Frank’s Case Book

It is quintessentially American to be exquisitely sensitive to threats to liberty. Any country born with the motto “Don’t tread on me,” could hardly be otherwise. We worry about limits on flag burning and flag waving, about whether Nazis can march in Jewish neighborhoods, under what conditions artists funded by the government can produce art that is offensive to the public, the extent to which terrorists enjoy the right to counsel, and even the applicability of US Constitutional rights to illegal combatants caught in a foreign land. Yet, the focus on these questions can largely obscure sweeping threats that are far more pervasive and more directly threatening to American liberty. The implicit limitation of free speech hiding under the euphemism of campaign finance “reform” represents just such a threat.

The dynamics of calls for such reform are relentless. As governments grow more and more intrusive in the economy, government decisions rather than impersonal market forces determine economic winners and losers. As a consequence, there are stronger and stronger incentives to influence such decisions. As the perception of influence grows, so do cynicism about the influence and calls for regulation.

The 1974 campaign finance bill, following the Watergate scandal, limited individual contributions to $1,000 per candidate per election, political action committees (PACs) were limited to $5,000 per candidate per election, candidates spending of personal funds was capped and expenditures by independent groups was constrained to $1,000 per candidate per election.

In Buckley v. Valeo, the Supreme Court agreed that the law was far too expansive. While limitations on spending might avoid the “appearance of corruption” this argument could hardly be made against a candidate spending his own money. This limitation was struck down. Limitations on spending by independent groups were ruled a violation of the First Amendment.

After all the dust had settled, in exchange for some government financing, candidates could agree to spending limits. Direct contributions to candidates are called “hard money.” Contributions to political parties for general party activities fall into the category of “soft money.” Campaign ads paid for by soft money near the time of an election are not permitted to directly advocate the election or defeat of a candidate.

Ever clever, political professionals adapted to these new restrictions. Campaign ads for using soft money became cleverly disguised ads that supported general themes that helped or hurt various candidates. Money also flowed to independent groups to make the case for and against independent candidates.

To some, political speech in the form a campaign ads is getting out of control. The recently passed Shays-Meehan House bill bans “soft money” from the national parties, and prohibits unions, corporations and non-profit organizations from broadcasting ads that directly refer to a candidate within 60 days of an election. This latter provision will almost certainly not pass constitutional muster. Indeed, Congress is so certain that it will be overturned that it specifically provides in the legislations that the various components are severable. If one part does not pass a court test, the rest of the legislation would remain. It is irresponsible at the very least for Congress to pass legislation that they are reasonably certain is unconstitutional. Such an action shows a profound disrespect for Constitutional constraints.

Even now it is apparent that if the current bill becomes law, there will be important (unintended or not) consequences that are not healthy for the political process.

Incumbent Protection: In general, incumbents are better known in their districts than challengers and require fewer funds to introduce themselves to voters. To the extent that campaign funds are limited overall and to the extent that electioneering is limited, incumbents are helped. Incumbents, the ones who are writing the law, provided an exception for running against wealthy challengers who finance their own campaigns. If a challenger is wealthy, an incumbent is allowed raise more “hard money” Certainly, if the raising of such funds is corrupting, it is still corrupting in the presence of a well-heeled opponent.

Reducing the Relative Power of Parties: Political parties are where people of broadly similar political persuasions congregate. The presence of political parties nurtures political diversity. Parties will support with money long-shot candidates that political action committees and independent interest groups eschew as poor investments. As political parties wither, political competition weakens. Even in the unlikely event that limitations on campaign funds by independent groups within 60 days of election are upheld, the influence of such groups will increase. National political parties will not have soft money to spend and will not be able to respond to the pitches of various interest groups. Since independent interest groups by their very nature focus on single issues, the political debate will become more polarized and angry. Political parties have a centralizing influence. The Shays-Meehan bill greatly reduces this civilizing effect.

Increasing the Power of Large Media. With fewer political voices mandated by legislation, the power of the press to set the agenda free from dissenting voices grows. There are people on both the Left and the Right convinced that mainstream media misrepresents their issues. Under the planned legislation, the relative power of the press, yes even the corporate press, increases.

Now that passage of this form of campaign finance reform seems likely, some on the Left, are beginning to have second thoughts. Republicans have traditionally had greater success in raising hard money, and this bill increases hard money limits. In particular, Democratic candidates in 2004 presidential elections will likely exhaust their hard money funds in hard-fought primaries in early March or April 2004. Assuming that Bush runs essentially unopposed in the Republican primaries, the Bush campaign will be able to present the case for Bush’s re-election with hard money throughout the summer.

