PrawfsBlawg

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.

YLS Admissions Blog: Unapologetically Elitist

My friend Lisa McElroy is a Legal Research and Writing Professor at Drexel.  She alerted me to this blog missive from Yale Associate Dean of Admissions Asha Rangappa, providing advice to potential transfer students: 

“The other part of your application that is going to carry a significant amount of weight is your law school recommendations (we require two).  We use these references to place your grades in context and also to determine what kind of student you are.  A common mistake on this front is to make one of your two required recommendations from a legal writing instructor -- most students do this because they've usually had much more one-on-one interaction with their legal writing instructor than with their other professors, and so the instructor usually knows them well.  There's nothing wrong with this per se, but the Admissions Committee generally likes to have at least two letters from one of your first year core subject area professors, who can speak to your ability to keep up with the subject material, contribute to class discussion, and think through difficult concepts (a third letter from your legal writing instructor is fine).  Letters from professors who went to YLS -- who as you probably know are ubiquitous in the legal academy -- are often especially helpful, since they usually discuss why the applicant would fit into the academic and cultural experience here.  But don't go stalking a Yale alum just for this purpose -- just pick professors from classes in which you have performed very well and you'll be on the right track.”

As Lisa writes (I'm closely paraphrasing her post on the LRW listserve) , the subtext of the advice is basically as follows:  (1) LRW is not a "core subject area;" (2) LRW profs don't really teach "subject material," or at least none that is hard to keep up with; (3) LRW profs don't lead class discussions, or none that require student contributions; (4) LRW profs don't teach difficult concepts, or ask students to think them through; (5) LRW profs are "instructors," and, as such, could not have attended YLS.  [Lisa went to Harvard Law, btw & fwiw!!]

Please also note that those of us who didn't go to YLS couldn't possibly understand the rigors of legal education there, and thus our letters are discounted.

[Addendum: It has been brought to my attention since I originally posted that it is unfair to single out Dean Rangappa as being "gratuitously insulting" simply for being bracingly honest about the elitism in legal academia, and I thought the point a fair one. Dean Rangappa's letter, in fact, is a way of levelling the playing field somewhat for students from non-privileged backgrounds seeking to transfer to YLS; it gives them access to valuable information about how the process really works.  The reason her letter has resonated among LRW profs and others is the fact that many, if not most, law schools treat their LRW profs as second-class citizens and LRW as an unimportant subject that can be picked up by osmosis.]

 

Hello from guest blogger Jeff Yates

I thought about trying to make this introduction  cute with a video of Lionel Richey's "Hello" or something about Hello Kitty, but future me is going to thank present me by keeping this short and not so campy. I'd like to thank Dan and the rest of the Prawfs group for inviting me to guest blog for May.

A little background -- I am an attorney and political science professor at Binghamton University where I usually teach law classes, but sometims dabble in other topics - for instance, next fall I will be teaching a graduate course on The Presidency. You can see more about me here and here.

Here are some of the topics that I *plan* to blog on (emphasis on 'plan' - you never know where this guest blogging thing will take you):

* New lawyer employment woes

* Attorney work hours and working at home in an era of technology

* Use of the title "Doctor"

Hopefully I will come up with some more blogging ideas - until then, thanks for having me.

Hit Lists: Cyber Incitement, Cyber Threats

    As a resident of Gainesville, Florida, incitement has been on my mind lately.  Is the Internet a game-changer for the law of incitement and/or "true threats"? When Gainesville pastor Terry Jones recently burned a Quran and put the video on the Internet, it was specifically foreseeable that violence would result, even though inciting violence was not his purpose. And First Amendment law makes it almost impossible to hold Jones legally responsible for the violent response of his audience. First Amendment law typically assumes (regardless of evidence to the contrary) that audiences will behave rationally and not leap to violence when confronted with offensive speech.  Instead, offended audience members will engage in counterspeech to drive "noxious doctrine" from the marketplace of ideas.  The Jones incident, however, raises the question whether the ideals that underlie current First Amendment doctrine are foundering on the shoals of the new reality the Internet creates. 

