A few nice how to get a booking agent license images I found:

A Bitcoin You Can Flip
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Image by jurvetson
My son has become fascinated with bitcoins, and so I had to get him a tangible one for Xmas (thanks Sim1!). The public key is imprinted visibly on the tamper-evident holographic film, and the private key lies underneath.

I too was fascinated by digital cash back in college, and more specifically by the asymmetric mathematical transforms underlying public-key crypto and digital blind signatures.

I remembered a technical paper I wrote, but could not find it. A desktop search revealed an essay that I completely forgot, something that I had recovered from my archives of floppy discs (while I still could).

It is an article I wrote for the school newspaper in 1994. Ironically, Microsoft Word could not open this ancient Microsoft Word file format, but the free text editors could.

What a fun time capsule, below, with some choice naivetés…

I am trying to reconstruct what I was thinking, and wondering if it makes any sense. I think I was arguing that a bulletproof framework for digital cash (and what better testing ground) could be used to secure a digital container for executable code on a rental basis. So the expression of an idea — the specific code, or runtime service — is locked in a secure container. The idea would be to prevent copying instead of punishing after the fact. Micro-currency and micro-code seem like similar exercises in regulating the single use of an issued number.

Now that the Bitcoin experiment is underway, do you know of anyone writing about it as an alternative framework for intellectual property?

IP and Digital Cash
@NORMAL:
Digital Cash and the “Intellectual Property” Oxymoron
By Steve Jurvetson

Many of us will soon be working in the information services or technology industries which are currently tangled in a bramble patch of intellectual property law. As the law struggles to find coherency and an internally-consistent logic for intellectual property (IP) protection, digital encryption technologies may provide a better solution — from the perspective of reducing litigation, exploiting the inherent benefits of an information-based business model, and preserving a free economy of ideas.
Bullet-proof digital cash technology, which is now emerging, can provide a protected “cryptographic container” for intellectual expressions, thereby preserving traditional notions of intellectual property that protect specific instantiations of an idea rather than the idea itself. For example, it seems reasonable that Intuit should be able to protect against the widespread duplication of their Quicken software (the expression of an idea), but they should not be able to patent the underlying idea of single-entry bookkeeping. There are strong economic incentives for digital cash to develop and for those techniques to be adapted for IP protection — to create a protected container or expression of an idea. The rapid march of information technology has strained the evolution of IP law, but rather than patching the law, information technology itself may provide a more coherent solution.

Information Wants To Be Free
Currently, IP law is enigmatic because it is expanding to a domain for which it was not initially intended. In developing the U.S. Constitution, Thomas Jefferson argued that ideas should freely transverse the globe, and that ideas were fundamentally different from material goods. He concluded that “Inventions then cannot, in nature, be a subject of property.” The issues surrounding IP come into sharp focus as we shift to being more of an information-based economy.
The use of e-mail and local TV footage helps disseminate information around the globe and can be a force for democracy — as seen in the TV footage from Chechen, the use of modems in Prague during the Velvet Revolution, and the e-mail and TV from Tianammen Square. Even Gorbachev used a video camera to show what was happening after he was kidnapped. What appears to be an inherent force for democracy runs into problems when it becomes the subject of property.
As higher-level programming languages become more like natural languages, it will become increasingly difficult to distinguish the idea from the code. Language precedes thought, as Jean-Louis Gassée is fond of saying, and our language is the framework for the formulation and expression of our ideas. Restricting software will increasingly be indistinguishable from restricting freedom of speech.
An economy of ideas and human attention depends on the continuous and free exchange of ideas. Because of the associative nature of memory processes, no idea is detached from others. This begs the question, is intellectual property an oxymoron?

Intellectual Property Law is a Patch
John Perry Barlow, former Grateful Dead lyricist and co-founder (with Mitch Kapor) of the Electronic Frontier Foundation, argues that “Intellectual property law cannot be patched, retrofitted or expanded to contain digitized expression… Faith in law will not be an effective strategy for high-tech companies. Law adapts by continuous increments and at a pace second only to geology. Technology advances in lunging jerks. Real-world conditions will continue to change at a blinding pace, and the law will lag further behind, more profoundly confused. This mismatch may prove impossible to overcome.”
From its origins in the Industrial Revolution where the invention of tools took on a new importance, patent and copyright law has protected the physical conveyance of an idea, and not the idea itself. The physical expression is like a container for an idea. But with the emerging information superhighway, the “container” is becoming more ethereal, and it is disappearing altogether. Whether it’s e-mail today, or the future goods of the Information Age, the “expressions” of ideas will be voltage conditions darting around the net, very much like thoughts. The fleeting copy of an image in RAM is not very different that the fleeting image on the retina.
The digitization of all forms of information — from books to songs to images to multimedia — detaches information from the physical plane where IP law has always found definition and precedent. Patents cannot be granted for abstract ideas or algorithms, yet courts have recently upheld the patentability of software as long as it is operating a physical machine or causing a physical result. Copyright law is even more of a patch. The U.S. Copyright Act of 1976 requires that works be fixed in a durable medium, and where an idea and its expression are inseparable, the merger doctrine dictates that the expression cannot be copyrighted. E-mail is not currently copyrightable because it is not a reduction to tangible form. So of course, there is a proposal to amend these copyright provisions. In recent rulings, Lotus won its case that Borland’s Quattro Pro spreadsheet copied elements of Lotus 123’s look and feel, yet Apple lost a similar case versus Microsoft and HP. As Professor Bagley points out in her new text, “It is difficult to reconcile under the total concept and feel test the results in the Apple and Lotus cases.” Given the inconsistencies and economic significance of these issues, it is no surprise that swarms of lawyers are studying to practice in the IP arena.
Back in the early days of Microsoft, Bill Gates wrote an inflammatory “Open Letter to Hobbyists” in which he alleged that “most of you steal your software … and should be kicked out of any club meeting you show up at.” He presented the economic argument that piracy prevents proper profit streams and “prevents good software from being written.” Now we have Windows.
But seriously, if we continue to believe that the value of information is based on scarcity, as it is with physical objects, we will continue to patch laws that are contrary to the nature of information, which in many cases increases in value with distribution. Small, fast moving companies (like Netscape and Id) protect their ideas by getting to the marketplace quicker than their larger competitors who base their protection on fear and litigation.
The patent office is woefully understaffed and unable to judge the nuances of software. Comptons was initially granted a patent that covered virtually all multimedia technology. When they tried to collect royalties, Microsoft pushed the Patent Office to overturn the patent. In 1992, Software Advertising Corp received a patent for “displaying and integrating commercial advertisements with computer software.” That’s like patenting the concept of a radio commercial. In 1993, a DEC engineer received a patent on just two lines of machine code commonly used in object-oriented programming. CompuServe announced this month that they plan to collect royalties on the widely used GIF file format for images.
The Patent Office has issued well over 12,000 software patents, and a programmer can unknowingly be in violation of any them. Microsoft had to pay 0MM to STAC in February 1994 for violating their patent on data compression. The penalties can be costly, but so can a patent search. Many of the software patents don’t have the words “computer,” “software,” “program,” or “algorithm” in their abstracts. “Software patents turn every decision you make while writing a program into a legal risk,” says Richard Stallman, founder of the League for Programming Freedom. “They make writing a large program like crossing a minefield. Each step has a small chance of stepping on a patent and blowing you up.” The very notion of seventeen years of patent protection in the fast moving software industry seems absurd. MS-DOS did not exist seventeen years ago.
IP law faces the additional wrinkle of jurisdictional issues. Where has an Internet crime taken place? In the country or state in which the computer server resides? Many nations do not have the same intellectual property laws as the U.S. Even within the U.S., the law can be tough to enforce; for example, a group of music publishers sued CompuServe for the digital distribution of copyrighted music. A complication is that CompuServe has no knowledge of the activity since it occurs in the flood of bits transferring between its subscribers
The tension seen in making digital copies revolves around the issue of property. But unlike the theft of material goods, copying does not deprive the owner of their possessions. With digital piracy, it is less a clear ethical issue of theft, and more an abstract notion that you are undermining the business model of an artist or software developer. The distinction between ethics and laws often revolves around their enforceability. Before copy machines, it was hard to make a book, and so it was obvious and visible if someone was copying your work. In the digital age, copying is lightning fast and difficult to detect. Given ethical ambiguity, convenience, and anonymity, it is no wonder we see a cultural shift with regard to digital ethics.

