Probably appears worse than it is, but it does appear to be in a pretty sad state now.
The Founding Fathers are probably turning in their graves.
Three factors driving law and politics in the US, IMNSHO:
money: big business, work the system for profit
fear: government works the system for more control
selfism: citizens (neoliberals, Bible Belt, etc) working the system to ensure nothing will be done for the public good
This is the case in every country. Those at the top will take an inordinate amount of time to make rules that benefit themselves and their friends.
The primary difference between the US and other countries is that the US constitution provides a means for the citizens to fight back against the most outrageous of offenses. Now, that doesn't mean it always works. In fact, it rarely does. But it does, in fact, work occasionally, which is better than nothing.
What way does the US constitution provide that other countries don't (besides the firearms shenanigans)?
2. The right to speak freely against the government. This is culturally extended to other targets of speech as well. Includes written, artistic, and some obscene works.
3. The right to not have soldiers commandeer your property, even in times of war.
4. The right to be safe in your possessions against arbitrary search. In the US, a police officer can't just pull you aside and search you. They need to have a clearly defined reason to do so or get a search warrant from a judge.
5. Every citizen above a certain age has the right to vote and be heard in government, regardless of political affiliation or sex.
I'm bored of listing things. Go read the constitutional yourself if you're curious. Two and half centuries later, and it's still a document that puts much of Europe and the rest of the world to shame. As I said, it's implementation isn't perfect, nothing in life is ... but it's certainly much better than the alternatives currently on display elsewhere.
1. Applies to most european countries as well. Some, like Scientology, are actually called what they are, scams. Not because of the dogma, but because they put greater emphasis on raising money.
2. And what EU member country doesn't have this?
3. The US has only been invaded by a) the British b) itself. Just like torture, when push comes to shove the government will find a way around this. Do remember the government confiscated property from the southern gentry by classifying them as traitors.
4. Minorities (black, hispanic, asian, arabic) throughout the US would like to have a word with you. Hell, NYC doesn't even try to gus it up. They call it "stop and frisk".
5. You have the right to vote. Not all states have to make it easy or convenient to do so. I'm lucky in that I live abroad so I'm entitled to an absentee ballot. If I lived in my last US address I could not vote by mail on my free time. I would have to go to the polls, on a tuesday, during working hours.
Europe isn't one country so I don't know why you describe it as such. I could equally say the US has a beheading problem since Mexico is right there and they are the same, right?
No.
http://nationalinterest.org/commentary/western-europe-vs-rel...
> 2. And what EU member country doesn't have this?
Germany, Austria, etc.
http://en.wikipedia.org/wiki/David_Irving#Persona_non_grata
Mind you, the man is absolute human garbage, but the entire point of protecting speech is protecting the most despicable kind. It's fairly easy to tolerate the pleasant variety.
> 3. The US has only been invaded by ...
My point still stands. Even if the US throws this one under the bus in the future, my point still stands. It's not about a perfect record, but a good one. The US has a good record on this.
> 4. ... Hell, NYC doesn't even try to gus it up. They call it "stop and frisk".
I live in the NYC area, so I know about this a bit. In each case, the person consents to the search. Yes, it's pretty scary when a cop walks over to you and tells you to empty your pockets. You need to have balls to say "No" and "I do not consent to any searches". But then again, any right given to you is pointless if you don't have the balls to exercise it.
> 5. You have the right to vote. Not all states have to make it easy or convenient to do so.
You don't have a right to a convenient process, merely a process. It's a wonderful thing to reach a point where people have the wherewithal to bitch about how convenient voting is, rather than if their vote is actually counted. Mind you, I'm of the same mind as you, I think we should be able to vote on the Internet. Lately, my home state of New Jersey has made an effort to permit this (albeit, in response to a natural disaster).
Yeap. Moving the goalposts. You said "The right to speak freely against the government".
If you said "free speech" in general, yes, you'd be right.
But you said "speaking out against the government".
Right now, you've only shown that the US is somehow better because you're allowed to freely deny the Holocaust. Let's put your "god hates fags" guy in the same category. Such a free country!
See, my point is not that these anti-holocaust-denying laws are silly, they are and I wish they'd go away.