Many in favor of the current campaign reform regime argue that there are no real restrictions on the freedom of speech, because “money is not speech.” Of course, the phrase is a deliberate mis-characterization of the issue. If money is directly connected to speech then it is part of protected of speech. By way of analogy, governments could not limit the amount of money spent to print up a pamphlet and argue that they were not regulating speech but money.

The guiding ethos for free speech has been that, “I disapprove of what you say, but I will defend to the death your right to say it.” ( Friends of Voltaire, 1906) It has now changed to, “I disapprove of what you say, but I will defend to the death your right to say it — so long as it is more that 60 days before a federal election.”

Links

• Smith, Bradley, “This History of Campaign Finance Reform,” Heritage Foundation, 1995.
• Key Provisions: Shays-Meehan, Washington Post.

“In all criminal prosecutions the accused shall enjoy the right…to have the assistance of counsel for his defense.” — Sixth Amendment to the US Constitution.

It is disappointing to listen to radio and television call-in talk shows and hear some middle Americans express an enthusiastic willingness to exchange civil liberties for greater security. This willingness is born of our current insecurity induced by the attacks on the New York World Trade Centers and the Pentagon. We have not recently experienced significant losses of civil liberties for many to understand the nature of the trade they seem prepared to accept.

This last week, the Justice Department, under Attorney General John Ashcroft, implemented rules which on their face appear to violate the Sixth Amendment’s guarantee that those accused of a crime (and even those just detained) are entitled to enjoy the “assistance of counsel” in the preparation of a defense.

According to this new policy, if the attorney general formally declares that “reasonable suspicion exists to believe that an inmate may use communications with attorneys or their agents to facilitate acts of terrorism,” the government can eavesdrop on their conversations.  Inmates have no expectation of privacy and the government can regularly monitor conversations with friends, relatives, and other inmates. However, conversations with attorneys had always been considered privileged.

To its very modest credit, the Justice Department says that it will institute procedural safeguards to protect the attorney-client privilege. Attorneys will be notified that their conversations may be monitored.   In addition, third parties, not federal prosecutors, will monitor the conversations. Presumably, the use of third parties will protect Fifth Amendment guarantees against self-incrimination.  These third parties would only release the information if a federal judge approves. These efforts, nonetheless, are not sufficient.

The genius of the Constitution is that it recognizes that individuals have rights that cannot be, at least not easily, circumvented by the state. In addition, the possibility of tyranny is mitigated by the distribution of powers between branches of government. For example, before the executive branch can search a house, it needs to obtain a warrant from an independent magistrate.

It would seem that if the Justice Department has compelling reasons to believe that an inmate is initiating terrorist acts through his attorney, they should be able to so persuade an independent judge. Without the safeguard of independent review, this new policy clearly erodes Sixth Amendment protections.

There are many changes we can make to reduce the possibility of foreign terrorism.   We can improve the vetting and tracking of visitors on visas, we can upgrade airport and aircraft security, and we can improve our foreign intelligence by recruiting more human assets.  There is no public case for the nibbling away at the edges of the Sixth Amendment by this new policy. Moreover, this policy may be short lived.  It will not likely survive scrutiny in the courts once there is an opportunity to challenge it.

We need not yield to hyperbole.  This new regulation will not transform the United States into a police state. Our institutions are too resilient. Nonetheless, it does provide a disturbing precedent that somewhere down the line will prove far more serious. The best our generation can do is to pass the freedoms we have inherited down to our children whole and intact. This new Justice Department policy diminishes our children’s political birthrights.

The attack and murder of over 6,000 people at the World Trade Centers in New York and the Pentagon in Virginia have come collectively to known as “September 11′ or “911” for short. The shock of it has forced us to reconsider and rethink some collective assumptions. In particular, we are now confronted with the question of “racial profiling” in an effort to identify potential terrorists. Michael Kinsley the liberal editor of Slate Magazine is considered a thoughtful commentator, but fell flat on his face in a recent article when he endeavored to determine “When is Racial Profiling Okay?”

Kinsley defines racial profiling as acting with respect to individuals on “statistically valid but morally offensive” assumptions groups. It implies, “rational discrimination: racial discrimination with non-racist rationale.” Kinsley identifies bad racial profiling as making decisions that generally disfavor historically disadvantaged groups and good racial profiling as arising from benign and altruistic motives.

