Monday, November 12, 2012
What about the First Amendment?
Tracie Egan Morrissey was extremely upset (rightfully so, I guess) about a rash of racist and hate-filled tweets that followed Barack Obama's re-election last Tuesday, some of them from high school students. In a follow-up post on Friday, Morrissey displayed a number of the tweets from high-schoolers (identified by name and school), reported on her efforts to urge administrators at their high schools to punish the students for violating the student code of conduct or some such, and reported on the responses (or non-responses) of school officials. Katy Waldman at Slate wrote a take-down of these efforts, pointing out that teenagers think, say, and do stupid things all the time; while calling attention to the tweets is fair game, trying to have them punished for them seemed "petty and vindictive."
Worse, Morrissey's stunt ignores the First Amendment. Most of the tweeters she identifies attend public school, so I am not sure on what basis a school should be able to punish these students or why she believes urging them to do so is a good idea. The scope of student speech is ever-narrowing, particularly on-line speech, which neither courts nor school administrators seem to understand. But none of the tweets that Morrissey describes should fall within the ambit of school regulation. There is no indication they were sent during school hours or that they were directed to the school; the students were talking to the public at large, engaging (however stupidly) in the broader public dialogue. Schools should be encouraging that engagement. And while we hope schools educate their students about the need for civil discourse, it is not and should not be their role to police students outside the school walls. Similarly, school "codes of conduct" are not intended to control student conduct 24/7. I would be quite troubled if any of the schools tried to do so or if a court allowed them to.
This also makes Morrissey's piece troublingly demogogic. She is attempting to shame school officials to drastically expand their authority in a way that should raise First Amendment alarms, to shame school administrators for not violating the First Amendment rights of their students, and to set the students up to have their rights violated by over-officious school officials.
Finally, a word to the student authors (as well as everyone else saying stupid things on Twitter or anyplace else on the interwebs): Your account was not hacked, so just stop. I will defend to the death your right to air your insipid thoughts in a visible public forum 140 characters at a time. But if you go there, own what you say and let the chips fall where they may.
Sunday, November 11, 2012
Catalyzing Sports Fans (and the Rest of Us)--early draft now available
I'm happy to say that my co-authors Howard Wasserman, Michael McCann, and I have a short shitty first draft to read -- Catalyzing Sports Fans (and the Rest of Us) -- if anyone's interested. The paper is *not* about retributive justice in any dimension. It's about sports, free speech, contracts, taxes, crowds, opera, charity, and jurisdictional competition, etc. In short, it's about nothing I know anything about. So I hope you'll see fit to set me straight. Let me know via email if you'd like to read an early version please. I've pasted our working abstract below.
In most major professional sports, the desires of fans are of secondary significance. We think this could be different, and we offer two variations on a theme in which fans can be more influential stakeholders, particularly with respect to player trades or retention deals. We propose the development of Fan Action Committees (FACs).
Whether through enriching players directly, or through contributions to a player’s foundation or favorite charitable cause (our preferred approach), we examine the uneasy case for FACs. After anticipating objections and obstacles under current rules to their development, we offer some reflections about how the FAC model can transform, well, just about all other realms of human endeavor where third parties are benefited or harmed by agreements between two other parties.
Monday, November 05, 2012
This sign is on a house in my neighborhood in Miami-Dade County. The owners had been displaying an Obama sign for a couple of weeks, which was no longer there on Saturday (Jen and I noticed it and actually discussed whether the owner had taken it down or it had been stolen). This new sign, with the added message, was back this afternoon. This is not the sole example of alleged sign theft I have seen. Another house, displaying a number of Romney signs, included a homemade one reading "Obama Vandals, stealing only stiffens our resolve," which I infer means they also had signs stolen or destroyed.
I do not know what it means for something to be Un-American or American; I certainly do not want anyone defining for me (nor do I have any interest in defining) what is or is not "American." I am reading the sign to say something like "stealing signs is inconsistent with the freedom of speech, which so many think of as a core American value." If so, I want to push back on that.
I previously descibed what I call symbolic counter-speech, in which one counter-speaks (in the Brandeisian sense) to a symbol using the symbol itself as the vehicle for the counter-speech. I identified three forms of symbolic counter-speech: 1) disengaging from the symbol (think Barnette); 2) confronting it with a competing, overriding symbol; and 3) attacking, often by destroying or eliminating, the symbol itself. Stealing a yard sign falls within the third category. The homeowner was obviously expressing his support for President Obama by displaying the sign (in a medium that the Supreme Court has recognized as uniquely important). Whoever took the sign was counter-speaking, expressing his opposition to Obama, by attacking and eliminating the supporting symbol. That is an unquestionably expressive act.
This does not mean the expressive act is unconditionally protected by the First Amendment, of course. Were they to find the thief, he could not successfully assert the First Amendment as a defense to a charge of theft, vandalism, or some other neutral, non-speech legal rule. So his expressive interests yield, in this situation, to the homeowner's interests in his private property. But that does not mean the person who stole the sign was not exercising that core American value of free speech.
One other thing. The new yard sign is two-sided, placed so that both sides can be seen by someone on the street. But the added message only was placed on one side; it was printed out on a sheet of white see-through printer paper. The resulting effect, which you can see after the jump, is obviously unintended, but highly ironic in light of much of the dislike for President Obama.
Friday, October 26, 2012
The remedy to be applied is distancing speech
I have not written about the numerous controversies that have sprung up over anti-Islam ads by the American Freedom Defense Initiative on public-transit billboards throughout the country. The ads feature the slogan "In any war between the civilized man and the savage, support the civilized man" and urge people to "Support Israel/Defeat Jihad." Transit authorities have sought various ways to deal with ads that many find offensive and which have sparked fears of both anti-Muslim discrimination and Muslim violence. Efforts to block the ads have, quite correctly, failed--transit billboard spaces are public fora and the objection is pretty clearly content- and viewpoint-based.
One solution to post disclaimers next to the AFDI ads, stating that Muni "doesn't support the message" (San Francisco's Muni) or, for those who want legal detail, "This is a paid advertisement sponsored by [sponsor]. The advertising space is a designated public forum and does not imply WMATA's endorsement of any views express." (Washington, D.C.'s WMATA). Pam Geller, a conservative blogger, co-founder of AFDI, and driving force behind this ad campaign, derided the San Francisco plan as "the manifestation of Sharia in Western society," which seems just a tad overwrought.Obviously, government can respond to private speech in a public forum; a disclaimer distancing the government from AFDI's message is one very good way to respond to or oppose a message being espoused in the forum. We might question whether it is necessary, whether anyone would seriously believe the transit authority endorses every message on every billboard in the Metro stop. But making that disassociation explicit seems an appropriate way for government to proceed.
But there arguably is something different at work here than simple government speech. Here, the transit authorities are responding to a message through and with the message itself. The government is slapping its own message right next to (and as part of) the private message and using the original message as the vehicle for its own. This then looks less like government counter-speaking to the private speaker than the private speaker being compelled to counter-speak to itself. By making the counter-speech part of the private speech, it looks a lot like mandatory warnings, which ordinarily raise concerns outside the commercial speech context. So the transit authority could post signs throughout the forum explaining designated public forums, its obligation to accept the offensive ads, and its non-endorsement of the message; but its power to place that sign next to particular billboards from which it wants to distance itself is more limited.
Alternatively, perhaps the disclaimer is better understood not as government counter-speech (which receives no First Amendment scrutiny) and more as a condition on, or term of access to, the traditional public forum (akin with having to pay a fee), which does receive constitutional scrutiny. Then the question is how broadly government applies the new practice. It would be plainly unconstitutional if the government singled out only this speaker or message for a disclaimer or if it singled out only certain speakers or messages in content-based terms. The WMATA policy apparently will apply to all "viewpoint" ads, a non-legal term that I am guessing means noncommercial ads. That is better than only targeting AFDI. But distinguishing commercial and non-commercial is still content-based, so WMATA must justify the distinction; the likely argument is that only noncommercial speech requires a disclaimer because only noncommercial speech creates a risk that the authority will be associated with the controversial or offensive message (although I wonder how true that is). Assuming that these disclaimers are more than ordinary government speech and thus are subject to some First Amendment scrutiny, the transit authorities would be better off using disclaimers to all ads of all kinds.
Monday, October 15, 2012
A New Essay on the Roberts Court and the Press: Not a Free Press Court?
The abstract for my new essay , Not a Free Press Court?, is as follows:
The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions directly involving the traditional media are the two decisions in FCC v. Fox Television Stations, both of which avoided the looming First Amendment issue they contained, and the only decision involving new media is Brown v. Entertainment Merchants Ass’n. This essay, taking its cue from Erwin Chemerinsky’s recent lecture, Not a Free Speech Court, attempts to read the jurisprudential tea leaves to determine what lines of argument the media might use and how they might fare in future cases before the Roberts Court. Though the evidence is scanty, the Roberts Court appears committed to protecting unpopular speech, limiting the spread of “medium-specific” First Amendment doctrines to new media, and broadly defining speech of public concern. As far as the media are concerned, however, this good news may be overshadowed by the bad. Not only has the Court sidestepped two opportunities to free broadcast media from the FCC’s content-based regulatory oversight, but, what is worse, the Court appears to see the “Fourth Estate” as little more than a slogan media corporations bandy about to further their selfish interests. In light of these observations,perhaps the media should be grateful that the Roberts Court has addressed few cases directly involving them and should hope the trend continues.
I wrote this small essay, which is now available on ssrn, for a wonderful symposium at BYU Law School on the Roberts Court and the Press. The essay is forthcoming in 2012 BYU L. Rev. __ (2012).
Tuesday, October 02, 2012
What were they thinking? or Not so bad?
A colleague sent me this story from the Jewish Daily Forward: Amazon will no longer sell a 250-piece Jigsaw puzzle featuring a picture of Dachau Concentration Camp. The puzzle, marketed as appropriate for ages 8-and-up, met with objections from German legislators, as well as the head of the Dachau memorial.
I want to raise two points and I ask them honestly, not trying to be provocative.
1) I was struck by the comment that the head of the memorial wanted an investigation into whether prior sales of the puzzle were unlawful under German law, once again demonstrating how the U.S. departs from other countries on the subject of the freedom of speech. We can debate whether the puzzle is offensive or in bad tatse. But unlawful?
2) Is this really that offensive? The picture was taken by Robert Harding, a well-known international travel photograph who has had many photos made into puzzles. He also has taken a number of photos of Dachau. The picture itself is not disrespectful (at least reports don't suggest that it is); it is an image of a historical place where something awful happened, something that we should remember. I assume no one would object to anyone selling the photograph (although maybe I am wrong on that).
It seems to me that puzzles are simply one way of creating or presenting a picture or photograph. There is nothing wrong with having that picture be somber or meaningful or emotional, as long as the picture created is respectful or tasteful. We have puzzles of great works of art; why not also of photos of historically significant places or events. There were comments in the story about a "toy" being a "trivialization" of the events there. But this is not Dachau action figures or Dachau trading cards. Perhaps it is inappropriate for children and eight is too young as the target audience for the puzzle. But the call was for a total ban on (and suggestion of illegality of) all sales, not just a change in marketing.
Update: I am guesting at CoOp this month and I cross-posted this. One commenter over there suggested that anything that facilitates "never forget," even in the form of a jigsaw puzzle, serves a beneficial purpose. He also poses a great hypo: What would our reaction have been if Iran had banned those puzzles because they acknowledged Dachau as a special place, thus acknowledging the Holocaust? Would we be troubled by a combination of denial of free expression and denial of the Holocaust?
Monday, September 10, 2012
Gee, that's big of you
"Upon reflection, he has his First Amendment rights," Del. Emmett C. Burns Jr., a Baltimore County Democrat, said in a telephone interview. "And I have my First Amendment rights. … Each of us has the right to speak our opinions. The football player and I have a right to speak our minds."
Glad we got that straight. Still, it is frightening that it took "reflection" for a public official to realize that "the football player" has First Amendment rights and the same right as him to speak his opinion. This does show that Hadar was onto something in her comment to the first post--Burns does regard football players as objects and not fully informed members of society.
Saturday, September 08, 2012
Activist athletes, tone-deaf politicians
Now here's a fun free-speech controversy.
On Thursday, the story got out that Emmett C. Burns, Jr., a member of the Maryland House of Delegates, had sent a letter to the principal owner of the Baltimore Ravens, expressing horror that a member of the Ravens, Brendan Ayanbadejo, had spoken in support of a pending ballot initiative that would establish marriage equality in Maryland. Burns asked the team to "take the necessary action . . . to inhibit such expressions from your employee and that he be ordered to cease and desist such injurious actions." Ayanbadejo responded on Twitter by saying "Football is just my job it's not who I am. I am an American before anything. And just like every American I have the right to speak!!!" (wow, maybe you can make good points in 140 characters). Vikings punter Chris Kluwe defended Ayanbadejo on Deadspin and has been getting some attention for his response, which mostly hits (in an inimitable style) the key points.
Burns obviously should not be taken seriously or given too much credit for having put any real thought or principle into the letter. What I find disturbing is the stated belief that, as a football player, Ayanbadejo has less of a right to speak out on public issues--that it is wrong for him to "try to sway public opinion one way or another" simply because he is a professional athlete. I haven't heard of Burns sending letters to other employers in the state (such as Johns Hopkins University, the largest employer in Maryland) asking them to tell their employees to concentrate on their jobs. Modern athletes are frequently criticized for not being political and not taking a stand on public issues (recall Michael Jordan's infamous comment that "Republicans buy shoes, too"). Now, when an athlete is willing to take a stand, a public official insists that he is engaging in "injurious behavior" and should be silenced.
We have not heard any response from Burns since the story became public and my guess is we won't. As an unknown and not influential state legislator, he no doubt is basking in the attention, even if it all makes him look like a complete fool.
Update: The New York Times has a short piece on the controversy, mentioning a number of current and former players who have come out in support of marriage equality and arguing that it reflects a shift in the NFL's political culture.
Friday, August 31, 2012
More free speech and ideology
Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.
I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?
Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.
Scalia, judicial ideology, and flag burning
Dan flags Richard Posner's negative review of Justice Scalia's new book (with Brian Garner), a review which largely speaks for itself. I wanted to delve into a side issue regarding Justice Scalia's vote in the flag-burning cases and what it says about his judicial philosophy.
As Posner describes it, Scalia tries to mount a preemptive defense to the charge that their interpretive theory of "textual originalism" is not political or inherently conservative by pointing to "liberal" decisions he has joined. His choice--the flag-burning cases of Texas v. Johnson and United States v. Eichman. Indeed, Johnson and Eichman, and Scalia's votes in those cases, have for 20+ years been the go-to exhibit to demonstrate that the justices are not governed by political preferences. Posner argues that this is a "curious" example to use in defense of textual originalism, since the First Amendment doctrine that led (properly) to constitutional protection for flag burning is a modern product, not grounded in the Framers' understanding of the freedom of speech. Posner argues that Scalia and Garner repeatedly praise Blackstone, whose conception of free speech was limited to prohibiting prior restraints but not post-speech punishment.
More fundamentally, using a few free speech cases to demonstrate his ideological neutrality is strange because the First Amendment should be, in theory, deologically neutral. That Scalia does not personally approve of flag burning is beside the point; the goal is that he is committed to a principle of occasionally caustic criticism. Or, if Scalia wants to use his speech-protective votes to show his open-mindedness, why not focus on R.A.V. v. City of St. Paul, where he wrote a broad opinion invalidating an ordinance prohibiting cross burning.
Ironically, there is a different area in which Scalia's votes have been ideologically unexpected while also arguably adhering to some form of originalism--the Confrontation Clause cases of the last decade, beginning with Crawford v. Washington. Writing for the Court and adopting an explicitly historical approach to the Sixth Amendment (with prolonged discussion of Marianist ex parte affidavits and the treason trial of Sir Walter Raleigh), Scalia pushed the Court down an analytical path that had the potential to greatly constrain the ability of government to admit a range of hearsay statements against criminal defendants. And when the Court backed away from some broader applications of Crawford, Scalia remained in outraged dissent. He stuck to his historical guns, even as Justice Sotomayor took a shot at his approach by insisting that the murder investigation at issue in Bryant was "readily distinguishable from the "treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king," post, at 1173, about which Justice SCALIA's dissent is quite concerned." In fact, Scalia closed his Bryant dissent with a downright Brennanesque flourish:
For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.
