Archive for the ‘First Amendment’ Category

FTC and Blogger Disclosure Rules

posted by Deven Desai

As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.

From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)

There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.

Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.

Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.

  October 5, 2009 at 1:44 pm  Tags: Blogging, FTC, guides  Posted in: Blogging, Consumer Protection Law, Cyberlaw, First Amendment, Media Law, Web 2.0   Print This Post   7 Comments

Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan

posted by Danielle Citron

Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.”  Why?  Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments.  The department suspects that some of the posters could be department employees.  Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.”  The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.

The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials.  Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods.  It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.”  Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors.  It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”

Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves.  We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job.  Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.”  Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece.  Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007.  I wonder what the Austin ACLU thinks now.

H/T Slashdot for the story

  September 21, 2009 at 9:46 am  Tags: free speech  Posted in: First Amendment, Google & Search Engines, Technology, Tort Law, Uncategorized   Print This Post   No Comments

Watch What You Say

posted by Jon Siegel

Excellent article by Olivia Judson in the NYT about how British libel law impacts science journalism.  A British science journalist is being sued by the British Chiropractic Association for writing that the association “happily promotes bogus treatments.”  A judge has ruled that the author’s use of the word “bogus” implied that the members of the BCA were not only promoting ineffective treatments, but treatments that they know are ineffective.  And that’s a statement of fact that might be libelous.

The case illustrates a clash between important principles.  On the one hand, it’s important to get the word out to the gullible public that they are being taken in by ineffective products, including — indeed, especially including — medical products.  I am frequently amazed at how people (including otherwise intelligent people) can fall for things such as those “homeopathic” products in which the allegedly effective ingredient has been diluted to the point where there is not likely to be even a single molecule of it left in the medicine the patient is supposed to take.  It’s important to educate the public about such things.  (Magician James Randi has dedicated decades to this effort.)

On the other hand, even a thief can complain if he is wrongly charged as a burglar. (Jackson v. Virginia, 443 U.S. 307 (1979).)  If people are promoting products that they honestly, but mistakenly, believe to be effective, it does seem libelous (although I’m not expert in libel law) to assert that they are deliberately engaging in fraud.

My snap judgment on this case is that the problem lies not so much in the rule as in its application.  I would say the judge erred in determining that the word “bogus” necessarily implies that the author is accusing chiropractors of deliberate fraud.  To me, the word “bogus” implies only that the treatments in question (and the article wasn’t a blanket condemnation of all chiropractic treatment, but only of claims that such treatment can cure certain, specified conditions) were in fact ineffective, whether or not the doctors performing them thought so.  Indeed, in the context of the full paragraph, it seems that the word “bogus” might have meant even less — only that the value of the treatments was unsupported by evidence.

According to the OED, “bogus” means “Counterfeit, spurious, fictitious, sham.”  I don’t see the necessary implication that people promoting bogus things know that they are bogus.  So without reaching the question of whether free speech trumps libel law in this kind of situation I think I would have determined that the critical sentence wasn’t as fraught with meaning as the judge thought.

  September 16, 2009 at 7:06 am   Posted in: First Amendment   Print This Post   One Comment

More Python, Fair Use, and Attribution

posted by Deven Desai

So I had my iTunes open and on shuffle yesterday when Monty Python’s “Finland” came on. That was what prompted me to check YouTube for Python offerings. Now the Python chaps have offered their own channel. This video has the usual Python cheek as they talk about YouTube, being ripped off, and the open plea that viewers buy the products after they enjoy them. The clip also touts the troop’s interest in showing the clips as they wanted them to be shown and in high quality.

Fun stuff but here is the problem. The Monty Python Channel has nowhere near the quantity of Python material one can find elsewhere on YouTube. I wonder whether the Python folks chose to leave the other posters alone and offer what they see as the best or most in demand clips in a branded area. Then again, they may have decided to go after the other posters too. And to think this train of thought all started in Finland. Finland? Yes, because I could take a CD, put into MP3 format, and listen to “Finland” as a shuffle tune. But wait. There’s more! The devil you say. No, really.

Check out the clip for Finland below. It is a good quality stream of the music. It is funny and adds a fair amount of creativity. It attributes the visual work and the software to make the work. It also acknowledges Python as the source of the music. In addition, it has embedded ads to allow a viewer to buy the song from iTunes or Amazon. Now given all the new works, Python’s failure to offer a similar video (even if they did the video is a new work albeit one needing the song to make much sense), AND the ads is it fair use? After all YouTube and the poster probably take a cut, as would the seller, but as the Python folks acknowledge they too are giving access to and enjoyment of their clips away for free with the plea that people buy their work. As my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System argues these facts present confusing situations for intellectual property. Sharing, attribution, some control, encouraging purchases, remixing, and more can all be seen in my encounter with Finland which may be my new personal metaphor for IP. Watch the video and tell me what you think, fair use, attribution, new work, infringement, all of the above?

