Archive for the ‘First Amendment’ Category
posted by Danielle Citron
Brilliant news: CDT’s Board of Directors just announced that Nuala O’Connor has been named President & CEO, effective January 21, 2014. O’Connor will succeed Leslie Harris, who is stepping down after leading CDT for nearly nine years. As the privacy community knows well, Harris provided extraordinary leadership: vision, enthusiasm, and commitment. O’Connor will build on that tradition in spades. She is the perfect leader for CDT.
From CDT’s announcement:
“Nuala drove an ambitious civil liberties agenda as the first Chief Privacy Officer at the Department of Homeland Security in a post 9-11 world. She fought for and implemented policies to protect the human rights of U.S. and global citizens in a climate of overreaching surveillance efforts. The Board is thrilled to have Nuala at the helm as CDT expands on 20 years of Internet policy work advancing civil liberties and human rights across the globe,” said Deirdre Mulligan, CDT Board Chair.
O’Connor is an internationally recognized expert in technology policy, particularly in the areas of privacy and information governance. O’Connor comes to CDT from Amazon.com, where she served both as Vice President of Compliance & Customer Trust and as Associate General Counsel for Privacy & Data Protection. Previously she served as the first Chief Privacy Officer at the U.S. Department of Homeland Security (DHS). At DHS, O’Connor was responsible for groundbreaking policy creation and implementation on the use of personal information in national security and law enforcement.
“I am honored to join the superb team at the Center for Democracy & Technology. CDT is at the forefront of advocating for civil liberties in the digital world,” said O’Connor. “There has never been a more important time in the fight to keep the Internet open, innovative and free. From government surveillance to data-driven algorithms to the Internet of things, challenges abound. I am committed to continuing to grow CDT’s global influence and impact as a voice for the open Internet and for the rights of its users.”
“Nuala is a brilliant choice to lead CDT. She is a passionate advocate for civil liberties, highly expert about the emerging global challenges and fully committed to CDT’s mission. She is a bold leader who will guide CDT into its next chapter. I have had the honor of working with CDT’s talented and thoughtful team for almost nine years. I am confident that they will thrive with Nuala at the helm,” said Leslie Harris.
Beyond her experience at Amazon and DHS, O’Connor has also worked in consumer privacy at General Electric, and as Chief Counsel for Technology at the U.S. Department of Commerce. She also created the privacy compliance department at DoubleClick and practiced law at Sidley Austin, Venable, and Hudson Cook.
O’Connor, who is originally from Belfast, Northern Ireland, holds an A.B. from Princeton University, an M.Ed. from Harvard University, and a J.D. from Georgetown University Law Center. She currently serves on numerous nonprofit boards, and is the recipient of a number of national awards, including the IAPP Vanguard Award, the Executive Women’s Forum’s Woman of Influence award, and was named to the Federal 100, but is most proud of having been named “Geek of the Week” by the Minority Media & Telecom Council in May 2013. She lives in the Washington, D.C. area with her three school-aged children.
posted by Richard Storrow
The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.
The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.
New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.
Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.
While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.
Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.
If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.
November 21, 2013 at 3:44 pm Tags: First Amendment, Public Accommodations, Sexual Orientation Discrimination Posted in: Civil Rights, Constitutional Law, First Amendment, LGBT, Religion Print This Post 21 Comments
posted by Kyu Ho Youm
Collins, Ronald K.L. Nuanced Absolutism: Floyd Abrams & the First Amendment. Durham, N.C.: Carolina Academic Press, 2013.
U.S. First Amendment attorney Floyd Abrams has influenced the evolution of American free speech jurisprudence over the past 40-plus years. Arguably more than any others. Despite his prominence, there have been few book-length publications about Abrams and his approach to First Amendment law, while he has been the subject of numerous news and trade journal articles as “Mr. First Amendment.”
Nuanced Absolutism: Floyd Abrams & the First Amendment is filling the gap in the literature on Abrams. This 12-chapter book is an intellectual biography of Abrams by Ronald Collins, the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the First Amendment Center. The book looks at Abrams’s thinking and speaking about the First Amendment.
Collins focuses on Abrams’s views on freedom of speech and the press as a First Amendment right. So, freedom of religion, freedom of assembly, or the right to petition to the government is not discussed. Noting that lawmakers and judges are not necessarily the only key players in law, Collins emphasizes the oft-overlooked role of lawyers in shaping the law.
