Archive for the ‘First Amendment’ Category
Architectural Trusteeship
posted by Timothy Zick
With regard to traditional public forum spaces, the Supreme Court has imposed certain duties on governments as “trustees.” These duties include a responsibility to ensure access to public parks, streets, and (most) sidewalks, and adherence to a principle of anti-discrimination (although it may not include a duty to preserve any forum spaces in perpetuity, or require diversity of speech or speakers). The trusteeship principle is problematic in the sense that it continues what I (and others) believe to be the categorical error of treating forum doctrine as a matter of property principles, rather than deeper spatial concerns. However, the principle does provide a basis for imposing some obligation on government to open, maintain, and perhaps preserve certain spaces.
In an earlier post, I noted some of the benefits of Marvin’s broad conception of spatial architecture. Here I raise a potential complication. With regard to public forum spaces, the trustee concept arises principally from the fact of governmental ownership and the need for minimal access for exercise of fundamental rights of speech, assembly, and petition. Trusteeship is rooted in the special nature of these places, in particular their historical connection to First Amendment liberties. I wonder what normative or other basis exists for treating other speech spaces in a similar manner. In other words, on what basis can government be said to have an obligation (whether judicially enforceable or not) of some sort to open and diversify not only traditional public forum spaces but new spaces, virtual spaces, private spaces, and regulated (but not publicly owned) spaces? I undertand from Marvin’s account that the doctrine can be interpreted to support this result, and that legislators can be “constitutional norm entrepreneurs.” But to impose or argue for diversity, sufficiency, and other requirements across a broad range of channels and spaces, don’t we need a trusteeship principle, or something like it, for the entire architecture? Can one be found in, or fashioned from, doctrine or other sources?
February 7, 2012 at 6:43 pm
Posted in: First Amendment, Symposium (First Amendment Architecture)
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One more principle: Nondiscrimination
posted by Brett Frischmann
There is one principle that I would add to the five that Marvin examines in the article: nondiscrimination. It seems to me that across public and private, physical and virtual ”space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.
I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model. We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable. A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).
This sixth principle is implicit is the other five that Marvin discusses. It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely. Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.” Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content). There are other examples that Marvin explores in the paper. In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.
Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment; I explored those ideas in an essay and I expand on them in the book. It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.
February 6, 2012 at 8:39 am
Tags: First Amendment, free speech, Supreme Court
Posted in: First Amendment, Symposium (First Amendment Architecture), Uncategorized
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Speech and Spatiality
posted by Timothy Zick
I too want to thank Danielle and Concurring Opinions for hosting this discussion. I think Marvin has addressed a really timely and important topic, speech spaces and architecture, in his forthcoming article. As readers can tell from his posts here and elsewhere, and from reading the piece, Marvin challenges a fair amount of what passes for conventional wisdom in the free speech area. I look forward to discussing his thesis and some of its implications. In this post, I want to address why the framing of the issues Marvin addresses as distinctly spatial ones is critically important.
In my own work on speech and spatiality, I have focused on the importance to freedom of speech, assembly, and petition of access to public parks and plazas (public forums). Marvin’s conception of speech spaces is much broader. It includes not only these traditional forums, but various channels of communication. Thus, he provides an expansive conception of free speech spaces, one that extends far beyond my own conception of the “expressive topography.” Under Marvin’s conception, newspapers, broadcast and cable stations, the U.S. mail, and the Internet are all speech spaces. Thay are part of our expressive architecture. By treating these channels as spaces or places rather than simply mediums of expression, Marvin begins to push against traditional conceptual boundaries. By framing the discussion in terms of spataility, he begins the process of rearranging conceptual, theoretical, and doctrinal boundaries.
The central payoffs from this conceptual framing are two-fold. Read the rest of this post »
February 4, 2012 at 12:37 pm
Posted in: First Amendment, Symposium (First Amendment Architecture)
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Thoughts on Ammori’s Free Speech Architecture and the Golan decision
posted by Brett Frischmann
Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.
In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.
Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startlingly fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”
Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.
February 3, 2012 at 4:38 pm
Tags: First Amendment, free speech, Intellectual Property, Supreme Court
Posted in: First Amendment, Intellectual Property, Uncategorized
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Censorship on the March
posted by Derek Bambauer
Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.
Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.
Cross-posted at Info/Law.
