US General Election 2016

https://www.nytimes.com/2017/03/15/us/politics/trump-tax-returns-legal-precedent.html?

That makes sense to me Blue, but the legal logic seems to walk a very fine line if the information the press is releasing did happen to be illegally obtained. Just out of curiosity, what would the law say in the EU about publishing documents that the press may suspect had been illegally obtained?

David H wrote:That makes sense to me Blue, but the legal logic seems to walk a very fine line if the information the press is releasing did happen to be illegally obtained. Just out of curiosity, what would the law say in the EU about publishing documents that the press may suspect had been illegally obtained?

That question is easier to answer in general than specifics. In general, the issue would have to be addressed in a similar fashion to that in the US. The basis is the freedom of expression, as a basic human right recognized by national constitutions. To what degree can you limit that right to make the press releasing illegally obtained information illegal necessarily relies on the whether that act falls under the freedom of expression or not. As long as the press acts within the scope of that right, the nation state cannot penalize that act.

What is different in Europe compared to the US is that we have supranational treaties and bodies in the field of human rights that determine the scope of the rule above the level of national judicial treatment. We have this at EU level, where freedom of expression is contained in the Charter of Fundamental Rights art. 11, and in the European Convention on Human Rights, where freedom of expression is contained in art. 10.

The way that nation states implement international legislation differ with a fundamental division. The nation states are either dualist, meaning the international obligations of the state are separate and outside the internal legal system of the state and needs to be specifically implemented to have legal effect in that system while remaining binding upon the state itself internationally, or monist, where a states international obligations automatically becomes part of the nation states internal legal system. The special thing about EU law and the European Convention of Human Rights is that they have primacy and direct effect in relation to national legislation. As such, even in dualist legal systems, like Norway, people can rely on the fundamental rights in the Charter of Fundamental Freedoms or the European Convention of Human Rights for national courts. And these rules have primacy over national legislation. (Although they do so in slightly different ways.) Meaning, the limits to the basic right of freedom of expression must be found in the interpretation of these rights set out in those treaties. The normative interpretation of which is made by the Court of Justice of the European Union and the European Court of Human rights respectively.

The most in detail treatment on the issue has been made in relation to the freedom of expression as set out in the European Convention of Human Rights which has a far longer history and body of work on the issue. It would be too much to go into this precise issue here, but to read more on the judicial interpretations that have been made with regard to the freedom of expression by the European court of Human Rights you can consult this:

http://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-18%282007%29.pdf

Art. 10 of the ECHR reads as follows.

Article 10 – Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Art. 10 (1) contains the right. Art. 10 (2) the allowable exceptions form it. Exceptions must be:

1. prescribed by law
2. necessary in a democratic society
and fulfil one of the following aims:
3.1 in the interests of national security, territorial integrity or public safety,
3.2 for the prevention of disorder or crime,
3.3 for the protection of health or morals,
3.4 for the protection of the reputation or rights of others,
3.5 for preventing the disclosure of information received in confidence, or
3.6 for maintaining the authority and impartiality of the judiciary.

A potential rule limiting the ability of the press to publish information received that was originally obtained illegally would have to adhere to those criteria.

Thanks Blue. That explains a lot, though I'm afraid it doesn't make it much clearer...

So let's assume that a hypothetical member State has some kind of law under 3.5 "preventing the disclosure of information received in confidence" which would restrict publication of private personal legal and financial records. (Presumably most States have some such law?)

In this case if a client's lawyers or bankers were to leak private records, they would not be publishable because the information was received in confidence.

But if that same lawyer or banker were to come back to the office at lunch wearing a ski mask and demand the records at gunpoint, they would then potentially be publishable because the records themselves were NOT received in confidence, right?

So many fascinating shades of grey!

The aims listed are quite broad and general. What would be the object of contention would be whether it would be "necessary in a democratic society" by which the interests for expression and public information would be weighted against the interests fro privacy of the individual.

The Court’s case law reflects particular attention to the public interest involved in the disclosure of information, contributing to debate on matters of public interest: “In a democratic system the acts or omissions of government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the media and public opinion. The interest which the public may have in particular information can sometimes be so strong as to override even a legally imposed duty of confidence.”36 In such circumstances a journalist, a civil servant, an activist or a staff member of an NGO should not be prosecuted or sanctioned because of breach of confidentiality or the use of illegally obtained documents.37 The Court has accepted that the interest in protecting the publication of information originating from a source which obtained and retransmitted the information unlawfully may in certain circumstances outweigh those of an individual or an entity, private or public, in maintaining the confidentiality of the information. A newspaper that has published illegally gathered emails between two public figures, directly related to a public discussion on a matter of serious public concern, can be shielded by Article 10 of the Convention against claims based on the right of privacy as protected under Article 8 of the Convention.38

In its Grand Chamber judgment in Stoll v. Switzerland, the Court confirmed that “press freedom assumes even greater importance in circumstances in which State activities and decisions escape democratic or judicial scrutiny on account of their confidential or secret nature. The conviction of a journalist for disclosing information considered to be confidential or secret may discourage those working in the media from informing the public on matters of public interest. As a result the press may no longer be able to play its vital role as “public watchdog” and the ability of the press to provide accurate and reliable information may be adversely affected.”39 In cases in which journalists reported about confidential information in a sensationalist way40 or in which the revealed documents did not concretely or effectively contribute to public debate or only concerned information about the private life of the persons concerned,41 the Court accepted (proportionate) interferences in their freedom of expression.

http://cadmus.eui.eu/bitstream/handle/1814/29871/RSCAS_2014_12.pdf p. 9 onwards

The link seems to be exactly what it says: all about taxes not travel bans???

edit: ah, I see you fixed the link. Just a minute....

