Archive for the ‘First Amendment’ Category
Are Liberals Under-Estimating the Chances that the Catholic Hospitals Will Win Against the Health Care Act?
posted by Peter Swire
(Disclaimer — I decided soon after law school not to focus most of my efforts on the Supreme Court or con law. There are brilliant people who work on it all the time, and I don’t. But I am a law prof who can’t help noticing some things …)
Last week, liberals went through the near-death experience for the Affordable Care Act — far, far, far closer than the confident predictions of most liberals when the law was passed.
This week, I had the chance to speak in depth with an experienced liberal lawyer about the Next Big Constitutional Thing — the Catholic hospital challenges to the ACA’s requirements that contraception and other coverage must be included for the employees of hospitals, universities, and other Catholic institutions that are not themselves part of the Church.
The lawyer confidently predicted that the Catholic hospitals would lose. After all, everyone knows the peyote case — Employment Division v. Smith, where a neutral state anti-drug law trumped a Free Exercise of religion argument that would have allowed an adherent to use peyote. The lawyer said there was no precedent for the Catholic hospitals to win, such a holding would disrupt innumerable neutral state laws, and even Justice Scalia would be bound by his prior writings to find against the Catholic hospitals.
My reaction — “here we go again.” It felt just like the over-confident predictions that the individual mandate inevitably would be upheld. And my friend sounded like other liberals who have scoffed at the claims of the Catholic hospitals.
My instinct — as a realist prediction of the outcome, and not as a statement of my policy choice — is that the Catholic hospitals very possibly will win if the case goes to final judgment in the courts.
First, I don’t think Justice Scalia will find that a law prohibiting peyote (a “good” and long-standing law) is remotely similar to a law requiring the Catholic Church, for the first time in history, to buy an insurance package that pays for contraceptives. He’ll think that the latter is a “bad” law.
Second, the Catholic Church has tens of millions of members in the U.S., and is not the splinter group at issue in the earlier case. In a realist analysis, the views of a tiny church are not the same as those of the largest organized Church in western history.
Third, the views of the Church on contraception are sincere, widely publicized, and long-standing. Although many individual Catholics don’t follow the doctrine on this issue, the institution of the Church is firmly on record on the issue. This is not a pretext to take mind-altering drugs; it is a major doctrinal tenet.
Fourth, many Catholic hospitals are deeply religious institutions. They often have a cross and a Bible in each room. Many nuns and priests work in the hospitals. Providing health care is deeply rooted in the mission of the Church, and has been for many years. In other words, this is not the equivalent of “unrelated business income.” Instead, religion and healing of the sick are thoroughly intertwined.
Fifth, and my apologies for mentioning it, six of the nine Supreme Court justices are Catholic. I am not saying that a Catholic judge will hold for the Church any more than a white judge holds for whites and a black judge holds for blacks. However, the justices will have deep personal knowledge of the healing tradition of Catholic hospitals. They will read the briefs in the context of their personal knowledge. I don’t think they will lightly assume that they are bound by cases with facts that seem to them quite different.
After we went through this list, my liberal friend said that he had adjusted his prediction. He now thought that some of the district court cases, at least, would go for the Church. He then added an extra idea — the case may arise under the Administrative Procedure Act, on whether the HHS rule was properly promulgated and consistent with the statute. His point was that a court may have a “procedural” way to block the rule from mandating that the Catholic hospitals pay for insurance that covered contraceptives. That might be an easier path for a judge to take than overturning Free Exercise case law, if the judge were inclined to stop the rule from taking effect.
Currently, there are over 20 challenges by Catholic hospitals to this provision. Smart lawyers in each case will be trying to define distinctions that will retain the peyote precedent while letting the hospitals win this case. Randy Barnett and others had a huge success with the “action/inaction” distinction about the individual mandate. My realist instincts are that we will see the emergence of clever, new distinctions for the hospital cases.
I think that many liberal con law experts were complacent when the individual mandate was challenged. If they are complacent again about the Catholic hospital cases, then I, for one, will not be surprised to see the current HHS approach struck down.
posted by Erica Goldberg
Jeremy Waldron’s new book “The Harm in Hate Speech” has rightfully received a lot of attention. Professor Waldron’s book provides an important and multi-layered justification for what many refer to as “hate speech” regulations. These regulations, like the following example from the Danish Penal Code, prohibit statements “by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin . . . . ” Such regulations are antithetical to the American free speech paradigm, but exist in many other Western democracies.
Waldron believes that, in light of America’s uniquely speech protective history and jurisprudence, his arguments are unlikely to impact the law. I fear that he is wrong. His arguments are ingenious, and therefore quite dangerous. Former Justice John Paul Stevens and former judge, and current professor, Michael McConnell have excellently rebutted Waldron’s arguments in their reviews of his book. I’d like to add a few points of my own.