January 18, 2012 at 5:31 pm
Posted in: Advertising, Architecture, Civil Procedure, Constitutional Law, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0, Wiki
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Supporting the Stop Online Piracy Act Protest Day
posted by Danielle Citron
As my co-blogger Gerard notes, today is SOPA protest day. Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live. Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today. There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates. Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online. In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said. So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill. “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so. I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA. I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill. As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship. Cybersecurity is at issue too, and we need to pay attention. Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills. But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.
January 18, 2012 at 10:11 am
Posted in: Architecture, Civil Rights, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Law Talk, Media Law, Social Network Websites, Technology, Web 2.0
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The Fight For Internet Censorship
posted by Derek Bambauer
Thanks to Danielle and the CoOp crew for having me! I’m excited.
Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.
Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.
I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.
Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)
Cross-posted at Info/Law.
January 16, 2012 at 7:28 pm
Posted in: Architecture, Civil Procedure, Constitutional Law, Culture, Cyber Civil Rights, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Intellectual Property, Media Law, Movies & Television, Politics, Technology, Web 2.0
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The Montana Supreme Court
posted by Gerard Magliocca
Western Tradition Partnership, Inc. v. Attorney General, which upheld Montana’s statute regulating corporate contributions to political campaigns, is a very amusing opinion. It’s been a long time since a state supreme court has so brazenly tried to evade a U.S. Supreme Court decision–in this case Citizens United. We learn, among other fascinating details, that Citizens United was really a fact-bound case that need not be followed if a different record is presented to a court. And we also learn that there is a Montana exception to the First Amendment, at least with respect to campaign finance regulation
Equally entertaining is Justice Nelson’s dissent, where he lambasts Citizens United while concluding that the case requires the invalidation of the Montana law. “In my view,” he says, “Citizens United has turned the First Amendment’s ‘open market-place’ of ideas into an auction house for Friedmanian corporatists.” (I must admit that I didn’t know that Milton Friedman was a corporatist, an adjective, or interested in campaign finance.) Justice Nelson also rejects the marketplace of ideas metaphor:
“[V]oters generally do not have the desire, much less the time, sophistication, or ability, to sift through hours upon hours of attack ads, political mumbo jumbo, and sound bites in order to winnow truth (of which there often seems to be very little) from fiction and half-truths (of which there unfortunately seems to be an endless supply). The Supreme Court believes the solution for false or misleading speech is more speech. Yet, an endless barrage of accusations and counteraccusations providing more fodder than fact only serves to overwhelm, confuse, and disenchant voters.”
Finally, his dissent goes after the idea of corporate personhood:
“Corporations are artificial creatures of law. As such, they should enjoy only those powers—not constitutional rights, but legislatively-conferred powers—that are concomitant with their legitimate function, that being limited-liability investment vehicles for business. Corporations are not persons. Human beings are persons, and it is an affront to the inviolable dignity of our species that courts have created a legal fiction which forces people—human beings—to share fundamental, natural rights with soulless creations of government. Worse still, while corporations and human beings share many of the same rights under the law, they clearly are not bound equally to the same codes of good conduct, decency, and morality, and they are not held equally accountable for their sins. Indeed, it is truly ironic that the death penalty and hell are reserved only to natural persons.”
Now I agree with the last argument to this extent–it is perfectly clear that the Framers of the Fourteenth Amendment (Bingham especially) did not intend the word “person” in the Due Process Clause to include corporations. Originalists don’t seem to care about this. Nevertheless, the more important point, which I’ve made before, is that campaign finance regulation is a huge waste of time. If half of the energy spent of that goal were spent on diminishing partisan gerrymandering of legislative districts, the improvement in the political process would be far greater.
January 11, 2012 at 4:06 pm
Posted in: First Amendment
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The Roberts Court’s Bad Romance
posted by Frank Pasquale
Recently a coalition of Missouri payday lenders implied “that standing up for high-interest-rate lenders is somehow analagous to the acts of the ‘poor people who followed Dr. King and walked with him hundreds of miles because they believed in civil rights that much.’” Because we all know that liberty means little if you’re not free to take a loan out at 444% APR.
In The Irony of Free Speech, Owen Fiss warned that the language of the First Amendment would lose its emancipatory potential as courts used it to gut progressive legislation. In a recent essay in Democracy Journal, Jedediah Purdy confirms those fears. His thoughts on last term’s Sorrell v. IMS Health are particularly incisive on the topic of commercial speech, which the Court appears ready to radically rethink:
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December 21, 2011 at 11:01 pm
Posted in: First Amendment, Privacy
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Stanford Law Review Online: Don’t Break the Internet
posted by Stanford Law Review
The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”
They write:
These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.
Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.
Note: Corrected typo in first paragraph.
