth Morgan and Kenneth Dier were there for no particular reason. Yet nobody can remember a thing.

To the extent we believe we know what the police are up to, such as how many innocent people minding their own business are thrown against a wall and searched in New York City’s stop and frisk fiasco, we rely on police reports. We rely on their existence. We rely on their accuracy. We rely on the police to tell us the bad, as well as the good, of what they do to people. 

Or, as happened in Daytona Beach, they just don’t write any reports when something bad happens and, poof, it never happened.  They don’t let the guy whose head they smashed on the ground complete the forms for them, or even read them over and approve of their accuracy, so it’s entirely in the hands of the police to create the foundational reporting of an incident. Of course, we can trust their recitation of events because they have no reason to lie.

The City of Daytona Beach settled the action by Matthew Olson for $250,000 because it would be awfully hard to defend when no one remembered anything about the case. Why this amount isn’t exactly clear, since Olson’s out-of-pocket damages were calculated to be a bit higher.

The settlement ended both that federal case and claims that had been pending in state court, allowing the city to avoid what could have been a much larger award for pain and suffering as well as $642,370 the man, Matthew Olson, claimed he was owed for past and future medical expenses, lost wages and attorney’s fees.

Perhaps he wanted to get the case over with. Perhaps he feared reversal on appeal a decade from now based on some qualified immunity ruling, because police officers may not be aware that they can’t burst into a house, beat the crap out of a guy, search the place, all without a warrant. You never know.

Or maybe the whole thing just never happened?  Nah.  If there’s one thing you can bet on, if the police didn’t do what Olson said they did, that they would remember.

H/T FritzMuffKnuckle

At Sentencing Law & Policy, Doug Berman links to a paper by Yale Law School’s Simeon E. Baldwin Professor Emeritus Peter Schuck, who has taught pretty much everything but criminal law (largely a superfluous course at Yale).  The paper is entitled Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy, which gives you a pretty good idea where it comes out on the subject.

If you still have any doubt what this paper is about, the summary should clear that up:

Under an Immigration and Nationality Act provision dating to 1917, deportable immigrant criminals must serve their entire sentences in the U.S. before being removed from the country. (Exceptions, enacted in 1996, are seldom used). At the same time, federal and state prisons are dangerously overcrowded, with the Supreme Court soon to rule on the constitutionality of overcrowded conditions in the California system. The paper shows that the most common proposals for reducing overcrowding are either politically difficult (e.g., shorter sentences) or numerically insignificant (e.g., decriminalizing drug possession for use). The paper proposes instead, or in addition, to facilitate the earlier removal of deportable criminals and analyzes the legal, policy, and diplomatic changes that would be necessary to implement this approach.

The venerable news magazine, 60 Minutes, did a segment on an Italian company called Luxotica. If you missed it, watch it. It’s worth your time.  Luxotica makes eyeglasses.  Pretty much all of them. Forget the “brand” on your specs; From Ray Ban to Chanel to Tiffany, they’re all designed and made by Luxotica.

And Luxotica sells eyeglasses. From Lenscrafters to Pearle Vision to Sunglass Hut, it’s all Luxotica.  When Oakley sunglasses tried to break free of Luxotica’s retail control, they were crushed. Luxotica refused to sell them, and they ceased to exist, because no product can exist if the market refuses to carry them. Then Luxotica bought them at a garage sale, and now they exist again as one of the many Luxotica brands. 

And the fabulously stylish fashion eyewear from Versace is no different than the pedestrian, old school Ray Ban aviators, except for the logo glued to the frame, carrying with it a few hundred dollar premium as a litmus test of how we perceive vanity and what we’re willing to pay for it.  As Luxotica’s CEO proudly noted, as long as we’re willing to pay big money for pretence, it must be worth it.

And we laugh at Honey Boo Boo Child? Only because we don’t recognize ourselves.

Over at What About Clients?, Dan Hull calls out customer service, the job available to those who didn’t make the cut as assistant manager at Dairy Queen. The people who eventually get on the line after seven minutes in heaven on hold, with such pre-recorded gems as “we care deeply about you and someone will be with you when they’re damn good and ready.”

In the cases of all of the foregoing but GEICO and Enterprise [Dan’s two customer service stars], there are of course some good, but mainly bad, moments. With respect to my nightmare companies, customer service–which no one said is easy to institute and keep up–is a cynical joke. I would have far more respect for them if they just admitted they simply do not care. In the meantime, I would very much like to see customers at counters and on phone lines everywhere start to act up–and demand better service and treatment. For example, you are the customer, and if the store, bank, insurer has made a mistake, they should correct it proactively rather than giving you another place to go or another phone number to call.

