Discussions

October 10, 2014

Episode 506: Spying On Americans’ Debates On Violence And Nudity

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Should the U.S. government be spying on Americans? Do violence and nudity in video games and movies adversely affect children? On this episode of The Axiom Amnesia Theory, Heit & Cheri tackle some of the biggest social and political debates among Americans, providing commentary on everything from government spying and same-sex marriage to children being exposed to violence and nudity in entertainment.

Topics discussed include evolution of the ice tray, Edward Snowden, the NSA spying on anyone and anything in America, the argument that you shouldn’t worry about the government spying on you if you’re not doing anything wrong, the fact that law is no determinant of moral correctness, same-sex marriage debate, the sheer number of businesses in the United States and the rest of the world, the notion of “small businesses” and the political manipulation of the term, controversy over Obamacare, making the distinction between referring to universal healthcare as “free” versus “included”, Heit becoming a DJ in 2013, violent video games and whether they adversely affect young people, Heit & Cheri being exposed to violence and nudity in movies and other entertainment from a young age, Heit & Cheri as “gamers”, and more!


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  • Discussion about the evolution of the ice tray. Heit & Cheri bought new ice trays with an interesting design that allows you to pop out the individual ice cubes.
  • Discussion about Edward Snowden and the NSA spying on anyone and anything in America. This was a huge revelation in 2013.
  • Discussion about two judges coming to completely opposite conclusions on the constitutionality of NSA spying.

    This is why we have a justice system in which lower-court conflicts rise up for resolution by a single, supreme court. This is why the law can seem, at times, to be a “same planet, different world” proposition to those who don’t follow it closely (and even to those of us who do).

    We have, in the span of just 10 days, seen two diametrically opposed judicial rulings about the legitimacy of the government’s controversial bulk metadata collection program, the existence of which we learned about just this past year thanks to Edward Snowden. Although the two opinions apply the same law and essentially the same facts, they are so contradictory they cannot be reconciled. One judge will be proven right and the other proven wrong, although I suspect it may be 2015 before the final tally is recorded.

    Last week, a federal trial judge in Washington boldly declared the NSA’s bulk metadata collection program to be “likely unconstitutional,” as applied to individual citizens whose phone records were collected and stored. Here is the link to that ruling, authored by U.S. District Judge Richard Leon, a nominee of President George W. Bush. It was a Republican appointee, the record will reflect, who first challenged the legality of the sprawling surveillance operation.

    On Friday, a federal trial judge in New York boldly declared that very same surveillance program is constitutional as applied to the ACLU, the phone records of which also were collected and stored. Here is the link to the ruling, authored by U.S. District Judge William Pauley, a nominee of President Bill Clinton. It was a Democratic appointee, the record will also reflect, who first endorsed the legality of this once-secret, mass data collection program. Judge Leon last week issued a temporary injunction halting the program– but then stayed the application of his ruling so that the Obama Administration could appeal it to the D.C. Circuit Court of Appeals. Judge Pauley today denied a request for an injunction by the ACLU and granted the Obama Administration’s motion to dismiss the case. An appeal to the Second Circuit surely will follow. The first judge concluded the government would lose on the merits. The second judge concluded that the government had won on the merits.

    Judge Pauley ruled that the NSA’s collection efforts do not violate the Fourth Amendment, citing its interpretation by the Supreme Court in a 1979 case styled Smith v. Maryland. But Judge Leon ruled that the surveillance program does likely violate the Fourth Amendment’s protection against unreasonable searches, and he rejected the Smith case as technologically outdated. One judge went around the precedent of Smith. The other judge embraced that precedent and said he had no right to ignore Smith.

    Judge Leon last week ruled that Congress did not intend to prevent plaintiffs whose records were seized and stored from coming to federal court to challenge the validity of the NSA’s surveillance program. Judge Pauley Friday ruled that Congress indeed intended to preclude that very thing—allowing the people or companies whose records were collected to have access to federal courts while limiting the court access of the telephone companies that provided the information.

    Judge Leon last week questioned the effectiveness of the government’s program, asserting that federal officials did not “cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack.” Judge Pauley asserted the exact opposite: “The effectiveness of bulk telephony metadata collection cannot be seriously disputed.”

    Judge Leon peppered his lengthy opinion with expressions of great skepticism for the government’s justifications. His lack of deference toward the executive branch and its intelligence operations was palpable. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data,” he wrote.

    Judge Pauley peppered his lengthy opinion with expressions of great respect for the government’s surveillance efforts. His respect for the nation’s intelligence operations was palpable. “While there have been unintentional violations of guidelines,” he wrote, “those appear to stem from human error and the incredibly complex computer programs that support this vital tool.”

    Although the two rulings involve different plaintiffs, Judge Pauley’s opinion reads as a pointed response to Judge Leon’s ruling of 10 days earlier. In fact, I suspect the two rulings will soon be used side by side in law schools to illustrate how two reasonable jurists could come to completely different conclusions about the same facts and the same laws.

    And that, of course, says a great deal about the nature of the NSA’s program itself and its symbolic role in the conflict America faces as it teeters back and forth between privacy and security. Taken together, these two manifestos represent the best arguments either side so far has been able to muster. If you trust the government, Judge Pauley’s the guy for you. If you don’t, Judge Leon makes more sense.

    That two judges would hold such contrasting worldviews is either alarming (if you believe the law can be evenly applied) or comforting (if you believe that each individual judge ought to be free to express his conscience). In any event, taken together, the two opinions say a lot about nature of legal analysis. The judge who gets overturned on appeal here won’t necessarily be wrong—he’ll just not have the votes on appeal supporting his particular view of the law and the facts. In the end, you see, there is no central truth in these great constitutional cases that rest at the core of government authority; there is just the exercise of judicial power.

    Where does that leave the rest of us? The program still rolls on—unencumbered by the statutory and constitutional confusion that now reigns over it. We’ll spend the bulk of 2014 watching the fight over it play out in at least two separate federal appeals courts. And then, unless there is a form of unanimity between and among those appeals courts that clearly is lacking between and among Judges Leon and Pauley, we’ll see sometime in 2015 the first big terror law case in front of the Supreme Court since 2008.
    Source: The Atlantic

  • Elizabeth from NJ suggests that Heit & Cheri request copies of their FBI file and read it on air.
  • Discussion about the argument that you shouldn’t worry about the government spying on you if you’re not doing anything wrong.
  • Discussion about the fact that law is no determinant of moral correctness.
  • Discussion about the same-sex marriage debate, and the states that have legalized it–or are on the road to legalization.
  • Discussion about the sheer number of businesses in the United States and the rest of the world. It seems like there are more businesses now than ever.
  • Discussion about the notion of “small businesses” and the political manipulation of the term.
  • Discussion about all of the controversy over Obamacare.
  • Discussion about the pros and cons of Obamacare.
  • Obamacare will probably delay the ultimate solution of universal healthcare.
  • Making the distinction between referring to universal healthcare as “free” versus “included”.
  • Discussion about one of the listeners saying that she hasn’t received her Obmaacare insurance card yet.
  • According to reports, Walgreens and other pharmacies will honor insurance of those who haven’t received their cards yet–for a limited time until things get straightened out.
  • Discussion about Heit becoming a DJ 2013.
  • Discussion about violent video games and whether they adversely affect young people.
  • Discussion about a young boy who fooled his father into buying a video game with violence and nudity in it at GameStop. He was about seven or eight years old and his father had a language barrier.
  • Heit & Cheri discuss being exposed to violence and nudity in movies and other entertainment from a young age.
  • Discussion about Heit & Cheri as “gamers”


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