December 19, 2011 at 3:14 am
Tags: banks, credit card companies, DNS, DNS filtering, domain name seizures, domain name servers, domain names, financial institutions, Intellectual Property, Internet, internet security, internet stability, IP, IP addresses, IP rights, online advertisers, PROTECT IP Act, search engine censorship, search engines, SOPA, Stop Online Piracy Act, World Wide Web
Posted in: Current Events, Cyberlaw, First Amendment, Google & Search Engines, Google and Search Engines, Innovation, Intellectual Property, International & Comparative Law, Law Rev (Stanford), Law School (Law Reviews), Movies & Television, Property Law, Social Network Websites
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Complexity, Opacity, and Permanent Crisis
posted by Frank Pasquale
Finance crises have baffled recently. Jon Corzine says he has no idea where hundreds of millions of dollars in MF Global money went. Judge Rakoff says the proposed SEC-Citi settlement would whitewash the megabank’s wrongdoing:
An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous . . . . In any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth.
And Sheila Bair suggests that we are still in the dark about critical aspects of the financial system:
Credit exposure reports are essential to make sure regulators understand crucial inter-relationships between distress at one institution and its potential to cause major losses at other institutions. This type of information was missing during the crisis. I know that many members of [Congress] heard the same arguments that I heard during the crisis — that bailouts were necessary or the “entire system” would come down.
December 12, 2011 at 2:15 pm
Posted in: Financial Institutions, First Amendment
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Nondisclosure, Non-disparagement, and Contract Law
posted by Dave Hoffman
In light of some of my previous posts on nondisclosure clauses and their enforceability, I thought readers might enjoy the following story:
“Robert Lee visited a dentist, Stacy Makhnevich, because he was suffering from a severe toothache, caused by a painful infected cavity. She refused to treat him until he signed a so-called “privacy” contract, which included a clause preventing him from posting negative reviews of her online. [The clause read: "Patient will not denigrate, defame, disparage, or cast aspersions upon the Physician; and (ii) will use all reasonable efforts to prevent any member of their immediate family or acquaintance from engaging in any such activity."]
More specifically, the contract stated that Lee would not publish adverse comments about Makhnevich’s performance online, and that he would assign the copyright of any online commentary that he did make to her (presumably so that she could have such commentary quickly and directly taken down if she found it objectionable).
Lee signed the contract. But later—after receiving a hefty bill for service that he viewed as problematic—he posted negative reviews of the dentist on Yelp.com and DoctorBase.com, despite the contract’s ban on such postings.
The Yelp.com review said: “Avoid at all cost! Scamming their customers!” The DoctorBase.com review was similar.
Lee claims that Makhnevich then– in an attempt to enforce the contract—tried to get Lee’s negative reviews taken down from the review sites. He alleges that she also started billing him $100, as a fine, for every day the reviews remained on the Internet. Moreover, Lee alleges, she refused to send copies of his billing records to him so that he could seek reimbursement from his insurer. Makhnevich also sent Lee a notice threatening a lawsuit. In response, Lee filed a lawsuit of his own.
Lee’s lawsuit calls the contract he signed invalid under state law as an unconscionable contract. The lawsuit also alleges that posting one’s own commentary on a website such as Yelp.com or DoctorBase.com constitutes “fair use” under the copyright laws.
In the suit, Lee asks that the agreement that he and other patients signed with his dentist be declared void and unenforceable, and that she be barred from requiring assent to these agreements by future patients.”
So many great issues here — the penalty/liquidated clause damage term; the privacy/nondisclosure nexus; the unenforceability argument coupled with a lurking first amendment claim. The story claims there’s even a consideration defense, though I can’t see how that’s really present on these facts.
As I’ve expressed before, I think these kinds of nondisclosure agreements are more difficult to enforce and obtain damages from than most conventional accounts would have it, and that they often function, like liquidated damages in general, to compel parties to engage in behavior that a court would not actually order. This case seems like a good test of my theory. I’m very glad that the Center for Democracy and Technology has taken up the battle.
(H/T: Reader T.G.)
December 6, 2011 at 1:52 pm
Posted in: Contract Law & Beyond, First Amendment
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Understanding Wealth Defense: Direct Action from the 0.1%
posted by Frank Pasquale
The OWS protests have provoked reflection on the morality of direct action and civil disobedience. How far should the police go to spy on, disrupt, or punish peaceful protesters? Is pepper spray a dangerous chemical agent or “a food product, essentially?” Does current American inequality merit a direct action follow-up to the Civil Rights Movement, whose mass-arrestees and water-cannoned marchers are now viewed as heroes?