If they do not, get a little loud, folks. Tell them you expect better; you are a long-time or merely prospective customer, but one with money. You came ready to do more business or that all-important “first business”, which is a valued “moment of truth” for every seller. And, hey, you don’t call them back during regular hours. They take a message and call you back, Jack.

While Dan is absolutely right that it’s a cynical joke, taking advantage of our collective “politeness” and wimpish inability to stand up for ourselves, the problem with getting loud and rude is that the people on the other end of the phone either couldn’t care less or have no authority to do anything to help. They’re peons reading from scripts. Whether you buy or not changes nothing in their lives. Yell all you want. They just move on to the next call, asking “is there anything else I can do to help you today?”

You can ask to speak to the supervisor, but that’s the person who was promoted because she excelled at persuading people with reasonable concerns to go away.

When an annual membership fee appeared on my “no fee for life” Chase British Airways credit card the other day, I called customer service. The year before, they sent out a notice that they were changing the terms of the card to include a fee. I called then and was told that it was a mistake as to me, as my card was no fee for life, and my card would be coded so I would never be charged again. The fee was back this year.

This year, the CSR told me they had to charge me, and they sent me a notice. I explained. The gal ignored what I said and explained to me, using small words, that I now had to pay the fee.  So I asked to speak with her supervisor and went through the same explanation.

The Chase supervisor, Anthony Wilson, began by explaining that the law required them to charge a fee. This shuts most people down, since any mention of The Law puts the argument outside their scope of knowledge. I told Anthony that was idiotic. Ultimately, he informed me that they were charging me a fee whether I liked it or not because, well, that’s what they did.

Let me add, there is no credit card in the world worth paying an annual fee. None. Never. If your card charges a fee, get a different card. Don’t even get me started on the scam of debit cards. And so I canceled the card.  Guess what? I don’t have to pay the fee.

My pal, Wally Olson, runs a blog called  Overlawyered, that embodies the concept that we sue over anything and everything. His point is well taken. The flip side, however, is that businesses sell us garbage and treat us like serfs and fools. And the harshest truth is that so many of us, in our own business life, do the same to others, even though we’re great at rationalizing our own trespasses while getting angry at others. We’re not necessarily hypocrites as stupid. We just can’t seem to connect the dots anymore.

So the only credit cards in my wallet carry no fee. I wear old Ray Ban sunglasses, and reading glasses from the supermarket that no one will mistake as being Chanel. Sometimes, I get loud and rude with customer service reps. Most of the time, I don’t bother. They aren’t even grocery clerks, but bit players with a short script.

Imagine what would happen to Luxotica if ten million people realized they were being taken for a ride?  Or what would happen to the Chase British Airways credit card if ten million people said “no” to paying a fee?  Would it reduce your life to meaninglessness if you didn’t wear Chanel sunglasses?

Then take a look at how you treat your clients and ask whether you’re any better than a customer service rep named Helen from Manilla?  We can demand better. We can give better. We were once real and can be that way again.

Unless you’re an amoeba, you can’t be in two places at the same time.

–Court Officer, Part 70, Supreme Court, New York County

I remember being told this when I was a young lawyer, complaining about judges demanding that I be in their courtroom rather than another judge’s courtroom. The problem wasn’t the laws of physics (which, contrary to the iPhone commercial, are not merely general guidelines), but that I undertook responsibilities I couldn’t perform.  Didn’t these judges get it? How could I make a living if they kept expecting me to be in their courtroom when I had a client in another? 

At the time, my concern was how I could represent two defendants who were required to be in two places at the same time.  Or to be blunt, how I could get paid to represent both defendants, even though the logistics were in conflict.  

I never forgot the lesson.  My interest in getting paid neither trumped my responsibility nor the laws of physics.

Curiously, some lawyers and clients prefer not to consider the logistics as they get in the way of their dreams.  For the lawyer, it’s the dream of taking on as many cases as possible, without regard to the time necessary to fulfill his responsibilities. For the client, it’s the dream of having a lawyer always there for them, never busy doing anything else.  It’s a fantasy for both.

