The Eighth Amendment protects against "cruel and unusual punishments." The amendment is open to high controversy due to the ambiguity of the term. What can, lawfully, be considered cruel and unusual?
It's often agreeable that things such as executions should be as painless as possible to avoid infringing on the Eighth Amendment. The electric chair, previously popular as an execution device, has been in decline in the past few decades. The electric shocks occasionally didn't kill the subject outright, leaving them in an incredibly pained condition before dying (this is akin to the medieval practice of bribing an executioner to sharpen his axe, so that the execution doesn't take more than one stroke). A very unique case over the electric chair was Louisiana ex rel. Francis v. Resweber,
in which a man who was subject to execution but did not die due to equipment failure sued that a second attempt would go against the double jeopardy clause. His case constituted that since he was "executed," a second execution would be as if he was tried twice for the same crime. It was noted at the trial that given an infinite number of failed executions, one would eventually cross a threshold where it becomes cruel and unusual punishment; if, theoretically, someone were electrocuted fifteen failed times, then that is fifteen times as cruel as a single execution. Eventually, it would violate the "cruel and unusual punishment" clause of the Eighth Amendment.
The electric chair has slowly been replaced by lethal injection, which is generally considered more humane, however it has flaws of its own. It's very difficult to judge how cruel the execution is, considering the muscles are first paralyzed and anesthetized before introducing a chemical that stops the heart. Hence, if the execution is in fact extremely painful, the subject has no way of conveying this information given his paralyzed state.
Also interesting to note is the application of the clause with respects to torture. The practices of Guantanamo Bay are often under attack for being inhumane, and therefore violating the clause. However, given that torture is, by nature, cruel, the line is much more difficult to formulate.
Monday, October 22, 2012
Sunday, October 21, 2012
Free Speech Restricted in the UK
Matthew Woods, 20, was convicted recently in the UK for derogatory comments on Facebook. He was, according to sources, arrested "for his own safety" given the controversy his post had caused.
Clearly, one shouldn't be arrested for "their own safety.". That implies its within their will. The report goes on to explain that it was also deemed "grossly offensive" and "of an indecent, obscene, or menacing character."
Speech laws in the United Kingdom are certainly different from those of the United States of America, but the case has currently come under fire from detractors complaining that the UK law is "archaic" and not modernized, but the issue goes far past the fact that it was an online comment.
If this were to happen in the US, for example, the situation would be vastly different. Remember Senator Akin? A few months ago, he claimed that women were able to "shut down pregnancies" in cases of "legitimate rape," which spread throughout the liberal media and attracted raves and threats towards him. This is, arguably, a comment "grossly offensive," and "of an indecent, obscene, or menacing character," and certainly given the magnitude of angry responses, his safety was most probably at risk. Yet, he wasn't arrested. He wasn't even remotely convicted.
This shows a pliable difference between the US and the UK in this regard.
OH NO SCALE: At least it's not us this time.
Clearly, one shouldn't be arrested for "their own safety.". That implies its within their will. The report goes on to explain that it was also deemed "grossly offensive" and "of an indecent, obscene, or menacing character."
Speech laws in the United Kingdom are certainly different from those of the United States of America, but the case has currently come under fire from detractors complaining that the UK law is "archaic" and not modernized, but the issue goes far past the fact that it was an online comment.
If this were to happen in the US, for example, the situation would be vastly different. Remember Senator Akin? A few months ago, he claimed that women were able to "shut down pregnancies" in cases of "legitimate rape," which spread throughout the liberal media and attracted raves and threats towards him. This is, arguably, a comment "grossly offensive," and "of an indecent, obscene, or menacing character," and certainly given the magnitude of angry responses, his safety was most probably at risk. Yet, he wasn't arrested. He wasn't even remotely convicted.
This shows a pliable difference between the US and the UK in this regard.
OH NO SCALE: At least it's not us this time.
Limits of Symbolic Speech
Symbolic speech is a form of free speech, where the speech in question is not written out directly but in a different form. In Stromberg v. California (1931), the Supreme Court ruled in favor of symbolic speech, believing that a red flag (a symbol of revolution) was protected under the First Amendment.
