Author: Neil Richards

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More on Naming and Orwell (and Pigs)

napoleon pig.jpgTim’s interesting recent post on naming made me think about other strange naming laws, and I was reminded more of some of the intricacies of the French system, in which there is an approved government registry of names (no calling your sons Anakin, Monsieur!). In this vein, the Times recently reported on a peculiar extension of this rule to pig-naming: In France, it is apparently illegal to call your pig Napoleon. Such a law would be a very easy case under American free speech jurisprudence, as it is not only a content-based restriction on political speech, but also arguably viewpoint-based. I wonder whether it would also apply to George Orwell’s Animal Farm, in which the principal villain is a Berkshire Boar named Napoleon. Curiously, in the French translation of the novel, he is named Cesar instead, which was apparently a concession to the political controversy that calling a pig “Napoleon” in France would have created, even in a novel.

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Roberson for the Social Networking Generation?

Picture (Flour of the Family).JPGThe New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of “loser” pen pal that cell phone subscribers could finally “dump.” The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I’m most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan “flour of the family.” Although the New York Court of Appeals rejected the young woman’s claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article “The Right to Privacy” was adopted in a variety of related contexts, but this dimension of privacy — the appropriation of likeness for commercial purposes — has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that’s a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one – the hurt feelings stemming from the unwanted exposure of one’s likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it’s no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce – we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.

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The ACLU’s “Declaration of First Amendment Rights and Grievances”

ACLU.jpgLast week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States

government:

• Ignores its representative mandate by governing in the shadows.

• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.

• Secretly uses private parties to spy and seeks immunity to cover their illegalities.

• Silences dissent.

• Prevents citizens from petitioning their elected offi cials.

• Profiles individuals and denies freedom of movement based on association.

• Falsifies information to deny liberty.

• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.

• Prevents soldiers from communicating with their families and prosecutes their lawful speech.

• Silences whistle blowers.

• Censors the press, broadcast media, and Internet based on content.

• Prosecutes the press for revealing illegal programs.

• Obstructs oversight by elected officials.

• To preserve secrecy, places secret holds on bipartisan open government legislation.

• Funds religious programs.

• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.

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Freedom to Teach?

academe.jpgThe American Association of University Professors recently issued a white paper on academic freedom in the classroom. The report is a statement of principles by its Committee A on Academic Freedom and Tenure, which includes law professors Matthew Finkin (Illinois) and Robert Post (Yale), in response to a series of calls (including legislative proposals) for “balance” and neutrality of viewpoint in the classroom:

[C]ontemporary critics of higher education argue that instructors must refrain from stating strong opinions, for doing so would both lack balance and constitute indoctrination; that instructors must not advance propositions germane to a subject if some students with deeply held religious or political beliefs might be offended, for

doing so would create a hostile learning environment;and that instructors must abjure allusions to persons or

events that advance discussion but that some students might fail to perceive to be clearly connected to a course

description, for doing so would inject irrelevant material into the classroom. Such restrictions would excise “freedom

in the classroom” from the 1940 Statement; they would conduce not to learning but to intellectual sterility.

The response of the AAUP can be summed up in their own words as follows:

Close analysis of recent charges of classroom abuse demonstrates that these criticisms

do not seek to vindicate professional standards, because they proceed on premises that are inconsistent with

the mission and practice of higher education. Calls for the regulation of higher education are

almost invariably appeals to the coercive power of the state. In recent attempts to pass legislation to monitor

and constrain faculty in the classroom lies a deep menace, which the architects of the American concept

of academic freedom properly conceived as a potential “tyranny of public opinion.” American universities

have been subject to this tyranny in the past. Walter Gellhorn observed in 1952 that the drive to root out

communists was based on the assumption that “they will abuse their academic privileges by seeking to

indoctrinate students.” Gellhorn noted that when the New York legislature declared in 1949 that communists

ought not be permitted to teach because they disseminate propaganda, the legislature added that the

propaganda “was frequently ‘sufficiently subtle to escape detection in the classroom.’” Modern critics of the university seek to impose on university classrooms mandatory and ill-conceived

standards of “balance,” “diversity,” and “respect.” We ought to learn from history that the vitality of

institutions of higher learning has been damaged far more by efforts to correct abuses of freedom than by

those alleged abuses. We ought to learn from history that education cannot possibly thrive in an

atmosphere of state-encouraged suspicion and surveillance.