Piracy, Plagiarism and Pilfering
We copy music. We are seldom diligent with our footnotes. We wonder where we’ve seen Strat-man’s PIE and the four slices before. We forward e-mail that may contain text from a copyrighted news publication. The SCBA estimates that 51% of satellite dishes have illegal descramblers. John Perry Barlow estimates that 90% of personal hard drives have some pirated software on them.
Or as last month’s Red Herring editorial points out, “this atmosphere of electronic piracy seems to have in turn spawned a freer attitude than ever toward good old-fashioned plagiarism.” Articles from major publications and WSJ columns appear and circulate widely on the Internet. Computer Pictures magazine replicated a complete article on multimedia databases from New Media magazine, and then publicly apologized.
Music and voice samples are an increasingly common art form, from 2 Live Crew to Negativland to local bands like Voice Farm and Consolidated. Peter Gabriel embraces the shift to repositioned content; “Traditionally, the artist has been the final arbiter of his work. He delivered it and it stood on its own. In the interactive world, artists will also be the suppliers of information and collage material, which people can either accept as is, or manipulate to create their own art. It’s part of the shift from skill-based work to decision-making and editing work.”
But many traditionalists resist the change. Museums are hesitant to embrace digital art because it is impossible to distinguish the original from a copy; according to a curator at the New Museum of Contemporary Art, “The art world is scared to death of this stuff.” The Digital Audio Tape debate also illustrated the paranoia; the music industry first insisted that these DAT recorders had to purposely introduce static into the digital copies they made, and then they settled for an embedded code that limited the number of successive copies that could be made from the a master source.
For a healthier reaction, look at the phenomenally successful business models of Mosaic/Netscape and Id Software, the twisted creator of Doom. Just as McAfee built a business on shareware, Netscape and Id encourage widespread free distribution of their product. But once you want support from Netscape, or the higher levels of the Doom game, then you have to pay. For industries with strong demand-side economies of scale, such as Netscape web browsers or Safe-TCL intelligent agents, the creators have exploited the economies of information distribution. Software products are especially susceptible to increasing returns with scale, as are networking products and most of the information technology industries.
Yet, the Software Publishers Association reports that 1993 worldwide losses to piracy of business application software totaled .45 billion. They also estimated that 89% of software units in Korea were counterfeit. And China has 29 factories, some state-owned, that press 75 million pirated CDs per year, largely for export. GATT will impose the U.S. notions of intellectual property on a world that sees the issue very differently.
Clearly there are strong economic incentives to protect intellectual property, and reasonable arguments can be made for software patents and digital copyright, but the complexities of legal enforcement will be outrun and potentially obviated by the relatively rapid developments of another technology, digital cash and cryptography.

