Tag Archives: free speech

Did Lois Lerner Waive Her 5th Amendment Right?

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At the start of her testimony before the House Oversight and Government Reform Committee, Lois Lerner, the head of the IRS facility that ran the targeting of government-disfavored Americans and groups of Americans, made a brief statement, asserted her 5th Amendment right not to testify against herself, and then refused to testify further.  Lerner said, in her statement,

On May 14th, the Treasury inspector general released a report finding that the Exempt Organizations field office in Cincinnati, Ohio used inappropriate criteria to identify for further review applications from organizations that planned to engage in political activity, which may mean that they did not qualify for tax exemption.

On that same day, the Department of Justice launched an investigation into the matters described in the inspector general’s report.  In addition, members of this committee have accused me of providing false information when I responded to questions about the IRS processing of applications for tax exemption.

I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee.

The bulk of the rest of her testimony was a statement that her counsel had advised her to plead the fifth, and she was doing so.

The Volokh Conspiracy (the above link) polled a number of professors with criminal procedure expertise on the question, including a bunch who were experts on the 5th Amendment in particular; their collected response was summarized thusly:

Opinions were somewhat mixed, but I think it’s fair to say that the bulk of responders thought that Lerner had not actually testified because she gave no statements about the facts of what happened.  If that view is right, Lerner successfully invoked her 5th Amendment rights and cannot be called again.  But this was not a unanimous view, it was not based on the full transcript, and there are no cases that seem to be directly on point.  So it’s at least a somewhat open question.

I’m not a lawyer, nor do I play one on the radio.  However, I disagree with these guys.  One of the things on which Lerner stands accused, as she acknowledged in her statement, is giving false testimony.  Her statement that she did not provide false information is an explicit statement about a fact of what happened under that accusation; it seems to me that she waived her 5th Amendment right in this area.

Furthermore, her broader statement of having “not done anything wrong…” in the context of her prior statements, which tie this claim explicitly and exclusively to the subject of that hearing, strikes me also as a statement about the facts of what happened under the implied accusations, and so again she seems to have waived her right—this time broadly so, concerning all of the subjects of the hearing.  This statement isn’t even akin to a plea of “not guilty;” it’s a statement of “I didn’t do the things related to this case about which you intend to question me.”  A “not guilty” plea is only a statement that the accuser cannot prove his case—which is all a not guilty verdict means: the state did not prove its case.

An Outcome of Big Government

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The proper lessons of the unfolding IRS scandal are twofold.  First, any effort to have the IRS police advocacy activities of social-welfare organizations is bound to be clumsy and prone to degenerate into either selective or broad witch hunts.  Second, the remedy is not to further limit political speech by nonprofit entities—which would certainly raise significant constitutional issues—but to encourage such speech by imposing fewer restrictions.

That combines with this:

There are two valid takeaways from the IRS scandal [and the other scandals: AP; Benghazi; Sebelius’ HHS “fund-raising” for Federal government’s health exchanges, just exposed this year].  First, it confirms that big government, whose power Obama is bent on expanding, cannot be trusted to behave properly.  Second, it calls for further investigation to determine how high up the chain the wrongdoing extends and whether the administration acted promptly to stop the targeting once it learned of that activity.

The need for an investigation and the firing of miscreants and subsequent jailing of those miscreants whose behavior was criminal certainly is warranted.  However, the IRS’ unconscionable behavior, and the Obama administration’s behavior vis-à-vis the other…scandals…, aren’t unique to the Obama administration.  These are the inevitable outcomes of Big Government, even when that government acts with the best of intentions.

Our Federal government needs to be drastically shrunk in size and scope, returning it to the small, limited, and so controllable, entity that it was designed to be.

A first step in this, in the present context, would be to do away with the distinction between 501(c)(3) and 501(c)(4) organizations—the legal distinction is wholly artificial and without meaning, anyway.  All entities engaged in otherwise tax exempt activities must be able to engage in some political activity.  That’s at the core of the speech clauses of the 1st Amendment:

Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There’s nothing in there about “except for when individual Americans or groups of them peaceably assembled are doing certain government-identified things.”

Subsequently, reform the tax code altogether to a single low, flat tax and thereby eliminate the need for tax exempt status for any organization.

More Government Intrusion

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Although the Internal Revenue Service denies that it actually does this, of course.  Documents obtained from the IRS by the ACLU pursuant to an FOIA request demonstrate that the IRS believes that it can snoop into private email without first obtaining a search warrant.  The warrant, of course, would require the IRS to convince a court both that they know with some specificity for what they’re searching and that they have probable cause for the searching.

According to a 2009 IRS employee handbook, though, the tax agency said the Fourth Amendment does not protect emails because Internet users don’t “have a reasonable expectation of privacy in such communications.”

And

…the current online version of the IRS manual says that no warrant is required for emails that are stored by an Internet storage provider for more than 180 days.

Never mind the degree of mind reading required of the IRS (and the courts) to arrive at a conclusion concerning what a private citizen has in his own mind concerning his own expectations.  This is a blatant attempt by the IRS simply to slide past our courts as if they had no existence—or relevance to the Internal Revenue Service.