Abrams’s approach to freedom of expression under the First Amendment is what Collins calls “nuanced absolutism.” Nuanced absolutism is qualified absolutism in the categorical balancing: “[O]ur law of free speech can and ought to be absolute in certain circumstances” (30).
One example of Abrams’s nuanced absolutism is showcased when he argues: “[T]ruthful speech about public officials in the course of their public duties should never give rise to criminal liability” (22). Nuanced absolutism is also exemplified by the First Amendment ban on prior restraints on news media, on compelled speech, and in “significantly limit[ing]” the government sanctions against unprotected speech (91).
Applying Abrams’s nuanced absolutism, Collins examines a number of earlier U.S. Supreme Court cases, including Schenck v. United States (1919), Whitney v. California (Brandeis, J., concurring, 1927); Brandenburg v. Ohio (1969), and New York Times v. United States (1971). Not surprisingly, Abrams rejects the clear-and-present-danger test of Schenck as incompatible with nuanced absolutism because it is “loose and unpredictable.” More recent Supreme Court cases, such as United States v. Stevens (2010), Snyder v. Phelps (2010), Citizens United v. Federal Elections Commission (2010), and United States v. Alvarez (2012), are thoughtfully analyzed against Abrams’s theory.
posted by Ronald K.L. Collins
Free speech zone – It is shorthand for holding two contradictory opinions while believing in both of them. Incongruous logic, to be sure. And yet, that is the mindset that too many public college administrators impose on students in an attempt to make them believe that the best way to honor the First Amendment is by abridging it. They do so by restricting student speech to tiny “free speech zones” and by strictly controlling access thereto.
Such Orwellian doublethink is dystopian in principle and destructive in practice. Worse still, though many such policies are patently unconstitutional, an unfortunate number of university lawyers defend them until legally contested or fought out in court, whereupon taxpayers flip a hefty bill for their unconstitutional actions. Nonetheless, no one holds these public servants to account for their transgressions.
Cases in point: As late as 2012, the University of Cincinnati’s policy limited all “demonstrations, pickets, and rallies” to a “Free Speech Area” comprising just 0.1% of the university’s 137-acre West Campus. Much the same logic informed a Texas Tech University rule that once confined First Amendment activities to a single 20 foot-diameter gazebo – this for a campus of 28,000 students! Both policies were unconstitutional, but they were abandoned only after lawyers representing students took action.
Such examples are hardly past tense. Take Southeastern Louisiana University’s policy. It limits student speech to two hours every seven days and designates three areas of campus for assembly. The policy likewise requires a full week’s advance notice for assemblies and obliges all applicants to provide their birth date and Social Security number. Finally, consider the free speech policy of Modesto Junior College (MJC) in California. It limits speakers to one “little cement area.”
Against that backdrop, MJC’s Orwellian rules are being tested in a federal court. The case involves Robert Van Tuinen, a MJC student. Mr. Van Tuinen started to distribute copies of the Constitution on Constitution Day. But his non-obstructive civic-minded acts were deemed unlawful. Why? Because they were outside the ordained little portion of the school’s East Campus. Moreover, he had not complied with the school’s strict five-day prior application policy. As stated in the complaint contesting the rule, the MJC policy also “limits all individuals and student groups to using the free speech zone for no more than eight hours each semester. Given the size of the student body, the free speech ‘allowance’ amounts to scarcely more than two-and-half minutes per student, per semester.” Mind you, these rules were designed or approved or enforced and/or defended by lawyers acting on behalf of the College.
Though the College may regulate the “time, place, and manner” of campus speech, its policies are well beyond the pale of that tenet of law. The MJC policy unduly abridges student rights by confining them to tiny areas; it likewise constitutes an impermissible prior restraint; as applied, the policy is also unconstitutionally overbroad in regulating time, place, and manner; and finally, the rule is unduly vague insofar as it has no meaningful criteria to determine whose “free speech zone” applications are granted or denied.
posted by Paul Berman
I remember back in 2003, Anupam Chander and I both took part in a cyberlaw retreat on Cape Cod sponsored by Harvard Law School’s Berkman Center for Internet and Society. Most of the professors assembled at the retreat were concerned with how to “solve” the problems that local regulation of internet activity might pose. In contrast, Anupam Chander and I repeatedly made the case that this was not a problem to be solved, but an inevitable expression of cultural diversity. Further, we argued that there might even be some benefits that could accrue from such legal pluralism, properly managed.