  September 9, 2009 at 1:47 pm  Tags: copyright, fair use, Finland, Monty Python  Posted in: First Amendment, Humor, Intellectual Property   Print This Post   No Comments

More on Campaign Finance Reform

posted by Michael Kang

As Gerard noted earlier, the Court today is hearing arguments in Citizens United v. FEC, the well-publicized case featuring “Hillary: The Movie.” The case is receiving a great deal of public attention, not only because many commentators suspect the Court will overrule Austin v. Michigan Chamber of Commerce, but because the case represents a number of notable firsts—it will be the first case of the 2009 Term, the first oral argument by Elena Kagan as solicitor general, and the first case on the Court for Justice Sonia Sotomayor. Rick Hasen has collected previews of Citizens United here.

I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.

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  September 9, 2009 at 6:30 am   Posted in: Constitutional Law, Current Events, First Amendment, Politics   Print This Post   2 Comments

Twits, As In The NFL Management Folks and Twitter

posted by Deven Desai

Although I despise those who twitter as a general matter (and will thus likely embrace the odd medium any day now), it has moments where it is useful. Short bursts of information updates for natural disasters, airport shut downs, and possible revolutionary mayhem come to mind. Today a less major (depending on how you look at it) issue, gmail going down, has shown that Twitter is again useful but barely. As TechCrunch notes, Twitter may have come close to crashing but held up well as thousands upon thousands of folks expressed frustration and ore about the great Google in the sky going down. And yes some Google folks used the medium to communicate bland statements about how Google was addressing the problem (probably asking some extraordinarily smart people about some obscure math issue and then finding that such knowledge may not help them figure out email service).

Now the NFL has come along and has regulated the use of Twitter as CNET describes:

[The NFL has] modified its social-media policy to limit Twitter and social-networking use by players, coaches, league officials, and even the media. The NFL said that it will let players, coaches, and other team personnel engage in social networking during the season. However, they will be prohibited from using Twitter and from updating profiles on Facebook and other social-networking sites during games. In addition, they will not be allowed to tweet or update social-networking profiles 90 minutes before a game and until post-game interviews are completed. The rules even extend to people “representing” a player or coach on their personal accounts. The NFL didn’t just stop with the league itself, though. The organization also said that media attending games will be prohibited from providing game updates through social networks.

I love the NFL’s reason and think that it is trying to assert that even fans ought not be able to share play-by-play:

“Longstanding policies prohibiting play-by-play descriptions of NFL games in progress apply fully to Twitter and other social media platforms,” the National Football League said in its statement. “Internet sites may not post detailed information that approximates play-by-play during a game. “While a game is in progress, any forms of accounts of the game must be sufficiently time-delayed and limited in amount (e.g., score updates with detail given only in quarterly game updates) so that the accredited organization’s game coverage cannot be used as a substitute for, or otherwise approximate, authorized play-by-play accounts.”

This position seems to suggest that one, players, etc. twittering has something to do with approximating play-by-play when most likely the NFL wants to regulate the way in which all those connected with a team communicate and represent themselves around a game. One might agree that being in the NFL requires following its odd ethics. How those goals havve anything to do with play-by-play recounting is beyond me. If fans start to share exuberant moments in almost real time, as I did via text in the glorious game to of the NBA finals this past season, but instead of using text, fans used Twitter, the NFL might assert that such sharing is not allowed. At least the quoted logic above seems to point to such nonsense. As CNET notes enforcement even at the team level will be quite difficult as the nFL won’t know who posted what. Of course the NFL could require some sort of disclosure of Twitter and other social networking aliases which raises a host of standard objections that readers here can easily figure out while the NFL may not. All of which makes me wonder, should the twits who came up with these positions love Twitter?

  September 1, 2009 at 2:17 pm  Tags: gmail, NFL, Twitter  Posted in: Cyberlaw, First Amendment, Social Network Websites   Print This Post   One Comment

Why so… socialist?

posted by Alice Ristroph

Sometime in the past few days, just in time for the President’s birthday, posters of Obama in Joker-style makeup appeared on a Los Angeles overpass. The images quickly spread across the internet and have sparked predictable praise from the right or criticism from the left. Whether or not the posters are unduly offensive to President Obama, they are a serious insult to Heath Ledger’s Joker and his gleeful nihilism. What strikes and fascinates me is the poster’s angry incoherence: under the image of Obama is the word “socialism.” Did this artist even see The Dark Knight? Or perhaps I should ask, what does this artist think socialism is, anyway?