This is a true example both of originalism yielding liberal results; it would be nice to see Scalia and others focus on this example and not on free speech cases that reflect a very different analysis and a different set of expectations.
Wednesday, August 29, 2012
A Reminder to Hiring Committees: Don't Google The Candidates?
Here's some advice to hiring committee members travelling to the AALS conference: While it may be natural to search the internet for additional information about candidates for faculty positions, how you use the information you find may subject your university to legal liability. Here are two cautionary tales involving university hiring to keep in mind.
Cautionary tale number one illustrates that the refusal to hire an employee based on information gleaned from social media can sometimes give rise to a discrimination claim under Title VII. Two years ago, the University of Kentucky faced a Title VII lawsuit brought by a rejected job applicant who claimed that the University refused to hire him based on information about his religious views found by the hiring committee during an Internet search. Gaskell v. University of Ky., 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. Nov. 23, 2010). Evidence in the case indicated that the chair of the department conducting the search asked the candidate about his religious beliefs, which the chairman had "personally" researched on the internet. In addition, an email from a staff member to hiring committee members during the process noted: "Clearly this man is complex and likely fascinating to talk with, but potentially evangelical." The case settled for $125,000 after a judge denied cross-motions for summary judgment.
Cautionary tale number two illustates that discrimination against hiring candidates on the basis of their political beliefs can subject state universities to liability for constitutional torts. This tale involves the University of Iowa's College of Law and the hiring of a legal writing instructor. In Wagner v. Jones, Teresa Wagner alleged that the College of Law refused to hire her because of her conservative political beliefs, and she sued under 42 U.S.C. § 1983. The trial court granted summary judgment to the college, but a panel of Eighth Circuit Court of Appeals reversed.
The Eighth Circuit determined that Wagner had made a sufficient claim of political discrimination to get to a jury. The court applied the following test (drawn from the Supreme Court's decision in Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle):
A plaintiff alleging First Amendment retaliation must first make a prima facie showing that (1) she engaged in conduct protected by the First Amendment; (2) she suffered an adverse employment action; and (3) the protected activity was a substantial or motivating factor in theemployer’s decision to take the adverse employment action. If a plaintiff makes this prima facie showing, then “a presumption of retaliation arises and the burden shifts to the defendant to advance a legitimate reason for the employment action.
The court found Wagner had presented evidence from which a jury could conclude that her polticial beliefs were a substantial or motivating factor not to hire her. Specifically, a deposition in the case indicated that the candidate's conservative views may have been discussed at a faculty meeting on her candidacy; there was also evidence that she was advised to hide the fact she'd been offered a job at Ave Maria during the interview process at the College of Law, and a contemporaneous email from an associate dean expressed concern that Wagner's politics could have played a part in the faculty's decision not to hire her. In addition, the court noted (several times!) that only one of the fifty faculty members of the College was a registered Republican at the time Wagner interviewed. There's more to the decision, of course, including full discussion of why the court rejected the argument that the Dean was entitled to qualified immunity. Regardless, the decision should be a reminder to hiring committee members at state schools not to use information found on the internet or anywhere else to discriminate against potential hires in violation of their First Amendment rights.
Posted by Lyrissa Lidsky on August 29, 2012 at 02:17 PM in Constitutional thoughts, Employment and Labor Law, First Amendment, Getting a Job on the Law Teaching Market, Life of Law Schools, Lyrissa Lidsky, Web/Tech | Permalink | Comments (10) | TrackBack
Saturday, August 25, 2012
More on mandatory tobacco warningsA divided panel of the D.C. Circuit on Friday struck down FDA regulations requiring graphic warnings on cigarette packages, affirming, through different legal analysis, the district court and parting company with the Sixth Circuit, which upheld the graphic requirements. This case almost certainly will be in SCOTUS in March or April--we have a circuit split, one (divided) decision striking down a provision of federal law, and fundamental disputes about standard of scrutiny and the government's power to inform and influence the public through compelled commercial speech. In addition, reading the opinions shows how these compelled-speech concerns tie back to both mandatory ultra-sound laws and regulations of crisis pregnancy centers, so this case has much broader effect.
Wednesday, August 15, 2012
Free Speech Rights in Social Media for College Students: Tatro v. U. of Minn.
I've been working on putting together a comprehensive list of social media cases with a First Amendment angle, and I recently came across the fascinating case of Tatro v. University of Minnesota, 816 N.W.2d 509 (Mn. 2012), which the Minnesota Suprem Court decided at the end of June. In case you missed reading this case in June, as I did, here's a summary.
The University of Minnesota sanctioned Tatro, a junior in its mortuary science program, by giving her a failing grade in her anatomy lab and forcing her to undergo a psychiatric evaluation because she posted “violent fantasy” (pretty tame stuff, really) and “satiric” comments about her human cadaver on Facebook. Posting or "blogging" about her cadaver violated the University’s “Anatomy Bequest Program” policies, the Mortuary Science Student Code of Professional Conduct, and the rules of her anatomy course. She appealed the University’s imposition of sanctions on her speech through a writ of certiorari. The Minnesota court of appeals affirmed the constitutionality of the sanctions, and the Minnesota Supreme Court granted further review and also affirmed, basing its decision on the unique nature of the professional program in which the student was enrolled.
The Minnesota Supreme Court treated the case as one of first impression, noting that the constitutional standard governing “a university’s imposition of disciplinary sanctions for a student’s Facebook posts that violate[ ] academic program rules” is “unsettled.” Although the court of appeals had resolved the case by applying Tinker v. Des Moines Inc. Comm. Sch., the Minnesota Supreme Court held this standard to be inappropriate because Tatro was disciplined not for the disruptiveness of her post but for its lack of “respect, discretion, and confidentiality in connection with work on human cadavers.” The Court instead determined that the appropriate standard was whether the university had “impose[d] sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.” (The Court did not cite any particular Supreme Court precedent as the basis for this standard). Applying this new standard, the Court concluded “that dignity and respect for the human cadaver constitutes an established professional conduct standard for mortuary science professionals.” Having previously noted that the asserted purpose of the University’s rules was to “educate students” about their ethical duties in the funeral service profession and “maintain the viability of the Anatomy Bequest Program,” the Court found the academic program rules to be narrowly tailored even though they completely barred (!) blogging about cadaver dissection or the anatomy lab. Tatro clearly violated these rules by giving her a “cadaver a name derived from a comedy film” and engaging in “widespread dissemination” of her comments, first through Facebook and later through the news media. Consequently, punishing her for violating them did not abridge her First Amendment rights.
This case raises some interesting issues, which I'd explore in more detail if I weren't staring down the barrel of multiple deadlines. Some obvious questions raised are as follows: Is a standard proscribing "disrespect" unconstitutionally vague? How can a complete ban be narrowly tailored? (Can't help thinking of Atul Gawande's writing in this context.) Why doesn't ordering a psychiatric evaluation for "unprofessional" speech violate the First Amendment? (The Court didn't address whether the speech constituted a "true threat.")
As a media law professor, I noted with interest that my fellow media law professor Raleigh H. Levine, from William Mitchell College of Law, was an amicus in the case for the ACLU, along with Teresa Nelson.
Thursday, August 02, 2012
Compelling patients to listen
On the heels of wave of state laws requiring doctors to provide and narrate ultrasounds and spout state-mandated speeches about medically dubious consequences of abortion comes the new policy regarding use and distribution of baby formula in New York City hospitals, part of the City's "Latch On" campaign to promote breast feeding. The new regs require hospitals to keep formula locked away and to sign it out to patients who take it, prohibit hospitals from giving away free samples to departing parents, and, most problematically, give parents who want formula a mandatory talk about why breastfeeding is best (even if not to come right out and say, as the doctor did here, that "forumula is evil").
The last prong is problematic, for the same reasons that the abortion speeches are problematic. It forces a one-sided message down the throat of a female (as always) patient, in a vulnerable position, presumed not to know any better or to be able to make decisions. Of course, we are not hearing any First Amendment complaints because the compelled speakers--the medical professionals--are on board with giving these speeches about nursing, in contrast to their views about ultrasounds and the abortion-suicide link.
The answer lies in a First Amendment liberty of the patient not to be compelled to listen to government-ordered messages, at least within certain conditions, such as the face-to-face intimacy of the doctor-patient relationship. I have not thought through the details, limits, or implications of this liberty (so any help is appreciated). But it seems to me that it partakes of some aspects of the captive audience and some aspects of Paul's institutional focus on how the medical profession should function and should be allowed to function. There also is a problem of one-sidedness; while breastfeeding may be the better option, the alternative is not affirmatively harmful to a child and should not be presented to patients as such. This liberty recognizes that there is a second party to doctor-patient conversations whose First Amendment interests should not be disregarded, particularly in a way that assumes lack of agency. Again, I welcome suggestions on how this liberty might take shape.
Recognizing this liberty still leaves it to be balanced against the government's interests in promoting public health positions. But it seems that there will be ways for government to gets its message (whether about abortion or the benefits of breast milk) across without compelling participation in a one-sided conversation.On a personal note, I come to this question having made a deliberate decision with my wife, with the full support of our pediatrician, to give our daughter formula, for a variety of reasons. I am happy to say she shows no deficit in any of the areas that breast milk is supposed to enhance. I also can say that hearing a speech suggesting that we were hurting her by our decision would have been incredibly harmful at the time. Of course, for every story such as ours there is a story going in the other direction. But maybe that means a one-size-fits-all speech is not the appropriate public-health solution.
Tuesday, July 03, 2012
How Not to Criminalize Cyberbullying
My co-author Andrea Pinzon Garcia and I just posted our essay, How Not to Criminalize Cyberbullying, on ssrn. In our essay, we provide a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which our essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, we contend that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, leading to pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate punishment of common childhood wrongdoing. Furthermore, statutes criminalizing cyberbullying are especially prone to overreaching in ways that offend the First Amendment, resulting in suppression of constitutionally protected speech, misdirection of prosecutorial resources, misallocation of taxpayer funds to pass and defend such laws, and the blocking of more effective legal reforms. Our essay attempts to give legislators the First Amendment guidance they need to distinguish the types
of cyberbullying that must be addressed by education, socialization, and stigmatization from those that can be remedied with censorship and criminalization. To see the abstract or paper, please click here or here.
Posted by Lyrissa Lidsky on July 3, 2012 at 03:44 PM in Article Spotlight, Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (0) | TrackBack
Friday, June 29, 2012
Thoughts on Alvarez
As a citizen and admitted liberal Democrat, my main focus going into yesterday was on ACA. As an academic, my real interest was in United States v. Alvarez, the challenge to the Stolen Valor Act. My partisanship trumped my intellectual interests for a day (there I go, ignoring our motto again), but now I'm back. Mary-Rose Papandrea does a good analysis at CoOp and she and I have similar First Amendment visions, so I generally agree. [Update: Margot Kaminski has more thoughts, including a tension between Justice Breyer's approach and the commercial speech doctrine and about other areas of in which the issue of protection for false speech may arise]
A few further thoughts.
1) All three opinions seem sedate, without a lot of the soaring rhetoric and efforts to separate the speech from the speaker that we often see in First Amendment cases, although Kennedy's lede ("Lying was his habit") is a nice touch. Maybe everyone was exhausted from everything else going on this week.2) Kennedy applies "exacting scrutiny," but using slightly different language. He speaks of a requirement that the restriction be "actually necessary" to achieve its interest and a requirement of a "direct causal link between the restriction imposed and the injury to be prevented." He pulls that language out of Entertainment Merchants (the violent video games case), although it was used in a slightly different context. It sounds as if this is invigorating the "least restrictive means" prong of the strict scrutiny test, but it is hard to know precisely what this new language means.
3) The entire Court was very accepting of the government having a compelling interest in maintaing the integrity of, and respect for, military awards. I am surprised that we did not see at least a mention of the various flag cases (Johnson or Barnette), where the Court rejected the idea that the government can restrain speech to ensure respect for government and government symbols. From the logic that false speech is not an unprotected category, it should follow that government cannot restrict false speech to serve that interest, just as it cannot restrict non-factual speech or advocacy to serve that interest.
This is especially so because Justice Alito spent some time talking about the harm caused by these false statements to "the very integrity of the military awards" and "the system of military honors." But is that any more subject to harm (justifying restrictions ons peech) than the integrity of the flag?
4) Breyer's concurring opinion is troubling, even more so because Kagan joined it. The latter is surprising because Kagan's scholarship indicated a far more speech-protective position than this opinion showed (although Mary-Rose points out that it is consistent with the argument she made as S.G. in Stevens). But Breyer is harkening back to early Justice Stevens, who lowered the level of scrutiny for low-value speech in two plurality opinions (see Young v. American Mini-Theaters and Pacifica). But Stevens never got a majority for this approach; Justice Powell always resisted the judicial role in judging the "value" of speech. I had thought that a majority of the Court had moved away from the idea that something content-based got anything less than strict scrutiny based on its perceived value. Breyer did not deny that the SVA was content based, but he insisted, after some discussion, that this intermediate scrutiny was appropriate. Breyer is at this point applying general balancing tests for all cases, looking for, as he says, "proportionality." This opinion reads a lot like his concurring opinion in Bartnicki.
5) I expected the Court to invalidate the law. My only hesitation had been the possibility that a majority might seize on the government's argument that false statements are protected only to the extent necessary to afford "breathing space" to true speech. In some ways, all three opinions adopted this view. The difference is the plurality finds a chill on speech from any government power to dictate truth or falsity, while Justice Breyer and Justice Alito are only concerned with speech about social sciences, arts, history, philosophy, etc.
6) This decision should mean that electoral lies statutes also cannot withstand First Amendment scrutiny. I suppose the distinction would be that this case turned on a harm principle and the absence of any harm caused by lies about military awards, while recognizing that other laws which punish lies (such as perjury and the prohibition on making false statements to the federal government) interfere with government processes, sufficient harm. Is there an argument that elections are government processes?
Thursday, June 28, 2012
Stolen Valor Act unconstitutional
Like Paul, I have been waiting for Alvarez as much as anything this term. The Court affirmed the Ninth Circuit and held the statute unconstitutional. Justice Kennedy wrote for a plurality (himself, the Chief, Giinsburg, Sotomayor), with Breyer and Kagan concurring in the judgment to suggest that the statute is unconstitutional as is, but could be redrafted. Alito (no suprise), Scalia, and Thomas dissent.
This explains why the case took so long. I am particularly intrigued by Kagan's vote; I had seen her staking out a highly speech-protective position, so I am curious that she did not go the whole way on this one. And the Chief is turning out to be an (unexpectedly?) strong proponent of a libertarian First Amendment.
Wednesday, June 27, 2012
In the one article I've written about Twiqbal, I examined the potential impact on constitutional and civil rights litigation, with a particular focus on a case out of the Ninth Circuit called Moss v. Secret Service, a § 1983 and Bivens action against Secret Service agents and local police who allegedly moved a group of protesters to an unfavorable position away from a restaurant where President Bush was eating pursuant to White House and Secret Service polic, while leaving a group of Bush supporters in place.
In the article, I criticized a 2009 panel decision dismissing the claim on Iqbal grounds, dismissing several allegations as conclusory (notably allegations of motive and policy) and taking a very crabbed reading of the remaining factual allegations. I argued that this demonstrated the problems with Iqbal, because it was not clear what more the plaintiffs could plead and that the plaintiffs likely would lose without getting past pleading, although the plaintiffs had been granted leave to replead. So much for my predictive power; two months ago, a Ninth Circuit panel held that the Second Amended Complaint was pled sufficiently and remanded the case to the district court to allow it to move forward.What changed? For one thing, the plaintiffs supported their allegations of a policy with detailed allegations, based on published reports, of past incidents of similar treatment of anti-Bush protesters. They also included a copy of the Presidential Advance Manual (presumably obtained through early discovery), which suggested a White House policy of working with the Secret Service to move protesters. For another, the new complaint clarified that the protesters were moved farther from the inn than the pro-Bush demonstrators. For another, the court was simply more willing to adopt plaintiff-friendly inferences. For example, the first court held that moving the protesters one block away did not plausibly lead to the inference of viewpoint discrimination, because the plaintiffs still could be heard; if the goal was to silence them, they would have been moved even further away. By contrast, the second court concluded that it is a plausible inference that they were moved to somplace from which their speech would be less visible or intelligible.
