Apple will argue that the FBI's court order violates its free speech rights

[IDemo]

Source: Los Angeles Times

In Apple's fight to knock down a court order requiring it to help FBI agents unlock a killer’s iPhone, the tech giant plans to argue that the judge in the case has overreached in her use of an obscure law and infringed on the company’s 1st Amendment rights, an Apple attorney said Tuesday.

Theodore J. Boutrous -- one in a pair of marquee lawyers the technology company's has hired to wage its high-stakes legal battle -- outlined the arguments Apple plans when it responds to the court order this week.

At the heart of Apple’s response, Boutrous said, will be an objection to the use of the All Writs Act as the legal basis of the order compelling the company to assist the FBI. The act, which was first passed by Congress in 1789 and updated periodically, is a sweeping legal tool that allows judges to issue orders if other judicial avenues are unavailable.

In seeking the order, prosecutors said the act provided legal grounds to force Apple to write new computer software that would allow FBI agents to discover the phone's four-digit security passcode.

Read more: http://www.latimes.com/local/lanow/la-me-ln-apple-legal-argument-free-speech-20160223-story.html

[valerief]

1. Apple must have free speech rights, because it's a corporate person and not a lowly human

person. However, since free speech is money and not words, if the FBI unlocks the iPhone, are they taking money away?

[Recursion]

3. Corporations have always been held to have free speech rights

That wasn't what CU decided (for that matter corporations have legally been "persons" for as long as corporations have existed; that's their entire purpose).

The argument in this case is that the programming is "speech" (which I think there's a fair case for) and so the company can't be compelled to make it.

[skepticscott]

8. Except that Citizens United did not rule

that "corporations are people" or that "money is speech".

But it continues to amaze how many people don't understand that decision at all.

[valerief]

10. Mitt Romney TOLD us corporations are people! And free speech certainly IS money.

Only 6 huge corporations control the airwaves, and they use it to MAKE MORE MONEY. Joe Nuncio, who works down at CVS, doesn't have his own media distribution company.

[skepticscott]

13. What a shame that you're citing Mitt Romney

as an authority for anything. And you have free speech, too...have you ever considered it "money"?

As I said, very sad that virtually no one on this site understands those issues.

[valerief]

14. What a shame you have no sense of humor. Off to the Forever Ignored Club for you!

[skepticscott]

15. On the contrary

I did notice how funny what you said was...just not the way you thought. But feel free to put your fingers in your ears and ignore the truth. It's pretty common around here, actually.

[LiberalLovinLug]

16. I think the point is to show that Mitt and Co. define it that way and that is the danger

This is what the billionaire class got out of Citizens United. And they are the ones that benefit from that definition. What is sad is that in fact they ARE the authority on that.....because they are the only ones that can take advantage of it.

[skepticscott]

19. Corporations don't have free speech rights

because Mitt Romney says they do. They have them because the Constitution says that Congress cannot restrict those rights. We all benefit by that "definition". Are you saying billionaires should have their free speech rights curtailed? How about millionaires? Should everyone making more than $250,000 a year be gagged, politically? What threshold should there be, under your interpretation of the First Amendment?

[LiberalLovinLug]

21. So you think corporations SHOULD have free speech rights?

Do you also think cardboard boxes and bars of soap should have free speech rights?

It is not because Mitt simply says they do, its that the SCOTUS defined it that way, that "corporations are people my friend", and he and his ilk are the ones that benefit from that ruling. That spending on ads is "free speech" so that the more money you have, the more free speech you get. So everyone is equal but some are more equal than others to quote Animal Farm. It is not the Constitution per say that defines it that way, it was the Republican leaning SCOTUS that defined that the 225 year old pre-big multinational conglomerate corporation Constitution somehow defines it that way...under the objection of President Obama I might add.

And yes, everyone, including those making more than $250,000 should be gagged after an agreed upon spending limit is reached. And corporations, who are NOT people, should never have the same rights as human citizens. Because there is a double standard in that as a non-human entity, if a crime is committed, the humans that actually make up and decide things in that corporation, can get off scott free by pointing to the big corporate citizen that are the walls around them and say "he did it!"

There should be campaign finance reform. Publicly funded election spending with limits, like every other advanced democracy. With a limit for personal contributions. Plus a certain time allotted for free time on our "public airwaves" for political ads, in order to not have that be reliant on $ either. Its the least they can do for the right and privilege to be a broadcaster. No secretly funded SuperPacs with unlimited contributions of course. In the end you'd have a system where politicians could spend their time actually serving their constituents rather than spending all their time fund raising for the next campaign. It sure would have helped Hillary out.
.

[skepticscott]

22. Perhaps you can show us

where in the First Amendment the right of free speech is limited to individuals. You can't, because it isn't. Congress is simply not allowed to restrict it. And since cardboard boxes and bars of soap don't have speech, your attempt at a slippery slope is rather lame.

And yes, people with more money can do more in the way of exercising their rights. Unless you'd also like to decree that no one should be allowed to have more money than anyone else, that's just the way the world is.

