Professor Friedman’s Religion Clause blog has this report from the AFP:
[I]n Afghanistan, the editor of a small Kabul newspaper, Payman Daily, was arrested Tuesday on blasphemy charges. A a council of Islamic clerics and a government media disciplinary commission found that an article the newspaper published was “an insult to Islam.” The article, not written by the newspaper staff but was taken from an Afghan website, argued that no religion– including Islam– was divinely revealed. The paper, even before the editor’s arrest, had apologized for publishing the article. Punishment for blasphemy can range from a reprimand to the death penalty.
One day later, in his farewell address, President Bush had this to say about his perceived success in Afghanistan:
Afghanistan has gone from a nation where the Taliban harbored Al-Qaeda and stoned women in the streets, to a young democracy that is fighting terror and encouraging girls to go to school.”
I guess I have a few thoughts:
- No matter how bad it gets in the U.S. No matter how much civil rights groups complain about the “police state” that America has become. No matter how much religious separatist groups complain that the First Amendment Establishment Clause has been trampled upon, we’re not Afghanistan. In America, you can seriously, honestly debate fundamental truths of existence (such as whether democracy is the best form of government, whether God exists, whether war is justified) whether or not your ideas are serious or based in reality (like whether global warming is real, whether aliens are running the government, or Elvis is alive) and you won’t be charged with “sedition” or “blasphemy” or any other crime created by governments frightened of their own people and new ideas. Of course, if you act on some of those ideas (by, say trying to overthrow the government by military force) you may not be so lucky. But, except for direct threats to public officials’ lives, in America, you pretty much cannot be imprisoned for what you say, or what you repeat. And even if we are descending into a “police state,” we are a long way from having clerics charge our newspaper writers with blasphemy.
- It’s a shame that President Bush doesn’t realize the difference between what American democracy is and what the Afghan state is like. Bush specifically noted that women were being “encouraged” to get an education in Afghanistan, when, just a few days earlier, came reports of girls who had acid thrown in their face because they attempted to attend school. And this newspaper editor is not being harassed by terrorists; he’s being charged, formally, pursuant to the law that is currently in effect. State-sponsored persecution based upon a challenge to a religious belief. Is that a successful campaign in nationbuilding in Afghanistan?
As I discussed yesterday here, Judge Nancy Gertner of the District of Massachusetts agreed to allow web “narrowcasting” of an oral argument on the motions regarding the constitutionality of various provisions of the Copyright Act filed by a defendant (and his Harvard Law Professor attorney) in a file sharing copyright infringement case before her. Her opinion (pdf) contained a well-reasoned decision to break with the federal court tradition of excluding cameras in the courtroom.
Now, as reported by the blogs from Wired, attorneys for the record companies have filed a motion (pdf) for a stay of the order pending their request for a writ of mandamus to the First Circuit. In other words, the record companies are so scared of the oral argument they’re going to file an emergency motion with the First Circuit Court of Appeals (the court that reviews Judge Gertner’s decisions) asking for an order prohibiting her from allowing a third-party to use the camera and audio feeds already in the courtroom to narowcast the oral argument online.
All I can say is, What are they so scared of? As Judge Gertner pointed out in her opinion, the RIAA and record companies for a long while now have claimed that they can’t use everyone who illegally file shares copyrighted music, but they can try to publicize their lawsuits to effect some “general deterrence”– persuade others not to share music illegally because of the threat of being sued. At the same time, many in the on-line world have an extremely negative view of the record companies and the RIAA. You’d think that they would (reluctantly) welcome the idea that the cyber-community would be able to hear their side of the story, at least as it relates to the constitutionality of these statutes. Certainly there aren’t issues of confidentiality here (meaning that the record companies will be discussing confidential trade secrets or other secret information as part of their oral argument); this is almost pure legal argument. So now, they look like real weasels who are so afraid of any public exposure (except the limited press of “we won” after the conclusion of a case) that they will file emergency motions to avoid being heard and seen on real time. Because it’s oral argument, there will be no testimony presented, and thus the ultimate decision and outcome should not be affected by the presence or absence of the narrowcast. If the narrowcast won’t have any likely affect on the outcome, why would the record companies spend at least $30,000 on this writ of mandamus (maybe even $100,000)? What are they so scared of?
- Are they afraid that Judge Gertner, a left-leaning, pro-individual kind of jurist, will read them the riot act? I find that hard to believe. Even if she doesn’t like the record companies, any reasonable jurist (especially a district court) is extremely hesitant to declare federal law unconstitutional without strong appellate court support. So far, the Copyright Act has withstood just about every constitutional challenge levied against it. She may ask tough questions, but on the law, the record companies have to know they have the upper hand.
- Are they afraid that there will be some sort of crowd reaction by the people in the gallery (most of whom, I would guess, would not be sympathetic to the record companies) and/or that the crowd may be more likely to make a scene on camera, which may be embarrassing? Perhaps, but that also doesn’t give Judge Gertner the benefit of the doubt that she will control her own courtroom. There aren’t too many federal judges I know that would stand by and allow a spectator to even bring a newspaper into the courtroom, much less applaud, protest, or say one single word, before the Courtroom Security Officers and the U.S. Marshals are sicked on them like hungry predators.
- Are they afraid that people will record the stream and then re-edit it to make misleading videos? Once again, that would be a difficult thing, considering the low level streaming (anyone could easily spot edits).
- Or, are they just afraid that their lead attorney will say something he or she regrets at the hearing, and it will be blasted all over the country? I don’t think so, because if there’s one thing I know about trial attorneys, it’s that a firm ego is necessary for the job… if you go in doubting yourself, you’ll be a trainwreck.
- Are they afraid that it will further undermine their reputation in the U.S.? Probably not. If anything, as I mentioned before, it would give the record companies a chance to present their side–uncensored. And, if the Judge rules in the record company’s favor (particularly regarding the constitutional issues) it will give the skeptics in cyberspace an opportunity to understand the foundation of the ruling.
So, I’m completely befuddled. Anyone else have any thoughts? Leave a comment.
Filed under Copyrights, Law