Consider that socialism is associated with the concepts of “central planning” or a “planned economy,” in which a centralized authority manages everything (or at least the economy) according to plan. Now, thanks to a conversation with Brooklyn Law prof Nelson Tebbe, who offered a profound analysis of The Dark Knight, I watched that film with the close attention of a serious academic, ready to learn what it could teach me about violence. I even read the script. And the Joker’s worldview seems pretty antithetical to socialism. Here’s what the Joker has to say about planning:

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  August 4, 2009 at 3:27 pm   Posted in: Constitutional Law, Culture, First Amendment, Movies & Television, Politics   Print This Post   26 Comments

Image Protection at Universities

posted by Deven Desai

The Chronicle of Higher Education (subscription required so no link) notes that Hollywood tends to ask universities and colleges for permission before they set their films or television shows at a particular campus. So Felicity attends University of New York instead of NYU, and Legally Blonde is set at Harvard instead of, wait for it … University of Chicago? Odd but apparently true (my guess is that this turn of events helped the film. No offense to Chicago but as a matter of pop culture Harvard probably takes the prize). One possible culprit according to the article is our friend US News and World Report and the ranking game. Since the report started ranking undergraduate institutions films reference real schools, rather than random State U, 29 percent of the time as opposed to 19 percent before the US News games began. The claim is that references might seem to be endorsements. So Stanford only allows “aspirational” portrayals; read here goody-goody overachievers. The article claims that Stealing Harvard was originally Stealing Stanford, but the farm rejected that idea “Since Stanford is need blind” and the story of needing to steal to go to the school would be unreal (as many fictional stories are). In contrast, Harvard seems to realize that a fictional story is just that and seems more generous about the names and so on. Note that most schools are more restrictive about shooting on campus but may embrace the idea for the fees they can charge.

All well and good, but whether there really is a trademark claim as the article suggests and the schools seem to think (note that Dawson’s Creek also wished to avoid conflict and invented Worthington University as a generic Ivy although ironically shot at Duke) is troubling. The expansive notion of association seems to fuel this perspective. But as Sandy Rierson and I argue in the Confronting the Genericisim Conundrum uses such as these are expressive and in that sense irrelevant to the market transaction trademark is supposed to be about. On a similar wavelength Mark Lemley and Mark McKenna seem to be arguing that other uses of trademarks are not relevant to trademark analysis (To be clear, I have yet to read the paper, and it may be that this sort of use would be actionable according to Mark and Mark (or dare I say it? Dare. Dare. Mark y Mark?).

In short, if one considers the feedback loop in play here, the more expressive uses that are made, the less likely people will think that Standford endorsed a portrayal. In addition, what about more critical commentary that could be set a university? Setting up a system of permissions is dangerous. Last, maybe Harvard has it correct: people are not that stupid. They can tell the difference between a fictional story and a claim to reality. Can’t they?

Image Source: Wikicommons
By: Yukihiro Matsuda from Kyoto (and Osaka), Japan

Creative Commons Attribution 2.0 License

  August 3, 2009 at 12:00 pm  Tags: Chicago, expression, fair use, Harvard, permission, Stanford, trademark  Posted in: First Amendment, Intellectual Property   Print This Post   4 Comments

Rating Agencies: Privilege Without Responsibility

posted by Frank Pasquale

First Amendment fundamentalist Floyd Abrams is back on the attack, now in the service of the credit rating agency S&P. He says that their ratings are essentially the same as an editorial — a position I looked at with some skepticism here. Editorials fail to receive the regulatory subsidy routinely channeled to raters, via acts like the Secondary Mortgage Market Enhancement Act of 1984 and the Investment Company Act of 1940, and agencies like the National Credit Union Administration (all of which mandate the use of raters’ products). Abrams appears to want to let the raters get all the benefits of such government subvention, without the liability or extensive regulation it should naturally lead to.

On the Media has a great interview with Abrams, who vigorously defends the agencies’ actions:

[Interviewer] BROOKE GLADSTONE: Okay, so first of all, explain to me why this is more like an editorial. To me it seems more like a clothing inspector, the people who leave the little number inside the clothing you buy. They leave their number so that if the zipper was put in backwards, for instance, they could theoretically take responsibility. Why are the ratings companies different from that?

FLOYD ABRAMS: Well, because the rating agencies use their models, use their heads, use their common sense, have ratings committees. They sit down and they come out with their best judgment as to what is likely to happen in the future about repayment of debt. And that is not subject to mathematical yes/no answers. It’s not the same as saying, my zipper is no good or a couch is no good. It’s not being an inspector. It’s not.

BROOKE GLADSTONE: Fair enough. Let’s move away from that analogy and let’s go to one that attorney David Grais, who we just spoke to, came up with, that in many cases rating agencies want their ratings to be protected as opinion, like, say, a restaurant critic’s. But more often, he notes, they’re like critics who go into the kitchen, make the food and then come out and write about it. They help create these deals. And they have a financial stake in their own ratings ‘cause they’re paid by the very companies they rate, a seemingly obvious conflict of interest.

