US Has Lost All Moral High Ground On Internet Censorship

from the we-censor-too dept

We've pointed out in the past the rather bizarre dichotomy of US politicians (including the President) speaking out against internet censorship in other countries, while at the very same time supporting policies that censor websites in the US. Of course, the US censorship isn't about political speech, but about copyright issues. However, that doesn't make it any less censorship. In an excellent blog post by law professor Derek Bambauer, he makes this point after highlighting the numerous concerns over Homeland Security's domain name seizures:
The U.S. government is grabbing domain names to prevent users from reaching content it views as illegal. Not content that has been adjudicated illegal, as far as we know -- content that is alleged to be illegal. To content owners, and probably to ICE, it looks only natural that wed prevent people from reaching information they view as stolen, or counterfeit. But its natural to China to censor human rights sites. Or Wikileaks, for that matter....

Every country in the world believes that some material on the Net qualifies inherently for censorship. It's obvious! In this respect, we're no different from China. So, we should give up pretensions of American exceptionalism for information controls -- for us, it's IP; for Saudi Arabia, it's porn; for France, it's hate speech. Only the quality of the legal process differentiates censors. And with these seizures, I think there's much to worry us in the (lack of) process...
This nicely summarizes the point that I've tried to make. When people claim that taking down entire websites (even ones that have plenty of legitimate content) through the US government seizing it isn't censorship because "it's copyright infringement," it sounds like the stories you hear from people in China who see absolutely nothing wrong with the Great Firewall there, noting that the government is just protecting them from "dangerous information." Both cases are about censorship, however. Same with France and Saudi Arabia. They're all situations where the government has decided that certain types of content should be blocked because it is -- in some way -- harmful. And those who agree that it is harmful say it's not censorship because it's "helpful." But that's simply not true. It's censorship, plain and simple.


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  1.  
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    Travis Miller (profile), Dec 3rd, 2010 @ 9:13am

    What words mean

    I'm reminded of how someone once flipped out on me when I said they needed to provide a good reason to discriminate against same-sex marriage - he snapped at me for "calling [him] a bigot". I had to point out to him that discrimination is discrimination, but we accept it if there is a good reason for it. You're not a "bigot" for discriminating against children getting married, but it's still discrimination.

    Same thing with "censorship" here. As you say, "plain and simple", it is being done. That isn't up for debate. The debate is whether or not it is acceptable.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 10:16am

    Re: What words mean

    Er....

    Except that Censorship by the government is supposed to be banned, period. It's true that you're restricted in how you can say things, but the government is not allowed to block the MESSAGE or CONTENT.

    Discrimination is not illegal, although certain forms of it are.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 10:22am

    The Govt. isn't allowed to block the message or content? With that thinking, yelling fire in a crowded theater would be legal, as would child porn.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 10:24am

    The moral highground is overrated anyway, I would rather have either the military or economic highground.

    The moral highground is for losers.

     

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  5.  
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    Zacqary Adam Green (profile), Dec 3rd, 2010 @ 10:25am

    Re:

    There needs to be a new Godwin's Law-esque thing about "fire in a crowded theater." What a lazy argument.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 10:30am

    Re:

    "It's true that you're restricted in how you can say things"

    "It's true that you're restricted in how you can say things"

    "It's true that you're restricted in how you can say things"

    "It's true that you're restricted in how you can say things"

    I figured if that was repeated enough, it might make it through.

     

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    fogbugzd (profile), Dec 3rd, 2010 @ 10:41am

    Censorship + no due process

    What we have going on is both an assault on both censorship and due process. Seizing of the domain names was done with the thinnest veneer of due process; you can find one judge somewhere who will issue an order on almost anything.

    I was going to say "almost anything short of molesting children" but I just remembered the item about the TSA suggesting telling children that having their genitals touched is just a game. I bet that logic coming from the TSA under the cloak of "national security" would persuade a lot judges to issue an order for child molestation. Clearly, all bets are off on what the US government is willing to do.

