Category: First Amendment

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When is Reality TV Journalism? The Realhousewives Lawyer Up

winchell.jpgI’m a tremendous fan of no good television. Indeed, I’ve been known to watch Bravo’s The Real Housewives of New York City, to fill the long hours waiting for the new episodes of Top Chef. As it turns out, the show provides an (arguable) hook for an odd legal issue: when does a reality t.v. look like journalism?

Briefly, the show follows several “housewives” as they purport to go about their daily business in New York City. (The “housewives” often have jobs outside the home. And they aren’t all married. And parts of the show are obviously scripted. And everyone is wealthy. Please don’t let the details get in the way of the feel-good trash.) One, Bethenny Frankel, a chef, was dating Jason Colodne, President of Patriarch Partners LLC, a private equity firm specializing in distressed company turnarounds.

Colodne appeared briefly in the show, where he did little except for appear very, very uncomfortable with the idea of being on T.V., and watch his girlfriend emote. The day the show aired, he was fired from his job at Patriarch, which claimed that his appearances violated the firm’s extremely low-profile ethos.

Colodne sued Patriarch, alleging breach of his employment agreement, and sought $55,000,000 in damages. According to the complaint, although Patriach fired Colodne for cause, that cause was pretextual, i.e., unrelated to the television show. The litigation remains mired in discovery in the Southern District.

The interesting aspect, for fans of reality t.v., is a side-suit in California, in which Patriarch sued to enforce a Rule 45 subpoena against Ricochet Television, the producers of the Real Housewives franchise. In the memorandum in support of its subpoena, Patriarch asserted that it needed access to unaired video footage of Colondne, as well as any correspondence in which the producers set out the boundaries of his involvement. It asserted that under New York’s journalist shield law (which it argued applied under California choice-of-law principles) Ricochet had to turn over the information requested.

Ricochet, by contrast, argued that it was entitled to the protection of California’s journalist shield law, which it argued applied, as reality t.v. deals with matter of public concern, and is more like the nightly news than you might think.

Unfortunately for fans of the law of reality t.v., the parties settled before a judge ruled on their motions. But it seemed like a fun hypothetical to share with you anyway.

(Image Source: Gossip hound and reporter Walter Winchell, courtesy of Wikipedia)

“Not a cough in a carload:” Images from the Tobacco Industry’s Campaign to Hide the Hazards of Smoking

camelsdoctors.jpgIn 2005, Stanford’s Humanities Center hosted the conference called “Agnotology: The Cultural Production of Ignorance, which included papers like “Manufacturing Uncertainty: Contested Science and the Protection of the Public’s Health & Environment” and “Deny, Deny, Deny: How to Sow Confusion over Climate Change.” Now Stanford Medical School is hosting a fascinating collection of ignorance-generating advertising entitled “Not a cough in a carload:” Images from the Tobacco Industry’s Campiaign to Hide the Hazards of Smoking.

The collaboration of doctors in the ad campaigns is one of the most surprising aspects of the exhibit:

One technique used by the tobacco industry to reassure a worried public was to incorporate images of physicians in their ads. . . . The images were always of an idealized physician, wise, noble, and caring, who enthusiastically partakes of the smoking habit. Little protest was heard from the medical community . . . perhaps because the images showed the profession in a highly favorable light . . . . This genre of ads regularly appeared in medical journals such as JAMA, an organization which for decades collaborated closely with the industry.

The industry made some health claims for cigarettes; they were deemed better than sweets, and therefore “dentist recommended.” Camel claimed that “you can smoke as many Camels as you want, their costlier tobaccos never jangle your nerves.” And a calmed Rock Hudson appears in an ad claiming that, without Camels, “you may yip like a terrier” with anxiety. It’s fun to compare the 1930s to 1950s ads with the sleek corporate style depicted in the documentary Helvetica.

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Drug Cartels And Propaganda

PropagandaNaziJapaneseMonster.JPGWhat if major crime groups started to post banners, drop leaflets, use noise campaigns (cars with speakers broadcasting a message), run Internet videos with gruesome scenes, and other propaganda techniques to question the government? What if the messages stated that a public official, a police officer, a special agent, a whole department, and so on are corrupt? If you think that it could never happen, know that it is happening in Mexico.

As the Dallas Morning News reports the drug war in Mexico is taking on conventional war tactics including propaganda.

Hanging from the church fence in Monterrey was a banner more than a dozen feet high addressed to President Felipe Calderón, accusing the government of favoring some cartel groups over others – a charge the government denies – and appealing for a more balanced approach.

“We urge you to put neutral commanders in these jobs and not allow the narco police to stay,” it read in neat black block letters.