Like other scholars who seek stronger regulations against hate speech, Waldron connects his arguments to the values of equality enshrined in the Fourteenth Amendment. He argues that hate speech, and its appearance and tolerance in society, undermine certain groups’ senses of inclusion, security in their equal standing, and dignity. Because the Fourteenth Amendment was enacted after the First Amendment, it is tempting to argue that protection of inclusion and dignity supersedes free speech protections. Yet, there is no true conflict between the government’s inability to regulate pure speech and the requirement that the government apply its laws equally to everyone. Losing a sense of security in one’s equal standing is not the same as actually losing that standing.
posted by Margot Kaminski
The Supreme Court had a busy day yesterday, and in the wake of healthcare, there’s a risk of overlooking an important addition to this Court’s First Amendment jurisprudence: U.S. v. Alvarez.
In short, the Court found that Congress can’t send you to jail just for lying. Alvarez confirms that this Court is extremely reluctant to create new FirstAmendment exceptions, and has a speech-protective understanding of the marketplace of ideas. Alvarez also leaves open some interesting questions, both doctrinal and practical.
Alvarez was prosecuted under the Stolen Valor Act (18 USC s. 704) for lying about having received the Congressional Medal of Honor. What made this case particularly interesting, and probably what split the Court, is that Alvarez did not lie to gain money, or to get a job. He didn’t lie for any apparent reason. He just lied.
The Court split 4-2-3, with six affirming the Ninth Circuit and finding the Act unconstitutional. Justice Kennedy wrote the plurality, Justice Breyer wrote the concurrence (joined by Justice Kagan), and Justice Alito rather unsurprisingly wrote the dissent.
The plurality forcefully reiterated what the Court articulated two years ago in U.S. v. Stevens (2010): content-based restrictions on speech are subject to strict scrutiny, with limited exceptions that have been clearly established in prior caselaw. What was (again!) at stake in this decision was whether the First Amendment protects all speech except for the familiar carveouts, or presents an “ad hoc balancing of relative social costs and benefits” with each new proposed exception (at 4, quoting U.S. v. Stevens (2010)).
The plurality went the First-Amendment-protective route. Its “historic and traditional categories” of First Amendment exceptions present a familiar roster: obscenity, fighting words, incitement, and the rest. False speech as false speech is not one of the historical exceptions, and the plurality made it perfectly clear that it does not plan to add to the list. In Stevens, then, the Court said what it meant about not intending to add to historical First Amendment exceptions. Future brief-writers would do well to keep this in mind.
Eugene Volokh in his Amicus brief feared that if the Court went the route of protecting false speech, the First Amendment would become a patchwork of under-theorized exceptions to that rule. The plurality proved him wrong. It both articulated theoretical underpinnings for existing exceptions that do involve false speech, and took the Government to task for advocating an overly restrictive understanding of the marketplace of ideas.
The plurality walked through two general categories of exceptions to First Amendment protection for false speech. These categories are effectively distinguished from most false speech as “false speech-plus.” Each is not just false speech, but has an additional element.
The first kind of false speech not subject to First Amendment protection is false speech where there is a legally cognizable harm to an individual, such as an invasion of privacy or legal costs. This category includes defamation and fraud (at 7). Robert Post might further add that these kinds of crimes and torts generally take place outside of the public sphere, and so are subject to less First Amendment protection because they involve individual relationships rather than public-facing speech.
The second kind of false speech not subject to First Amendment protection is false speech that impedes a government function (eg perjury or lying to a federal officer), or abuses government power without authorization (eg impersonating a Government officer). Here, no direct injury to an individual is required. The plurality found that these two types of laws are similar because both “protect the integrity of Government processes” (at 9).
The more serious and broad-sweeping theoretical debate resolved by the Alvarez plurality concerns a fundamental understanding of the marketplace of ideas.
In the historical understanding of the marketplace of ideas, speech competes with speech towards the pursuit of “truth” (although truth is more accurately understood as political truth, not just truth in the sense of non-falsity). Thus Volokh is probably correct when he writes that historically, false speech was considered of lower value in the marketplace of ideas than true speech.
However, the present-day understanding of the marketplace of ideas is that it’s impossible to determine which speech has high value, and which speech has low value. Speech competes, and listeners choose what to believe, but there’s no competition towards an absolute truth-in-the-sense-of-non-falsity, or towards higher values that have been officially designated as such. The Court acknowledged as much in Cohen v. California, which often gets misread as being a case about political speech, where it’s in fact about protecting traditionally low-value expression.
The Alvarez plurality explicitly rejects the proposal that false speech is low value speech and thus not subject to full First Amendment protections. “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.” (at 15)
The plurality thus articulates a speech-protective and autonomy-driven understanding of the marketplace of ideas, where the marketplace is self-correcting, and Congress has no place determining what is true, or good or bad, apart from protecting individuals from legally cognizable harms and from abuse of government structures and government power.
