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Colorado Federal Court

Rev. Ryan “Sasha” Gallagher

v.

National Security Agency, et al

Rule 5.1 Challenge

A Rule 5.1 Challenge is similar in effect to the Federal Rules of Criminal Procedure Rule in which a
person accuses another person of a crime in the presence of a Judge or Officer. A Rule 5.1 Challenge is
a complete Challenge to a Congressional Law, under the Constitution. I am Challenging the
Constitutionality of FISA, the Patriot Act, the Freedom Act, and CALEA all existing at the same time.

50 U.S. Code Chapter 36 - FOREIGN INTELLIGENCE SURVEILLANCE


Public Law 107–56 107th Congress
H.R.2048 - 114th Congress (2015-2016)
47 U.S. Code § 229 - Communications Assistance for Law Enforcement Act compliance

Examples of Congressional ULTRA VIRES in US Law: Hilton v. Guyot, 159 U.S. 113 (1895); Leary v.
United States, 395 U.S. 6 (1969); United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995); United
States v. Alvarez, 567 U.S. _ (2012)

United States v. Reynolds, 345 U.S. 1 (1953)


"The privilege belongs to the Government, and must be asserted by it; it can neither be claimed nor
waived by a private party. It is not to be lightly invoked. There must be formal claim of privilege,
lodged by the head of the department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the circumstances are appropriate
for the claim of privilege, and yet do so without forcing a disclosure of the very thing the privilege is
designed to protect.

Too much judicial inquiry into the claim of privilege would force disclosure of the thing the privilege
was meant to protect, while a complete abandonment of judicial control would lead to intolerable
abuses. Indeed, in the earlier stages of judicial experience with the problem, both extremes were
advocated, some saying that the bare assertion by the witness must be taken as conclusive, and others
saying that the witness should be required to reveal the matter behind his claim of privilege to the judge
for verification. Neither extreme prevailed, and a sound formula of compromise was developed. This
formula received authoritative expression in this country as early as the Burr trial. There are differences
in phraseology, but, in substance, it is agreed that the court must be satisfied from all the evidence and
circumstances, and