The report (which is available in the latest issue of Academe) makes fascinating reading for anyone interested in ideas of academic freedom in the classroom and teaching more generally. In my free speech and privacy classes at Wash. U., we inevitably encounter controversial issues, both about the jurisprudence and the political struggles that guide it, including terrorism, obscenity, criticism of the government, and older issues that once convulsed the nation like Vietnam and the Red Scares. I rarely take stands (at least intentionally) on these questions, but mostly because I believe that the nature of the subject demands a certain agnosticism from me given the commitments to the free exchange of ideas that is at issue in the jurisprudence. In this regard, recognizing my own ability as instructor to affect the marketplace of ideas in my classroom, I take the invitation that Tim has just given to the Senate. Sometimes I will take positions (whether I agree with them or not) in order to advance the discussion, but I try not to get too ideological, even though I have strong personal and scholarly views that are inevitable given the amount of time I spend thinking about questions of free speech and privacy in a democratic society.

But I do think it’s both inevitable and appropriate that faculty will bring their opinions as well as their knowledge into the classroom (even with the big assumption that we can separate the two). Scholars (especially those in the humanities and law schools) spend much of each day thinking and writing and developing normative or interpretive arguments. These arguments are put before the public in their writing and in the media, and there is no reason that they should not be presented to their students. Indeed, to do otherwise would be to deprive the students of the very thing they are paying a small fortune to receive – to be exposed to intelligent people with (hopefully) original thoughts about important topics. Of course, faculty must be careful not to present their ideas as truth – if they are making an argument, they must provide sufficient opportunities to be disagreed with (especially in law schools, where this exchange can serve valuable goals at the heart of the pedagogical project). Faculty may cross the line here, but I agree with the AAUP report that when this happens, internal mechanisms of professional discipline, not external regulation, is the appropriate response.

In any event, the report is a thoughtful and thought-provoking take on some critical and timely issues, and even if you don’t agree with me (or them), it’s well worth reading and thinking about.

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Saggy Pants and the First Amendment

PANTS2.jpgThe city of Atlanta, as the Chicago Tribune reported recently, looks likely to join a growing number of cities that have enacted laws regulating saggy trousers as constituting indecent exposure. These laws strike out at the fashion of men wearing their pants off their hips exposing their boxers or women wearing their jeans low so as to expose thongs. Unlike school dress codes regulating hip-hop clothing that have been promulgated in cities like Indianapolis, these laws apply beyond the school context to regulate dress in public.

It’s an interesting question whether these laws would violate the First Amendment as currently understood. On the one hand, we know from cases like Cohen v. California that the government cannot regulate clothing’s expressive qualities, even when such expression contains profanity. On the other hand, notwithstanding the Cohen line of cases, indecent exposure laws requiring people to wear clothes are probably constitutional under some kind of residual (and weak) power to require decency in public. Saggy pants laws form a kind of hybrid case, regulating in terms of indecent exposure on the theory that undergarments cannot be displayed in public, but seem to be directed at the expression of identity through clothing. The harms that these laws seek to remedy are those of personal offense and outrage – something like “I am offended by the dress of that young man over there.” Laws that try to protect hurt feelings from being upset (particularly in public) tend to do very poorly when subjected to First Amendment analysis. Moreover, because saggy pants laws single out a particular fashion for regulation, I would think that they raise serious constitutional problems under the First Amendment. That said, given the murky government power to enact indecent exposure laws, I’d be hesitant to call all saggy pants laws categorically unconstitutional under current doctrine without the text of an actual ordinance and/or facts upon which to apply it.