The same occurred during the Tinker v. Des Moines Independent Community School District (1969) case, where students wearing black armbands to protest the Vietnam War were pardoned in the same vein.
The situation suddenly turns on its head, however, in the Morse v. Frederick case, commonly known as "Bong Hits 4 Jesus." A student displayed a banner at a school event with the aformentioned phrase emblazoned across it.
So, firstly, isn't this symbolic speech? What's the difference? The Court ruled it as "sophomoric" but surely that's not a good enough position to outlaw it. Here's three reasons why:
1. Schools have jurisdiction over constitutional rights of enrolled students.
The reason for this is because of In loco parentis, which is silly political jargon for "in place of parents." Therefore, a teacher or administrator can intrude on constitutional rights if it needs to.
2. The symbolic speech promoted illegal drug use.
This is a violation of the direct incitement clause of Brandenburg v. Ohio, since the message encourages illegal drug use. The clause states that speech (even symbolic speech) used to incite illegal activities are not protected under the First Amendment.
3. Schools have a compelling reason to discourage drug use.
This is honestly just a blend of the previous two statements. Since the banner was displayed on school grounds, it was righteously removed as an extension of the responsibilities of the school administration. Not to mention illegal drug use being, well, illegal.
And that's all.
OH NO SCALE: No oh no.
The same occurred during the Tinker v. Des Moines Independent Community School District (1969) case, where students wearing black armbands to protest the Vietnam War were pardoned in the same vein.
The situation suddenly turns on its head, however, in the Morse v. Frederick case, commonly known as "Bong Hits 4 Jesus." A student displayed a banner at a school event with the aformentioned phrase emblazoned across it.
So, firstly, isn't this symbolic speech? What's the difference? The Court ruled it as "sophomoric" but surely that's not a good enough position to outlaw it. Here's three reasons why:
1. Schools have jurisdiction over constitutional rights of enrolled students.
The reason for this is because of In loco parentis, which is silly political jargon for "in place of parents." Therefore, a teacher or administrator can intrude on constitutional rights if it needs to.
2. The symbolic speech promoted illegal drug use.
This is a violation of the direct incitement clause of Brandenburg v. Ohio, since the message encourages illegal drug use. The clause states that speech (even symbolic speech) used to incite illegal activities are not protected under the First Amendment.
3. Schools have a compelling reason to discourage drug use.
This is honestly just a blend of the previous two statements. Since the banner was displayed on school grounds, it was righteously removed as an extension of the responsibilities of the school administration. Not to mention illegal drug use being, well, illegal.
And that's all.
OH NO SCALE: No oh no.
Modern Freedom of Assembly
The DeJonge v. Oregon Supreme Court case ruled that freedom of Assembly, as guaranteed by the First Amendment of the Constitution, argues that as long as assembly is peaceful, it is protected by the Constitution. But what if it causes a public disturbance?
Events such as parades and protests are not necessarily as protected as they may seem, given that people are regularly arrested for entirely peaceful protests. One such set of protests, from the Occupy Wall Street movement, shows this. One hundred and eighty-five people were arrested for peacefully speaking out against economic inequalities and lobbying in government. Under DeJonge, this is entirely legal given the following:
1. No threats are made.
Brandenburg v. Ohio illustrates that free speech dedicated to incitement, or encouraging illegal action to occur, is not protected under the Constitution. That is, if the protestors began shouting "Death to Wall Street!", they are absolutely legal to arrest.
The report doesn't show that this occurred, and in fact depicts the crowd as overwhelmingly passive-aggressive in their stance.
2. No libel of specific persons occurred.
New York Times Co. v. Sullivan shows that libel is illegal, given that the statements put forth are untrue and given that there was malicious intent involved. "Malicious" is particularly hard-pressed under New York Times Co.; emotional insults are not enough to deem it illegal.
Again, the report doesn't seem to show reports of libel from the crowd, and even if specific insults were lobbed, it's unlikely that they would have caused much damage.
Hence, it's possible that this was an unconstitutional arrest that was simply never brought to court.