There are some immutable realities to the practice of criminal law.  It takes time to do competent work.  The obligation to be in one place precludes the ability to be in another.  While thoughtful planning can make the representation of numerous clients viable, more often lawyers solve the problem by just doing shoddy work. Or no work at all.  Flitting into court unprepared. Offering change-the-name papers. They take pride in shooting from the hip, as if it adds to their machismo.

There is no virtue to volume.  There is nothing to be proud of when you accept a fee from a client and fail to do the work necessary to earn it.  And yet there is no shortage of lawyers and clients who either can’t figure out that this is wrong, or are in denial that this is happening.

The key to fulfilling our responsibility to a client is availability.  This means that we understand what is necessary to perform the work required by our representation, and we accept the responsibility to do it.  And this means we limit the matters we take on so that we are available to do the work for which we’re paid.

Everybody hates this.  Lawyers hate it, because it means they can’t take whatever money is in the pocket of every person who shows up at their office. Clients hate it because it means they have to pay for the time they demand of their lawyer.  It’s not that they don’t want the lawyer to drop everything and be available for them at all times. It’s just that they don’t like to pay for it.

Some years ago, a rapper sought my services.  I gave him a healthy fee for representation, but he was indignant.  He wanted me to be his lawyer, but his alone. He wanted me to be available to him at all times, and have no other obligation, no other client, but him.  I told him what it would cost him if that was what he really wanted.  He wasn’t pleased with that fee either, as it was completely disproportionate to the services he needed.  I explained that he didn’t need my total availability, but if that’s what he truly wanted, he would have to pay what I would otherwise earn over the period.

The point is that the intersection of fulfilling our responsibilities as a lawyer and maintaining a law practice isn’t a matter of magic or aspiration. It’s a matter of realistically appreciating the amount of time one needs to dedicate to the representation of a client, and maintaining one’s availability to do so.  On the other side of the equation, it’s a matter of the client’s willingness to pay for the extent of availability necessary to do the work the client requires.  Both sides of the equation have to balance or the representation fails.

Don’t take on more than you are capable of handling properly.  If a matter is going to demand your full attention for a period of months or years, then you can’t accept other matters that will make it impossible to fulfill your responsibilities.  At the same time, unless you have a trust fund or children who eat only occasionally, the compensation has to match the demands on your availability.  

This isn’t rocket science, although a working knowledge of the laws of physics helps.  Yet, ignorance of these basic ideas seems to be rampant as lawyers take on more than they can possibly handle competently, and clients want to pay far less than the time and availability for competent representation requires.  Something has to give, and whatever that turns out to be, somebody is going to be unhappy about it.

Most of the time, what’s lost is competent representation.  If you’re a defendant sitting in a courtroom wondering when, or if, your lawyer is going to show, this is why.  And if you’re the lawyer touting how busy you are and how many important cases you’ve taken on, far too many to handle properly, the message you’re sending is that you care more about making money than representing your clients. 

Harvard lawprof Noah Feldman’s  op-ed in Newsday suggested the counter-intuitive notion that the internet, the invention that has allowed more people to express their ideas more easily to a broad audience than anything since Johannes Gutenberg’s press, may so alter the free speech equation such that it requires us to redefine its parameters.

The vast majority of countries around the globe have laws that prohibit hate speech. And even if the anti-Islamic film “Innocence of Muslims,” which has sparked protests throughout the Arab world, would not have violated some hate-speech laws, most governments would still find ways to suppress the speech of those protesters who found the film so offensive. Compared with almost every country in the world, the United States is an outlier when it comes to free expression.

Two years ago, Supreme Court Justice Stephen Breyer shocked free-speech lovers when, during an interview about a book he had just published, he suggested in passing that our free-speech laws might have to be changed in the era of instant global communications. Breyer’s prophetic comments were inspired by anger in the Muslim world about possible Quran burning in the United States.

Today, in the wake of attacks on U.S. embassies and the killing of a U.S. ambassador and three other Americans in Libya, Breyer’s offhand observations need to be taken seriously.

Correctly noting that this video wouldn’t invoke the “fighting words” exception to the First Amendment, Feldman nonetheless ponders whether it would have been different had it been delivered in person rather than online.

In principle, it should not be more difficult to predict the likelihood that an audience abroad will respond violently to a given statement than it should be to predict that a crowd gathered in front of the speaker will respond violently. At present, we rely on the informed judgment of law-enforcement officers who are on the scene, watching both the speaker and the audience that is on the verge of exploding. It seems possible that law-enforcement officers who were sufficiently well-informed about conditions elsewhere could make a similar judgment about a YouTube video.