The point is, how does your "free speech" protect you when you've actually got something to say. So far you've demonstrated American citizens have the right to inane and offensive yelling, that doesn't actually speak out in any effective way against the government.
Let's see some real examples, where someone exercised their right to free speech of something that actually made the government actually really uncomfortable that actually really led to change, as well as a similar example where this was not possible in a EU country because its people didn't have the right.
And there's been enough examples, also in the US, of people gagged (with legal rulings) because of what they would have to say would make the government uncomfortable.
In practice, your right is the Freedom to Scream Dumb Shit. Don't delude yourself it's actually anything more than that. Maybe "Freedom to play court jester" sounds a bit more forgiving. I'm not saying the EU-"no holocaust denying"-countries are any better, but it's not "free speech" if it only protects raging lunatics.
> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.
Then you spend the entire post ranting about what can really be summarized as:
> In practice, your right is the Freedom to Scream Dumb Shit.
Ok. Are you the arbiter of what is and is not "dumb shit"? Because as long as there is somebody deciding what is and is not dumb, then you don't have the capacity to speak your mind. You merely have the capacity to speak what everybody else is already thinking.
And the point wasn't that much of Europe is some sort of third-world cesspool. It isn't.
The point was that the US Constitution provides protections which are not clearly codified in the EU, beside the right to carry arms. Even though the EU is a modern invention, while the US Constitution is the oldest constitution still in use.
Last time I checked, Belarus was in Europe.
It's actually a bit simpler than that. Any set of rules will allow certain segments to rise to the top. Once there, they have great interest in keeping the rules in their favour, but they don't have to take all that much time making the rules favour them in the first place.
It'd be interesting to explore whether the space of rules that keep everyone on an even keel include any rule sets that we'd actually want to live under, though. Ever read "The Lottery in Babylon" by Borges?
http://www.guardian.co.uk/world/2013/mar/01/quebec-language-...
Well, not every country is like that. In many others lobbying is illegal and people who do it are severely punished. Any connection with a business is strongly frowned upon, and if the laws a politician is voting for turn out to support his/her company or his family's business, the negative press will pretty much destroy their career as it has happened many times in the past. Meanwhile, in the US, politicians are very well known for making money thanks to policies they themselves wrote, and it has been a plague of both senators and presidents of the United States.
The problem is, that the US is calling our approach socialist. The first question we always ask is - how is this going to affect people? Most of the time the people's interest is put before companies interest. Media companies lobbying for making breaking ToS criminal offence? They can piss right off, this does not benefit people in any way. Monsanto wants to grow GMO crops in our country? Sure, but only after they show the documentation that its safe for people and does not affect local businesses. I can't imagine Microsoft ever being given a fine in the US for monopolistic practices - in the US it's probably just how you do business and no one sees anything wrong with it. In the "land of the free" you are also free to exploit your employees, because they being "free" can just change jobs,right? Well, in most of the EU you need to guarantee decent working conditions, health insurance and you can't work more than X number of hours per day. Is that bad/socialist? Maybe, but I know for certain where I would prefer to live and work!
And sure, its very,very far from perfect, but I am pretty sure its nowhere as corrupt as the US government. Mostly because in US it's not corruption, it's legitimate business.
> companies can have a direct effect on laws by pouring money into the government,so it kind of is democratic, right?
That's not the only way to buy influence.
> Monsanto wants to grow GMO crops in our country? Sure, but only after they show the documentation that its safe for people and does not affect local businesses.
So this only applies to Monsanto, or do local companies have to do the same things?
> In the "land of the free" you are also free to exploit your employees
Utterly untrue. You have no idea what you're talking about.
> And sure, its very,very far from perfect, but I am pretty sure its nowhere as corrupt as the US government.
How can you possibly know?
It took ten (1998-2008) years before the US minimum wage went up.
That's 10 years without a pay rise for the unskilled worker of America.
It that's not an example of worker exploitation I don't know what is?
Additionally, in your example while the federal minimum wage might not have increased many states have their own minimum wage laws that have changed over the period you describe.
The closest statement you could make is that an absence of minimum wage laws may make it legal to employ people at an exploitatively low wage. This is not really the name thing.
To answer this question you have to go no further than to study history.
When there where no minimum wage laws workers where exploited.
