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From: spaf@cs.purdue.EDU (Gene Spafford)
Newsgroups: comp.org.eff.talk
Subject: Re: Musing on Constitutionality
Message-ID: <11608@medusa.cs.purdue.edu>
Date: 6 Sep 90 17:33:42 GMT
References: <11503@medusa.cs.purdue.edu> <82778@aerospace.AERO.ORG> <11521@medusa.cs.purdue.edu> <1990Sep3.182712.2260@world.std.com> <11548@medusa.cs.purdue.edu> <12945@paperboy.OSF.ORG>
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Reply-To: spaf@cs.purdue.edu (Gene Spafford)
Organization: Department of Computer Science, Purdue University
Lines: 62

In article <12945@paperboy.OSF.ORG> mbrown@tonic.osf.org (Mark Brown) writes:
>In article <11548@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
>>The original point I was trying to make is that there is a significant
>>difference between a regularly-scheduled publication with identifiable
>>staff and open subscriptions, and someone xeroxing off a letter in
>>their basement that they mail off to a circle of friends.  Whether or
>
>WHAT!?!?!?!
>Even if I run off a 'braodsheet', and pass it out for free in the street, I'm
>*still* protected by the First!
>
>Please, Gene, tell me you didn't *really* believe this!

What does it mean to be "protected by the First"?

If the sheet you have run off in your basement slanders several
private citizens, and if it contains people's MasterCard numbers with
instructions on how to use those numbers to commit fraud, you are
definitely not "protected."  Neither is the publisher or editor of a
regular newspaper who publishes the same thing.

The first amendment prohibits Congress from passing any law that
abridges the freedom of the press.  That means, at least, there can be
no prior restraint.  It also does NOT mean that the "press" has any
immunity from the law.  It furthermore does not define "the press."

I still contend that there is a significant difference between an
established newspaper and something run off in one's basement.
I have asked if there are any lawyers out there who *know* if that
difference has ever been the subject of a court case or law, or if
there is a formal legal definition of what "the press" is.

Note that I have nowhere stated whether I believe there *should* be a
difference in the law.  I do believe that members of the press should
not be immune for their actions.

This thread of discussion started when I pointed out that comparing
the New York Times to Phrack for purposes of argument is probably
specious.  I asked for someone with proper background to post a
definitive reply so that people have some facts to talk to.
Unfortunately, the only replies are from people who don't have the
information, and/or who choose to insult me for suggesting that the
current situation doesn't match their world-view.

I have a second question for any legal historian types out there.  A
comparison has been made here between the Phrack case and the Pentagon
Papers.  The theme has been that law enforcement didn't try to
confiscate the printing presses of the newspaper.  Yes, but the
question I have is, did they obtain a search warrant and confiscate
any of the newspaper's files?  The confiscations & searches done
recently on computer systems seems to have been done because they have
attached storage, not because they are used as publishing tools.  If
that is the case, the comparison obviously falls to pieces.

I'm not going to pursue this point further unless someone with
appropriate research and facts cares to fill in the background for
the rest of us.
-- 
Gene Spafford
NSF/Purdue/U of Florida  Software Engineering Research Center,
Dept. of Computer Sciences, Purdue University, W. Lafayette IN 47907-2004
Internet:  spaf@cs.purdue.edu	uucp:	...!{decwrl,gatech,ucbvax}!purdue!spaf