Both doctrinal and practical questions remain after Alvarez, unsurprisingly.
Doctrinally, the question is what type of scrutiny applies to false speech. The plurality employed strict scrutiny, while the concurrence used intermediate scrutiny. It is not clear what the Court will employ in the future.
Using intermediate scrutiny to strike down the Act, it should be noted, creates a strange tension between this case and commercial speech doctrine, which allocates First Amendment protection only to commercial speech that is not misleading. Intermediate scrutiny may also raise questions about trademark dilution, where no competition, commercial harm, or likelihood of confusion need be shown. The concurrence thus struggles with trademark dilution on pp 6-7, where the majority could probably get rid of —or at least restrict the scope of— the trademark problem by applying intermediate strutiny.
Practically speaking, the Act might survive on rewriting. The Act might be rewritten to require that the liar lie for the purpose of receiving a benefit. Alternatively, the Act could be rewritten to penalize lying where the liar benefited from the lie (ie, harm was accomplished as a result of the lie). If the Act were thus rewritten, it’s not clear how the plurality would treat it with respect to historic exceptions and their justifications. It also seems likely that the concurrence would switch sides.
It’s worth noting the implications of Alvarez for the ongoing discussion of anonymous speech, and the use of online personae. If Alvarez had gone the other way, the Court might have made it possible for Congress to prohibit the use of pseudonyms, or “fake names,” online. Lying about your identity is another way of describing choosing to hide your real identity, which would have brought the case into conflict with McIntyre v. Ohio and other doctrine on anonymous speech. I’m not sure that a good doctrinal distinction could be developed between positively asserting that you are another person , and choosing a pseudonym for the purpose of hiding your identity. For now, at least, thanks to Alvarez, the distinction between legal and illegal pseudonymous behavior appears to rest clearly in the additional element of harm the Court noted must be shown for fraud, or the performance of some other tort or crime.
There is another fast-developing area potentially impacted by Alvarez that the Program for the Study of Reproductive Justice at Yale has been working on all year: the regulation of Crisis Pregnancy Centers, where states require the centers to explain that they are not actually doctors and do not actually provide medical services such as abortion. On this issue, though, I’ll defer to my colleague Jennifer Keighley, who has a piece forthcoming on the matter.
But leaving all this aside, there’s a very simple reason Alvarez was correctly decided.
As Kozinski noted below, people lie an awful lot.
posted by Frank Pasquale
Tim Wu’s opinion piece on speech and computers has attracted a lot of attention. Wu’s position is a useful counterpoint to Eugene Volokh’s sweeping claims about 1st Amendment protection for automated arrangements of information. However, neither Wu nor Volokh can cut the Gordian knot of digital freedom of expression with maxims like “search is speech” or “computers can’t have free speech rights.” Any court that respects extant doctrine, and the normative complexity of the new speech environment, will need to take nuanced positions on a case-by-case basis.
Wu states that “The argument that machines speak was first made in the context of Internet search,” pointing to cases like Langdon v. Google, Kinderstart, and SearchKing. In each scenario, Google successfully argued to a federal district court that it could not be liable in tort for faulty or misleading results 1) because it “spoke” the offending arrangement of information and 2) the arrangement was Google’s “opinion,” and could not be proven factually wrong (a sine qua non for liability).
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June 25, 2012 at 12:40 pm Posted in: Antitrust, Constitutional Law, Consumer Protection Law, First Amendment, Google & Search Engines, Google and Search Engines, Privacy, Technology Print This Post 4 Comments
posted by David Orentlicher
In FCC v. Fox, the Supreme Court once again took a pass on the first amendment questions raised by the regulation of indecent images or speech on broadcast television. It is a good thing that the justices want to take their time to get it right on the constitutional issues, but ten years have passed since the case was first triggered by Cher’s use of the F-word at the Billboard Music Awards. And the Court’s decision today suggests it hopes the matter will just go away. As Justice Kennedy concluded for the majority, “this opinion leaves the [FCC] free to modify its current indecency policy.”
The Court’s discomfort with indecency is not surprising. The justices’ discomfort reflects that of much of society. Indeed, they could not bring themselves to actually say the F-word at oral argument.
But once again, it leaves us to wonder why our society seems to worry more about exposing children to even brief uses of profanity or depictions of nudity than it does about exposing kids to prolonged violence. The FCC does not restrict violence the way it does indecency on television, movie ratings are tougher on indecency than on violence, and the Court has a lower threshold for government regulation of violence than of indecency. Recall, for example, that last year, the Court invoked the first amendment to override California’s ban on the sale of violent video games to minors, and two years ago, the Court rejected on first amendment grounds a federal statute that outlawed “crush” videos depicting the torture and killing of animals.