On that matter of email older than 180 days, or on opened email not requiring a warrant, it seems to me that the age and opening criteria create a false dichotomy in privacy and 4th Amendment rights.

Age is wholly irrelevant.  Privacy has no expiration date.

Having opened a correspondence in no way puts that correspondence, of necessity, into the public arena.  Opening a letter and leaving it on a table next to my couch at home certainly does not, nor does leaving an email on my personal PC or laptop.  Nor does having a copy of my email on an Internet service provider’s servers, whether I’ve opened the email or not.  The ISP’s failure to manage its storage in no way causes any alteration of my privacy.

Too, in what way are providers required to turn over that which does not belong to them—they’re pipelines, not publishers or authors in this context, after all?

Finally, a question: what’s the government’s “view” on encrypted correspondence that’s been left on a provider’s server for more than 180 days?  Am I obligated by that, somehow, to give up the encryption key on government demand with no warrant extant?

Mayor Michael Nutter and Censorship

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The Weekly Standard ran an article in their 15 Apr issue concerning an egregious assault on free speech by none other than the self-important mayor of Philadelphia, Michael Nutter.  It seems the Philadelphia Magazine was so rude as to run an article about one journalist’s view of “Being White in Philly,” and Nutter has used his office as mayor—not his status as resident—to attack both the magazine and the article’s author and publisher.  His official letter—on city stationary—to the Philadelphia Human Relations Commission can be read here and here.

In response to Nutter’s assault, I sent the letter below to the Philadelphia Human Relations Commission.  We’ll see whether the PHRC takes it seriously, and by extension whether they take race relations and/or free speech seriously.

Ms Rue Landau
Executive Director
Philadelphia Human Relations Commission
601 Walnut Street
Suite 300
South Philadelphia, PA 19106

Dear Ms Landau:

I am a blogger, but that’s not why I’m writing to you.  I’m writing to formally object to an egregious attempt at government censorship by Mayor Michael Nutter, an assault that, if allowed to go unsanctioned, harms not only Philadelphians, but all Americans.

Last month Mayor Michael Nutter sank to a new low even for a member of a party that has long pretended that its constituents were the only citizens civically engaged and socially active in the Philadelphia area.  His March letter, “Mayor Letter to PCHR,” published among other places at Philly.com’s http://media.philly.com/documents/MayorLettertoPCHR.pdf Web page, aggregates the disparaging beliefs, the negative stereotypes, the ignorant condemnations typically, and historically ascribed to those who disagree with his party’s principles into one pathetic, uninformed letter that objects to an article in Philadelphia Magazine.  Mayor Nutter, among other things, decries those Philadelphia residents, “many of whose names either the author or the speakers themselves were too cowardly to provide,” for their anonymity without any trace of the irony that not only is anonymity a right in free speech, Mayor Nutter demonstrates the necessity of that anonymity with his governmental attack on them and on that article.  That a mayor of a major city in the United States thought a collection of these despicable, over-generalized, mostly foolish objections to a civil discourse the trend of which he disapproves rose to the level of warranting governmental attack is unfortunate enough.  Worse, the beefs of the mayor of the nation’s fifth-largest city about the “offending” article—all of them—go unanswered by him: what matters is that those who wrote and published this speech of which he disapproves be investigated, to allow the mayor to pass along his own misguided perception of certain others as a group that, in its entirety, is dishonest, uninitiated, irresponsible, and largely bigoted.  Moreover, compounding the sin of having made his complaint an official governmental charge, the mayor cynically and hypocritically insists that his own motive is purely for the benefit of all Philadelphians.

Anyone who reads a newspaper or watches network (or cable!) news knows that conversations about race must, of necessity, include not only black but Caucasians, Latinos, and members of other ethnic groups as well—either in the same conversation or individually in a collection of conversations—a position suspiciously absent from a letter that decries an article that attempts to be one of those conversations about race.  More egregiously, Mayor Nutter, who quotes the article that so offends him that “[w]hat gets examined publicly about race is generally one-dimensional, looked at almost exclusively from the perspective of people of color,” commits the same sin, by examining race exclusively from the perspective of, apparently, a city government that has used isolated argument by groups that are not “in” to draw pervasive generalizations that the mayor then ascribes to the belief system of Philadelphia’s entire non-liberal population.  Mayor Nutter avers his objections decision by decrying, first, the magazine’s statement that it “is a story” merely because it features white Philadelphians, as opposed to Philadelphians of color, talking about race, as if merely a government official claiming the article’s illegitimacy makes it so.  Mayor Nutter’s second contention seems to center on the premise that publishing a piece about race to which he objects renders the problems of the city’s “underclass” no longer his party’s, and its alone, to fight, as if the city’s race relations—good or ill—are not a matter for all Philadelphians, or more broadly, for all Americans.

