Probable Cause

I previously wrote a post titled “Judge Not,” so I couldn’t go with that again.  Then it occurred to me that the second part of Matthew 7:1 from the book read by almost as many Christians as non-Christians fits the current post better anyway.

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I haven’t posted much lately, I know.  To be frank, I’ve considered just taking down my blogs.  I’ve struggled with the decision as to what to do — and tried to understand why I feel the way that I feel.  It’s not that I don’t have things to say: I’ve written numerous posts.  I just never complete them because, well…it hardly seems worth it. 

Our system is irrevocably broken.  Nothing short of a new Revolution would fix it.  And I’m not at all sure the Americans of today can fix it even then.  We can only, at best, tear down the present Tyranny. 

And why is that? 

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When the United States of America was founded, one of the keystones of our nation was the establishment of an independent judiciary.

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Defense attorneys — and on rare occasions even prosecutors or judges — frequently bemoan the fact that those meant to enforce our laws do not always play fair.  We complain about things like police states. We complain about things like the loss of civil liberties, including the right to a fair trial. We complain about the gradual erosion of the United States Constitution and the fact that the so-called “parchment barriers”¹ therein contained against the abuses of the government which that document constituted are, these days, less strong even than that.

Most people, however, upon hearing this think, “Ahhh…those damn defense attorneys.  Always coddling criminals.” (more…)

1. James Madison, one of the Founders of the United States, once argued against a “Bill of Rights” because he felt it was a “parchment barrier” against abuses by a government.  Sometimes, I think that if he’d won out, we might be better off; Jefferson felt that “[t]he tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants.”  Jefferson said this blood was liberty’s “natural manure” and said, “God forbid we should ever be twenty years without such a rebellion.” [↩]

My last post laid the foundations for a discussion of Orin Kerr’s latest law review article, “Applying the Fourth Amendment to the Internet: A General Approach” (2010) 62 Stan.L.Rev. 1005.

Today’s post will focus on Kerr’s proposed application of the Fourth to the Internet.  In particular, I write about his “technology neutral” content/non-content doctrine, explaining, among other things, why that label is a misnomer.  (Or should I say why those labels are misnomers?) (more…)

Orin Kerr, of the Volokh Conspiracy — never trust anyone involved in a conspiracy — has just published an article for the Stanford Law Review about the Internet and the Fourth Amendment. The article has been discussed by Scott Greenfield, Jeff Gamso, and “Publius”; the last name is a pseudonym “for any contributor [to Affirmative Links] who wishes to use the name.” This time, Publius appears to be Jamie Spencer from Austin Criminal Defense Lawyer; he has written on this issue before.

I’m jumping into the fray because I’ve written a time or two about that quaint, ancient relic known as the Fourth Amendment myself.

Kerr’s article doesn’t really change the fact that nobody believes in the Fourth Amendment anymore. He as much as admits that when he says, “Technology neutrality assumes that the degree of privacy the Fourth Amendment extends to the Internet should try to match the degree of privacy protection that the Fourth Amendment provides in the physical world.”

My original intent when I sat down to write this article was to explain my disagreement with Kerr’s approach. As I began to write the set-up, I realized the set-up itself was taking on the dimensions of an article of its own. I don’t want to leave out the set-up, nor do I want to risk that people will avoid what I have to say because the article is too long.

Therefore I intend more than one article addressing Kerr’s proposal, with this one being concerned with foundational issues I think are important to any such discussion.

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Nearly fifty years ago, the United States Supreme Court held that all people — even poor people — are entitled to be defended by competent counsel.  Anyone who watches television knows that “if you cannot afford an attorney, one will be appointed to represent you.”

What they don’t tell you on television is that, increasingly, the attorney appointed to represent you will also be representing possibly as many as 200 other people at the same time.

Meanwhile, Fresno County continues to decrease the number of Public Defenders and necessarily therefore increases the caseload of those poor souls remaining.

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Adrianos Facchetti, a California “Internet Defamation Attorney,” writing the California Defamation Law Blog asks, among other things, if governments should regulate the Internet to control defamatory speech — however that might be accomplished.

I could only think of one response….

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The United States Supreme Court the other day decided that the United States Constitution should survive 9/11.

The Court ruled¹ 5-4 that detainees at “Gitmo” — the military base the U.S. military built in Cuba to try to avoid having to honor the Constitution — have rights under the Constitution. As one writer responded,

This is unbelievable! These people should have the same rights our victims of 911 had and all the soldiers who are trying to protect us from further attack! Just when you think this Court can’t get any more stupid, surprise!

I assume the second sentence was supposed to end in a question mark, because otherwise, it doesn’t make sense. I’m sure this writer did not believe that Gitmo detainees were supposed to have rights. And I have to agree. After all, who would have thought that the Founders of the United States of America would have wanted the Constitution to survive 9/11?

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1. Links in this story may have expired by the time you read this. I have no control over other websites. [↩]