Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘terrorism’

After Copenhagen: live-tweeting Flemming Rose at Cato

On Sunday an Islamist gunman attacked a panel discussion on “Art, blasphemy and the freedom of expression” being held at a cultural center in Copenhagen:

One of the panel speakers, and the likely target of the attack, was Swedish artist Lars Vilks, who appeared on the March 2013 al Qaeda magazine Inspire “hit list,” along with Charlie Hebdo’s Charb, Ayaan Hirsi Ali, and others. Vilks has faced many perils, some of them in the U.S., since drawing a sketch of Muhammad a decade ago.

I am particularly proud of my own Cato Institute for publishing and recently hosting Danish editor Flemming Rose, who like Vilks appears on the al-Qaeda hit list. Rose is foreign editor of Jyllands-Posten, the newspaper in Denmark that published the famous Muhammad cartoons and nearly a decade later remains heavily guarded by police. In the wake of Sunday’s attack, I decided to tweet some highlights from a November Cato panel in which author Jonathan Rauch, known for his writings in defense of free speech (and an old friend), interviewed Rose about his new book The Tyranny of Silence and its implications. Referring to the famed page of Muhammad cartoons:

Remember, this panel was taped in November, which makes Rose’s next comment especially poignant:

A major theme of the conversation was hate speech laws, widely adopted in Europe, but not in the United States due to our First Amendment jurisprudence:

“It basically boils down to a wrong reading of the reasons behind the Holocaust,” Rose said (31:30). It wasn’t free speech that cleared a path for the Nazis: “In Weimar Germany you had hate speech laws on the books” (32:15). And in fact the “vast majority” of European hate speech laws now in effect date not to the period after 1945, but to that since the fall of the Berlin Wall (34:30)

Now the idea is ramifying:

While the U.S. Supreme Court has been a bulwark against hate-speech prohibitions, their advocates have made some inroads in academia:

But it’s complicated:

Which drew in Greg Lukianoff himself with a comment:

This was to become the most shared entry in my series:

There was also a side conversation (you can read it here) about a comment by Lars Vilks, the attacked Swedish artist:

I read “meaningless” in this context to stand for “futile”: a madman unable to achieve his goal does not become sane, but may switch projects. The way to make an attack on speech futile is make clear that the resented speech will continue unbowed or even intensified, as Vilks has done by continuing to pursue his work and proclaim his views in public and without apology — good advice for us on this side of the Atlantic, too.

Earlier on the Charlie Hebdo attack; on wobbling U.S. leadership in international forums on the speech topic; on blasphemy laws, and my piece in Time last month, “Blasphemy Is at the Front Lines of Free Speech Today“.

Filed under: , ,

Murder in Paris, cont’d

Time magazine invited me to write an opinion piece on yesterday’s lethal Islamist attack on the offices of the French satirical magazine Charlie-Hebdo. (earlier here). Excerpt:

If you defend freedom of speech today, realize that “blasphemy” is its front line, in Paris and the world. …

Most of the prestige Western press dodged the running of the [Danish Mohammed] cartoons, and beneath the talk of sensitivity was often simple fear. As journalist Josh Barro noted today on Twitter, “Islamists have by and large succeeded in intimidating western media out of publishing images of Muhammad.” …

[On the modern European rise of laws against “defamation of religion” and related offenses]: One way we can honor Charb, Cabu, Wolinski, Tignous, and the others who were killed Wednesday is by lifting legal constraints on what their successors tomorrow can draw and write.

Also recommended, this thoughtful Ross Douthat column on blasphemy and religious offense. Douthat is not enthusiastic about blasphemy generally, but makes an exception for instances where it is done in defiance of grave dangers. “If a large enough group of someones is willing to kill you for saying something, then it’s something that almost certainly needs to be said … it’s precisely the violence that justifies the inflammatory content. … if publishing something might get you slaughtered and you publish it anyway, by definition you *are* striking a blow for freedom, and that’s precisely the context when you need your fellow citizens to set aside their squeamishness and rise to your defense.”

“So many of Charb’s fellow journalists have long been aware of these threats, and have said nothing,” writes Mark Hemingway in the Weekly Standard. Jytte Klausen, author of a book on the Danish cartoon episode, in Time: “Over the past five years, [the editors of Charlie-Hebdo] have been left alone standing in defense of press freedom.” And Alex Massie at The Spectator:

[The 1989 fatwa against Salman Rushdie] was a test too many people failed back then. We have learned a lot since then but in many ways we have also learned nothing at all.

In 2012, Rushdie wondered if any publisher would have the courage to endorse The Satanic Verses if it were written then. To ask the question was to sense the depressing answer. They would not.

