Trojan First Amendment

In his book, Unequal Protection, Thom Hartman shows how corporations (specifically, railroads) used the 14th Amendment–which ostensibly guaranteed African Americans the same rights other citizens enjoyed–to enshrine the concept of corporate personhood in our legal system.

With the passage of the Fourteenth Amendment, the owners of the what werethen America’s largest and most powerful corporations – the railroads -figured they’d finally found a way to reverse Paine’s logic and no longerhave to answer to “we, the people.” They would claim that the corporation isa person. They would claim that for legal purposes, the certificate ofincorporation declares the legal birth of a new person, who should thereforehave the full protections the voters have under the Bill of Rights.


Acting on behalf of the railroad barons, attorneys for the railroadsrepeatedly filed suits against local and state governments that had passed lawsregulating railroad corporations. They rebelled against restrictions, and mostof all they rebelled against being taxed.

The main tool the railroad’s lawyers tried to use was the fact thatcorporations had historically been referred to under law not as “corporations”but as “artificial persons.” Based on this, they argued, corporations shouldbe considered “persons” under the free-the-slaves Fourteenth Amendment andenjoy the protections of the constitution just like living, breathing, humanpersons.

It’s an important lesson in history–but also an important lesson in Trojan Horses. That is, when you’re passing legislation, you might want to think about the unintended consequences the most powerful entities in the State might make of that legislation.

Case in point is the reporter shield bill just passed 398-21 in the House. The bill gives several acceptable reasons why the government can force a reporter to reveal her sources in a criminal investigation (after exhausting all other means of learning the source and proving the public interest in disclosing the source outweighs the public interest in the free flow of information). Those reasons are:

If You’re In Western Mass

I’ll be giving a talk at my old stomping grounds on Thursday evening, 8PM, in Fayerweather. If you might show up, let me know in the comments–I’d love to touch base with readers.

And until then … I’m off to solve US auto woes.

Six Months

Six months. That’s how long Comcast keeps its records that allow it to track the activity of a Comcast Internet subscriber. At least that’s what Comcast’s Cable Law Enforcement Manual, which somebody liberated and got into the hands of Secrecy News, says.

  • Because Comcast’s system of allocating IP addresses uses Dynamic Host Configuration Protocol (DHCP), its subscribers are not assigned a single, constant or static IP address. Instead, a dynamic IP address is assigned and has the potential to change several times throughout the course of a month. As a result, it is necessary to include in all requests for information the specific date and time of incident when an IP address was alleged to have been used.
  • Comcast currently maintains its IP log files for a period of 180 days. If asked to make an identification based upon an IP address that was used more than 180 days prior to receipt of the request, Comcast will not have information to provide.

I’m still waiting to see a copy of Amway’s complaint against 30 bloggers, but I wonder if they’ve missed their opportunity to find out their identities?

And if it’s phone call data the snoops want, they can get it up to two years after the phone call.

Ensuring Quality

Like Susie, I think this is a really cool idea.

Paul E. Steiger, who was the top editor of The Wall Street Journalfor 16 years, and a pair of wealthy Californians are assembling a groupof investigative journalists who will give away their work to mediaoutlets.

The nonprofit group, called Pro Publica, will pitcheach project to a newspaper or magazine (and occasionally to othermedia) where the group hopes the work will make the strongestimpression. The plan is to do long-term projects, uncovering misdeedsin government, business and organizations.

But I’m just as interested by the dilemma it will present traditional media: how will they assess this content? Cue Bill Keller making a typically idiotic comment that demonstrates what I mean:

Bill Keller, executive editor of The New York Times, said The Timeswould be open to using work from an outside source, “assuming we wereconfident of its quality,” but that “we’ll always have a preference forwork we can vouch for ourselves.”

How is it that an entire industry of people paid to write and think critically cannot imagine how they would go about assessing the quality of a text they didn’t write themselves? How is it that Bill Keller, with a lifetime career in journalism, couldn’t look at an investigative article and assess whether it was great or was crap? How is that Bill Keller, who presided over Judy Miller’s demise and has been saddled with Michael Gordon’s credulous reporting of late, puts so much stock in the NYT’s ability to vouch for themselves the quality of journalistic work.

Dick DeVos and KayBee Hutchison Go After Bloggers

That’s a way to make you feel good about blogging, huh? To be attacked by both Dick DeVos and KayBee Hutchison?

DeVos is suing 30 anonymous bloggers and YouTube users because he believes they are among a group for former distributors who sued Amway and were put under a gag order by the judge in the suit.

In the lawsuit filed this past week in Ottawa County Circuit Court,Quixtar seeks an injunction and damages of more than $25,000 againstthe posters, identified only as John Does.


Quixtar believes the videos and other postings are part of anorganized effort by former distributors who unsuccessfully sued Alticorand are under court order not to disparage the company or discloseproprietary information, according to the lawsuit.

Quixtar plans to ask for permission to subpoena various onlinecompanies to figure out who posted the materials, spokesman Rob Zeigersaid.

According to the Grand Rapids Press, an Alticor representative saidthe court action was merely to identify anyone who might be associatingwith those under court order, rather than expressing their own personalopinions.

Zeiger told the paper that his company was not interested inpursuing people not associated with the former employees, and wouldeven reimburse their legal fees if there was no connection. "Anindividual who is expressing their own opinion, we don’t have a problemwith that," he said. "They’re not doing anything wrong."

