Freedom of speech

Justice Holmes, joined by Justice Brandeis, in his dissent in Abrams v. United States:

... But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Justice Brandeis, joined by Justice Holmes, in his concurrence to Whitney v. California:

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it. Condonation of a breach enhances the probability. Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.
Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.

On Sarah Palin and inspiration

This response to a friend's blog re-post got too long for the comment box. There are a few questions to explore:

1. Was Sarah Palin responsible in any way for the Giffords shooting?
2. What about her free speech rights?
3. How does this compare to Mark David Chapman reading Catcher in the Rye?

Was Sarah Palin responsible in any way for the Giffords shooting?

18 U.S.C § 2(a), which is an example of a statute criminalizing aiding and abetting a crime, reads as follows: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." The key words a jury would consider in this case are probably counsels and induces. A prosecutor would work to convince a jury that Palin's writings and rhetoric convincingly counseled violence or induced it in the attacker. It's not a requirement that Palin be a necessary element; it's not necessary to prove that this attack would not have happened without Palin's contribution. A jury would just have to decide that Palin suggested or supported such an action.

Frankly, it's pretty unlikely any jury would reach that conclusion.

What about Sarah Palin's free speech rights?

The Supreme Court decided in Brandenburg v. Ohio that some violent speech is protected by the First Amendment to the US Constitution. The Court decided that States could only criminalize speech "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This is a high bar for a prosecutor to reach in this case. Palin's web site was not apparently inciting imminent lawless action, and I don't think a jury would find that it was likely to do so either. While the web site listed individual lawmakers by name, and included gun sights targeting their districts, there was no direct call for violence, and most reasonable visitors would likely understand by the context that this was a political "call to arms" since this was published by the Palin PAC.

However the case isn't quite that open and shut. In 2003 the Supreme Court issued a relevant decision in Virginia v. Black, a case involving a statute criminalizing cross burning. While the defendants there claimed the statute infringed their right to free speech, the Court upheld the State's right to criminalize this form of expression because it was a "true threat"; the history of cross burning made this activity less an expression and more an intimidation. Here there is no statute prohibiting a publication of individual names with violent imagery, so Palin is not violating any law. However, if there were such a law, a prosecutor defending a conviction might look for evidence that such web sites have led to violence (e.g., against abortion providers) and try to make a similar argument.

Can you compare the Giffords shooting to the death of John Lennon?

Not really; an ambitious prosecutor would point out some salient differences. In particular, Sarah Palin did mention individuals by name, and placed gun sights (a symbol associated with violence) on their specific districts; Salinger's character did not shoot anyone, and especially did not mention John Lennon or anyone remotely like him. Because of these important differences, you can't say that just because it's unreasonable to associate Salinger with Mark David Chapman, it's therefore unreasonable to say Sarah Palin influenced Jared Lee Loughner. I think it's more compelling to do the analysis of her case on its own.

More browser security

The Electronic Frontier Foundation has released a new Firefox extension called HTTPS Everywhere. This extension will protect your online sessions (to some extent) by forcing your browser to use the more secure HTTPS protocol when an online provider makes that available. The rules apparently protect your use of Twitter, Facebook, Paypal, Wordpress, and other social and blogging networks.

If you want to use online services somewhat safely, use Firefox, with HTTPS Everywhere, Noscript, Petname, and other extensions which improve your browser security.

OurCourts is now iCivics

I've written before about Justice O'Connor's OurCourts initiative which develops games and curricula for middle and high school students; the idea is to deliver lessons about the Constitution and our form of government in a more compelling fashion. My kids have pre-tested the games; but so have I, and they're pretty fun. The foundation is now called iCivics, and has expanded a bit; even if you visited them before, please check them out again, as they've added more content, especially for teachers.

Where there is injustice ...

A quote from Chief Justice Earl Warren; it is apparently the epitaph on his grave stone:

"Where there is injustice, we should correct it; where there is poverty, we should eliminate it; where there is corruption, we should stamp it out; where there is violence we should punish it; where there is neglect, we should provide care; where there is war, we should restore peace; and wherever corrections are achieved we should add them permanently to our storehouse of treasure."

Justice Harlan on protecting liberty with the Fourteenth Amendment

Excepts from his dissent starting on page 523:

Due process has not been reduced to any formula; its content cannot be determined by reference to any code. ... The balance of which I speak is the balance from which [our country] developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. ...

[The character of the Constitutional protection of liberties] must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause [of the Fourteenth Amendment] cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints ...

It is the purposes of these guarantees and not their text, the reasons for their statement by the Framers and not the statement itself, [ ] which have led to their present status in the compendious notion of "liberty" embraced in the Fourteenth Amendment.

Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. ... The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take "its place in relation to what went before and further [cut] a channel for what is to come." (citing Irvine v. California, dissent).

This sounds pretty prophetic to me.

What do your online photos reveal about you?