It’s difficult to answer these questions without understanding the past and present tactics of the groups OWS is protesting. We can learn something about those tactics from Jeffrey A. Winters’ book Oligarchy and his recent articles. In Winters’ treatment of America’s politics of wealth defense, we can discern a transition from high-stakes defiance of government tax authority to an established position “inside the system.”
Winters recounts how Congress passed a tax on the top 0.1% in 1894, only to be slapped down by a Supreme Court “which struck it down in a 5-4 decision.” After the 16th Amendment effectively repealed that Supreme Court decision, Congress had the novel idea of actually helping pay for a war (WWI) with revenue from those best able to fund it. As Winters notes, “the highest rate [leapt] from 7 percent in 1915 to 77 percent in 1918,” and “the number of brackets went from seven to 56 over the same period.” This provoked direct action from the wealthiest “through tax avoidance and outright evasion.” At this point, Winters writes,
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November 26, 2011 at 10:14 am
Posted in: Constitutional Law, First Amendment, Law and Inequality, Tax
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J.K Rowling, Defamation and Privacy Law, and the Chilling of the Media
posted by Daniel Solove
A common argument made to justify First Amendment restrictions on privacy torts and defamation law is that legal liability will chill the media. I am generally sympathetic to these arguments, though only to a point. I think these arguments are often overblown. An interesting point of comparison is the UK, where there is a much weaker protection of free speech and much stronger defamation law. Although the UK has not embraced all of the privacy torts recognized in the United States, it has come close, recognizing a robust tort of breach of confidence. Despite the lack of a First Amendment equivalent, and the stronger legal liability for gossip and libel, the press in the UK seems anything but chilled or cowed. Consider J.K. Rowling’s recent testimony:
Rowling said a “wholly untrue” Daily Express story, which claimed she had based an unpleasant character on her ex-husband, had meant she had to have a “horrible” conversation with their young daughter to explain that it was not the case.
“This episode caused real emotional hurt,” she said, because her daughter had to cope with other children believing that about her father.
Rowling added: “It portrayed me as a vindictive person who would use a book to vilify anyone against whom I had a grudge.”
Rowling also pointed to a story published in the Sunday Mirror, which claimed her husband had given up his job as a doctor “to be at the beck and call of his obscenely rich wife,” she said.
This was “damaging misinformation” about her husband, who is not a celebrity, she said, because it led colleagues to believe he had abandoned his medical career. The paper subsequently apologized.
Defamatory articles spread like fire and are difficult to contain, she told the inquiry, but she had no “magical answer” to the problem of abuses by the press.
Rowling’s testimony, and that of others, reveals a rabid and fervent media in the UK — in spite of the stronger laws. This makes me ponder whether the claim that strong privacy and defamation law will chill the media is false — or at least is overblown as I believe. But another conclusion may be drawn from this — perhaps the law doesn’t do much work at all. It appears that the media’s behavior is not dramatically affected by the law, and thus the law really fails to shape norms or impact behavior. I’m not sure I agree with this claim, but it is one that should be pondered.
The situation calls for further thought. How can it be that the tabloid press is so robust in the UK which appears to have much weaker free speech protections than the US? I only have guesses, not answers, and this question has always struck me as one worth investigating.
November 24, 2011 at 11:04 pm
Posted in: First Amendment, Privacy, Privacy (Gossip & Shaming)
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Ciara Torres-Spelliscy: American Corporate Political Transparency Is 44 Years Behind the UK
posted by Frank Pasquale
Ciara Torres-Spelliscy is an Assistant Professor at Stetson University College of Law and the co-author along with economist Dr. Kathy Fogel of Shareholder-Authorized Corporate Political Spending in the United Kingdom. I am posting her views on American corporate political transparency below [FP]:
by Ciara Torres-Spelliscy
As I told my law students in a recent class, when I was in law school, no one cared a fig about corporate political spending. I did not hear about it in Constitutional Law, Corporate Law or Fed. Tax. It was a non-issue because for the most part, it was banned. It made sense that back then, the SEC would not have a corporate political spending reporting requirement. That would have been tantamount to the agency’s asking, “have you committed any federal election crimes?” Now that such political spending is legal, the SEC should respond to the growing calls for a new disclosure rule.
Much has changed in the years since I was on the business end of a Con Law exam. In particular, in 2010, the Supreme Court did away with corporate source limits on election ads altogether in the infamous Citizens United case. The upshot of this case changed not just federal law going back to 1947, but also state laws, some of which dated back to the turn of the twentieth century.
