December 7, 2005


Fla. Professor Is Acquitted in Case Seen as Patriot Act Test (Spencer S. Hsu and Dan Eggen, December 7, 2005, Washington Post)

A federal jury acquitted former Florida professor Sami al-Arian yesterday of conspiring to aid a Palestinian group in killing Israelis through suicide bombings, dealing the U.S. government a setback in its efforts to use secretly gathered intelligence in criminal cases against terrorism suspects.

The trial was a crucial test of government power under the USA Patriot Act, which lowered barriers that had prevented intelligence agencies from sharing secretly monitored communications with prosecutors. The case was the first criminal terrorism prosecution to rely mainly on vast amounts of materials gathered under the Foreign Intelligence Surveillance Act (FISA), whose standards for searches and surveillance are less restrictive than those set by criminal courts.

The Tampa jury deliberated 13 days before rejecting arguments laid out over five months by prosecutors that the former University of South Florida computer engineer and three co-defendants conspired with leaders of Palestinian Islamic Jihad -- which the United States has designated a terrorist group -- providing it money, strategy and advice. [...]

Al-Arian attorney William Moffitt rested his defense without presenting evidence. In court, he argued that the government sought to muzzle his client's avowed antipathy to Israel.

"The government itself has said you are free to praise groups that engage in terrorism as a means of achieving their ends," Moffitt said during the case. "This case concerns Dr. al-Arian's right to speak, our right to hear what he has to say and the attempt of the powerful to silence him."

As Robert Bork so brilliantly explained in his Indiana Law Journal essay, you oughtn't be free to do so and the 1st Amendment doesn't require that you be.

Military Recruiting Bans Seem Doomed: The high court frowns on law schools' claims that free speech and gay rights would be violated. (David G. Savage, December 7, 2005, LA Times)

The Supreme Court justices signaled Tuesday that they would uphold the military's right to recruit on college campuses and at law schools, despite its policy of excluding openly gay people from its ranks.

The justices gave a thoroughly skeptical hearing to the position of some law faculties that they have a free-speech right to bar military recruiters, a claim that was upheld by a lower court. [...]

The case marked the second in a week in which the court, under new Chief Justice John G. Roberts Jr., sounded as though it had come together on a potentially divisive case.

Last week, the justices took up an abortion case from New Hampshire and appeared to agree on a middle course. The state may require doctors to notify a parent of a minor girl before performing an abortion, except in medical emergencies, the justices said.

On Tuesday, Roberts and the other justices seemed to agree that there was no free-speech problem with giving the Pentagon a right to recruit on campus, as long as the schools and their professors were free to criticize the military.

Posted by Orrin Judd at December 7, 2005 8:33 AM

You lost me on your comment, not least because I don't know the outline of Robert Bork's argument.

Posted by: Arnold Williams at December 7, 2005 8:45 AM


Reading the Constitution as simply a document that spells out a plan for a certain government it is obvious that no element of it can require that you allow subversion of that government. Only political speech is protected by the 1st and only speech that furhers the end of the Constitution.


Just extending the same notion to society generally, speech and behavior that are antithetical to the ends of your society bshould not be tolerated.

Posted by: oj at December 7, 2005 9:04 AM