We have been fellow travellers ever since, and I am very pleased to see Anupam’s project finally come to fruition in this lively and agile book. As befits a broadly synthetic work about the electronic silk road, Anupam stiches together an impressive array of examples that convincingly demonstrate the importance of the global trade in services. In addition, turning from the descriptive to the normative, he lays out principles that might undergird a governance regime for this cross-border activity that leaves open the possibility for multiple competing normative voices.
Anupam’s approach is one that is consonant with the conception of global legal pluralism I have been pursuing for over a decade, and so I have few objections to his account. Quite rightly, Anupam steers a useful middle ground on issues of so-called extraterritorial regulation. He neither says that local regulation should always trump all other possible normative authorities (as sovereigntist territorialists often do), nor does he call for a full universal harmonization scheme. Instead, he adopts a pithy aphorism: “harmonize where possible and glocalize where necessary.” The key here is that a decisionmaker in a cross-border dispute should always ask whether it is possible to defer to another legal regime in the interests of a harmonious interlocking transnational legal system. Even asking such a question can, over time, inculcate habits of mind that cause decision-makers to be restrained about reflexively applying their own law in all circumstances. At the same time, Anupam recognizes that there will be instances when such deference is impossible and local populations will feel the need to impose local norms on cross-border activity. In such cases, he asks global services companies to “glocalize”: customize their global services product to conform to the law of various localities.
My guess is that such an approach will be workable in many cases, and so Anupam’s argument is an advance. It is also usefully pluralist in that it leaves space for multiple communities—local international, and transnational—to assert normative authority. This is in marked contrast to an approach that seeks to elide normative difference and tries to impose a single authoritative set of norms. Thus, I fully embrace his project.
I do have two quibbles, however.
posted by Anupam Chander
Last week, Foreign Affairs posted a note about my book, The Electronic Silk Road, on its Facebook page. In the comments, some clever wag asked, “Didn’t the FBI shut this down a few weeks ago?” In other venues as well, as I have shared portions of my book across the web, individuals across the world have written back, sometimes applauding and at other times challenging my claims. My writing itself has journed across the world–when I adapted part of a chapter as “How Censorship Hurts Chinese Internet Companies” for The Atlantic, the China Daily republished it. The Financial Times published its review of the book in both English and Chinese.
International trade was involved in even these posts. Much of this activity involved websites—from Facebook, to The Atlantic, and the Financial Times, each of them earning revenue in part from cross-border advertising (even the government-owned China Daily is apparently under pressure to increase advertising) . In the second quarter of 2013, for example, Facebook earned the majority of its revenues outside the United States–$995 million out of a total of $1,813 million, or 55 percent of revenues.
But this trade also brought communication—with ideas and critiques circulated around the world. The old silk roads similarly were passages not only for goods, but knowledge. They helped shape our world, not only materially, but spiritually, just as the mix of commerce and communication on the Electronic Silk Road will reshape the world to come.
October 28, 2013 at 5:46 pm Posted in: Consumer Protection Law, Cyberlaw, First Amendment, Intellectual Property, International & Comparative Law, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Symposium (The Electronic Silk Road) Print This Post No Comments
posted by Marc Poirier
Same-sex marriage became legal in New Jersey at 12:01 am on Monday, October 21. Wedding ceremonies are everywhere. The process may not be over, however; there are tactical decisions yet to be made as to how best to solidify and clarify the win.
It was a roundabout victory, achieved via a Superior Court decision last month, in which Judge Mary Jacobson held that civil union did not satisfy a state constitutional mandate of equal protection established in Lewis v. Harris (N.J. 2006). There followed, on Friday, October 18, a unanimous state Supreme Court ruling denying a motion for stay of Judge Jacobson’s order. So it’s legal for same-sex couples to marry here, but there is no a ruling on the merits by the state Supreme Court. That’s the problem. Read the rest of this post »
October 23, 2013 at 3:17 pm Tags: civil union, equal protection, fundamental right, LGBT, marriage equality, New Jersey, same sex marriage Posted in: Civil Rights, Constitutional Law, Family Law, First Amendment, LGBT, Uncategorized Print This Post No Comments
posted by Dave Hoffman
My university (Temple) has an interesting set of new IRB guidelines. Essentially, Temple’s IRB (for all subjects) is now requiring department head sign-off for all protocols:
“In addition to the PI, every individual listed on the approval route on an IRB submission is required to approve the submission before it can reach the IRB for review. The electronic approval takes the place of a hard copy signature. Department Heads and all research personnel are required to approval Initial Submissions. Individuals can also be manually added to the approval route. Everyone listed on the approval route must view and approve the submission in order for it to reach the IRB. Please see the instructions for Providing Approval in eRA on the IRB’s website.”