   Another recent case raises more directly than the Jones incident the question whether First Amendment principles and doctrines governing incitement and true threats need to be adapted  in light of the unique dangers of Internet speech. In December 2010, blogger and occasional radio talk show host Hal Turner was convicted of threatening to assault or murder three federal judges based on a blog post stating that they "deserved to die" for affirming dismissal of a challenge to a handgun ban. "The postings included photographs, phone numbers, work address, and room numbers of these judges, along with a photo of the building in which they work and a map of its location." [FBI Press Release]  Turner's attorney evidently plans to appeal.

 Although the Turner case was tried as a "true threats" case, the speech involved fits at least as squarely into the legal definition of "incitement."  The line between true threats and incitement is not always clear.  In Virginia v. Black, 538 U.S. 343 (2003), a plurality of the US Supreme Court defined "true threats” to "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat." True threats are not protected by the First Amendment because they engender fear and intimidation and disrupt the lives of victims.  Incitement, by contrast, involves advocacy "directed to inciting or producing imminent lawless action" that is "likely to incite or produce such action." Incitements are unprotected because they create a likelihood of violent actions, not because of the fear they engender.

    Put (overly) simply, the distinction between a threat and an incitement is as follows. A threat involves a speaker saying to a victim: "I will do you harm."  Whereas, an incitement involves a speaker saying to third parties: "You ought to harm someone (or some thing)." This distinction gets blurred, however, in a case like Turner's.  Turner's statement was arguably designed to create fear and intimidation in the three federal judges against whom it was directed and to cause them to change how they ruled in future cases.  However, it was not clear that Turner contemplated personally doing violence to the judges.  Instead, his speech was aimed at persuading a third party to do violence to the judges "on his behalf," so to speak. His speech deserves censure (moral certainly, legal arguably) because it magnifies the risk of violence by unidentified third parties, and the risk is undoubtedly greater because the speech took place on the Internet.

     But would it meet the constitutional test for unprotected incitement?  Brandenburg v. Ohio arguably would prevent convicting a defendant like Turner for incitement, unless the contours of current doctrine are dramatically altered to fit the Internet context. Brandenburg provides strong protection for advocacy of violence by  radical dissidents like Turner, and it is a proud pillar of American First Amendment jurisprudence precisely because it sets an extremely high bar to imposing liability in incitement cases. The speech in Brandenburg, though, is completely despicable. There, the Supreme Court defended the right of a hooded Ku Klu Klan speaker to exhort his audience to "[s]end the Jews back to Israel," and to "[b]ury the niggers." This speech took place at an "organizers' meeting" of the Klan, at which some of the attendees were clearly armed. The Supreme Court nonetheless found the speech to be protected by the First Amendment.

    In striking down Ohio's prosecution of the Klansmen for advocating criminal activity, the Court stated that the First Amendment does not allow "a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."  In order for a speaker to be prosecuted for incitement, therefore, the State must show (1) intent to incite another; (2) to imminent violence; and (3) in a context that makes it highly likely such violence will occur.  Brandenburg's test appreciates the fact that the State is likely to over-predict violence from speech, and it seek to ensure that suppression is not based on fear or dislike of radical ideas or speakers.

    The main obstacle to convicting Internet speakers under Brandenburg is the imminence requirement.  Brandenburg's imminence requirement was designed around the speech situation it presented: a firebrand speaker trying to rally a crowd in a physical setting.  Brandenburg contemplates liability for speakers in those rare instances where a "mob mentality" is especially likely to take hold and lead to violent action.  The paradigm case for Brandenburg, then, is a speaker exhorting an angry torch-wielding mob on the courthouse steps to burn it down immediately. It is only in such cases, where there is no time for "evil counsels" to be countered by good ones, that advocacy of violence crosses the line into incitement.

    Brandenburg's sanguine attitude toward the prospect of violence rests on an assumption about the audiences of radical speech.  Brandenburg assumes that most citizens (even Ku Klux Klan members) simply are not susceptible to impassioned calls to violent action by radical speakers.  In fact, Brandenburg represents the fruition of a libertarian theory of free speech planted by Justices Oliver Wendell Holmes and Louis D. Brandeis in a series of mostly dissenting opinions brought against social radicals following World War I. As I've discussed elsewhere, that theory makes several assumptions about the likely "audiences" of potentially inciting speech. The most fundamental assumption is that these audiences are typically composed of rational beings who will not leap to violence simply because radical speakers urge them to do so. Not only is the audience assumed to be rational and skeptical, but they are also assumed to be willing and motivated to engage in public discourse to refute dangerous falsehoods or "noxious doctrine."  

