Category: First Amendment

7

Today’s Secret Word: Porno

Yes the favorite oddity of American culture is back and just in time for Halloween. We don’t mind ultra-violent films but say porno or show some nudity and it’s time to ban a film. First, note that part of the ad campaign for Zack and Miri Make a Porno have dropped the “Make a Porno” part of the title. Yes it is such a bad word. Now it seems that Larry Miller, owner of the Utah Jazz and the wildly cleverly named Megaplex Theaters has banned the film from his theater chain.

Fair enough. That is his choice. The odd part is that the chain has happily run Saw V “which features beheadings and explicit self-mutilation” and is “Rated R for sequences of grisly bloody violence and torture, language and brief nudity.” It also runs Quarantine “Rated R for bloody violent and disturbing content, terror and language.”

Now suppose that the issue is, as claimed, that Porno has “‘graphic nudity and graphic sex’ and that it was ‘too close to an NC-17.'” How does one explain that Sex Drive, Rated R for strong crude and sexual content, nudity, language, some drug and alcohol use – all involving teens. is playing on a couple screens within the Megaplex chain?

It is perhaps one word, a five letter word, porno. AHHHH!!!!! RUN AWAY!! RUN AWAY!!!! The horror. The horror. Oh no that’s the porno. The porno.

Family Safe Media claims some rather wild numbers for the porn industry ($13.3 billion spent in the U.S. and $97 billion worldwide) and concludes “As you can probably see from reading the above statistics, it is important to have a complete Internet safety program in place consisting of an Internet filter and parental controls” which it happens to sell. Yet a Fox News story from 2007 claims that the U.S. porn industry had “Total revenue for 2006 … at an astounding $12.92 billion.” compared to $9 billion for “legitimate mainstream American cinema.”

With all that money being spent and all that media being consumed can just the word porno really cause such a stir? Apparently so.

Then again it may be that Kevin Smith just upsets folks. For some it is the subject matter of his films. For me, it is that some of his films are decent and some are rot. In fact, they’re all rubbish! That’s it! My theater chain hereby bans all Kevin Sm.. What? Oh the kids like his stuff? I don… Huh? He is doing a new movie called Jeb and Rebba Make a Gorno? Brief nudity and lots of dismemberment? All right. I kind of like that. Let’s run it on four screens.

11

Judge Kozinski: The First Amendment Is Dead

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Judge Alex Kozinski came to Temple this afternoon and delivered the Arlin Adams lecture, on “The Late, Great First Amendment.” Typically provocative, Kozinski argued that individuals’ inability to bring effective lawsuits for internet speech renders obsolete existing First Amendment doctrine. In his view, traditional First Amendment doctrine had promoted an informed democratic discourse by maintaining a threat – though remote – of the possibility of recovery for libel, defamation, copyright infringement, trademark infringement, and spreading protected national secrets. By contrast, given the Streisand effect and Wikileaks’ portability and thus immunity, the modern world provides no effective remedies for unprotected speech.

Without liability pressure disciplining the speaking market, Kozinski sketched out a distopian lemons market for speech: untrusted intermediaries, unreported international and national news, and a cacophony of speakers saying little of interest.

I’m running off to class now, so I don’t have time for an extended analysis, but it strikes me that Kozinski’s eulogy for the First Amendment was premature for at least three reasons: (1) the kind of mass media he mourned – protected by a prior restraint doctrine and fattened by classified ads – is the exception and not the norm in our tradition, so any conclusions relying on the Amendment’s relationship to the particular character of the news media seem overdrawn; (2) as my colleague David Post pointed out, there are strong economic reasons for online intermediaries to establish transparent reputations for honesty – that is, technical warranties ought to solve the lemons problem; (3) speech may be governed by law even if plaintiffs can’t effectively enforce available legal rules. Think international law. Or, closer to home, think about the duty of care in Delaware. No one really believes that corporate actors are acting according to their whim and fancy despite facing no remedy for their negligence. If the First Amendment has no downside teeth, it can still create sticky norms.

As I said, a great speech. It featured references to David Lat & the Volokh Conspiracy, among others. But not CoOp. Maybe we ought to be running a hotties contest.

More later (maybe.)

1

COINTELPRO in a Digital World

In a move reminiscent of the FBI’s infiltration of political advocacy groups in the 1960s and early 1970s, the Maryland State Police engaged in covert surveillance of groups opposed to the Iraq war and capital punishment. According to a report recently released by former Maryland Attorney General Steven Sachs, Maryland troopers secretly attended meetings of anti-death penalty and anti-war activists in 2005 and 2006. At one meeting, a small group of activists met at a church to call a death-row inmate for whom they provided emotional support. This activity, and others like it, prompted the Maryland State Police to include group members in state and federal criminal intelligence databases. Unfortunately for the activists, the state database, known as Case Explorer, had a limited drop-down screen for entering names, all of which ensured that the users of the system would categorize individuals as terrorists.

News of the covert surveillance and the individuals’ inclusion in these databases as terrorists came to light this summer when the Maryland State Police responded to a public records request pursued by the ACLU. Maryland Governor Martin O’Malley commissioned former AG Steven Sachs to investigate the matter. Sachs’s report explains that the Maryland State Police commanders never bothered to ask if the groups posed a reasonable threat to public safety before commencing covert surveillance of them. On the contrary, the groups were determined not to violate the law. According to the New York Times, Maryland State Police are now tracking down 53 “innocent individuals to let them know they were entered as suspected terrorists” in the state and federal databases for their involvement in peaceful protest. In legislative hearings in Annapolis, Maryland this week, former Maryland State Police superintendent insisted that the program was a legitimate surveillance of “fringe people” who wanted to “disrupt the government.”