I thought at first this might be an attempt to neutralize the power of anti-DeVos blogs, which had been really effective against him in the last governor’s election in MI. I need to see the complaint here, because I’m not sure the allegations made in the YouTubes actually relate to the failed lawsuit against Amway. So DeVos risks amplifying the blog material which appears like it may be factually correct: that is, that Amway’s online division Quixtar, sucks. (Full disclosure, I have a family member who was a Quixtar believer before he became a Southern Baptist.) That’d be nice, huh? If in pursuit of a bunch of people who tried to bust the pyramid scheme, DeVos actually informed more people that Amway is a big hoax?

KayBee Hutchison, for her part, is complaining about bloggersbecause–wait for it–they don’t follow the esteemed principles ofjournalistic ethics.

Senate Minority Leader Fuels the Flames

ThinkProgress got the email that Mitch McConnell’s staffer claimed he had not sent out.

Seen the latest blogswarm? Apparently, there’s more to the story on thekid (Graeme Frost) that did the Dems’ radio response on SCHIP. Bloggershave done a little digging and turned up that the Dad owns his ownbusiness (and the building it’s in), seems to have some commercialrental income and Graeme and a sister go to a private school that,according to its website, costs about $20k a year ‹for each kid‹despite the news profiles reporting a family income of only $45k forthe Frosts. Could the Dems really have done that bad of a job vettingthis family?

Gosh. You think maybe the mainstream press, which claims to pride itself on its accuracy, will admit that this smear was not solely blog-driven?

Don’t answer that.

Blogger in the Eye of the Beholder?

The NYT manages to understand that the Republicans went overboard with their attacks on Graeme Frost. But there’s something else they don’t seem to understand.

In recent days, Graeme and his family have been attacked byconservative bloggers and other critics of the Democrats’ plan toexpand the insurance program, known as S-chip.


But Michelle Malkin, one of the bloggers who have stronglycriticized the Frosts, insisted Republicans should hold their groundand not pull punches.

“The bottom line here is that this familyhas considerable assets,” Ms. Malkin wrote in an e-mail message.“Maryland’s S-chip program does not means-test. The refusal to doassets tests on federal health insurance programs is why federalentitlements are exploding and government keeps expanding. IfRepublicans don’t have the guts to hold the line, they deserve to losetheir seats.”

As for accusations that bloggers were unfairlyattacking a 12-year-old, Ms. Malkin wrote on her blog, “If you don’twant questions, don’t foist these children onto the public stage.” [my emphasis]

You see, according to the NYT, if someone does something so far beyond the pale that all sane people would object, that person must be a blogger.

To be fair, the first known attack on the Frost family came from a Freeper. And Michelle Malkin did Read more

AT&T’s Latest Censorship

It’s a good think I chose Comcast’s oligopoly service for broadband internet service and not AT&T (my two easy choices for real broadband). That’s because I tend to point out that our government is becoming a wholly owned subsidiary of AT&T. And AT&T just changed its acceptable use policy to prevent you from using AT&T’s Toobz to tell others about the bad things AT&T is doing (via boing boing).

Failure to observe the guidelines set forth in this AUP may result inAT&T taking actions anywhere from a warning to a suspension ofprivileges or termination of your Service(s). When feasible, AT&Tmay provide you with notice of an AUP violation, via Email orotherwise, and demand that such violation be immediately corrected.AT&T reserves the right, however, to act immediately and withoutnotice to suspend or terminate Service(s) in response to a court orderor other legal requirement that certain conduct be stopped or whenAT&T determines, in its sole discretion, that the conduct may (1)expose AT&T to sanctions, prosecution or civil action, (2) causeharm to or interfere with the integrity or normal operations ofAT&T’s network(s) or facilities, (3) materially or repeatedlyinterfere with another person’s use of AT&T’s Service(s) or theInternet (4) damage or disparage the reputation of Read more

Checking In

Things I’m going to get in trouble for saying publicly at Duke:

  • That 80% of what is out in the blogosphere is crap. Hodding Carter had said half was. But I wasn’t thinking about anyone in this corner of the blogosphere.
  • That we bloggers were parasites on the legal teams of the mainstream media, who pay lawyers a lot of money to make sure things like the Libby grand jury recording gets released to the public.

Other than that, nothing too earthshattering newswise. I learned that the WaPo did get beat up by Lurita Doan’s lawyers for releasing the draft of the report on her Hatch Act violations. Which set off a very interesting discussion about whether publishing PDFs of draft documents would and should affect the WaPo’s reputation.

Mr. Sulzberger, Tear Down That Wall

My buddy Pinch Sulzberger wrote me today. He said:

We are ending TimesSelect, effective today.

The Times’s Op-Edand news columns are now available free of charge, along with TimesFile and News Tracker. In addition, The New York Times online Archiveis now free back to 1987 for all of our readers.

Why the change?

Sincewe launched TimesSelect, the Web has evolved into an increasingly openenvironment. Readers find more news in a greater number of places andinteract with it in more meaningful ways. This decision enhances thefree flow of New York Times reporting and analysis around the world. Itwill enable everyone, everywhere to read our news and opinion – as wellas to share it, link to it and comment on it.

Shorter Pinch: We thought we could live without the Dirty Fucking Hippies. But it turns out we needed them more than they needed David Brooks.

Though having learned to live without Brooks, I say we just treat him like the troll he is and continue to ignore him.