You have to go back no further than the first industrial revolution to see evidence of this.
Now that exploitation brought about the rise of the union movement.
I don't think it is a coincide that as we now witness the decline of the union movement, there is a corresponding rise in the exploitation of workers.
Those who don't study their history are destined to repeat it.
This would naturally apply to any company, local or foreign.
Just six words: "right to work", "at will employment".
"Well, in most of the EU you need to guarantee decent working conditions" You also do in the US. See OSHA safety standards. Also US has much stricter anti-harassment and anti-discrimination laws and rules than much of the EU. Comments that would be acceptable jokes in the workplace in Denmark could get you fired for creating a hostile work environment in the US.
Maybe instead of just slandering the US, you should learn a bit more about it.
I couldn't believe this when I first heard of it: Some (or most?) states have a "different minimum" (? yeah ..) wage for certain types of service jobs (waiters, etc) that exclude some arbitrary amount they are supposed to get as "tips".
If that's not something that's purely beneficial to the business and puts a burden on the individual person, I don't know what. It makes the whole concept of "minimum wage" laughable by setting an impossibly low one for a certain class of jobs ("tip money" isn't guaranteed so you can't count it as part of the minimum wage, the guarantee is the whole point). And then it turns into a situation where the customers (nicely sidestepping the business) are made to be felt responsible for the servants to make "minimum wage", but they aren't responsible at all, it's charity.
http://www.sweden.se/eng/Home/Work/Life_in_Sweden/A_multicul...
You'll get diversity when there isn't a single majority group. Put all of Europe together (including western and eastern), that would be reasonably diverse.
So, just dismissing comparisons with the Scandinavian countries based on homogeneity of population might be hasty.
They are different. E.g. the UK has `socialistic' health-care.
Did you, by chance, mean "voting"?
How quaint.
Suing obviously. Legal action is the American way.
I.e. that not everything is better as a confrontation.
There's even a good documentary made to throw some light at this subject.
I don't mean to diminish the significance of any particular issue, but this is definitely true for much of what you hear about the US. Our media, both mainstream and alternative, tends to revolve around scandal and outrage, and there's an apocalyptic undertone that we love to hear in everything. Imagining events as fragments of gigantic intractable problems that may soon crush us all infuses our opposition to them with a sense of heroism so American that we feel naked without it.
This rings so true. I think you just hit upon one of the reasons why American politics is so polarizing. Maybe middle ground and slow progress don't get talked about because there's no bad guy to rally against.
Yes but, what if, this itself really is ... a gigantic intractable problems that may soon crush us all...?
Keep in mind that the Founding Fathers were the big business interests of their time.
"Corporate and big business interests", i.e., publicly traded companies, are responsible for the majority of wealth creation (source: well it's obvious, but see for example William Bernstein, "The Birth of Plenty".) So what you said can be rephrased as, "The US system works to enable wealth creation", or in other words, "The US system is optimized for providing the best standard of living for its citizens." Which is exactly the case.
What raynier is saying (I think) is that if it is illegal to trespass, then it is illegal to trespass for purposes of whistleblowing because that is still trespassing - imagine if they had trespassed, filmed, and found nothing illegal. If one of the farm workers were to film the video, there would have been no trespassing - it would constitute whistleblowing.
Not exactly. What I'm saying is:
1) The Constitution only prohibits governments from restricting free speech;
2) What you do on other peoples' private property is rarely if ever considered free speech or free expression.
Many of these bills are explicit about not just targeting the people
who do the investigation but the people who distributed it, who
republish it. For instance, there was an investigation a couple of
years ago that at the same time the group, Mercy for Animals, was
conducting the investigation ABC news was following along with it,
aired the same footage, after they verified it, and it drew national
attention to this and criminal charges. Under these bills, in North
Carolina, for example, both the investigator and the journalist would
be wrapped up together.
I'm looking for more references now.
However this law in Indiana does, http://www.in.gov/legislative/bills/2013/SB/SB0373.2.html
IANAL but this appears to make distribution of such recordings illegal:
Makes it unlawful recording of agricultural or industrial
operations, a Class A infraction, for a person, with intent to harass,
defame, annoy, or harm, to: (1) enter real property that is owned by
another person and on which agricultural operations or industrial
operations are being conducted; (2) take a photograph of or make a
video recording or motion picture of the real property, structures
located on the real property, or the agricultural operations or
industrial operations being conducted on the real property; and (3)
distribute the photograph or recording; without the written consent of
the owner of the real property or an authorized representative of the
owner.http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Ro...