Digital Cash and the IP Lock
Digital cash is in some ways an extreme example of digital “property” — since it cannot be copied, it is possessed by one entity at a time, and it is static and non-perishable. If the techniques for protecting against pilferage and piracy work in the domain of cash, then they can be used to “protect” other properties by being embedded in them. If I wanted to copy-protect an “original” work of digital art, digital cash techniques be used as the “container” to protect intellectual property in the old style. A bullet-proof digital cash scheme would inevitably be adapted by those who stand to gain from the current system. Such as Bill Gates.
Several companies are developing technologies for electronic commerce. On January 12, several High-Tech Club members attended the Cybermania conference on electronic commerce with the CEOs of Intuit, CyberCash, Enter TV and The Lightspan Partnership. According to Scott Cook, CEO of Intuit, the motivations for digital cash are anonymity and efficient small-transaction Internet commerce. Anonymity preserves our privacy in the age of increasingly intrusive “database marketing” based on credit card purchase patterns and other personal information. Of course, it also has tax-evasion implications. For Internet commerce, cash is more efficient and easier to use than a credit card for small transactions.
“A lot of people will spend nickels on the Internet,” says Dan Lynch of CyberCash. Banks will soon exchange your current cash for cyber-tokens, or a “bag of bits” which you can spend freely on the Internet. A competitor based in the Netherlands called DigiCash has a Web page with numerous articles on electronic money and fully functional demo of their technology. You can get some free cash from them and spend it at some of their allied vendors.
Digital cash is a compelling technology. Wired magazine calls it the “killer application for electronic networks which will change the global economy.” Handling and fraud costs for the paper money system are growing as digital color copiers and ATMs proliferate. Donald Gleason, President of the Smart Card Enterprise unit of Electronic Payment Services argues that “Cash is a nightmare. It costs money handlers in the U.S. alone approximately billion a year to move the stuff… Bills and coinage will increasingly be replaced by some sort of electronic equivalent.” Even a Citibank VP, Sholom Rosen, agrees that “There are going to be winners and losers, but everybody is going to play.”
The digital cash schemes use a blind digital signature and a central repository to protect against piracy and privacy violations. On the privacy issue, the techniques used have been mathematically proven to be protected against privacy violations. The bank cannot trace how the cash is being used or who is using it. Embedded in these schemes are powerful digital cryptography techniques which have recently been spread in the commercial domain (RSA Data Security is a leader in this field and will be speaking to the High Tech Club on January 19).
To protect against piracy requires some extra work. As soon as I have a digital bill on my Mac hard drive, I will want to make a copy, and I can. (Many companies have busted their picks trying to copy protect files from hackers. It will never work.). The difference is that I can only spend the bill once. The copy is worthless. This is possible because every bill has a unique encrypted identifier. In spending the bill, my computer checks with the centralized repository which verifies that my particular bill is still unspent. Once I spend it, it cannot be spent again. As with many electronic transactions today, the safety of the system depends on the integrity of a centralized computer, or what Dan Lynch calls “the big database in the sky.”
One of the most important limitations of the digital cash techniques is that they are tethered to a transaction between at least three parties — a buyer, seller and central repository. So, to use such a scheme to protect intellectual property, would require networked computers and “live” files that have to dial up and check in with the repository to be operational. There are many compelling applications for this, including voter registration, voting tabulation, and the registration of digital artwork originals.
When I asked Dan Lynch about the use of his technology for intellectual property protection, he agreed that the bits that now represent a bill could be used for any number of things, from medical records to photographs. A digital photograph could hide a digital signature in its low-order bits, and it would be imperceptible to the user. But those bits could be used with a registry of proper image owners, and could be used to prove misappropriation or sampling of the image by others.
Technology author Steven Levy has been researching cryptography for Wired magazine, and he responded to my e-mail questions with the reply “You are on the right track in thinking that crypto can preserve IP. I know of several attempts to forward plans to do so.” Digital cash may provide a “crypto-container” to preserve traditional notions of intellectual property.
The transaction tether limits the short-term applicability of these schemes for software copy protection. They won’t work on an isolated computer. This certainly would slow its adoption for mobile computers since the wireless networking infrastructure is so nascent. But with Windows ’95 bundling network connectivity, soon most computers will be network-ready — at least for the Microsoft network. And now that Bill Gates is acquiring Intuit, instead of dollar bills, we will have Bill dollars.
The transaction tether is also a logistical headache with current slow networks, which may hinder its adoption for mass-market applications. For example, if someone forwards a copyrighted e-mail, the recipient may have to have their computer do the repository check before they could see the text of the e-mail. E-mail is slow enough today, but in the near future, these techniques of verifying IP permissions and paying appropriate royalties in digital cash could be background processes on a preemptive multitasking computer (Windows ’95 or Mac OS System 8). The digital cash schemes are consistent with other trends in software distribution and development — specifically software rental and object-oriented “applets” with nested royalty payments. They are also consistent with the document-centric vision of Open Doc and OLE.
The user of the future would start working on their stationary. When it’s clear they are doing some text entry, the word processor would be downloaded and rented for its current usage. Digital pennies would trickle back to the people who wrote or inspired the various portions of the core program. As you use other software applets, such as a spell-checker, it would be downloaded as needed. By renting applets, or potentially finer-grained software objects, the licensing royalties would be automatically tabulated and exchanged, and software piracy would require heroic efforts. Intellectual property would become precisely that — property in a market economy, under lock by its “creator,” and Bill Gates’ 1975 lament over software piracy may now be addressed 20 years later.

——–end of paper———–

On further reflection, I must have been thinking of executable code (where the runtime requires a cloud connect to authenticate) and not passive media. Verification has been a pain, but perhaps it’s seamless in a web-services future. Cloud apps and digital cash depend on it, so why not the code itself.

I don’t see it as particularly useful for still images (but it could verify the official owner of any unique bundle of pixels, in the sense that you can "own" a sufficiently large number, but not the essence of a work of art or derivative works). Frankly, I’m not sure about non-interactive content in general, like pure video playback. "Fixing" software IP alone would be a big enough accomplishment.

George Anastaplo ~ Right of Revolution ~ RIP My Friend
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Image by Viewminder
Before I made the acquaintance of George Anastaplo I saw him walking down the street in Chicago’s Hyde Park neighborhood.

There was something about him that caught my eye… something about the way that he walked and the way that he smiled… there was something about his spirit… there was something that I wanted to capture.

George has what I like to call ‘The Magic Mojo.’

I wanted to pop him right there on the street but I was late in getting to a very special dinner with some great friends.

I had to let the urge go.

I regretted my artistic inaction the moment I passed him on the street there.

Fortunately the regret would be short lived.

In one of those funny little twists of fate that life seems to lay on me… when we got to the dinner George ended up being seated right next to me.

He’s a fascinating guy.

A great storyteller, I really enjoyed the conversation that we shared as we sat there at the table.

‘While most lawyers go through an entire career without getting the opportunity to argue before the U.S. Supreme Court, George Anastaplo did so without entering the legal profession—and then, he likes to say, he retired.’ ~ Maria Kantzavelos, Chicago Daily Law Bulletin, April 25, 2011, page 1

George completed his undergraduate degree in only one year at the University of Chicago.