So what can we conclude about Iqbal from the developments in this case? On the good side, it shows that it is possible for civil rights plaintiffs, given another opportunity, to plead sufficient non-conclusory facts and to survive 12(b)(6). But I want to suggest that, despite the result in this case, Moss better demonstrates the problems with this pleading regime.
First, it shows that a plaintiff's ability to plead non-conclusory facts may depend entirely on circumstance. The plaintiffs were able to plead in the amended pleading because they had public reports of past similar incidents, which supported the inference of a policy. But suppose the prior incidents had not been publicized. Or suppose this case had been the first instance in which that policy had been implemented.
Second, it shows the inherent subjectivity in the analysis. The second panel found several inferences to be plausible that the first panel had not found plausible; these include inferences about the pretextual nature of the agents' stated reasons for moving the protesters and about the significance of the protesters being less visible or intelligible from their new location. I have no great problem with subjectivity generally, since law is rarely, if ever, objective. Having looked at both pleadings and both decisions in Moss, it is hard to tell the difference between them. The only difference between the pleadings is the level of detail as to the policy--but Iqbal is not supposed to be about how much detail, but about the "so what" of the facts included.
Third, it shows that this is not worth the candle. This action was originally filed in 2006; six years later, we are just now finishing pleading and going back to the district court for serious discovery. But everyone has known all along what this case was about, what inferences that the plaintiffs would need the factfinder to draw, and what facts would come out in discovery to indicate viewpoint discriminatory intent. So why spend so much time on the complaint? And a doctrine, such as Iqbal, that forces us to do so is problematic.
Friday, June 22, 2012
Opt in, opt out
The opt-in/opt-out question is an important, but infrequently discussed, aspect of First Amendment doctrine. Broadly speaking, how should the First Amendment handle people who want to take themselves out of the expressive marketplace? Two main groups may want to do this. One is unwilling speakers, those who do not want to speak or to support speech, exemplified by the objecting nonmember dues payers in Knox. A second group is unwilling listeners, those who do not want to listen or see someone else's expression.As to listeners, the general rule has been opt-out. The burden is on the listener to avoid objectionable speech. This is reflected in the rule against hecklers' vetoes and the command of Cohen that those who want to avoid an objectionable message must "avert their eyes." It also explains Lamont v. Postmaster General, where the Court invalidated a postal regulation requiring the seizure of certain mail unless the recipient affirmatively requests that the mail be sent to him. The onus was on the unwilling recipient to block the mail, which also protects the willing listener from having to affirmatively declare to the government that he wants to receive communist propaganda. Finally, it also explains why the FCC imposed a do-not-call list to limit telemarketing, putting the burden on the callee to stop the calls. Protecting unwilling listeners from offense or annoyance (as opposed to genuine harm) will rarely be a sufficient government interest to uphold a restriction on speech; hence the line between a cross burned as a threat and one burned as part of a broader public statement.
There are examples in the other direction. Most notable are abortion-facility-protest cases, under which protesters can be prohibited from approaching or communicating with patients unless invited. But this typically involves face-to-face speech, which receives less protection. There is the so-called captive-audience doctrine, but again relatively limited. And the Court rejected opt-out in favor of opt-in as to public libraries' use of internet filters.
So the jurisprudential trend places the onus on the unwilling listener to avoid unwanted speech in favor of allowing the willing speaker greater freedom. And the opt-out default generally makes sense here. A willing speaker has a greater right than an unwilling listener, at least where the speaker is speaking to the public and not to the listener alone. There is no way that someone addressing a mass audience can get the permission of the entire audience, so administrative simplicity favors putting the burden there. This also is consistent with the First Amendment's preference for "more speech," which we get both by reducing the cost and burden on a speaker to produce and disseminate his speech and by ensuring a wider possible audience.
So what about unwilling speakers/funders, as in Knox? Here, we have a willing speaker (the union) pitted against unwilling speakers (nonmember dues payers) who have a right not to speak, including a right not to have to fund someone else's speech. If an opt-out is enough to protect an unwilling listener, should it be sufficient to protect an unwilling speaker?
The majority in Knox viewed the unwilling speaker's rights as largely trumping the willing speaker's, so it felt comfortable placing the entire burden on the latter. The likely reduction in "more speech" that comes with an opt-in was justified by the need to protect the unwilling speaker from ever having his money used for objectionable political purposes, even for a brief time and even if he ultimately will get it back. This is a very broad understanding of compelled speech; even the momentary use of one's money for objectionable speech violates the First Amendment. Moreover, the Court was implicitly saying that the administrative burden on the willing speaker is not so much greater with an opt-in than an opt-out; the union is obligated to provide (and update) notice in either event, so the nature of the notice was irrelevant.
Is this the proper balance? If an opt-out is appropriate as to unwilling listeners, there may be a benefit to using the same standard for all unwilling speech actors, so we have some consistency. Moreover, I think the Court downplayed too much the loss of speech and the burden on the union from opt-in, while overplaying the burden on the objectng funder from a temporary payment. The Court recognized the union's rights (cleverly citing Citizens United for the proposition), but then seemed to minimize the effects of an opt-in command on those rights. The goal of "more speech" seemed to fall by the wayside.
Thursday, June 21, 2012
SCOTUS punts on broadcast indecency
The Supreme Court unanimously held that the FCC could not enforce its new "fleeting expletives" policy as to Cher and Nichole Ritchie at the Billboard Music Awards and a butt shot on NYPD Blue, but not on First Amendment grounds. It held that the FCC had not given the networks sufficient notice of the new policy or that these broadcasts were unlawful, making it unconstitutioanlly vague as applied. The Court explicitly did not consider the First Amendment or the continued vitality of Pacifica, but told the FCC and the lower courts that they are free to make and remake policies and consider their constitutional validity.
Justice Ginsburg concurred only in the judgment to argue that Pacifica should be reconsidered. Interestingly, she cited to Justice Thomas' concurring opinion in the prior Fox case suggesting the same thing. But Thomas stuck with the majority opinion.
Quick Update: Interesting timing, because just Tuesday night, ABC cameras caught Dwaye Wade repeatedly using "mother-fucking" or "mother-fucker" during the post-game celebration following the Miami Heat's win in Game 4. Does ABC have notice of the policy? Or were things sufficiently in limbo until 10:30 this morning that the FCC only can enforce the policy against broadcasts from now forward?
Less Quick Update # 2: Eugene Volokh floats a theory I thought about this morning: There were four votes to overturn Pacifica, but with Justice Sotomayor recused (she was on the Second Circuit when this entire dispute first began), there was no fifth vote. Rather than affirming by a split 4-4 Court or reversing without a majority opinion or rationale, the Court sought the narrower grounds on which almost everyone would agree. Gene has Kennedy, Thomas, Ginsburg, and Kagan as wanting to overturn, but none of the Chief, Scalia, Breyer, and Alito willing to go along. I had Thomas and Breyer flipped, but on thinking on it, if this is what happened, Gene has the line-up right. I had forgotten that Thomas has shown himself to be more speech-protective in a lot of things, including indecency, while Breyer has shown a greater willingness to uphold agency regs that may impinge on speech.
Corporations = Skokie Nazis?
No, the title is not an attempt to violate Godwin's Law.
Back in March, the ACLU issued a statement defending Citizens United and opposing efforts to amend the Constitution to overturn that decision. Although old, that statement is getting renewed attention with the introduction this week of a constitutional amendment (proposed by California Democrat Adam Schiff) overturning the decision and seeking to carve campaign finance out of the First Amendment. This is only the latest proposal.
The ACLU statement has lead to surprise in some circles (including on a list serv for con law types) that a group that "leans strongly left" such as the ACLU would oppose the amendment, the suggestion being that any such amendment must be a bad idea if even the crazy lefties at the ACLU are against it. We can debate whether the ACLU leans strongly left as an overall matter. But the suggestion that it only protects left-leaning viewpoints in First Amendment disputes is, in overwhelming part, wrong. Particularly on campaign finance, where the ACLU has filed amicus briefs in opposition to the regulations in most of the recent cases.
The ACLU's position triggered another thought: Where does its membership generally stand on Citizens United and how is the organization's position (on the decision and on any amendment) playing? The ACLU's famous defense of the Skokie Nazis in the late '70s is looked on as a high-water mark of free-speech principle-- defending deplorable speech you absolutely hate. But at the time, it resulted in canceled memberships and a scramble by the national and local chapters to explain the position and calm angry members. Might the defense of CU (and opposition to efforts to undo it) trigger similar outrage among its members? Or will this fly more under the radar with members, since the ACLU is not at the public forefront of either the CU litigation or the opposition to any amendment?
Saturday, June 09, 2012
Cyberbullying News: Parts of Missouri's Cyberharassment Law Unconstitutional
In 2006, Missouri teen Megan Meier committed suicide after being "cyberbullied" on MySpace by Lori Drew, a former friend's 49-year-old mom. Megan's suicide in response to Drew's cruel online hoax galvanized national attention around the problem of cyberbullying and prompted widespread calls for legal reforms. Missouri, naturally, was one of the first states to respond. There, state legislators modernized and updated their existing cyberharassment and cyberstalking laws in an attempt to cover conduct such as that that led to Megan's suicide. A week and a half ago, the Missouri Supreme Court dealt a setback to Missouri's efforts to combat cyberbullying by striking down a portion of the amended harassment law , and its decision may contain lessons for those pushing new legislation to criminalize bullying.
Notably, Missouri v. Vaughn, the Missouri Supreme Court's decision striking down portions of the law under the First Amendment, did not involve cyberharassment. Instead, it involved a defendant who repeatedly telephoned his ex-wife, leading prosecutors to charge him under subdivision (5) of Mo. Rev. State 565.090.1 for ""knowingly mak[ing] repeated unwanted communication to another person," and under subdivision (6) for "[w]ithout good cause engag[ing] in an[ ] act with the purpose to frighten, intimidate, or cause emotional distress to another person, [which does in fact] cause such person to be frightened, intimidated, or emtionally distressed, and such person's response to the act is one of a person of average sensibility considering the age of such person."
The court held that section 565.090.1(5) was constitutionally overbroad, despite the State's proffer of a narrowing construction that would have made the statute applicable only when the defendant's communications were repeated, unwanted, and targeted at a "particularized person," whatever that means. The court held that "[e]ven with the State's suggested constructions, subdivision (5) still criminalizes any person who knowingly communicates more than once with another individual who does not want to receive the communications." The court gave examples illustrating subdivision (5)'s overbreadth, noting that it would apply to peaceful picketers or teachers calling on students once asked to stop. The court also found that the statute stretched well beyond what might be justified by the protection of residential privacy or "captive audience" members. The court therefore "severed" and struck subdivision (5) from the statute.
The court, by contrast, upheld subdividision (6) by reading it narrowly to address only fighting words and finding that prohibition of speech made "without good cause" was not vague. Section 565.090.1(6) makes it a crime to "[w]ithout good cause engage[ ] in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of the person." The court found that the legislature's exclusion of "the sorts of acts for which there could be good cause" meant that it only applied to expressive conduct that was intended to and actually did provoke "immediate substantial fright, intimidation, or emotional distress." (emphasis in original) Though the reasoning is opaque [I'm being generous], the court seemed to believe that the "legislature's intent" underlying the good cause requirement transformed the statutory provision into one that only addressed "unprotected fighting words." Specifically, the court stated: "because the exercise of constitutionally protected acts clearly constitutes 'good cause,' the restriction of the statute to unprotected fighting words comports with the legislature's intent."
Separately, the court found that subdivision (6) was not vague. According to the court, there is a "common understanding" regarding what would "frighten, intimidate, or cause emotional distress" to a reasonable person. More dubiously, the court asserted that the "good cause" language of the statute would give a citizen adequate notice of what expression was unprotected by the statute as well as adequately constrain law enforcement discretion. Relying on prior case law, the court stated: "'Good cause' in subdivision (6) means 'a cause that would motivate a reasonable person of like age under the circumstances under which the act occurred." Although earlier in the opinion, the court seemed to equate "good cause" with "protected by the First Amendment," here the court seemed to be using a standard legal definition of good cause, meaning done with justifiable motive. Regardless, court's determination that the "good cause" language is not vague is certainly contestable.
Although the court upheld subdivision (6), the victory is probably a pyrrhic one for advocates of broad laws to address bullying behaviors. The court apparently saved the constitutionality of subdivision (6) by adopting a ridiculously strained interpretation of it; under this interpretation, it only covers fighting words--those "which by their very utterance inflict injury or tend to incite an immediate breach of peace"--as defined by the Supreme Court in its 1942 decision in Chaplinsky v. New Hampshire. It is worth noting that the Supreme Court has not upheld a conviction for the utterance of fighting words in the seventy years since it decided Chaplinsky. Moreover, as Rodney Smolla has noted, there is a "strong body of law expressly limiting the fighting words doctrine to face-to-face confrontations likely to provoke immediate violence." In other words, the Missouri Supreme Court's interpretation of subdivision (6) makes it difficult to use as a tool for addressing cyberharassment, since it is unlikely to trigger immediate violence in the manner envisioned by Chaplinsky.
There are no doubt more conclusions to be drawn from Missouri v. Vaughn, and I hope to draw them in an article that my co-author Andrea Pinzon Garcia and I are rushing to complete. That article is currently called Coming to Terms with Cyberbullying as Crime, though the title is subject to change. Look for a link to it here or on SSRN before the end of the month.
Thursday, June 07, 2012
The Virtual Honesty Box
As a fan of comic book art, I'm often thrilled to encounter areas where copyright or trademark law and comic books intersect. As is the case in other media, the current business models of comic book publishers and creators has been threatened by the ability of consumers to access their work online without paying for it. Many comic publishers are worried about easy migration of content from paying digital consumers to non-paying digital consumers. Of course, scans of comics have been making their way around the internet on, or sometimes before, a given comic's onsale date for some time now. As in other industries, publishers have dabbled with DRM, and publishers have enbraced different (and somewhat incompatible) methods for providing consumers with authorized content. Publishers' choices sometimes lead to problems with vendors and customers, as I discuss a bit below.
While services like Comixology offer a wide selection of content from most major comics publishers, they are missing chunks of both the DC Comics and Marvel Comics catalogues. DC entered a deal to distribute 100 of its graphic novels (think multi-issue collections of comic books) exclusively via Kindle. Marvel Comics subsequently struck a deal to offer "the largest selection of Marvel graphic novels on any device" to users of the Nook.
Sometimes exclusive deals leave a bad taste in the mouths of other intermediaries. DCs graphic novels were pulled from Barnes & Noble shelves because the purveyor of the Nook was miffed. Independent publisher Top Shelf is an outlier, offering its books through every interface and intermediary it can. But to date, most publishers are trying to make digital work as a complement to, and not a replacement for, print.
Consumers are sometimes frustrated by a content-owner's choice to restrict access, so much so that they feel justified engaging in "piracy." (Here I define "piracy" as acquiring content through unauthorized channels, which will almost always mean without paying the content owner.) Some comics providers respond with completely open access. Mark Waid, for example, started Thrillbent Comics with the idea of embracing digital as digital, and in a manner similar to Cory Doctorow, embracing "piracy" as something that could drive consumers back to his authorized site, even if they didn't pay for the content originally.
I recently ran across another approach from comic creators Leah Moore and John Reppion. Like Mark Waid, Moore and Reppion have accepted, if not embraced, the fact that they cannot control the flow of their work through unauthorized channels, but they still assert a hope, if not a right, that they can make money from the sales of their work. To that end, they introduced a virtual "honesty box," named after the clever means of collecting cash from customers without monitoring the transaction. In essence, Moore and Reppion invite fans who may have consumed their work without paying for it to even up the karmic scales. This response strikes me as both clever and disheartening.
I'll admit my attraction to perhaps outmoded content-delivery systems -- I also have unduly fond memories of the 8-track cassette -- but I'm disheartened to hear that Moore and Reppion could have made roughly $5,500 more working minimum wage jobs last year. Perhaps this means that they should be doing something else, if they can't figure out a better way to monetize their creativity in this new environment. Eric Johnson, for one, has argued that we likely don't need legal or technological interventions for authors like Moore and Reppion in part because there are enough creative amateurs to fill the gap. The money in comics today may not be in comics at all, but in licensing movies derived from those comics. See, e.g., Avengers, the.