FLOYD ABRAMS: Rating agencies have analytic standards. They apply those standards. And, yes, they discuss with the entities that they’re rating why they’re doing what they’re doing. And if the entity asks them, well, you know, how come you’re giving us a triple BBB instead of a double AA, they tell them why. And if the entity wants to do things to get a higher rating, they can do them.

And it is not inappropriate, in my view, so long as they take good steps to deal with the potential for conflict of interest. It is not inappropriate that they get paid by the entities they rate. I mean, it is not conceptually that distinguishable from, you know, a large entity which puts big ads in – what, a motorcycle magazine and then they write about the motorcycles. Do they have to be careful? Yeah.

BROOKE GLADSTONE: The fact of the matter here is that the ratings agencies, in this case, were so widely off the mark, ultimately, that it doesn’t seem to have been just a series of mistakes of judgment.

I really look forward to seeing how Abrams would deal with facts like these if similar revelations emerge about his own client:

[In the package of loans it was to rate,] Moody’s learned that [over 38 percent of the borrowers] did not provide written verification of their incomes. . . . On the plus side, Moody’s noted, 94 percent of those borrowers with adjustable-rate loans said their mortgages were for primary residences. “That was a comfort feeling,” [one analyst] said. Historically, people have been slow to abandon their primary homes. When you get into a crunch, she added, “You’ll give up your ski chalet first.”

Borrowers have no chance of repaying via income and assets? Assume a ski chalet! (Much like the classic economic approach of assuming a can opener.) As the Summary Report of Issues Identified in the Commission Staff’s Examinations of Select Credit Rating Agencies (by the Office of Compliance Inspections and Examinations of the SEC) noted in July 2008, none of the rating agencies had specific procedures for collateralized debt obligations–even though 17 CFR 240.17g-2 required them to make certain internal documents public, including procedures and methodologies they use to determine credit ratings.

Sadly, I think that, given the current state of the law, Abrams’s First Amendment arguments will do well in front of many courts. But as David Segal states in the NYT article, “The First Amendment is no defense against fraud, and that is what is alleged by many of the plaintiffs.” Segal notes that, “Against them, Mr. Abrams will argue that S.& P. was every bit as blindsided as nearly everyone else in the private sector and in the regulatory sphere.”

Here are a few quotes that appear to be from S&P:

1. Internal Email: “rating agencies continue to create [an] even bigger monster – the CDO [collateralized debt obligation] market. Let’s hope we are all wealthy and retired by the time this house of cards falters.”

2. Instant Message: “It could be structured by cows and we would rate it.”

These people don’t sound blindsided to me. Rather, they, like the three ratings agency CEOs who together earned $80 million themselves over the past 6 years, sound like people who knew exactly what they were doing: getting while the getting was good. If Abrams succeeds, he’ll be making that particular Wall Street strategy all the more foundational for America’s brave financial innovators.

But would a loss for S&P change anything? I really don’t know. What I do believe is that the US discourse on rating agencies would probably benefit from some input by scholars like John Quiggin, who argue that “Among the many challenges in reconstructing a sustainable system of global finance, the replacement of ratings issued by for-profit agencies with an alternative system, in which AAA ratings actually mean something, is among the most important.” Quiggin notes that the rating agencies are biased in many important ways:

[T]hey have a long-standing ideological bias against the public sector. This is reflected in the fact that state and local governments, which rarely default on their debt, are assessed far more stringently than corporate issuers. In the last year, thousands of private-sector securities issued with AAA ratings have been downgraded to junk, and many have subsequently gone into default.

By contrast, defaults on government debt have remained rare. One effect of the differential ratings practices of the agencies is that government borrowers have been forced to seek insurance from bond insurance companies such as AMBAC that are, in reality, less sound than the governments they are insuring.

Unfortunately, the 2006 Credit Rating Agency Reform Act specifically prohibited the SEC from regulating the “substance of the credit rating or the procedures and methodologies” used to calculate it. Reform measures proposed by the Obama administration have barely addressed the CRA’s. At the very least the government ought to be able to use FAIR v. Rumsfeld to insist on more responsible behavior (as Jennifer Chandler has argued, in another context, here). CRA’s should take the bitterness of regulation with the sweetness of regulatory subsidies.

I believe that as long as the US government provides a de facto regulatory subsidy to CRA’s, it should require them to factor into at least some of their ratings the full social value of the rated entity—not simply its likelihood to default. Ratings are often a self-fulfilling prophecy, and the state should harness their value to promote projects that improve the health, safety, security, and well-being of citizens. At the very least, the government should set up a “public option” in credit rating (akin to the proposed public option in health insurance) that is more transparent and accountable than extant credit raters. If the finance sector is going to grow as dependent on government help as the health care sector has, it should learn to accept the same web of standards and regulation that guarantee some minimal accountability for providers who accept government funds. Looking at the AHRQ and comparative effectiveness research could be a good place to start.