Recent polls suggest that Americans, by a small majority, would support the use of racial profiling against Middle Easterners. It is ironic that African-Americans, who have been victims of such profiling in the past, support such a policy at higher rates than other Americans. It is doubly ironic when a Detroit Free Press poll found that Arab-Americans support racial profiling to search for potential terrorists by a 2-to-1 margin.

Kinsley admits that “affirmative action” is indeed a form of racial profiling. As he explains, “You can believe (as I [Michael Kinsley] do) that affirmative actions is often a justifiable form of discrimination, but you cannot sensibly believe that it isn’t discrimination as all.” However, since it arises out of a commitment to advancing minority groups, it is a dangerous, but useful form of discrimination. For Kinsley, this form racial profiling is “Okay.”

In our current situation, we ask whether additional attention by security agents in public places should be paid to people, particularly men, with an obvious Middle Eastern ancestry. Only a minute fraction of Middle Easterners are terrorists, but at least recently, all terrorists have been from the Middle East.

Somewhere between ignoring the appearance and citizenship of people as they pass through security check points at airports and devoting more scrutiny solely to those with a similar background to the 911 terrorists lies a reasonable compromise. However, the reason that such special attention might be warranted has to do with more than just benign motives on the part of security agents. In National Review, Robert Levy suggests a framework where ethnic heritage should only be considered in conjunction with other factors and only if such “profiling” could demonstrate empirical success in locating potential terrorists.

In 1993, Jessie Jackson explained “There is nothing more painful to me at this stage in my life than to walk down the street and hear footsteps and start thinking about robbery, then look around and see somebody white and feel relieved.” This observation by Jackson suggests that avoiding the obvious statistical correlations about groups is not easy. It also demonstrates that noting such correlations does not necessarily imply mean-spirited bigotry.

The difference between Jackson’s experience or security situations and affirmative action has to due with how much time and information are available for judgment. Late at night, Jackson must make an instant surmise lacking additional information to make a complete judgment. At an airport, a “suspicious” appearance of a non-citizen might suggest further investigation. Statistical correlations there are used as an opportunity to gather further information before formal judgments are made. No serious person would argue that all Muslim citizens of Middle Eastern countries in the United States should be automatically arrested.

Affirmative action is radically different. There is ample time in admissions or employment decisions to be thoughtful; and deliberate at to consider far more than just the race of an applicant. A rational use of race in admissions or employment might be to identify people who might deserve a second look. However, race or ethnicity ought not be used as a definitive factor in admissions no matter how benign or sainted the intentions.

Recent events forced Kinsley to re-consider what might constitute a rational policy for security in public places. Unfortunately, in trying to arrive at a general rule about when racial profiling is “Okay” he appears not to understand the issue and falls sadly very short.

On June 11, 2001, the Supreme Court took another step in defining the Constitutional protections offered by the Fourth Amendment’s prohibition against “unreasonable searches” in an age of rapidly improving and intrusive surveillance technology. The case involved one Danny Lee Kyllo. It seems that Kyllo was an avid indoor horticulturalist. Unfortunately, Kyllo devoted his botanical skills to raising marijuana plants rather than roses.

The indoor cultivation of marijuana requires high intensity lamps. On the basis of tips that Kyllo was involved in marijuana transactions and had larger than average electric bills, but without bothering to secure a warrant from a judge, the authorities arranged for Kyllo’s house to be scanned by an Agema Thermovision 210 thermal imager. The imager revealed the increased heat emanating from the house indirectly indicating the presence of the marijuana lamps. Using this additional information, the police persuaded a judge to issue a search warrant. The results of that search provided evidence used to convict Kyllo.

The issue before the US Supreme Court was whether the use of the imager constituted a search. If it was a search of a home without a warrant, then the evidence from the imager could not be presented to a judge to secure a warrant or used in a trial against Kyllo. If the use of the imager is considered the gathering of information that is “in plain view,” then its use is “presumptively reasonable.”

Writing for the majority in a close 5-4 decision, Justice Antonin Scalia found that the use of the thermal imager to scan a private home is indeed a search and requires a search warrant. Scalia’s reasoning relies on Silverman v. United States (1961) that argued that the essential core of the Fourth Amendment “stands the right of a man to retreat into his own home [and] there be free from unreasonable governmental intrusion.” Kyllo was at home and Scalia argues that in the home there is reasonable assumption of privacy that was violated by the scanner.