     

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    crade (profile), Dec 3rd, 2010 @ 10:43am

    Re:

    I call Godwins.

     

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    weneedhelp (profile), Dec 3rd, 2010 @ 10:46am

    Re: The moral highground is overrated anyway

    When you have none, that is easy to say.

    "military or economic highground."
    Dont have those either anymore.

    "The moral highground is for losers." Spoken from someone that knows all about being a loser.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 10:47am

    Re:

    George Washington: LOSER!

     

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    ChurchHatesTucker (profile), Dec 3rd, 2010 @ 10:53am

    Re: Re:

    Sorry, dear, I was miles away.

     

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    Free Capitalist (profile), Dec 3rd, 2010 @ 11:00am

    Morally High

    I could not agree more, though I might argue that post-19th century, we never really had a moral high ground on censorship as it relates to freedom of speech in this country.

    One of the problems in the discussion of censorship is that it seems the word itself can evoke emotional responses before any premise or even context can be agreed upon.

    Like most modern Americans I received a great deal of idealistic information about our Constitution and government growing up. Not unlike Huxley's Brave New World, the repetition of this information I believe caused me to accept without question that I lived in a free country standing as a model for the world, and thriving on the cornerstone of free speech.

    Until later indoctrination, the word censorship applied to my own country was a non-starter. It took the years of repetition of concepts like "nudity is bad", "communism is bad", and of course "bad language is bad" to finally dull down the rebellion that I felt inside whenever censorship in the U.S. was discussed.

    Even today, sometimes it's hard for me to remember that censorship is really censorship in any context when expression is suppressed.

    Censorship is suppression of information considered to be harmful, or "bad" for the public. It's the same in China as it is in the U.S. only, as you point out, our broadly accepted concepts of good and bad differ quite a bit.

    We don't have the "simple life" of the distant past when most everyone in a community attended the same church, and therefore more readily agreed on issues like censorship. Today we depend mostly on the law to be our moral yardstick.

    Since the law is just about as close as we get to having a common moral framework, it is most alarming that the U.S. is circumventing the law in affecting the domain name seizures without mandate or clear jurisdiction.

    It's quite alarming that in my free country, censorship is being affected through uniformed vigilantism.

     

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    lux (profile), Dec 3rd, 2010 @ 11:07am

    Re: Censorship + no due process

    Just a quick question regarding the recent domain seizures:

    Are the owners of these domains facing any further action from the US Gov't? Or are their domains simply seized, and that's the end of it?

    If the former, then this really wouldn't enter the realm of censorship, since it's akin to the police serving a warrant on a drug-den. They seize the drugs, then prosecute the parties via due process. Seems about right.

    If the latter however, then I believe this would qualify as censorship. Since it's plain to see that the US Gov't simply seized the domains, and let the owners go on their way, without due any process.

    Anyone?

     

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    Richard Kulawiec, Dec 3rd, 2010 @ 11:14am

    Just like the generals who are always ready...

    ...to fight the last war, these governments are attempting to use the tools of censorship that worked against publishers and apply them to the Internet.

    They have already lost; they just don't know it yet.

    They may confiscate domains, they may force networks off the air, they may wiretap, they may arrest (or disappear) people, they may do all this and more, but it won't matter. We used to say, back in the early 80's, "never underestimate the bandwidth of a station wagon full of tapes"; I suppose all these years later that could be updated to "never underestimate the bandwidth of a suitcase full of encrypted external hard drives". Because if it comes down to it, that's exactly what will happen. (Actually, that's only the beginning of what will happen, but just in case some of them are reading this, I don't want to depress them any further than they already are -- or should be, if they have any clue whatsoever.)

    Remember the movie "Sneakers"? It seems prescient now, doesn't it? There are too many secrets.