When I inquired as to why this regulation was required, I was told that department heads knew the financial health & needs of the institution, and would therefore be able to tell if particular projects’ execution was financially possible. Because department heads are best positioned to know if research is too expensive (and consequently that human subjects wouldn’t be cared for), IRB review will be denied if they refuse to sign the application. The IRB acknowledged that the regulation was not required by HHS regulations or the common rule, but was essentially a way to improve the quality of the University’s research.
To me this is a deeply problematic requirement. Academic freedom is a slogan which almost always signifies rent seeking. But here, there are significant risks that the IRB could be used as a way to cloak gamesmanship inside of departments. Imagine that you are on the outs from your boss. She or he can now simply refuse you the right to do research by stating that the department can’t support it. The IRB enforces that refusal, with its full array of punitive sanctions. What avenue of relief could you possibly have, apart from an incredibly cumbersome university grievance process, or a First Amendment lawsuit against the University?
Ultimately I dropped my objections to the regulation and got sign-off, in large part because I trust the powers that be. Also, who wants to poke the bear? But I thought I’d throw it out there to see whether any of you have seen similar regulations, and whether (or not) they’ve been challenged successfully.
posted by Ronald K.L. Collins
McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees. This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976). The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.
Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.
Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny. That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act. Here again, the Court was badly divided.
In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.
* * * * *
The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975:
Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”
“The disclosure provisions are the heart of the whole thing for me. I think these provisions are constitutional and highly desirable.
Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”
Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”
“The expenditure limitations are wholly unconstitutional.”
“I see no First Amendment problems in political committees.”
posted by Cristina Tilley
Prentice Women’s Hospital is a landmark for me. Owned by Northwestern University, it stands directly across from the Northwestern Law complex, meaning that I passed it virtually every day as a law student and more recently as a VAP here at the school. So I’m keenly interested in the University’s plan to tear down the concrete, clover leaf-shaped structure and replace it with a state-of-the-art research facility. The debate over its fate also illustrated a trend towards advocacy in the mainstream media that raises some interesting legal questions.
The building is one of the foremost examples of late-Modernist architecture in the city, and activists pressed the Chicago Commission on Landmarks to give the building landmark status, thus preserving it from demolition. When, in the midst of the preservation effort last year, local alderman Brendan Reilly said he was “open to suggestions” to save the building, New York Times architecture critic Michael Kimmelman stepped in. Kimmelman did not merely detail the architectural relevance of the building or express his support for preservation. Instead, he asked Chicago architecture’s It Girl, Jeanne Gang, whether it would be possible to build a research tower on top of the existing structure. She responded with drawings of a 31-story skyscraper perched on top of the clover leaf. Kimmelman wrote about Gang’s idea, running pictures of her concept in the paper. Again, though, he didn’t stop there. He contacted a field officer for the Chicago office of the National Trust for Historic Preservation, and asked whether her organization would support the idea. He contacted Northwestern to ask whether the university might sign on. And he called the president of an international structural engineering firm to get feedback on the structural and financial feasibility of the plan. Somewhere along the way, Kimmelman stopped looking like a reporter, or even a critic, and started looking more like one of the activists trying to save the building.
Putting aside the admirable intentions that obviously drove Kimmelman, his efforts illustrate the increasingly porous boundary between reporting and advocacy, even in the mainstream media. Of course, partisanship and muckraking in journalism are not new. But as journalism migrates onto our phones and screens alongside Instagram and Facebook, and as “dying” newspapers and network news broadcasts venture beyond traditional reporting techniques to chase eyeballs and engagement, it grows increasingly difficult to categorize what exactly we are consuming when we consume the news. Why do these questions, obvious fodder for media ethicists, matter to lawyers? For two reasons, one specific and one general.
posted by Cristina Tilley
Google Glass has been a mere gleam in the eye of tech savants for the past several months, but the company began distributing the wearable internet device to a hand-picked group of “Explorers” in June. A fascinating pair of articles from the New York Times Bits columnist, Nick Bilton, recently highlighted the tensions between speech and privacy that are likely to play out as the device is integrated into everyday use. The articles compared Glass to Kodak cameras, which were controversial when introduced in the late 1800s but ultimately accepted after Americans figured out how and when the cameras should be used. It’s not clear, however, that the Glass experience will duplicate the Kodak pattern. Kodaks came on the market when tort law could respond nimbly to camera invasions of privacy, while Glass is debuting in a world where tort law is increasingly subject to constitutional constraints.