This sort of post-hoc reasoning, scrutinizing a video that meant nothing to anyone for the months it was online until, for whatever reason, it suddenly was blamed for lighting a fuse, combined with the blind acceptance of the “informed judgment of law enforcement officers,” makes Feldman’s ideas sound fairly harmless. Indeed, Feldman acknowledges that limiting speech merely because it will offend someone somewhere is disfavored.

Under these standards, speech that offends Muslims abroad — no matter how nasty and provocative — would be protected by the Constitution. Not only would violence be distant and of uncertain probability. It would also be directed against the speaker. Banning speech because of the danger of such a reaction would create what is sometimes called a “heckler’s veto,” highly disfavored by our law.

Yet, if it should erupt into violence, isn’t the reason enough to add the additional layer of moderation?  What’s wrong with our trusted authorities scouring the internet in search of the next inflammatory video or statement to shut down speech has the potential to incite craziness somewhere in the world?  Isn’t it better to stop the hate before it manifests in violence and death?  There is nothing about hate speech that makes it worth the death of good people, or even worth the risk.

Feldman notes that free speech is already subject to increasing limitation, as reflected in the Supreme Court’s holding in Holder v. Humanitarian Law Project.

The court said that the law could prohibit speakers from advising terrorist groups on how to advocate peacefully in lieu of violence. To reach this conclusion, the Supreme Court simply sidestepped the traditional speech-protected rules for incitement. The implication was that speech supporting terrorism deserved its own legal regime.

So why not speech on the internet?  Why not hate speech calculated to offend?  Why not speech that the “informed judgment of law enforcement officers” suggests has the potential to incite people elsewhere in the world, but right next door on the internet, to violence?

Is free speech rhetoric “dated” in light of the “emerging realities of transnational responses”?

The fact that speech, the embodiment of ideas, can move a person to act is a testament to its power.  As some persist in achieving their vision of Utopia, where no one is every harmed either physically or emotionally, and where we cede ever-increasing authority to the government to regulate our world to achieve perfection, it’s possible that we can prevent the occasional incitement to violence.

And this is how the camel gets his nose under the tent.

The internet doesn’t change the free speech calculus. Fear does. Of the billions of bits of content that appear on the internet, a few will offend.  A few will offend many. And a few will illuminate. Once we hand over the power to the government to decide which is which, and which deserves to disappear under the “informed judgement” of law enforcement, the fundamental purpose of our American notion of free speech is lost. 

I can appreciate that Noah Feldman doesn’t want anyone else harmed as a result of hateful internet content. I don’t either. But giving up free speech isn’t the solution.  Even if we are the outlier, do we really want to limit our freedom to the lowest common denominator?  And if fundamental freedom has to take a hit when speech goes viral, isn’t it worth the price?  People die for far less.

The scenario is pure tragedy. Via UNC lawprof Tamar Birckhead, who spent a decade in the trenches as a public defender, the story of  Cassidy Goodson offers nothing to warm one’s heart.

According to a news release from the local sheriff’s office, on Sept. 19, 2012, Cassidy Goodson went into labor in the bathroom of her family’s mobile home in Lakeland, Florida.  To hide her cries of pain, she placed a towel in her mouth and ran the water in the faucet. She used a pair of scissors to pry the nine and a half pound baby out of her womb and into the toilet, where she squeezed its neck until it stopped moving. Then she cleaned up the bathroom, showered with the dead baby, and placed the infant’s body in a shoebox along with her soiled clothes and towels.

Three days later, after smelling a strong odor coming from Cassidy’s room, her mother found the deceased newborn and placed a frantic call to the police. Upon questioning by homicide detectives, Cassidy confessed to choking the baby to stop him from breathing because she “didn’t know what to do with it.” Autopsy results have confirmed that the cause of death was asphyxia from strangulation and blunt force trauma. The ninth-grader is now being held at the county juvenile detention facility and ultimately could be sentenced to life in prison.

Of course, we’ve been down this road before. A teenage girl hides her pregnancy, gives birth in secret, and puts the infant in a trash bag or dumpster. The baby is discovered – sometimes alive, but more often than not, dead. The public responds with anger and disgust. The girl reports paralyzing fear and intense shame – for having sex, getting pregnant, not knowing what to do, and abandoning or smothering her own baby. The criminal justice system steps in, extracts a conviction, and imposes punishment – typically including a prison sentence.