    (Before someone does the Godwin-equivalent on this, that is, asking what happens if someone gets killed over a disclosure: people die every day. A lot of them die for lies. A lot of them die for no reason. If a few of them end up dying for the truth, I'm really okay with that. While it may be a personal tragedy, as it so often is, at least their death will have meaning and some value to society.)

     

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    Michael, Dec 3rd, 2010 @ 11:15am

    Re:

    Yelling 'Fire!' in a crowded theater IS legal.

    If you believe there is a fire.
    In fact, if there is a fire, it can be argued that it would be irresponsible to not yell 'Fire!'.

    Punishing someone for yelling 'Fire!' in a crowded theater is actually about the yelling of the word 'Fire!' it is about preventing someone from intentionally inciting a panic that can harm other people.

    Now, that argument can still be applied to censoring speech that is used specifically for violating copyright, but to be really honest about it, you have to apply context, intent, and actual harm to the argument.

    So, feel free to add it here.

     

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    Free Capitalist (profile), Dec 3rd, 2010 @ 11:18am

    Re: Re: Censorship + no due process

    If the former, then this really wouldn't enter the realm of censorship, since it's akin to the police serving a warrant on a drug-den. They seize the drugs, then prosecute the parties via due process. Seems about right.

    I would argue that even in the case of a criminal being silenced pending a trial, it is still censorship for better or for worse.

     

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    Sage (profile), Dec 3rd, 2010 @ 11:18am

    Re:

    It is NOT illegal to yell fire in a crowded theater! It is illegal to incite a panic. If the theater was indeed on fire, you damn well BETTER be yelling fire. God, what a stupid argument.

     

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    crade (profile), Dec 3rd, 2010 @ 11:20am

    Re: Re: Censorship + no due process

    I don't get it. Why would it not be censorship if it was followed up with something else? How are silencing a website and police searches to gather evidence related?

    Plus, even for such evidence gathering searches as you mention, there is still a process they need to follow to get such a warrant.

     

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    harbingerofdoom (profile), Dec 3rd, 2010 @ 11:22am

    Re: Re:

    its mearly an easily understandable example of how free speech is not absolute. and there are tons of other examples.
    libel, slander & defamation
    trying to crash a speech being given by a politician in a privately owned facility (you can be denied access to a specific venue but you cant be denied the right to say what you have to say....just have to go somewhere else to say it)

    the right to free speech does in fact have limitations and the example of yelling fire in a crowded theater is just a very easy one for people to get. you may not like it, but much in the way of whats been said before, it is what it is and your approval of it is not relevant to what it is.

     

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    Anonymous Free Speech, Dec 3rd, 2010 @ 11:25am

    Free Speech exceptions

    "With that thinking, yelling fire in a crowded theater would be legal, as would child porn"

    Child pornography is only unprotected speech on the ground that actual children have been harmed in its production.

    Computer generated child pornography is protected, same with depiction of animal cruelty.

    The shouting fire exception is often misstated. Justice Holmes qualified the statement with the adverb falsely.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 11:29am

    Re: Re: The moral highground is overrated anyway

    You've been trolled, sir.

     

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    lux (profile), Dec 3rd, 2010 @ 11:31am

    Re: Re: Re: Censorship + no due process

    I don't get it. Why would it not be censorship if it was followed up with something else? How are silencing a website and police searches to gather evidence related?

    In all fairness, I believe warrants were issued for the seizure of these domains - however, did DHS seize the servers, or the actual infringing content? I don't believe so, so yes this would qualify as censorship.

    But my point being, if the US properly seized the domains via a valid warrant, then seized the servers containing the infringing content, then served notices to appear in court for the owners of the domains, then I would simply see this as nothing more than a criminal investigation based on copyright infringement.

    However, if they simply swiped the domains, leaving the content on the servers, then what really was accomplished here? It was certainly censorship, but simply point a new URL to your servers and voila, you're back up and running.