It may be correct to be as careful as we are about the harms to children from the media’s use of nudity and vulgar language. But we also should take more seriously the harm from the media’s depictions of violence.
posted by Frank Pasquale
I sometimes speculate at the end of my copyright class that, years hence, we’ll stop using a statutory supplement and just refer to the Amazon, YouTube, Facebook, etc. service agreements to find sources of legal authority. The cultural power of Google & Facebook gets a lot of media attention, and now Amazon is under renewed scrutiny. Wired highlights the business acumen of Jeff Bezos; Mac McClelland has told the story of the sweat it’s based on. Now The Nation is featuring an intriguing series on the company, with pieces by Robert Darnton, Michael Naumann, and Steve Wasserman (along with the slide show on 10 reasons to avoid Amazon). A few reflections on the series below:
1) Wasserman compiles an array of stats: according to the revised 2012 edition of Merchants of Culture, “in 2011 e-book sales for most publishers were “between 18 and 22 percent.” “Two decades ago, there were about 4,000 independent bookstores in the United States; only about 1,900 remain.” Publishers stand to be disintermediated, since too many have been “complacent, allergic to new ideas, even incompetent.” Amazon stands triumphant:
[By 2011], it had $48 billion in revenue, more than all six of the major American publishing conglomerates combined, with a cash reserve of $5 billion. The company is valued at nearly $100 billion and employs more than 65,000 workers (all nonunion); Bezos, according to Forbes, is the thirtieth wealthiest man in America
The aggregator has triumphed over the aggregated, and its own workers. As exposes revealed, “in one of Amazon’s main fulfillment warehouses in Allentown, Pennsylvania . . . employees risked stroke and heat exhaustion while running themselves ragged [and] [a]mbulances were routinely stationed in the facility’s giant parking lot to rush stricken workers to nearby hospitals.”
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posted by Frank Pasquale
Several privacy and antitrust complaints are now menacing Google. After gamely parrying these challenges, the search giant has now wheeled out its nuclear option: a First Amendment argument against any regulation of what appears in unpaid (aka “organic”) search results. A recent Google white paper by Eugene Volokh and Donald Falk has buttressed Eric Goldman‘s and Christopher Yoo‘s rationales for unfettered discretion in the exercise of search engines’ editorial judgment.
Volokh/Falk is the latest in a long string of Google filings describing search results as speech. It’s significant well beyond the search engine industry. If Google succeeds here, just about any information age company will start to make its selection and coordination of offerings “searchy” and thus “speechy” enough to avoid regulation.
Leading articles on the proper limits of the First Amendment include Fred Schauer’s The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience and Robert Post’s Recuperating First Amendment Doctrine. In Federal Search Commission?, Oren Bracha and I applied their arguments (among others) in the new technological contexts created by search engines (pages 1188-1201). I have also examined expressive dimensions of search in other work, in 2006, 2007, and 2008.
None of those prior efforts satisfied me as definitive. I wanted to write on the topic for years, but I couldn’t formulate a more general theory of search as speech. I now recognize the reason for my writer’s block: I was trying to impose a “one-size-fits-all” approach on multifarious phenomena. As Michael Carroll has shown, there are “uniformity costs” whenever we try to force a vast, sprawling array of human activities into Procrustean legal boxes. Those costs would be very high if courts were to accept the Volokh/Falk approach with respect to all the varied interactions between searchers and search engines. With that in mind, here are a few scenarios (or “test suites,” as Volokh might put it) to test the Volokh/Falk submission.
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posted by Stanford Law Review
Volume 64 • Issue 4 • April 2012
“They Saw a Protest”:
Constitutional Design in the Ancient World
The Copyright-Innovation Tradeoff:
Derivatives Clearinghouses and Systemic Risk:
May 23, 2012 at 8:35 pm Posted in: Behavioral Law and Economics, Constitutional Law, Corporate Finance, Courts, Economic Analysis of Law, Financial Institutions, First Amendment, Innovation, Intellectual Property, Law Rev (Stanford), Law Rev Contents Print This Post No Comments
posted by Erica Goldberg
This will be my last post guest blogging on Concurring Opinions; I am so grateful for the experience.
Almost everyone agrees that university campuses should be bastions of free speech. Fervent disagreement, however, exists just below the surface of that statement. Depending on how values are prioritized, individuals may differ on when speech becomes harassment, when speech becomes punishable conduct, and when speech is too controversial, extreme, or offensive to be permitted in the classroom. What are your first (and then your second, and third) thoughts when you hear about a UC Santa Barbara professor who emailed his students graphic photographs comparing Holocaust victims to Palestinians in Gaza? Or, what is your reaction to students in a Yale fraternity, as part of an initiation, chanting “No means yes, yes means anal” while marching around campus. Do your views change when you hear about Georgetown University denying official recognition to a pro-choice student organization because of its Catholic and Jesuit tradition?