I hope Mark Waid is right, and that "piracy" is simply another form of marketing that will eventually pay greater dividends for authors than fighting piracy. And perhaps Moore and Reppion should embrace "piracy" and hope that the popularity of their work leads to a development deal from a major film studio. Personally, I might miss the days when comics were something other than a transparent attempt to land a movie deal.
As for the honesty box itself? Radiohead abandoned the idea with its most recent release, King of Limbs, after the name-your-price model adopted for the release of In Rainbows had arguably disappointing results: according to one report, 60% of consumers paid nothing for the album. I can't seen Moore and Reppion doing much better, but maybe if 40% of "pirates" kick in a little something into the virtual honesty box, that will be enough to keep Moore and Reppion from taking some minimum wage job where their talents may go to waste.
Tuesday, June 05, 2012
A Jurisdictional Perspective on New York Times v. Sullivan
I just posted a new paper on SSRN, entitled, A Jurisdictional Perspective on New York Times v. Sullivan: An Essay in Honor of Martin H. Redish. Here is the abstract:
New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its 50th anniversary in 2014. Often-overlooked in discussions of the case's impact on the freedom of speech is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before The Times and its civil-rights-advocate co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and the particular substantive First Amendment rules it established are a product of this jurisdictional and procedural background.
This article is a contribution to Northwestern Law Review's Festschrift in Honor of Martin H. Redish, a scholar who has produced a record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment. He also has been a sharp and unforgiving critic of many of the jurisdictional rules that kept this case out of federal court for so long. It is appropriate to recognize Redish's scholarly legacy by considering a landmark case at the intersection of his three scholarly pursuits that demonstrates why many of his arguments and criticisms are precisely correct.
I use Sullivan as the wrap-up/review for the subject matter jurisdiction portion in Civ Pro. Although doctrinally the absence of jurisdiction is clear, the discussion really helps pull subject matter jurisdiciton together and make students articulate the arguments (even if they fail). I have wanted to turn this into a paper for a couple of years. The combination of the upcoming 50th anniversary of Sullivan and this symposium honoring Redish's work made this the right to time to get this out, since I could tie the discussion directly into Redish's jurisdiction scholarship.
As always, comments welcome.
Monday, June 04, 2012
Free speech tea leaves
This Supreme Court term was lighter on free speech cases than the past couple of terms, with only four. Yet the Court has not yet decided any of them. The Court today decided Reichle v. Howards, from the March sitting, which really is more of a qualified immunity case than a pure free speech case. (In fact, the majority expressly avoided the question of whether the plaintiff's First Amendment rights were violated or whether a Bivens action is available for First Amendment violations). Of the three pure speech cases, two--FCC v. Fox Television and Knox v. SEIU--are the only two cases still undecided from the January sitting, and U.S. v. Alvarez is one of only two cases still undecided fom the Feburary sitting.
What can/should we read into this delay? Does it suggest a deeply divided Court? Does it suggest a number of concurring and dissenting opinions circulating? Does it suggest the absence of majorities or ongoing efforts to cobble together majorities? Moreover, does the delay suggest anything about which way the cases are going to come out? Perhaps none of this should be surprising given the nature of these cases. Alvarez (a challenge to the Stolen Valor Act) deals with a tricky issue of the constitutional status of false statements of fact and may have broad effects on a range of state laws prohibiting electoral falsehoods, as well as the place of seditious libel in the First Amendment. Fox deals with the validity of federal regulatory policy and the continued vitality of FCC v. Pacifica, a 30-year-old precedent. And Knox brings free speech into collision with ideological views of unions.
To the extent the Court is divided in many of theses cases, this would mark a significant departure from the past several terms, where (outside of campaign-finance), free speech cases mostly have been decided by strong majorities, whether upholding the pro-speech position (Snyder, Stevens) or rejecting it (Reichle was unanimous, although Justices Ginsburg and Breyer concurred only in the judgment). And, at least from a distance, the last two terms have shown a Court with a strongly civil libertarian position on free speech. As Lyrissa has argued, the Court has adhered to a broad view that speakers should be allowed to speak free from governmental restriction, with judicial suspicion arising only when government attempts to help someone to speak.
It just seems as if we have been waiting longer than usual to see if that view continues to prevail.
Tuesday, May 29, 2012
School of Rock
I had a unique experience last Friday, teaching some copyright law basics to music students at a local high school. The instructor invited me to present to the class in part because he wanted a better understanding of his own potential liability for arranging song for performances, and in part because he suspected his students were, by and large, frequently downloading music and movies without the permission of copyright owners, and he thought they should understand the legal implications of that behavior. The students were far more interested in the inconsistencies they perceived in the current copyright system. I'll discuss a few of those after the break.
First, the Copyright Act grants the exclusive right to publicly perform a musical work, or authorize such a performance, to the author of the work, but there is no right public performance right granted to the author or owner of a sound recording. See 17 U.S.C. § 114. In other words, Rod Temperton, the author of the song "Thriller," has the right to collect money paid to secure permission to publicly perform the song, but neither Michael Jackson's estate nor Epic Records holds any such right, although it's hard to discount the creative choices of Michael Jackson, Quincy Jones and their collaborators in making much of what the public values about that recording. To those who had tried their hands at writing songs, however, the disparity made a lot of sense because "Thriller" should be Temperton's song because of his creative labors.
Second, the Copyright Act makes specific allowance for what I call "faithful" cover tunes, but not beat sampling or mashups. If a song (the musical work) has been commercially released, another artist can make a cover of the song and sell recordings of it without securing the permission of the copyright owner, so long as the cover artist provides notice, pays a compulsory license (currenty $0.091 per physical or digital recording) and doesn't change the song too much. See 17 U.S.C. § 115. If the cover artist makes a change in "the basic melody or fundamental character of the work," then the compulsory license in unavailable, and the cover artist must get permission and pay what the copyright owner asks. In addition, the compulsory license does not cover the sound recording, so there is no compulsory license for a "sampling right." Thus, Van Halen can make a cover of "Oh, Pretty Woman," without Roy Orbison's permission, but Two Live Crew cannot (unless the rap version ends up qualifying for the fair use privilege).
It was also interesting to me that at least one student in each class was of the opinion that once the owner of a copyrighted work put the work on the Internet, the owner was ceding control of the work, and should expect people to download it for free. It's an observation consistent with my own analysis about why copyright owners should have a strong, if not absolute, right to decide if and when to release a work online.
On a personal level, I confirmed a suspicion about my own teaching: if I try to teach the same subject six different times on the same day, it is guaranteed to come out six different ways, and indeed, it is likely there will be significant differences in what I cover in each class. This is in part because I have way more material at my fingertips than I can cram into any 45 minute class, and so I can be somewhat flexible about what I present, and in what order. I like that, because it allows me to teach in a manner more responsive to student questions. On the other hand, it may expose a failure to determine what are the 20-30 minutes of critical material I need to cover in an introduction to copyright law.
Friday, May 18, 2012
Why the ire over Citizens United?
I agree with Sam's post about the Toobin story on Citizens United--it does seem like much ado about nothing. My own theory about the internal dynamics at work considers the history of individual justices, namely Justice Kennedy. Austin v. Michigan Chamber of Commerce, the case Citizens United overturned, was decided in 1990, during Justice Kennedy's first full term on the Court, and Kennedy wrote the principal dissent (joined by O'Connor and Scalia). He likely had been itching to overturn that case since 1990 and the change of personnel and passage of time gave him the votes (save the Chief, at the outset) to finally do it.
Now, a different issue: In a comment to Sam's post, Orin Kerr says:
I suspect Toobin's article is getting a lot of favorable attention because a lot of his audience starts off with the belief that Citizens United is an evil ruling that the conservatives foisted on the American people on behalf of big corporations. The decision is so evil, the thinking runs, that how it came about is not unlikely to involve a devious machination.
Why is so much ire aimed directly and uniquely at Citizens United, out of the entire body of campaign finance law? Why is this case perceived as the alpha and omega of bad law on the subject? Yes, Citizens United overturned Austin. But Austin was 20 years at this point, so it was hardly Justice Brandeis in Erie overturning Swift. And Austin itself was arguably the First Amendment anomaly--the one and (at that point) only time the Court had accepted the equality rationale for regulating campaign spending (although it was equality in the guise of corruption). Austin could not be reconciled with Bellotti v. Bank of Boston in 1980, which invalidated a ban on corporate expenditures in an issue election, or, more fundamentally, with Buckley v. Valeo in 1976. So why pick on Citizens rather than these earlier precedents, especially Buckley, which is the case that introduced the fundamental idea that expending money for expression is First-Amendment protected?Some of it is that the Court had to overturn precedent, but again, this was not a particularly venerable precedent and it was only one in a broader body of case law. Some of it is the process--relisting, ordering new briefing, etc. And Toobin's narrative supports this explanation. But, as Sam points out with respect to McLean Credit, this is not so unusual. Some--and I suspect a lot--of it is recency bias--the most recent case is the most important case and the one to praise or criticize, depending on your viewpoint. That Citizens United is grounded in prior case law ceases to be the issue; it is all about the newest case.
I actually noticed something similar in discussions of Garcetti v. Ceballos, which held that a public employee enjoys no First Amendment protection for expression that is part of his job function. There were immediate fears for the effect of Garcetti on academic scholarship; since academics were speaking or writing as part of their jobs, their speach was unprotected. But it's not as if pre-Garcetti doctrine--which accorded no protection to employee speech that was not on a matter of public concern and spoken as a citzen--was particularly protective of employee expression;an English professor fired for an article on Jane Austen likely would not have been protected even without Garcetti.
Thursday, May 10, 2012
Recording, the First Amendment, and Judge Posner
On Tuesday, a divided Seventh Circuit panel invalidated an Illinois eavesdropping statute that prohibited all recording of conversations without two-party consent, including conversations involving police officers performing public duties in public spaces. I wrote about the case here and here and have had an interest in the front-end protections for recording for a few years.
The decision is going to spark discussion for two things. One is the very sweeping First Amendment approach from the majority. The other is the equally sweeping dissent by Judge Posner.First the majority. The tricky part in the debate over First Amendment protection for recording is finding a place withint the text of the amendment to ground the protection, since the act of recording is not, in itself, speech. In my article, I suggested both the Press Clause (riffing off an argument by Barry McDonald) or the Petition Clause, at least where the video is or may be used in civil liitgation. The Seventh Circuit went broader:
The act of making an audio or audiovisual recording is necessarily included within the First Amendment’s guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording. The right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected.
The court compared this to a prohibition or regulation of printers' ink or, more interestingly, to regulation of campaign finance--all recognize protection for acts and things that, while not speech, enable speech. I appreciate the breadth of the argument. Note that it assumes that the recording is going to be published and used for speech, which is not always or necessarily the case--as where the recording is going to be used as evidence in an official complaint against an officer or in litigation (hence my Petition Clause argument). And the court did not require any inquiry into the ultimate use. Still, to the extent all of thse are First Amendment protected, the argument makes snese.
From there, the court held that the law was content neutral, but failed intermediate scrutiny (which is not always easy to do) for a couple of reasons. First, it banned an entire medium of communication/information gathering. Second, the state's privacy interests were undermined by the fact that other ways of documenting public conversations--including listening and taking notes, video recording, and still photography--were not prohibited, even though they potentially implicate those interests. The accuracy and immediacy of audio recording (as compared with human memory) did not alter the privacy calculations. And, although the court did not reach the issue of alternative means of communication, it noted that
audio and audiovisual recording are uniquely reliable and powerful methods of preserving and disseminating news and information about events that occur in public. Their self-authenticating character makes it highly unlikely that other methods could be considered reasonably adequate substitutes.
It is contestable whether recordings are inevitably or unquestionably accurate or clear. But adequate alternative means typically should not allow the prohibition of one entire medium simply because other, different, not-always-as-effective media remain available.
Now to Judge Posner. No surprise that he dissented, given some questions he asked during oral argument. The surprise is the opinions assault on modern First Amendment doctrine, his endorsement of (or at least reference to) a more limited originalist understanding of the First Amendment, and his criticism of rigorous First Amendment judicial review and courts' regular willingness to invalidate a broad range of laws on First Amendment grounds.
A sampling of comments:
The invalidation of a statute on constitutional grounds should be a rare and solemn judicial act, done with reluctance under compulsion of clear binding precedent or clear constitutional language or—in the absence of those traditional sources of guidance—compelling evidence,
or an overwhelming gut feeling, that the statute has intolerable consequences.
* * *
Judges asked to affirm novel “interpretations” of the First Amendment should be mindful that the constitutional right of free speech, as construed nowadays, is nowhere to be found in the Constitution. The relevant provision of the First Amendment merely forbids Congress to abridge free speech, which as understood in the eighteenth century meant freedom only from
censorship (that is, suppressing speech, rather than just punishing the speaker after the fact). A speaker could be prosecuted for seditious libel, for blasphemy, and for much other reprobated speech besides, but in a prosecution he would at least have the protection of trial by jury, which he would not have if hauled before a censorship board; and his speech or writing would not have been suppressed, which is what censorship boards do. Protection against censorship was the only protection that the amendment was understood to create. . . .
The limitation of the amendment to Congress, and thus to federal restrictions on free speech (the First Amendment does not apply to state action), and to censorship is the original understanding. Judges have strayed so far from it that further departures should be undertaken with caution.
This is surprising stuff. For one thing, Posner himself has joined or written a number of decisions striking down laws on First Amendment grounds and adopting a broader view of free speech than he suggests in these quoted portions. For another, it seems beside the point in this case. The bulk of the dissent is devoted to emphasizing the privacy interests involved here and arguing, in essence, that the majority did not accord them sufficient weight in the balance. While perhaps right, it is much different than arguing that applying the First Amendment to something like audio or video recording is a vast or novel expansion of the right. Perhaps the point is that the majority did not sufficiently acknowledge the novelty of the First Amendment claims or interpretations here.
The dissent does reflect Posner's pragmatism. For example, he suggests that a judicial "gut feeling that the statute has intolerable consequences" is enough for invalidating a law. He also seems to acknowledge that the case would be different if the recordings were being used to record unlawful activity, such as police misconduct. So maybe his comments are not as far reaching as they seem. And he is, of course, correct that modern free speech does not look anything like Blackstone or what many may have expected in 1791. But I, and most others, would say we are better off for that.
An interesting rhetorical flourish from a judge known for them.
Tuesday, May 01, 2012
It's the First of May
Glad to be back in the Blogosphere. Liz Phair's "Cinco de Mayo" has been in my mind nonstop today. You may ask yourself whether there is also a "First of May" song. It turns out there are at least two.
One, by the BeeGees, is a song about lost love and lost connections. The other, by geek rocker Jonathan Coulton, is about <ahem> making intimate connections in the great outdoors (and is explicit about such connections in a way that is probably NSFW).
Could the BeeGees go after JoCo for the use of the same song title? (Answer after the break)Probably not. Duplicate song titles happen all the time, and are almost never protectable under copyright law because they are too short / not sufficiently expressive. Every once in a while, we do see cases that recognize protectable trademark rights in song titles. See, for example, EMI Catalogue Partnership v. Hill, Holliday, Connors, Cosmopulos, Inc.
EMI asserted trademark rights in the title of the Benny Goodman hit "Sing, Sing, Sing (with a Swing)." The Second Circuit reversed the district court's grant of summary judgment in favor of defendant who used the phrase "Swing, Swing, Swing," in a commercial for golf clubs, accompanied by a swing tune which may or may not have been similar to the plaintiff's song.
The Second Circuit didn't resolve the defendant's fair use argument, and it's fairly solid, at least at first blush: why shouldn't an advertisement for golf clubs be able to use the phrase "swing, swing, swing"? That's what you do with a golf club. The court reversed because it felt the district court too quickly discounted the defendant's selection of a "Benny Goodman-type song like 'Swing Swing Swing.'" In fact, the advertisement in question was originally going to use the Goodman song, but the client didn't want (or couldn't affort) to pay the licensing fee. Thus, the court concluded "there are sufficient facts upon which a reasonable jury could conclude that defendants intended, in bad faith, to trade on EMI's good will in the title of the song by using the phrase 'Swing Swing Swing' in the final commercial."
