Free Speech Isn't Free: Court Barring Access To Brief About Free Speech

from the irony-is-free dept

Wed, Nov 10th 2010 7:31am — Mike Masnick

One of the tenets behind the First Amendment and the concept of supporting free speech is the idea that you're protecting the right to speech that you don't like just as much as speech that you do like. That's why it's somewhat troubling to find out some of the details behind the First Amendment issues raised in a case, which involves the court sealing an amicus brief filed by the Institute for Justice and the Reason Foundation. It's not clear why the brief has been sealed, but, apparently, it's got something to do with the fact that the judge, who issued the order, didn't want people discussing the case -- a free speech case, remember -- publicly:

Liptak, who has seen part of the secret 10th Circuit order that keeps the amicus brief sealed, says one reason the appeals court gave for its decision is that allowing distribution of the brief would help I.J. and Reason publicly make their case that Reynolds is being persecuted for exercising her First Amendment rights. One of their goals, the Court said, "is clearly to discuss in public amici's agenda." Obviously, we can't have that.

It bears emphasizing that the I.J./Reason brief is based entirely on publicly available information. It does not divulge any confidential grand jury information, protection of which is the rationale for sealing the documents related to Reynolds' case. The only purpose served by sealing it is to make talking about the case harder.

Most of the other background surrounding the case makes the argument that the woman, who is upset about being silenced, is annoying and irritating. However, as the folks at Reason point out, that's hardly a crime.

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Filed Under: free speech

39 Comments

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darryl, 10 Nov 2010 @ 7:47am

or 'ALL speech isn't FREE'..
why dont you change the heading to a more correct one.

something like.

ALL Speech isn't free

Why are you making the assumption that if you have 'free speech' then 'ALL speech therefore must be 'free'.

By assuming that "all speech is free" therefore I have a right to access all that has been spoken, written or whatever. You are wrong !!!.

Clearly, that is not the case, and its nieve at best to make the false claims that if you say something, it is therefore "free for all".

In your world, there would be a major conflict between the 5th amendment and 'free speech'.

If you can see that, great, but I have my doubts...

Its also hard to see what you motive for wanting to pry into the busines of other people??

Or trying to gain points off legal and privacy issues for copyright, patent and so on. Disregarding what the underlying point of the case is in the first place.

Like your raging against ACTA, they dont include you in their talk, because they dont WANT your input. They have already received public input, and they need time THEMSELVES to work out the details.

What would or could you have contributed ? Nothing constructive, all your suggestings were or are about how bad it is, and how they are not 'open' enough for you !!.
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PaulT (profile), 10 Nov 2010 @ 7:58am

Re: or 'ALL speech isn't FREE'..
"they dont include you in their talk, because they dont WANT your input."

You don't see a problem with them getting their own way with that?

The jury's out, so to speak, on this particular case as we don't know the full reasons for sealing the brief as yet nor its contents. ACTA, on the other hand, is a clear case of corporate interests being followed while consumers and the public were openly blocked from even participating. A shame you thing that's something that's right in a democratic society, but not surprising coming from you.
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sam, 10 Nov 2010 @ 8:04am

oopen your eyes paulT the acta is coming unglued.
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Anonymous Coward, 10 Nov 2010 @ 8:12am

Re: or 'ALL speech isn't FREE'..
I don't understand the "major conflict between the 5th amendment and 'free speech'" part. Are you trying to say free speech would conflict with due process? Or double-jeopardy? Or self-incrimination? Or a jury of your peers? Or eminent domain?
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Michial Thompson, 10 Nov 2010 @ 8:17am

Biggest flaw in "Free Speach" is...
Everyone seems to hide behind free speach, but the bigges flaw is noone is held accountable for the crap that spews from the mouths of those who irresponsibly abuse the right.

People like little mikee sit here and spew garbage encouraging piracy and IP theft etc, and yet is left free to spew the crap even as those who follow get fined or go to prison for believing his crap.

little mikee's crimes may not be as bad as the racial hate groups, but it is no different.
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Anonymous Coward, 10 Nov 2010 @ 8:22am

Re: Biggest flaw in "Free Speach" is...
"Everyone seems to hide behind free speach, but the bigges flaw is noone is held accountable for the crap that spews from the mouths of those who irresponsibly abuse the right."

The purpose of free speech is to allow people to say what they want without govt imposed punishments. Otherwise free speech exists everywhere, I am free to criticize the govt but they are free to kill me as a consequence.
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Qritiqal (profile), 10 Nov 2010 @ 8:24am

Wow
The bed bugs sure came out on this one, Mike.

