Yet Another Blatant Attack on the First Amendment

You do have an argument. It seems to be one for a totally unconditional, literal reading of the US Constitution, regardless of the consequences. I'm just trying to confirm that interpretation of your post is correct or not since it's an interesting point of view to discuss.

 

H.R. 1865 "fosta"

https://www.congress.gov/bill/115th-congress/house-bill/1865

This message appeared on Craigslist in the last month or so.

[US Congress just passed HR 1865, "FOSTA", seeking to subject websites to criminal and civil liability when third parties (users) misuse online personals unlawfully.

Any tool or service can be misused. We can't take such risk without jeopardizing all our other services, so we are regretfully taking craigslist personals offline. Hopefully we can bring them back some day.

To the millions of spouses, partners, and couples who met through craigslist, we wish you every happiness!]

I question the legality of such a law. If it is upheld, it would have far reaching ramifications on a great number of internet businesses and websites. Maybe even PF.

 

There is nothing in the Constitution that creates an exception to the First Amendment. I have no argument with that and I fully support and defend it. I'm not sure what you mean by an "argument". Any argument otherwise is contrary to the First Amendment.

If you say so. I don't believe there's anything to discuss about the First Amendment, it is quite clear. It isn't a "point of view", it's a constitutional directive/mandate "Congress shall make no law ...".

 

If they didn't knowingly harbor illegal activity they will be fine in court.

 

The arguments are questions of interpretation. Clearly the the USA doesn't actually have unconditional free speech in an circumstances, with all sorts of things like making threats of violence, obscenities, broadcasting regulations, advertising laws, noise pollution and the classic "shouting fire in a movie theatre" being long established acceptable limitations. You're suggesting that none of these were ever legitimate and should be unconditionally eliminated. I'm not convinced that's a practical position to take.

Anyway, if you really don't think anything else could be consistent with the First Amendment, maybe it would need changing?

 

There is nothing that requires interpretation about "Congress shall make no laws" unless English is not the reader's primary language.

Clearly the US government hasn't been constrained by the Constitution since probably the day after it was ratified. That has nothing to do with the plain English language of the First Amendment.

I'm suggesting, no I demand that the US government unconditionally abides by the Constitution or be thrown off as highly recommended by our founding document.

There is no maybe. Any modification to the Bill of Rights is dangerous and a threat to true American ideology.

 

Wait for it ....

Article 3 section 1: "The judicial Power of the United States, shall be vested in one supreme Court..."
Article 3 section 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority..."

This article of the constitution was signed September of 1787 and predates Marbury v Madison. Anyway in Marbury v Madison the ruling was to allow the Supreme Court to determine if a law violated the Constitution or not. Under Article 1 section 2 of the Constitution, they had the ability to determine that. Your concern with abuse via judicial review is noted, but is something already addressed under the Supremacy Clause of the Constitution. Therefore any law struck down or held up by the Supreme Court cannot be done so in violation of the Constitution.

No, I am most definitely NOT saying that. They cannot and have not made a single law.

And the Constitution itself allows the Supreme Court to make judgments based on it. This is why we have the 3rd Article in the Constitution.

I think I've answered all your questions and I'll answer this one too: It is not literally written in the Constitution that the Supreme Court is not granted power to interpret the Constitution or that it is. It simply doesn't have to be. Some things are reasonable expectations of the function. Like the president and Congress have inherent powers, the Supreme Court has a reasonable expectation to interpret laws. Of course they cannot rule against the Constitution.

Free speech is Backpage's feeble attempt at a defense. That they can't display their adult section online is the very least of their worries.

Your position seems to be that if something isn't literally written in the Constitution (or in any of the 1st 10 Amendments) we can't do anything about prosecuting someone who is directly/indirectly involved in a crime. Nothing has to be literally written in the Constitution about what is going on at Backpage for the authorities to have to do something about them.

And in this case we have a conflict of rights. We have many trafficked victims and a website covered by free speech. Overall, the free speech Amendment just isn't enough to keep the site up and running. There are other clauses and Amendments that override speech here.

There are checks and balances in Constitution. Free Speech is checked and balanced by the other Amendments. In this case, Free Speech/1st Amendment is checked by at least the 13th Amendment and the Commerce Clause.

 

That’s fine, but are you willing to consider and discuss the practical consequences of actually implementing that?

 

There is so much wrong here and it's quite lengthy but here we go.

Once again, you have failed to show where in the Constitution the power to interpret it was granted to the judiciary. You keep dancing and dodging and you're now showing parts of the Constitution that don't say any such thing and even contradict your claim. The highlighted and underlined clearly shows the Supreme Court has power over ALL CASES, not the Constitution itself. In fact, the words UNDER THIS CONSTITUTION mean just that, within the bounds of the Constitution. That means anything else conducted by the Supreme Court is UNconstitutional. I think you have a basic lack of reading comprehension skills or you're trying very hard to support your claim by perverting the simple text of the Constitution using your own invented interpretation(s).

But yet they do in many stealthy ways, as well as amend the Constitution on a regular basis, also in stealthy ways, those ways are called "case LAW". Case law is an insidious tool used by the (in)justice system to interpret the Constitution and make such interpretation permanent until subsequent case law modifies or overrides such precedent case law. Your statement, whether you realize it or not (apparently you don't) equates to a claim that the Supreme Court has legislative powers. And they do because they have unconstitutionally seized that power in Marbury v Madison (1803).