The result here reminds me of the Bette Midler and Tom Waits right of publicity cases, where the respective artists turned down an invitation to sing their hit for a commercial jingle, and in both instances, the ad agency went out and hired a soundalike. As I see it, all three cases went against the defendant because of arguably bad faith attempts to either circumvent a licensing fee or circumvent the artists desire not to be associated with the client's product. You may disagree on whether EMI, Midler or Waits should have the right to say "yes but," or "no, never," but once a court is persuaded that such a right exists, the workaround seems troubling at best.
So it's the first of May, and a wonderful time to blog about the intersection of intellectual property and music, among other things. I hope you'll chime in as you have the time.
Friday, April 27, 2012
Freedom of speech and the politics of the underlying speech
Guesting at CoOp, Erica Goldberg has a thoughtful post describing how "disheartened" she is by the confusion of protection of speech with the political views expressed. She relates her experience working at the Foundation for Individual Rights in Education ("FIRE"), a group often viewed as right-wing because many of the high-profile cases it has taken on has involved either speech by conservative groups or non-partisan speech that offends liberal sensibilities (e.g., a case involving misogynist chants as part of fraternity initiation). Erica concludes with a nice line about the ease with which the principle of free speech gets conflated with the speech at issue: "The day that I don’t have to disassociate myself from the speech that I am defending is the day that I can stop worrying so much about the state of free speech issues on campus."
It's a nice commentary and worth a read. I want to add some thoughts on the margins.First,this is not a new phenomenon. The ACLU was labeled left-wing (if not outright "Commie" and "Un-American" for its, in retrospect, tepid support for communist speech). And the ACLU became the poster-child for America-hating liberals during the flag-burning debates. That the ACLU also represented the Skokie Nazis just got lost in the noise of politics. The ACLU was a bunch of liberals, end of story.
Erica illustrates the different perspective on Jack Balkin's "ideological drift" argument that I have argued for in the past: It's not that conservatives have discovered free speech as a principle, but that many liberal groups have abandoned it (or at least made its position less-absolute) in favor of other principles. The problem (from the perspective of many) with the ACLU is that it has taken on other issues besides free speech, notably equality for women and GLBT, decidedly liberal positions; this necessarily weakened its unwavering support for some speech that had the purpose or effect of denying equality to those groups. So perhaps Erica is correct that the ACLU would not apply its lower standard for harassment to liberal groups, but that is because such speech does not interfere with the organization's other, non-speech positions.
Finally, my conclusion from Erica's last sentence (quoted above) is that we're never going to be able to stop worrying about the state of free speech on campus (or anywhere else for that matter). The free speech principle is inseparable from the content of the speech being protected. And not only in the political realm, but also in the legal realm. Consider how often courts, in the course of protecting especially heinous speech, find it necessary to include some disclaimer either disociating itself from the speech or taking a potshot at the speaker. For example, last year in Snyder v. Phelps, Chief Justice Roberts closed this way: "Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro's funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But . . ."
If that but is necessary in a judicial opinion, it always is going to be present and necessary in public debate.
Update: Will Creeley, FIRE's Director of Legal and Public Advocacy (Erica's former colleague), writes to point me to a YouTube link devoted to the Skokie case, featuring a 1977 interview with David Hamlin, the Executive Director of the Illinois ACLU. Will highlights the following quotation:
Most of the causes we represent are unpopular, at least with someone... In one sense, everything we do is unpopular, in that not everyone agrees with everything we do... We continue to represent the rights of even the most unpopular individuals."
One of the difficulties the ACLU has always had is a kind of instant association with the client... Every time we represent someone, people assume that we are supporting what they say, and not their right to say it.
Same as it ever was.
Thursday, April 19, 2012
Free speech at the old ballgame
I have suggested that the brouhaha over Ozzie Guillen's "praise" of Fidel Castro was silly, in the sense that we are giving far too much creedence to the words of a baseball manager who has built a career out of saying provocative things. (I also recognize that I do not equate Castro with Hitler and thus do not get as exorcised over tepid compliments directed his way).
But I have also argued that the calls from some in the Miami-Cuban community for a boycott of the team and/or for Guillen's firing reflect precisely what the First Amendment demands: counter-speech in response to speech you don't like.
I attended today's game at Marlins Park (against my inept Cubbies), the third game since Guillen's reinstatement after a five-game suspension. Inside, Marlins fans seem to have moved on. I did not see any signs or banners about Guillen and he was not booed on any of the many, many times he came on the field to change pitchers or when he came out to celebrate the Marlins' victory. Outside, there were about two dozen anti-Guillen protesters, mostly in their 50s or 60s or older, which fits with the demographics of anti-Castro sentiment in Miami. No one seemed to be paying them much attention, other than to take pictures on their cell phones.
Mine are after the jump.
Tuesday, April 03, 2012
Freakonomics and cheering speech
Interesting Freakonomics Podcast (beginning at 28:00) from a few weeks ago, discussing booing at sporting events, art, and politics. It had some interesting tidbits that I can use when I return to writing on the subject.
One is that the Colonies brought over from England the concept of "audience sovereignty," which vested in the audience the right to boo and jeer political speakers--precisely what Alexander Meiklejohn eliminated from his theory of the freedom of speech. The second is the story of Johnnie LeMaster, a light-hitting shortstop for the San Francisco Giants. In 1979, LeMaster made some comments opposed to gay rights, causing fans to boo him continuouslys. After several weeks LeMaster had a jersey made up with "Boo" on the back and wore it for a game, which immediately won fans over. And third is an interview with former Pennsylvania Governor and Philadelphia Mayor Ed Rendell, who talked about booing, especially when politics intervenes in sports.
Thursday, March 22, 2012
Bill Maher in today's Times agrees with me: It is time to stop being offended (or feigning being offended) by everything, time to stop demanding apologies, and time to stop apologizing for everything. There is no right not to be offended, so stop pretending there is such a right.
Wired, and ThreatenedI have a short op-ed on how technology provides both power and peril for journalists over at JURIST. Here's the lede:
Journalists have never been more empowered, or more threatened. Information technology offers journalists potent tools to gather, report and disseminate information — from satellite phones to pocket video cameras to social networks. Technological advances have democratized reporting... Technology creates risks along with capabilities however... [and] The arms race of information technology is not one-sided.
Monday, March 19, 2012
Warning the audience
A group called Created Equal will be on FIU's campus tomorrow, apparently as part of a two-week tour of Florida colleges and high schools. Created Equal is one of several anti-choice organization that makes its point with the display of graphic images of terminated fetuses and fetus parts. Last weekend, an email was sent out by the university's VP for Student Affairs, announcing the coming event, recognizing the "distasteful" nature of the signs which have created "controversy" in the past, reiterating the university's commitment to free expression and the exchange of ideas, and encourgaing members of the university community to "take this opportunity to examine and express their views."
Objections to groups such as this often come from women who have had to deal with the choice to terminate a pregnancy, who feel re-traumatized and triggered by the in-your-face and disturbing images (Created Equal's response is that women feel traumatized not by the pictures but by their earlier actions). I believe that concern motivated the email--the administration wanted to warn those who may feel traumatized that the group (and its photos) will be there this week so those women can avoid that part of campus. And it incidentally allowed the administration to preempt the inevitable objections to allowing the group to set up shop by shouting its belief in and commitment to the freedom of speech.
That said, is there something troubling about the university sending out this email? The administration does not ordinarily warn the campus community about every public protest or expressive event happening on campus. It certainly does not warn the community with the apparent goal of notifying listeners how to avoid unwanted speech--and thereby trying to limit the speaker's audience. And the administration certainly does not routinely call on the community to come out and engage in (what it probably expects to be) counter-speech. So it looks like content or viewpoint discrimination at work here: government is taking steps to affect the expressive environment (potential audience size, likelihood of counter-speech, etc.) under which this group--and only this group--will operate.
On the other hand, the email appears to be government speech; the government can take sides in a public debate and be as discriminatory as it wants to be. But can or should government speech take the form of public pronouncement to the effect of "we have no choice but to allow these people to use this public forum, but we think you should avoid this area or turn out in droves to debate them"? Is warning the audience about the (in the government's view) objectionable content of a speaker in the public forum--and, as noted above, changing the expressive environment--legitimate government speech? Is speech that alters the conditions under which a group operates in the debate different than government taking a stance on the substance of some debate?
Saturday, March 10, 2012
Governor v. Judge
Adam links to a story about NJ Governor Chris Christie's exchange with a law student, which involved Christie calling the student an "idiot." Obviously the exchange is not fully captured by the story (which does not sound like it captures the chronology of the exchange). But I was struck by two things that Christie said: 1) that if the student engaged with a judge in court the way he was engaging with Christie, the student would be thrown in jail (presumably for contempt) and 2) the applause line "I mean, damn man, I'm governor, could you shut up for a second?"
Is Christie suggesting that one should engage with a governor or other elected official the same way he engages with a judge in court and that he, as governor, is entitled to the same level of deference as a judge? And can that possibly be right?
Friday, March 09, 2012
On lying and the First Amendment
I want to jump off from Lyrissa's post on the Stolen Valor Act and First Amendment protection for lies with a couple of random points.
First, having read the argument transcript, I believe the Stolen Valor Act is going to be struck down. I could not count five votes to uphold it, unless the Court adopts the severe narrowing construction the government proposed, under which the statute applies only to statements of pure fact about oneself. But I am not sure the line can be drawn. We can debate whether this is a speech-protective Court (Erwin Chemerinsky thinks not). But in several cases the Court, by a strong majority, has been unwilling to narrowly construe federal statutes to avoid First Amendment problems.
Second, one distinction that may come up between the SVA and the electoral lies cases is who is telling the lie and about what. The key to the government's argument in Alvarez is that Alvarez was telling the lie about himself and whether he had won the Medal of Honor. On the other hand, electoral-lies laws are primarily concerned with statements made about a candidate by someone else (although the statutes by their terms also would reach self-referential statements). This fits into the government's "breathing space" argument--we protect some false statements of fact because of the risk that false statements will happen in public debate and the difficulty of telling truth from falsity. But when someone is talking about themselves, we don't have that same risk or difficulty; Alvarez knew he had not received any military honors and a person knows all the facts about himself. The Chief and Justice Alito made much of this issue during the argument. On the other hand, it may not always be so easy to tell whether one's statement about oneself is true, a point illustrated by William Saletan's Slate piece discussing the "truth" of Mitt Romney's insistence that he has not changed his stance on reproductive freedom. If so, the distinction between speech about oneself and speech about others loses its analytical force. And then Lyrissa is right that the result in Alvarez may determine the result in the challenges to the electoral-lies statutes.
Finally, I am looking forward to reading Christina's UCLA Discourse piece. The argument about seditious libel and its connection to protection for general lies seems to work on one level, but not on another. It is true that First Amendment doctrine has properly rejected any government interest in ensuring respect for the honor and authority of government and government institutions (such as the military)--the interest used to justify both seditious libel and the SVA (although probably not the electoral-lie statutes). And I agree that it is troubling that the government is defending a statute such as the SVA via this outdated interest.
But note the critical difference between the SVA and seditious libel: the latter applied not only to false statements of fact, but also to true statements of fact, as well as to matters of opinion, public policy preferences, and rhetorical hyperbole. In fact, the line about seditious libel under British law was "the truer the statement, the greater the harm." Thus, it may be possible for the Alvarez Court to uphold the SVA--applying as construed only to factual statements by a person about himself--while still adhering to the admonition in New York Times v. Sullivan that the "court of history" has ruled that seditious libel is inconsistent with the First Amendment. Then the question is where between those end points electoral lies fall.
Thursday, March 08, 2012
Electoral Lies and Stolen Valor: Is the Cure Worse Than The Disease?
Does the First Amendment protect lies that cause only diffuse and intangible harms? That's the issue at the heart of U.S. v. Alvarez, which is currently before the Supreme Court and which addresses the constitutionality of punishing those who lie about receiving military honors. (Listen to the oral arguments in Alvarez here.) It is also the issue at the heart of a petition for certiorari in 281 Care Committee v. Arneson., 638 F.3d 621 (8th Cir. 2011), which addresses the constitutionality of a Minnesota law that makes it a "gross misdemeanor" to make a knowingly or reckless false statement about a ballot issue or a candidate during an election campaign. Though Alvarez and Arneson are p0tentially distinguishable, the Supreme Court decision in the former will inevitably shape the answer to whether the Minnesota election law statute, and the sixteen other state statutes like it, is ultimately deemed constitutional. I've long been interested in this topic (see my essay, Where's the Harm?), so it is particularly nice to come across Christina Wells' new article (discussed below), which breathes fresh life into the debate over whether lies receive First Amendment protection.
Your stance in this debate is likely shaped by how you begin your analysis. If you start by asking whether intentional or reckless falsehoods have any constitutional value--whether they make any positive contribution to public discourse--then you are more likely to conclude that criminalizing lies is constitutional, even if they cause no harm. If you start with the presumption that government may not regulate speech without an important or perhaps even compelling justification, then you are more likely to presume that lies causing only diffuse harms are protected by the First Amendment.
First Amendment jurisprudence does not protect falsehoods as such, but it does acknowledge that falsehoods are sometimes inevitable in public debate and that it is not always easy to distinguish truth from falsity. Therefore, the First Amendment does not allow punishment of merely negligent falsehoods, and it broadly protects speech that cannot be interpreted as stating actual facts or that is not provably false. But all of the Supreme Court cases allowing the punishment of lies involved lies that caused concrete harms--lies that defamed an individual (or corporation), or invaded his privacy, or enabled fraud. In contrast, the question before the Court in the Stolen Valor case (Alvarez) is whether the First Amendment allows an individual to be punished for an intentional or reckless falsehood, doubtless offensive to most, that harms public discourse by polluting the information stream, and thereby diluting the value of military honors and muddying the message the government tries to convey by awarding them. Similarly, the question with regard to statutes regulating knowingly or recklessly made falsehoods during election campaigns is whether the harm they cause--pollution of the stream of information available to voters about candidates and issues and p0ssible distortion of electoral outcomes--is sufficient to justify government regulation.
Even granting that lies potentially pollute public discourse, one might still question whether a governmental remedy is needed. Mr. Alvarez, who lied about receiving the Congressional Medal of Honor, was detected after he told his lie to a former Marine who uncovered the truth in "just minutes" after "a few text messages and a check of a website with information on the fewer than 100 living Congressional Medal of Honor winners." And lies during election campaigns can be "policed," albeit imperfectly, by news media, websites like Politifact, and ordinary citizens willing to engage each other online and off. Even if these alternative methods for policing falsehoods do not work as well as government action, it is still worth questioning whether government investigation of political truths might cause enough negative effects that the government cure for lies would be worse than the disease.
In her new article forthcoming in 59 UCLA L. Rev. Discourse (2012) and titled Lies, Honor, and the Government's Good Name: Seditious Libel and the Stolen Valor Act, Chris Wells uncovers new evidence of negative consequences flowing from governmental suppression of lies. She does so, perhaps paradoxically, by delving into the history of prosecutions for seditious libel and comparing them to the regulation of lies under the Stolen Valor Act. (Get her article on ssrn here ).
Professor Wells points out that the government's asserted justifications for punishing seditious libels are similar to its justifications for punishing false claims to military honors. "Historically, government officials justified seditious libel prosecutions by claiming criticism undermined the government's honor and authority and reduced the public's respect for it, ultimately threatening national security. . . .The government's justifications for the Stolen Valor Act are eerily similar. The government seeks to punish all intentional lies about receiving a military honor because they 'misappropriate the prestige and honor associated with the medal.'" The argument further links lies about the medals to impairment of military readiness, ultimately "punish[ing] lies because they arguably undermine respect for government or government personnel." (Id. at 1-2.)
Professor Wells then traces the English roots of seditious libel and the rise and fall of seditious libel prosecutions within the United States. She recounts, of course, the debate over the Sedition Act of 1798, but she also discusses the punishment of seditious speech under the Espionage Act of 1917, when thousands were arrested simply for criticizing the US war effort. She notes: "Courts, applying a combination of constructive intent and the 'bad tendency' test, convicted hundreds" of critics of the war effort, on the grounds that their criticisms would undermine that effort. Gradually, however, the Supreme Court came to appreciate that punishing speech based on "bad tendency" insufficiently constrained official discretion, and the "Court developed its modern low value speech framework largely in response to [this problem.]" (Id. at 12).