It took me longer than that to pay my overdue library fines from freshman year.

In 1951 he graduated at the top of his law school class.

I would have liked to have sat next to him.

In 1964 George completed his doctorate at the University of Chicago’s Committee on Social Thought.

Since then he’s written more than 20 books on a multitude of subjects.

"A longtime Loyola University Chicago School of Law professor who today teaches courses in constitutional law and jurisprudence, Anastaplo became an eclectic scholar and teacher" ~ Maria Kantzavelos

‘Fifty years ago Sunday, on April 24, 1961, the U.S. Supreme Court rendered a decision that affirmed the decision of the Illinois Supreme Court to deny Anastaplo admission to the Illinois bar because he refused to answer questions asked by the bar’s character committee about political associations.’ ~ Maria Kantzavelos

When George graduated from law school and he interviewed for admission into the Illinois Bar Association he had to be questioned in front of the ‘character committee’ they asked ‘do you think a communist should be admitted into the bar of this state?’

George’s answer?

‘Well, why not?’

Then they asked George if he was now or was ever a member of the Communist Party.

George didn’t feel that he should answer that question and because of that conviction they wouldn’t give him admission into the Illinois Bar and he couldn’t practice law even though the dude graduated at the top of his class. Hmmmmph.

‘Had he gone along with the process, things could have turned out differently for Anastaplo, who was being considered for a position at one of the big law firms in town.’ ~ Maria Kantzavelos

But that didn’t stop the fiesty twenty five year old.

He fought over the next ten years, ultimately laying out his case in front of the United States Supreme Court.

He argued there as a lawyer without a license!

‘In 1954 petitioner, George Anastaplo, an instructor and research assistant at the University of Chicago, having previously passed his Illinois bar examinations, was denied admission to the bar of that State by the Illinois Supreme Court. The denial was based upon his refusal to answer questions of the Committee on Character and Fitness as to whether he was a member of the Communist Party.’ ~ 366 U.S. 82 IN RE ANASTAPLO

‘The ensuing lengthy proceedings before the Committee, at which Anastaplo was the only witness, are perhaps best described as a wide-ranging exchange between the Committee and Anastaplo in which the Committee sought to explore Anastaplo’s ability conscientiously to swear support of the Federal and State Constitutions, as required by the Illinois attorneys’ oath, and Anastaplo undertook to expound and defend, on historical and ideological premises, his abstract belief in the ‘right of revolution,’ and to resist, on grounds of asserted constitutional right and scruple, Committee questions which he deemed improper. The Committee already had before it uncontroverted evidence as to Anastaplo’s ‘good moral character,’ in the form of written statements or affidavits furnished by persons of standing acquainted with him, and the record on rehearing contains nothing which could properly be considered as reflecting adversely upon his character or reputation or on the sincerity of the beliefs he espoused before the Committee. Anastaplo persisted, however, in refusing to answer, among other inquiries, the Committee’s questions as to his possible membership in the Communist Party or in other allegedly related organizations. ~ 366 U.S. 82 IN RE ANASTAPLO

Thereafter the Committee, by a vote of 11 to 6, again declined to certify Anastaplo because of his refusal to answer such questions, the majority stating in its report to the Illinois Supreme Court:

‘his (Anastaplo’s) failure to reply, in our view, obstructs the lawful processes of the Committee, prevents inquiry into subjects which bear intimately upon the issue of character and fitness, such as loyalty to our basic institutions, belief in representative government and bona fides of the attorney’s oath and results in his failure to meet the burden of establishing that he possesses the good moral character and fitness to practice law, which are conditions to the granting of a license to practice law.

‘We draw no inference of disloyalty or subversion from applicant’s continued refusal to answer questions concerning Communist or other subversive affiliations. We do, however, hold that there is a strong public interest in our being free to question applicants for admission to the bar on their adherence to our basic institutions and form of government and that such public interest in the character of its attorneys overrides an applicant’s private interest in keeping such views to himself. By failing to respond to this higher public interest we hold that the applicant has obstructed the proper functions of the Committee. We cannot certify the applicant as worthy of the trust and confidence of the public when we do not know that he is so worthy and when he has prevented us from finding out.’

At the same time the full Committee acknowledged that Anastaplo ‘is well regarded by his academic associates, by professors who had taught him in school and by members of the Bar who know him personally’; that it had ‘not been supplied with any information by any third party which is derogatory to Anastaplo’s character or general reputation. ~ ~ 366 U.S. 82 IN RE ANASTAPLO

THE DISSENTING OPINION

‘United States Supreme Court

366 U.S. 82

IN RE ANASTAPLO

No. 58. Argued: December 14, 1960. — Decided: April 24, 1961.

CERTIORARI TO THE SUPREME COURT OF ILLINOIS.

Mr. Justice BLACK, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS and Mr. Justice BRENNAN concur, dissenting.

The petitioner George Anastaplo has been denied the right to practice law in the State of Illinois for refusing to answer questions about his views and associations. I think this action by the State violated rights guaranteed to him by the First and Fourteenth Amendments. The reasons which lead me to this conclusion are largely the same as those expressed in my dissenting opinion in Konigsberg v. State Bar of California, 366 U.S. at page 56, 81 S.Ct. at page 1010. But this case provides such a striking illustration of the destruction that can be inflicted upon individual liberty when this Court fails to enforce the First Amendment to the full extent of its express and unequivocal terms that I think it deserves separate treatment.

The controversy began in November 1950, when Anastaplo, a student at the University of Chicago Law School, having two months previously successfully passed the Illinos Bar examination, appeared before the State’s Committee on Character and Fitness for the usual interview preliminary to admission to the Bar. The personal history form required by state law had been filled out and filed with the Committee prior to his appearance and showed that Anastaplo was an unusually worthy applicant for admission. His early life had been spent in a small town in southern Illinois where his parents, who had immigrated to this country from Greece before his birth, still resided. After having received his precollege education in the public schools of his home town, he had discontinued his education, at the age of eighteen, and joined the Air Force during the middle of World War II-flying as a navigator in every major theater of the military operations of that war. Upon receiving an honorable discharge in 1947, he had come to Chicago and resumed his education, obtaining his undergraduate degree at the University of Chicago and entering immediately into the study of law at the University of Chicago Law School. His record throughout his life, both as a student and as a citizen, was unblemished.