"from the implications of the question, in the setting in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be answered might be dangerous because injurious
disclosure could result." Hoffman v. United States, 341 U. S. 479, 341 U. S. 486-487 (1951). If the
court is so satisfied, the claim of the privilege will be accepted without requiring further disclosure.
American Communications Association v. Douds, 339 U.S. 382 (1950)
Holmes, J., dissenting in United States v. Schwimmer, 279 U. S. 644, 279 U. S. 654-55. Moreover, in
judging the power to deny a privilege to think otherwise, we cannot ignore the fact that our own
Government originated in revolution, and is legitimate only if overthrow by force may sometimes be
justified. That circumstances sometimes justify it is not Communist doctrine, but an old American
belief. The men who led the struggle forcibly to overthrow lawfully constituted British authority found
moral support by asserting a natural law under which their revolution was justified, and they broadly
proclaimed these beliefs in the document basic to our freedom. Such sentiments have also been given
ardent and rather extravagant expression by Americans of undoubted patriotism. Most of these
utterances were directed against a tyranny which left no way to change by suffrage. It seems to me a
perversion of their meaning to quote them, as the Communists often do, to sanction violent attacks
upon a representative government which does afford such means. But while I think Congress may
make it a crime to take one overt step to use or to incite violence or force against our Government, I do
not see how, in the light of our history, a mere belief that one has a natural right under some
circumstances to do so can subject an American citizen to prejudice any more than possession of any
other erroneous belief. Can we say that men of our time must not even think about the propositions on
which our own Revolution was justified? Or may they think, provided they reach only one conclusion
-- and that the opposite of Mr. Jefferson's? … Progress generally begins in skepticism about accepted
truths. Intellectual freedom means the right to reexamine much that has been long taken for granted. A
free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority
may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous
than atrophy from not thinking at all. Our Constitution relies on our electorate's complete ideological
freedom to nourish independent and responsible intelligence and preserve our democracy from that
submissiveness, timidity and herd-mindedness of the masses which would foster a tyranny of
mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member
to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not
the function of our Government to keep the citizen from falling into error; it is the function of the
citizen to keep the Government from falling into error. We could justify any censorship only when the
censors are better shielded against error than the censored. The idea that a Constitution should protect
individual nonconformity is essentially American, and is the last thing in the world that Communists
will tolerate. Nothing exceeds the bitterness of their demands for freedom for themselves in this
country except the bitterness of their intolerance of freedom for others where they are in power. An
exaction of some profession of belief or nonbelief is precisely what the Communists would enact --
each individual must adopt the ideas that are common to the ruling group. Their whole philosophy is to
minimize man as an individual and to increase the power of man acting in the mass. If any single
characteristic distinguishes our democracy from Communism, it is our recognition of the individual as
a personality, rather than as a soulless part in the jigsaw puzzle that is the collectivist state … I adhere
to views I have heretofore expressed, whether the Court agreed, West Virginia Board of Education v.
Barnette, 319 U. S. 624, or disagreed, see dissenting opinion in United States v. Ballard, 322 U. S. 78,
322 U. S. 92, that our Constitution excludes both general and local governments from the realm of
opinions and ideas, beliefs and doubts, heresy and orthodoxy, political, religious or scientific. The right
to speak out, or to publish, also is protected when it does not clearly and presently threaten some injury
to society which the Government has a right to protect. Separate pinion, Thomas v. Collins, 323 U. S.
516. But I have protested the degradation of these constitutional liberties to immunize and approve mob
movements, whether those mobs be religious or political, radical or conservative, liberal or illiberal,
Douglas v. City of Jeannette, 319 U. S. 157; Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 13, or to
authorize pressure groups to use amplifying devices to drown out the natural voice and destroy the
peace of other individuals. Saia v. People of New York, 334 U. S. 558; Kovacs v. Cooper, 336 U. S. 77.
And I have pointed out that men cannot enjoy their right to personal freedom if fanatical masses,
whatever their mission, can strangle individual thoughts and invade personal privacy. Martin v.
Struthers, 319 U. S. 141, dissent at 319 U. S. 166. A catalogue of rights was placed in our Constitution,
in my view, to protect the individual in his individuality, and neither statutes which put those rights at
the mercy of officials nor judicial decisions which put them at the mercy of the mob are consistent with
its text or its spirit.

“Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people
by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for
law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the means . . . would bring terrible retribution.
Against that pernicious doctrine this Court should resolutely set its face." Olmstead v. United States,
277 U.S. 438, 485 (1928)

FBI COINTELPRO Vault


https://vault.fbi.gov/cointel-pro
“COINTELPRO The FBI began COINTELPRO—short for Counterintelligence Program—in 1956 to
disrupt the activities of the Communist Party of the United States. In the 1960s, it was expanded to
include a number of other domestic groups, such as the Ku Klux Klan, the Socialist Workers Party, and
the Black Panther Party. All COINTELPRO operations were ended in 1971. Although limited in scope
(about two-tenths of one percent of the FBI’s workload over a 15-year period), COINTELPRO was
later rightfully criticized by Congress and the American people for abridging first amendment rights
and for other reasons.”

FBI Marcus Garvey Vault


https://vault.fbi.gov/marcus-garvey
“Marcus Mosiah Garvey, Jr. (1887-1940), a Jamaican born immigrant, was an early twentieth century
African-American leader who was a founder and staunch proponent of the black nationalist movement.
In the aftermath of World War I, the FBI began investigating Garvey’s activities, looking to deport him
as an undesirable alien. In 1922, he was convicted on a mail fraud charge in connection with some of
business and organizational activities in which he was involved; his sentence was later commuted by
President Coolidge. This material has been released before and consists of materials from 1922 to
1965; the bulk of the file ranges 1922 to 1927.”

Marcus Garvey’s letter from Atlanta Prison February 10, 1925

Fellow Men of the Negro Race Greetings:

I am delighted to inform you, that your humble servant is as happy in suffering for you
and our cause as is possible under the circumstances of being viciously outraged by a
group of plotters who have connived to do their worst to humiliate you through me, in
fight for real emancipation and African Redemption.