So say an employee that's not an animal rights activist sees something deplorable and records it as evidence. Only then are they considered to have trespassed - flying in the face of whistle-blower protections that have been in-place in countless other industries for decades.
If what's happening is a crime - and I believe animal cruelty still qualifies (even if it occurs on a farm) - at what point does someone that chooses to look the other way become a co-conspirator?
http://en.wikipedia.org/wiki/Whistleblower_Protection_Act
which only applies to Federal agency employees.
To the best of my knowledge, individuals who are not Federal employees that engage in whistleblowing do so with the very real possibility that there will be permanent professional retribution.
professional retribution is fine. That is like getting fired.
Going to jail and being labelled a terrorist is not professional retribution.
For one, there is no such thing as unified "whistleblower laws." There are whistleblower laws in various states covering various domains, forming a legal morass that is near impossible for a human to navigate unaided.
But more importantly, abiding by every one of these laws still results in years of legal limbo under attack from the superhumanly powerful entity that you as a moral person managed to piss off, bankrupting you, ending your marriage, and making you a damaged, nervous wreck. No whistleblower says they'd do it again if they had the choice.
This is the protection your laws provide.
I sadly can't yet link to a source, and am not sure how much I can say about how I know this, but I will say there'll be a great article out in a month or so on this topic in a major print publication.
Hey a dead cactus, in a minuscule pot... call the FBI!
For that matter, feel free to report plant abuse even if there are not laws against it, just don't expect anyone to care.
And this the sad fact that I want to stress.
Most people see only an invented and small part of the reality. Plants are much more important to the humans that animals.
To classify a living organism as good because it has neurons and can emit noises (like a clam?) or bad because it has chloroplasts instead and can not move quickly (like a Mimosa?) is a real nonsense. Inherited stupidity.
Same as to protect common animals with four legs but to crush rare animals with six legs. Same as to call the police because we can not stand that somebody kills a chicken and feeling soo virtuous eating soy that was cultivated killing thousands of animals and plants. Same as to ignore that we, humans, are omnivores, and our gut is neither a moral nor amoral structure.
Plants provide the 99% of the energy that moves the chain food and that permits the human life on this planet. Plants provide water, and we, the people, are made of more than 60% of pure water. We should be grateful to those magnificient creatures... Yes, we can argue that plants can not cry... and what's the big fuss? We don't expect a lattice singing opera. We are just scratching the surface about the complex plant communication (chemical, electrical)... So we chomp, ignore, cut down and poison the plants, and protect the animals that are plant eaters until the exhaustion of the resources... yep, human moral.
To be clear, my classification is tuned very far to one extreme. That is to say, I would eat anything given the opportunity (in some cases necessity comes into play).
This takes away the "trespassing" thing that's getting bandied about ... there are certainly whistleblower protections for regular employees, are those out the window?
This position is indefensible, I think. By the same token any institution that produces a product that somehow impacts customers should have no right to privacy. Having corporate privacy and being regulated are related but different things.
The bottom line is that the prosecution processes aided by whistle-blower testimony is broken, requiring long investigations and, to play devil's advocate, wrongful accusations and financial harm to a business.
(The bit about making violating your employment contract a criminal act sounds exactly like the law that makes you a criminal for violating a website's ToS. Which has pretty much been struck down. But hey, there's no penalty for passing bad laws, so why not try? It makes your handlers happy!)
How many years does it have to pass in US before the Patriot Act, NSL's and FISA are verified by the Supreme Court? We're already into the second decade of their existence now.
<Insert the Thomas Jefferson quote about having a new constitution every generation>
http://en.wikipedia.org/wiki/Glorious_Revolution
Then there was the earlier Civil War where parliament fought a war to remove (and eventually execute) a king long before the French has a similar idea:
The only problem with the American constitution is that the federal government isn't very good at following it. Other than that, it's far more liberal than most liberal democracies even try to get away with.