Cyber incitement represents a challenge to the rational audience assumption underlying incitement doctrine (and much of First Amendment law).  Audiences in cyberspace arguably differ from audiences in "real space" in ways that justify changing our assumptions.  How is cyber incitement different than incitement in "real space"? One of the main problems identified by scholars is audience size.  Initially, it might seem that size ought not to matter, but here's what the size complaint really means. If you magnify the potential audience, you magnify the chance that the speech will reach an audience member who is NOT rational and NOT willing to listen to counterspeech that defuses the violent advocacy of its dangers.  This prospect is heightened by the technology of search; cyber audiences searching out violent advocacy on the Internet may be searching for confirmation of their own violent plans or projects and may be especially impervious to counterspeech even if it were immediately available, which it is not.  [It is also worth mentioning that Internet speech crosses geographical borders into communities where counterspeech is not the norm.]

A related argument is that cyber audiences may be more susceptible to indoctrination and exhortations to violence than the audience envisioned by Brandenburg.  [Let's remember, however, that Brandenburg involved a Klan rally!]  Certainly the Internet enables subcommunities of hate to flourish, and interactions within these subcommunities may serve to "normalize" violence.  These communities are supported by the anonymity the Internet enables, and the speed of Internet communications allows speakers to reach individual audience members at the point when they are most vulnerable to calls for violent action. 

Finally, audience members in "real space" are "connnected" to one another and thus can exert a restraining influence on the individual who is spurred to violent actions by the words of a fiery speaker. Brandenburg contemplated the dark side of crowd behavior and specified that incitement can occur when a mob mentality is likely to take hold; the flipside of "mob mentality," however, is that audiences--even audiences of Klansmen--rarely react with immediate violence to impassioned rhetoric, which sends a signal to those individuals who would undertake violence if left to their own devices.   The moderating influence of crowd response cannot take place in cyberspace, which is yet one more reason that cyber incitement may indeed justify a different legal response than incitement in real space.

That said, I am generally skeptical of legal doctrines that assume the worst of audiences, especially in light of the tendency of governments to overstate the link between speech and violence.  If the imminence requirement is to be replaced in cyber incitment cases, it should be replaced by a requirement that still tips strongly against suppression of threatening hyperbole directed toward public institutions or public officials. 

 

A Writer's Time

 
I came to the study of law because it seemed like a good career for someone who loved reading, writing, and analyzing texts but was not creative enough to make it as a novelist nor independently wealthy enough to risk becoming a medievalist.  I also thought that studying law would allow me to make things happen in a way that studying the venerable Bede might not.  I question some of my reasoning now, but the decision has turned out to be an excellent one for me.  Yet I always admire those who tread the path not taken.  One of them is my friend Maud Newton, who was one of my very fist research assistants in her former life--the one she partly abandoned to pursue her dream of writing fiction.  Maud  (though I still think of her by a different name) is a well known literary blogger, and she and I share a fascination with the writing process.  She has a great post this week about her struggles to finish her novel, and it includes the following quotation from E.B. White:

[T]here is nothing harder to estimate than a writer’s time, nothing harder to keep track of. There are moments — moments of sustained creation — when his time is fairly valuable; and there are hours and hours when a writer’s time isn’t worth the paper he is not writing anything on.

I am not a novelist, but I do presume to call myself a writer, and I find it oddly encouraging that the great E.B. White experienced the same joys and frustrations with writing that I do.  I plan to track down One Man's Meat, the work from which this quotation was drawn, immediately.

 

Blog Law Blog - My New Blog

I have started a new blog: Blog Law Blog.

It is a blog about the law of blogs. Hence, "Blog Law Blog."

There is a long tradition of law blogs - i.e., blogs chasing the law. But Blog Law Blog is about the opposite transaction - the law pursuing the blogs. 

People are getting sued, of course. People are also going to jail. One guy in California got his home raided by a special police joint-task force after he blogged about a mobile phone found in a bar. And a judge recused himself over a blog incident.

There are many areas of substantive law involved. The law of blogging implicates copyright law, defamation law, FTC regulation, journalist shield laws, the First Amendment, and many other doctrinal fields. 

I believe that Blog Law Blog is the only blog out there specifically dedicated to the law of blogging. If you know of another, please tell me. 

I've been publishing a post every weekday since late April. It turns out there's a lot of blog law to blog about. I hope many of you will find it worthwhile.