Prior to joining Penn State Law as a Visiting Assistant Professor, I worked at the Foundation for Individual Rights in Education, an organization that spoke out against the three universities that sought to punish the UCSB professor and the Yale fraternity, and refused recognition to the H*yas for Choice. (The asterisk is because Georgetown will not permit the group to attach the term Hoyas to its name.) While at FIRE, I, a committed feminist, personally argued that the Yale fraternity’s chants did not constitute actionable harassment. Although Yale, like Georgetown, is a private university, both promise their students free speech rights.
I was constantly disheartened that FIRE was labeled as partisan, because it indicates how many people connect the speech they seek to protect to their own political beliefs and assume that others do the same. When FIRE staffers write columns on The Huffington Post, the organization is accused of being liberal. In most other circumstances, FIRE is dismissed as a conservative mouthpiece, because much of the speech that is censored on campuses is viewed as more harmonious with conservative causes.
posted by Laura DeNardis
Drawing from economic theory, Brett Frischmann’s excellent new book Infrastructure: The Social Value of Shared Resources (Oxford University Press 2012) has crafted an elaborate theory of infrastructure that creates an intellectual foundation for addressing some of the most critical policy issues of our time: transportation, communication, environmental protection and beyond. I wish to take the discussion about Frischmann’s book into a slightly different direction, moving away from the question of how infrastructure shapes our social and economic lives into the question of how infrastructure is increasingly co-opted as a form of governance itself.
Arrangements of technical architecture have always inherently been arrangements of power. This is certainly the case for the technologies of Internet governance designed to keep the Internet operational. This governance is not necessarily about governments but about technical design decisions, the policies of private industry and the decisions of new global institutions. By “Infrastructures of Internet governance,” I mean the technologies and processes beneath the layer of content and inherently designed to keep the Internet operational. Some of these architectures include Internet technical protocols; critical Internet resources like Internet addresses, domain names, and autonomous system numbers; the Internet’s domain name system; and network-layer systems related to access, Internet exchange points (IXPs) and Internet security intermediaries. I have published several books about the inherent politics embedded in the design of this governance infrastructure. But here I wish to address something different. These same Internet governance infrastructures are increasingly being co-opted for political purposes completely irrelevant to their primary Internet governance function.
The most pressing policy debates in Internet governance increasingly do not involve governance of the Internet’s infrastructure but governance using the Internet’s infrastructure. Governments and large media companies have lost control over content through laws and policies and are recognizing infrastructure as a mechanism for regaining this control. This is certainly the case for intellectual property rights enforcement. Copyright enforcement has moved well beyond addressing specific infringing content or individuals into Internet governance-based infrastructural enforcement. The most obvious examples include the graduated response methods that terminate the Internet access of individuals that repeatedly violate copyright laws and the domain name seizures that use the Internet’s domain name system (DNS) to redirect queries away from an entire web site rather than just the infringing content. These techniques are ultimately carried out by Internet registries, Internet registrars, or even by non-authoritative DNS operators such as Internet service providers. Domain name seizures in the United States often originate with the Immigration and Customs Enforcement agency. DNS-based enforcement was also at the heart of controversies and Internet boycotts over the legislative efforts to pass the Protect IP Act (PIPA) and the Stop Online Privacy Act (SOPA).
An even more pronounced connection between infrastructure and governance occurs in so-called “kill-switch” interventions in which governments, via private industry, enact outages of basic telecommunications and Internet infrastructures, whether via protocols, application blocking, or terminating entire cell phone or Internet access services. From Egypt to the Bay Area Rapid Transit service blockages, the collateral damage of these outages to freedom of expression and public safety is of great concern. The role of private industry in enacting governance via infrastructure was also obviously visible during the WikiLeaks CableGate saga during which financial services firms like PayPal, Visa and MasterCard opted to block the financial flow of money to WikiLeaks and Amazon and EveryDNS blocked web hosting and domain name resolution services, respectively.
This turn to governance via infrastructures of Internet governance raises several themes for this online symposium. The first theme relates to the privatization of governance whereby industry is voluntarily or obligatorily playing a heightened role in regulating content and governing expression as well as responding to restrictions on expression. Concerns here involve not only the issue of legitimacy and public accountability but also the possibly undue economic burden placed on private information intermediaries to carry out this governance. The question about private ordering is not just a question of Internet freedom but of economic freedom for the companies providing basic Internet infrastructures. The second theme relates to the future of free expression. Legal lenses into freedom of expression often miss the infrastructure-based governance sinews that already permeate the Internet’s underlying technical architecture. The third important theme involves the question of what this technique of governance via infrastructure will mean for the technical infrastructure itself. As an engineer as well as a social scientist, my concern is for the effects of these practices on Internet stability and security, particularly the co-opting of the Internet’s domain name system for content mediation functions for which the DNS was never intended. The stability of the Internet’s infrastructure is not a given but something that must be protected from the unintended consequences of these new governance approaches.