The US Constitution's protection of the right to firearms, which actually is an outlier among liberal democracies, is also a case in point of its essentially 18th century conception of rights and governance. The Second Amendment is based on the quaint idea that individual liberties can only be secured through the constant threat of civilian rebellion and violence against the government.
Nearly every other liberal democracy regulates and restricts ownership and use of firearms far more than the US does, and those countries have no more fallen into tyranny than the US has - in fact, those countries tend to have governments that are more responsive and accountable to their citizens than the US, in addition to having rates of gun violence that are orders of magnitude lower.
I would respectfully submit that the common American assumption that the government cannot be trusted to do anything right is self-fulfilling.
This, pretty much. It has bottomed out civic participation such that the majority of civic participation comes from businesses whose engagement is about gaming the system.
I admittedly do not have stats to back that sentence up, but I suspect I could find them.
> I would respectfully submit that the common
> American assumption that the government cannot
> be trusted to do anything right is self-fulfilling
With such a significant portion of the country deeply suspicious of government, we steer away from government in the name of "freedom" but actually just place more power in corporations' hands.
I feel as though our country is (perhaps stuck in) our awkward teenage years. You know how teenagers often resist anything teachers and parents tell them? We rail against government just because we can regardless of whether or not it's actually a good idea.
In our defense, the last two presidential elections have shown a willingness of the country (particularly among younger voters) to begin to move away from some of the mistrust in government.
Sometimes people just have to learn things the hard way.
Americans do not actually think this. The highway system, environmental protections, labor laws, the military, Medicare, and Social Security are all extremely popular.
What Americans actually believe is that government actions should not be trusted merely because they are government actions.
The fundamental concept of American governance is that the people are sovereign, not the government. This was a radical notion in the 18th century, and I would argue that is remains so today, given the number of folks who can't seem to wrap their heads around it.
For example, gun ownership is not based on the right to rebel--no such right exists (see: the Civil War). Americans have the right to own guns because Americans want to own guns, and Americans are in charge. We get to decide what we want to do and when we want to do it. The role of government is not to rule the people, but to adjudicate peacefully between the many different opinions that people freely hold.
The 2nd Amendment is still in force today not because it is old, but because the American people, today, want it to remain in force.
In other words, you can try to rebel. You don't have the right to win though ;)
It certainly seems very American to think that people have a right to rebel...that's how we got our country, after all. But I'd say that's more of a natural right than a legal right--one that supercedes the typical concept of legality in its very nature.
What I meant above was more that the U.S. Constitution does not provide a power, right, or mechanism for states or individuals to violently rebel. It's certainly not the reason we have the 2nd Amendment (quite the opposite, actually).
I would actually say, though, that the Second Amendment is likely intended to put governments at explicit risk of rebellion, especially when it comes to day-to-day enforcement. It's not so much about rising up and marching on DC when they decide to oppress people. It's more about not being able to send in the cops to oppress people in the first place, because if they do, they'll end up being shot. Even within this century, the Black Panthers used the Second Amendment to protect blacks from police brutality: http://www.theatlantic.com/magazine/archive/2011/09/the-secr...
How does this apply to the rest of the bill of rights, though? Two major instances I can think of the oft-maligned "legislating from the bench" both apply to civil rights, first desegregation, and more recently marriage equality.
The courts are ruling the existing laws cover marriage equality despite the outcry - and this is a good thing. Some things are right and wrong regardless of how many people want it to be a certain way.
I don't think whether people "want" something especially when it comes to equal rights should have any impact on how the law is interpreted. One of the good arguments against direct democracy, IMHO.
That Amendment has since provided the legal power behind most civil rights decisions, including desegregation and (if they win) marriage equality. The "equal protection" clause justifies rulings against needless discrimination, and the "due process" clause makes those rulings apply to state and local laws in addition to federal law.
So here is an example where a huge swatch of what people take for granted today as Constitutional protections, in fact dates only to the 1860s.
If Americans as a whole wanted to get rid of the 2nd Amendment, they could pass a Constitutional amendment revoking it. They did it to Prohibition. The reason that is not happening is that most Americans like guns, or at least they respect the desire of other Americans to own them.