Bilton teed up the Glass privacy issue nicely in May, when he described his visit to the Google I/O developers’ conference. There, hundreds of attendees were sporting the eyeglass-mounted computers, which can take a snapshot or video with a wink of the wearer’s eye. Bilton — a self-professed tech nerd — reported being rattled by the swarms of Glass wearers; after trying to “duck [his] head and move out of the way” of the wearable cameras, he retreated to the men’s room, only to find the urinals on either side of him occupied by Glass wearers. “My world,” he wrote, “came screeching to a halt.” In an article appearing a week later, however, Bilton appeared to have calmed down. He had interviewed CUNY journalism professor Jeff Jarvis, who predicted that unwilling stars in Glass pictures and videos would eventually realize that being recorded is simply a hazard of appearing in public. Jarvis likened the anti-Glass complaints to the furor that erupted when Kodak cameras were introduced in the 1890s. So-called Kodak fiends, who trained their lenses primarily on uncooperative females, initially encountered threats and violence. Ultimately, Jarvis said, amateur photographers began to behave better and society accepted cameras as a new feature of daily life.
But Bilton and Jarvis may have overlooked a crucial difference between the legal environment when pocket cameras were introduced and the legal environment today. Tort law was instrumental in developing norms about acceptable camera use in the early Twentieth Century. The Kodak fiends did not become more respectful overnight, and Americans did not become easily inured to having their pictures taken by strangers. Instead, Samuel Warren and Louis Brandeis protested the abuse of cameras in what has been called the most famous law review article ever published, The Right to Privacy. That piece advocated the creation of a new tort that would give victims of stealth photography (and other dubious news practices) a legal remedy against their aggressors. State courts began recognizing privacy torts in 1905 and by 1960 they were a standard part of the tort toolbox. In short, tort law established a background scheme of legal liability for the abuse of camera technology, and social norms about acceptable camera use followed.
July 15, 2013 at 2:42 pm Posted in: Constitutional Law, Culture, Current Events, First Amendment, Google & Search Engines, Media Law, Privacy (Gossip & Shaming), Tort Law, Uncategorized Print This Post No Comments
posted by Cristina Tilley
When Congress passed the SPEECH Act two years ago, its primary goal was to protect speakers from hefty defamation verdicts rendered by libel havens, countries whose laws are less speech-protective than those in the United States. The statute essentially prohibits U.S. courts from enforcing foreign defamation judgments unless the applicable law provides speech protections comparable to those in the U.S., or the same judgment would have resulted under U.S. law. One recent case suggests that the SPEECH Act may inadvertently be splitting the defamation atom in two, allowing plaintiffs to rehabilitate their reputations while simultaneously shielding defendants from monetary loss. This phenomenon may sound familiar to Conflicts aficionados, as it seems to replicate the creation of so-called divisible divorce in the 1940s.
A case now on appeal in the Fifth Circuit, involving New Orleans corruption, Canadian libel law, and the same-sex proprietors of a Nova Scotia fishing resort, illustrates what may become the norm when electronic speech spans national borders.
In a 2010 story about alleged political corruption in Jefferson Parish, Louisiana, the New Orleans Times-Picayune reported that a parish official co-owned a vacation resort in Nova Scotia. The paper later retracted the statement and stopped hosting a blog that had also discussed the connection between the disgraced official and the Nova Scotia couple that ran the resort. The blogger found a new host and continued to post allegations that the couple was laundering proceeds of the New Orleans corruption, along with embarrassing photoshopped images of the two and several homophobic slurs against them. The couple sued the blogger in Canada for defamation (and several other torts). The blogger did not appear, the allegations in the complaint were taken as true, and the court awarded the men $425,000. The men sought to enforce the judgment in Mississippi state court, the case was removed to the local federal district court, and the court refused to enforce the judgment, citing the SPEECH Act. The federal court concluded that its Canadian counterpart did not specifically find that the blogger’s statements were false, as required under U.S. law. Therefore, the Canadian court provided less speech protection than a U.S. court would have, and the judgment could not be enforced.
