It's not available yet, but I'm looking forward to the annual message from the Chief Justice of the United States Supreme Court.
I can preview it's content: "We're not corrupt. La-la-la-la."
It likely will hail the passage of internet censorship legislation as part of the NDAA that prevents publication of some information concerning the ethics of federal judges.
It likely won't mention that more than a hundred judges heard cases in which they had a financial interest.
It won't mention some of the court's biggest achievements, including blocking passage of legislation to make court records published on PACER available for free to the public and preventing online video of Supreme Court proceedings.
Nary a mention will be made of conservative efforts to covertly influence the court on abortion through the use of tactical donations to get close to the justices.
Nor will it hail the expanded use of the shadow docket or the capture of the court by the far right.
We might see a mention of a loss of public confidence in the court, but that will be blamed on those of us who don't spend the time to read their opinions, where they lay out all the facts and just call balls and strikes.
I wouldn't expect to see anything about Justice Thomas's connections to the far right insurrectionists that tried to topple the U.S. government.
All in all, it should be a pretty boring statement from a revanchist, far right judiciary rolling back constitutional rights.
@danielschuman And yet the media will fret throughout 2023 about the Court's "loss of legitimacy" after each decision that obviously reflects the Court's tacit Prime Directive to maintain and enhance the political power of the GOP, even though the Republican justices themselves have no concern for even the appearance of legitimacy.
And Clearance and Ginni Thomas will cry all the way to the Republican bank.
I assume you are talking about sections 5931 to 5939 of the NDAA.
When I studied the bill a couple of weeks ago, there was an exception for "display on the internet of the covered information of an at-risk
individual or immediate family member if the information is relevant to and displayed as part of a news story, commentary, editorial, or other speech on a matter of public concern.
Section 5934(d)(1) (B)(ii)
Was that exception omitted from the final bill?
@paulalanlevy @mmasnick The exception is insufficient to protect speech concerning judicial ethics and prohibits the statement of true facts.
Summary of the issue with it is here: https://demandprogress.org/demand-progress-action-coalition-calls-upon-the-senate-to-internet-censorship-provision-from-the-ndaa/
It also turns out the database censorship provisions are badly written. https://epic.org/epic-statement-expressing-concerns-on-the-inclusion-of-the-judicial-privacy-and-security-act-in-the-ndaa/
Coalition letter to Senate calling for the removal of Section 5934 from the National Defense Authorization Act, via the "Judicial Security and Privacy Act," as it would cause organizations to censor judicial-related information they publish online.
It remains to be seen whether the concerns you express are valid. "Public concern" is a pretty broad exception. You do not explain -- and the statement to which you point does not explain -- why that exception is insufficient. And considering that the language was in a must-pass bill, it strikes me as foolish that the statement called for removal of all of 5934 instead of proposing a better "cave-out."
@paulalanlevy @mmasnick We explain it in the statement:
"The legislation attempts to remedy these problems through a series of carve-outs. However, the cave-out language is subject to a wide-variety of interpretations, which chills speech through uncertainty. Furthermore, the legislative text contains a canon of interpretation that effectively states that when there is ambiguity, it should be decided in favor of censoring information...."
".... Finally, federal judges ultimately will be called upon to review this legislation, and they possess an obvious conflict of interest.""
Note also, contra your toot, we did not call for the removal of the entire judicial security bill, but only the section that related to censoring speech, which contains the language we object to.
Are you the Paul Alan Levy who works at public citizen and routinely argues before appellate courts?
Daniel, you called for leaving in the definitions and the short title, the statement of purposes, the training and education and so forth, but removing the entire section that implemented the definitions. Just a little too cute, don't you think?
Yes, that Paul Alan Levy. https://www.citizen.org/about/person/paul-alan-levy/
And Daniel, if you come on an instance of attempted enforcement of this law that seeks to suppress a publication of covered information to inform an issue of public concern, I'd be glad to discuss the litigating the case with my colleagues
My friends at the previously mentioned @flp already tweeted out that they will either have to take down judicial ethics information from their website or fight this in court. (https://twitter.com/FreeLawProject/status/1600903070329630720)
As I mentioned above, non-profits that do judicial accountability work cannot afford the legal uncertainty and commensurate potential costs (including damages) that arise from vaguely worded internet censorship laws like this one.
And the section that we called for removal of are the provisions that concern internet censorship.
We did not push to remove other provisions, such as:
§5935 judicial security training
§5936 expanding threat management, including vulnerability management & the "office of protective intelligence" that allows the courts to hire more intelligence analysts
§5937 rule of construction that in (b) broadly favors protection of covered info
@paulalanlevy @mmasnick @flp Perhaps with more time our request could have been more granular, but we had to first spend time fighting to remove a section 230 provision that showed up in the bill out of nowhere.
It would have made internet providers liable for information published by users.
Nor did we have time to address that the data brokers provision doesn't work at all and accomplishes the inverse of its goals.
If the courts wanted a good law, they should have consulted those who do this kind of work -- people who publish judicial accountability information and those who are knowledgeable about data brokers.
What they apparently wanted was a broad law enacted without appropriate vetting, which is what they got.
I hope you'd be sensitive to how non-profits would be concerned about being censored and managing the risk (i.e., court costs and damages).
@paulalanlevy @mmasnick @flp Your employer, Public Citizen, had 8 million dollars in revenue in 2020 and employs attorneys who litigate, like yourself.
Most non-profits, however, do not have those kinds of resources, and the risks embodied in this poorly drafted law are existential.
I don't want my responses to you to come off as being contentious and I am aware at a high level of the substance of your work. I ask only that you put yourself in our shoes.
Not contentious, but we disagree, and we are discussing the disagreements Instead of seeking to eviscerate the bill -- which was all but certain to pass -- you might have been wiser to have crafted the more precise revisions that you say you wanted.
And as for our budget size, we litigate ONLY pro bono, and often represent other nonprofits in litigation such as working with the NAACP to fight postal cuts affecting absentee balloting in the 2020 election. We are currently representing a site hosting judicial records defending its right to host detailed information about a litigant
Finally, my tentative litigation judgment is that a facial attack on the statute is not the most likely to succeed. I'd be glad to discuss with a prospective client -- not publicly -- how to best try to set up a successful litigation approach
Seriously. Just trust us. Trusssst in ussss.
Daniel Schuman
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