Search of Gizmodo Journalist's "Newsroom"/Bedroom: Federal Law

There are interesting new developments in the case of the "lost" iPhone 4G prototype.  On Friday, police searched the home of the Gizmodo editor Jason Chen pursuant to a search warrant, purportedly to find evidence of a felony with regard to Chen's purchase of the iPhone prototype from someone who ostensibly found it in a bar.  According to the New York Times, the police seized four computers and two servers from Chen's home but did not arrest him.  There are many fascinating issues here for those of you who are specialists in criminal law or intellectual property.  For media lawyers, there is the attraction of this novel issue:  Should an online "journalist" receive protection under the federal Privacy Protect Act of 1980, 42 U.S.C §2000 et. seq., which is designed to prevent seizures of "work product" and "documentary materials" from newsrooms?  The answer is probably yes, though this may be of little assistance to Gizmodo editor Chen under the peculiar circumstances of this case.

The Privacy Protection Act makes it "unlawful" for law enforcement officials "to search for or seize" media "work product materials" or "documentary materials."  The Act applies to local, state, and federal law enforcement searches and seizures; indeed, it applies to searches by any "government officer or employee."  Although the act is designed to protect newsrooms, Chen's "work product" ordinarily should be protected from search or seizure because it is "possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  Likewise, his "documentary materials" are protected because they are "possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce."  As a writer for the blog Gizmodo (owned by parent company Gawker Media), Chen certainly seems to qualify as a person intending to disseminate a form of public communication "similar to" a newspaper that "affects" interstate commerce.  However, . . .

. . .and this is a big however, there are exceptions to the PPA's prohibition on searches and seizures of media work product and documentary materials, and these exceptions might come into play in Chen's case.  For example, law enforcement may seize documentary materials or work product when they have probable cause to believe that the person possessing the materials (i.e., Chen) has committed a criminal offense, unless that offense consists in receipt, possession, communication, or withholding of the documentary materials or work product.  The purpose of this exception is to prevent a reporter from shielding his own criminal acts from discovery by using the PPA.  Depending on whether payment for and receipt of the lost/possibly stolen iPhone was a crime, this exception might prevent Chen from claiming that his materials were protected from seizure by the PPA.  I am not an expert on the substantive criminal law, but one thing I know for sure is that receiving stolen information is one thing [See Bartnicki v. Vopper] but receiving stolen property is another. 

[It is also worth noting here that California also has a state analog to the PPA, and reporter's privilege issues might come into play in this case as well.  But those are blog posts for another day or for someone else.] 

On Misappropriation...

I found Lyrissa Lidsky's recent Prawfs post on the misappropriation doctrine quite thoughtful, especially the potential connection to blogger lifeblood - commenting on news collected by someone else. I wanted to share a few thoughts on the topic, primarily because I find myself in what appears to be a small minority - academics who think misappropriation is a good thing.

Now, when I say "misappropriation," I don't mean stupid stuff like the NBA trying to protect basketball scores. I also don't mean sheep in wolf's clothing applications where a plaintiff tries to claim misappropriation because it failed to protect its trade secrets (I defended plenty of those cases in practice - yuck!).

I'm talking about "hot news" and other time sensitive factual information that is costly to gather. This is information that is undeniably public and copyable - indeed, that's the whole point. If it were secret, you might be able to claim trade secrecy. If it were creative, you might be able to protect it with copyright. What to do about undeniably public and factual information is a difficult question - one that I can only begin to answer after the jump.

The typical answer these days falls into the "information wants to be free" category - if it is factual and public, then society is best served by it being spread. I'm just not so sure. I think there's an important externality that gets missed - the decreased incentive to gather information in the first place. To me, the question is not whether information wants to be free, but whether it should be.

Many have criticized newspapers, a dying medium, for failure to get into the modern cyber world. Why can't they just figure out how to publish all their news in an easily accessible digital format - for free no less - and figure out how to make money? The answer is simple - if information is available for free, no one will pay for it. And it is costly to gather news - if newspapers don't get paid for the work of uncovering news stories, they won't do it.