Under this framework, the low value categories of speech all involve "independent harms" apart from their putative effects on government reputation or prestige. As Professor Wells writes, "The harm requirement is integral to creating low value speech categories. It allows the Court to create narrow categories that do not punish speech because of its disfavored content, but because that speech in a particular context makes no contribution to the exchange of ideas as evidenced by external indicia of harm." Under this framework, the government may not begin with the presumption that lies are unprotected because they do not involve "speech that matters." Instead, it must begin with identification of concrete harm caused by the speech it seeks to regulate, for any other approach gives undue discretion to government officials to suppress speech they dislike. Professor Wells' argument in its full form is cogent and persuasive, and I hope I've not done it an injustice in my summary. It is my hope that our Supreme Court will take note of the lessons of the history of seditious libel Chris explains, lest they doom us to repeat it.
[Full Disclosure: Christina Wells is my co-author, together with Ron Krotoszysnki, Jr., and the late Steve Gey, of an Aspen casebook on First Amendment Law. This blog post was inspired by this Adam Liptak article on Ohio's election falsehoods statute.]
Education and advocacy, smoking and abortion
Last week, in R.J. Reyolds v. FDA, Judge Leon of the District of D.C. ruled that the First Amendment prohibited new FDA regulations requiring the display on all cigarette packages of large graphic images, including photos of dead bodies and diseased lungs and mouths. The court held that the regs compel speech, do not involve purely factual commercial information (which would trigger lower scrutiny), and do not survive strict scrutiny. It seems to me the court got it mostly right, because there are a number of less-restrictive means, means which would not necessarily involve compelled speech, for the government to achieve its goal of educating the public about the harms of smoking and persuading them not to smoke or to quit.
A lot turned on the FDA's admission that its real goal in requiring these images was to reduce smoking, leading the court to say the following: "Although an interest in infonning or educating the public about the dangers of smoking might be compelling, an interest in simply advocating that the public not purchase a legal product is not."
That doesn't seem right. First, I am not sure there is such a sharp distinction between the two. While Congress and the Court made a lot of that line in the Smith Act, it dropped out of the analytical mix after Brandenburg and lower-court cases applying Brandenburg to situations involving information, description, and depiction. To the extent a difference should remain, they should receive equal protection (Eugene Volokh has the seminal work on informative speech, with which I basically agree). Or, if not, advocacy arguably should receive greater protection than straight presentation of information, since the latter is more likely to lead to immediate harm.
Given this, it is difficult to see how the government could have a compelling interest in engaging in one type of expression and not the other; in other words, to say the government can educate/inform the public about the dangers of smoking but it cannot advocate to the public that it should stop smoking because of those dangers. Moroever, the point seems like a throwaway in the court's opinion and was unnecessary to the decision; the compelled expression involved in the regs could not be justified in the name of either education or advocacy.
But now an unrelated point: How should the analysis in Reynolds affect First Amendment challenges to laws requiring women to undergo and look at ultra-sounds before terminating a pregnancy? These laws sound and function a lot like the FDA regs. The real state goal here is advocacy--persuading women not to go through with terminating the prgenancy--through shocking or startling imagery, imagery meant to appeal to their emotions and fear. The imagery from the ultra-sound does not provide the woman or doctor any meaningful, truthful factual information, any more than do the graphic images on the cigarette packages. Certainly it is not providing informarion as to early pregnancies--during the first two months, when most abortions are performed, a trans-abdominal ultrasound (and remember that Virginia, under pressure, backed away from requiring trans-vaginal ultrasounds) will not detect or reveal much of anything. If we accept Judge Leon's view that there is no compelling government interest in advocating a position, then the ultrasound laws should be in trouble. And even if we reject the idea that there is no compelling interest in advocacy, the government still could achieve its goal (reducing abortions by dissuading women from having them) without compelling doctors to speak or women to listen to some speech--namely by engaging in its own anti-abortion campaigns, including the display of ultrasound images, outside of the doctor's office and the doctor-patient conversation.
Of course, it would be supremely ironic if First Amendment arguments created and used by the tobacco companies--a classic First Amendment villain--end up providing a basis for invalidating controversial ultrasound laws.
Tuesday, March 06, 2012
Was Sandra Fluke a private figure at the time Limbaugh made his statements? Hadn't she thrust herself into the spotlight on this issue by seeking to testify at the Issa hearings, appearing in the media to make her statements, and eventually testifying at the Democrat-run shadow hearing? This is not to justify what Limbaugh, Heaton, or other conservatives have done. But it is to raise the questions of: 1) Whether the proferred argument that Limbaugh is perceived as having overstepped because he went after a private person is accurate and 2) What happens in any defamation/IIED lawsuit that Fluke might file.
Update in response to comments: I generally agree with the various commenters that a lawsuit against Limbaugh is going nowhere for reasons unrelated to the public/private distinction. I am more interested in the first question, which I want to elaborate on: One explanation for why so many people have rebelled against Limbaugh--why this situation is different--has been that he attacked a private person. But if Fluke is a public figure (even for these limited purposes), then isn't she just as fair a target for criticism as any other participant in the public debate over these issues (say, the head of NARAL or Planned Parenthood or any of the other "Feminazis" he is always ranting about)? Which is not to say that Limbaugh's comments about Fluke were justified. Only that they are no different than what he has been saying for 20 years.
OK, I think I'm done talking about this.
The Fuhrer comes to Florida
Yesterday, I saw a Mercedes Benz with the Florida license plate "Fuhrer." (I was not quick enough to get a picture with my phone). Any idea how that one slipped through the cracks?
A Two-Pronged Approach for “Citizens United II”
Thanks for Dan and the gang for inviting me back. For my first post, I wanted to comment on Western Tradition Partnership, Inc. v. Attorney General of Montana. For those who do not already know, this is the case that Tom Goldstein over at SCOTUS Blog has dubbed “Citizens United II.” Late last year, the Montana Supreme Court upheld Montana’s century-old campaign finance law, distinguishing Citizens United based in part on Montana’s unique history of political corruption. Not surprisingly, many have viewed that distinction as disingenuous, and the plaintiffs in the case have succeeded in getting the U.S. Supreme Court to issue a stay of the Montana Supreme Court decision, leaving the law suspended while the plaintiffs can file, and the U.S. Supreme Court can act upon, a petition for certiorari. The expectation is that SCOTUS will take one of two courses of action: grant cert. or summarily reverse. No one “in the know” expects that cert. will be denied.
Moreover, Justice Ginsburg, joined by Justice Breyer, issued a statement in conjunction with the issuance of the stay, suggesting that Citizens United be reconsidered and overruled, but ending with this telling observation: “Because lower courts are bound to follow this Court’s decisions until they are withdrawn or modified, . . . Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477, 484 (1989), I vote to grant the stay.” Thus, it is apparent, at least to Justices Ginsburg and Breyer, that the Montana case is materially indistinguishable from Citizens United.
Accordingly, it appears that Montana will gain no traction with at least two of the three Citizens United dissenters currently on the Court arguing that the Montana case is distinguishable on the facts.And if they are skeptical, I imagine that the five Justices in the Citizens United majority are even more so. Moreover, even if, as is likely, Montana has the votes of the final Citizens United dissenter, Justice Sotomayor, and Justice Kagan, who, as U.S. Solicitor General, argued that case for the United States, that leaves Montana one vote short for either overruling or distinguishing Citizens United. Finally, it is unlikely that Justice Kennedy, author of Citizens United, will abandon ship after only two years of experience under a Citizens United regime.
But perhaps Montana can win with a two-pronged approach. First, and most obviously, get the three Citizens United dissenters and Justice Kagan to agree that the case should be overruled outright. Second, get the vote of Justice Thomas – that’s right, Justice Thomas. The hook? At issue is a state statute, not a federal statute, so this is, strictly speaking, a Fourteenth Amendment case, not a First Amendment case.
Sound crazy? Consider two things. First, while eight Members of the Court appear to have drunk the incorporation Kool-Aid -- believing that if a provision of the Bill of Rights is incorporated against the States, it is incorporated "jot-for-jot" -- Justice Thomas remains, at least to a limited extent, an "incorporation skeptic." In a series of Estalishment Clause cases, including Zelman v. Simmons-Harris, and Elk Grove Unified School Dist. v. Newdow, he has articulated his view that the Estalishment Clause, if it constrains the States at all, does so in a different way than it does the federal government. And, tellingly, in a footnote in his concurrence in Zelman, he wrote this:
Several Justices have suggested that rights incorporated through the Fourteenth Amendment apply in a different manner to the States than they do to the Federal Government. For instance, Justice Jackson stated, ‘‘[t]he inappropriateness of a single standard for restricting State and Nation is indicated by the disparity between their functions and duties in relation to those freedoms.’’ Beauharnais v. Illinois, 343 U.S. 250, 294, 72 S.Ct. 725, 96 L.Ed. 919 (1952) (dissenting opinion). Justice Harlan noted: ‘‘The Constitution differentiates between those areas of human conduct subject to the regulation of the States and those subject to the powers of the Federal Government. The substantive powers of the two governments, in many instances, are distinct. And in every case where we are called upon to balance the interest in free expression against other interests, it seems to me important that we should keep in the forefront the question of whether those other interests are state or federal.’’ Roth v. United States, 354 U.S. 476, 503–504, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (dissenting opinion). See also Gitlow v. New York, 268 U.S. 652, 672, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting).
Notice that the dissenting opinions he cites arguing for a two-track First Amendment standard are all in Free Speech Clause cases, not Establishment Clause cases. This suggests that, although Justice Thomas has come out forcefully against jot-for-jot incorporation only in the Establishment Clause context, he is open to such a position in Free Speech cases as well. I understand that he has never adopted this position, much less in a campaign finance case, but it may well be that it has never been presented to him in the briefing.
The second thing to consider is Gonzalez v. Carhart. There, the Court upheld the federal Partial-Birth Abortion Ban Act of 2003, which forbade a certain abortion procedure typically performed late in a woman’s pregnancy. Four Justices dissented on the ground that the Act created an undue burden on a woman’s right to choose to terminate her pregnancy. Justice Thomas, in a concurring opinion joined by Justice Scalia, indicated his essential agreement with the majority on the “undue burden” issue. But he also wrote:
I . . . note that whether the Partial–Birth Abortion Ban Act of 2013 [sic] constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.
I have always wondered why Carhart’s lawyers did not challenge the Act on Commerce Clause grounds. Had they done so, they might have won a split decision 4-2-3, rather than lose 5-4.
And so the same potential for a split decision might exist in “Citizens United II”: four Justices voting to overrule Citizens United and one voting to construe the Free Speech Clause, as incorporated by the Fourteenth Amendment, to be narrower than the Free Speech Clause in its “pure” form. Notably, Montana’s brief in the Montana Supreme Court touched upon this latter argument, as did one amicus brief, but without a full bore analysis of why free speech rights under the Fourteenth Amendment are narrower than those under the First Amendment. And a second amicus brief focused on Justice Thomas, but on his reliance in McDonald v. City of Chicago on the Privileges and Immunities Clause of the Fourteenth Amendment, rather than on his prior writings on the Establishment Clause.
Given what Justice Thomas has written in campaign finance cases that came from the States, getting him to change his vote based on his distinctive views of incorporation may be a long shot. But it also may be Montana’s only chance.
Friday, February 24, 2012
First Amendment Access to "Horse Gathers"?
In Leigh v. Salazar, decided last week, a Ninth Circuit panel reversed and remanded for reconsideration a trial court's denial of a preliminary injunction to a photojournalist seeking unrestricted access to a "horse gather" of wild horses by the Bureau of Land Management. Roundups of wild horses by the BLM are statutorily authorized when necessary to remedy overpopulation. During one of these roundups, the BLM allowed daily public viewings, but restricted the public and a photojournalist for Horseback Magazine to "designated viewing areas" and required them to "sit down and remain quiet during parts of the gather." The journalist challenged the access restrictions. The Ninth Circuit held that the access claims were not moot because the restrictions "could apply to future horse gathers . . . and to [the journalist's] request for unrestricted access to horses in holding facilities" after the gather. Notably, the court interpreted the Supreme Court's courtroom access cases, particularly Press-Enterprise Co. v. Superior Court (Press-Enterprise II), as setting the framework for analyzing whether the press and public had a First Amendment qualified right of access to the horse gathers. This is notable because the court might justifiably have applied the far less generous access precedent of Hourchins v. KQED, which dealt with access to prisons and indicated that the First Amendment does not "mandate[ ] a right of access to government information or sources of information within the government's control." (See, e.g., Flynt v. Rumsfeld, in which the D.C. Circuit refused to apply the courtroom access precedent "outside the context of criminal proceedings").
That said, application of the Press-Enterprise II framework does not guarantee the press and public will receive unrestricted access to the horse gathers or any other government activities. As described by the Ninth Circuit, the Press-Enterprise II framework requires courts to examine whether there is a historical tradition of public access to the particular government activity at issue and whether "public access plays a positive role in the functioning" of the government activity. If these two tests are met, the government may still "overcome" the right of access "by demonstrating an overriding interest" and establishing that its restrictions "are narrowly tailored to serve those interests." Even though the Ninth Circuit's holding does not grant access, it at least evinces a willingness to examine the question closely and perhaps tip the balance in favor of transparency. [The Reporters Committee for Freedom of the Press and the National Press Photographers Association wrote amicus briefs in the case.]
Wednesday, February 08, 2012
Criminalizing Cyberbullying and the Problem of CyberOverbreadth
In the past few years, reports have attributed at least fourteen teen suicides to cyberbullying. Phoebe Prince of Massachusetts, Jamey Rodemeyer of New York, Megan Meier of Missouri, and Seth Walsh of California are just some of the children who have taken their own lives after being harassed online and off.
These tragic stories are a testament to the serious psychological harm that sometimes results from cyberbullying, defined by the National Conference of State Legislatures as the "willful and repeated use of cell phones, computers, and other electronic communications devices to harass and threaten others." Even when victims survive cyberbullying, they can suffer psychological harms that last a lifetime. Moreover, an emerging consensus suggests that cyberbullying is reaching epidemic proportions, though reliable statistics on the phenomenon are hard to come by. Who, then, could contest that the social problem of cyberbullying merits a legal response?
In fact, a majority of states already have legislation addressing electronic harassment in some form, and fourteen have legislation that explicitly uses the term cyberbullying. (Source: here.) What's more, cyber-bullying legislation has been introduced in six more states: Georgia, Illinois, Kentucky, Maine, Nebraska, and New York. A key problem with much of this legislation, however, is that legislators have often conflated the legal definition of cyberbullying with the social definition. Though understandable, this tendency may ultimately produce legislation that is unconstitutional and therefore ineffective at remedying the real harms of cyberbullying.
Consider, for instance, a new law proposed just last month by New York State Senator Jeff Klein (D- Bronx) and Congressman Bill Scarborough. Like previous cyberbullying proposals, the New York bill was triggered by tragedy. The proposed legislation cites its justification as the death of 14-year-old Jamey Rodemeyer, who committed suicide after being bullied about his sexuality. Newspaper accounts also attribute the impetus for the legislation to the death of Amanda Cummings, a 15 year old New York teen who committed suicide by stepping in front of a bus after she was allegedly bullied at school and online. In light of these terrible tragedies, it is easy to see why New York legislators would want to take a symbolic stand against cyberbullying and join the ranks of states taking action against it.
The proposed legislation (S6132-2011) begins modestly enough by "modernizing" pre-existing New York law criminalizing stalking and harassment. Specifically, the new law amends various statutes to make clear that harassment and stalking can be committed by electronic as well as physical means. More ambitiously, the new law increases penalties for cyberbullying of "children under the age of 21," and broadly defines the activity that qualifies for criminalization under the act. The law links cyberbullying with stalking, stating that "a person is guilty of stalking in the third degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directing electronic communication at a child [ ], and knows or reasonably should know that such conduct: (a) causes reasonable fear of material harm to the physical health, safety or property of such child; or (b) causes material harm to the physical health, emotional health, safety or property of such child." (emphasis mine) Even a single communication to multiple recipients about (and not necessarily to) a child can constitute a "course of conduct" under the statute.
