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Today the
Illinois Supreme Court unanimously overturned that
state’s draconian eavesdropping law, which makes it a felony to
record public officials without their permission, even when they
are performing their public duties. Two years ago the U.S. Court of
Appeals for the 7th Circuit
ruled that the law was unconstitutional as applied to police
officers recorded in public. Today’s
decision extends that analysis to other public officials
as well as private citizens when they do not have a reasonable
expectation of privacy.

The justices note that the eavesdropping ban “criminalizes a
wide range of innocent conduct,” including “the recording of
conversations that cannot be deemed private: a loud argument
on the street, a political debate on a college quad, yelling
fans at an athletic event, or any conversation loud enough that the
speakers should expect to be heard by others. None of these
examples implicate privacy interests, yet the statute makes it
a felony to audio record each one. Judged in terms of the
legislative purpose of protecting conversational privacy, the
statute’s scope is simply too broad.”

The court adds that “even when the recorded conversation is held
in private, the statute does not distinguish between open and
surreptitious recording,” insteading prohibiting
“any recording of a conversation absent the consent of all
parties.” That means someone who openly records a conversation
“must risk being charged with a violation of the statute and
hope that the trier of fact will find implied consent.”

Because the eavesdropping ban “burdens substantially more speech
than is necessary to serve a legitimate state interest in
protecting conversational privacy,” the court concludes, “it does
not survive intermediate scrutiny. We hold that “the recording
provision is unconstitutional on its face because a substantial
number of its applications violate the first amendment.”

The case involved Annabel Melongo, who was arrested for
recording three telephone conversations with an assistant
administrator of the Cook County Court Reporter’s Office. Melongo
was trying to correct an erroneous transcript from a computer
tampering case in which she was involved, and she wanted to
document her interactions with the court reporter’s supervisor. She
was charged with six counts of eavesdropping in 2010 and spent 20
months in jail because she could not make bail. Her 2011 trial
ended with a hung jury.

[Thanks to Pete Heimlich and Ryan Compaan for the tip.]

When I was in college in the
1990s in St. Louis, I remember getting a bunch of bizarre
anti-abortion fliers faxed to our student newspaper office. That
was my introduction to Fred Phelps, his family, and the Westboro
Baptist Church of Topeka, Kansas (and also, to a lesser degree, the
frequent experience as a journalist of being sent strange screeds).
If I recall correctly, they were in town picketing something, so it
was part of their effort to scrounge up some press. They were still
crafting their image as far-right extreme religious conservatives,
blaming all of America’s ills on homosexuality and abortion and
other things they defined as non-Christian. I remember seeing Fred
Phelps sometimes showing up on daytime talk shows (anybody remember
Ricki Lake?), but the Westboro Baptist Church was not yet a
household name.

They most certainly are now, and today a family member has
revealed that former patriarch
Fred Phelps died last night at the age of 84. Fred Phelps had
been out of the public eye for some time now, and over the weekend,
a son who had broken away from the family said the man was in bad
physical shape and had been moved into a
care facility. He also, allegedly, had been
excommunicated from the church during a power struggle over
leadership.

I encountered the Phelps family and Westboro Baptist Church
members in person in 1999 as attention on them started ramping up.
I was covering a meeting between a group of gay Christians and
Jerry Falwell’s followers at Liberty University in Virginia. By
agreeing to meet with the gay Christians, Falwell was deemed not
anti-gay enough, so Westboro Baptist (and another extremely
anti-gay church) showed up to picket Falwell. I decided to
acknowledge their appearance in my reporting (for an alt-weekly I
was working at and for a freelance piece for the gay magazine
The Advocate) but I declined actually trying to interview
them. Even back then, their shtick was well-worn, at least to the
audience I was writing for. They had nothing new to say. Other
journalists couldn’t wait to get some crazy, nasty quote for
them.

They had been picketing the funerals of people who had died of
AIDS for years, but after 9/11 they started picketing funerals of
soldiers, blaming their deaths on America’s failure to believe the
same things that the Phelps family believed. Well, now that they
were being bipartisan in their cruelty, the coverage took off. Even
as they started getting more and more attention, and people across
the spectrum started getting repulsed, I found it easier and easier
to tune them out. I always wondered why it was such a struggle for
others. The federal government passed a
law blocking protests near military funerals (and only military
funerals, again showing what people were really upset about). The
church won a Supreme Court verdict in 2011 that they couldn’t be
sued for monetary damages by the family of a slain soldier they
picketed.