This is precisely the exceptionalism I'm talking about. Americans do not have a monopoly on the understanding that individuals are sovereign and that the government operates only with the consent of the people.
The citizens of other liberal democracies are not passive subjects - indeed, aside from selective dogmatism around gun ownership, Americans are far more passive and fatalistic toward their government's abuses and intransigences than the citizens of many other countries.
The US political system is as dysfunctional as it is precisely because so few Americans believe it can be made to work. In the absence of a culture in which large groups of people people actively engage in the formal and informal mechanisms of democratic governance, too many Americans instead express contempt and despair and stockpile guns.
The examples I gave are things that aren't omnipresent among liberal democracies. It's not quasi-tyrannical to outlaw "hate speech", just less free. I prefer more freedom to less.
* Expression that incites criminal action;
* Expression that causes injury;
* Obscenity via the Miller Test;
* Child pornography;
* Regulation of commercial speech;
* Copyright and other 'intellectual property' restrictions;
and so on.
Of course, the various other liberal democracies also enshrine the right to free expression; and they also enforce arguably reasonable limits on that right, some of which are similar to the limits in the US and some of which are slightly different.
Is a country where you can be fined for saying "fuck" on television more or less free than a country where you can be fined for saying a minority should be exterminated, where it can be shown that hateful propaganda has the effect of silencing a whole group of people?
There is nothing special about the US Constitution. It is no better, and in many ways worse, than the constitutions of other liberal democracies. The US Constitution is a legal, historical document that admits of many possible interpretations, and it is nothing if not misleading to pretend to absolutism, however selective, in how it shapes the law.
As for the Second Amendment, the US is perhaps the only liberal democracy that perceives a need to guarantee a citizen's right to own and bear firearms, based on the 18th century idea that governments are inherently tyrannical and the only way to guarantee liberty is with the constant threat of violent rebellion.
As we have seen, this belief has been disproven. The citizens of other countries are able to keep their governments more or less honest through maintaining formal and informal democratic institutions and civic engagement - indeed, the governments of many other countries are more responsive and accountable to their citizens than the US government.
You can legally say "fuck" on American television all you want, just not using the public airwaves. Since the rise of cable it's the market, not the FCC, that sets those rules.
And there is a very, very important qualitative difference between regulating pornography and advertising and regulating political and religious expression.
> As we have seen, this belief has been disproven. The citizens of other countries are able to keep their governments more or less honest through maintaining formal and informal democratic institutions and civic engagement - indeed, the governments of many other countries are more responsive and accountable to their citizens than the US government.
Well, so far. There are some liberal democracies that are more honest than the US (probably Germany) and some that are less (probably Italy), and they haven't been liberal democracies quite as long as the US.
Frankly, much of the problem is that the US is such a damn big country. Most liberal democracies have the population of a large state, and New York and California both have relatively responsive state governments compared to the US federal government. How responsive is the EU? Less responsive than they can be because Germany and Greece want radically different things. The same is true of California and Mississippi.
In other words, the Constitution has failed at its fundamental purpose - controlling the federal government. Not that there are any political remedies - this would just spread the cancer faster. Pride blinds. The more we insist our well-built ship cannot possibly be sinking, the less inclined we are to look for the lifeboats.
Courts should neither "anticipate a question of
constitutional law in advance of the necessity of deciding
it" nor " formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be
applied."
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J.)
A good explanation of the list is here: http://en.wikipedia.org/wiki/Ashwander_rules
However, in practice, IMHO, this excuse is used to punt cases more than really viewed as a valid principle
Food Lion sued for unfair trade practices, fraud, breach of contract, etc. ABC was fined $5.5 million, but that was later reduced to about $300,000, according to a quick Google search.
This was used to illustrate why journalists must disclose that they are journalists and should avoid undercover methods, as written in the journalism code of ethics.
Sources:
http://lawclassolemiss.wordpress.com/2010/04/05/food-lion-in...
http://www.poynter.org/uncategorized/2125/abc-and-food-lion-...
http://www.nytimes.com/1997/03/09/arts/beyond-abc-v-food-lio...
http://www.spj.org/ethicscode.asp
Edit: Also interesting, but not quite as relevant, is the Chiquita/Cincinnati Enquirer scandal that happened around the same time.
http://www.newyorker.com/online/blogs/newsdesk/2011/07/chiqu...