  July 19, 2009 at 11:55 am   Posted in: Corporate Finance, First Amendment   Print This Post   3 Comments

Professor John Doe Is An Ugly [Insert Racial Slur]!

posted by Elizabeth Nowicki

Law students sometimes use the internet to widely disseminate racist or gendered comments about women and minority faculty members. For example, I have heard about law students using teaching evaluation forms or Facebook or Myspace to make comments to the effect that that a female faculty member is a bitch with PMS or that an African-American faculty member is a [insert racial slur]. Indeed, the Auto-Admit debacle from a couple years back revealed that law students or potential law students seem to at least sometimes use the internet to convey vicious gendered and/or racist comments.

When I hear about these situations, I always wonder about the “character and fitness” implications. It seems to me that a law student who is publicly judging a female faculty member negatively on a gendered basis or who is characterizing minority faculty members by way of stereotyping and ugly slurs is raising questions about his/her character and fitness to practice law. In the same way that a lawyer who embezzles is not fit to practice, one might argue that a law student who dismisses individuals with ugly characterizations based only on race or gender might also be of questionable character for purposes of practicing law. Yet not everyone agrees with this assessment, and, with respect to law students using the internet for such attacks, there has not been a lot of discussion about the character and fitness issues raised.

Therefore, the AALS Section on Women in Legal Education will be presenting a panel at the AALS Annual Meeting in New Orleans examining the issues raised – including the character and fitness issues – when law students, lawyers, judges, or potential law students use the internet to make gendered or racist comments. If a student posts on her Myspace page that Professor John Doe, who teaches Gender and Race and the Law, is an “ugly [insert racial slur] who only has a job due to affirmative action,” does that pose a character and fitness concern? Should we care?

There is a call for papers for this panel presentation, and anyone interested in submitting a paper or paper proposal is welcome to e-mail me for the details.

  July 9, 2009 at 6:29 pm   Posted in: Civil Rights, Conferences, Cyber Civil Rights, Feminism and Gender, First Amendment, Intellectual Property   Print This Post   11 Comments

Washington Post Fire Sale

posted by Frank Pasquale

As newspapers falter, we often hear about how terrible it would be if public funding supported them. Imagine the conflicts of interest! Well, we’re now getting an inside look at the “stealth marketing” media may need to engage in in order to survive:

Mike Allen at Politico.com [has] reported that Post publisher Katharine Weymouth has decided to solicit payoffs of between $25,000 and $250,000 from Washington lobbyists, in return for one or more private dinners in her home, where lucky diners will receive a chance for “your organization’s CEO” to interact with “Health-care reporting and editorial staff members of The Washington Post” and “key Obama administration and congressional leaders. . . .”

Though the Post’s leadership quickly backed away from the plan, we can only imagine what kinds of fire sales a few more years of economic hardship will bring:

Looks like Dan Froomkin got out just in time!

  July 2, 2009 at 2:30 pm   Posted in: First Amendment, Media Law   Print This Post   No Comments

Modern Day McCarthyism

posted by Frank Pasquale

I was recently listening to a program on the rise of “red-baiting” in some Vietnamese-American communities. It’s apparently becoming a common rhetorical strategy:

On April 16, 2009, the Thurston County Court ruled in favor of a Vietnamese man who sued for defamation. This case was the first of its kind in the state of Washington. . . . The court found the five defendants . . . guilty for wrongly accusing the plaintiff . . . of having communist sympathies.

[I]n this case, both the defendants and plaintiffs fought against communism during the Second Indochina War. All those interviewed invoked a word commonly used within the Vietnamese émigré community to describe the act of wrongly accusing someone of communist sympathies: chụp mũ. As this trial brought to light, chụp mũ is a widespread practice among Vietnamese community leaders. However, it is very rare for a person who has been chụp mũ to sue his/her accusers.

This might be an interesting precedent for those accused by shock jocks of being socialist, Marxist, Bolshevik, or in favor of concentration camps.
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  June 25, 2009 at 5:41 pm   Posted in: Current Events, Economic Analysis of Law, First Amendment, Law and Inequality   Print This Post   No Comments

Contracts, Confidentiality, and Speech: Connecticut Supreme Court Upholds Agreement Not To Speak

posted by Deven Desai

I am sure that free speech, First Amendment gurus/junkies will have more to say about this one, but a recent case out of the Connecticut Supreme Court, Perricone v. Perricone, seems to merit a mention here. As the title of the case indicates, it is a divorce case. Apparently the husband runs a skin care company and millions of dollars are at stake. According to The Connecticut Law Tribune, the New York Post covered the divorce. Nonetheless, during the case Ms. Perricone “signed a confidentiality agreement to prevent pretrial discovery documents from being publicized. In it, she agreed that Perricone’s lucrative skin care business ‘may be severely harmed’ if she made disparaging or defamatory statements about him.” When she wanted to talk to 20/20 about the case, however, Mr. Perricone obtained an injunction by arguing that the confidentiality agreement controlled and that an integration clause in the final settlement did not supersede that agreement. In short, Ms. Perricone was still prevented from talking about the divorce. The court agreed with Mr. Perricone.