OH NO SCALE: Somewhat
Events such as parades and protests are not necessarily as protected as they may seem, given that people are regularly arrested for entirely peaceful protests. One such set of protests, from the Occupy Wall Street movement, shows this. One hundred and eighty-five people were arrested for peacefully speaking out against economic inequalities and lobbying in government. Under DeJonge, this is entirely legal given the following:
1. No threats are made.
Brandenburg v. Ohio illustrates that free speech dedicated to incitement, or encouraging illegal action to occur, is not protected under the Constitution. That is, if the protestors began shouting "Death to Wall Street!", they are absolutely legal to arrest.
The report doesn't show that this occurred, and in fact depicts the crowd as overwhelmingly passive-aggressive in their stance.
2. No libel of specific persons occurred.
New York Times Co. v. Sullivan shows that libel is illegal, given that the statements put forth are untrue and given that there was malicious intent involved. "Malicious" is particularly hard-pressed under New York Times Co.; emotional insults are not enough to deem it illegal.
Again, the report doesn't seem to show reports of libel from the crowd, and even if specific insults were lobbed, it's unlikely that they would have caused much damage.
Hence, it's possible that this was an unconstitutional arrest that was simply never brought to court.
OH NO SCALE: Somewhat
Election Day is Soon! And so are the robots!
Yes, you heard me right. Robots.
What I really mean are robot calls: automated messages used as a form of telemarketing. Paid for by the DNC/RNC or not, you've inevitably gotten a bunch advocating one candidate or the other, and chances are you're pretty miffed.
It turns out, mass spam telemarketing with robocalls is completely illegal for commercial interests, but suddenly legal when it comes to political campaigns. Yes, even by super PAC's. You'd imagine there'd be some overlap between this scenario and the Citizens United v. Federal Election Commission court case some time back, and maybe there is. After all, what if the corporation in question was commercial in nature and wanted to get out political robocalls? Since corporations are allowed to contribute as much money as they want to campaigns, wouldn't this just be another form of that stride? Also, what's stopping them from putting out a political call and attaching their own advertising into it? Something in the vein of "Vote for Romney! Also the new iPod rocks!" Or what if it was more subtle?
Where is the line drawn?
The other side of the question: non-robot calls are legal. That is, if the person on the other line is alive and made of human tissue, it's suddenly legal (if it's solicited, of course). This makes some degree of sense, considering robocalls can be mass-distributed very quickly while human beings have limits, but with the availability of cheap labor, even human calls are becoming irritable, as shown by the "Do Not Call" FTC list hitting 217 million last Tuesday.
So, the Federal Trade Commission is now offering a contest to gather ideas on how to combat illegal telemarketing. This, honestly, boggles me.
The reason this problem exists at all is because of the strange provisions offered under the Bureau of Consumer Protection, a sub-department of the Federal Trade Commission.
If consumers are given the opportunity to enter a "Do Not Call" list anyways, why don't they simply change their telemarketing guidelines.
One simple, overarching way would be to just ban robot telemarketing altogether, although that's definitely an extreme. Another, more reasonable one would be to add "Do Not Call" as the default option, and let consumers "opt-in" if they want to hear the calls. This, of course, is economic suicide because a vastly smaller portion of the population would opt-in. After all, who wants to talk to telemarketers? But, logically, it would make the most sense in terms of satisfying the nation.
OH NO SCALE: Please hold.
What I really mean are robot calls: automated messages used as a form of telemarketing. Paid for by the DNC/RNC or not, you've inevitably gotten a bunch advocating one candidate or the other, and chances are you're pretty miffed.
It turns out, mass spam telemarketing with robocalls is completely illegal for commercial interests, but suddenly legal when it comes to political campaigns. Yes, even by super PAC's. You'd imagine there'd be some overlap between this scenario and the Citizens United v. Federal Election Commission court case some time back, and maybe there is. After all, what if the corporation in question was commercial in nature and wanted to get out political robocalls? Since corporations are allowed to contribute as much money as they want to campaigns, wouldn't this just be another form of that stride? Also, what's stopping them from putting out a political call and attaching their own advertising into it? Something in the vein of "Vote for Romney! Also the new iPod rocks!" Or what if it was more subtle?
Where is the line drawn?
