Author: Timothy Zick

4

The Fleeting Expletives Case

swearjar1.jpgIn preparation for a Supreme Court Preview event here at William & Mary, I’ve been reading the briefs in FCC v. Fox, the so-called “fleeting expletives” case. I am to serve as one of the “justices” at our simulated oral argument (the Supreme Court will hear argument on November 4), in which Erwin Chemerinsky and Tom Goldstein will be advocates. The case is presented to the Court as a run mine administrative law case. For those not familiar with the case, it involves review of the FCC’s decision in 2004 to sanction broadcast of even isolated or inadvertent (“fleeting”) expletives. The policy change seems to have been animated by fleeting utterances of variations of the words “fuck” and “shit” by Bono, Cher, Nicole Richie, and a host of “shock jocks.” At the risk of having myself recused, I want to briefly address what Fox refers to in its merits brief as “the 800 pound gorilla in the corner of the room” — whether the FCC’s indecency regime comports with the First Amendment.

In its “contextual” enforcement since the change of policy, the FCC has held that the use of expletives in Saving Private Ryan and on a morning news program were not indecent, while the use of expletives in a documentary on the blues was sanctionable. In any other context, of course, this sort of regime would raise serious and likely fatal First Amendment problems. That it does (or may) not in the broadcast context is owing to the Court’s decision in FCC v. Pacifica Foundation (1976), which narrowly permitted the FCC to move the “verbal shock treatment” of the Carlin “Filthy Words” monologue and other “indecent” expression into a “safe harbor” (10 p.m. to 6 a.m.) when children would be less likely to be listening and watching. If the First Amendment is the “800-pound gorilla,” Pacifica is the elephant in the room in the pending case. Its limited grant of authority to the FCC was largely premised on (1) the “uniquely pervasive presence” of broadcast media and (2) the fact that broadcast content was “uniquely accessible to children.” But today neither of these premises seems factually correct. Cable, Internet, and other media are as or likely more “pervasive” than broadcast, and all are accessible to children. In addition, technologies like the V-Chip would seem to offer less restrictive alternatives to the expansive indecency regime now used by the FCC. Finally, as Fox notes, several decisions subsequent to Pacifica have invalidated indecency standards very similar to the one enforced by the FCC. For these and other reasons, in the final portion of its brief Fox argues that the FCC’s present indecency regime violates the First Amendment.

I think there is some merit to Fox’s arguments, although the Court need not and likely will not go this far in the pending case should it decide to reject the FCC’s policy change. But is it time to go even further, and overrule Pacifica? I’ve always had some trouble accepting the Court’s rationale in Pacifica, including the notion that the broadcast of certain words is akin to an unavoidable “assault.” But at this point the decision seems like a glaring anachronism. I admit that in a world slathered with so many forms of indecency, there is an argument for preserving at least this one safe haven or zone of decency. And I have no sympathy for the networks if, as some suspect, their challenge is based on a perceived competitive disadvantage with cable in the race to the cultural bottom. But would broadcast really devolve into an expletive free-for-all if the FCC stopped policing for “indecent” words? (It didn’t in the decades leading up to the FCC’s policy change.) With so many communication/entertainment options and filtering technologies available, is occasionally indecent language on broadcast stations still a substantial concern? To how many people? (Nearly all of the 234 complaints in the Bono incident were mass-generated by a single group.) In the end, I’m just not sure that the FCC’s regime, including its most recent regulatory “swear jar” approach, is worth the candle. I wonder what others, particularly parents, think.

[Update: According to a recent survey, 39% would extend indecency restrictions currently applicable to cable and satellite television.]

9

The Press and Preemptive Arrests

As this report indicates, police are dropping charges against several journalists arrested during the Republican National Convention in St. Paul. The mayor pats himself and the city on the back for “protecting” and “promoting” press liberties. To the contrary, as I noted in a prior post, pressing and subsequently dismissing charges has become a critical aspect of public policing at mass demonstrations and rallies. The tactic has also been used at various presidential events in recent years. The tactic appears to be to arrest now and sort the charges later — a sort of preemptive strike used to control mass contention. The fact that so many press members were caught in the net this time highlights a distinct harm from this pernicious strategy. It is bad enough that many — in some cases hundreds — of protesters are processed in this fashion. To interfere with the function of the press in this manner deprives us of instantaneous access to information of public concern. At least the city plans to use a broad definition of “the press” in determining which charges to drop. It’s unfortunate that they did not exercise more care in pressing the charges in the first place.