I do not want at this time to write anything that would make it difficult for you to meet
the opposition of your enemy without my assistance. Suffice to say that the history of
the outrage shall form a splendid chapter in the history of Africa redeemed. When
black man will no longer be under the heels of others, but have a civilization and
culture of their own.
The whole affair is a disgrace, and the whole black world knows it. We shall not forget.
Our day may be fifty, a hundred or two hundred years ahead, let us watch, work, and
pray, for the civilization of injustice is bound to crumble and bring destruction down
upon the heads of the unjust.

My work is just begun, and when the history of my suffering is complete, then the
future generations of the Negro will have in their hands the guide by which they shall
know the “sins” of the twentieth century. I, and I know you, too, believe in time, and we
shall wait patiently for two hundred years, if need be, to face our enemies through our
prosperity.

All I have I have given you. I have sacrificed my home and my loving wife for you. I
entrust her to your charge, to protect and defend her in my absence. She is the
bravest little woman I know. She has suffered and sacrificed with me for you,
therefore, please do not desert her at this dismal hour, when she stands alone. I left
her penniless and helpless to face the world, because I gave you all, but her courage
is great, and I know she will hold up for you and me.

After my enemies are satisfied, in life or death I shall come back to you to serve even
as I have served before. In life I shall be the same; in death I shall be a terror to the
foes of Negro liberty. If death has power, then count on me in death to be the real
Marcus Garvey I would like to be. If I may come in an earthquake, or a cyclone, or a
plague, or pestilence, or as God would have me, then be assure that I would never
desert you and make your enemies triumph over you.

Would I not go to hell a million times for you? Would I not like Macbeth’s ghost, walk
the earth forever for you? Would I not lose the whole world and eternity for you?
Would I not cry forever before the footstool of the Lord Omnipotent for you? Would I
not die a million deaths for you? Then, why be sad? Cheer up, and be assure that if it
takes a million years the sins of our enemies shall visit the millionth generation of
those that hinder and oppress us.

If I die in Atlanta my work shall then only begin, but I shall live, in the physical or
spiritual to see the day of Africa’s glory. When I am dead wrap the mantle of the Red,
Black and Green around me, for in the new life I shall rise with God’s grace and
blessing to lead the millions up the heights of triumph with the colors that you well
know. Look for me in the whirlwind or the storm, look for me all around you, for, with
God’s grace I shall come and bring with me countless millions of black slaves who
have died in America and the West Indies and the millions in Africa to aid you in the
fight for liberty, freedom and life.
The civilization of today as gone drunk and crazy with its power and by such it seeks
through injustice, fraud and lies to crush the unfortunate. But if I am apparently
crushed by the system of influence and misdirected power, my cause shall rise again
to plague the conscience of the corrupt. For this again I am satisfied, and for you, I
repeat, I am glad to suffer and even die. Again, I say cheer up, for better days are
ahead. I shall write the history that will inspire the millions that are coming and leave
the posterity of our enemies to reckon with the host for the deeds of their fathers.

With God’s dearest blessings, I leave you for a while.

These are excerpts from the actual letter written by Marcus Garvey while in Atlanta
Prison February 10, 1925. This reference comes from The Philosophy and Opinions of
Marcus Garvey Compiled by Amy Jacques Garvey page 237-239

COINTELPRO
https://www.nytimes.com/2016/05/12/us/comey-ferguson-effect-police-videos-fbi.html
https://www.nytimes.com/2018/02/02/opinion/leaving-the-fbi.html

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)


The question before us is whether this rule of liability, as applied to an action brought by a public
official against critics of his official conduct, abridges the freedom of speech and of the press that is
guaranteed by the First and Fourteenth Amendments.

It is as much his duty to criticize as it is the official's duty to administer. See Whitney v. California,
274 U. S. 357, 274 U. S. 375 (concurring opinion of Mr. Justice Brandeis), quoted supra, p. 376 U. S.
270. As Madison said, see supra p. 376 U. S. 275, "the censorial power is in the people over the
Government, and not in the Government over the people."

This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, 1 Stat. 596,
which first crystallized a national awareness of the central meaning of the First Amendment. See Levy,
Legacy of Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters (1956), at 426, 431, and passim.