At least two dozen similar banners in 14 cities and six states appeared Monday in public places. The Monterrey church is in front of City Hall.

The article notes that these moves are tactics to counter the government’s message regarding drugs and Mexico’s war on drugs. And although the tactics are being called a disinformation campaign, it seems some of the messages may have truth in them. As the News reported in one case a cartel used propaganda to allege that an official was corrupt and possibly working for another cartel. Shortly after the banners went up, the official was arrested for corruption and protecting a cartel.

Who knows? Perhaps the tactic will catch on here in the U.S. If so, I wonder whether those who favor more information will want to protect the acts or not.

Image: “STOP THIS MONSTER THAT STOPS AT NOTHING. PRODUCE TO THE LIMIT. THIS IS YOUR WAR., 1941 – 1945″ Creator: Office for Emergency Management. Office of War Information. Domestic Operations Branch. Bureau of Special Services. (03/09/1943 – 08/31/1945). Propaganda

Source: WikiCommons

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Privacy and the Media

Cover 1 PAM (small).jpgShameless self-plug alert: I’m pleased to announce the publication of my new casebook with co-author Professor Paul M. Schwartz (Berkeley Law School) — PRIVACY AND THE MEDIA. [Amazon page here.]

This short paperback contains key cases and materials focusing on privacy issues related to the media. Topics covered include the privacy torts, free speech, First Amendment, paparazzi, defamation, online gossip and social network websites.

This book is designed for use as a supplemental text in the following courses and seminars: journalism, entertainment law, media law, Torts II (or advanced torts), cyberlaw, First Amendment, free speech, law and technology, privacy law, and information law.

More information about the book is available here. I posted the table of contents online.

To obtain a review copy, please email Diane Warren at Aspen.

I’m also pleased to announce that the new editions of my other casebooks are now in print — INFORMATION PRIVACY LAW (3rd edition) and PRIVACY, INFORMATION, AND TECHNOLOGY (2nd edition). Click here for more information.

An Obscenity Crisis?

Jeffrey Rosen has written thoughtfully about indecency and the rise in foul and degrading language and images. I’m broadly sympathetic with his approach, and this blast from the past suggests the difficulty of doing much after the horse of coarseness is out of the barn:

Before they won the rights to use Spider-Man, the PBS educational show The Electric Company introduced a new hero called Letterman in 1971, in a series of animated cartoons. Letterman – “faster than a rolling O, more powerful than a silent E, able to leap a capital T” – would fly to the scene of a problem a fix it by plucking letters from his sweatshirt, changing bad words into good words. He would change “gun” to “bun”, or “tickle” to “pickle” (revealing, presumably, that “tickle” is a bad word). If he had enough letters, no doubt he could change “superhero” into “what a ridiculous superpower.”

As Chris Fairman notes, the regulation of social meaning can be a very difficult task; a “process of silenc[ing can] enable[] small segments of the population to manipulate our rights under the guise of reflecting a greater community.”

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Open Source Censorship

82px-Censuraindex.jpgIn nations with strong Internet censorship policies, the government typically runs the effort to block unwanted Web content. China, for instance, uses its vast resources, both technological and human, to maintain its Great Firewall. But Saudi Arabia has followed a different path to acheive similar results. As Business Week reports, Saudi Arabia claims to rely on its citizens to recommend sites that should be blocked. The government reportedly receives roughly 1,200 messages a day, typically students and religious leaders, flagging offensive sites. Its Communications & Information Technology Commission (CITC) only has 25 people working on censorship issues although it does employ software to block clear-cut violations of its communications policy, such as web sites for pornography and gambling. CITC uses software from San Jose-based Secure Computing that offers a menu of 90 categories of sites to block.

Groups that monitor press freedom around the world suggest that Saudi censorship policies are “among the most restrictive in the world” in targeting criticism of the royal family and religion. Human rights group Reporters Without Borders has extensive coverage on Saudi Arabia’s censorship policies. For instance, all discussions of women’s rights are blocked. And, as Business Week notes, local blogger Fouad al Farhan was jailed early this year for advocating political reforms. While Farhan wrote under his own name, most of the country’s 2,000 bloggers write anonymously.

The CITC, however, suggests that its censorship has the imprimatur of its citizens who participate in the government’s efforts to ban pornography and unpopular ideas. It explains that only 40% of its citizens are concerned about its censorship efforts. Questions remain as to whether citizen participation in the work of CITC is, in fact, as wide-spread as the government suggests and whether our free speech values truly do have little resonance there.

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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.

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Judge Kozinski: The First Amendment Is Dead

free speech rip.jpg

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.)

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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.

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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.