The personal history form thus did not contain so much as one statement of fact about Anastaplo’s past life or conduct that could have, in any way, cast doubt upon his fitness for admission to the Bar. It did, however, contain a statement of opinion which, in the minds of some of the members of the Committee at least, did cast such doubt and in that way served to touch off this controversy. This was a statement made by Anastaplo in response to the command of the personal history form: ‘State what you consider to be the principles underlying the Constitution of the United States.’ Anastaplo’s response to that command was as follows:

‘One principle consists of the doctrine of the separation of powers; thus, among the Executive, Legislative, and Judiciary are distributed various functions and powers in a manner designed to provide for a balance of power, thereby intending to prevent totally unrestrained action by any one branch of government. Another basic principle (and the most important) is that such government is constituted so as to secure certain inalienable rights, those rights to Life, Liberty and the Pursuit of Happiness (and elements of these rights are explicitly set forth in such parts of the Constitution as the Bill of Rights.). And, of course, whenever the particular government in power becomes destructive of these ends, it is the right of the people to alter or to abolish it and thereupon to establish a new government. This is how I view the Constitution.’

When Anastaplo appeared before a two-man Subcommittee of the Committee on Character and Fitness, one of its members almost immediately engaged him in a discussion relating to the meaning of these italicized words which were substantially taken from that part of the Declaration of Independence set out below. This discussion soon developed into an argument as Anastaplo stood by his statement and insisted that if a government gets bad enough, the people have a ‘right of revolution.’ It was at this juncture in the proceedings that the other member of the Subcommittee interrupted with the question: ‘Are you a member of any organization that is listed on the Attorney General’s list, to your knowledge?’ And this question was followed up a few moments later with the question: ‘Are you a member of the Communist Party?’ A colloquy then ensued between Anastaplo and the two members of the Subcommittee as to the legitimacy of the questions being asked, Anastaplo insisting that these questions were not reasonably related to the Committee’s functions and that they violated his rights under the Constitution, and the members of the Subcommittee insisting that the questions were entirely legitimate.

The Subcommittee then refused to certify Anastaplo for admission to the Bar but, instead, set a further hearing on the matter before the full Committee. That next hearing, as well as all of the hearings that followed, have been little more than repetitions of the first. The rift between Anastaplo and the Committee has grown ever wider with each successive hearing. Anastaplo has stead-fastly refused to answer any questions put by the Committee which inquired into his political associations or religious beliefs. A majority of the members of the Committee, faced with this refusal, has grown more and more insistent that it has the right to force him to answer any question it sees fit to ask. The result has been a series of hearings in which questions have been put to Anastaplo with regard to his ‘possible’ association with scores of organizations, including the Ku Klux Klan, the Silver Shirts (an allegedly Fascist organization), every organization on the so-called Attorney General’s list, the Democratic Party, the Republican Party, and the Communist Party. At one point in the proceedings, at least two of the members of the Committee insisted that he tell the Committee whether he believes in a Supreme Being and one of these members stated that, as far as his vote was concerned, a man’s ‘belief in the Deity * * * has a substantial bearing upon his fitness to practice law.’

It is true, as the majority points out, that the Committee did not expressly rest its refusal to certify Anastaplo for admission to the Bar either upon his views on the ‘right of revolution,’ as that ‘right’ is defined in the Declaration of Independence, or upon his refusal to disclose his beliefs with regard to the existence of God, [4] or upon his refusals to disclose any of his political associations other than his ‘possible’ association with the Communist Party. But it certainly cannot be denied that the other questions were asked and, since we should not presume that these members of the Committee did not want answers to their questions, it seems certain that Anastaplo’s refusal to answer them must have had some influence upon the final outcome of the hearings. In any case, when the Committee did vote, 11-6, not to certify Anastaplo for admission, not one member who asked any question Anastaplo had refused to answer voted in his favor.

The reasons for Anastaplo’s position have been stated by him time and again-first, to the Committee and, later, in the briefs and oral arguments he presented in his own behalf, both before this Court and before the Supreme Court of Illinois. From a legal standpoint, his position throughout has been that the First Amendment gave him a right not to disclose his political associations or his religious beliefs to the Committee. But his decision to refuse to disclose these associations and beliefs went much deeper than a bare reliance upon what he considered to be his legal rights. The record shows that his refusal to answer the Committee’s question stemmed primarily from his belief that he had a duty, both to society and to the legal profession, not to submit to the demands of the Committee because he believed that the questions had been asked solely for the purpose of harassing him because he had expressed agreement with the assertion of the right of revolution against an evil government set out in the Declaration of Independence. His position was perhaps best stated before the Committee in his closing remarks at the final session:

‘It is time now to close. Differences between us remain. I leave to others the sometimes necessary but relatively easy task of praising Athens to Athenians. Besides, you should want no higher praise than what I have said about the contribution the bar can make to republican government. The bar deserves no higher praise until it makes that contribution. You should be grateful that I have not made a complete submission to you, even though I have cooperated as fully as good conscience permits. To the extent I have not submitted, to that extent have I contributed to the solution of one of the most pressing problems that you, as men devoted to character and fitness, must face. This is the problem of selecting the standards and methods the bar must employ if it is to help preserve and nourish that idealism, that vital interest in the problem of justice, that so often lies at the heart of the intelligent and sensitive law student’s choice of career. This is an idealism which so many things about the bar, and even about bar admission practices, discourage and make unfashionable to defend or retain. The worthiest men live where the rewards of virtue are greatest.

‘I leave with you men of Illinois the suggestion that you do yourselves and the bar the honor, as well as the service, of anticipating what I trust will be the judgment of our most thoughtful judges. I move therefore that you recommend to the Supreme Court of Illinois that I be admitted to the bar of this State. And I suggest that this recommendation be made retroactive to November 10, 1950 when a young Air Force veteran first was so foolish as to continue to serve his country by daring to defend against a committee on character and fitness the teaching of the Declaration of Independence on the right of revolution.’