Madison prepared the Report in support of the protest. His premise was that the Constitution created a
form of government under which "The people, not the government, possess the absolute sovereignty."
The structure of the government dispersed power in reflection of the people's distrust of concentrated
power, and of power itself at all levels. This form of government was "altogether different" from the
British form, under which the Crown was sovereign and the people were subjects. "I it not natural and
necessary, under such different circumstances," he asked, "that a different degree of freedom in the use
of the press should be contemplated?" Id., pp. 569-570. Earlier, in a debate in the House of
Representatives, Madison had said:

"If we advert to the nature of Republican Government, we shall find that the censorial power is in the
people over the Government, and not in the Government over the people."

4 Annals of Congress, p. 934 (1794). Of the exercise of that power by the press, his Report said:
"In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and
measures of public men, of every description, which has not been confined to the strict limits of the
common law. On this footing, the freedom of the press has stood; on this foundation it yet stands. . . ."

4 Elliot's Debates, supra, p. 570. The right of free public discussion of the stewardship of public
officials was thus, in Madison's view, a fundamental principle of the American form of government.

Jefferson, as President, pardoned those who had been convicted and sentenced under the Act and
remitted their fines, stating:

"I discharged every person under punishment or prosecution under the sedition law because I
considered, and now consider, that law to be a nullity, as absolute and as palpable as if Congress had
ordered us to fall down and worship a golden image."

Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works (Washington ed.), pp. 555, 556. The invalidity
of the Act has also been assumed by Justices of this Court. See Holmes, J., dissenting and joined by
Brandeis, J., in Abrams v. United States, 250 U. S. 616, 250 U. S. 630; Jackson, J., dissenting in
Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 288-289; Douglas, The Right of the People (1958), p.
47. See also Cooley, Constitutional Limitations (8th ed., Carrington, 1927), pp. 899-900; Chafee, Free
Speech in the United States (1942), pp. 27-28. These views reflect a broad consensus that the Act,
because of the restraint it imposed upon criticism of government and public officials, was inconsistent
with the First Amendment.

Although neither of these statements mentions respondent by name, he contended that the word
"police" in the third paragraph referred to him as the Montgomery Commissioner who supervised the
Police Department, so that he was being accused of "ringing" the campus with police. He further
claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking of
the dining hall in order to starve the students into submission. As to the sixth paragraph, he contended
that, since arrests are ordinarily made by the police, the statement "They have arrested [Dr. King] seven
times" would be read as referring to him; he further contended that the "They" who did the arresting
would be equated with the "They" who committed the other described acts and with the "Southern
violators." Thus, he argued, the paragraph would be read as accusing the Montgomery police, and
hence him, of answering Dr. King's protests with "intimidation and violence," bombing his home,
assaulting his person, and charging him with perjury. Respondent and six other Montgomery residents
testified that they read some or all of the statements as referring to him in his capacity as
Commissioner.

"We think it common knowledge that the average person knows that municipal agents, such as police
and firemen, and others, are under the control and direction of the city governing body, and, more
particularly, under the direction and control of a single commissioner. In measuring the performance or
deficiencies of such groups, praise or criticism is usually attached to the official in complete control of
the body."

The dictum in Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 348-349, that "when the statements
amount to defamation, a judge has such remedy in damages for libel as do other public servants,"
implied no view as to what remedy might constitutionally be afforded to public officials. In
Beauharnais v. Illinois, 343 U. S. 250, the Court sustained an Illinois criminal libel statute as applied to
a publication held to be both defamatory of a racial group and "liable to cause violence and disorder."
But the Court was careful to note that it "retains and exercises authority to nullify action which
encroaches on freedom of utterance under the guise of punishing libel"; for "public men are, as it were,
public property," and "discussion cannot be denied, and the right, as well as the duty, of criticism must
not be stifled." Id. at 343 U. S. 263-264, and n. 18. In the only previous case that did present the
question of constitutional limitations upon the power to award damages for libel of a public official, the
Court was equally divided and the question was not decided. Schenectady Union Pub. Co. v. Sweeney,
316 U.S. 642.

The general proposition that freedom of expression upon public questions is secured by the First
Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was
fashioned to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people." Roth v. United States, 354 U. S. 476, 354 U. S. 484.

"The maintenance of the opportunity for free political discussion to the end that government may be
responsive to the will of the people and that changes may be obtained by lawful means, an opportunity
essential to the security of the Republic, is a fundamental principle of our constitutional system."