1

Meatspaces, Cyberspaces, and (Relative) Expressive Freedom

From time to time I see commentary suggesting that expression might actually be less free, or may become less free, in cyberspaces than it is in traditional physical or “meat” spaces. Consider, for example, the opening of this AP story: “Rant all you want in a public park. A police officer generally won’t eject you for your remarks alone, however unpopular or provocative. Say it on the Internet, and you’ll find that free speech and other constitutional rights are anything but guaranteed.” I was reminded of this issue recently when I saw that YouTube’s guidelines apparently now include a ban on terrorism-training videos. This newest addition to the “content bans” already in place on this and countless other sites prompted me to consider whether the concern that speech might actually be less free on the Web than in the streets and other physical places might have some merit.

The problem, of course, is that there is no way to accurately measure “relative liberty” in our physical and virtual realms. But we can make some very general observations.

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2

Freedom of Expression Elsewhere

Public protest and dissent have been much in the news lately — here and in many other parts of the world. I’ll highlight just two examples, with a brief comparative assessment regarding each.

The first example is from China. As was widely reported in the media during the run-up to and during the Olympics, some were hopeful that the awarding of the summer games would result in greater expressive and other liberties in that country. Alas, it was not to be. Superficially, there was more “breathing space” for public dissent. After all, authorities did designate three “protest zones” in Beijing. Of course, one had to apply for a permit to use these spaces. Those who applied were promptly arrested, based solely on their desire to protest government policies. Some putative foreign protesters were deported. In the end, not a single permit was issued. A report in today’s New York Times provides further evidence that the Olympics did not result in greater tolerance for public dissent in China. As reported, authorities recently followed a group of would-be protesters from their rural homes to the city, arrested them, and detained them (forcing some, apparently, to strip so they would not attempt to flee) before they could mount a peaceful public demonstration.

Those (like myself) who are critical of governmental efforts to repress protest and contention in this country must of course acknowledge that things are worse — sometimes, as this story suggests, far worse — in other parts of the world. Of course, we ought not to use a country like China as our civil liberties index. And there are, in fact, some interesting parallels between China’s policies and our own. Where, for example, do you suppose the Chinese authorities got the idea to designate “protest zones”? Expressive zoning has become a routine aspect of public policing in this country. As well, although the American media report with some surprise that protesters in China have to “register” with authorities and get permits to speak, protesters in this country are not generally entitled to use public forums without permission either. Some, like many college students, must indeed “register” with authorities in order to speak in certain places. Indeed, permit requirements, license fees, and a host of other bureaucratic hurdles must be cleared in most places in this country before a lawful public rally or demonstration can be held. To be sure, authorities in this country generally act in good faith, and without regard to the content of the expression, in processing permits and issuing registrations. And authorities here, again generally speaking, do not detain putative protesters without just cause and mistreat them. But that does not mean it is never done — as events at many recent public protest events in the United States, including the conventions in Denver and St. Paul, tend to show. Some of the incidents in China that seem to have captured the media’s attention involved the arrest of elderly women who attempted to engage in peaceful protest. Does anyone remember the arrest and embarrassing trial of the “Granny Peace Brigade,” a group of elderly women accused of blocking access to the Armed Forces Recruitment Center in Times Square? We are, as we should be, a far more open society in many ways — and in particular in terms of public contention and dissent — than is China. But the differences might not be quite as substantial as many would like to think.

The second example — from Thailand — after the jump.

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1

The Political Conventions and the First Amendment

Now that the major party conventions are over, I thought I would provide a retrospective comparison of these events with their predecessors in 2004 with regard to the exercise of First Amendment liberties. Although there was much that was (disturbingly) familiar, there were some differences worth noting. Here is a brief recap:

More of the Same

1. The Protest Environment. As I noted in a prior post, the spaces around the convention centers were “militarized.” This involved, among other things, physical barriers and large numbers of officers in the public places surrounding the convention sites. It is difficult to fully appreciate what this looks and feels like on the ground, absent participation in protest activities. Some participants I have spoken to recount feeling surprised and intimidated by the presence of brigades of officers in full riot gear. The show of force is, of course, at least partially meant to maintain public order and secure large public spaces. Is it also meant to intimidate and suppress? Militarization’s effects on even lawful protest activity are, of course, very difficult to measure. But is it so implausible to believe that some number of potential protesters might be deterred from attending an event in this environment? We are very likely to see militarization tactics at future conventions and other mass events. I have heard comments to the effect that today’s relatively small number of protest participants is indicative of a lack of enthusiasm for such activity, or sincere doubts regarding its efficacy. But we ought to be mindful of the influence of this sort of intimidating, militarized environment on public displays of contention. At some point, the costs of participating may simply be too high for some.