The reasons for the Committee’s position are also clear. Its job, throughout these proceedings, has been to determine whether Anastaplo is possessed of the necessary good moral character to justify his admission to the Bar of Illinois. In that regard, the Committee has been given the benefit of voluminous affidavits from men of standing in their professions and in the community that Anastaplo is possessed of an unusually fine character. Dr. Alexander Meiklejohn, Professor of Philosophy, Emeritus, at the University of Wisconsin, for example, described Anastaplo as ‘intellectually able, a hard, thorough student and moved by high devotion to the principles of freedom and justice.’ Professor Malcolm P. Sharp of the University of Chicago Law School stated: ‘No question has ever been raised about his honesty or his integrity, and his general conduct, characterized by friendliness, quiet independence, industry and courage, is reflected in his reputation.’ Professor Roscoe T. Steffen of the University of Chicago Law School said: ‘I know of no one who doubts his honesty and integrity.’ Yves R. Simon, Professor of Philosophy at the University of Chicago, said: ‘I consider Anastaplo as a young man of the most distinguished and lofty moral character. Everybody respects him and likes him.’ Angelo G. Geocaris, a practicing attorney in the City of Chicago, said of Anastaplo: ‘His personal code of ethics is unexcelled by any practicing attorney I have met in the state of Illinois.’ Robert J. Coughlan, Division Director of a research project at the University of Chicago, said: ‘His honesty and integrity are, in my opinion, beyond question. I would highly recommend him without the slightest reservation for any position involving the highest or most sacred trust. The applicant is a rare man among us today: he has an inviolable sense of Honor in the great traditions of Greek culture and thought. If admitted to the American Bar, he could do nothing that would not reflect glory on that institution.’

These affidavits and many more like them were presented to the Committee. Most of the statements came from men who knew Anastaplo intimately on the University of Chicago campus where Anastaplo has remained throughout the proceedings here involved, working as a research assistant and as a lecturer in Liberal Arts and studying for an advanced degree in History and Social Sciences. Even at the present time, he is still there preparing his doctoral dissertation which, understandably enough, is tentatively entitled ‘The Historical and Philosophical Background of the First Amendment of the Constitution of the United States.’

The record also shows that the Committee supplemented the information it had obtained about Anastaplo from these affidavits by conducting informal independent investigations into his character and reputation. It sent agents to Anastaplo’s home town in southern Illinois and they questioned the people who knew him there. Similar inquiries were made among those who knew him in Chicago. But these intensive investigations apparently failed to produce so much as one man in Chicago or in the whole State of Illinois who could say or would say, directly, indirectly or even by hearsay, one thing derogatory to the character, loyalty or reputation of George Anastaplo, and not one man could be found who would in any way link him with the Communist Party. This fact is particularly significant in view of the evidence in the record that the Committee had become acquainted with a person who apparently had been a member of a Communist Party cell on the University of Chicago campus and that this person was asked to and did identify for the Committee every member of the Party whom he knew.

In addition to the information it had obtained from the affidavits and from its independent investigations, the Committee had one more important source of information about Anastaplo’s character. It had the opportunity to observe the manner in which he conducted himself during the many hours of hearings before it. That manner, as revealed by the record before us and undenied by any findings of the Committee to the contrary, left absolutely nothing to be desired. Faced with a barrage of sometimes highly provocative and totally irrelevant questions from men openly hostile to his position, Anastaplo invariably responded with all the dignity and restraint attributed to him in the affidavits of his friends. Moreover, it is not amiss to say that he conducted himself in precisely the same manner during the oral argument he presented before this Court.

Thus, it is against the background of a mountain of evidence so favorable to Anastaplo that the word ‘overwhelming’ seems inadequate to describe it that the action of the Committee in refusing to certify Anastaplo as fit for admission to the Bar must be considered. The majority of the Committee rationalized its position on the ground that without answers to some of the questions it had asked, it could not conscientiously perform its duty of determining Anastaplo’s character and fitness to be a lawyer. A minority of the Committee described this explanation as ‘pure sophistry.’ And it is simply impossible to read this record without agreeing with the minority. For, it is difficult to see what possible relevancy answers to the questions could have had in the minds of these members of the Committee after they had received such completely overwhelming proof beyond a reasonable doubt of Anastaplo’s good character and staunch patriotism. I can think of no sound reason for further insistence upon these answers other than the very questionable, but very human, feeling that this young man should not be permitted to resist the Committee’s demands without being compelled to suffer for it in some way.

It is intimated that the Committee’s feeling of resentment might be assuaged and that Anastaplo might even be admitted to the Bar if he would only give in to the demands of the Committee and add the requested test oath to the already overwhelming proof he has submitted to establish his good character and patriotism. In this connection, the Court says: ‘We find nothing to suggest that he would not be admitted now if he decides to answer, assuming of course that no grounds justifying his exclusion from practice resulted. In short, petitioner holds the key to admission in his own hands.’ However well this familiar phrase may fit other cases, it does not fit this one. For the attitude of the Committee, as revealed by the transcript of its hearings, does not support a belief that Anastaplo can gain admission to the Illinois Bar merely by answering the Committee’s questions, whatever answers he should give. Indeed, the Committee’s own majority report discloses that Anastaplo’s belief in the ‘right of revolution’ was regarded as raising ‘a serious question’ in the minds of a majority of the Committee with regard to his fitness to practice law and that ‘certain’ members of that majority (how many, we cannot know) have already stated categorically that they will not vote to admit an applicant who expresses such views. Nor does the opinion of the Illinois Supreme Court indicate that Anastaplo ‘holds the key to admission in his own hands.’ Quite the contrary, that court’s opinion evidences an almost insuperable reluctance to upset the findings of the Committee. Certainly, that opinion contains nothing that even vaguely resembles the sort of implicit promise that would justify the belief asserted by the majority here. And, finally, I see nothing in the majority opinion of this Court, nor in the majority opinions in the companion cases decided today, that would justify a belief that this Court would unlock the door that blocks his admission to the Illinois Bar if Anastaplo produced the ‘key’ and the state authorities refused to use it.