Stromberg v. California, 283 U. S. 359, 283 U. S. 369. "[I]t is a prized American privilege to speak
one's mind, although not always with perfect good taste, on all public institutions," Bridges v.
California, 314 U. S. 252, 314 U. S. 270, and this opportunity is to be afforded for "vigorous advocacy"
no less than "abstract discussion." NAACP v. Button, 371 U. S. 415, 371 U. S. 429.

The First Amendment, said Judge Learned Hand,

"presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than
through any kind of authoritative selection. To many, this is, and always will be, folly, but we have
staked upon it our all."

United States v. Associated Press, 52 F.Supp. 362, 372 (D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in
his concurring opinion in Whitney v. California, 274 U. S. 357, 274 U. S. 375-376, gave the principle
its classic formulation:

"Those who won our independence believed . . . that public discussion is a political duty, and that this
should be a fundamental principle of the American government. They recognized the risks to which all
human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government; that the path of
safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the
fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through
public discussion, they eschewed silence coerced by law -- the argument of force in its worst form.
Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that
free speech and assembly should be guaranteed."

Thus, we consider this case against the background of a profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See
Terminiello v. Chicago, 337 U. S. 1, 337 U. S. 4; De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365

As Madison said, "Some degree of abuse is inseparable from the proper use of every thing, and in no
instance is this more true than in that of the press." 4 Elliot's Debates on the Federal Constitution
(1876), p. 571. In Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 310, the Court declared:

"In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the
tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of
view, the pleader, as we know, at times resorts to exaggeration, to vilification of men who have been, or
are, prominent in church or state, and even to false statement. But the people of this nation have
ordained, in the light of history, that, in spite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a
democracy."

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free
than does factual error. Where judicial officers are involved, this Court has held that concern for the
dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of
the judge or his decision. Bridges v. California, 314 U. S. 252. This is true even though the utterance
contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 342, 328
U. S. 343, n. 5, 328 U. S. 345. Such repression can be justified, if at all, only by a clear and present
danger of the obstruction of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia, 370 U.
S. 375. If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v.
Harney, supra, 331 U.S. at 331 U. S. 376, surely the same must be true of other government officials,
such as elected city commissioners. Criticism of their official conduct does not lose its constitutional
protection merely because it is effective criticism, and hence diminishes their official reputations.

The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of
the law and the facts. Despite these qualifications, the Act was vigorously condemned as
unconstitutional in an attack joined in by Jefferson and Madison. In the famous Virginia Resolutions of
1798, the General Assembly of Virginia resolved that it

"doth particularly protest against the palpable and alarming infractions of the Constitution in the two
late cases of the 'Alien and Sedition Acts,' passed at the last session of Congress. . . . [The Sedition Act]
exercises . . . a power not delegated by the Constitution, but, on the contrary, expressly and positively
forbidden by one of the amendments thereto -- a power which, more than any other, ought to produce
universal alarm because it is leveled against the right of freely examining public characters and
measures, and of free communication among the people thereon, which has ever been justly deemed
the only effectual guardian of every other right."

Near v. Minnesota, 283 U.S. 697 (1931)


"To prohibit the intent to excite those unfavorable sentiments against those who administer the
Government is equivalent to a prohibition of the actual excitement of them, and to prohibit the actual
excitement of them is equivalent to a prohibition of discussions having that tendency and effect, which,
again, is equivalent to a protection of those who administer the Government, if they should at any time
deserve the contempt or hatred of the people, against being exposed to it by free animadversions on
their characters and conduct."

As was said in New Yorker Staats-Zeitung v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 72:

"If the township may prevent the circulation of a newspaper for no reason other than that some of its
inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence,
there is no limit to what may be prohibited."

The distinction was early pointed out between the extent of the freedom with respect to censorship
under our constitutional system and that enjoyed in England. Here, as Madison said,

"the great and essential rights of the people are secured against legislative as well as against executive
ambition. They are secured not by laws paramount to prerogative, but by constitutions paramount to
laws. This security of the freedom of the press requires that it should be exempt not only from previous
restraint by the Executive, a in Great Britain, but from legislative restraint also." Report on the Virginia
Resolutions, Madison's Works, vol. IV, p. 543.