     

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    btr1701 (profile), Dec 3rd, 2010 @ 11:41am

    Re: Re: Law

    > Now, that (fire/theater) argument can still be applied to
    > censoring speech that is used specifically for
    > violating copyright

    Actually, it can't be applied to copyright.

    The fire/theater cliche is just a shorthand way of referring to the Supreme Court's "clear and present danger" test. In order for the government's suppression of speech to be legal under this theory, there has to be a clear and present danger of imminent death or serious bodily injury as a result of the speech.

    It's hard to imagine even the RIAA being able to come up with an argument that passes the smell test where downloading an unauthorized Katy Perry song poses a danger of imminent death for anyone.

     

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    harbingerofdoom (profile), Dec 3rd, 2010 @ 11:42am

    Re: Re: Re:

    wow...typos much?

     

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    btr1701 (profile), Dec 3rd, 2010 @ 11:45am

    Re: Re: Re: Re: Censorship + no due process

    > but simply point a new URL to your servers and
    > voila, you're back up and running.

    And this time they're likely smarter about it, too, and have located their servers and their domains outside U.S. jurisdiction.

     

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    ChurchHatesTucker (profile), Dec 3rd, 2010 @ 11:45am

    Re: Re: Re: Law

    Dude, someone is downloading a Katy Perry song. It's your duty as a human being to throw yourself between her (and it's likely to be a her) and the computer at once. Snatch the cord if you can manage it as well.

     

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    crade (profile), Dec 3rd, 2010 @ 11:48am

    Re: Re: Re: Re: Censorship + no due process

    Except that seizing servers is actually possible, while seizing a domain isn't, it's like saying they confiscated my voice as evidence.

     

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    lux (profile), Dec 3rd, 2010 @ 12:00pm

    Re: Re: Re: Re: Re: Censorship + no due process

    Well that's my point exactly. If the US Gov't just seized the domains, and not even the content, then this is clearly censorship.

    But if they seized the domains as evidence (i.e. you had servers containing illegal content, which were externally accessible via this URL), along with the servers, and prosecuted the owners, that that might be a different story, unrelated to censorship. I mean it's censorship in the general sense that they are scrubbing a certain ideology, but you could also make the argument that drug laws are a form of censorship.

     

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    Free Capitalist (profile), Dec 3rd, 2010 @ 12:10pm

    Re: Re: Re: Re: Re: Re: Censorship + no due process

    I mean it's censorship in the general sense that they are scrubbing a certain ideology,

    You're still talking about censorship in a very specific sense. Unless there is a monkeyed up a legal definition that contradicts the literal meaning of censorship.... anyone know?

     

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    average_joe (profile), Dec 3rd, 2010 @ 12:17pm

    Is the argument that there's censorship and therefore it must be bad? I don't think it's nearly that simple. Lots of things are censored in the U.S., both on and off the internet, and that's not necessarily a bad thing. For example, I'm OK with the fact that it's a crime to go around advocating that people should overthrow the government. There's a give and a take with these things--a balance--and the issue isn't whether it's good or bad on its face. The issue is whether or not the good outweighs the bad in its application. Simply calling it censorship doesn't go far enough without further analysis. Maybe it's the good kind of censorship or maybe it's the bad, I don't know, but without further analysis it's just not clear.

    You say there is a "bizarre dichotomy of US politicians (including the President) speaking out against internet censorship in other countries, while at the very same time supporting policies that censor websites in the US." But that ignores the reality that these same politicians already support other types of censorship, like censorship of certain pornography. Are those politicians speaking out against copyright censorship in other countries? I doubt it. If not, there's no "strange dichotomy" that I can see.

     

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    crade (profile), Dec 3rd, 2010 @ 12:19pm

    Re: Re: Re: Re: Re: Re: Censorship + no due process

    If you follow up shutting down the domains by confiscating the servers for evidence, you are still talking about shutting down the domains for censorship purposes and then (possibly) later on confiscating the servers for evidence purposes. If the domains just happen to not display the site because the servers were confiscated as part of an investigation that might be a little different, but that obviously isn't going on here.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 12:20pm

    "US Has Lost All Moral High Ground..."

