Category: First Amendment

9

More Misguided Responses to the Megan Meier Incident

Last week brought the unfortunate news that Lori Drew was indicted for a violation of the Computer Fraud and Abuse Act for her ill-conceived hoax on Megan Meier. According to an MSNBC article:

Andrew DeVore, a former federal prosecutor who co-founded a regional computer crime unit in New York, said Friday the interpretation raises constitutional issues related to speech and due process — in the latter case, because it doesn’t allow for adequate notice of when using an alias online is criminal.

Because corporations would end up setting criminal standards, a completely legal act at one site could be illegal at another, said DeVore, who has no direct involvement in the case.

Now, the Missouri legislature has just passed a law in response to the incident. According to the bill summary:

Currently, the crime of harassment includes communications meant to frighten or disturb another person. Under this act, communications conducted to knowingly frighten, intimidate, or cause emotional distress to another person are included. Harassment includes communications by any means.

Harassment includes knowingly using unwanted expressions that put the person in reasonable apprehension of offensive physical contact or harm or knowingly making unwanted communications with a person.

A person also commits harassment:

1) By knowingly communicating with another person who is, or who purports to be, seventeen years of age or younger and in so doing, and without good cause, recklessly frightens, intimidates, or causes emotional distress to such other person; or

2) By engaging, without good cause, in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person’s response to the act is one of a person of average sensibilities considering the person’s age.

This law is incredibly dumb, and I hope that the governor is wise enough not to sign this uniformed and very poorly crafted piece of legislation. It is yet another misguided response to the Megan Meier incident. As I discussed in my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale 2007), we must be careful not to adopt responses to problematic online communication that are too authoritarian and too chilling of free speech.

Under this law, a person could be guilty of a crime for recklessly frightening, intimidating or causing emotional distress to a person they know is 17 or younger. That’s incredibly broad — most likely overbroad under the First Amendment. It sweeps in a potentially broad range of protected expression under the First Amendment.

Read More

2

Sartorial Exclusion

April is the criminalest month here at Co-op. Thanks to the regular bloggers for the invitation to visit; I’m pleased to join other criminal law professors as a guest. With so many criminal law specialists on board, perhaps no one will mind if I stray from the criminal law and say something about top hats, ascots, and immigration policy.

Top hat1.JPGSunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

Read More

0

More than a Metaphor: Frischmann on the Economics of Speech and the First Amendment

First_amendment_area_Muir_Woods.jpgBrett Frischmann has just posted an essay, A Note on the Economics of the First Amendment: Sustaining a Spillover Rich Networked Environment, to SSRN. The essay is part of the University of Chicago Legal Forum in 2008. In the essay, Brett “explores how the First Amendment may operate to sustain a spillover rich networked environment.” In other words, the First Amendment seems to “promote[] externalities and sustain[] an externality-rich environment.” The ideas in the paper touch on whether all externalities must be internalized. It argues that in some cases, such as speech, externalities are desired and that the First Amendment may thus be understood as fostering externalities. So for those interested in a concise presentation of externalities and how to understand them, the piece is more than helpful. In addition, the essay takes that understanding and offers a stimulating idea regarding how speech externalities seem to be the types of externalities that should be internalized, yet are not. The description of why they are not is well worth the time as it points to understanding “the nature of tradeoffs made in the law—in the First Amendment area, but also, in copyright, communications, and other areas that look like broad exceptions to the First Amendment.”

Image: This is sign at one of my favorite places, Muir Woods which is just north of San Francisco. It was taken by Brandt Luke Zorn and may be found at Wikicommons. Creative Commons Attribution ShareAlike 2.0 license

15

On Standing Up to the RIAA and the First Amendment

music1.jpgThe Recording Industry Association of America (RIAA) has been on a litigation rampage, attempting to identify people it believes are sharing music online, slapping them with a frightening lawsuit, and extracting steep settlements out of them. Universities are frequently being subpoenaed by the RIAA to provide information about students. Whether this strategy of acting like a lunch money bully is working remains to be seen, but finally a university is fighting back. According to Adam Liptak’s essay in the New York Times:

The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs from Journey, the Cars, Dire Straits, Sting and Madonna on a file-sharing network.

The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.

Represented by the state’s attorney general, Hardy Myers, the university filed a blistering motion to quash the subpoena, accusing the industry of misleading the judge, violating student privacy laws and engaging in questionable investigative practices. . . .

“Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,” Mr. Myers wrote last month. “However, that pursuit must be tempered by basic notions of privacy and due process.”

“The larger issue,” Mr. Myers said, “is whether plaintiffs’ investigative and litigation strategies are appropriate.”

Mr. Myers questioned the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain “private, confidential information unrelated to copyright infringement.” He added that it may have violated an Oregon criminal law requiring investigators to be licensed.

I am pleased that the university is fighting back. Liptak seems skeptical about whether the university will be successful in its challenge to the subpoena, but at least it is defending its students rights rather than quickly giving in. Universities should not be so quick to accede to RIAA subpoenas.

One issue involves students’ First Amendment rights. Although the Supreme Court has held that copyright infringement isn’t protected under the First Amendment, Harper & Row, Publs. Inc. v. Nation Enters., 471 U.S. 539 (1985), protected speech may be involved in some cases. According to the Court, copyright has “built-in First Amendment accommodations” via the fair use doctrine. Eldred v. Ashcroft, 537 U.S. 186 (2003). Copyright protection is thus compatible with the First Amendment because of the existence of fair use. What this means is that it is possible that in any given case, some of the uses of the music may be fair use, and that is protected by the First Amendment. Moreover, a person may have made statements online along with engaging in piracy. So, for example, an anonymous person might maintain a website where he posts music files for trading along with the statement that “the RIAA is a big bad bully.” That statement is protected speech, and identifying an anonymous speaker triggers heightened First Amendment standards for the subpoena.

Read More

2

Who Is Frank Pasquale?

pasquale-frank2.jpgYou know him as Frank Pasquale, as he blogs here occasionally regularly frequently like a madman on steroids, but who is he really?

You might not know that Frank Pasquale recently won a victory in a court case in Texas, In re Does 1-10, — S.W.3d –, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007):

Essent PRMC, L.P. (Hospital) filed suit against ten John Does alleging they had defamed the Hospital and violated other laws by posting comments on an Internet site. The trial court ordered that anonymous contributer John Doe number one be identified by his Internet service provider (ISP). Anonymous John Doe number one (identified in his blog as fac-p and Frank Pasquale) has filed a petition for writ of mandamus asking this Court to order the district court to withdraw its order directing a third party ISP to reveal his identity to the Hospital.

As Frank mentioned earlier, this other Frank Pasquale is his “purloined persona.” Several others commented on the fake Frank and the lawsuit in question. For example, Professor Bill McGeveran wrote:

A Blogger page called “The Paris Site” (cute pun) is a detailed gripe site about the local hospital in Paris, Texas and its parent company, Essent Healthcare. According to this news story in the local Paris paper, Essent has sued the anonymous bloggers behind the site for defamation, alleging that the site suggests the hospital is culpable for Medicare fraud and other wrongdoing. The blogger(s) use various pseudonyms, including, at one point, “Frank Pasquale.” The state court judge in the case has ordered a local ISP to provide the real name and address of the site’s proprietor.

This sort of thing occurs fairly frequently online. On political blogs you often see commenters signing the name of elected officials, usually to parody them by making sarcastic or ridiculous remarks in their name. You also see it all the time on sites like AutoAdmit/XOXOHTH, where part of the style of so-called joke is to use other people’s names (or screen names) and turn them into sock puppets. If obvious enough as humor, those may or may not be misleading, but I have little doubt that this sort of impersonation also happens in many contexts that are outright deceptive.

See also this post by Ruchira Paul.

In the lawsuit, John Doe aka “Frank Pasquale” prevailed, with the court declaring the importance of protecting the First Amendment rights of anonymous speakers. The court adopted the approach in Doe v. Cahill,, 884 A.2d 451 (Del.2005), an approach that I believe is the best. I blogged about Cahill here. According to the court:

Read More

Why the FEC Deadlock?

The WaPo warns that the FEC is about to “shut down.” Though “375 auditors, lawyers and investigators at the FEC will continue to process work already before them, a variety of matters that fall to the commissioners will be placed on hold indefinitely” because of gridlock over President Bush’s effort to appoint Hans Von Spakofsky to a six year term on the commission. Here’s Dahlia Lithwick on Von Spakofsky:

Von Spakovsky’s Senate confirmation hearing last June was noteworthy for many oddities, not the least of which was a letter sent to the rules committee by six former career professionals in the voting rights section of the Justice Department; folks who had worked under both Republican and Democratic administrations for a period that spanned 36 years. The letter urged the committee to reject von Spakovsky on the grounds that while at DoJ, he was one of the architects of a transformation in the voting rights section from its “historic mission to enforce the nation’s civil rights laws without regard to politics, to pursuing an agenda which placed the highest priority on the partisan political goals of the political appointees who supervised the Section.” The authors named him as the “point person for undermining the Civil Rights Division’s mandate to protect voting rights.”

