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From: mnemonic@walt.cc.utexas.edu (Mike Godwin)
Newsgroups: comp.org.eff.talk
Subject: Re: Musing on Constitutionality
Message-ID: <36909@ut-emx>
Date: 5 Sep 90 04:33:07 GMT
References: <36823@ut-emx.UUCP> <20062@well.sf.ca.us> <36649@ut-emx.utexas.edu> <11503@medusa.cs.purdue.edu>
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Reply-To: mnemonic@walt.cc.utexas.edu (Mike Godwin)
Organization: The University of Texas at Austin, Austin, Texas
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In article <11503@medusa.cs.purdue.edu> spaf@cs.purdue.edu (Gene Spafford) writes:
>
>Now, are you claiming that if I published your MasterCard number in my
>newsletter and encouraged my readers to use that number to buy things,
>I wouldn't be liable for fraud charges because I had a publication
>that is in some sense "superior" to an electronic newsletter like
>Phrack?  Just because it's published on paper?
>
>I just don't believe it!

Believe it. "Mere advocacy" of unlawful action is protected by the 
First Amendment. See U.S. v. Benjamin Spock, for example.

This is one of the interesting areas in criminal and Constitutional
law; there is a dividing line between speech/action that is 
Constitutionally protected and that which is criminal. In the 
hypothetical case you mention, fraud liability would accrue only
if the editor was actually part of a scheme to defraud (e.g., he
would share in the profits).

>The fact that Phrack was electronic doesn't mean it was "inferior" or
>given higher priority for action.  I bet the Secret Service would have
>done the same thing if it was an occasionally published paper.

There is reason to doubt this; publications similar to PHRACK have
not been prosecuted. The difference between those publications and
PHRACK? The former use printing presses or their equivalent.

>If Phrack had not been sent out electronically --
>if it had been printed off, copied & mailed, then I bet they would
>have indicted for mail fraud rather than wire fraud.  And would as
>many people have taken umbrage at the case if that had happened?

I certainly would have; it would have been an abuse of the mail-fraud
statute.

>Comparing things to the NY Times or Newsweek or even 2600 magazine is
>specious.  We have no comparable electronic publications with open
>subscriptions, regular publication schedules, salaried employees, and
>so on.  

If you cannot see the irony of your making this comment *right after*
you said it was false to note that PHRACK is inferior in its claim to
First Amendment protection .... 

Press freedoms were not meant to belong only to those who can afford
to fight in the courts for them. The same First Amendment applies both
to the TIMES and to your hypothetical newsletter publisher. The same
goes for freedom of speech and freedom of association, both of which
are grounded in the First Amendment, and both of which are threatened
by indiscriminate hacker dragnets and "punishment by seizure."

Gene, many of the comments you have made about the kinds of things
covered by the First Amendment suggest you could use a little 
First Amendment reading. I recommend Melville Nimmer's treatise
NIMMER ON FREEDOM OF SPEECH to start with. Then try reading the 
texts of a few cases like Brandenburg v. Ohio, 395 U.S. 444 (1969)
and its progeny.

If you do read up on some Con. law, perhaps it won't quite startle
you so much to discover that "mere advocacy" of unlawful action is
protected by the First Amendment.



--Mike






Mike Godwin, UT Law School  |    "We need a new cosmology.
mnemonic@ccwf.cc.utexas.edu |     New Gods. New Sacraments. 
(512) 346-4190              |     Another drink."
                            |          --Patti Smith