Article III grants the judiciary the power to judge LAW for constitutional compliance, not the Constitution itself. It is absurd to believe that the Supreme Court is the keeper of the Constitution, yet most Americans (yourself included) not only believe it but are quite ok with that concept because of many decades of indoctrination. The People are the keepers of the Constitution, they created it, not the other way around. The Constitution is a contract between The People (the employer) and their government (the employee). Imagine if you as the employer entered into an employment contract with your employee. And one day, your employee decided he/she has the power to interpret that employment contract. And the employee decided it really says the employee could never be fired and must really be paid twice what the contract says. Why? Because the employee said so. Does that make sense to you?

Not really and those you've attempted to answer are made of whole cloth.

Well the 10th Amendment LITERALLY says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people". That means powers not granted to the federal government DO NOT BELONG to the federal government, they belong to the states or the people. Thanks for admitting you're full of it with regard to the SCOTUS power to interpret the Constitution.

Is that serious? So in your opinion, "reasonable expectations" means they can seize powers from thin air? Reasonable to WHO?

But yet they do, all too often.

1. They haven't yet mounted a defense that I'm aware of.
2. This discussion is about the First Amendment using a real situation, Backpage publication.

This is 100% false and not even worthy of a response. Please don't invent things into what I post.

The authorities have the power to act IF they have reasonable belief that a crime is being committed in violation of the law. A law is null and void from inception if it is not in full compliance with the Constitution.

There is no conflict of any kind here, apples and oranges. Note, since no one is privy to the actual charges, the assumption is that Backpage is in violation of an unconstitutional law.

You haven't shown one. Furthermore, an Amendment AMENDS the Constitution. In other words it OVERRIDES anything in the Constitution that may be in conflict. "Congress shall make no law ..." is the Amendment.

1. The First Amendment supersedes the Commerce Clause.
2. You haven't shown how the Commerce Clause "checks" the First Amendment.
3. You haven't shown how the 13th Amendment "checks" the First Amendment.

 

That's a subject for a different discussion and it is more hypothetical/theoretical than not. I created a thread that might be closer to that discussion than this one. You may want to participate in that discussion.

http://www.politicalforum.com/index.php?threads/proposed-constitutional-amendments.507699/

 

I disagree that my point is irrelevant to this thread (or relevant to your other). Your OP declares the legal action described as an attack of the First Amendment as it stands and you talk about the process of having legislation about it being struck down as unconstitutional. Why would the practical consequences of that happening to all the legislation you’re effectively declaring unconstitutional (and you’ve not challenged any of my examples) being struck down not be relevant here?

 

Ok I'll bite for this example.

Over 90% of all laws are unconstitutional. For example, the First Amendment is a directive "Congress shall make NO LAW ...". It can't be any clearer than that, it's plain simple English. Within that directive, there are NO exceptions of any kind. Therefore ANY and EVERY law written that has anything to do with (the remainder of the directive) "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" is clearly unconstitutional.

Now one can argue that yelling fire in a crowded movie theater harmed people by creating a panic situation and many were trampled upon or even killed as a result. Then the offender has violated the rights of the individuals harmed by indirectly causing such harm. The law for that already exists in the 9th Amendment. Congress cannot create any law with respect to the First Amendment, that is a non-negotiable, no exceptions directive. Get it yet?

 

Ah yes, the argument that you can't stop the crime from happening if you try to stop the crime from happening.

 

Indeed. This is a direct violation of both the spirit and the letter of the law.

Craigslist has also voluntarily taken down their personal ads section:

https://www.craigslist.org/about/FOSTA

They also removed their "therapeutic" section which featured ads for massage parlors -- some of which presumably offered more than just massage.

I expect somebody will set up a new site somewhere offshore out of the reach of the jackbooted thugs in suits that run our country.

 

If it was an attempt to stop trafficking they'd go after the traffickers. This is a direct assault on the freedom of Americans to communicate in a manner they see fit.

 

Yet our borders remain wide open. Interesting.

 

Who are "they" exactly? Were the owners of BP the ones doing the alleged trafficking?

 

Again - were the owners of the site the traffickers? Is that the government's allegation?

 

African Americans assembling for civil rights was an illegal activity in the deep south in the 1960's. Were they "hiding behind the First Amendment" in your view? Citizens demanding "marriage equality" advocated an illegal activity.

What evidence do you have to support your claim?

 

A law that is unconstitutional is null and void from inception.

 

PF, FB, YouTube, any site that hosts user-generated content is at risk. Hell, Google could be facing liability by even listing certain sites.

 

This "Over 90% of all laws are unconstitutional" is a typical constitutionalist and or libertarian false statement.

 

Again, I'm not directly challenging that assertion, I'm trying to establish what practical consequences you would like to see as a result. Is it just a way for you to be able to object to any legal action you personally dislike (such as the one in the OP) without having to give any specific justification? If 90% of US laws are unconstitutional, why the hell are you only moaning about one application of a relatively minor one?

I'm not clear what you're saying here. Does the 9th overrule the 1st, permitting laws that restrict free speech if that speech violates the other individual rights, or is the 1st still entirely unconditional regardless?

Clearly violation of rights (actual, likely or potential) is the underlying purpose of most laws, including any which would otherwise breach the 1st. Isn't the stated purpose of the action in the OP to prevent things like human trafficking (undeniably a breach of rights)? And while you might not agree with the methods or trust the true purpose but that isn't the objection you're presenting here. This is where the mess practicalities I'm talking about start to come in.

 

Your implication here, if I'm understanding correctly, is the end justifies the means, it is justified to violate the rights of the innocent in order to punish the guilty.

How far down that slippery slope do we wish to go?

 

No. My primary implication is that the OP justification for objecting to the legal action is flawed. My wider implication is that the whole issue of legal rights is impenetrable complex with no easy binary answers such as literal interpretations of constitutional amendments.

Thanks for playing though, you were a lovely contestant.