OK, that was a challenging link for me, but I think this bit is the meat of it:

The lower courts gave considerable, indeed dispositive, weight to these anti-Muslim statements in deciding that the travel ban was, in reality, a Muslim ban that would violate the constitutional prohibition against discrimination on the basis of religion.

Under that reasoning, had the identical executive order been issued by President Obama, it would have been constitutional. But because it was issued by President Trump, it is unconstitutional. Indeed any executive order issued by President Trump dealing with travel from Muslim countries would be constitutionally suspect because of what candidate Trump said. In my view, that is a bridge too far. It turns constitutional analysis into psychoanalysis, requiring that the motives of the president be probed.

That sounds like a fallacy to me. It assumes that a) Obama would have issued an identical order, b) that Obama would have also kept silent about his motives, and that c) having passed that test of intent, the order wouldn't have ultimately failed on some other challenge.
None of which we can know.
Good rhetoric. Poor logic.

halfwise wrote:It doesn't assume Obama would have issued a similar order, it just examines what may have happened if he did.  The court based its decision in part on the fact that Trump proclaimed his intention to institute a muslim travel ban.  Since Obama never proclaimed any such intention, but issued a ban on countries identified as harboring terrorist organizations (which is what the list was), then it likely would have passed.

I'm not sure I'm following you here Halfy. I'm pretty sure Obama never issued an executive order banning anybody. He did sign an omnibus spending bill that had a travel restriction rider attached to it, all of which had been sent to him by Congress under some fairly contentious conditions. So of course he never proclaimed any intention to institute a Muslim travel ban. Why would he?

I just don't see how you can examine what may hypothetically have happened if Obama had hypothetically issued something that he actually didn't, all in the light of statements he hypothetically might or might not have made in the context of issuing the hypothetical order, without making certain hypothetical assumptions.

halfwise wrote:I worded that wrong, I meant to say

"Since Obama never proclaimed any such intention [a ban on muslim travel], IF HE HAD issued a ban on countries identified as harboring terrorist organizations (which is what the list was), then it likely would have passed."

I don't at all understand your problem with hypotheticals. Nearly all planning is based on hypothetical situations, engineering in large part is guarding against hypothetical situations, nearly all legal analysis is based on hypothetical situations...where exactly is the problem?

Hypotheticals are wonderful tools in their place, don't get me wrong. It's just the old echoes of Aristotelian logic that are troubling me. You've formulated a syllogism of the form "If A is true and B is true, then C is true", AND where one or both the premises A and B are demonstrably false. I believe statements of this form are formally considered both true and false at the same time. That is, you (Halfy) may correctly assert the statement to be true, and at the same time Blue (for example) could equally correctly declare it false.

So basically as I see it, this is a rhetorical device being used by a clever man to suggest with no real evidence that Obama got special treatment. It's left to the reader to hypothesize whether this is because of his race or his politics or some other reason. (At least that's my hypothesis )

Edit: Let's try this another way, with a simple substitution:

"Since a Grey Horse never proclaimed any such intention [a ban on muslim travel], IF IT HAD issued a ban on countries identified as harboring terrorist organizations, then it likely would have passed."

True statement!

{{ This must be the first time in Forumshire history when a Grey Horse has been used to clarify something!!}}

Okay... do you want me to behorse

Sincerely,
Elthir

currently flailing helplessly while wheeling backwise over a crupper

halfwise wrote: So I say wondering what would happen if Trump DIDN'T make his campaign statements is equivalent to wondering what would happen if Obama DID impose such an order.

Ah, "wondering"! That's a horse of a different colour!
If you and Dershowitz are just "wondering what would happen if", that would fall into the "questioning" step of the old Scientific Method flow-chart. What I thought I was seeing looked more like an assertion that was trying to belong in the next step: "formulating a testable hypothesis". (...except for the testable part.... )

{{Well from what I can gather from the testimonies given today- there is an investigation into Trump campaign and Russian collusion. And there is no proof whatsoever of Trumps crazy claim Obama wiretapped him- or that anyone did in fact.

Wonder if he will make a retraction and apology or if he will keep doubling down like a crazy man.}}}

https://www.washingtonpost.com/news/fact-checker/wp/2017/03/20/president-trumps-terrible-horrible-no-good-very-bad-twitter-day/?

Yeah... nop

hi Elthir

Elthir has made plenty of visits to the non-Tolkien forums before, but people seem to forget about them in between each one, I guess because they're relatively infrequent.