I wish to congratulate Brett Frischmann on his new book and thank him for bringing the connection between society and infrastructure to such a broad and interdisciplinary audience.
Dr. Laura DeNardis, American University, Washington, DC.
posted by Brett Frischmann
I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts.
Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.
The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.
Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.
In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.
Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.
April 24, 2012 at 3:05 pm Posted in: Administrative Law, Antitrust, Bright Ideas, Cyberlaw, Economic Analysis of Law, First Amendment, Google & Search Engines, Infrastructure Symposium, Innovation, Intellectual Property, Legal Theory, Media Law, Property Law, Technology, Uncategorized Print This Post No Comments
posted by Peter Swire
(Partial disclaimer — I do teach the privacy torts for part of one class, just so the students realize how narrow they are.)
I was talking the other day with Chris Hoofnagle, a co-founder of the Privacy Law Scholars Conference and someone I respect very much. He and I have both recently taught Privacy Law using the text by Dan Solove and Paul Schwartz. After the intro chapter, the text has a humongous chapter 2 about the privacy torts, such as intrusion on seclusion, false light, public revelation of private facts, and so on. Chris and other profs I have spoken with find that the chapter takes weeks to teach.
I skip that chapter entirely. In talking with Chris, I began to articulate why. It has to do with my philosophy of what the modern privacy enterprise is about.
For me, the modern project about information privacy is pervasively about IT systems. There are lots of times we allow personal information to flow. There are lots of times where it’s a bad idea. We build our collection and dissemination systems in highly computerized form, trying to gain the advantages while minimizing the risks. Alan Westin got it right when he called his 1970′s book “Databanks in a Free Society.” It’s about the data.
Privacy torts aren’t about the data. They usually are individualized revelations in a one-of-a-kind setting. Importantly, the reasonableness test in tort is a lousy match for whether an IT system is well designed. Torts have not done well at building privacy into IT systems, nor have they been of much use in other IT system issues, such as deciding whether an IT system is unreasonably insecure or suing software manufacturers under products liability law. IT systems are complex and evolve rapidly, and are a terrible match with the common sense of a jury trying to decide if the defendant did some particular thing wrong.
When privacy torts don’t work, we substitute regulatory systems, such as HIPAA or Gramm-Leach-Bliley. To make up for the failures of the intrusion tort, we create the Do Not Call list and telemarketing sales rules that precisely define how much intrusion the marketer can make into our time at home with the family.
A second reason for skipping the privacy torts is that the First Amendment has rendered unconstitutional a wide range of the practices that the privacy torts might otherwise have evolved to address. Lots of intrusive publication about an individual is considered “newsworthy” and thus protected speech. The Europeans have narrower free speech rights, so they have somewhat more room to give legal effect to intrusion and public revelation claims.
It’s about the data. Torts has almost nothing to say about what data should flow in IT systems. So I skip the privacy torts.
Other profs might have other goals. But I expect to keep skipping chapter 2.
April 15, 2012 at 11:55 pm Tags: privacy;privacy teaching;torts;intrusion Posted in: Cyberlaw, First Amendment, Privacy, Privacy (Consumer Privacy), Privacy (Gossip & Shaming), Teaching Print This Post 4 Comments
posted by Erica Goldberg
I’m truly stumped by this one. On the one hand, there is no better test of a free speech enthusiast’s commitment to principle than a case where a self-proclaimed “journalist” harasses bloggers by creating websites to ruin their Internet footprints. On the other hand, when the tactics of an individual are so corrosive to the free exchange of ideas, can they really be called speech?
A $2.5 million judgment was awarded against Crystal Cox for defamation after she allegedly purposely destroyed the reputation of Obsidian Financial Group, LLC and its firm principal Kevin Padrick. She’s also targeted popular blogger Marc Randazza (and his daughter), creating websites to affect their Google footprints, then offering her services to undo the reputational harms that she has perpetrated.
Because most of what Cox wrote was too hyperbolic and subjective to give rise to a defamation suit, Cox was sued only for a blog post with specific statements that Padrick and Obsidian committed fraud. Cox claims to have a source for these statements, but she was not able to prove their veracity. Under Oregon’s libel laws, media persons do not have to reveal their sources, and plaintiffs seeking presumed damages against journalists must prove that statements were made with “actual malice.” However, according to the district court, Cox is not a media person. She has no journalistic credentials, does not engage in fact-checking and other techniques of journalists, and does not contact the “other side” to get multiple perspectives on a story.
posted by Stanford Law Review
The Stanford Law Review Online has just published Chief Judge Alex Kozinski’s Keynote from our 2012 Symposium, The Dead Past. Chief Judge Kozinski discusses the privacy implications of our increasingly digitized world and our role as a society in shaping the law:
I must start out with a confession: When it comes to technology, I’m what you might call a troglodyte. I don’t own a Kindle or an iPad or an iPhone or a Blackberry. I don’t have an avatar or even voicemail. I don’t text.