But putting First Amendment doctrine to one side, I still think saggy pants laws would be a terrible idea. Our clothes can be a form of personal expression – they are one of the most important ways we project our selves and our identities to the world. The government may decide (and be entitled to) regulate the dress of children in school in pursuit of educational objectives generally, but outside that narrow context, it is up to children (and their parents) to decide how they should dress. Indecent fashion statements, like other forms of expression, are not the kinds of things that the government should be wasting its time, energy, and scarce law enforcement resources on. I would imagine that the Atlanta police probably have more pressing problems to deal with than young people (or maybe even the elderly) showing too much thong. There’s also a significant racial component to this issue, as the fashions being scrutinized are inspired and associated with Black popular culture. This is an additional consideration of constitutional magnitude counseling a light regulatory hand here.

I think that in the long run, we’ll look back on this question with the same incredulity that we now regard the fuss over Elvis Presley’s swiveling hips on Ed Sullivan or the long-haired men and short-haired women of the 1960s. Politics has fashions no less than clothing, and I hope this fashion for these kinds of laws will soon go the way of New Wave hairdos and other regrettable fashion mistakes.

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Orwellian Surveillance (Quite Literally)

Orwell.jpgWhen people think of surveillance, they frequently think of George Orwell, the English writer whose depictions of surveillance in his novel Nineteen Eighty-Four continue to resonate and inform our cultural and legal understandings of privacy. Orwell’s critics (and even some of his friends) thought he was a bit paranoid, but recent documents released by the British government suggest he had a point. The documents show that Orwell was himself monitored by the British government’s Special Branch police for over a decade because he was suspected of being a communist. A particularly amusing note in one of the documents explained that, referring to Orwell, “This man has advanced communist views … He dresses in a bohemian fashion both at his office and in his leisure hours.” The documents also reveal that Orwell apparently had tattoos on some of his knuckles, which he apparently picked up as a young man living in India.

Orwell was being watched because he was feared to be a communist, a charge that we know (and the government finally figured out after watching him for a decade) to be nonsense. But watching people because they were communists was considered perfectly acceptable in the context of the communist era. One wonders what (and who) is in the surveillance files currently being created by Western governments as part of the war on terrorism. Unfortunately, absent a leak or the extended passage of time, we may never know.

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British Cuisine: In Defense of the Indefensible?

roast-beef.jpgBritish food is terrible. Bland food, over-cooked vegetables – if you’re there, stick to the Indian restaurants, right? Well, not exactly. British food (usually referred to as “English food”) has a terrible reputation, especially in America, but this reputation is just not deserved. As a Briton living in America, I’ve become tired of this misconception. So, even though I realize that I’m perhaps unlikely to convince many people on this side of the Atlantic, I thought I’d share a few thoughts in the spirit of the last part of this blog’s motto of “Law, the Universe and Everything.”

1. Familiarity breeds contempt. I think a lot of the problems that Americans have with British food is that it is similar enough that it’s not exotic, yet not similar enough to be comforting. The basic techniques and ingredients between British and American cuisines are almost identical, so that Americans in Britain order things they think are familiar and are disappointed that things are not as they expected them at home. Yet while things are different, they are not so different as to have the novelty of, say, having sushi for the first time. The peculiar thing is that Irish food doesn’t have the same terrible reputation as food from the UK, even though the two are even more similar than US and UK food.

2. Restaurant food isn’t always representative of a cuisine. Britain has long had some really bad restaurants, especially in the tourist areas of London. But unlike America, where dining out has been in integral part of the culture for many for a long time, Britain’s restaurants have not occupied a similar cultural position. The real power of British cuisine has lain not in its chefs, but in its homes – in everyday food, particularly the institution of the Sunday roast. (Of course, there are thousands of bad restaurants in America that serve poor processed food as well).