As First Amendment matter, the Connecticut Supreme Court held that the agreement was not a prior restraint on speech. I am sure that there are articles about the problem of what is state action in this context and whether one can waive First Amendment rights via contract. The court in this case relied on Cohen v Cowles Media Co. and held: “that a party’s contractual waiver of the first amendment’s prohibition on prior restraints on speech constitutionally may be enforced by the courts even if the contract is not narrowly tailored to advance a compelling state interest.”

As I am not a First Amendment guru and/or junkie, all I can say here is that it seems that there are some continuing problems here. The idea “that a judicial restraining order that enforces an agreement restricting speech between private parties [does not] constitute[] a per se violation of the first amendment’s prohibition on prior restraints on speech” appears correct if non-disclosure agreements and other confidentiality agreements are to work. Indeed, as our own Dan Solove and Neil Richards discuss in Rethinking Speech and Civil Liability:

Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech. Both of these rules are widely-accepted. However, there is a major problem – in a large range of situations, the rules collide.

Although I am not sure I agree with the paper’s solution, I recommend the paper as a way to think not only about the Perricone case but the problems encountered when free speech and private law intersect.

  June 24, 2009 at 2:50 pm  Tags: contract, divorce, First Amendment, free speech, Perricone  Posted in: Contract Law & Beyond, First Amendment   Print This Post   No Comments

Responsibility and Duty Meet Social Networking

posted by Deven Desai

In light of the events in Iran, many may laud the power of tools such as Twitter and Facebook as they allow information to reach the world. Here in the United States, however, a few stories highlight how social networking tools and blogs run into ideas of fairness, honesty, and even justice. First, the FTC is planning on investigating bloggers who are paid for their posts but who do not disclose their affiliation. The article claims “The common practice of posting a graphical ad or a link to an online retailer — and getting commissions for any sales from it — would be enough to trigger oversight.” Second, the Ninth Circuit has just ruled that a woman’s blog posts about her co-workers and job environment were not protected speech. As such, her demotion was lawful. Third, a recent Law.com article makes a strong argument that tweeting while on a jury should not be allowed and jeopardizes the fairness of a trial.

The FTC action seems too aggressive, yet it shows that the idea of blogs having some sort of purity is not always the case. But if it prompts bloggers to be more forthcoming about their affiliations and to develop some best practices (as the article suggests), that could be a good outcome. It also seems to embrace the idea of more information is better which may keep many online happy. Those who think tweeting is some sort of anointed right err. The trial context shows that rather well. As for the blog and speech case, I need to find the decision. The article claims that the court “concluded that [the plaintiff's] speech was not a ‘public concern’ but rather was ‘racist, sexist, and bordered on vulgar,’ and it characterized her behavior, in part, as ’salacious’ and ‘mean spirited.’” I leave it to the First Amendment folks to unravel that one, but I wonder whether this case will be appealed to the Supreme Court.

In any event, these three events show that while we can say that tools that enhance free speech are wonderful in the extreme cases such as the situation in Iran, the more subtle cases raise on-going questions about the contours of speech. As always the issues are familiar. Now, however, simply saying keep your hands off the Internet or keep it free is an insufficient guideline. Too many people are online and too much online behavior tracks offline experiences and problems. In other words, although the technologies seem to make the questions different and requiring special treatment, they may only make the old questions and responses more salient.

  June 22, 2009 at 11:22 am  Tags: Blogging, free speech, FTC, juries, regulation, Twitter  Posted in: Cyberlaw, First Amendment   Print This Post   No Comments

Barnes v. Yahoo!, CDA Immunity, and Promissory Estoppel

posted by Daniel Solove

The Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel.  I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

Barnes contacted Yahoo to get the profiles taken down:

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  May 19, 2009 at 6:14 pm   Posted in: Constitutional Law, Cyberlaw, First Amendment, Law School, Media Law, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0   Print This Post   4 Comments

IP Law and the Presidential Sneakers…

posted by Jacqueline Lipton

President Obama is likely the first true “celebrity president”, at least the first in our time, in the sense that people see opportunities for making money from his persona and likeness.  Early on in the presidency, his office made some remarks to the extent that they were working on a policy asking people to be respectful of the president and his family in restraining some of these commercial impulses.  Of course, all of this raises the fine line between free speech and personality rights – a topic much debated on the cyberprof listserve in the early days of this presidency.

In this vein, I couldn’t resist posting an ad I came across last night that squarely raises these legal issues.  A company that appears to be in Michigan (although they do not give their postal address, but do require Michigan residents to pay sales tax on purchases from their website) has set up an “Obama shoes” website.  On this website, you can purchase Obama sneakers, backpacks, and basketballs.