The other side of the question: non-robot calls are legal. That is, if the person on the other line is alive and made of human tissue, it's suddenly legal (if it's solicited, of course). This makes some degree of sense, considering robocalls can be mass-distributed very quickly while human beings have limits, but with the availability of cheap labor, even human calls are becoming irritable, as shown by the "Do Not Call" FTC list hitting 217 million last Tuesday.
So, the Federal Trade Commission is now offering a contest to gather ideas on how to combat illegal telemarketing. This, honestly, boggles me.
The reason this problem exists at all is because of the strange provisions offered under the Bureau of Consumer Protection, a sub-department of the Federal Trade Commission.
If consumers are given the opportunity to enter a "Do Not Call" list anyways, why don't they simply change their telemarketing guidelines.
One simple, overarching way would be to just ban robot telemarketing altogether, although that's definitely an extreme. Another, more reasonable one would be to add "Do Not Call" as the default option, and let consumers "opt-in" if they want to hear the calls. This, of course, is economic suicide because a vastly smaller portion of the population would opt-in. After all, who wants to talk to telemarketers? But, logically, it would make the most sense in terms of satisfying the nation.
OH NO SCALE: Please hold.
French commissioning news reports
Recent reports show that the country of France has decided that its news is valuable -- valuable enough to demand commission for each time their news sources are linked by search engines. The idea stems from the fact that with online news, people are no longer inclined to buy subscriptions from the printed press since it is available for free online. Hence, in a way, search engines like Google are infringing on their market, and a commission would help the French press stay competitive.
Google, however, attacked the issue, threatening to "boycott" the French press by refusing to link to their content. This would, inevitably, be a huge blow to the prevalence of their news outlets, belittling them in the minds of the public and discouraging readers. Google is by far the largest search engine in existence and their shunning of the French press would most certainly lead to a rapid decline in the French market.
The search engine posted a formal letter of complaint online (in French) specifying their position.
The problem with this issue is that neither side is immediately in the wrong. Google claims to be defending the mindset of a free Internet, while the French press claims that Google is infringing on their market and that they have the right as a corporation maintain competitive. Talks are being made between the two companies on the matter at hand.
Meanwhile, it's frightening how much power Google has; the fact that they're able to essentially shut down any website or corporation by removing them from its engine demonstrates that they aren't limited to the domain of information tech. If they wanted to, they could essentially threaten companies to do their bidding, under threat of removal. And while there haven't been any signs of that so far, it may become a problem requiring federal intervention.
The government has an obligation to protect capitalism and fair competition, as it did during the trust-busting protocols of the Reconstruction Era. Hence, if Google were to extend itself too far, monopolizing not only its own field but every domain, then the government is obligated to protect threatened companies.
This case is, however, especially unique, as the issue of French publishing is no longer domestic but rather part of foreign policy. Hence, regulated competition need not apply. Overall it's an interesting case of the power of monopolies and worth looking in to.
Google, however, attacked the issue, threatening to "boycott" the French press by refusing to link to their content. This would, inevitably, be a huge blow to the prevalence of their news outlets, belittling them in the minds of the public and discouraging readers. Google is by far the largest search engine in existence and their shunning of the French press would most certainly lead to a rapid decline in the French market.
The search engine posted a formal letter of complaint online (in French) specifying their position.
The problem with this issue is that neither side is immediately in the wrong. Google claims to be defending the mindset of a free Internet, while the French press claims that Google is infringing on their market and that they have the right as a corporation maintain competitive. Talks are being made between the two companies on the matter at hand.
Meanwhile, it's frightening how much power Google has; the fact that they're able to essentially shut down any website or corporation by removing them from its engine demonstrates that they aren't limited to the domain of information tech. If they wanted to, they could essentially threaten companies to do their bidding, under threat of removal. And while there haven't been any signs of that so far, it may become a problem requiring federal intervention.
The government has an obligation to protect capitalism and fair competition, as it did during the trust-busting protocols of the Reconstruction Era. Hence, if Google were to extend itself too far, monopolizing not only its own field but every domain, then the government is obligated to protect threatened companies.
This case is, however, especially unique, as the issue of French publishing is no longer domestic but rather part of foreign policy. Hence, regulated competition need not apply. Overall it's an interesting case of the power of monopolies and worth looking in to.
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