Justice Paul Stevens, dissenting, tried to draw a distinction between “through the wall surveillance” and “off the wall surveillance” but the only thing off the wall was Stevens’s reasoning. Stevens argued that the thermal imager was detecting emanations from the house not really looking into the home. But his distinction was one without a difference. If a device amplifies the senses and allows the authorities to determine what is happening in a house in a way that would normally require a more direct conventional search, the use of the device really is a search. Moreover, Scalia responded that even if this particular thermal imager provided crude images, “the rule we adopt must take account of more sophisticated systems that are already in use or development.”

One reason that a person has a reasonable expectation of privacy, according to Scalia, is because thermal imagers are not “in general use.” This is the one important flaw in Scalia’s argument. Technology will inevitably improve. If consumer video cameras in the future have infrared imaging capabilities, then any passerby could detect hot spots in a house. This being the case, the reasonability of the expectation of privacy erodes and the zone of personal privacy shrinks.

What is also interesting about this case is the way the court divided. In the past, Justice Stevens has been more likely to side against law enforcement authorities. Yet in this case he found that the use of a thermal imager did not constitute a search under the rules of the Fourth Amendment. On the other hand, Scalia and Thomas, who have been less inclined to shackle law enforcement authorities, are clearly fearful of a world open to high-tech government intrusion.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” — First Amendment to the US Constitution.

“The constitutional freedom of religion [is] the most inalienable and sacred of all human rights.” — Thomas Jefferson: Virginia Board of Visitors Minutes, 1819.

Students from a North Carolina Christian school were recently visiting the White House. During a respite, students joined hands and began a prayer on behalf of the President. After a short while, the Secret Service broke up the prayer and reportedly told the group to “take it outside.” Perhaps the moment of prayer was slowing the progress of the tour group or perhaps the Secret Service was just awkward and did not know what to do. The scene was an inconsequential little incident, but it may serve to remind us how uncomfortable religion in public places makes many feel in what Stephen Carter has called the “culture of disbelief.”When Carter wrote the Culture of Disbelief in 1993, the Christian Right, at least the part typified by Pat Buchanan’s speech at the 1992 Republican National Convention, convinced some that churches were conspiring to institute a theocracy. Religion, many contemporary Americans believe, ought to be treated as a hobby indulged on Sunday mornings, with no real place in serious public discussion. Stephen Carter is a political Liberal and religious believer who, by contrast, laments that religion has been virtually eliminated from the public square, denuding public discussion of an important source of wisdom. When people of faith speak, people squirm.

The first freedom protected by the First Amendment is freedom of religion. Freedom of religion is different and distinct from freedom of speech. It is not just freedom of conscience. The First Amendment protects religious institutions from the state.

The worst political outcome is tyranny and one way to prevent tyranny is to have different and independent centers of authority. Religion is one such center. Religion and spirituality are at their best when they act in resistance. Stephen Carter calls religion a “bulwark against state authority” and suggests that “the idea of religion as an independent moral force … is crucial …to the role of religions as intermediate institutions to which citizens owe a separate allegiance.”

In 1990, the Roman Catholic Archbishop John Cardinal O’Connor warned that Catholic public officials who supported abortion rights might be formally separated from the church, i.e., excommunicated. The action was considered an inappropriate intrusion of religious belief into public debate. Stephen Carter cites New York University law professor Burt Neborne as arguing, “When you accept public office, you’re not a Catholic, you’re not a Jew. You’re an American.” Carter argues it is possible to be both a person of faith and in public office.

Carter contends that Liberals cannot, on the one hand, argue that religious leaders have no business becoming involved in public policy issues, when they did not complain when religious leaders supported positions they favored. There was no claim by Liberals that religions should mind their own business when the Catholic Church in the 1950s threatened to excommunicate public officials who supported segregation. Liberals did not object when Catholic bishops supported the ill-fated nuclear freeze movement of the 1980s. Liberals did not oppose the Southern Baptist Church when it nurtured and supported the civil rights movement. If you accept the legitimacy of Rev. Jesse Jackson in the public square, Rev. Pat Robertson cannot be excluded because of his faith perspective.

Carter’s most trenchent argument is that government has a positive obligation not just to be neutral with respect to religion, but also to be deferential to and accommodate religious observance. When otherwise reasonable legislation comes into conflict with personal religious practice, Carter argues that the state should have to show a compelling interest before restricting such a practice. In a relatively rare act of deference, in Wisconsin v. Yoder, the Supreme Court agreed the state interest in the education of children was not superior to belief by the Amish that they should remove their children from school after the 8th grade. More often, such deference has not been shown. In Employment Division v. Smith, the Court did not respect the rights of members of the Native American Church to use the controlled substance peyote, a religious practice that predates the United States. There is probably not a little religious, let us say “insensitivity,” in the failure to recognize that state should not have prevented the “free exercise of religion” in that case.