The website uses video clips from one of Obama’s speeches and refers to itself as selling merchandise that is inspirational to young folks and that is intended to commemorate Obama’s inauguration. Thus, it obviously intends to juxtapose free speech interests in the inauguration against the commercial use of Obama’s name and likeness.

There are some other interesting little sidenotes about this business venture that suggest the people who set it up sought at least some legal advice before doing so.

1. They used the domain name “obamashoes.tv” presumably either because they couldn’t get a “better” domain name or because they wanted to avoid claims under the Uniform Domain Name Dispute Resolution Policy. They could argue that even if Obama’s name operates as a TM, they have not used his actual name in the domain name, but have added “shoes” to the end of it so no one will think it’s an authorized Obama website.

2. They include a disclaimer on their webpage to the effect that: “Obamashoes.tv is a private entity and makes no claim of affiliation or endorsement by President Barack Obama or his campaign for office.”

3. Interestingly, there is also a disclaimer on their FAQ page about the design of the sneakers themselves. “Q. Why does [sic] the shoes look like Nike Air Force Ones (AF1) and the Jordan Brand?
A. These design is [sic] been proven to be commonly preferred by most Adults & Children (black or white).” Now, I personally don’t know anything about sneaker designs, but I assume this is intended as a preemptive strike to ward of claims in trademark, trade dress, and/or design patent with respect to the actual design of the shoes.

So, interesting business model…
Legitimate free speech? Or intellectual property law infringement as far as they eye can see?

  May 19, 2009 at 9:16 am   Posted in: Advertising, Consumer Protection Law, Culture, Cyberlaw, First Amendment, Intellectual Property, Politics, Technology, Uncategorized   Print This Post   No Comments

The Free Speech Implications of Gene Patents

posted by Danielle Citron

Last week, the ACLU and Cardozo Law School’s Public Patent Foundation (PPF) filed a lawsuit in the S.D.N.Y., challenging the constitutionality and validity of Myriad Genetics’ patents for BRCA1 and BRCA2 gene mutations, which are linked to an increase risk of breast and ovarian cancer.  Plaintiffs, a collective of breast cancer and women’s health groups, individual breast cancer patients, and scientific associations, sued the U.S. Patent and Trademark Office, patent owner Myriad Genetics, and directors of the University of Utah Research Foundation.  The lawsuit asserts that the USPTO granted a patent on the association between mutations conferring an increased risk of cancer and, in turn, patented “an idea, a scientific fact, or a piece of knowledge.”  According to the complaint, patenting genetic sequences violates the First Amendment because it hinders the free flow of information.

Although the controversy over BRCA genes isn’t new, the case is groundbreaking.  As PPF’s Daniel Ravicher explained in this month’s The Cancer Letter, no court case in the U.S. has “ever questioned whether genes can be patented.”   The lawsuit calls into question the constitutionality of “thousands of patents covering human genes.”  Although plaintiffs could have challenged other patents, they chose the BRCA ones because, as Ravicher notes, “these are offensive patents, and they have a large impact.”  ACLU’s science advisor Tania Simoncelli explains that Myriad’s control over the BCRA genes hampers clinical research given its exclusive right to prevent anybody from looking at the genes in research.  The patent also impairs patient access to the tests, which can cost over $3,000.

Do gene patents restrict the exchange of ideas in practice?  Harry Ostrer, NYU School of Medicine’s Director of the Human Genetics Program, explained to The New York Times that his laboratory, and others like it, would focus on unsolved mysteries in BRCA gene variants if they did not face the risk of a patent lawsuit from Myriad.  A 2006 report from the National Research Council, however, found that patented biomedical research “rarely imposes a significant burden” for researchers.  Europe’s experience may be instructive: European law precludes patent holders from exercising patents when their IP is being used for research.  Whatever the European example may teach us about gene patentability’s impact on research, this is surely a case to watch.

  May 18, 2009 at 12:49 pm   Posted in: First Amendment, Intellectual Property, Technology, Uncategorized   Print This Post   3 Comments

Flu and Censorship

posted by Gerard Magliocca

It is often said that a famine cannot occur in a country with a free press.  In other words, natural disasters become severe catastrophes only when corrective measures are not taken due to a lack of awareness.  This point was driven home during the recent swine flu outbreak, which was often compared to the dreaded 1918 influenza pandemic.

While people often condemn the modern media for sensationalizing issues such as swine flu, consider the alternative.  In John M. Barry’s excellent book on The Great Influenza, he points out that a major factor in the spread of the 1918 virus was wartime censorship.  Newspapers did not report on the virus until long after it was in the population, and when they did the information was scanty and unhelpful.  Likewise, public officials were slow to inform the public and were reluctant to admit that there was a problem.  Why?  Largely because people were worried about hurting wartime “morale” by talking about bad news.  Some of this involved official censorship and some involved a culture of conformity created by Woodrow Wilson’s Administration.  The result, one could say, was even more harmful to morale — hundreds of thousands of deaths.