The result is closure of newspapers because their news gathering no longer gives them a competitive edge. This leads to a consolidation of news stories, which leads to echo chambers with thin content and even thinner analysis. I hardly need to point to examples. The latest is the April Fools Joke about the White House Blogger that fooled no less than the New York Times (the Times!). Why? No time, no money, no incentive to do fact checking. Information is out there - let's just copy it from somewhere else, and assume that someone else will gather the news. (I'm happy to say the Washington Post took the time to fact check and discovered the hoax).

So, I don't like where the news world is going. I like free and instant news as much as the next person. But I wouldn't mind a little bit of for-cost news gathering rather than press-release repetition now and again. Real news gathering is still out there. I've been quoted in a couple stories in the San Jose Mercury News recently - 20 minutes of interviews for a one line quote. From the questions he asked me alone, it's clear that the reporter took his time to research and understand the story before printing it. I think that's a luxury we will see less of in coming years. It's no surprise that AP is starting to crack down on copyright and hot news arguments - it is one of the few real news gathering organizations out there - with reporters everywhere - and it wants to stay that way. It simply won't be able to afford to do so if only one provider pays for content while everyone else just copies the news or snips the facts someone else paid to gather.

So, where does this leave bloggers? I don't think blogging will come to an end. Blogging can be plenty vapid. How many blogs do we need to report the news that Michael Jackson died? Are they telling us something we don't already know? Not that this is the type of news gathering I'm talking about, but the real value of a blog is the commentary - and that can be done with a link back to the original news source, not a replacement of it. Anyone who reads a blog as a replacement for their daily news is either grossly under-informed or reading a blog that perhaps should be subject to a hot news delay. (Indeed, even some bloggers want their own content delayed).

Even though I believe in the misappropriation doctrine, line drawing is difficult. At some point, news must be shared. Theflyonthewall.com case discussed by Prof. Lidsky tries to draw that line. I don't know if it gets it right. Finding the line is where the hard work lies.

Good to be Back and Bilski Redux (Again) [Maybe]

Thanks again to Prawfs for having me back this month. This is my fourth stint as a guest blogger - time flies!

I won't have much to say until next week, as I'm house hunting with the family in Pennsylvania this week. I'll blog a bit about that and other thoughts lateraling that may be of interest.

I also plan to blog about a couple articles I've been working on, and with any luck, the Supreme Court will rule on Bilski v. Kappos this month. My timing has been uncanny with respect to that case, as I was a guest blogger when the Federal Circuit ruled, when the Court granted cert, and when the oral argument was held. If the opinion issues this month, I'll be batting 1.000.  Stay tuned!

Whither law firm prestige?

With the economic and law market downturn we are hearing a lot about shifts in the legal market paradigm - the end of the billable hour, changes in associate recruitment and training, etc.. I recently came to find out about a web entity that made me thing about potential changes in the way clients choose and manage their law firms. Traditionally, firm prestige has been very important in attracting clients, however as with many business situations it has historically been driven by word of mouth and other fairly informal measures of the quality of past work. In the information age we inhabit, many traditional paths to acclaim and reputation have been either supplanted or at least augmented by more direct and systemic measurements of perceived quality. 

For instance, consider Tripadvisor and similar hotel rating programs. They provide a good bit richer information than the traditional star rating, word of mouth, or travel book recommendations. Prior guests post numerical ratings on a number of dimensions, provide specific comments on their experience, and can even upload photos of their room and the rest of the hotel. In similar vein, professors now are subjected to online ratings for their classes. How long will it be before clients come to primarily use similar services to inform their choice among law firms? Granted, I am pretty sure that the NLJ 250 probably won't be displaced by small local firms completely. Further, there are the M-H peer review rankings to consider. 

Still, I am curious as to whether firms will be able to fend off these type of evaluation systems that have, at least to some degree, come to drive markets in other areas. Further, might clients also take note of sealed bid proposal systems that have become popular in e-commerce (similar to traditional construction firm practices) in deciding which law firm will represent them? Now, back to that web entity I had alluded to previously - Elance.com. This site allows clients seeking expertise (including legal expertise) to evaluate potential contractors with rich evaluation data and it incorporates a bid system for hiring. Is this the future of law firm hiring? Whither traditional notions and pathways of law firm prestige? I'm guessing that it's unlikely that such a system would largely supplant traditional firm prestige, but I would not be surprised if certain aspects of such a system became increasingly utilized in the law market. Below is a short video explaining how Elance works - rest assured, I have no stake in their success; it just started me thinking on these matters.

Jeff