The Supreme Court finished out its term by Throwing Out a Human Rights Lawsuit, and sending the Child Porn statute back for more consideration of its chilling effects (or not) in light of improvements in filtering technology.
Full text:
Judging only from the press reports, these are both ominous: It's not good that our government can kidnap people with no fear of civil liability. It's true that there is a diplomatic protest system, but it's very hard for foreign nations to get much from a superpower. Our courts are a greater constraint on our government than diplomats (note: this is only a claim as to relative efficacy, no more).
The Ashcroft v. ACLU 5-4 is going to put a lot of pressure on people to mandate internet architectures that are filtering-friendly. Although they don't have to be privacy-destroying technologies, they tend to be. And that could be quite ugly.
I wish I had time to write more about these decisions (and finish part III of my discussion of yesterday's trifecta), but I have a lot of preparing to do for my Amsterdam trip. I'm sure that the SCOTUS Blog will have lots of info.
If I get very organized, which is dubious, I may queue up an item or two to go online while I'm en route, but generally speaking it's possible blogging may be sparse for the rest of this week. It's certain to be less than the recent furious pace.
Meanwhile I'm waiting for someone to call this court's ducking of some major issues, and picking its shots on others, an exercise of the (I thought discredited?) Bickelian 'Passive Virtues'.
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Does the Alien Tort Claims Act holding mean that Maher Arar’s* suit in the E.D.N.Y. will get thrown out before discovery? It sounds like it from the decision, but I know very little about ATCA.
For all I know the Court is exactly right about what the statute says. It was a unanimous decision. But if it gets the Arar case thrown out, it’s unfortunate; I think discovery may have been our only chance to find out what happened. There’s an inquiry in Canada, but the U.S. does not have to cooperate with it. Congress has done nothing, and if the press isn’t paying sustained attention after Abu Ghraib they probably never will.
It would be really unfortunate if a combination of Rasul, Hamdi, Alvarez-Machain, the outcry over Abu Ghraib and Guantanamo, and the comparative lack of U.S. outcry over Arar, Rasul, led the administration to subcontract out torture instead of stopping it. Whatever went on in Guantanamo, I’m pretty sure that it was better than what goes on when we sent people to Egypt and Syria.
*The Canadian citizen deported to Syria to be tortured, oops I mean extraordinarily rendered.
The mind boggling thing is to contrast the Court’s pornography jurisprudence with it’s political speech jurisprudence, IE upholding the BCRA. I generally think Clayton Cramer is wonky on the subject of porn, but he’s got one thing dead right: Whatever motivated the Ashcroft v ACLU ruling, it sure as heck wasn’t a disinterested regard for freedom of speech, because they’ve already shown what contempt they hold THAT constitutional right in.
It’s not “Child Porn”, it’s about the standard of “harmful to minors”.
But yes, the results will be an ugly censorware PR campaign.
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