Like the sponsors of this legislation, I deplore cyber-viciousness of all varieties, but I also condemn the tendency of legislators to offer well intentioned but sloppily drafted and constitutionally suspect proposals to solve pressing social problems. In this instance, the legislation opts for a broad definition of cyberbullying based on legislators' desires to appear responsive to the cyberbullying problem. The broad statutory definition (and perhaps resorting to criminalization rather than other remedies) creates positive publicity for legislators, but broad legal definitions that encompass speech and expressive activities are almost always constitutionally overbroad under the First Amendment.
Again, consider the New York proposal. The mens rea element of the offensive requires only that a defendant "reasonably should know" that "material harm to the . . . emotional health" of his target will result, and it is not even clear what constitutes "material harm." Seemingly, therefore, the proposed statute could be used to prosecute teen girls gossiping electronically from their bedrooms about another teen's attire or appearance. Likewise, the statute could arguably criminalize a Facebook posting by a 20-year-old college student casting aspersions on his ex-girlfriend. In both instances, the target of the speech almost certainly would be "materially" hurt and offended upon learning of it, and the speakers likely should reasonably know such harm would occur. Just as clearly, however, criminal punishment of "adolescent cruelty," which was a stated justification of the legislation, is an unconstitutional infringement on freedom of expression.
Certainly the drafters of the legislation may be correct in asserting that "[w]ith the use of cell phones and social networking sites, adolescent cruelty has been amplified and shifted from school yards and hallways to the Internet, where a nasty, profanity-laced comment, complete with an embarrassing photo, can be viewed by a potentially limited [sic] number of people, both known and unknown." They may also be correct to assert that prosecutors need new tools to deal with a "new breed of bully." Neither assertion, however, justifies ignoring the constraints of First Amendment law in drafting a legislative response. To do so potentially misdirects prosecutorial resources, misallocates taxpayer money that must be devoted to passsing and later defending an unconstitutional law, and block the path toward legal reforms that would address cyberbullying more effectively.
With regard to criminal law, a meaningful response to cyberbullying--one that furthers the objectives of deterrence and punishment of wrongful behavior--would be precise and specific in defining the targeted conduct. A meaningful response would carefully navigate the shoals of the First Amendment's protection of speech, acknowledging that some terrible behavior committed through speech must be curtailed through educating, socializing, and stigmatizing perpetrators rather than criminalizing and censoring their speech.
Legislators may find it difficult to address all the First Amendment ramifications of criminalizing cyberbullying, partly because the term itself potentially obscures analysis. Cyberbullying is an umbrella term that covers a wide variety of behaviors, including threats, stalking, harassment, eavesdropping, spoofing (impersonation), libel, invasion of privacy, fighting words, rumor-mongering, name-calling, and social exclusion. The First Amendment constraints on criminalizing the speech behavior involved in cyberbullying depends on which category of speech behavior is involved. Some of these behaviors, such as issuing "true threats" to harm another person or taunting them with "fighting words," lie outside the protection of the First Amendment. (See Virginia v. Black and Chaplinsky v. New Hampshire; but see R.A.V and my extended analysis here.). Some other behaviors that may cause deep emotional harm, such as name-calling, are just as clearly protected by the First Amendment in most contexts. (Compare, e.g., Cohen v. California with FCC v. Pacifica).
But context matters profoundly in determining the scope of First Amendment protection of speech. Speech in schools and workplaces can be regulated in ways that speech in public spaces cannot (See, e.g., Bethel School Dist. No. 403 v. Fraser). Even within schools, the speech of younger minors can be regulated in ways that speech of older minors cannot (Cf. Hazelwood with Joyner v. Whiting (4th Cir)) , and speech that is part of the school curriculum can be regulated in ways that political speech cannot. (Compare, e.g., Tinker with Hazelwood). Outside the school setting, speech on matters of public concern receives far more First Amendment protection than speech dealing with other matters, even when such speech causes tremendous emotional upset. (See Snyder v. Phelps). But speech targeted at children likely can be regulated in ways that speech targeted at adults cannot, given the high and possibly compelling state interest in protecting the well-being of at least younger minors. (But see Brown v. Ent. Merchants Ass'n). Finally, even though a single instance of offensive speech may be protected by the First Amendment, the same speech repeated enough times might become conduct subject to criminalization without exceeding constitutional constraints. (See Pacifica and the lower court cases cited here).
Any attempt to use criminal law to address the social phenomenon should probably start with the jurisprudential question of which aspects of cyberbullying are best addressed by criminal law, which are best addressed by other bodies of law, and which are best left to non-legal control. Once that question is answered, criminalization of cyberbullying should proceed by identifying the various forms cyberbullying can take and then researching the specific First Amendment constraints, if any, on criminalizing that form of behavior or speech. This approach should lead legislators to criminalize only particularly problematic forms of narrowly defined cyberbullying, such as . While introducing narrow legislation of this sort may not be as satisfying as criminalizing "adolescent cruelty," it is far more likely to withstand constitutional scrutiny and become a meaningful tool to combat serious harms.
Proposals to criminalize cyberbullying often seem to proceed from the notion that we will know it when we see it. In fact, most of us probably will: we all recognize the social problem of cyberbullying, defined as engaging in electronic communication that transgresses social norms and inflicts emotional distress on its targets. But criminal law cannot be used to punish every social transgression, especially when many of those transgressions are committed through speech, a substantial portion of which may be protected by the First Amendment.
[FYI: This blog post is the underpinning of a talk I'm giving at the Missouri Law Review's Symposium on Cyberbullying later in the week, and a greatly expanded and probably significantly changed version will ultimately appear in the Missouri Law Review, so I'd particularly appreciate comments. In the article, I expect to create a more detailed First Amendment guide for conscientious lawmakers seeking to regulate cyberbullying. I am especially excited about the symposium because it includes mental health researchers and experts as well as law professors. Participants include Barry McDonald (Pepperdine), Ari Waldman (Cal. Western), John Palfrey (Berkman Center at HLS), Melissa Holt (B.U.), Mark Small (Clemson), Philip Rodkin (U. Ill.), Susan P. Limber (Clemson), Daniel Weddle (UMKC), and Joew Laramie (consultant/former direction of Missouri A.G. Internet Crimes Against Children Taskforce).]
Posted by Lyrissa Lidsky on February 8, 2012 at 08:37 AM in Constitutional thoughts, Criminal Law, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Web/Tech | Permalink | Comments (8) | TrackBack
Tuesday, January 24, 2012
Predicting FCC v. Fox: Counting the Oral Argument Tea Leaves
Political science research suggests that the more questions the Supreme Court asks a party at oral argument, the more likely that party is to lose. The tenor of the questions counts, too: hostile questions help predict hostile outcomes. (For some of the research, see Sarah Shullman here, and Timothy Johnson et. al. here). Moreover, a study by Epstein, Landes and Posner suggests, "Justices are more prone to question at oral argument parties against whom they will vote than parties for whom they will vote."
With this in mind I examined and listened to the recent oral argument (1/10/12) in FCC v. Fox Television Stations et. al (docket 10-1293). When decided, Fox will be the first Roberts Court case directly involving the mainstream media, so it is highly significant for media lawyers and anyone concerned about press (and specifically broadcast) freedom. The Fox case asks not only whether the FCC's policy against use of "fleeting expletives" violates the First Amendment, but also whether the entire indecency enforcement regime for broadcasting is unconstitutional. [My analysis of the oral arguments is below.]
Predicting the outcome of Fox is a challenge. Only eight justices will decide the case, because Justice Sotomayor is recused. In the Fox case's prior trip to the Supreme Court for resolution of whether the FCC's adoption of the fleeting expletives policy was arbitrary and capricious, Justice Thomas already clearly signalled his belief that Red Lion and Pacifica, which underpin the FCC's authority to regulate broadcast content in ways that would be unconstitutional in other media, are no longer valid; in that same case, Justice Ginsburg signalled her belief that the FCC's fleeting expletives policy exceeds the bounds of permissible regulation of indecency outlined in Pacifica, and she questioned whether cultural changes might have undermined the entire edifice of indecency regulation constructed pursuant to Pacifica. In light of this, getting the three additional votes necessary to strike down the current system of broadcast indecency regulation does not seem like such an uphill battle.
The oral argument tea leaves, however, arguably aren't as auspicious for dramatic change. Oral argument was an hour long. The Solicitor General Donald Verilli argued for the FCC for 26 minutes initially and then spoke four minutes in rebuttal. Verilli was questioned by Kagan (3+1 during rebuttal), Scalia (3+1 during rebuttal), Kennedy(2), Ginsburg(4+1 during rebuttal), Breyer(1), Alito (1), for a total of 17 questions during his initial argument and his rebuttal. [Note: I didn't count it as a separate question if a Justice asked a clarifying questions incident to his/her first question; for example, Justice Breyer asked only one question of the SG, but he pursued it for some time. Also, I counted as "questions" instances in which the Justice interjected with a statement, because the advocates felt bound to respond or react to these statements. Obviously, however, I made a few judgment calls at the margin that some might disagree with.].
This evidence might signal that Kagan, Scalia, and Ginsburg are highly skeptical of the SG's arguments, and perhaps more prone to vote against him. At least in the case of Kagan and Ginsburg, my bet is that they will vote against the FCC, though whether on narrow or broad grounds is harder to say. However, when one looks at the tone of the questions, there is a difference in the tone of Justices Kagan's and Ginsburg's questions and the tone of Justice Scalia's. Justice Kagan and Ginsburg both sound more skeptical in their questions of the SG's arguments on behalf of the FCC than does Scalia. For example, Justice Kagan kicks off the questioning of the SG with "But, General Verilli, it seems to me that this contract notion of yours can only go so far." (emphasis mine). Justice Ginsburg's first question to the SG, which is the fourth question from the bench, refers to the FCC as "the censor" and asks about the "appearance of arbitrariness" of its indecency decisions. Justice Scalia, on the other hand, seems to be asking a question to help the SG sort out whether regulation of broadcast indecency is justified by the history of regulation, by the acceptance by broadcasters of free and exclusive use of public spectrum, or by precedent and whether the FCC's context based approach to identifying indecency is unconstitutionally vague. Justice Kenndy also questions the SG, but in his question, he seems to be reaching out to "assist" the SG to articulate his best argument for a broadcast "safe haven." The SG takes the cue and seizes upon the lifeline Justice Kennedy has thrown him, and the Justice follows up with more assistance; finally, Justice Kennedy's point is even seized by Justice Scalia, who says "Sign--sign me up as supporting Justice Kennedy's notion that this [regulation of indecency on broadcast airwaves] has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court . . . these are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth." Justice Ginsburg, for her part, enters the fray (cutting off the SG) noting that the words that the FCC is regulating are "in common parlance today" and "the children are not going to be shocked by them the way they might have been a generation ago."
Carter Phillips argued the case for Fox. Phillips was questioned by Roberts (3); Kagan (2); Alito (3); Breyer (1); Scalia (2); Kennedy (1), for a total of 12 question. Then Seth Waxman argued on behalf of ABC and others regarding the FCC's sanctions on the broadcasting of nudity and was questioned by Roberts (3); Breyer (4 total with a very extensive follow-up on one of the questions); Kennedy(2); Scalia (1); Alito (1), for a total of 11 questions. It is noteworthy that Philllips and Waxman were asked a total of 23 questions, 6 more questions than the SG was asked in the same amount of time. It is also noteworthy that Chief Justice Roberts took a very active role, asking six questions of the two advocates, even though he asked no questions of the SG. Chief Justice Roberts also tipped his hand in the manner of his questioning. Roberts stated at one point: "People who want to watch broadcast where these words or expose their children to broadcasts where these words are used, where there is nudity, there are 800 channels where they can go for that. All we are asking for, what the government is asking for, is a few channels where you can say I'm not going to --they are not going to hear the S word, the F word. They are not going to see nudity." It seems very clear from this "question" that the Chief Justice is actually stating an argument he finds persuasive. At another point, the Chief Justice also interjects to support Justice Scalia's criticism that Mr. Waxman's argument regarding selective enforcement of its nudity prohibition is "not a very powerful argument" given the number of broadcasters sanctioned "over 85 years." In addition to all of this, Justice Breyer made it relatively clear in his questioning that he was troubled by the FCC's actions in these cases but was looking for a way NOT to overrule Pacifica. At one point, Justice Breyer even asks Mr. Waxman: "Does this case in front of us really call for the earthshaking decision that you all have argued for in the - - in the briefs? [overturning Pacifica]" (emphasis mine)
Based on this analysis, it appears as if Roberts, Alito, Scalia are in no hurry to overturn Pacifica. Kennedy and Breyer are a little harder to predict, but I wouldn't bet on them overturning Pacifica, either. With regard to Alito, this is certainly no surprise, for he voted in favor of government restrictions on speech in the "funeral protest" case of Snyder v. Phelps and the "crush video" case of U.S. v. Stevens, and thus indicated his support for regulation of offensive speech. But Chief Judge Roberts has previously voted against government interference in the marketplace of idea in cases like Citizens United v. FEC, U.S. v. Stevens, and Snyder v. Phelps. Furthermore, Justice Scalia wrote for the Court in the "violent video games" case of Brown v. Entertainment Merchants Ass'n, which might be labelled a "new media" First Amendment case decided by the Roberts Court: not only did the Court there strike down California's attempts to prohibit the sale of "violent video games" to minors, but it also flatly rejected the argument that any "medium-specific" characteristics of the games, such as their interactive or immersive nature, justified softening First Amendment prohibitions on content-based regulation. Justice Scalia even wrote that although the First Amendment exists "to protect discourse on public matters," full First Amendment protection extends to entertainment media since "we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try." How can the discrepancy between these cases and the Justices' likely approach to FCC v. Fox be reconciled? I can explain, but it will take me a lot longer than this blog post to do so.
Tuesday, January 10, 2012
Not a Free Press Court
The New York Times recently published the results of a study showing that the Roberts Court "is hearing fewer First Amendment cases and is ruling in favor of free speech at a lower rate than any of the courts led by the three previous chief justices." The conclusion that the Roberts Court is not a "free speech" court is provocative because it runs contrary to a prevailing scholarly impression, based no doubt on cases like Citizens United, Snyder v. Phelps, and U.S. v. Stevens, that the Roberts Court "is exceptionally supportive of free speech."
Although that impression may prevail with regard to speech cases (but see Erwin Chemerinsky's article, Not a Free Speech Court), media law scholars certainly have a different impression with regard to press cases. Although the Supreme Court heard oral arguments today in a very important media case, FCC v. Fox Television Stations, the impression among media law scholars is that the Court in the last decade or so has not been taking "press" cases at the same rate it did in, say, the early 1990s or before. Given that the last ten years has been a period of tremendous change and upheaval for the mass media, the dearth of Supreme Court "press" cases during this time (if such dearth exists) is particularly striking, The New York Times article prompted me to see if I could provide some quick and dirty evidence for the existence of the dearth.
To do so, I examined the 2011 edition of a leading Mass Media Law casebook with which I'm intimately familiar to see how many Supreme Court cases decided in 2000 or later had been added to the book, either as principal cases or merely as note cases. My assumption was that any major press case, and likely even any tangential press case, decided by the Supreme Court in the last 10-12 years would find its way into the book in one form or another. Here's what I found, for what it is worth. Since 2000, the following four Supreme Court cases were added to the media law canon as principal cases: Bartnicki v. Vopper (2001); Doe v. Reed (2010); National Archives and Records Admin. .v Favish (2004); and Playboy Ent. Group, Inc. v. U.S. (2000). Note that only one of these cases was added after 2005, though these principal cases are likely to be joined in this year's supplement by the forthcoming FCC v. Fox Television Stations (expected 2012) and by Brown v. Entertainment Merchants Ass'n (2011); and perhaps by Reichle v. Howard (expected 2012) and the Stolen Valor Act case (expected 2012). With regard to note cases, some of which have only attenuated relevance to media actors, the following Supreme Court cases were added to the casebook since 2000: Ashcroft v. ACLU I (2002); Ashcroft v. ACLU II (2004) ; Boumediene v. Bush (2008); Citizens United v. FEC (2010); Dept. of Interior v. Klamath Water Users Protective Ass'n (2001); Eldred v. Ashcroft (2003); Garcetti v. Ceballos (2006); Hamdan v. Rumsefled (2006); Hamdi v. Rumsfeld (2004); McConnell v. FEC (2003); M.K.B. v. Warden (2004); New York Times v. Tasini (2001); Presley v. Georgia (2010); Rasul v. Bush (2004); Reno v. Condon (2000); Snyder v. Phelps (2011); U.S. v. Stevens (2010); Tory v. Cochran (2005); and U.S. v. Williams (2008). What does one make of this data? Standing alone, not much. First, the data is useless unless one trusts the subjective judgments of the casebook authors as to the significance or relevance of the selected Supreme Court cases to the media. Moreover, without a way to compare the number of "major" press cases decided in the last 10 years to the number decided before, it is hard to say for sure that the Supreme Court is deciding fewer press cases than it did in the past. Even if one could say this for sure, the decline in the number of Supreme Court cases involving the institutional press is no doubt partly attributable to the fact that the institutional press has fewer economic resources to devote to litigation in today's highly competitive media environment. Despite that, it does seem there is some basis--at least enough to spur further research--for concluding that the Supreme Court today is not addressing many press cases. For my own part, assembling the small list of potentially relevant Supreme Court press cases decided since 2005 makes me want to dig into the individual cases to discover what role the Roberts Court envisions for the institutional press. As I will detail in a future blog post, the Roberts Court gave more than a glimpse of that role in dicta in the Citizens United case, though whether the arguments it made there have broader significance for the press remains to be seen.