To be sure, the surveillance itself raises serious concerns about chilling protected political expressive activity. But it also demonstrates the profound power of automated systems, whose design forces important decisions to be made about individuals. By requiring police to categorize individuals as some form of “terrorist,” the systems’ design effectuated an important decision about those individuals, one that could have serious impact on their reputation and lives if that information were released. The digitization of such designations has a lasting, generative power, far beyond the FBI files of the COINTELPRO era that could not be shared with the ease of today’s networked computer systems.

1

The Sanctity of Polling Places

This election season, like others, will involve a variety of contests relating to political and other activity at or near polling places. Already officials in Kentucky, Pennsylvania, and Nebraska have encountered (or in some instances engendered) some confusion regarding whether voters may wear campaign paraphernalia to the polls. Various exit pollers, campaigners, and petitioners have also filed lawsuits alleging that restrictions on activity near polling places violate the First Amendment. Although much of the focus leading up to election day has been on registering voters, we should also be aware that polling places themselves are hotly contested democratic venues. Voting is not the only action at the polls.

Of course, activists and lawyers are acutely aware that confusion regarding and limitations upon the exercise of the franchise can substantially interfere with the fundamental right to vote. Indeed, particularly in close elections, allegations of voter interference, fraud, and disfranchisement are now rather routine. But these same concerns have contributed to the transformation of many polling places into politics- and speech-free zones. The substantial limits on political and press activity within these zones raise serious First Amendment concerns. There are, of course, sound reasons (i.e., ensuring access and providing for the orderly administration of elections) for imposing some limits on political campaigning near polling places. Indeed, the Supreme Court, in Burson v. Freeman (1992), upheld Tennessee’s ban on political activity within 100 feet of polling places under a strict scrutiny standard. But as Justice Stevens observed in dissent:

Campaign free zones are noteworthy for their broad, antiseptic sweep. The Tennessee zone encompasses at least 30,000 square feet around each polling place; in some States, such as Kentucky and Wisconsin, the radius of the restricted zone is 500 feet–silencing an area of over 750,000 square feet. Even under the most sanguine scenario of participatory democracy, it is difficult to imagine voter turnout so complete as to require the clearing of hundreds of thousands of square feet simply to ensure that the path to the polling place door remains open and that the curtain that protects the secrecy of the ballot box remains closed.

We must be careful, as Justice Stevens said, not to “confuse sanctity with silence.” Despite the First Amendment concerns associated with polling place limits, many states have imposed bans similar to Tennessee’s. Many have also sought to restrict press activity such as exit polling near polling venues. The media have generally been successful in challenging these restrictions. Officials seem to have over-reacted to the perceived dangers of this form of information-gathering. Although exit polling has a somewhat checkered history, including in the 2000 presidential election, there is no evidence that it generally interferes with the franchise or disrupts elections. A district judge found in one case that of the 5,090 complaints registered by Florida voters in the 2006 congressional elections, not a single one related to exit polling.

So as we go to the polls in a few weeks, let us hope that the various limits on campaigning and other “political” activity near polling places will not be used to deny anyone access to the ballot. We should also hope that petitioners and exit pollsters will have reasonable access to the voting public.

2

The State of the First Amendment

The First Amendment Center has released the results of its annual nationwide survey regarding First Amendment liberties. As usual, respondents expressed general support for free speech and other First Amendment liberties. But when asked about specific situations, the answers suggest a willingness to accept a substantial measure of governmental control.

As usual, a number of survey questions related to broadcast and other media. There was substantial support for content restrictions and even some government directives with regard to media. For example, 66% of respondents said the government should require television broadcasters to allot equal time to liberal and conservative broadcasts (62% would extend that requirement to newspapers); 39% of respondents would extend the indecency regulations applied to broadcast television to cable and satellite media; and 38% would permit government to require broadcasters to report a specified amount of “positive news” in return for licenses to operate. These numbers are relatively consistent over the past several years. One number that did creep up a bit–the number of respondents who agree with the statement “the falsifying or making up of stories in the American news media is a widespread problem” (66%).

Various other content regulations also garnered substantial support. For example, nearly a third of respondents disagreed that musicians should be allowed to sing songs with lyrics that others might find offensive; 42% responded that speakers should not be allowed to say things in public that might offend religious groups; 54% said the same thing with respect to racial groups. And 50% thought schools ought to be able to discipline students for posting (while off campus) entries on social networking sites that may be “disruptive” to school classes. These numbers, too, seem relatively consistent across time.

These, however, were not the most interesting (or disturbing) results of the survey.

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4

The Fleeting Expletives Case

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

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

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

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

1

Meatspaces, Cyberspaces, and (Relative) Expressive Freedom

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

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

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2

Freedom of Expression Elsewhere

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

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

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

The second example — from Thailand — after the jump.

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1

The Political Conventions and the First Amendment

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

More of the Same

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

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

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

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

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

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

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The Reaction to Convention Militarization

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

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

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

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