As for the present day, CNN, NYT, AP, NBC, ABC, the BBC, Guardian, Telegraph, and the CBC, will *not* be running Charlie-Hebdo cartoons, though a number of American publications did so, including Daily Beast, Vox, and Bloomberg. No UK paper on Thursday morning runs the cartoons on its cover — though the Berliner-Zeitung in Germany publishes a full spread of them.

23 cartoonists respond [BuzzFeed]. Claire Berlinski’s firsthand account of the attack scene, and Charb’s now-famous “die standing” vow. Andrew Stuttaford at Secular Right on whether anything will now change in Europe’s slow constriction of free speech: he fears not (& Hans Bader, CEI).

Filed under: , , , , , , , ,

Murder at Charlie-Hebdo

JeSuisCharlie2

Had there been any doubt that the freedom of speech and expression of the West is under siege from violent Islamism, it ended in the scene at Paris satirical magazine Charlie-Hebdo, assaulted by Islamist gunmen in a siege that has left twelve dead. Early reports indicate careful planning: the attack took place during a morning staff meeting at which top talent had gathered, and the murderers are said to have been equipped with a list of artists whose work they deemed disrespectful of Islam. At least four leading French cartoonists were killed.

It is one of the darkest days of the new century so far for the cause of free expression. But it is far from an unexpected day. The portents have been building for years: in the way the Danish Jyllands-Posten cartoonists, like author Salman Rushdie before them, had to go into hiding over supposed blasphemy; in the 2011 firebombing of Charlie-Hebdo, covered by the Weekly Standard here; in the way the French government had repeatedly pressured Charlie-Hebdo not to, well, go so far in giving offense [The Guardian]. Even after today’s events, many Western broadcasters and publishers continue to pixilate or blur out the Charlie-Hebdo images — not the images of slaughter in Paris streets, but mere cartoon images of men in Middle Eastern garb.

And yes, fear has shaped the actions of publishers in the United States too. Where Charlie-Hebdo was courageous on the Mohammed cartoons, Yale University Press was oh so craven, as the late Christopher Hitchens pointed out in Slate [more: Guardian; note also the history of the online, mostly U.S.-originated “Everybody Draw Mohammed Day“]
TyrannyOfSilence
In a new Cato Institute book entitled The Tyranny of Silence: How One Cartoon Ignited a Global Debate on the Future of Free Speech, discussed at more length by Kat Murti at Cato at Liberty, Danish journalist Flemming Rose, who was at the center of the Motoons controversy, traces the grim aftermath of that controversy in the self-silencing of Western opinion. [more coverage here, as well as a Law and Liberty podcast]

The danger now is not that there will be no outpouring of solidarity and grief and indignation in coming days, in France and around the West. Of course there will. The danger is that after the Charlie-Hebdo story passes from the headlines and other stories take its place, writers and publishers and artists and thinkers in the West will adjust to a new reality of fear, stifling the output of their minds and pens and keyboards for fear of giving provocation. If they don’t adjust, there are legal, insurance, and risk advisors at publications and universities who will be willing to do it for them.

And maybe lawmakers as well. Already, blasphemy laws are back on the march in Europe, after many years in which it was assumed they were a relic of the past. They must go no further. The best way to show resolution is to remove, not add, legal penalties for speech that offends (some) religious sensibilities.

From journalist David Jack on Twitter:

A comment of mine, also on Twitter:

Filed under: , , , , ,

Banking and finance roundup

Filed under: , , , , ,

Banking and finance roundup

  • SEC regs suppress small business capital formation and that’s a shame [Commissioner Daniel Gallagher via Bainbridge]
  • Federally sponsored gripe site for financial institutions not likely to end well [Hester Peirce and Vera Soliman, Mercatus via Kevin Funnell]
  • Alleged terror payments “routed through” sued bank also went through major New York banks, which shouldn’t be surprising [Fisher]
  • Did mid-level managers in securitized mortgage finance know they were in a housing bubble but cynically go ahead? Evidence against [Cheng et al., American Economic Review via MR]
  • Shareholder litigation: “New ‘loser pays’ standard could curb abusive lawsuits” [Examiner editorial] Delaware take note: corporate by-law changes that cut off fee-seeking opportunism deserve acclaim [Keith Paul Bishop via Bainbridge]
  • NYT was hot on “Goldman Sachs manipulated aluminum market” allegations but judge wasn’t [Reuters, July 2013 NYT]
  • CFPB might shrug off discrimination and retaliation charges, but many of the firms it regulates could not afford to [Hans Bader]