Wednesday, December 21, 2011
Boobies and ta-tas and racks (oh, my)
I've written previously about recurring controversies over students wearing breast-cancer awareness "I (Heart) Boobies" bracelets in public schools. In April, a judge on the Eastern District of Pennsylvania held that a district ban on the bracelets violated the First Amendment. A new controversy has arisen in White Cloud, Michigan, where four high school students were suspended when they refused to remove their bracelets; on Monday, the school board held a public meeting and heard from parents and students about the dispute, as it tries to figure out whether to overturn the suspension. The ACLU also has entered the mix, so litigation is likely. A couple of interesting things in this case.
First, the school permits clothing for breast-cancer awareness containing other slang terms for breasts, including "ta-tas," "funbags," and "rack." The superintendant has said he considers those OK, if borderline, but that boobies is a step too far. I think he is going to have a really hard time explaining that difference as anything beyond his sort-of-inexplicable personal preference. Especially since many would find "funbags" and "rack" more offensive than boobies, which, as one parent stated at the meeting, is really an infantile term. In the Pennsylvania case, the judge noted that the school had announced the ban over the school PA system by actually using the word "boobie," which, the court said, cast doubt on the school's insistence that the word is vulgar. Similarly, the school will have to explain how "boobies" is vulgar when all these other slang terms are not--and I doubt it can.
Second, in response to the suspensions, students hung flyers in the school discussing the Pennsylvania decision and its meaning; school officials removed those flyers. The posting of the flyers would appear to be pure political expression, protected even in public schools and even after Morse. On the other hand would be the question of the status of the school's walls and bulletin boards as fora for student speech and whether pulling the signs down was impermissible content discrimination or something else. This could be an interesting side issue in any litigation. But it also is a unique civics lesson for the students: Government and those in power will often do really petty things to avoid criticism. Although perhaps that is not the lesson the school wants to teach.
Monday, December 19, 2011
Breaking the Net
Mark Lemley, David Post, and Dave Levine have an excellent article in the Stanford Law Review Online, Don't Break the Internet. It explains why proposed legislation, such as SOPA and PROTECT IP, is so badly-designed and pernicious. It's not quite clear what is happening with SOPA, but it appears to be scheduled for mark-up this week. SOPA has, ironically, generated some highly thoughtful writing and commentary - I recently read pieces by Marvin Ammori, Zach Carter, Rebecca MacKinnon / Ivan Sigal, and Rob Fischer.
There are two additional, disturbing developments. First, the public choice problems that Jessica Litman identifies with copyright legislation more generally are manifestly evident in SOPA: Rep. Lamar Smith, the SOPA sponsor, gets more campaign donations from the TV / movie / music industries than any other source. He's not the only one. These bills are rent-seeking by politically powerful industries; those campaign donations are hardly altruistic. The 99% - the people who use the Internet - don't get a seat at the bargaining table when these bills are drafted, negotiated, and pushed forward.
Second, representatives such as Mel Watt and Maxine Waters have not only admitted to ignorance about how the Internet works, but have been proud of that fact. They've been dismissive of technical experts such as Vint Cerf - he's only the father of TCP/IP - and folks such as Steve King of Iowa can't even be bothered to pay attention to debate over the bill. I don't mind that our Congresspeople are not knowledgeable about every subject they must consider - there are simply too many - but I am both concerned and offended that legislators like Watt and Waters are proud of being fools. This is what breeds inattention to serious cybersecurity problems while lawmakers freak out over terrorists on Twitter. (If I could have one wish for Christmas, it would be that every terrorist would use Twitter. The number of Navy SEALs following them would be... sizeable.) It is worrisome when our lawmakers not only don't know how their proposals will affect the most important communications platform in human history, but overtly don't care. Ignorance is not bliss, it is embarrassment.
Cross-posted at Info/Law.
Posted by Derek Bambauer on December 19, 2011 at 01:49 PM in Blogging, Constitutional thoughts, Corporate, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Television, Web/Tech | Permalink | Comments (1) | TrackBack
Wednesday, December 14, 2011
Six Things Wrong with SOPA
America is moving to censor the Internet. The PROTECT IP and Stop Online Piracy Acts have received considerable attention in the legal and tech world; SOPA's markup in the House occurs tomorrow. I'm not opposed to blacklisting Internet sites on principle; however, I think that thoughtful procedural protections are vital to doing so in a legitimate way. Let me offer six things that are wrong with SOPA and PROTECT IP: they harm cybersecurity, are wildly overbroad and vague, enable unconstitutional prior restraint, undercut American credibility on Internet freedom, damage a well-working system for online infringement, and lack any empirical justification whatsoever. And, let me address briefly Floyd Abrams's letter in support of PROTECT IP, as it is frequently adverted to by supporters of the legislation. (The one-word summary: "sellout." The longer summary: The PROTECT IP letter will be to Abrams' career what the Transformersmovie was to that of Orson Welles.)
- Cybersecurity - the bills make cybersecurity worse. The most significant risk is that they impede - in fact, they'd prevent - the deployment of DNSSEC, which is vitally important to reducing phishing, man-in-the-middle attacks, and similar threats. Technical experts are unanimous on this - see, for example, Sandia National Laboratories, or Steve Crocker / Paul Vixie / Dan Kaminsky et al. Idiots, like the MPAA's Michael O'Leary, disagree, and simply assert that "the codes change." (This is what I call "magic elf" thinking: we can just get magic elves to change the Internet to solve all of our problems. Congress does this, too, as when it includes imaginary age-verifying technologies in Internet legislation.) Both bills would mandate that ISPs redirect users away from targeted sites, to government warning notices such as those employed in domain name seizure cases. But, this is exactly what DNSSEC seeks to prevent - it ensures that the only content returned in response to a request for a Web site is that authorized by the site's owner. There are similar problems with IP-based redirection, as Pakistan's inadvertent hijacking of YouTube demonstrated. It is ironic that at a time when the Obama administration has designated cybersecurity as a major priority, Congress is prepared to adopt legislation that makes the Net markedly less secure.
- Wildly overbroad and vague- the legislation (particularly SOPA) is a blunderbuss, not a scalpel. Sites eligible for censoring include those:
- primarily designed or operated for copyright infringement, trademark infringement, or DMCA § 1201 infringement
- with a limited purpose or use other than such infringement
- that facilitate or enable such infringement
- that promote their use to engage in infringement
- that take deliberate actions to avoid confirming high probability of such use
If Flickr, Dropbox, and YouTube were located overseas, they would plainly qualify. Targeting sites that "facilitate or enable" infringement is particularly worrisome - this charge can be brought against a huge range of sites, such as proxy services or anonymizers. User-generated content sites are clearly dead. And the vagueness inherent in these terms means two things: a wave of litigation as courts try to sort out what the terminology means, and a chilling of innovation by tech startups.
- Unconstitutional prior restraint - the legislation engages in unconstitutional prior restraint. On filing an action, the Attorney General can obtain an injunction that mandates blocking of a site, or the cutoff of advertising and financial services to it - before the site's owner has had a chance to answer, or even appear. This is exactly backwards: the Constitution teaches that the government cannot censor speech until it has made the necessary showing, in an adversarial proceeding - typically under strict scrutiny. Even under the more relaxed, intermediate scrutiny that characterizes review of IP law, censorship based solely on the government's say-so is forbidden. The prior restraint problem is worsened as the bills target the entire site via its domain name, rather than focusing on individualized infringing content, as the DMCA does. Finally, SOPA's mandatory notice-and-takedown procedure is entirely one-sided: it requires intermediaries to cease doing business with alleged infringers, but does not create any counter-notification akin to Section 512(g) of the DMCA. The bills tilt the table towards censorship. They're unconstitutional, although it may well take long and expensive litigation to demonstrate that.
- Undercuts America's moral legitimacy - there is an irreconciliable tension between these bills and the position of the Obama administration - especially Secretary of State Hillary Clinton - on Internet freedom. States such as Iran also mandate blocking of unlawful content; that's why Iran blocked our "virtual embassy" there. America surrenders the rhetorical and moral advantage when it, too, censors on-line content with minimal process. SOPA goes one step farther: it permits injunctions against technologies that circumvent blocking - such as those funded by the State Department. This is fine with SOPA adherents; the MPAA's Chris Dodd is a fan of Chinese-style censorship. But it ought to worry the rest of us, who have a stake in uncensored Internet communication.
- Undercuts DMCA - the notice-and-takedown provisions of the DMCA are reasonably well-working. They're predictable, they scale for both discovering infringing content and removing it, and they enable innovation, such as both YouTube itself and YouTube's system of monetizing potentially infringing content. The bills shift the burden of enforcement from IP owners - which is where it has traditionally rested, and where it belongs - onto intermediaries. SOPA in particular increases the burden, since sites must respond within 5 days of a notification of claimed infringement, with no exception for holidays or weekends. The content industries do not like the DMCA. That is no evidence at all that it is not functioning well.
- No empirical evidence - put simply, there is no empirical data suggesting these bills are necessary. The content industries routinely throw around made-up numbers, but they have been frequently debunked. How important are losses from foreign sites that are beyond the reach of standard infringement litigation, versus losses from domestic P2P networks, physical infringement, and the like? Data from places like Switzerland suggests that losses are, at best, minimal. If Hollywood wants America to censor the Internet, it needs to make a convincing case based on actual data, and not moronic analogies to stealing things off trucks. The bills, at their core, are rent-seeking: they would rewrite the law and alter fundamentally Internet free expression to benefit relatively small yet politically powerful industries. (It's no shock two key Congressional aides who worked on the legislation have taken jobs in Hollywood - they're just following Mitch Glazier, Dan Glickman, and Chris Dodd through the revolving door.) The bills are likely to impede innovation by the far larger information technology industry, and indeed to drive some economic activity in IT offshore.
The bills are bad policy and bad law. And yet I expect one of them to pass and be signed into law. Lastly, the Abrams letter: Noted First Amendment attorney Floyd Abrams wrote a letter in favor of PROTECT IP. Abrams's letter is long, but surprisingly thin on substantive legal analysis of PROTECT IP's provisions. It looks like advocacy, but in reality, it is Abrams selling his (fading) reputation as a First Amendment defender to Hollywood. The letter rehearses standard copyright and First Amendment doctrine, and then tries to portray PROTECT IP as a bill firmly in line with First Amendment jurisprudence. It isn't, as Marvin Ammori and Larry Tribe note, and Abrams embarrasses himself by pretending otherwise. Having the government target Internet sites for pre-emptive censorship, and permitting them to do so before a hearing on the merits, is extraordinary. It is error-prone - look at Dajaz1 and mooo.com. And it runs afoul of not only traditional First Amendment doctrine, but in particular the current Court's heightened protection of speech in a wave of cases last term. Injunctions affecting speech are different in character than injunctions affecting other things, such as conduct, and even the cases that Abrams cites (such as Universal City Studios v. Corley) acknowledge this. According to Abrams, the constitutionality of PROTECT IP is an easy call. That's only true if you're Hollywood's sockpuppet. Thoughtful analysis is far harder.
Cross-posted at Info/Law.
Posted by Derek Bambauer on December 14, 2011 at 09:07 PM in Constitutional thoughts, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Law and Politics, Music, Property, Web/Tech | Permalink | Comments (1) | TrackBack
Saturday, December 10, 2011
Copyright and Your Face
The Federal Trade Commission recently held a workshop on facial recognition technology, such as Facebook's much-hated system, and its privacy implications. The FTC has promised to come down hard on companies who abuse these capabilities, but privacy advocates are seeking even stronger protections. One proposal raised was to provide people with copyright in their faceprints or facial features. This idea has two demerits: it is unconstitutional, and it is insane. Otherwise, it seems fine.
Let's start with the idea's constitutional flaws. There are relatively few constitutional limits on Congressional power to regulate copyright: you cannot, for example, have perpetual copyright. And yet, this proposal runs afoul of two of them. First, imagine that I take a photo of you, and upload it to Facebook. Congress is free to establish a copyright system that protects that photo, with one key limitation: I am the only person who can obtain copyright initially. That's because the IP Clause of the Constitution says that Congress may "secur[e] for limited Times to Authors... the exclusive Right to their respective Writings." I'm the author: I took the photograph (copyright nerds would say that I "fixed" it in my camera's memory). The drafters of the Constitution had good reason to limit grants of copyright to authors: England spent almost 150 years operating under a copyright-like monopoly system that awarded entitlements to a distributor, the Stationer's Company. The British crown had an excellent reason for giving the Company a monopoly - the Stationer's Company implemented censorship. Having a single distributor with exclusive rights gives a government but one choke point to control. This is all to say that Congress can only give copyright to the author of a work, and the author is the person who creates / fixes it (here, the photographer). It's unconstitutional to award it to anyone else.
Second, Congress cannot permit facts to be copyrighted. That's partly for policy reasons - we don't want one person locking up facts for life plus seventy years (the duration of copyright) - and partly for definitional ones. Copyright applies only to works of creative expression, and facts don't qualify. They aren't created - they're already extant. Your face is a fact: it's naturally occurring, and you haven't created it. (A fun question, though, is whether a good plastic surgeon might be able to copyright the appearance of your surgically altered nose. Scholars disagree on this one.) So, attempting to work around the author problem by giving you copyright protection over the configuration of your face is also out. So, the proposal is unconstitutional.
It's also stupid: fixing privacy with copyright is like fixing alcoholism with heroin. Copyright infringement is ubiquitous in a world of digital networked computers. Similarly, if we get copyright in our facial features, every bystander who inadvertently snaps our picture with her iPhone becomes an infringer - subject to statutory damages of between $750 and $30,000. Even if few people sue, those who do have a powerful weapon on their side. Courts would inevitably try to mitigate the harsh effects of this regime, probably by finding most such incidents to be fair use. But that imposes high administrative costs, and fair use is an equitable doctrine - it invites courts to inject their normative views into the analysis. It also creates extraordinarily high administrative costs. It's already expensive for filmmakers, for example, to clear all trademarked and copyrighted items from the zones they film (which is why they have errors and omissions insurance). Now, multiply that permissions problem by every single person captured in a film or photograph. It becomes costly even to do the right thing - and leads to strategic behavior by people who see a potential defendant with deep pockets.
Finally, we already have an IP doctrine that covers this area: the right of publicity (which is based in state tort law). The right of publicity at least has some built-in doctrinal elements that deal with the problems outlined above, such as exceptions when one's likeness is used in a newsworthy fashion. It's not as absolute as copyright, and it lacks the hammer of statutory damages, which is probably why advocates aren't turning to it. But those are features, not bugs.
Privacy problems on social networks are real. But we need to address them with thoughtful, tailored solutions, not by slapping copyright on the problem and calling it done.
Cross-posted at Info/Law.
Posted by Derek Bambauer on December 10, 2011 at 06:03 PM in Constitutional thoughts, Corporate, Culture, Current Affairs, Film, First Amendment, Information and Technology, Intellectual Property, Property, Torts | Permalink | Comments (4) | TrackBack