I don’t reject technology altogether: I do have a typewriter—an electric one, with a ball. But I do think that technology can be a dangerous thing because it changes the way we do things and the way we think about things; and sometimes it changes our own perception of who we are and what we’re about. And by the time we realize it, we find we’re living in a different world with different assumptions about such fundamental things as property and privacy and dignity. And by then, it’s too late to turn back the clock.
Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.
Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”
April 12, 2012 at 1:32 pm Posted in: Anonymity, Blogging, Constitutional Law, Courts, Culture, Current Events, Cyberlaw, First Amendment, Google & Search Engines, Law Rev (Stanford), Politics, Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (Law Enforcement), Science Fiction, Supreme Court, Technology Print This Post 3 Comments
posted by University of Illinois Law Review
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Legal Sources of Residential Lock-Ins: Why French Households Move Half as Often as U.S. Household – Robert C. Ellickson (PDF)
David C. Baum Memorial Lecture on Civil Rights and Civil Liberties
Citizens United and Conservative Judicial Activism – Geoffrey R. Stone (PDF)
Bargaining for Salvation: How Alternative Auditor Liability Regimes Can Save the Capital Markets – Hassen T. Al-Shawaf (PDF)
March 26, 2012 at 4:37 pm Posted in: Civil Rights, Constitutional Law, Family Law, First Amendment, International & Comparative Law, Law Rev (Illinois), Supreme Court, Uncategorized Print This Post No Comments
posted by Danielle Citron
In “Intermediaries and Hate Speech: Fostering Digital Citizenship for the Information Age,” 91 B.U. L. Rev. 1435 (2011), Helen Norton and I offered moral and policy justifications in support of intermediaries who choose to engage in voluntary efforts to combat hate speech. As we noted, many intermediaries like Facebook already choose to address online hatred in some way. We urged intermediaries to think and speak more carefully about the harms they hope to forestall when developing hate speech policies and offered an array of definitions of hate speech to help them do so. We argued for the adoption of a “transparency principle,” by which we meant that intermediaries can, and should, valuably advance the fight against digital hate by clearly and specifically explaining to users the harms that their hate speech policies address as well as the consequences of policy violations. With more transparency regarding the specific reasons for choosing to address digital hate, intermediaries can make behavioral expectations more understandable. Without it, intermediaries will be less effective in expressing what it means to be responsible users of their services.
Our call for transparency has moved an important step forward, and last night I learned how while discussing anonymity, privacy, and hate speech with CDT’s brilliant Kevin Bankston and Hogan’s privacy luminary Chris Wolf at an event sponsored by the Anti-Defamation League. Kevin shared with us Facebook’s first leaked and then explicitly revised and released to the public “Abuse Standards 6.2,” which makes clear the company’s abuse standard violations. Let me back up for a minute: Facebook’s Terms of Service (TOS) prohibits “hate speech,” an ambiguous terms with broad and narrow meanings, as Helen and I explored in our article. But it, like so many intermediaries, didn’t explain to users what they mean when they said that they prohibited hate speech–did it cover just explicit demeaning threats to traditionally subordinated groups or demeaning speech that approximates intentional infliction of emotional distress, or, instead, did it more broadly cover slurs and epithets and/or group defamation? Facebook’s leaked “Operation Manual For Live Content Moderators” helpfully explains what it means by “hate content:”
slurs or racial comments of any kind, attacking based on protected category, hate symbols, either out of context or in the context of hate phrases or support of hate groups, showing support for organizations and people primarily known for violence, depicting symbols primarily known for hate and violence, unless comments are clearly against them, photos comparing two people (or an animal and a person that resembles that animal) side by side in a “versus photo,” photo-shopped images showing the subject in a negative light, images of drunk and unconscious people, or sleeping people with things drawn on their faces, and videos of street/bar/ school yard fights even if no valid match is found (School fight videos are only confirmed if the video has been posted to continue tormenting the person targeted in the video).
The manual goes on to note that “Hate symbols are confirmed if there’s no context OR if hate phrases are used” and “Humor overrules hate speech UNLESS slur words are present or the humor is not evident.” That seems a helpful guide to safety operators on how to navigate what seems more like humor than hate, recognizing some of the challenges that surely operators face in assessing content. And note too Facebook’s consistency on Holocaust denial: that’s not prohibited in the U.S., only IP blocked for countries that ban such speech. And Facebook employees have been transparent about why. As a wise Facebook employee explained (and I’m paraphrasing here): if people want to show their ignorance about the Holocaust, let them do so in front of their friends and colleagues (hence the significant of FB’s real name policy). He said, let their friends counter that speech and embarrass them for being so asinine. The policy goes on to talk specifically about bullying and harassment, including barring attacks on anyone based on their status as a sexual assault or rape victim and contacting users persistently without prior solicitation or continue to do so when the other party has said that they want not further contact (sounds much like many harassment criminal laws, including Maryland). It also bars “credible threats,” defined as including “credible threats or incitement of physical harm against anyone, credible indications of organizing acts of present or future violence,” which seems to cover groups like “Kill a Jew Day” (removed promptly by FB). The policy also gave examples–another important step, and something we talked about last May in Stanford during a roundtable on our article with safety officers from major intermediaries (I think I can’t say who came given the Chatam House type of rules of conversation). See the examples on sexually explicit language and sexual solicitation, they are incredibly helpful and I think incredibly important for tackling cyber gender harassment.