I've written before about the fact that all your data on the internet can become public at any time, and the fact that on your phone or other devices, "apps" can be disclosing your location or other information. Another thing to be aware of is that photos that you place on the internet can leak information about you as well.

What sorts of data are available in photos? Your camera puts in statistics about the photo itself: size, resolution, color data, etc. There's also information about the camera, information about the environment (including, in some cases, GPS coordinates), and date/time stamps. Some cameras apparently even let you "tag" photos, with things like the subjects/participants.

What can this tell other people about you? Well, that flattering and innocuous picture you put up as your profile picture on Facebook might have the GPS coordinates of a bar or nightclub. A collection of your pictures, tagged with location and date information, could let people know you travel a lot to expensive locales. Tagged pictures with names help others calculate who your friends are (or other people you hang around with). Sometimes information that's stored in just one picture is no big deal, but the photos in the aggregate can paint a picture of you that you might not expect. Read the article; you should at least know what can be in the photos.

Of course, photo upload sites like Flickr and Facebook could help you by purging that information for you. As a matter of fact they typically do when they convert your uploaded photo to another format or size; however, if the original file is still available for download, the information your camera saved in there will travel with it. And of course if the site may keep the original, or the data from the original, for its own use. You may decide it's not worth the trouble to sanitize your photos before you share them - but I think you should at least be aware of this issue.

Calculus, the musical

Our family went to see Calculus, the musical when they were in town a year or so ago. It's an amusing play describing Newton's route to calculus, including old tunes updated with math lyrics. Some examples include:

• 5 Sizes of Numbers (In the style of: The Beatles - In My Life)
• The Limit’s Alright (In the style of: The Who - The Kids Are Alright)
• Differentiabul (In the style of: They Might Be Giants - Istanbul(Not Constantinople))
• Power Rule (In the style of : Petula Clark - Downtown)
• Under The Curve (In the style of: Red Hot Chilli Peppers - Under the Bridge)
• and a favorite: L’Hôpital(I have Calculus in the Heart) (In the style of : Bonnie Tyler - Total Eclipse of the Heart)

At their web site they have some new albums for sale, and they say they're ready to come around on tour again. I'd love to figure out how to bring them to Houston, either to Rice or to a local high school. Anyone interested?

The value of being open

The Register reports that the security on the iPhone 4 can easily be bypassed by a particular sequence of key presses. Apparently earlier iPhones suffered from a similar issue.

On a recent earnings call, Steve Jobs amusingly described Apple's iPhone as being more "open" than Google's Android operating system. If the iPhone really were in fact open at all, security problems like this would have more likely been found and fixed before they were widely distributed. End users would have been able to patch their own phones, if they wanted to, using the source code to Android itself. There are how-to articles and online support communities to help. And finally, if iPhone were really an open platform, other companies or enthusiasts could port Adobe Flash or Java to run on it.

The bottom line is you will never be able to fully trust your machine if it is running Apple software. You don't know if it's secure, and without source code you will never know if apps are stealing your data or are making transactions on your account. It's sad to hear Steve Jobs trying to claim the mantle of being "open" when it's so clear he wants to completely control the experience of every one of his customers - to their detriment, with at best an ephemeral benefit in return.

Firesheep

There's a new Firefox plugin called Firesheep which helps people hack your social network accounts. Here's some information about what it does and how you can react to it.

What it does

Firesheep configures your network connection to monitor the traffic your neighbors are generating. Looking at their network traffic, the plugin can find any "cookies" transferred between your browser and the social networking site. Once it's grabbed the cookie, it can implant their cookie into your browser, giving you access to their account. Social network sites which are vulnerable include Facebook and Twitter.

When are you vulnerable?

Although the plugin sounds pretty powerful, it's only dangerous in a particular environment - one in which your machine can see the network traffic of your neighbors (and they can see yours). So if you are connected to the network via an open WiFi hot spot, you can see the traffic of other people. If you're at work but they use an old security mechanism called WEP then others can pretty easily see your network traffic; I don't think the current Firesheep plugin handles this case, but it wouldn't be too difficult to add.

Wired networks are pretty safe. Modern switches and routers keep you from seeing the traffic of other machines on the network, even on your local network segment.

What can you do to be safe?

• Contact your social network vendor and insist they encrypt your entire session (not just the login sequence) via SSL. Google has already configured Gmail to do this by default. And then while you're waiting:
• Don't connect to your social networking site over public networks. Don't use Twitter or Facebook at a coffee shop, or frankly even on your phone, unless you don't mind someone having access to your account. Make sure your WiFi at home has a WPA2 password configured.
• Don't let it matter. Make sure no other sites will trust your credentials from your social networking site; this is an issue if you use OpenID at the other sites, and those sites trust your social network identity. You should also make sure you don't mind losing any items or value you might have stored up in a game or other application in your account, email or photographs stored there, etc.