If we expect people to be true to their conscience, we must accept that sometimes religiosity informs that conscience. This represents healthy respect for plurality in a democracy. Some people are thoroughly spiritual. They cannot and ought not be asked to separate the core of what they are in exchange for the right to be seriously listened to in the public square.

`But let someone actually advocate a prohibition against considering the color of our skin, and we know at once that we’re hearing the words of an enemy — either a white racist or a black sellout.” — William Raspberry, columnist for the Washington Post, March 30, 2001.

Statistical correlation is a valuable thing, but when we start to apply statistical generalizations to individuals, a mathematical calculation can turn pernicious. This is certainly true in the case of racial profiling, where law enforcement officers single people out for scrutiny on the basis of skin color. Even if there is a real correlation between race and ethnicity and likelihood of crime, it is immoral to leap to the presumption that a person of a certain group has particular characteristics. Unless people are judged on how they act and what they do as opposed to membership in an ethnic or racial group their humanity is ignored.

Assumptions lurking behind the use of racial profile float over the different but intimately linked issue of racial preferences in college admissions. Both seek to classify using race on the grounds that skin color is associated with other characteristics. Recently, United States District Judge Bernard A. Friedman of the Eastern Division of Michigan ruled that the use of race in the admissions process at the University of Michigan Law School “violates the Equal Protection Clause of the Fourteenth Amendment and Title IV of the Civil Rights Act of 1964.” The court further ordered relief to plaintiff Barbara Grutter who had been denied admission to the law school.

The case, which will likely be appealed to the US Supreme Court, is particularly interesting since many of the arguments in favor of using preferential treatment based on race were adjudicated and found wanting.

In the Bakke decision, the US Supreme Court hinted that if race were just one factor in the admissions process, essentially breaking ties in close decisions, it might be constitutionally permissible, even given the “strict scrutiny” the Court applies to considerations of race by the state.

Evidence presented at trial provided, in the view of the judge, “mathematically irrefutable proof that race is indeed an enormously important factor” for admissions at the University of Michigan’s Law School. Statisticians found that minority applicants with similar credentials were far more likely to be admitted than similarly situated white students. “For example if a Caucasian applicant has a 6-7% chance of being admitted, an African-American with a similar index score would have a 93% chance of being admitted. If a Caucasian applicant has a 10% chance of being admitted, a Mexican-American applicant with a similar index score would have a 90% chance of being admitted.”

The evidence is so overwhelming that no one can really believe that race is merely one of many factors used in admissions. Even the statistician for the University of Michigan admitted that if color-blind admissions were used, African-Africans would constitute 4% instead of 10-17% of the entering classes. One can argue that there are valid reasons for weighting race so heavily, but it is not honest to argue that race is not a definitive factor in admissions.

The judge found that the effect of the University of Michigan’s admissions policy was indistinguishable from a formal quota system.

The University of Michigan Law School argued that “diversity” in the classroom was an educational value. By admitting a “critical mass” of minority students, the defendants argued, the law school insured a diversity of ideas in the classroom.

Judge Friedman was uncomfortable with the generalization that different ideas are associated with race. Friedman wrote, “[A] distinction should be draw between viewpoint diversity and racial diversity. While the educational benefits of the former are clear, those of the latter are less so. The connection between race and viewpoint is tenuous, at best.”

Indeed, the former dean of the law school admitted that, “I cannot recall an instance in which, for example, ideas were presented by a black student that have not also been expressed by white students.”

To argue that we can presume that people of a different color will have different viewpoints is to engage in the same type of stereotyping that should have expired decades ago.

Few involved in the admissions process at many universities really believe that race plays a minor factor in admissions or that viewpoint diversity is the real goal. The hidden, but by no means ignoble, truth is that the Liberal attitude, so pervasive on college campuses, worships at the altar of equal outcomes. Liberals believe that unless outcomes are equal, society is unfair or racist and that the state is justified in taking extreme steps to alleviate the disproportionately low representation of minorities. But to clearly express this view and not hide behind the diversity argument or the fiction that race plays only a minor role in admissions would be to acknowledge the unconstitutionality of their remedy.