    No, the US hasn't lost anything. We have two copies now. It's called sharing.

    And sharing is caring :p

     

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    Free Capitalist (profile), Dec 3rd, 2010 @ 12:24pm

    it's a crime to go around advocating that people should overthrow the government

    Is it really? I thought sedition was about organizing the overthrow of the government, not talking about the positive and negative virtues thereof.

     

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    lux (profile), Dec 3rd, 2010 @ 12:30pm

    Re:

    If not, there's no "strange dichotomy" that I can see.

    While I see your point, and agree that we've lived in a censored America for some time (FCC overlording TV and radio), Mike is speaking of Internet censorship, which has been something of a Wild West for policymakers, so it's more than possible there's been some doublespeak amongst the elite ranks of society.

     

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    Free Capitalist (profile), Dec 3rd, 2010 @ 12:31pm

    Re:

    To me the dichotomy is how politicians don't actually call our forms of censorship "censorship". When they grandstand about censorship in other countries it comes off as an all or nothing affair, i.e.: censorship is "bad". When it comes to censorship at home, the word rarely comes up.

    To me, though, this is still about the police actions being taken before authority is even established. That's not just a "bizarre" dichotomy, that's a down right dangerous dichotomy.

     

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    Jeff Rife, Dec 3rd, 2010 @ 12:57pm

    If I allegedly libel or slander someone, they can file a lawsuit and I get to defend myself.

    If I yell "fire" in a crowded theater, I might be arrested, but if I am, I will eventually get to plead my case.

    So, although there should obviously be some limitations on free speech, they are all after the fact, and are done by following the law.

    Personally, I wouldn't have a problem with a DMCA takedown (or similar means that follow the rules) for the specific infringing content, and I don't think that most people would, but what the ICE is doing is "prior restraint", as they have deemed that anything ever published at the domain "badstuff.com" will violate copyright.

     

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    interval (profile), Dec 3rd, 2010 @ 1:00pm

    Re:

    "I'm OK with the fact that it's a crime to go around advocating that people should overthrow the government."

    Um, no, its not. That statement is ABSOLUTELY protected speech in the US.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 1:36pm

    Funny, many here say its ok to yell fire as protected speech, but if you tried talking on a cell phone during the movie, they would have you shot.

     

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    average_joe (profile), Dec 3rd, 2010 @ 2:32pm

    Re: Re:

    "I'm OK with the fact that it's a crime to go around advocating that people should overthrow the government."

    Um, no, its not. That statement is ABSOLUTELY protected speech in the US.


    18 U.S.C. 2385: "Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States . . . Shall be fined under this title or imprisoned not more than twenty years, or both . . . ."

    Boom!

     

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    Anonymous Coward, Dec 3rd, 2010 @ 2:36pm

    Re: Free Speech exceptions

    Computer generated child pornography is protected...

    You don't know what you're talking about. Computer generated child pornography is just as illegal as the other. Even adults "pretending" to be children in porn is illegal. It has nothing to do with "actual children" being "harmed in its production." Kind of like persecuting Wikileaks has nothing to do with actual national security.

     

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    Anonymous Coward, Dec 3rd, 2010 @ 2:39pm

    Re:

    The moral highground is overrated anyway, I would rather have either the military or economic highground.

    You and many others. That's what known as being "morally bankrupt". Congratulations.

     

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    Chargone (profile), Dec 3rd, 2010 @ 2:51pm

    Re:

    before assuming the moral high ground, first ensure the enemy does not posses orbital weaponry.

     

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    Steve R. (profile), Dec 3rd, 2010 @ 5:14pm

    And Net-Neutrality Becomes and Even More Elusive Dream

    These "censorship" actions plus the security hysteria over our numerous wars (drugs, piracy, terrorism, WikiLeaks) does not bode well for net-neutrality.

