From: Duncan Frissell <frissell@panix.com>
Date: Thu, 17 Aug 95 07:54:43 PDT
To: cypherpunks@toad.com
Subject: Predicament Again
Message-ID: <199508171416.KAA12135@panix.com>
MIME-Version: 1.0
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Just because I love beating a dead horse...

Back in June we had the argument over whether or not Phil Z should be
worried because of the threat of prosecution hanging over him.  And a
prosecutor (?) by the name of Brian Davis as well as Tim and others thought
that I was wrong to say that I would enjoy the process because of the
opportunities for verbal abuse and point scoring that I would have were I
under threat of prosecution in a case the government couldn't win.  (Mostly
pure 1st Amendment cases.)

The reason that this is important is a big fat tactical fact.  Defeat is a
process that takes place in the mind of the enemy.  It is well known to
military types that it is possible for the weaker force to overcome the
stronger force if the stronger force can be convinced that it has lost.
People are rapidly becoming the stronger force in conflicts with governments
because of technology, but governments are trying to use intimidation where
they lack the capabilities.  They are trying to psych us (and particularly
the more credulous) out.

We can fight this weapon by constant hammering at the fact of the
government's weakness and its failure to intimidate us.

Since most of what we do on the nets is speech and since speech enjoys a
great deal of protection in the US, it is important to hit the opposition
hard in speech cases where we have a strong hand.  I certainly don't
advocate abuse of prosecutors in other cases (taxes and drugs) where
conviction is likely.  But in pure speech cases, we should really heap on
the derision.  I happen to think that the prosecution of the award-winning
Phil Zimmermann is one of those kinds of cases.

Another similar case surfaced in Connecticut.  The "Greenwich 5" had
conspired so that nonsense syllables in their high school yearbook photo
captions spelled out "Kill all the [African Americans]."  (Note the
cypherpunk significance of code use.)  There was a bit of controversy of
course and the young scholars volunteered to attend a "Civil Rights Boot
Camp" run by the now neo-conservative CORE.  Some weeks later, local and
state prosecutors announced that they would not prosecute the 5 under CT's
civil rights laws because of "lack of evidence."  Calls to The Butcher of
Waco for federal prosecution followed but have as yet had no results.

This is the sort of case in which I would advocate that the "object of
prosecutorial interest" be as aggressive and abusive as possible.  The
reason the prosecutors declined to prosecute was not lack of evidence but
lack of law violation.  The prosecutors were too cowardly to state that the
Greenwich 5's action was perfectly legal.  Since the public servants won't,
it is up to those who are attacked to do so.

The benefits of cutting through the exon in a case like this is that
prosecutors are less likely to proceed in similar cases in the future and
the public is educated as to the true state of the law.  It is recreational
as well.

DCF

"Few generals have ever been defeated because they had too many soldiers
under their command."