[LiberalLovinLug]

23. Two issues

1. Are corporations people, and thus have the same free speech rights as every other person

2. Should people be allowed to contribute as much as they want to a candidate or party, and/or should a party be able to accept any amount.


The first absolutely ridiculous. I do not know how anyone can even say that with a straight face. Corporations are more like a bar of soap than a person. But lets take a better analogy. Its like a container, made up of various shelves that hold all the pieces that make up a corporation. Mostly it is paperwork, the legalize of what makes it a corporation. It is also made up of property and rooms, and also employees and executives that use those rooms. It does not have any political leanings because, and I don't believe I have to explain this to you, it doesn't have a brain. So if a corporation donates a large amount, it is, brace yourself, people inside those rooms that are saying that Mr. Corporation feels as he does, brainless though he is.

The second point, Yes of course there should be limits on contributions, and on spending. Even with contributions limited, the richer in society still have an advantage by giving to multiple candidates. Why wouldn't you want a fairer contest to decide a democratic election? Where one side doesn't get to run ads 24/7 on radio and TV, where they can insinuate and imply and skirt around actually making stuff up, and the other candidate does not have the funds to even run a counter ad to defend themselves. This is an exaggerated example of what happens with no campaign finance limits.

Like I said, every other advanced democracy has some kind of limits on spending and personal contributions. If you really want to live in feudal society where the only voices, or vastly overwhelming, can afford to speak. Why oh why would someone be comfortable making a vote with not being able to hear the ideas of one candidate, and only the ideas and the criticisms of the richest one running, simply because they are better connected to the wealthiest in town? This is what foments corruption, its the reason things are so fucked up right now.

[skepticscott]

24. Seriously?

Your post is full of so much nonsense, it's not even worth demolishing it all. Attacking the tired "corporations are people" straw man is a sure sign of lack of thought. Of course corporations are not individual humans, but they do and should enjoy some (but not all) of the same Constitutional rights as individuals. And, as should be blindingly obvious, they CAN express what falls under the definition of speech, or you wouldn't have the objection you do. A bar of soap cannot, so you really need to ditch that idiotic analogy.

And this: It does not have any political leanings because, and I don't believe I have to explain this to you, it doesn't have a brain. Did you really say that? I don't believe I have to explain this to you, but DU is a fucking corporation. And of course DU has political leanings. It's DEMOCRATIC Underground. DU spends money to promote the dissemination of political messages (that's SPEECH, in case you missed it). Are you saying this site should be banned from operating? Really? Because that's what your post is arguing.

We're done here. You obviously haven't thought about this at all, and I see no reason to waste more time on you.

[LiberalLovinLug]

29. So "of course" they are not individual humans...but they should enjoy the same C. rights.

There is a difference in the definition of DU and other organizations spending money, and thus encouraging free speech, on a day to day basis...and physically contributing funds from profits they gain from that endeavor to help one political party win an election. And that in itself a not a problem, only that there should be limits.

I'm not sure if you are simply arguing the legalize of the fact that your SCOTUS has defined money as free speech, or if you are actually also defending that interpretation. I was not arguing the ridiculous laws as they sit defining a bar of soap..er..I mean a corporation as being an American citizen. I was arguing the ethics of it relating to democratic values.

I realize these are the laws of your land. FYI I am Canadian, I also responded to the poster beneath you on this with more thoughts. Here Corporations along with bars of soap are NOT regarded as people in regards to our own Charter of Rights and Freedoms. Case in point, a case where a tobacco corporation sued because Canada initiated a ban on advertising. The court referred to a previous case with a Toy company that Quebec denied advertising to young viewers for some product:

http://www.waderowland.com/canadian-corporate-rights-and-canadas-supreme-court/

As a fall-back position, Irwin Toy had also claimed that the law violated the Charter’s assertion that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Irwin claimed its rights to “security of the person”—in this case, economic security— had been violated as well.
But here the Court drew the line. First of all, it said, “everyone” is clearly intended to refer only to human persons, and not corporate persons. Nor was the clause intended to protect property or other economic rights, it said. As evidence of this it noted the difference between the clause and a similar guarantee in the U.S. Constitution. In the American version the phrase “life, liberty and security of the person” is replaced by “life, liberty, and property.” Had Canadian legislators intended property to be protected by this clause, the Court stated, they would have said so.

Here are the Court’s exact words: “… it appears to us that this section was intended to confer protection on a singularly human level. A plain, common sense reading of the phrase ‘Everyone has the right to life, liberty and security of the person’ serves to underline the human element involved; only human beings can enjoy these rights. ‘Everyone’ then, must be read in light of the rest of the section and defined to exclude corporations and other artificial entities incapable of enjoying life, liberty or security of the person, and include only human beings.”

To me this is common sense. I can understand an American arguing that this is the way things legally are there, but to defend it is puzzling.

