{"id":10948,"date":"2007-05-09T15:48:51","date_gmt":"2007-05-09T22:48:51","guid":{"rendered":"http:\/\/hill-kleerup.org\/blog\/wp\/2007\/05\/09\/thats-a-remarkable-first-amendment-argument.html"},"modified":"2007-05-09T15:48:51","modified_gmt":"2007-05-09T22:48:51","slug":"thats_a_remarkable_first","status":"publish","type":"post","link":"https:\/\/hill-kleerup.org\/blog\/2007\/05\/09\/thats_a_remarkable_first.html","title":{"rendered":"That’s a … remarkable First Amendment argument"},"content":{"rendered":"

Verizon, fighting a law suit for turning over phone records to the government, is making certainly one of the more audacious legal defenses I’ve heard of late<\/a>:  it’s protected speech, a “petition” to the government.<\/em><\/p>\n

Huh?<\/p>\n

\n

The response also alleges that the case should be thrown out because even looking into the issue could violate state secrets, of course, but a much longer section of the response tries to make the case that Verizon has a First Amendment right to “petition” the government. “Based on plaintiffs’ own allegations, defendants’ right to communicate such information to the government is fully protected by the Free Speech and Petition Clauses of the First Amendment,” argue Verizon’s lawyers.<\/p>\n

Essentially, the argument is that turning over truthful information to the government is free speech, and the EFF and ACLU can’t do anything about it. In fact, Verizon basically argues that the entire lawsuit is a giant SLAPP (Strategic Lawsuit Against Public Participation) suit, and that the case is an attempt to deter the company from exercising its First Amendment right to turn over customer calling information to government security services. <\/p>\n<\/blockquote>\n

Wow.  Look at the the … big brass balls on those phone poles.<\/p>\n

Rather than arguing that it had violated a federal law — the Electronic Communications Protection Act, which prohibits telecoms from hand over customer data without legal processes — Verizon claims the law is unconstitutional.<\/p>\n

A longer quote<\/a> from Verizon (emphasis mine):<\/p>\n

\n

The gravamen of plaintiffs records claims is that defendants allegedly communicated information about them to the government namely, that a call was placed from a certain telephone number to another number.  Communicating such factual information to the government would be speech that is fully protected by the First Amendment<\/strong>.<\/p>\n<\/blockquote>\n

One wonders if handing over of Verizon’s trade secrets — factual information — to journalists, or publication of same, would be considered protect speech under the First Amendment, too.<\/p>\n

\n

When the country is engaged in an armed conflict with foreign enemies, that right applies to communicating information that may be useful in defending the country from expected attacks.  Based on plaintiffs own allegations, defendants right to communicate such information to the government is fully protected by the Free Speech and Petition Clauses of the First Amendment, and is a privilege and immunity that arises directly under the federal Constitution<\/strong>.  Any construction of ECPA that purported to prohibit such communications, and to subject defendants to monetary liability for engaging in the communications alleged, would violate these constitutional rights<\/strong>.<\/p>\n

A complete prohibition on truthful speech to the government about information lawfully acquired and involving political speech and speech on matters of public concern would violate the First Amendment on numerous grounds<\/strong>, as discussed below.  There are two overarching flaws. First, an outright prohibition on truthful speech about information lawfully acquired is anathema to the First Amendment.  Second, a ban on such speech is not narrowly tailored to achieve the objective of preventing the governments misuse of customer call records.  When such concerns exist, the only proper remedy, consistent with the First Amendment, is to impose restrictions on the government, not on the speakers right to communicate<\/strong>.<\/p>\n<\/blockquote>\n

In other words, the law should be changed to prevent the government from asking for info, then preventing companies from giving it.<\/p>\n

Amazing.<\/p>\n","protected":false},"excerpt":{"rendered":"

Verizon, fighting a law suit for turning over phone records to the government, is making certainly one of the more audacious legal defenses I’ve heard of late:  it’s protected speech,…<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_seopress_titles_title":"","_seopress_titles_desc":"","_seopress_robots_index":"","_seopress_robots_follow":"","_seopress_robots_imageindex":"","_seopress_robots_snippet":"","_seopress_robots_primary_cat":"","_seopress_robots_breadcrumbs":"","_seopress_robots_freeze_modified_date":"","_seopress_robots_custom_modified_date":"","_seopress_robots_canonical":"","_seopress_social_fb_title":"","_seopress_social_fb_desc":"","_seopress_social_fb_img":"","_seopress_social_fb_img_attachment_id":0,"_seopress_social_fb_img_width":0,"_seopress_social_fb_img_height":0,"_seopress_social_twitter_title":"","_seopress_social_twitter_desc":"","_seopress_social_twitter_img":"","_seopress_social_twitter_img_attachment_id":0,"_seopress_social_twitter_img_width":0,"_seopress_social_twitter_img_height":0,"_seopress_redirections_value":"","_seopress_redirections_enabled":"","_seopress_redirections_enabled_regex":"","_seopress_redirections_logged_status":"","_seopress_redirections_param":"","_seopress_redirections_type":0,"_seopress_analysis_target_kw":"","_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[17,9,8],"tags":[],"class_list":["post-10948","post","type-post","status-publish","format-standard","hentry","category-homeland-security","category-politics-law","category-zt-pc"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack-related-posts":[{"id":30653,"url":"https:\/\/hill-kleerup.org\/blog\/2012\/10\/17\/are-funerals-a-significant-government-interest.html","url_meta":{"origin":10948,"position":0},"title":"Are funerals a "significant government interest"?","author":"***Dave","date":"Wed 17-Oct-12 7:40am","format":false,"excerpt":"I will go toe to toe with anybody in my loathing of the Fred Phelps clan and the Westboro Baptist Church. 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If the critics of Citizens United want to be taken seriously,\u2026","rel":"","context":"In "~PlusPosts"","block_context":{"text":"~PlusPosts","link":"https:\/\/hill-kleerup.org\/blog\/category\/blogging\/plusposts"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":24931,"url":"https:\/\/hill-kleerup.org\/blog\/2011\/12\/30\/corporations-arent-people.html","url_meta":{"origin":10948,"position":2},"title":"Corporations Aren't People","author":"***Dave","date":"Fri 30-Dec-11 9:35am","format":false,"excerpt":"They can't vote (yet), they aren't subject to criminal punishment, they can't serve in the military, they can't hold office, they ... well, they just aren't people. 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