While there are costs to media hype, muzzling the press directly or indirectly is usually more costly.

  May 12, 2009 at 6:28 am   Posted in: First Amendment   Print This Post   2 Comments

Alexander Meiklejohn, Blog Comment Policies, and Free Speech

posted by Neil Richards

I read with interest a couple of weeks ago the discussion on this and other law professor blogs about comments policies – whether to allow comments, whether to moderate them, and when and whether to edit and/or delete them.  The discussion reminded me of Alexander Meiklejohn’s famous conception of free speech as a moderated town meeting, where the diversity and quality of discussion was more important than any individual right to speak.  Meiklejohn argued that “the First Amendment … is not the guardian of unregulated talkativeness” and that the free speech guarantee was “not that everyone shall speak, but that everything worth saying shall be said.”

I think something similar applies to the moderation of blog comments – moderation in the pursuit of good discussion is a healthy thing.   Of course, there is always the danger that thin-skinned or intellectually dishonest moderators might edit in order to come out better in an argument, but this risk is lessened by the fact that there are lots of blogs, and (at least in the case of law blogs) there is a fairly robust set of professional norms and reputational consequences operating in the background.  So I think blog comment policies (like the one on this blog) are perfectly fine (even though I there us some irony in that the blog comment policy having comments turned off!).  But like Meiklejohn’s moderator, as long as the discussion is being moderated constructively, there are real gains from numerous moderated discussions.  In fact, since different discussions can operate under different conditions of moderation, some discussions can be tightly moderated (ie, books and newspapers), others can have little or no moderation, and at the opposite extreme there is the wiki model, where even the statements of others are subject to revision and alteration.  A wide variety of discussions and forms of discussion is, I think, the key to a robust and healthy discourse.

One natural objection to this line of argument is that we’re not really talking about the First Amendment here, since all of the blogs and fora of discussion are private actors.  I’ve increasingly come to believe that the values of free discussion and debate are too important to be left to the First Amendment.  (I make a mild form of this argument here in a recent article).  Newspapers, blogs, email, water-cooler chats and other forms of relatively public and relatively private discussion are the building blocks of a vibrant expressive culture, and if we only think about free expression from the perspective of avoiding government anti-censorship, we are missing (at least) half of the world.  For this reason, I think discussions about issues like blog comment policies are centrally the concern of free expression, and such discussions can benefit immensely from a little First Amendment theory.

Blog comments are turned off from this post (just kidding!)

  May 7, 2009 at 9:22 am   Posted in: Blogging, Constitutional Law, Cyber Civil Rights, First Amendment   Print This Post   3 Comments

Are There Special TARP Appropriations for Silencing Bloggers?

posted by Frank Pasquale

The Paulson-Geithner-Summers regime has been remarkably adept at stonewalling people like Elizabeth Warren and otherwise avoiding transparency in the bailout. Now one of its main beneficiaries, Goldman Sachs, appears to be targeting mere commentators. They’ve hired a prestigious law firm to menace a writer who collects facts & commentary about the company at this site. As the Daily Telegraph reports,

Florida-based [Mike] Morgan began a blog entitled “Facts about Goldman Sachs” – the web address for which is goldmansachs666.com – just a few weeks ago. . . . [M]any of the posts relate to other Wall Street firms and issues. According to Chadbourne & Parke’s letter, dated April 8, [Goldman] is rattled because the site “violates several of Goldman Sachs’ intellectual property rights” and also “implies a relationship” with the bank itself.

How could anyone think Goldman itself would be affiliating with or authorizing a site that links it to devilry? Unfortunately, the strange range of results of UDRP decisions on similarly satiric sites mean that this is not an absurd legal argument. And given the apocalyptic consequences of the former investment bank’s “financial engineering,” perhaps a reasonable person would associate it with the “mark of the beast”–or guess that hellfire was just one more profitmaking angle for its partners.

Activity like this helps us understand why the wall of silence about the exact nature of and conditions (or lack thereof) on TARP/TALF funding are so important to Treasury. Imagine if we were able to track exactly how much more executives were being paid because of these funds than if they’d have been paid absent taxpayers’ subventions. What if we could track who was benefiting politically from donations by employees at the propped up firms? What if the firms in general start using their corporate welfare to silence more critics like Mr. Morgan? At what point does this become state action? And might we start asking whether the resistance to nationalization among policy elites might be due to a need to avoid state responsibility for what is essentially state-funded action by maintaining a fig leaf of “private ownership” over the banking system?

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  May 2, 2009 at 12:02 pm   Posted in: Blogging, First Amendment   Print This Post   One Comment

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