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Monday, October 24, 2005


Larry Flynt and the People

On Friday evening, I had the honor of meeting one of America’s more honest and reliable men.

Larry Flynt was presented with a First Amendment Award by San Francisco’s Exotic Erotic Ball which took place this weekend at Daly City’s Cow Palace. First Amendment Project was tapped to receive money raised by the event, and so I joined Flynt in a QA before a gaggle of press and cameras following the presentation of the award itself by Hustler Honeys.

One of the questions asked of Flynt was whether he would fund some of the censorship battles being imposed by this insidious administration (which seems more concerned with prosecuting obscenity than apprehending terrorists) or leave "the little guys" to duke it out on their own. While it would be great for publishers like Flynt to fight censorship perpetually, it seems like expecting him to do so is a little unfair.

From seminal cases such as Hustler Magazine, Inc. v. Falwell to his most recent expose of the sexual escapades of John Bolton – the U.N Ambassador Bush was forced to appoint while the Senate was in recess – Flynt has always used his wealth to expose hypocrisy and challenge the powers that be. And to debunk the myth that masturbation leads to blindness by providing magazines that could arguably reduce overpopulation.

One could endlessly debate the ramifications of pornography, exploitation, objectification and the clashes between sex and religion, but one cannot dismiss the contributions Larry Flynt has made when it comes to freedom of expression, which is more or less what I told San Francisco Chronicle reporter, Joe Garofoli, in an interview a few days ago. And how could one forget the panic he induced at the height of the Monica Lewinsky scandal when he began digging for dirt on the pious impeachment cheerleaders and found lots of it.

If he was to never do another thing, the battles Flynt has fought and won should allow him to sit back and enjoy the fruits of his labor without an obligation to do more. While his contributions are always welcome, no one demanded that Rosa Parks keep catching the same bus.

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Sunday, October 16, 2005


From Martyr to Wal-Mart

Without both agreements, I would not have testified and would still be in jail.
So, finally, did New York Times reporter, Judith Miller, speak about her role in the outing of CIA operative Valerie Plame, convincing herself that the First Amendment martyrdom that surrounds her plight (and the positioning of her in this role by The New York Times) remains her angle, even though she essentially violated the principle she claims to have upheld. At the end of the day, using a combination of factors such as voice tone, a letter and other such “fine tuning,” she agreed to testify in a grand jury investigation, revealing her confidential source, I. Lewis “Scooter” Libby, to avoid continued imprisonment. As she told her friend, Times editor Claudia Payne: “'I don't want to spend my life in here.”

While Americans are famous for parsing words, it seems hard to imagine someone like Nelson Mandela changing his principle after a couple of months behind bars and claiming that the definition of violence had been adequately redefined for him to change his tune and renounce it, as was demanded by the South African government at the time of his imprisonment.

On Tuesday, Miller is to receive a First Amendment award from the Society of Professional Journalists.

While this is clearly a more complicated case than a black and white whistle-blowing scenario, and while The New York Times has demonstrated a continued commitment to support their reporters in pursuance of First Amendment principles, the motives and behavior of Judith Miller leave a bad taste in the mouths of many – including her colleagues at the New York Times.

Even First Amendment icon and lawyer, Floyd Abrams, in his representation of Judith Miller, evoked a credential-based First Amendment protection hierarchy for the press that can only ultimately be determined by a revenue structure -- a disappointing and frightening prospect. "If everybody’s entitled to the privilege, nobody will get it," he was quoted by The New York Sun. Free speech if you can afford it.

The growing disgust over American media is hardly a new phenomenon, but rather than crystallize the rock solid notion of journalists protecting sources to report truthful information, Miller’s record on reports of weapons of mass destruction embarrassed the New York Times enough to issue a public apology, demonstrated the ease with which she was manipulated to pedal information in a manner only slightly more dignified than that of Maggie Gallagher or Armstrong Williams (who prostituted their journalistic reputation for cold hard cash); and lifted the sordid cover off the cozy relationship between “embedded” reporters and the power brokers they cover, perhaps under covers, if not undercover.

Judith Miller will ultimately write a juicy book as an insider and player in this scandal, but her reputation as an ace reporter and First Amendment martyr might be a little harder to sell.

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Tuesday, October 11, 2005


Lesser Withour Presser

Those who cherish the First Amendment lost a valuable ally. Stefan Presser, a civil-liberties attorney who fought some significant Internet free-speech cases died on Friday, October 7th, 2005 of cancer at age 52.

News.com’s Declan McCullagh said:


From 1985 to 2004, Presser was the legal director for the Pennsylvania chapter of the American Civil Liberties Union, which sued to challenge the Communications Decency Act nine years ago.

In remarks outside the courtroom in 1996, Presser said, "We had a couple of things we wanted to prove, and we're pretty confident we were successful. The first is how different communication is on the Net vs. communication via radio or TV (which must abide by "indecency" restrictions)."

He was right. A year later, the U.S. Supreme Court tossed out the law's criminal sanctions that punished the availability of "indecent" material online.

Although certain criminal provisions of the CDA remained, (which my attorneys referenced in an amicus curiae brief in the seminal Reno v. ACLU, and later challenged alone), the efforts of Stefan Presser were remarkable, and were not limited to freedom of expression. In an obituary in The New York Times, Fernanda Santos wrote:

Mr. Presser, who lived in Philadelphia, worked for 10 years to broker a 2001 settlement that led to systemic changes in the care provided to abused and neglected children in the city. Marcia Robinson Lowry, executive director of Children's Rights Inc., a Manhattan-based advocacy group, who worked with Mr. Presser closely on that effort, said, "Stefan was completely committed to his work, with every molecule of his body."

Last year, Mr. Presser successfully argued that a Pennsylvania law designed to block access to child pornography on the Internet also censored 1.5 million innocent Web sites. And in 2003, he forced the Transportation Security Administration to admit that it engaged in racial profiling when its agents detained a Florida physician of East Indian descent.


Committed and talented people like Mr. Presser are too few to begin with. The world is lesser for his loss.

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