The result may have been an unintentionally ideal compromise. Together the U.S. and Canadian courts essentially credited the moral victory to the ostensibly defamed lodge owners and the financial victory to the blogger. While this might not be a palatable outcome for most torts, there is some research suggesting that defamation plaintiffs, in particular, are as concerned with public acknowledgment that they have been falsely impugned as they are with collecting money. In fact, the Nova Scotia plaintiffs were reported to have said “this was never about the money,” echoing Frederick Pollock’s famous observation that “the law went wrong from the start in making the damage and not the insult the cause of the action.” Further, while speech has grown increasingly global, libel law remains stubbornly divided between defendant-protective doctrines in the U.S. and more plaintiff-friendly doctrines elsewhere. So it may be time for a mechanism that strikes something of a balance.
In fact, it is not uncommon that recognition and enforcement principles are deployed to accommodate cultural or generational divides reflected in conflicting laws. In the 1940s, the Supreme Court held in a series of cases that states had to recognize quickie divorces awarded by sister states that had welcomed fleeing spouses, even when the absent spouse was clinging to the marriage. Several years later, however, the Court held that while sister states had to honor adjudications of marital status, they did not have to honor out-of-state judgments purporting to dictate the financial status of the absent spouse. Thus was born the “divisible divorce,” with one state handling the status adjudication and another handling the financial adjudication. Perhaps the SPEECH Act has established divisible defamation for the age of global speech.
posted by Deven Desai
We need more outlets to challenge the way things run. Challenging corporations is difficult, necessary, and proper. Someone in San Diego tried to do that. He is losing his case. It turns out that if you scribble anti-bank messages, you could face 13 years in jail. The medium: washable children’s chalk, not spray paint, on the sidewalk in front of banks. The bank: Bank of America. Now, you might think the First Amendment would be an issue here; it’s not. According the news report, “a judge had opted to prevent the defendant’s attorney from ‘mentioning the First Amendment, free speech, free expression, public forum, expressive conduct, or political speech during the trial,’ and the defendant must now stand trial on 13 counts of vandalism.” The defendant was saying other banks were better banks. Bank of America did not like it, claimed it cost $6,000 to clean up the chalk, and apparently used its influence to have the city gang unit investigate and hand the case to the attorney’s office. Given that this defendant may not be allowed to engage in this speech, because of anti-graffiti and, my bet, property laws, all that may be left is the Web. I think offline mediums matter and should be protected. The Web is an alternative, not a substitute. But even on the Web a protester will have problems.
As I argue in Speech, Citizenry, and the Market: A Corporate Public Figure Doctrine, corporate power to speak has gone up. Corporate power to limit speech has not. A corporate public figure doctrine would allow someone to use a corporation’s logo and name to challenge to corporation on public issues. A corporation’s word mark is its given name; its logo, its face. Just as we would not limit the ability to question and identify human public figures for speech, we should not do so for corporate public figures. A foundational commitment of free speech law, perhaps the foundational commitment, is that public figures don’t and can’t own their reputations. Yet, through trademark and commercial speech doctrines corporations have powerful control over their reputations. If corporations are people for free speech purposes, as a constitutional matter, their control over their reputations can be no greater than the control other public figures have. Corporations cannot have it both ways. Corporations want and receive many of the legal rights natural persons receive. They should be subject to the same limits as other powerful, public figures.
HT: Fred von Lohmann for noting the story on Facebook.
PS. I am not saying corporations should be challenged, because they are corporations. That is silly. In that sense, I would challenge those who challenge, but that’s me.
July 1, 2013 at 1:13 pm Tags: citizens united, dilution, First Amendment, free sp, public figure, trademark Posted in: Constitutional Law, First Amendment, Intellectual Property, Political Economy, Politics, Technology, Web 2.0 Print This Post 20 Comments
posted by UCLA Law Review
Volume 60, Issue 5 (June 2013)
|First Amendment Constraints on Copyright After Golan v. Holder||Neil Weinstock Netanel||1082|
|Intraracial Diversity||Devon W. Carbado||1130|
|When to Overthrow your Government: The Right to Resist in the World’s Constitutions||Ginsburg et al.||1184|
|Interbank Discipline||Kathryn Judge||1262|
|A Proposal for U.S. Implementation of the Vienna Convention’s Consular Notification Requirement||Nicole M. Howell||1324|
June 30, 2013 at 4:01 am Posted in: Civil Rights, Financial Institutions, First Amendment, Intellectual Property, International & Comparative Law, Law Rev (UCLA), Politics, Race Print This Post No Comments
posted by Frank Pasquale
Because North Carolina refused the Obamacare Medicaid expansion, I ended up in handcuffs in the Wake County Detention Center. That was my trigger, anyway. Statistically, next year more than two thousand people in the state will die who would have lived if North Carolina had accepted federal money to give health insurance to low-income families. (That’s our share of an estimated 19,000 preventable deaths nationwide in the 14 states that have rejected the expansion.) Because the state legislature was doing that in my name, I decided I needed to stand in front of it, at least until they took me away.