The Lithwick article is worth reading in full, as is the context provided by election law scholar Richard Hasen in Slate stories here and here.

My question is: isn’t there some less controversial nominee than Von Spakofsky? Washington must have a good number of Republican election lawyers who share the president’s priorities and would prove excellent leaders of the Commission.

Read More

2

Kosher Food, Social Justice, and Shaming (Blumenthal Guest)

The last year or so has seen a fascinating movement in the kosher food world-the development of the “hekhsher tzedek” -variously translated as a “righteous seal” or “Justice certification.” Initiated largely by the Conservative Jewish movement, the certification is seen as a complement to the traditional kosher certification, which attests that the food in question has been prepared according to Jewish ritual law. According to the United Synagogue of Conservative Judaism, the seal would certify that “food and meat processors have met a set of standards that determine the social responsibility of kosher food producers, particularly in the area of workers’ rights.” Thus, kosher food could receive two certifications-one showing that it is ritually kosher, one showing that the workers in a particular plant were treated ethically, fairly, and legally. The USCJ was to consider a resolution establishing the certification at its December conference last week. It was expected to pass easily, though I have not seen follow-up reports.

The idea is controversial, for a number of reasons legal and otherwise. One is motive-some see the move as motivated by antipathy toward one of the larger kosher facilities, AgriProcessors, in Iowa, where worker mistreatment and unsafe conditions were alleged in the spring of 2006.

Another set of issues concerns the proper purviews of government, religious, and lay groups: objections have been raised that responding to such worker treatment is the role of government agencies and the justice system. There are interesting echoes here of the kosher fraud statute cases of the last several years, in which constitutional challenges to state definitions of “kosher” were upheld. These cases essentially led to more informal, social regulation of kosher food sellers, reflecting the sort of “shaming” and social norms issued often discussed here at CO. See Shayna M. Sigman, Kosher Without Law: The Role of Nonlegal Sanctions in Overcoming Fraud Within the Kosher Food Industry, 31 FLA. ST. U. L. REV. 509 (2004). (My own opinion is that those cases may be wrong, and the statutes not unconstitutional, but that’s another discussion.)

But other questions have been raised, too-for instance, what effect, if any, would such certification have on the value of the ritual certification (i.e., would the religious aspect of it be devalued)? Is there potential liability for a certifying group if there is an accident or mistreatment at a plant that has been certified? What standards would the certifying group use?

All of these notions, I think, raise good issues for legal scholars (and students looking for note topics!).

Food Fraud & the First Amendment

The Pennsylvania Dep’t of Agriculture has decided to keep consumers from knowing whether the milk they buy is free of certain hormones:

Dennis Wolff, Pennsylvania’s agriculture secretary [has] announced a crackdown on “absence labeling” on milk, meaning labels that tell consumers what isn’t in a product rather than what is. He argues that “hormone free” labels are misleading because cows produce hormones naturally. Even labels that are more carefully worded, such as “contains no artificial hormones” will soon be verboten in Pennsylvania because Mr. Wolff said that there were no scientific tests to prove the truth of such a claim.

On first glance, this might seem like a classic case for First Amendment intervention. A reporter asks ” as long as the claim is accurate, isn’t the point of labels to differentiate one product from another?” He warns that “using Mr. Wolff’s reasoning, you could argue that organic labels on milk are unfair because they suggest that non-organic food is inferior. The same goes for labels for “natural,” “from grass-fed cows” and “locally produced.””

However, Rebecca Tushnet counsels caution, especially given consumers’ limited opportunities to process information. Commenting on controversy over “genetically modified organism” labeling, she writes:

Establishing that some consumers wish to avoid GMO foods on non-safety grounds does nothing to refute either of the FDA’s major premises: GMO foods are safe, and labeling will mislead some significant number of consumers about safety.