The opinion of the majority already recognizes that there is not one scrap of evidence in the record before us ‘which could properly be considered as reflecting adversely upon his (Anastaplo’s) character or reputation or on the sincerity of the beliefs he espoused before the Committee,’ and that the Committee had not received any "information from any outside source which would cast any doubt on applicant’s loyalty or which would tend to connect him in any manner with any subversive group." The majority opinion even concedes that Anastaplo was correct in urging that the questions asked by the Committee impinged upon the freedoms of speech and association guaranteed by the First and Fourteenth Amendments. But, the opinion then goes on to hold that Anastaplo can nonetheless be excluded from the Bar pursuant to ‘the State’s interest in having lawyers who are devoted to the law in its broadest sense .’ I cannot regard that holding, as applied to a man like Anastaplo, as in any way justified. Consider it, for example, in the context of the following remarks of Anastaplo to the Committee-remarks the sincerity of which the majority does not deny:

‘I speak of a need to remind the bar of its traditions and to keep alive the spirit of dignified but determined advocacy and opposition. This is not only for the good of the bar, of course, but also because of what the bar means to American republican government. The bar when it exercises self-control is in a peculiar position to mediate between popular passions and informed and principled men, thereby upholding republican government. Unless there is this mediation, intelligent and responsible government is unlikely. The bar, furthermore, is in a peculiar position to apply to our daily lives the constitutional principles which nourish for this country its inner life. Unless there is this nourishment, a just and humane people is impossible. The bar is, in short, in a position to train and lead by precept and example the American people.’

These are not the words of a man who lacks devotion to ‘the law in its broadest sense.’

The majority, apparently considering this fact irrelevant because the State might possibly have an interest in learning more about its Bar applicants, decides that Anastaplo can properly be denied admission to the Bar by purporting to ‘balance’ the interest of the State of Illinois in ‘having lawyers who are devoted to the law in its broadest sense’ against the interest of Anastaplo and the public in protecting the freedoms of the First Amendment, concluding, as it usually does when it engages in this process, that ‘on balance’ the interest of Illinois must prevail. If I had ever doubted that the ‘balancing test’ comes close to being a doctrine of governmental absolutism-that to ‘balance’ an interest in individual liberty means almost inevitably to destroy that liberty-those doubts would have been dissipated by this case. For this so-called ‘balancing test’-which, as applied to the First Amendment, means that the freedoms of speech, press, assembly, religion and petition can be repressed whenever there is a sufficient governmental interest in doing so-here proves pitifully and pathetically inadequate to cope with an invasion of individual liberty so plainly unjustified that even the majority apparently feels compelled expressly to disclaim ‘any view upon the wisdom of the State’s action.’

I, of course, wholeheartedly agree with the statement of the majority that this Court should not, merely on the ground that such action is unwise, interfere with governmental action that is within the constitutional powers of that government. But I am no less certain that this Court should not permit governmental action that plainly abridges constitutionally protected rights of the People merely because a majority believes that on ‘balance’ it is better, or ‘wiser,’ to abridge those rights than to leave them free. The inherent vice of the ‘balancing test’ is that it purports to do just that. In the context of its reliance upon the ‘balancing test,’ the Court’s disclaimer of ‘any view upon the wisdom of the State’s action’ here thus seems to me to be wholly inconsistent with the only ground upon which it has decided this case.

Nor can the majority escape from this inconsistency on the ground that the ‘balancing test’ deals only with the question of the importance of the existence of governmental power as a general matter without regard to the importance of its exercise in a particular case. For in Barenblatt v. United States the same majority made it clear that the ‘balancing test’ is to be applied to the facts of each particular case (360 U.S. 109, 79 S.Ct. 1093): ‘Where First Amendment rights are asserted to bar governmental interrogation resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown.’ Thus the Court not only ‘balances’ the respective values of two competing policies as a general matter, but also ‘balances’ the wisdom of those policies in ‘the particular circumstances shown.’ Thus, the Court has reserved to itself the power to permit or deny abridgement of First Amendment freedoms according to its own view of whether repression or freedom is the wiser governmental policy under the circumstances of each case.

The effect of the Court’s ‘balancing’ here is that any State may now reject an applicant for admission to the Bar if he believes in the Declaration of Independence as strongly as Anastaplo and if he is willing to sacrifice his career and his means of livelihood in defense of the freedoms of the First Amendment. But the men who founded this country and wrote our Bill of Rights were strangers neither to a belief in the ‘right of revolution’ nor to the urgency of the need to be free from the control of government with regard to political beliefs and associations. Thomas Jefferson was not disclaiming a belief in the ‘right of revolution’ when he wrote the Declaration of Independence. And Patrick Henry was certainly not disclaiming such a belief when he declared in impassioned words that have come on down through the years: ‘Give me liberty or give me death.’ This country’s freedom was won by men who, whether they believed in it or not, certainly practiced revolution in the Revolutionary War.

Since the beginning of history there have been governments that have engaged in practices against the people so bad, so cruel, so unjust and so destructive of the individual dignity of men and women that the ‘right of revolution’ was all the people had left to free themselves. As simple illustrations, one government almost 2,000 years ago burned Christians upon fiery crosses and another government, during this very century, burned Jews in crematories. I venture the suggestion that there are countless multitudes in this country, and all over the world, who would join Anastaplo’s belief in the right of the people to resist by force tyrranical governments like those.

In saying what I have, it is to be borne in mind that Anastaplo has not indicated, even remotely, a belief that this country is an oppressive one in which the ‘right of revolution’ should be exercised. Quite the contrary, the entire course of his life, as disclosed by the record, has been one of devotion and service to his country-first, in his willingness to defend its security at the risk of his own life in time of war and, later, in his willingness to defend its freedoms at the risk of his professional career in time of peace. The one and only time in which he has come into conflict with the Government is when he refused to answer the questions put to him by the Committee about his beliefs and associations. And I think the record clearly shows that conflict resulted, not from any fear on Anastaplo’s part to divulge his own political activities, but from a sincere, and in my judgment correct, conviction that the preservation of this country’s freedom depends upon adherence to our Bill of Rights. The very most that can fairly be said against Anastaplo’s position in this entire matter is that he took too much of the responsibility of preserving that freedom upon himself.