Given that Fred Phelps has already apparently been purged
from the church, it’s unlikely that his death will change the
family’s behavior in any recognizable way. On a fundamental level,
Fred Phelps is not really responsible for the family’s fame—we are.
The Westboro Baptist Church is a scab we keep picking at. Americans
have grown more and more accepting of gay people, and the church’s
actions grow more and more desperate to get attention. Yet so many
people find it hard to look away from them. They couldn’t be any
less relevant to the direction the country is moving, and yet they
bother us so much that we pass laws to try to stop their protests,
arrange
elaborate plans to block said protests from public view, and
essentially continue to
perpetuate their fame by continuing to let the church’s actions
draw outraged responses.

Like I said, the death of Fred Phelps probably won’t result in
any changes from the family, but it’s a good excuse for the rest of
us to move on. I’m sure that right now some dreadful editorial
cartoonist is sketching Phelps being met at the pearly gates
by all the soldiers his family picketed. It’s true that the
solution for bad speech is more speech. But the solution to crazy
obsession is not becoming obsessed right back at them. Stop picking
at this scab. The attention the Westboro Baptist Church received
was always much greater than their actual influence or import,
except perhaps as a bad example. They were the Kardashian family of
religious activism.

Read about Fred Phelps’ secret origins as a civil rights
attorney who fought racial discrimination in the 1960s here
and speculate about what the heck happened.

The U.S. Supreme Court is hearing a series of cases this term
that raise fundamental questions about the scope of the First
Amendment, including in such areas as
mandatory union dues for public-sector employees,
aggregate campaign spending limits during election season, and
the health care law’s so-called
“contractive mandate.”

At the Los Angeles Times, Supreme Court correspondent
David G. Savage argues that the common thread uniting these
disparate cases is the presence of conservatives activists seeking
to vindicate their rights against the government. “For decades,
liberals wielded the 1st Amendment to protect antiwar activists,
civil rights protestors and government whistle-blowers,”
Savage writes. “These days, however, the Constitution’s
protection for free speech and religious liberty has become the
weapon of choice for conservatives.”

In a broad sense, that sounds right. Most people tend to view
antiwar speech as a liberal cause and view campaign finance speech
as a conservative cause. But the details become more complicated
when you take a closer look. Citizens
United v. Federal Election Commission (2010), for example,
the most famous—some might say most infamous—ruling in favor of
broad First Amendment protection for political speech against
campaign finance regulation, was also endorsed by the American
Civil Liberties Union, which filed an amicus brief on
behalf of the conservative non-profit corporation Citizens United.
Does that stamp of approval by the ACLU make Citizens
United a liberal case?

The same analysis holds true for the issue of unpopular speech
during wartime. Let’s reach a little further back in history and
consider the case of Eugene Victor Debs, radical labor activist and
perennial Socialist Party candidate for the presidency. In 1918
Debs was arrested under Woodrow Wilson’s Espionage Act on charges
of interfering with U.S. participation in World War I after he gave
an antiwar speech. Debs ultimately spent three years in federal
prison for committing that “crime.”

In 1919 the Supreme Court issued a decision on his case. Because
he spoke out against the war, the Court argued, Debs had
effectively sought “to obstruct the recruiting and enlistment
service of the United States.” His conviction was upheld. The
opinion was written by Justice Oliver Wendell Holmes, a hero
to the Progressive Movement who is still admired today by many
prominent liberal figures, including Justice Elena Kagan, who cited
Holmes as a judicial
role model during her 2010 Supreme Court confirmation
hearings.

By contrast, one of the loudest voices raised on Debs’ behalf
was that of the journalist and critic H.L. Mencken, who is
nobody’s idea of a left-winger. Indeed, Mencken despised Debs’
socialist views, yet knew perfectly well Debs was being railroaded
by the government and deserved to be set free.

My point is that First Amendment cases often fail to conform to
a binary left-right divide, and that’s because both sides of the
political spectrum are willing to accept the use of government
power to silence certain voices at certain times.