[branford]

25. Corporations are nothing more than groups of people in common purpose,

just like unions, NGO's, charities, and all other organizations. People don't give up their free speech rights simply because they are part of a group. Moreover, corporations had free speech rights and spending money was considered speech well before the Citizens United decision, and the case actually dealt with far more limited issues of election law, likely the reason why the ACLU supported the Court's decision.

You really don't understand American free speech jurisprudence, or appreciate how it was shaped by decades of liberal and progressive thought. Notably, our free speech rights well exceed that of other purportedly advanced democracies and we, like everyone else, have our own unique history, culture and jurisprudence (our democratic system is also quite different, with many more checks and balances that the mostly parliamentary systems of other western countries).

I also hope you realize that the same jurisprudence that permits various left-wing groups to partake in and spend money on elections and campaigning like the Teamsters, various teachers and other unions, Planned Parenthood, Greenpeace and others, is the very same jurisprudence that permits companies to speak on various issues and candidates. It would be virtually impossible to only silence the mostly conservative organization you oppose without similarly silencing the groups you believe are vital to our side of the political spectrum since the content and ideas expressed cannot be the basis for restrictions, a point on which both conservative and liberal American jurists have agreed for generations.

[LiberalLovinLug]

30. I may not understand the US system well

I am from Canada. Here we have spending limits.

http://www.thecanadianencyclopedia.ca/en/article/party-financing/

Secret money is outlawed. And corporation AND unions are forbidden to make contributions to political parties during an election. I think this is a good trade off because corporations could easily overwhelm the spending of our deteriorating union base here. Other groups or individuals other than political parties and candidates (like your examples Planned Parenthood, Greenpeace, etc) may spend $150,000 to try to persuade voters during an election, and no more than $3,000 of that may be spent in any one district. And on top of that we have public financing. Its a more complicated system based on the previous election results and how the fared.

Of course our Conservative party has tried to skirt the laws in every election and been caught multiple times cheating.

I guess I have a problem with free speech rights being tied to how much money an individual or a non-human corporate entity has to spend. The richer you are that louder a voice you get. This is not very democratic.

Of course Canadian subsidiaries of American based corporations, because they cannot spend to influence Canadian elections, are instead contributing massive amounts to the American elections, where it is allowed. I would guess to Republican candidates. Thanks for the response.

[skepticscott]

31. Thank you...although it is not quite accurate

to say that spending money is considered "speech". A more accurate way to put it would be to say that the freedom to raise and spend money is inextricably tied to the freedom to disseminate political messages and that a restriction on the former amounts to a de facto (and unconstitutional) restriction on the latter.

Our friend does not appear to grasp that.

[jberryhill]

26. Do you agree that Nixon had the right to curtail them?

So, US v. New York Times was wrongly decided. Is that it?

Do you also believe that the offices of Greenpeace can be searched without a warrant? Or do corporations have 4th Amendment rights, but not 1st Amendment rights?

[Xipe Totec]

2. Citizens United served on a cold plate.

[mwrguy]

4. So maybe we can overturn CU and crush Apple at the same time

[branford]

6. Apple programmers are still very real people,

and forcing them to write code under the guise of ordering Apple has the same 1A implications with or without CU (and companies, as well as all other associations of people like unions and NGO's, had free speech well before CU).

[onehandle]

5. Apple's iOS is looking pretty good vs. the data stealing Google Android these days.

Eh?

[JudyM]

7. Good lawyering. Writing computer code has been recognized by cts as speech. Nt

[NCjack]

9. Give the iPhone to the NSA and wait for a plain envelope to be dropped on the FBI Director. /nt

[That Guy 888]

11. I thought the court order was about more than 1 iPhone

Doesn't it involve making apple create a backdoor to the encryption on all iPhones?

I would like to hear parallel construction brought up in regards to this latest violation of the Forth Amendment. It occurs when an agency investigating one crime finds information outside their jurisdiction/warrant and illegally pas it on to another law enforcement organization.

[Chicago1980]

12. If I were given a court order and then disobeyed, I'd be hauled off to jail.

Seeing as "corporations are people my friends", who's going to be taken to the slammer?

[Big Blue Marble]

18. Know your rights.

If you were given a court order, you would be able to exercise your right to appeal.
That is the right that Apple has as well. And they are quite right to test this order
all the way to the Supreme Court if necessary.

[christx30]

20. Too bad the Supreme Court

isn't going to rule on the rightness or wrongness or legality of it. It'll simply state the government has a compelling interest in forcing Apple to write the code, and therefore it can.

[jberryhill]

27. Then you do not understand court orders

Heck, I got a preliminary order of a federal court reversed just a few months ago.

This was an ex parte order which was issued on the basis of one side's argument.

You, Apple, or anyone else has the right to respond to that order by appearing in court to argue that it was wrongly issued.


This happens every day.

[Travis_0004]

28. Ubless you appealed

Then you would likely have the ruling put on hold while a higher court looks into it.

[LiberalLovinLug]

17. Stay strong Apple!