Perhaps some of these naysayers can actually address your question of WHY this information would be sealed instead of using this occasion to spew their own "protected under the 1st amendment" drivel.
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bob, 10 Nov 2010 @ 8:27am

Tricky Dick, The DEA, and The War On Drugs
This BS all goes back to the the Subject of this thread.
So the Government gets in the way of Dr's treating patients.
Wait until Obama Care goes into full force.
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Anonymous Coward, 10 Nov 2010 @ 8:29am

Re: Biggest flaw in "Free Speach" is...
The irony here is awesome. Thank you little michee.
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Anonymous Coward, 10 Nov 2010 @ 8:32am

Without knowing what is in the brief, it is hard to determine if the brief should be sealed or not. Nice Catch 22 there. Some judge basically says "trust me."

As it was filed as a friend of the court, maybe there was some personal information in the briefing that while should sway the ultimate case, doesn't really belong in the public domain.
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Anonymous Coward, 10 Nov 2010 @ 8:36am

Re: Wow
No kidding! I imagine that Lindley Murray is also whirling in his grave right about now.
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Anonymous Coward, 10 Nov 2010 @ 8:39am

Who told you it was ever free? Are you deluded. Our government system in the US only benefits the ones who can afford it. It is run by Millionaires for Millionaires. Freedom is very costly. If you can afford it you can have it.
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A Bedbug, 10 Nov 2010 @ 8:45am

Re: Wow
Hey! Don't insult me like that.
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Mike Sabbatino, 10 Nov 2010 @ 8:46am

Freedom Isint Free
I believe The movie Team America: World Police put it best:
"Freedom costs a buck 'o five"
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TtfnJohn (profile), 10 Nov 2010 @ 8:52am

Re: or 'ALL speech isn't FREE'..
Speaking of irritating and annoying.
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Free Capitalist (profile), 10 Nov 2010 @ 9:07am

Re: Biggest flaw in "Free Speach" is...
And what is wrong with Fresh Spinach?

Human's are not carnivores, they're omnivores, dude.

Try to stay on topic, Big Michelle.
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Jason, 10 Nov 2010 @ 9:28am

Re: Re: Biggest flaw in "Free Speach" is...
Ahhhhhhhh. That was good for me, you?
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Jason, 10 Nov 2010 @ 9:41am

Re: or 'ALL speech isn't FREE'..
"Its also hard to see what you motive for wanting to pry into the busines of other people??" read the welcome, although otherwise unsolicited comment.
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Jon Noowtun, 10 Nov 2010 @ 9:48am

Most of the other background surrounding the case makes the argument that the woman, who is upset about being silenced, is annoying and irritating.

Well then she's obviously a troll or shill for some vested interest and they're doing the world a favor by silencing her. Just like I silence anyone who annoys or irritates me on my site.

www.Pee2PeeNet.net
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NAMELESS.ONE, 10 Nov 2010 @ 10:09am

and every corpse of the founding fathers just rolled over in there graves
FREE SPEECH IS JUST THAT

It is supposed ot be free, as in unhindered, unthorttled, uncapped , unmitigated, and prejudged.

Further proof the USA is not a democracy, not a republic but a fascist police state
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Chris Rhodes (profile), 10 Nov 2010 @ 10:35am

Update from Reason.com
Not only is the judge sealing up documents in the case just so people can't talk about the case freely, but it appears that the attorney general is attempting to stifle free speech by filing frivolous grand jury subpoenas in an effort to shut the woman up.

The Chilling Effect of Grand Jury Subpoenas (and Secrecy)

On Monday the Reporters Committee for Freedom of the Press filed a friend-of-the-court brief supporting Siobhan Reynolds' petition for Supreme Court review of the grand jury investigation triggered by her advocacy on behalf of a Kansas doctor and nurse accused of running a "pill mill." [...]