3. Chef culture and the new British food scene. The restaurant scene in Britain has changed in recent years. Industrially processed convenience foods may have weakened the home cooking culture, but at the same time a fantastic variety of restaurants have emerged in the capital and elsewhere, taking traditional recipes in new and exciting directions. Britain is obsessed with its celebrity chefs – people like Gordon Ramsay, Jamie Oliver, Nigella Lawson, and Delia Smith. And the culinary renaissance is such that London is now a foodie city that can stand on a par with New York or even Paris.

4. Supermarkets. But the real advantage of British cuisine (at least compared to American) is in its supermarkets. Go into a British supermarket today, and you’ll find that the quality of the produce – especially the fish and fresh vegatables – is on average far superior to its American counterpart. Often, you’ll find the produce labeled not only with the country of origin (increasingly Britain, where possible), but also the county. You can still find strawberries that taste like potatoes, but not as often as you can in America, where many children grow up thinking that strawberries should be white and crunchy inside.

5. Glass houses. A final point about American disdain for British food is one of caution. British cuisine is not perfect, but it is (and has been) far better than Americans give it credit for. But before Americans cast the first stone (or rotten tomato, or black pudding), think about the American crimes against food. McDonald’s (especially if you’ve read Fast Food Nation or seen Super-Size Me), Agri-Business and industrialized food production generally, rubbery cheese, spongy bread, corn syrup-based beverages, and gigantic portions of often mediocre food.

For what it’s worth, I think the Wikipedia entries on English and Scottish Cuisine are quite fair, and take a balanced view on an issue that rarely receives reflection. Comments, as always, are open for discussion (and in this case, possible lazy cheap shots).

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Some More Thoughts on the NSL Gag Order Case and the First Amendment

There’s been a lively debate brewing in the comments section of my post on yesterday’s National Security Letters decision in Doe v. Gonzalez, in which a federal judge in the SDNY struck down a provision of the Patriot Act allowing the FBI to impose gag orders on recipients of NSLs. In light of this discussion, I wanted to say a few more words about how First Amendment values are threatened by NSLs.

NSLs raise First Amendment issues on at least two different levels. On the surface is the level adjudicated yesterday – the issue of when the FBI can determine that its requests for information about others can be made secret such that the recipient of the request cannot disclose this fact. As Jack Balkin argues (persuasively, in my view) the district court in Doe correctly struck down what was a licensing scheme that rested on the discretion of the government. This is a straightforward application of Freedman v. Maryland, 380 U.S. 51 (1965), which requires that due to the risks of censorship, government cannot require a license to speak except when it follows rigorous procedural safeguards. Freedman involved the licensing of allegedly obscene movies, whereas this case involves speech about the fact of government use of secret surveillance powers. There is, of course, a substantial (yet also vague) government interest in national security on the other side here, but the fact remains that whereas Freedman involved speech that the government had the power to regulate because it was potentially outside the protection of the First Amendment, the NSL gag order provisions involve core political speech. Our best guide for how that balance should be struck in the prior restraint context, the Pentagon Papers case, 403 U.S. 713 (1971), comes down squarely on the side of free speech. So at the level of First Amendment doctrine on the gag order provision, I think the decision in Doe is correct.

My post (and my research interest in this issue) is not about this surface threat to First Amendment values. It is instead about a deeper and ultimately more important level at which NSLs and other government tools of secret surveillance threaten First Amendment values. Even if we subject the NSL gag orders to meaningful judicial review as the Doe court insisted we do, the right to speak about the surveillance rests if at all on the third party who was served with the NSL. Unless that party is both able to speak up and actually does speak up, the real target of the surveillance is unaware that the government is scrutinizing them. So even after yesterday’s decision, NSLs still allow the government to engage in widespread secret surveillance. Yesterday’s decision did nothing to change the fact that NSLs can be used to scrutinize a person’s intellectual activities, including potentially the people they call, the web sites they visit, and even the terms they enter into a search engine. Because many of us use computers and the Internet to engage in the critical First Amendment activities of reading, thinking, and imagining, the fear that the government could be watching or could easily gain access to computerized records that document our engaging in these activities could easily chill our thoughts and incite them to the boring and the mainstream. In a society which values free thought and free speech as essential tools in the search for truth and self-governance, and which relies on novel, controversial or even deviant ideas as a source of progress, we should be (to paraphrase Holmes) eternally vigilant against government attempts to interfere with these fundamental activities. NSLs (among other modern phenomena) are a threat to the intellectual privacy that nurtures and protects these activities from surveillance and interference, allowing new ideas to develop sheltered from the normalizing gaze of others. Although we often think of the First Amendment and privacy as being in conflict, this is an area of law where First Amendment values and privacy values are not just harmonious, but essentially so.