Opposition to biotech crops,
and the subsequent failure to adopt safe, healthy genetically
modified crop variants, is causing mass human suffering all over
the world.

The most obvious example of this is Golden Rice, which has been
available since the early part of the last decade, but is not in
regular use in any country. Golden Rice is a genetically altered
rice strain built to address Vitamin A deficiency, which affects
about 10 percent of the 3 billion people for whom rice is a staple
food. That deficiency
causes blindness in between 250,000 and 500,000 children each
year, half of whom die within 12 months, according to the World
Health Organization.

Golden Rice is cost effective and perfectly safe. But
environmentalist groups like Greenpeace continue to oppose it. Over
the years since its development, radical anti-biotech activists
have waged
violent crop-burning campaigns intended to wipe it out. Back in
2000, the threat was so fierce that the strain was being stored
in a grenade-proof greenhouse for protection.

The sheer physical misery—misery that could have and should have
been prevented—that has resulted from opposition to the rice has
been immense, but also difficult to quantify. But this year, two
agricultural economists attempted to estimate exactly how much it’s
cost, both in economic terms and in healthy lives lost. The results
are pretty grim. 

“Results show the annual perceived costs have to be at least
US$199 million per year approximately for the last decade to
explain the delay in approval of the technology,”
writes Justus Wesseler of  Technische Universität
München, Center of Life and Food Sciences in Freising Germany and
David Zilberman of UC Berkeley. “This is an indicator of the
economic power of the opposition towards Golden Rice resulting in
about 1.4 million life years lost over the past decade in
India.”

What does the study’s authors mean by “life
years?” David
Ropeik of Scientific American explains:

That odd sounding metric – not just lives but ‘life years’ –
accounts not only for those who died, but also for the blindness
and other health disabilities that Vitamin A deficiency causes. The
majority of those who went blind or died because they did not have
access to Golden Rice were children.

Ropeik argues that at this point we need to do more than tally
the suffering. We need to assign blame, and hold those who have
opposed Golden Rice so adamantly, for so long, on such flimsy
justifications, accountable:

These are real deaths, real disability, real suffering, not the
phantom fears about the human health effects of Golden Rice thrown
around by opponents, none of which have held up to objective
scientific scrutiny. It is absolutely fair to charge that
opposition to this particular application of genetically modified
food has contributed to the deaths of and injuries to millions of
people. The opponents of Golden Rice who have caused this harm
should be held accountable.

That includes Greenpeace, which in its values
statement promises, “we are committed to nonviolence.” Only
their non-violent opposition to Golden Rice
contributes directly to real human death and
suffering. It includes the European Network of Scientists for
Social and Environmental Responsibility, which claims the
credibility of scientific expertise, and then denies or distorts
scientific evidence in order to oppose GMOs. It includes the
U.S. Center for Food Safety and the Sierra
Club and several environmental groups who deny and distort the
scientific evidence on GM foods every bit as much as they complain
the deniers of climate change science do. It includes
the Non-GMO Project, started by natural food retailers who
oppose a technology that just happens to threaten their
profits.

Reason’s Ron Bailey has been writing about the
“homicidal
activism”
of anti-biotech fanatics for
years.  

(Link via CEI’s
Greg Conko.)

Note to American tweens: Don’t be a Good Samaritan on the
state’s watch. A sixth grader at a Virginia Beach public school

was suspended this week for having a razor blade. She took
the blade from another student who was cutting himself with
it. Bad move, apparently. 

The Bayside Middle School student, Adrionna Harris, said she
took a razor blade away from another student because he was using
it to cut himself. She threw the blade away and told school
officials. Then she was suspended for 10 days, with a
recommendation for expulsion, according to Virginia Beach news
station WAVY. 

Note that Harris didn’t even have the razor blade in her
possession when she went to school administrators. The only
evidence this razor blade existed is Harris’ own admission of it,
when she told school officials what had happened and that she had
already thrown it away.

“I was very shocked that a student would get suspended for
saving another child,” Rachael Harris, Adrionna’s mother, told
WAVY. “The school system over-reached absolutely.”

On Wednesday night, Virginia Beach City Public Schools agreed to
move Adrionna’s suspension hearing, which was scheduled for next
week, to Thursday night.