William Raspberry, a Liberal African-American, sympathetic with preferential treatment in the admissions process, admits as much when he laments, “…we are required to dance on legal and definitional pinheads to defend policies we believe ought to be sustained for at least a while.”

The other sad truth is that some conservatives who rail against affirmative action do not demonstrate similar concern for persistent under-representation of minorities. As Raspberry complains, “…we want the rest of Americans to desire — really desire — fair outcomes.”

Efforts to alleviate the problems of minorities will not succeed if the primary modality of the solution starts at college admissions or at the time people apply for jobs. Our job collectively via government action and through individual and private efforts is to nurture those institutions, schools, churches, and families that will ultimately provide the intellectual, emotional, and spiritual resources necessary for success. As long as minorities are given preferential treatment and as long as they believe they cannot compete with out it, they will be relegated to second-class status.

To say that the Germans have had a history of problems with Nazis and the fascist worldview ranks as a colossal understatement. Surely, there is no country with a greater justifiable reason to separate itself from this dangerous and ugly part of its past. Despite American free speech sensibilities, it is difficult to criticize the efforts of modem Germany to use the law to suppress, within their own borders, Nazi symbols and sentiment.

Nonetheless, a recent action by the Bundesgerichtshof, the highest German civil court, should concern those who view the Internet as an important medium for free and unfettered speech. The German court recently convicted Frederick Toben of publicly denying the historical reality of the Holocaust. Of course, Toben’s claim is despicable and false, but it also came from Toben’s web site in Australia not in Germany. The German court claimed jurisdiction over web sites outside its borders so long as Germans had access to the site.

Perhaps this should not concern us too much since Toben is being prosecuted in Germany. If you don’t like German laws, just do not visit Germany. Then what should be done about Yahoo’s predicament? Yahoo is a multinational company. They have spun off web enterprises in different countries. There is a Yahoo France, Yahoo Italy, and even a Yahoo Argentina that use French, Italian, and Spanish as their base languages, respectfully. These locally-based divisions are ready to comply with local law and avoid tweaking local sensibilities.

French law prohibits the sale of Nazi memorabilia. The International League Against Racism and the Union of French Students successfully persuaded French Judge Jean-Jacques Gomez to enjoin Yahoo against the auctioning of such material at its web site. Yahoo’s French division was already in compliance with the French law in this regard. The United States-based Yahoo had not yet implemented such restrictions in its auction area. In essence, the French arm of the law was reaching across the Atlantic to enforce its regulations on a US-based web site. It was attempting to enforce a law that would, if issued by a United States jurisdiction, violate the First Amendment.

The US Yahoo has since disallowed the sale of Nazi memorabilia on its auction site as a matter of company policy. It has also asked a US federal judge to issue a declaratory judgment to render the French Judge Gomez’s verdict unenforceable in the United States. If French speech codes are enforceable against United States web sites, US citizens no longer have the choice to simply not visit France to avoid French law. French law could constrain American web sites.

The entire issue of international enforcement of speech codes is becoming complicated with improvements in Internet technology. It is becoming possible to resolve the location of IP addresses to different countries, states, and even towns. The positive side of this new technology is that it allows web sites to provide content that is tailored to the location of the user. A web site can automatically provide content in the appropriate language and provide news information on local topics.

Such technology also allows sites to refuse to provide material to certain areas. Web sites could become indirect agents of foreign governments precluding access to residents of certain jurisdictions.

In the future, might the United States Yahoo, be required to block content from IP addresses from France, even when there is no US law prohibiting certain content? In the future, could Tennessee, with stricter pornography laws, sue to prevent California-based web sites from providing California-allowed content to IP addresses originating from Tennessee? Will Dr. Laura’s web site be required to limit access to certain areas by politically correct jurisdictions that find her moral views objectionable? Will the foreign divisions of multi-national corporations be held hostages, lest the web sites hosted on American soil post information uncomfortable for foreign magistrates?

What about e-mail? Can the originator of e-mail in the US be held liable for violating local speech codes for mail sent to another country? To what extent will foreign countries be able to invoke extradition treaties or civil penalties to enforce their local laws on Americans?

The recent conventional wisdom has been that George Orwell’s vision in 1984 was incorrect. Rather than computer and communications technology acting as agents for surveillance by the state, they empower individuals to market their ideas across the world unencumbered by the state. Perhaps as Internet technology matures, conventional wisdom will grow to conform the Orwell’s more frightening and chilling predictions.