"In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous
restraints upon publications as had been practiced by other governments,' and they do not prevent the
subsequent punishment of such as may be deemed contrary to the public welfare. Commonwealth v.
Blanding, 3 Pick. 304, 313, 314; Respublica v. Oswald, 1 Dallas 319, 1 U. S. 325. The preliminary
freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the
true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all.
Commonwealth v. Blanding, ubi sup.; 4 Bl.Com. 150."

The point of criticism has been "that the mere exemption from previous restraints cannot be all that is
secured by the constitutional provisions", and that "the liberty of the press might be rendered a
mockery and a delusion, and the phrase itself a byword, if, while every man was at liberty to publish
what he pleased, the public authorities might nevertheless punish him for harmless publications."

That is undoubtedly true; the protection even as to previous restraint is not absolutely unlimited. But
the limitation has been recognized only in exceptional cases:

"When a nation is at war, many things that might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men fight, and that no Court could regard them
as protected by any constitutional right." Schenck v. United States, 249 U. S. 47, 249 U. S. 52. No one
would question but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops. [Footnote 6] On
similar grounds, the primary requirements of decency may be enforced against obscene publications.
The security of the community life may be protected against incitements to acts of violence and the
overthrow by force of orderly government. The constitutional guaranty of free speech does not "protect
a man from an injunction against uttering words that may have all the effect of force. Gompers v. Buck
Stove & Range Co., 221 U. S. 418, 221 U. S. 439."

It is apparent that, under the statute, the publication is to be regarded as defamatory if it injures
reputation, and that it is scandalous if it circulates charges of reprehensible conduct, whether criminal
or otherwise, and the publication is thus deemed to invite public reprobation and to constitute a public
scandal. The court sharply defined the purpose of the statute, bringing out the precise point, in these
words:

"There is no constitutional right to publish a fact merely because it is true. It is a matter of common
knowledge that prosecutions under the criminal libel statutes do not result in efficient repression or
suppression of the evils of scandal. Men who are the victims of such assaults seldom resort to the
courts. This is especially true if their sins are exposed and the only question relates to whether it was
done with good motives and for justifiable ends. This law is not for the protection of the person
attacked, nor to punish the wrongdoer. It is for the protection of the pubic welfare."

The statute is directed not simply at the circulation of scandalous and defamatory statements with
regard to private citizens, but at the continued publication by newspapers and periodicals of charges
against public officers of corruption, malfeasance in office, or serious neglect of duty. Such charges, by
their very nature, create a public scandal.

The object of the statute is not punishment, in the ordinary sense, but suppression of the offending
newspaper or periodical. The reason for the enactment, as the state court has said, is that prosecutions
to enforce penal statutes for libel do not result in "efficient repression or suppression of the evils of
scandal."

The statute not only operates to suppress the offending newspaper or periodical, but to put the publisher
under an effective censorship. When a newspaper or periodical is found to be "malicious, scandalous,
and defamatory," and is suppressed as such, resumption of publication is punishable as a contempt of
court by fine or imprisonment. Thus, where a newspaper or periodical has been suppressed because of
the circulation of charges against public officers of official misconduct, it would seem to be clear that
the renewal of the publication of such charges would constitute a contempt, and that the judgment
would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the
character of a new publication. Whether he would be permitted again to publish matter deemed to be
derogatory to the same or other public officers would depend upon the court's ruling. In the present
instance, the judgment restrained the defendants from

"publishing, circulating, having in their possession, selling or giving away any publication whatsoever
which is a malicious, scandalous or defamatory newspaper, as defined by law."