This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that Anastaplo has many of the qualities that are needed in the American Bar. It shows, not only that Anastaplo has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost. It is such men as these who have most greatly honored the profession of the law-men like Malsherbes, who, at the cost of his own life and the lives of his family, sprang unafraid to the defense of Louis XVI against the fanatical leaders of the Revolutionary government of France -men like Charles Evans Hughes, Sr., later Mr. Chief Justice Hughes, who stood up for the constitutional rights of socialists to be socialists and public officials despite the threats and clamorous protests of self-proclaimed superpatriots -men like Charles Evans Hughes, Jr., and John W. Davis, who, while against everything for which the Communists stood, strongly advised the Congress in 1948 that it would be unconstitutional to pass the law then proposed to outlaw the Communist Party -men like Lord Erskine, James Otis, Clarence Darrow, and the multitude of others who have dared to speak in defense of causes and clients without regard to personal danger to themselves. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.

But that is the present trend, not only in the legal profession but in almost every walk of life. Too many men are being driven to become government-fearing and time-serving because the Government is being permitted to strike out at those who are fearless enough to think as they please and say what they think. This trend must be halted if we are to keep faith with the Founders of our Nation and pass on to future generations of Americans the great heritage of freedom which they sacrificed so much to leave to us. The choice is clear to me. If we are to pass on that great heritage of freedom, we must return to the original language of the Bill of Rights. We must not be afraid to be free’

‘ if a government gets bad enough, the people have a ‘right of revolution.’ ~ George Anastaplo

That’s why I like you George… what you just said right up there… you’re a principled man and a patriot… you’re a fiesty guy indeed as the following exchange points out…

This is from the transcript of the committee questioning George…

‘Commissioner Mitchell: When you say ‘believe in revolution,’ you don’t limit that revolution to an overthrow of a particular political party or a political government by means of an election process or other political means?

‘Mr. Anastaplo: I mean actual use of force.

‘Commissioner Mitchell: You mean to go as far as necessary?

‘Mr. Anastaplo: As far as Washington did, for instance.

‘Commissioner Mitchell: So that would it be fair to say that you believe the end result would justify any means that were used?

‘Mr. Anastaplo: No, the means proportionate to the particular end in sight.

‘Commissioner Mitchell: Well, is there any difference from your answer and my question?

‘Mr. Anastaplo: Did you ask-

‘Commissioner Mitchell: I asked you whether you thought that you believe that if a change, or overthrow of the government were justified, that any means could be used to accomplish that end.

‘Mr. Anastaplo: Now, let’s say in this positive concrete situation-I am not quite sure what it means in abstract.

‘Commissioner Mitchell: I will ask you in detail. You believe that assuming the government should be overthrown, in your opinion, that you and others of like mind would be justified in raising a company of men with military equipment and proceed to take over the government of the United States, of the State of Illinois?

‘By shaking your head do you mean yes?

‘Mr. Anastaplo: If you get to the point where overthrow is necessary, then overthrow is justified. It just means that you overthrow the government by force.

‘Commissioner Mitchell: And would that also include in your mind justification for putting a spy into the administrative department, one or another of the administrative departments of the United States or the government of the State of Illinois?

‘Mr. Anastaplo: If you got to the point you think the government should be overthrown, I think that would be a legitimate means.

‘Commissioner Mitchell: There isn’t any difference in your mind in the propriety of using a gun or using a spy?

‘Mr. Anastaplo: I think spies have been used in quite honorable causes.

‘Commissioner Mitchell: Your answer is, you do think so?

‘Mr. Anastaplo: Yes.

‘Commissioner Baker: Let me ask you a question. Are you aware of the fact that the Department of Justice has a list of what are described as subversive organizations?

‘Mr. Anastaplo: Yes.

‘Commissioner Baker: Have you ever seen that list?

‘Mr. Anastaplo: Yes.

‘Commissioner Baker: Are you a member of any organization that is listed on the Attorney General’s list, to your knowledge? (No answer.) Just to keep you from having to work so hard mentally on it, what organizations-give me all the organizations you are affiliated with or are a member of. (No answer.) That oughtn’t to be too hard.

‘Mr. Anastaplo: Do you believe that is a legitimate question?

‘Commissioner Baker: Yes, I do. We are inquiring into not only your character, but your fitness, under Rule 58. We don’t compel you to answer it. Are you a member of the Communist Party?’

George lost the case at the US Supreme Court but it was his principled approach to not answering the question in the first place and his ten year battle to overcome the ramifications of that refusal that earned him the respect of many who respect a person who lives a principle centered life.

He never would practice law, but he would become a passionate and inspiring teacher according to many.

He’s been nominated for the Nobel Peace Prize twelve times.

And they sat him down for dinner next to ‘Viewminder’ a street photographer… who was only nominated for the Peace Prize once… by himself.

Crowned ‘The Socrates of Chicago’ George has written more books than some of the people I know have read…

"He has written books and articles analyzing the influence of Greek literature on American politics, on the Thinker as Artist, and the Artist as Thinker, on the O. J. Simpson trial, on lights at Wrigley Field, on McCarthyism, on hate speech, on lawyers, on judges, on the Bible, on ethics, on Abraham Lincoln, on the remodeling of Soldier field, and I have only touched the surface of his eclecticism. ~ ‘George Anastaplo’ by Abner Mikva

George Anastaplo I admire you.

You saw something that was wrong and you refused to be a part of it…

Even if that meant it would create difficulty in your life and in your pursuit of the career that you studied so long and hard for.

You stood true to your convictions.

You stood up for what you believe in.

You never backed down.

You’re an inspiring man and a patriot George Anastaplo.

They outta give out a prize for that.

Faces on the street
Chicago 7.9.11
35mm 1.8 SOOC with a ping of contrast

7.20.11