October 10, 2012 2:05:51 PM by
On September 27, Wendy Kaminer and I appeared together on WBZ 1030's NightSide with Dan Rea for the inaugural broadcast of our soon-to-be-recurring "On Liberty" segment--a project that has been brewing for many years. During the show we discussed the violent protests in the Muslim world supposedly incited by the "Innocence of Muslims" YouTube video, and then opened up the phone lines for callers. The calls led us to an array of First Amendment issues, from flag burning to students' free speech rights to the infamous "shouting fire in a crowded theater," which has become a kind of slogan for would-be censors in recent years.
It was a gripping conversation, and is well worth a listen. You can find it as a podcast on the CBS Boston/WBZ website.
The next installment of "On Liberty" will be on air during the rapidly-approaching holiday season, and will focus on religion in the public sphere.
September 28, 2011 4:17:11 PM by
Stalwart civil libertarian (and longtime friend) Wendy Kaminer points out in The Atlantic how a recent New York Times Magazine article, which lauded "fuzzy" prohibitions on insider trading, essentially scoffs at the time-tested guarantee of due process. Due process "requires that laws clearly delineate the boundaries between legal and illegal behavior, providing us with notice of our potential criminal liabilities and denying prosecutors the arbitrary, ad hoc power to police our private and public lives," Kaminer writes. She goes on to cite the recent case of a Boston firefighter who was acquitted of mail fraud, and whose acquittal caused a curious uproar from local media.
Locally, a Boston jury recently acquitted a former firefighter of mail fraud after he was caught engaging in bodybuilding while on disability leave. In response to an outcry over the acquittal of this apparently non-disabled defendant, jurors explained to the Boston Globe that while they considered him guilty of trying to defraud the pension system, "they did not accept that he was guilty of two counts of mail fraud, a federal crime that could have put the muscular 49-year-old behind bars for up to 20 years." He should have should have been charged in state court for simple fraud, jurors reportedly concluded.
"When Everyone is an Offender," Wendy Kaminer, The Atlantic (September 28, 2011)
But cases like this are unusual. The vast majority of criminal cases never reach juries, much less the Supreme Court, so there are few checks on federal prosecutors who abuse a vague, expansive criminal code. We might all be prosecuted for committing "three felonies a day," my friend Harvey Silverglate has written.
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