I can’t add much to Purdy’s article, except to say: what are own personal “red lines,” or government/corporate activities (and let’s not kid ourselves—that merger is the core, fused nature of power these days) that seem too egregiously wrong to let pass without personally protesting them? And given how frequently both right and left lament the “brokenness” of government, is Bernard Harcourt right to suggest that political disobedience is gradually displacing civil disobedience?
posted by Stephen Galoob
Day 2 of the conference saw a spirited panel (featuring Scott Shaprio, Ken Ehrenberg, Michael Guidice, and Brian Tamanaha) about the (ir)reconcilability of legal anthropology and sociolegal studies with analytic jurisprudence. Much of the discussion (not to mention the spirit) here concerned the appropriate definition of a “concept.” If that kind of question does not induce somnolence for you, then read on! Read the rest of this post »
Albany Law Review Symposium “What Are We Saying? Violence, Vulgarity, Lies . . . And The Importance Of 21st Century Free Speech”
posted by Danielle Citron
The Albany Law Review had a terrific symposium on free speech. Here is their description of the symposium and the links to the excellent pieces.
In recent years, the United States Supreme Court has issued a number of head-turning decisions regarding freedom of speech under the First Amendment. Taken as a whole, some might say that the Roberts Court appears somewhat schizophrenic on free speech and expression issues. This is the Court that stretched the boundaries of free speech, recognizing First Amendment protections for selling violent video games to minors, lying about receiving military honors, protesting at the funerals of soldiers, and–perhaps most controversially of all–contributing to political campaigns through independent expenditures by corporations and unions. Yet this is also the Court that constrained free speech by saying that the First Amendment did not protect a district attorney who criticized a policy set by his supervisor, that the First Amendment did not protect high school students punished for posting remarks on the Internet outside school grounds, and that the First Amendment did not protect a humanitarian aid organization that provided non-violent educational materials to a group deemed by the U.S. government to be a threat. Clearly, a split record with some interesting lines that appear to be drawn. This symposium examines these recent decisions by the Roberts Court, exploring both the impact of these decisions and the direction in which the Supreme Court really seems to be going on matters of free expression. Leading First Amendment scholars and advocates grapple with some of the major modern issues in this area: academic freedom, modern-day limits on “hate speech,” government stifling of political dissent, restrictions on free expression on the Internet and on television, First Amendment problems in criminal conspiracy laws. Additionally, the symposium includes two transcripts of lively discussions on free speech issues: a debate between First Amendment heavyweights Floyd Abrams and Alan B. Morrison on Citizens United v. Federal Election Commission, and a panel discussion about the Roberts Court’s free speech jurisprudence moderated by NY Times Supreme Court correspondent Adam Liptak. Through these articles and transcripts, we provide a look through the eyes of experts at what the Roberts Court really is saying about contemporary freedom of speech, and a series of viewpoints on whether this direction really is favorable for our modern society.”
Robert M. O’Neil ………Hate Speech, Fighting Words, and Beyond–Why American Law is Unique
Robert D. Richards & David J. Weinert………Punting in the First Amendment’s Red Zone: The Supreme Court’s “Indecision” on the FCC’s Indecency Regulations Leaves Broadcasters Still Searching For Answers
Marvin Ammori & Luke Pelican………Media Diversity and Online Advertising
Martin H. Redish & Michael J.T. Downey………Criminal Conspiracy as Free Expression
Owen Fiss……..The Democratic Mission of the University
Welcome & Opening Remarks…….Benjamin P. Pomerance
Debate on Citizens United v. Federal Election Commission…….Floyd Abrams and Alan B. Morrison, moderated by Ronald K.L. Collins
Panel Discussion on Recent U.S. Supreme Court Free Speech Cases and Their Implications……Adam Liptak (moderator), Ronald K.L. Collins, Susan N. Herman, Alan B. Morrison, Robert M. O’Neil, Robert D. Richards
posted by Aaron Saiger
I am working on a paper about student speech rights in public school that has me vacillating about whether the classic Supreme Court case of Tinker v. Des Moines Independent Community School District (1969) is a brilliant exercise in linedrawing or an utter failure. Many readers will remember that Tinker held that students could wear black armbands to school in silent protest of American involvement in hostilities in Vietnam; school officials may interfere with or punish speech only if they reasonably forecast that it will “materially or substantially interfer[e] with the requirements of appropriate discipline in the operation of the school or collide with the rights of others.” The Tinker rule has the nice feature of explaining why a student cannot answer a teacher’s question “What were the results of Irish potato famine?” with “US Out of Vietnam!” while she can say the same thing in the hallway. More broadly, Tinker establishes a certain kind of pedagogical regime for the hours that students spend in-school-but-not-in-class, one where students can learn how to exercise constitutional rights by practicing them, up to the point of disruption.