2. Preemptive Actions. There are reports that police and other officers engaged in pre-convention raids of some protesters’ residences. This has occurred at other mass events, including summits in Washington, D.C. and the previous political conventions. The preemptive model of policing is consitent with the general transformation of public policing at mass events. Methods generally associated with combating terrorism are now being applied prior to and during public demonstrations and protests.

3. Mass Arrests/Use of Force. Hundreds of protesters and others were arrested at the conventions. Some of those arrested were engaged in unlawful behavior, for example the destruction of property. But as at prior conventions, many of those arrestred in Denver and St. Paul were released after a very short time. At the 2004 Republican National Convention in New York City, more than 1,800 protesters were arrested. Some 90% of these arrests were dismissed or adjourned in contemplation of dismissal. Of those arrested in New York, 550 were released before arraignment owing to a failure to comply with a state mandate that required arraignment within 24 hours. If the past is any guide, the vast majority arrested in Denver and St. Paul were simply in the wrong place at the wrong time. Police in Denver and, especially, St. Paul, appear to have cast very broad “security” nets on the streets. As well, as at past conventions some protesters are alleging that police unlawfully used pepper spray and other means of force to disburse crowds of demonstrators. Some civil actions against the host cities and police have already been filed.

4. Covert Surveillance. Juding from claims made by authorities in pre-convention legal challenges, agents once again engaged in extensive Web and other surveillance prior to the conventions. Whether the surveillance was of a similar scope to that performed prior to the 2004 Rebublican National Convention (18 months, global, and mostly of protesters planning lawful demonstrations and other events) may never be known — unless the information is disclosed, as it was after the 2004 Republican National Convention in New York City, as a result of discovery in future lawsuits.

5. Protest Zoning. Finally, as at the 2004 party conventions, officials designated protest or demonstration zones to restrict the movement of protesters and their access to contested audiences and sites. These zones were challenged in court. Not surprisingly, courts in Denver and St. Paul upheld the restrictions, despite acknowledging that they interfered with lawful First Amendment activity including handbilling. As I noted in my prior post, part of the courts’ reasoning was that the demonstration zones were not as repressive as those used in Boston and New York City in 2004. In the Denver case, the court held that protesters were not constitutionally entitled to be within “sight and sound” of the convention center. In essence, both courts held that demonstrators were permitted to be “close enough” to the delegates and the contested convention sites, and that there were alternative avenues of communication — the Web, the various representatives present, and other public spaces.

Despite the many similarities, however, there were some critical differences between the 2004 and 2008 conventions with regard to the exercise of First Amendment liberties.

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15

The Reaction to Convention Militarization

Brian Leiter wonders why more legal bloggers, especially those of a libertarian persuasion, have not commented on the happenings outside the political conventions. In particular, Leiter highlights the arrest of Amy Goodman and other journalists. This silence is in stark contrast to the abundance of commentary regarding what transpired within the convention halls. To be fair to the blawgosphere, there has been some limited commentary on these matters. But not, as Leiter correctly notes, nearly as much as one might expect given the serious nature of the First Amendment contests that occurred outside both conventions.

As in 2004, the 2008 convention protesters confronted what I refer to in my book as the “militarization” of public space. At these critical democratic moments, officials again engaged in pre-event surveillance (overt and covert), “preemptive” raids, designation of national conventions as “National Special Security Events” (among other things, this places the Secret Service in charge of convention security), substantial shows — and in some cases uses — of force, mass arrests, and spatial restrictions on protest activity. Militarization at political conventions has historical roots in the 1960s; but it has become a unique form of repression since September 11, 2001. We shall see how the mass arrests are resolved in the courts. As for the physical restrictions on expressive activity, courts in Denver and St. Paul upheld limits on the location of protest activity as content-neutral time, place, and manner regulations. In both cases, the courts made a point of observing that the restrictions in 2008 were not as bad as those imposed on protesters in 2004 — in particular the protest cage erected in Boston. That is, of course, an extraordinarily low bar.

I plan to compare the conventions of 2004 and 2008 in terms of the exercise of First Amendment liberties in a subsequent post. I want here, however, to respond to Brian Leiter’s comment regarding the paucity of commentary on some of the “police state” tactics in Denver and St. Paul.