The American Heritage Dictionary defines “letter” as “2. A written or printed communication directed to a person or organization[,]” with no intimation of factual basis inherent in the concept.  However, as Mayor Nutter notes about the article that offends him, trying to deconstruct his letter’s many logical fallacies not only is an exercise in futility but offers his letter unearned credibility.  Obviously, unless the Mayor personally knows the publisher or author, an assumption of nefarious purpose by him is patently foolish.  Obviously, the many positive, quality opinion pieces and news articles of the Philadelphia Magazine‘s publishers and journalists, and those of journalists of all political persuasion, are denigrated by the cynical presumptions of a mayor whose job, after all, seems to be to root out all writings of which he personally disapproves.

Rather than raging against the abject ignorance reflected in this uninformed, ill-advised, ill-considered, uninspired, and thoroughly unimaginative letter, I believe we should take the opportunity Mayor Nutter’s letter offers to conduct a more comprehensive, fact-intensive evaluation of the racial issues and attitudes that provide the prism through which not only Mayor Nutter’s administration, but administrations at all levels across the country, view the many challenges that confront us as a community and as a nation.  I therefore request that the Philadelphia Commission on Human Relations, which is charged by the Philadelphia Home Rule Charter with a mandate, among other duties, to “institute and conduct educational programs to…promot[e]…understanding among persons and groups of different races, colors, religions and national origins,” conduct an inquiry into the state of racial issues, biases, and attitudes within and among the administration of the City of Philadelphia.

Also, because “[i]n the performance of its duties the Commission may cooperate with interested citizens and with public and private agencies,” I ask that the Commission take testimony from individual citizens and from organizations including but not limited to community groups, non-profit organizations, community development corporations, law enforcement agencies, and religious organizations—perhaps citizens and organizations representing the ethnic, economic, and social diversity easily found in your great city—for the purpose of publishing a report on the state of racial issues in Philadelphia, identifying the racial attitudes, both positive and negative, that pervade the Philadelphia city administration’s civic interaction and discourse; the obstacles and opportunities that those attitudes present; and recommendations for the improvement or enhancement of the city government’s racial interaction and the encouragement and embrace of the diverse culture that Philadelphia should be able to enjoy.

Finally, I ask that the Commission consider specifically whether Mayor Michael Nutter is appropriate for rebuke by the Commission in light of the potentially inflammatory effect and the reckless endangerment to Philadelphia’s racial relations and more broadly to free speech possibly caused by him with his official, government-sanctioned complaint to this Commission, made with a view to attack the speech of which he personally disapproves and whose speakers he used government auspices to seek to sanction.  While most Americans fully recognize that constitutional protections afforded the press are intended to protect the media from censorship by the government, Mayor Nutter clearly does not.  It’s true that the First Amendment, like other constitutional rights, is not an unfettered right, and notwithstanding the First Amendment, a publisher has a duty to the public to exercise its role in a responsible way.   However, government is not allowed, under our Constitution, to dictate the definition of “responsible.”  Mayor Nutter’s cynical claim of equivalence between a serious article concerning race relations is akin to “shouting ‘fire!’ in a crowded theater,” is little more than a disingenuous attempt to arrogate control over a conversation about so serious a matter as race relations to government.  I therefore ask the Commission to evaluate whether the “speech” employed in Mayor Nutter’s letter is itself prejudiced, fact-challenged generalizations and so an extreme reaction.  Only by debunking myth with fact, and by holding accountable those who seek to confuse the two, can we insure that the prejudices reflected in the letter are accorded the weight they deserve: none at all.

Sincerely,

Eric Hines
APlebesSite.com

Big Brother Alive and Well?

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The House Judiciary Subcommittee held a meeting a week ago Tuesday on potential new provisions of the Electronic Communications Privacy Act (ECPA) of 1986, and the outcome was very disquieting.  Richard Littlehale, of the Tennessee Bureau of Investigation, made this recommendation, and he was serious:

Billions of texts are sent every day, and some surely contain key evidence about criminal activity.  Text messaging often plays a big role in investigations related to domestic violence, stalking, menacing, drug trafficking, and weapons trafficking.

The subcommittee wound up suggesting longer retention times of interpersonal electronic messages as well as the creation of expedited federal access to these databases.

That’s the ticket: we need to start prying into everyone’s personal business because someone, somewhere, might be thinking about committing a crime.  Our 1st, 4th, and 5th Amendments need to by federally regulated.  Sure.  That’s the story, and they’re sticking to it.

Already, many of the message transporters and facility providers retain copies of our electronic correspondence for inordinately long times: Verizon, for instance as recently as 2010, kept customer text messages on file for three to five days, while Virgin Mobile stored them for 90 days.

Other providers haven’t been so cavalier with our private correspondence.  AT&T (then Cingular Wireless in the text-messaging arena), Sprint, and Nextel didn’t hang onto any of it for any length of time.

Of course, that means these…persons…in the House need to standardize message handling.  All for the convenience of government.  Littlehale talked about this, too.

We’re at the mercy of the service providers to determine how long it’s going take them to comply with that request [for the customer’s messages].  I would suggest whatever the level of standard of proof, the thing that really matters most to us at state and local law enforcement is prompt response.

Well, I would suggest that this is a textbook example of why none of the providers should retain this information at all, for any length of time.

And this from Republicans and Conservatives.