The new normal is corporations can spend an unlimited amount of their treasury funds on independent political expenditures in local, state and federal elections. This brings us back to the SEC and its utter lack of political disclosure rules. Because of this gap, publicly-traded corporations can spend in elections without ‘fessing up. This seems odd given how passionate shareholders are about transparency.
In the summer of 2011, ten corporate law professors petitioned the SEC for a new disclosure rule to rectify this situation. These professors are both conservative and progressive, yet they all agree transparency of corporate political spending is a must.
Economists have already written in support of the professors’ petition. Economist Dr. Michael Hadani of Long Island University noted that one of the reasons why shareholders should want more reporting on corporate political spending is that it can backfire. His regression analysis of over 1,100 companies over an 11 year period found political spending had a negative impact of firms’ market value.
November 16, 2011 at 11:53 am
Posted in: Corporate Law, Corruption, First Amendment
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Ackerman and Benkler on the Occupied First Amendment
posted by Frank Pasquale
Slate writer Raymond Vasvari recently observed that, “for every uplifting paragraph” of precedent vindicating rights to protest, there are a “thousand cases bending an abstract right to the prosaic realities of protest.” We may never learn the extent to which Occupy Wall Street protesters were classified “enemies within,” and subject to coordinated intergovernmental suppression. But we can observe, with professors Ackerman and Benkler, that the “irony of free speech” is reaching a breaking point:
Whatever else it accomplishes, Occupy Wall Street is revealing distortions in our current understanding of the First Amendment. In recent decisions, the Supreme Court has protected Wall Street’s constitutional right to pour millions into political campaigns. But as presently construed, the First Amendment isn’t an obstacle when it comes to silencing the Occupiers. . . .
Instead of hiding behind obsolete court decisions, big city mayors must recognize that they are on the constitutional front-line. Michael Bloomberg is failing this test when he keeps Occupiers out of New York’s public parks and tolerates the arrests of dozens of protesters, providing an example for similar actions in Boston, Denver, and San Diego. In contrast, Antonio Villaraigoso is showing that leadership on behalf of the First Amendment is well within the realm of the politically possible. Los Angeles has not only avoided arrests, but seems to be expanding available public space as the protest swells. Similarly, the U.S. Parks police are on the right track in giving the demonstrators a four month extension on Freedom Plaza.
How to explain Mayor Bloomberg’s deviance from constitutional ideals? Maybe he’s one of the worried wealthy, realizing that he can only afford another 170 of his trademark $100 million dollar political campaigns with his fortune of $17 billion. Ensconced in an alternate reality of privilege, Bloomberg retails stories of struggling and put-upon banks. It is his very plutocratic disconnection from the daily life of his subjects that makes an extraordinary protest like OWS necessary.
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November 16, 2011 at 12:30 am
Posted in: First Amendment, Government Secrecy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Technology
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Censoring the Internet
posted by Timothy Zick
There are reports that WikiLeaks may have to shut down owing to financial difficulties. That will please many, like Vice President Biden, who think Julian Assange is nothing more than a high-tech terrorist. If Assange’s explanation is to be credited (and I recognize this is a big “if” for some), the website’s financial difficulties stem from a concerted effort by U.S. officials to pressure financial intermediaries (i.e., PayPal, Master Card, Visa) not to permit donors to utilize their sites to make donations. Some may recall that when WikiLeaks first began publishing confidential information about U.S. war operations and diplomacy, some government officials publicly called on these intermediaries to block donations. This, in turn, led to denial-of-service reprisals by hackers against the cooperating intermediaries.
In a very interesting recent article entitled Orwell’s Armchair, Derek Bambauer (Brooklyn Law) argues that governments have turned to persuasion of intermediaries and other indirect forms of “soft censorship” to control Internet content. Bambauer argues that through these indirect methods, government officials are engaging in a form of Internet censorship that is often as or more effective than “hard” forms of legal censorship. Focusing on issues of transparency, breadth, and accountability, Bambauer argues that, in general, soft censorship is less legitimate than hard censorship. He urges, perhaps counter-intuitively, that the government ought to proceed by way of statute if it intends to censor or regulate content on the Internet.