Tinker’s flaws were made vivid once again this week by yet another case, this one from the Fourth Circuit, involving students being prohibited from and punished for wearing to school clothing that bears the likeness of Confederate flags. Such behavior seems initially very similar to wearing a black armband to protest Vietnam; but the courts of appeals have fairly consistently held that such speech can be barred under Tinker because histories of racial tension make it reasonable for school authorities to expect disruption to result from such displays. The new case, Hardwick v. Heyward, is quite emphatic on this score, emphasizing that the mere fact that the shirts did not lead to disruption is immaterial, because it was reasonable for school officials to predict disruption; moreover past racial disputes in the school were material, because they made the prediction more reasonable. The Hardwick rationale pretty clearly means that, had there once been fistfights in the Des Moines schools about the Vietnam War, or perhaps even World War II, then the armbands could have been banned in the present. Thus Tinker is deployed to create a particularly strong kind of hecklers’ veto.
My gut reaction to this case is — who is fooling whom? Read the rest of this post »
posted by Deven Desai
Just as Neil Richards’s The Perils of Social Reading (101 Georgetown Law Journal 689 (2013)) is out in final form, Netflix released its new social sharing features in partnership with that privacy protector, Facebook. Not that working with Google, Apple, or Microsoft would be much better. There may be things I am missing. But I don’t see how turning on this feature is wise given that it seems to require you to remember not to share in ways that make sharing a bit leakier than you may want.
Apparently one has to connect your Netflix account to Facebook to get the feature to work. The way it works after that link is made poses problems.
According to SlashGear two rows appear. One is called Friends’ Favorites tells you just that. Now, consider that the algorithm works in part by you rating movies. So if you want to signal that odd documentaries, disturbing art movies, guilty pleasures (this one may range from The Hangover to Twilight), are of interest, you should rate them highly. If you turn this on, are all old ratings shared? And cool! Now everyone knows that you think March of the Penguins and Die Hard are 5 stars. The other button:
is called “Watched By Your Friends,” and it consists of movies and shows that your friends have recently watched. It provides a list of all your Facebook friends who are on Netflix, and you can cycle through individual friends to see what they recently watched. This is an unfiltered list, meaning that it shows all the movies and TV shows that your friends have agreed to share.
Of course, you can control what you share and what you don’t want to share, so if there’s a movie or TV show that you watch, but you don’t want to share it with your friends, you can simply click on the “Don’t Share This” button under each item. Netflix is rolling out the feature over the next couple of days, and the company says that all US members will have access to Netflix social by the end of the week.
Right. So imagine you forget that your viewing habits are broadcast. And what about Roku or other streaming devices? How does one ensure that the “Don’t Share” button is used before the word goes out that you watched one, two, or three movies on drugs, sex, gay culture, how great guns are, etc.?
As Richards puts it, “the ways in which we set up the defaults for sharing matter a great deal. Our reader records implicate
our intellectual privacy—the protection of reading from surveillance and interference so that we can read freely, widely, and without inhibition.” So too for video and really any information consumption.
posted by Rick Garnett
I am delighted by and grateful for the opportunity to participate in the Concurring Opinions symposium on Jim and Linda’s engaging, important, and challenging new book, Ordered Liberty. And, the contributions so far have managed the tough task of enriching what was already the very welcome opportunity to read and think about the book.
I have — like Linda and Jim, though I’m sure not with their success — tried to think and write about “civil society” and “seedbeds of virtue” (here), about the tension and even conflicts between liberty and equality (here), and about the moral and legal rights of parents to direct and control — within some limits — the education of their children (here). Ordered Liberty has given me a needed opportunity to re-visit and re-think some of what I’ve said and thought, and I’m sure that process will continue.
At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so. But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.
So, a more focused thought on a particular part of the book: In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.” Fair enough — these case do indeed illustrate these struggles. But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.” That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions. To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.