Madison, who was the leading spirit in the preparation of the First Amendment of the Federal
Constitution, thus described the practice and sentiment which led to the guaranties of liberty of the
press in state constitutions:

"In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and
measures of public men of every description which has not been confined to the strict limits of the
common law. On this footing the freedom of the press has stood; on this footing it yet stands. . . . Some
degree of abuse is inseparable from the proper use of everything, and in no instance is this more true
than in that of the press. It has accordingly been decided by the practice of the States that it is better to
leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the
vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who
reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs
which have been gained by reason and humanity over error and oppression; who reflect that to the
same beneficent source the United States owe much of the lights which conducted them to the ranks of
a free and independent nation, and which have improved their political system into a shape so
auspicious to their happiness? Had 'Sedition Acts,' forbidding every publication that might bring the
constituted agents into contempt or disrepute, or that might excite the hatred of the people against the
authors of unjust or pernicious measures, been uniformly enforced against the press, might not the
United States have been languishing at this day under the infirmities of a sickly Confederation? Might
they not, possibly, be miserable colonies, groaning under a foreign yoke?"

Criminal Liability of Affiant for Malicious Procurement of Search Warrant. -- Ala.Code, 1958, Tit. 15, § 99;
Alaska Comp.Laws Ann., 1949, § 66-7-15; Ariz.Rev.Stat.Ann., 1956, § 13-1454; Cal.Pen.Code § 170; Fla.Stat.,

1959, § 933.16; Ga.Code Ann., 1953, § 27-301; Idaho Code Ann., 1948, § 18-709; Iowa Code Ann., 1950, §

751.38; Minn.Stat.Ann., 1947, § 613.54; Mont.Rev.Codes Ann., 1947, § 94-35-122; Nev.Rev.Stat. §§ 199.130,

199.140; N.J.Stat.Ann., 1940, § 33:1-64; N.Y.Pen.Law § 1786, N.Y.Code Crim.Proc. § 811; N.C.Gen.Stat., 1953,

§ 15-27 (applies to "officers" only); N.D.Century Code Ann., 1960, §§ 12-17-08, 29-29-18; Okla.Stat., 1951, Tit.

21, § 585, Tit. 22, § 1239; Ore.Rev.Stat. § 141.990; S.D.Code, 1939 (Supp. 1960), § 34.9904; Utah Code Ann.,

1953,§ 77-54-21.

Criminal Liability of Magistrate Issuing Warrant Without Supporting Affidavit. -- N.C.Gen.Stat., 1953, § 15-27;

Va.Code Ann., 1960 Replacement Volume, § 19.1-89.

Criminal Liability of Officer Willfully Exceeding Authority of Search Warrant. -- Fla.Stat.Ann., 1944, § 933.17;

Iowa Code Ann., 1950, § 751.39; Minn.Stat.Ann., 1947, § 613.54; Nev.Rev.Stat. § 199.450; N.Y.Pen.Law §

1847, N.Y.Code Crim.Proc. § 812; N.D.Century Code Ann., 1960, §§ 12-17-07, 29-29-19; Okla.Stat., 1951, Tit.

21, § 536, Tit. 22, § 1240; S.D.Code, 1939 (Supp. 1960), § 34.9905; Tenn.Code Ann., 1955, § 40-510; Utah

Code Ann., 1953, § 77-54-22.

Criminal Liability of Officer for Search with Invalid Warrant or no Warrant. -- Idaho Code Ann., 1948, § 18-703;

Minn.Stat.Ann., 1947, §§ 613.53, 621.17; Mo.Ann.Stat., 1953, § 558.190; Mont.Rev.Codes Ann., 1947, § 94-

3506; N.J.Stat.Ann., 1940, § 33:1-65; N.Y.Pen.Law § 1846; N.D. Century Code Ann., 1960, § 12-17-06;

Okla.Stat.Ann., 1958, Tit. 21, § 535; Utah Code Ann., 1953, § 76-28-52; Va.Code Ann., 1960 Replacement

Volume, § 19.1-88; Wash.Rev.Code §§ 10.79.040, 10.79.045.

Katz v. United States 389 U.S. 347 (1967)


Weeks v. United States 232 U.S. 383 (1914)
Soldal V Cook County, 506 U.S. 56 (1992)
Mapp v. Ohio 367 U.S. 643 (1961)
Silverthorne Lumber Co., Inc. v. United States 251 U.S. 385 (1920)
Bivens v. Six Unknown Fed. Narcotics Agents 403 U.S. 388 (1971)
Florida v. Jardines 569 U.S. ___ (2013)
Whereby the Plaintiff Prays the Court,

Review the Law in light of the Constitution

___________________________
Rev. Ryan “Sasha” Gallagher