Saturday, June 1, 2013

The War on the First Amendment Continues

So our President and his administration continues their assault on our constitution and on the relationship between the state and the citizen.

Special speakers for the event will be Bill Killian, U.S. attorney for the Eastern District of Tennessee, and Kenneth Moore, special agent in charge of the FBI’s Knoxville Division.

Sponsor of the event is the American Muslim Advisory Council of Tennessee — a 15-member board formed two years ago when the General Assembly was considering passing legislation that would restrict those who worship Sharia Law, which is followed by Muslims.

Killian and Moore will provide input on how civil rights can be violated by those who post inflammatory documents targeted at Muslims on social media.

This is how policies change. Small little interpretations are spoken by US Attorneys and people in a place of political power, and they become part of the background discussion of the living constitution. As speech takes on a new form speech is not respected as the right of all free men (who are the sovereigns of the country) but a right doled out by the state that identifies it as the new sovereign. Eventually these ideas form a doctrine that everyone accepts.

But just as with the famous broccoli doctrine question we are faced with a parallel on the most fundamental of all constitutional rights. If what some weirdo in his pajama's can post on the internet so long as it does not promote -criminal- conduct, what speech can the state not stop online or offline?

Their was a line drawn in the sand (called the Brandenburg test)

The Brandenburg test (also known as the imminent lawless action test)

The three distinct elements of this test (intent, imminence, and likelihood) have distinct precedential lineages.

Judge Learned Hand was possibly the first judge to advocate the intent standard, in Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), reasoning that "[i]f one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation." The Brandenburg intent standard is more speech-protective than Hand's formulation, which contained no temporal element.

The imminence element was a departure from earlier rulings. Brandenburg did not explicitly overrule the bad tendency test, but it appears that after "Brandenburg", the test is de facto overruled. The "Brandenburg" test effectively made the time element of the clear and present danger test more defined and more rigorous.

If a post on facebook that is rude, crude, inappropriate, and wrong: Does it meet this clear standard of law to cross the line into violence. Short of the sort of conduct that people only commit in isolated and hidden parts of the internet there is no speech on the internet that meets this standard of law.

Killian referred to a Facebook posting made by Coffee County Commissioner Barry West that showed a picture of a man pointing a double-barreled shotgun at a camera lens with the caption saying, “How to Wink at a Muslim.”

Killian said he and Moore had discussed the issue.

“If a Muslim had posted ‘How to Wink at a Christian,’ could you imagine what would have happened?” he said. “We need to educate people about Muslims and their civil rights, and as long as we’re here, they’re going to be protected.”

Except their are innumerable posts of that sort of nature by Muslims on Facebook and other places on the internet. And when confronted with such conduct in the past we have British law enforcement officers saying that they can't monitor every crazy post by a Muslim Imam on the internet.

So instead of monitoring the law abiding, we should monitor the law breaking

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