Yesterday’s decision is a small victory for First Amendment law and a small victory for civil liberties. But the larger First Amendment issues that NSLs raise, which were dismissed by the Sixth Circuit earlier this summer as nonjusticiable, remain unresolved, with our ability to engage in autonomous thought on the Internet resting in the balance.

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Federal Judge Strikes Down Patriot Act NSL Provision

Earlier today, a federal judge struck down a part of the Patriot Act allowing the service of National Security Letters without judicial oversight. An AP report on the decision can be found here. NSLs, as Dan has blogged about here and here, are a statutory authorization to the FBI that allow it to secretly obtain records about people from businesses and instututions with which they have a relationship. NSLs don’t require judicial oversight and some requirement of individualized suspicion or probably cause, but merely some “relevance” to an ongoing national security investigation. This relevance determination is made internally by the FBI and does not have to be put before a neutral judge or other official.

The opinion is complicated (and long at 106 pages), but I think any assertion that NSLs need to be regulated by a neutral decisionmaker is a step in the right direction. NSLs, as the district court recognizes, threaten First Amendment values. As I’ve argued in a recent article, NSLs threaten a variety of important interests, but most especially threaten the intellectual privacy of ordinary people. NSLs can be used to request a wide variety of information, including historical and transactional information relating to telephone calls and e-mails. As intellectual activity becomes increasingly mediated by the use of computers and the Internet (i.e., what you are doing right now in reading this post), the records created from such activity remain secreted by ISPs, websites like this one, and on our hard drives. The creation of these records provide a potential gold mine to government and others who are interested in learning about the ways in which we engage with and develop our thoughts and ideas. Both popular literature and legal theory have long documented the chilling effect on expression that results from the surveillance of our intellectual activities (including reading, thinking, and speaking). NSLs are one of the main tools by which government can obtain information about our intellectual activities, and thus the interposition of some meaningful legal constraint upon the power of the government to do this is essential. This is not to minimize the government interest in deterring and preventing threats to our national security, but merely to note that when the government engages in intellectual surveillance, there is an equally important interest on the other side — our freedom of thought and our ability to generate new and potentially controversial ideas.

This important case is certain to be appealed by the government, and it will be interesting to see what happens.

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Why There’s No First Amendment Right to Sell Personal Data

There are a number of really interesting cases pending in the First Circuit and its lower federal courts that raise questions of confidentiality and free speech in the context of the commercial trade in prescription drug information. In New Hampshire, Maine, and Vermont, data mining companies have raised First Amendment challenges to state laws that restrict the ability of pharmacists to sell information about which doctors prescribed which drugs. More information about these cases from the AP can be found here. I’ve written about this phenomenon here, arguing that there are sound doctrinal, jurisprudential, and policy reasons to reject any idea that regulation of the commercial data trade raises any serious First Amendment problems.

These cases all involve laws passed by states concerned about the sale of prescription information to data mining companies, who buy information about which doctors prescribe which drugs from pharmacies and then massage the data for use in marketing and other industry purposes. The laws vary in their particulars, but basically forbid or regulate the ability of pharmacies to sell the information. In April, a federal district court in the New Hampshire case struck down New Hampshire’s law under the Central Hudson test as violating the companies’ free speech rights. The First Amendment argument can be boiled down as follows: because the laws stop pharmacies from telling other people about their customers, they violate the pharmacy companies’ free speech rights and are therefore unconstitutional.

I think this is a silly argument, as I explain after the jump.

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