CDR: Re: free speech children michigan law

[Greg Broiles]

At 09:23 PM 9/27/00 -0400, Steven Furlong wrote:
>You claim that the man's swearing at the woman didn't violate any law,
>so she can't sue. That's probably false under Michigan criminal law
>(anti-cussing law and disturbing the peace, according to the DA; I don't
>say I agree with it)

Hmm, maybe wait on this until you've had con law and read _Cohen_, the 
"fuck the draft" case. There are a number of unenforceable "breach of 
peace" laws on the books that are neither repealed nor enforceable against 
someone who's current on constitutional law.

>  The
>question is, at what point do you draw the line between those extremes
>to say that some people can sue for damages and some can't? That is what
>the jury system is for: to decide on a case-by-case basis.

Also, I think this may go a little too far - in a number of cases, there's 
no recovery available - as a matter of law, which means it's a judge's 
decision, not a jury's - because of the type of injury, the relationship 
(or lack thereof) between the litigants, and so forth. There are a lot of 
fussy rules here - juries don't get to just have a popularity contest and 
give the money to whomever they feel sorry for.

Examples of
>technology not helping in the face of massive government encroachment
>can be found in the RoC: all computers must be registered, all web sites
>must be registered elsewhere, private use of encryption is forbidden,
>all traffic is subject to monitoring, and so on. Violations do occur,
>but violators can be jailed or killed; most people don't even try.

And, don't forget, the RoC does this with .. laws. The idea that 
governments will create systems by which their power can be turned against 
themselves (but only in the service of goodness & righteousness) is an 
attractive siren song .. I'm not saying it never works, but it seems to 
happen less often than one might imagine.

While I have a lot of respect for the _Bernstein_ legal team, I suspect 
that John Gilmore's DES cracker did more to end export controls than 
litigation did. That's not because the lawyers didn't work hard (they did, 
and still are) or because they're not smart (they are) but because it's 
possible for politicians and policy wonks to argue forever about the merits 
of export control, but they can't do much about simple facts, like $225K 
buys a 5-day brute force crack of 56-bit DES. Case law and statutes come 
and go (especially in the 9th Circuit) .. but technological and economic 
facts like that aren't susceptible to argument.

Law's great, but it's important to understand its limitations.

--
Greg Broiles (J.D., U of Oregon, 1996)
gbroiles at netbox.com