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5

Pole Dancing: The New Pilates?

ole.jpgThe New York Times, among many other outlets, reports today on a dispute between a pole dancing instructor and a local zoning board in a suburb outside Pittsburgh. The instructor was denied a permit to operate her business, which offers instruction in “pole dancing, power lap dancing, salsa and other forms of dance and fitness.” The permit was allegedly denied on the ground that the dance studio is an “adult” business illegally located within 1,000 feet of a bar in a residential area. The instruction apparently does not involve nudity and there is no audience. The instructor, represented by the ACLU, alleges that local officials denied the permit because of the design of her website and logo (which contains a high-heeled shoe) and because the dancing is “provocative” and involves “sexual innuendo.” If that is the case, the instructor may have a viable First Amendment claim (in addition to a statutory one regarding application of the zoning law itself). Contrtary to the popular portrayal of this case as one concerning the expressiveness of pole dancing, note that the ACLU is framing the issue as one of teaching or instruction rather than expressive dance. The Supreme Court has held that social dancing is not protected under the First Amendment. Performative dance, on the other hand, has received some protection. In particular, the Court has at least been willing to assume that nude dancing is expressive. On the matter of the expressiveness of exotic dance (including the sort that involves nudity), I recommend the (thick) description offered by Judge Richard Posner in his concurrence in Miller v. City of South Bend. Judge Posner begins: “The dancers were presentable although not striking young women. They danced on a stage, with vigor but without accomplishment, . . .” There is much, much more for the curious reader. Given the lack of any audience (other than those in the class), it seems wise to frame this as a “right to teach” case. Assuming this is protected activity, the allegations and quoted statements by officials seem to suggest content discrimination.

But I am as or more interested in the cultural implications of this case than its free speech aspects.

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4

Porn Air

I’m delighted to be back at Concurring Opinions. As I did during my last visit, I plan to write primarily about First Amendment issues. During work on my book, Speech Out of Doors, I was immersed in some of the more traditional aspects of expression – public forum issues, face-to-face expression, acts of public protest, and regulation of public expression. I’ve been thinking lately about the extraordinary transformation of the First Amendment, particularly during the last decade or so. The very meanings of “speech,” “assembly,” “petition,” and “press” have been significantly altered, primarily as a result of technological and communicative advances. Among the changes are a variety of new forms of speech, online protests and assemblies, an increasingly Web-based politics (i.e., online fundraising, the YouTube debates, the recent Obama vice presidential text), and of course the phenomenon of a “citizen press.”

One significant aspect of this expressive transformation involves the mobility of expression. In an article and in the final chapter of my book, I examine some of the ways in which mobile computing technologies are transforming the communicative environment and the First Amendment. It is, of course, a tremendous convenience to be able to access the Web from wherever one happens to be. As well, new technologies can facilitate “smart mobbing,” public social networking, and spontaneous gatherings. But always-on access will occasionally expose us – in some cases fleetingly, and in others in a more intrusive manner – to the communicating and viewing habits of others. A few years ago I recall reading news reports about “drive-by porn” – the visible display of pornographic images on video monitors inside vehicles. Phone service providers in the U.S. have been much slower than their counterparts in other parts of the world to allow sexually explicit content to be accessed through their services. But given the market for such content, how long will this be the case? And now some airlines are making wireless Web access available on flights. This is welcome news for passengers who wish to remain connected in the air. But it has raised the concern that some passengers will access sexually explicit content in flight. This will render some passengers “captive” to expression they (presumably) will not want to see (and possibly hear). The airlines apparently plan to have flight attendants monitor Web use, and presumably intervene when “inappropriate” content is accessed. Some brief thoughts on “Porn Air” after the jump.

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11

Funerals and Free Speech

funeral_protest.jpg First, thanks to Dan and the other authors for giving me a platform from which to discuss issues relating to public expression as well as other miscellaneous matters. I have greatly enjoyed my guest stint here at CoOp, and am especially grateful to those who have engaged my arguments with thoughtful comments.