     

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    Anonymous Free Speech, Dec 3rd, 2010 @ 9:07pm

    Ignorant coward

    "You don't know what you're talking about. Computer generated child pornography is just as illegal as the other. Even adults "pretending" to be children
    in porn is illegal. "

    Wrong again, the Supreme Court struck down the Child Pornography Prevention Act narrowing the child pornography exception to abuse of actual children.

    You are simply talking out of your ass.



    "It has nothing to do with "actual children" being "harmed in its production." Kind of like persecuting Wikileaks has nothing to do
    with actual national security."

    Surely it has, if the information is made up, The Espionage Act does not apply.

    The rationale for restricting classified information is precisely that the government must hold the information in the first place.

     

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    Travis Miller (profile), Dec 4th, 2010 @ 7:41am

    Re: Re: What words mean

    Again, you are wrong. The government can censor you from falsely yelling "FIRE" in a crowded theater, it can censor you from displaying child porn, it can censor you from distributing copyrighted material, etc.

    Freedom of speech and expression goes far here, but it is not - nor should it be - absolute.

     

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    Travis Miller (profile), Dec 4th, 2010 @ 7:48am

    Re: Re:

    It's not stupid if you understand it. You are censored from freely yelling "FIRE" in the theater if you know there is none. But the censorship is reasonable and legal.

     

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    Travis Miller (profile), Dec 4th, 2010 @ 7:54am

    Re: Re: Re: Re: Re: Re: Censorship + no due process

    Again, the point is that it is censorship either way. What you are arguing is whether or not it is reasonable censorship.

     

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    Thomas (profile), Dec 4th, 2010 @ 8:34am

    Moral high ground?

    The U.S. has lost any moral high ground in anything. Internet Censorship? Nope
    Freedom of religion? Nope
    Civil rights? Nope
    Promoting peace? Big laugh.
    Bribery free government? HAHAHAHAHA
    Free and honest elections? HAHAHA

     

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    Gene Cavanaugh, Dec 4th, 2010 @ 1:09pm

    Censorship

    RIGHT ON! Again, the main purpose of secrecy and censorship is to protect the guilty, and advance the interests of the malicious.

     

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    Anonymous Coward, Dec 4th, 2010 @ 8:25pm

    Re: Ignorant coward

    Wrong again, the Supreme Court struck down the Child Pornography Prevention Act narrowing the child pornography exception to abuse of actual children.
    You are simply talking out of your ass.


    How small minded does one have to be to think that there is only one law concerning child pornography? Here, try this one on for size: PROTECT Act of 2003. Among other things, it prohibits computer-generated child pornography when "(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct.

    Talk about talking asses. Hmph.

    Surely it has, if the information is made up, The Espionage Act does not apply.

    Huh? If it isn't made up, then it must be a threat to national security? What kind of logic is that? Apologist logic, I suppose. No, the main reason the government is persecuting Wikileaks is because it provides information which discloses corruption and things people in government are ashamed of. Something most any government apologist hates. Like cockroaches hate light.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Ben, Dec 5th, 2010 @ 6:16pm

    "18 U.S.C. 2385: "Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States . . . Shall be fined under this title or imprisoned not more than twenty years, or both . . . ."


    Huh? I thought the entire reason you guys hat the right to bare arms was in cause you wanted to over throw the government? If that's illegal then whats the point of the whole gun thing?

     

    reply to this | link to this | view in thread ]

  52.  
    icon
    interval (profile), Dec 29th, 2010 @ 11:19am

    Re: Re: Re:

    I didn't say "destroying". If advocating the overthrow of the US Gov. every four years is in fact illegal then every presidential nominee and his/her advocates would be thrown in jail. You need to remove the destructive verbiage from your version of my statement.

    Game, set, match. Thank you for playing.

     

    reply to this | link to this | view in thread ]


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