As Kevin said, and Chris and I enthusiastically agreed, this memo is significant. Companies should follow FB’s lead. Whether you agree or disagree with these definitions, users now know what FB means by hate speech, at least far more than it did before. And users can debate it and tell FB that they think the policy is wanting and why. FB can take those conversations into consideration–they certainly have in other instances when users expressed their displeasure about moves FB was making. Now, let me be a demanding user: I want to know what this all means. Does the prohibited content get removed or moved on for further discussion? Do users get the choice to take down violating content first? Do they get notice? Users need to know what happens when they violate TOS. That too helps users understand their rights and responsibilities as digital citizens. In any event, I’m hoping that this encourages FB to release future iterations of its policy to users voluntarily and that it encourages its fellow intermediaries to do the same. Bravo to Facebook.
posted by Derek Bambauer
If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)
This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.
Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!
Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!
Cross-posted at Info/Law.
February 29, 2012 at 5:54 pm Posted in: Advertising, Architecture, Bright Ideas, Culture, Current Events, Cyberlaw, Education, First Amendment, Google and Search Engines, Humor, Innovation, Just for Fun, Law Talk, Media Law, Politics, Psychology and Behavior, Technology, Web 2.0 Print This Post 7 Comments
posted by Derek Bambauer
(This post is based on a talk I gave at the Seton Hall Legislative Journal’s symposium on Bullying and the Social Media Generation. Many thanks to Frank Pasquale, Marisa Hourdajian, and Michelle Newton for the invitation, and to Jane Yakowitz and Will Creeley for a great discussion!)
New Jersey enacted the Anti-Bullying Bill of Rights (ABBR) in 2011, in part as a response to the tragic suicide of Tyler Clementi at Rutgers University. It is routinely lauded as the country’s broadest, most inclusive, and strongest anti-bullying law. That is not entirely a compliment. In this post, I make two core claims. First, the Anti-Bullying Bill of Rights has several aspects that are problematic from a First Amendment perspective – in particular, the overbreadth of its definition of prohibited conduct, the enforcement discretion afforded school personnel, and the risk of impingement upon religious and political freedoms. I argue that the legislation departs from established precedent on disruptions of the educational environment by regulating horizontal relations between students rather than vertical relations between students and the school as an institution / environment. Second, I believe we should be cautious about statutory regimes that enable government actors to sanction speech based on content. I suggest that it is difficult to distinguish, on a principled basis, between bullying (which is bad) and social sanctions that enforce norms (which are good). Moreover, anti-bullying laws risk displacing effective informal measures that emerge from peer production. Read the rest of this post »
February 21, 2012 at 10:20 pm Posted in: Anonymity, Blogging, Bright Ideas, Civil Rights, Conferences, Constitutional Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, Education, First Amendment, Media Law, Politics, Privacy (Gossip & Shaming), Psychology and Behavior, Race, Religion, Social Network Websites, Technology, Web 2.0 Print This Post 3 Comments
posted by Derek Bambauer
On RocketLawyer’s Legally Easy podcast, I talk with Charley Moore and Eva Arevuo about the EU’s proposed “right to be forgotten” and privacy as censorship. I was inspired by Jeff Rosen and Jane Yakowitz‘s critiques of the approach, which actually appears to be a “right to lie effectively.” If you can disappear unflattering – and truthful – information, it lets you deceive others – in other words, you benefit and they are harmed. The EU’s approach is a blunderbuss where a scalpel is needed.
Cross-posted at Info/Law.
February 17, 2012 at 12:01 pm Posted in: Anonymity, Architecture, Civil Rights, Consumer Protection Law, Culture, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Google and Search Engines, Innovation, Media Law, Political Economy, Politics, Privacy, Technology, Web 2.0 Print This Post No Comments
posted by Marvin Ammori
Thanks again to all who have participated in the online symposium on First Amendment Architecture and to Danielle Citron for inviting us on.
For this likely last post, I discuss some thoughts on challenging the negative-liberty model and incorporating media and physical spaces. I present these thoughts in light of suggestions by several scholars that Architecture is, in different ways, either too ambitious or not ambitious enough.
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