Filed under: , , , , , , ,

Banking and finance roundup

  • Furor grows over Obama administration’s Operation Chokepoint program chilling bank access for legal but disfavored groups [Iain Murray, Elizabeth Nolan Brown, FDIC list (not just payday lenders but also lawful purveyors of pills, guns, ammunition, and much more), Hans Bader] Parallel, though not happening under same program: JP Morgan abruptly closes accounts of former Colombia finance minister who is a renowned international economist, apparently because he made it onto a list of diplomats and other “politically exposed persons” statistically associated with legal risks and high compliance costs [Business Insider] Update via Nolan followup: Dana Liebelson at Mother Jones quotes anonymous bank officials as claiming that some account closures are wrongly being attributed to the program, but even in defending it concedes that should banks opt for continuing to service clients in disfavored lines of business they will shoulder distinctive (maybe decisive) compliance costs from “manag[ing] these relationships and risks,” engaging in due diligence, etc. Also, lawmakers like Sens. Jeff Merkley (D-Ore.) and Elizabeth Warren (D-Mass.) and Rep. Elijah Cummings (D-Md.) back the program; besides, this isn’t “the first time that feds have asked banks to keep an eye on their customers” since the Know Your Customer program goes back some years. So that’s comforting!
  • “Court: Standard & Poor’s is entitled to discovery supporting its ‘selective prosecution’ claim” [Volokh, earlier here and here]
  • “Plaintiff? Is That Really Necessary In A Class Action?” [Daniel Fisher on ZymoGenetics case]
  • Backed by hedge fund, lawyers exploit anti-terror law to squeeze global banks [Norman Lamont, New York Post]
  • “CEO facial masculinity predicts firm’s likelihood of being subject to SEC enforcement action” [Jia, Van Lent, and Zeng, SSRN via @brucecarton]
  • “Reflections on High Frequency Trading” [Robert Levy, Cato]
  • Banks finally lay to rest long-running litigation under Missouri second-mortgage law (MSMLA), though only after one Kansas City law firm ran up more than $600 million in settlements [Litigation Daily]

Filed under: , , , , , ,

Private terrorism lawsuits disrupt U.S. foreign policy

With encouragement from both Congress and an active plaintiff’s bar, victims and survivors have been suing various foreign entities in U.S. courts charging complicity, sometimes indirect and roundabout, with participants in international terrorism. But a suit against Bank of China over a Palestinian Islamic Jihad attack suggests that “when it comes to battling global terror, civil suits by American citizens often do more harm than good.” Both the United States and Israel have reportedly negotiated with the Chinese institution to develop ways of combating illicit money transfers, but privately directed damages litigation tends to deter cooperation and perpetuate mistrust, and is hard to call off even when it has begun doing real harm to diplomacy. Even when lawsuits against some of the more obvious bad actors succeed, “the U.S. government has for years blocked financial judgments awarded to American plaintiffs against Iran and other foreign governments. Why? Such judgments are seen as conflicting with American foreign policy interests.” [James Loeffler and Moria Paz, Slate]

Earlier on lawsuits over terrorism: suing U.S. government over Kenya, Tanzania embassy bombings; Ted Frank 2007 essay; everybody “except the guys who did it“; Egyptian hotel forum-shopping; Tanzania gem smuggling; 9/11 suits and more.

Filed under: , ,

Tech roundup

  • Far-reaching, little-discussed new regulation: Stewart Baker on NIST rules mandating cybersecurity at private enterprises [Volokh; first, second, third, fourth posts]
  • “Ominous Developments on the Internet Governance Front” [David Post]
  • “The Exaggeration Of The Cyberbullying Problem Is Harming Anti-Bullying Efforts” [Tim Cushing, TechDirt]
  • “Will California’s New Data Breach Notification Duty Stimulate Class Action Litigation?” [Glenn Lammi, WLF]
  • Some thoughts on how the law should treat domestic drones, public and private [Kenneth Anderson]
  • Privacy lawsuit against Gmail could do a lot of damage [Mike Masnick, TechDirt; Matt Powers, CEI “Open Market”, parts one, two]
  • Warning: more efforts ahead from legal academia to come up with stringent liability schemes for software makers [New Republic and Lawfare]

Filed under: , , , ,

Using NSA spy data to go after…FCPA violators?

The implications are mind-boggling [Houston Chronicle/Connecticut Post via NACDL via Americans for Forfeiture Reform, earlier] On paper, NSA is supposed to turn over spy-collected data only if evidence of serious unrelated crime turns up while investigating terrorist threats or other specified matters. However, as Reuters shows in an important new investigation, in drug investigations (and probably other types as well) “law enforcement agents have been directed to conceal how such investigations truly begin — not only from defense lawyers but also sometimes from prosecutors and judges” Thus the common little white lie about how such-and-such was discovered “during a routine traffic stop,” when in fact the traffic stop was intended to intercept something or someone known by previous investigation to be aboard the vehicle. With the origins of investigation routinely “phonied up” in this way, however, it becomes virtually impossible to know how many handoffs of spy information fall into gray areas beyond the clear intent of the authorizing law. [Julian Sanchez, Cato] Our coverage of the Foreign Corrupt Practices Act is here; earlier on surveillance here.

Filed under: , , ,