In its brief, the Reporters Committee urges the Supreme Court to hear Reynolds' appeal so it can "reconcile conflicts among lower courts as to what standard of review applies to grand jury subpoenas that target expressive activities." It argues that "the government should not be able to frighten citizens into refraining from exercising their First Amendment rights of expression, advocacy and association by threatening them with compulsory process�at least not without first satisfying a heightened standard of scrutiny." The committee also wants the Court to "provide guidance as to what type of investigation qualifies as one conducted 'in good faith.'" It calls the case "a good example of those rare circumstances justifying court examination of prosecutorial discretion"
The article also notes that the sealed document was uploaded to Scribd, but since I can't get there from my work computer, I am unable search for it and post a link. Perhaps some enterprising individual not behind a corporate blockade can dig it out for us.
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DanVan (profile), 10 Nov 2010 @ 10:47am

Sigh....another "free speech" person who incorrectly believes that this means that people can say whatever they want, whenever they want.....and it DOES NOT SAY THAT Read the damn Constitution before claiming that Freedom of Speech means people should be given complete freedom to read everything or say anything
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Any Mouse, 10 Nov 2010 @ 10:48am

Re: Biggest flaw in "Free Speach" is...
And back with flawed arguments and outright lies. Name one instance where Mike has advocated or encouraged piracy or IP theft. This article has nothing to do with either, no does it have anything to do with not taking responsibility for what you say. Sorry, Michee, but you're still just a troll.
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Any Mouse, 10 Nov 2010 @ 10:55am

Re:
We of course know that it does not say that word for word. What it does say is the government can't limit our speech. So, yes, it does say that we can say whatever the fuck we want. Show us were it says otherwise.
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Free Capitalist (profile), 10 Nov 2010 @ 11:00am

Re:
Satire? Hard to tell.... might just be me.

If not, can you offer your opinion in the context of the article and amicis being discussed?
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Chris Rhodes (profile), 10 Nov 2010 @ 11:00am

Re:
Did you actually read anything about the case in question?

1. A woman and her organization speak out against what they feel is the unfair prosecution of a doctor.
2. The attorney general tries to have her gagged by the court to prevent her from speaking out.
3. When that fails, the attorney general has them subpoenaed for all their records (not because she has evidence that they did anything criminal, but because they disagreed with her and she wants them to shut up).
4. When they refuse and elevate the issue to a higher court, Reason/IJ submit an amicus brief on her behalf, detailing how the grand jury process is being used to stifle free speech in this case.
5. The judge seals the Reason/IJ amicus brief, giving the reason that he's afraid that people might read it.

How does the first amendment not apply here? It really doesn't get a whole lot more cut and dried than thism folks. If the first amendment doesn't protect your right to speak up in public about an issue of prosecutorial misconduct, or even talk about the act of talking about prosecutorial misconduct, then what does it protect?

Think, then speak.
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Anonymous Coward, 10 Nov 2010 @ 11:01am

This judge is in the wrong part of the Galaxy
Based on the sealing decision of this judge, it sounds like he might be happier working for the Cardassian justice system, where everything is controlled by the state.
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Overcast (profile), 10 Nov 2010 @ 11:13am

Hardly a surprise in this Global Tyranny anymore.
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The Groove Tiger (profile), 10 Nov 2010 @ 11:17am

Re: or 'ALL speech isn't FREE'..
Well, that comment was annoying and irritating. Can we ban you from free speech now?
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Free Capitalist (profile), 10 Nov 2010 @ 11:20am

Re: Re:
Every time I read about a few amici, I think of "Amici's" pizzeria in the Bay Area where I used to live...
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Anonymous Coward, 10 Nov 2010 @ 12:00pm

Re:
Oh look, someone crying.
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Jason, 10 Nov 2010 @ 12:55pm

Re: Re: Re:
If "amici" bothers you, does that mean you prefer "briefs"? Not that it's any of my business.
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Free Capitalist (profile), 10 Nov 2010 @ 1:21pm

Re: Re: Re: Re:
Nice one! Brieves... I prefer brieves (my new term for combos)
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Anonymous Coward, 10 Nov 2010 @ 7:33pm

Free speech is only free for big corporations and rich people that can afford expensive political ads.
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Jose_X, 11 Nov 2010 @ 6:14am

Re: or 'ALL speech isn't FREE'..
Darryl, but we are talking about legal matters submitted to a public court that affect the entire public and which is supposed to be made public unless there is some significant problem with it.

It's very acceptable to question at this point in time why that piece has not been made public.
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Jose_X, 11 Nov 2010 @ 6:16am

Re: Re:
Can't the author of the brief write a new paper that covers the same points and place that on the web?
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Gene Cavanaugh, 11 Nov 2010 @ 9:37am

First Amendment
Here you are clearly right, and that judge should be set down hard.
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Rambo919 (profile), 12 Nov 2010 @ 12:57am

Sheeple Syndrome
�People demand freedom of speech as a compensation for the freedom of thought which they seldom use.�

Soren Kierkegaard 1813-1855
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No, 18 Nov 2010 @ 7:57pm

reason/institute for justice sealed amicus: http://www.scribd.com/doc/40381296/12603816004025
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