In that case food lion got publicly busted and undoubtedly had to tighten standards. What's the alternative in a system where you can't engage in undercover reporting?
ABC: "Hey food lion. ABC here. Do you guys sell rotten meat?"
Food Lion: "no. no we do not."
ABC: "Mind if we check?"
Food Lion: "Sure, just give me a minute to clean up some things so you're not seeing how we operate day-to-day. I'll schedule your visit."
ABC: "Huh. Everything looks above board"
Food Lion: "Yes, they do look that way today. On your visit. Don't come back without notice."
Although Minnesota's version of the ag-gag bill was certainly too far reaching and rightfully shut down (https://www.revisor.mn.gov/bin/bldbill.php?bill=S1118.0.html...), I'm behind the core concept that guerrilla-style undercover videos belongs on the farm as much as it does in our offices. The biggest danger is confusing the "taping" discussed in this article with actual journalism - and in-depth analysis of the legislation definitively shows that these ag companies will grudgingly allow legitimate reporting of their facilities, but have a right to persecute unethical practices.
* Don't confuse the Humane Society of the United States with your local humane society. For example, their CEO is against the ownership of pets. More details are at http://www.humanewatch.org/, but take that with the same scepticism you would any documentary or online video:-)
| breaking into a pharmaceutical and
| publishing their formulas aren't First
| Amendment material
[1] Not to mention that most of these are published in the form of patents anyways...
Upholding contracts and preventing trespassing (or other "wrongful conduct") are usually fair game for restrictions on 1A. But "Trade secret law is grounded in unfair competition principles, ... [so] First Amendment defenses to trade secret claims are most likely to succeed as to those who did not participate in misappropriating the information, who acquired the information lawfully, and who seek to make public disclosures as to matters of public concern. In exceptional cases, preliminary injunctions may impinge on First Amendment rights even when defendants are in privity or have wrongfully acquired the information."
This isn't just "what's your secret method for cheaply polishing ball bearings." It's clearly a "matter of public concern," and that does help enormously. But your first amendment claims would improve even more if the person distributing the information neither trespassed nor broke an employment contract.
Also note that the California Supreme Court has made it a jurisdiction least likely to apply first amendment to trump trade secret law, thanks to DVD Copy Control v. Bunner.
It would be advisable for any prospective documentarians to pass off any collected information to a local news station (rather than just youtube). Don't tell the network how you got it or develop any long term relationship with them. Make sure they have media liability insurance. Then maybe lay low while they fight the case, which they'll probably have to appeal all the way up. That'd set up the model case and the money to fund it.
Even short of that, though, as a "matter of public concern," this may be one of those "exceptional cases" alluded to above. It'd be interesting to see it argued.
Random interest groups are allowed to call whatever they like "terrorism," and they're allowed to write poorly thought out bills.
Also note that most of the bills are failing.
Even Missouri, where the article says one passed, you're just required to notify law enforcement if you witness animal abuse, and offer them copies of your video:
http://www.senate.mo.gov/12info/BTS_Web/Bill.aspx?SessionTyp...
It's a strange type of gag order that only compels speech.
I mean, these are definitely still bills worth challenging, but the article seems to be embellishing a bit.
This reminds me of an old web design trick. You get the customer specs, plan out exactly what you think will work, and then add something stupid-looking. Like a giant duck by the login button. The duck acts as a decoy for customer complaints; a lot of business people want to point at something and say "change it!", so you give them that. And when they bring it up you smile and say "say no more, I'll have it removed sir".
Likewise, if complaints about a given bill can be pulled or drawn towards language like "terrorism", then the meat of the bill avoids some scrutiny. Hell, an unscrupulous legislator whose constituency opposes the bill could demand the terrorism language be cut and then end up supporting the bill, pleasing both sides of the aisle as it were.
This is just me thinking out loud, though.
The FBI has referred to animal rights activism as domestic terrorism for a while now, it's just that 'terrorism' wasn't a public meme until relatively recently.
It's just the sad way it is, the Legislature is under no particular obligation to determine the Constitutionality of the laws it passes.
Sucks, but that's the way it is.
+1 to Madison and Jefferson