In my final post, I want to discuss one of the most difficult cases I have encountered in my study of public speech rights. Many readers are likely already aware of the protest activities of the Westboro Baptist Church, a fundamentalist congregation based in Topeka, Kansas. The church’s members — which consist primarily of relatives of a single family — have drawn public attention and ire for protesting at the funerals of service men and women killed in Iraq and Afghanistan. (Members have also protested near military hospitals.) Their “message” is that God is killing American soldiers to punish the United States for “condoning” homosexuality. The protesters tend to stand — peacefully for the most part, but quite noticeably — on sidewalks and other public properties near the entrance to cemeteries. They hold signs conveying messages like “God Hates Fags” and “Thank God for Dead Soldiers.” The protesters’ presence is obviously deeply upsetting to families and friends who have come to pay their last respects. Three dozen states and Congress have enacted statutes that attempt to limit, in a variety of respects, the time, place, and manner of “funeral protests.” The First Amendment Center has a useful summary of the protests and the legal response to them. In a first-of-its-kind lawsuit, the parent of one marine whose funeral was picketed by Westboro members has filed a tort lawsuit against the church, alleging intentional infliction of emotional distress. That trial is currently taking place in Maryland federal court.

One of the things that I find most fascinating about real-space expressive contests is their tendency to challenge our commitment to ideals of “robust and wide open” debate and liberty to offend and provoke others. Of course, content on the Web offends and challenges sensibilities too. But on the sidewalks and streets, as elsewhere on the tangible expressive topography, the offense is felt when and how it hurts most — in person and in real time and space. Because the message is delivered at or very near the point of contest, the audience has a much more difficult time avoiding it. The speech and speakers involved in funeral protests push hard at the First Amendment envelope. Indeed, many wonder how this sort of expression can possibly be defended. I am not concerned here with setting appropriate spatial boundaries — i.e., whether a 200- or 500-foot “buffer zone” is constitutionally permissible. Rather, I am interested in what makes this case so difficult at its core. I address that issue after the jump, and also offer a basis for granting this kind of expression some public space that differs from many of the abstract principles usually cited.

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12

The Youngstown Question and the Presidential Contest

As the confirmation hearings of Michael Mukasey demonstrate, perhaps the most pressing concern in the upcoming presidential election is the shape the office itself will assume in January, 2009. Mukasey has created controversy by professing to be unclear with regard to whether waterboarding is “torture” and, more importantly, suggesting that the president has the constitutional power (in national security contexts) to act contrary to duly enacted federal law. As to the latter position, Youngstown, its progeny, and most of our constitutional tradition strongly indicate otherwise. Because no question is more fundamental or important to the office, we ought to be asking the presidential candidates the Youngstown question too. Perhaps more than any other in recent history, this election raises questions regarding not only what kind of president the candidates will be, but more fundamentally what kind of presidency they envision.

A few of the candidates have addressed that question, or provided substantial hints. For example, Hillary Clinton recently pledged to “relinquish” some of the executive powers she says the Bush Administration has illegitimately claimed and exercised. If the claim is that President Bush has exercised power he does not have — say, the power to ignore federal statutes — then “relinquish” does not seem the appropriate term. One cannot “relinquish” what one never possessed. Perhaps not surprisingly, candidate Clinton did not provide specific examples of powers President Clinton would not exercise. We also ought to keep in mind that presidents have made similar pledges in the past, only to renege once in office. Among the Republican candidates, we are gaining a clearer picture of Rudy Giuliani’s vision of the presidency. Not surprisingly, candidate Giuliani offers a very muscular conception of executive power. He has reportedly surrounded himself with hawkish advisors with regard to foreign policy. Striking Iran, he says, is a more timely concern than many Democracts will concede. More specifically, like Mukasey, Giuliani has said he does not know whether waterboarding is “torture.” He has also derided characterizations of sleep deprivation as torture as “plain silly.” He favors “aggressive” questioning of suspected terrorirsts. These answers ought to raise even greater concern than those recently given by Judge Mukasey; after all, Mr. Giuliani seeks all of the executive power the Constitution vests in the presidency. In any event, it seems a very safe bet that President Giuliani would not relinquish any presidential authority; indeed he may even seek to enhance the powers of the office.

Admittedly, it is not easy to work Youngstown (or any other constitutional precedent, save perhaps Roe) into presidential debates. The scope of presidential power generally is too nuanced for sound bites, zingers, and applause lines. But every candidate ought to at least be asked whether he or she believes the president is, under any circumstance, above the law. If so, he or she ought to be asked to provide specifics, using current examples (wiretapping, detention, “enhanced interrogation,” etc.) as necessary. If there is no clear answer to that question, then it would seem our democracy is in serious trouble. As Giuliani himself once wrote: “Elections are necessary but not sufficient to establish genuine democracy. Aspiring dictators sometimes win elections, and elected leaders sometimes govern badly and threaten their neighbors.”