My point here is not to assess the merits of Bambauer’s proposal. I’m more interested in his descriptive claim — namely, that despite all the talk in the U.S. of a free and unfettered Internet, the U.S. government is indeed “censoring” content in this space. I think the WikiLeaks case highlights one of the most pressing concerns in what I refer to in a forthcoming article as the “emerging global theater.” Faced with diminished power to control the flow of information on the Internet, officials in the U.S. are naturally seeking other means by which to regulate certain types of harmful content (i.e., IP infringement, terrorist advocacy, disclosure of government secrets). Many of these means are, as Bambauer claims, less transparent than legislation or administrative regulation. We can debate whether certain forms of “soft” censorship constitute state action, or even “censorship.” However, there is little question that what Bambauer refers to as the government’s “toolkit” for influencing the content Americans and others have access to on the Internet contains a set of “soft” components; these will become increasingly important in terms of online content control in the years to come. Methods of “soft censorship” will not likely result in absolute suppression of content. One of the things the government is learning is that content does not simply disappear from the Internet, even when the speaker is jailed or executed. However, both soft and hard forms of regulation can still have a signficant effect on the free flow of online information. Bambauer’s article is important insofar as it nudges us to think more carefully about different forms of content control in cyberspace.
October 26, 2011 at 12:37 pm
Posted in: Current Events, Cyberlaw, First Amendment, Technology
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The Occupation — Place, Balance, and Proximity
posted by Timothy Zick
Today is the one-month anniversary of the Occupy Wall Street demonstration. It is fair to say that the media, a decent portion of the American public, and many people abroad are now paying attention. There is still, of course, no guarantee of long-term success or longevity. However, to sustain something like the occupation for more than a few days, much less several weeks, is nothing short of remarkable.
Mayor Bloomberg has publicly stated that he wants to protect protesters’ speech and assembly rights. But he recently suggested that “the Constitution does not protect tents . . . It protects speech and assembly.” That’s right. But the tents in Zuccotti Park are not on public property. Whether they knew it or not, the protesters may have chosen their contested place very wisely – the private owners of Zuccotti Park have been slower to move against the protesters than the City might likely would have been. In at least one locality, officials reportedly closed a public park in response to an “occupation” protest. Judging from the police response to the occupiers, and from other limits imposed by the Bloomberg Administration on public assemblies and demonstrations, it seems clear that the City would have intervened if it owned Zuccotti Park. Unless and until the trespass laws are enforced against the protesters, the City is not likely to seek to remove them. It’s property law, not the First Amendment, that has thus far determined whether the protesters have a right to be in Zuccotti Park.
Hizzoner made another interesting statement about the occupation recently. He expressed concern that the occupation had adversely affected other citizens’ “right to be silent.” Elaborating, Mayor Bloomberg said: “We can’t have a place where only one point of view is allowed. There are places where I think it’s appropriate to express yourself, and there are other places that are appropriate to set up Tent City. They don’t necessarily have to be one and the same.” How exactly is this public demonstration affecting those who want to remain silent? Are the 1% somehow being silenced by the nature and scope of the occupation? Are those who disagree with the protesters unable to mount a counter-protest? A recent poll indicates that 72% of NYC voters support the occupation so long as it remains peaceful. Are the viewpoints of the other 28% not being heard?
If the Mayor is suggesting displacement of the occupation, he’s missing the point of proximity. The occupiers are making powerful symbolic use of a location near Wall Street. They are contesting place to reclaim something they feel has been taken from them. Relocating the occupation would not “balance” viewpoints. Rather, it would deprive the ocupiers of the principal means of conveying their message.
October 17, 2011 at 11:09 pm
Posted in: Current Events, First Amendment
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The Power of Place
posted by Timothy Zick
Michael Kimmelman, the architecture critic for The New York Times, has an interesting piece in this morning’s Sunday Review about the manner in which the Wall Street protesters are using and creating public space. The piece picks up many of the themes examined in Speech Out of Doors — the connection between medium and message; the human and social connections people have to actual places; the role of technology in mass public demonstrations; the solidarity and communicative values associated with public places; and the manner in which public places are inscribed with messages and memories.
October 16, 2011 at 9:37 am
Posted in: Civil Rights, First Amendment
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Stolen Valor Act Discussion
posted by Timothy Zick
In its Community forum, SCOTUSblog is hosting a discussion on the Stolen Valor Act, which criminalizes false statements regarding receipt of military decorations, medals, and awards. The Supreme Court will dicsuss the cert. petition in United States v. Alvarez, which invalidated the Act on First Amendment grounds, at tomorrow’s conference. I’ve posted a comment on the issues raised in Alvarez in the discussion thread.
October 13, 2011 at 10:07 am
Posted in: Constitutional Law, First Amendment, Supreme Court
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