Tushnet’s position makes sense to me, but I am afraid that captured regulators may provoke courts to impose sweeping First Amendment limits on advertising regulation. Instead of picking on consumers with preferences for less chemical cow enhancement, why aren’t they taking on real “food frauds?” For example, here’s the CSPI on Smucker’s:

All varieties of Smucker’s Simply Fruit contain more fruit syrup than actual fruit. And the syrup doesn’t even come from the fruit in the products’ names, but from (cheaper) apple, pineapple, or pear juice concentrate.

This strikes me as much worse for consumers than the “absence labeling” in the milk context. But perhaps we should be willing to accept some questionable priorities now in exchange for First Amendment flexibility that permits future action on real food fraud.

11

Public vs. Private: Funerals, Free Speech, and Privacy

grave2.jpgTimothy Zick recently blogged about a lawsuit by a parent of a deceased soldier against a fundamentalist religious group that protested near the funeral. The religious group has been protesting near several funerals for soldiers, and their message is particularly offensive: The group claims that the soldiers died as punishment for a society that permits homosexuality. Read Timothy’s post for more background about the case.

The verdict is now in. From the AP:

A grieving father won a nearly $11 million verdict Wednesday against a fundamentalist Kansas church that pickets military funerals out of a belief that the war in Iraq is a punishment for the nation’s tolerance of homosexuality.

Albert Snyder of York, Pa., sued the Westboro Baptist Church for unspecified damages after members demonstrated at the March 2006 funeral of his son, Lance Cpl. Matthew Snyder, who was killed in Iraq.

The federal jury first awarded $2.9 million in compensatory damages. It returned in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress. . . .

Church members routinely picket funerals of military personnel killed in Iraq and Afghanistan, carrying signs such as “Thank God for dead soldiers” and “God hates fags.”

Snyder claimed the protests intruded upon what should have been a private ceremony and sullied his memory of the event.

While the amount of the verdict strikes me as far too excessive, I am pleased that the plaintiffs won (from what limited information I’ve read about the case). I would like to respond to Timothy Zick’s very thoughtful and compelling argument for why the speech of the protesters should win out over the interests of the family holding the funeral. Timothy argues:

Read More

11

Funerals and Free Speech

funeral_protest.jpg First, thanks to Dan and the other authors for giving me a platform from which to discuss issues relating to public expression as well as other miscellaneous matters. I have greatly enjoyed my guest stint here at CoOp, and am especially grateful to those who have engaged my arguments with thoughtful comments.

In my final post, I want to discuss one of the most difficult cases I have encountered in my study of public speech rights. Many readers are likely already aware of the protest activities of the Westboro Baptist Church, a fundamentalist congregation based in Topeka, Kansas. The church’s members — which consist primarily of relatives of a single family — have drawn public attention and ire for protesting at the funerals of service men and women killed in Iraq and Afghanistan. (Members have also protested near military hospitals.) Their “message” is that God is killing American soldiers to punish the United States for “condoning” homosexuality. The protesters tend to stand — peacefully for the most part, but quite noticeably — on sidewalks and other public properties near the entrance to cemeteries. They hold signs conveying messages like “God Hates Fags” and “Thank God for Dead Soldiers.” The protesters’ presence is obviously deeply upsetting to families and friends who have come to pay their last respects. Three dozen states and Congress have enacted statutes that attempt to limit, in a variety of respects, the time, place, and manner of “funeral protests.” The First Amendment Center has a useful summary of the protests and the legal response to them. In a first-of-its-kind lawsuit, the parent of one marine whose funeral was picketed by Westboro members has filed a tort lawsuit against the church, alleging intentional infliction of emotional distress. That trial is currently taking place in Maryland federal court.

One of the things that I find most fascinating about real-space expressive contests is their tendency to challenge our commitment to ideals of “robust and wide open” debate and liberty to offend and provoke others. Of course, content on the Web offends and challenges sensibilities too. But on the sidewalks and streets, as elsewhere on the tangible expressive topography, the offense is felt when and how it hurts most — in person and in real time and space. Because the message is delivered at or very near the point of contest, the audience has a much more difficult time avoiding it. The speech and speakers involved in funeral protests push hard at the First Amendment envelope. Indeed, many wonder how this sort of expression can possibly be defended. I am not concerned here with setting appropriate spatial boundaries — i.e., whether a 200- or 500-foot “buffer zone” is constitutionally permissible. Rather, I am interested in what makes this case so difficult at its core. I address that issue after the jump, and also offer a basis for granting this kind of expression some public space that differs from many of the abstract principles usually cited.

Read More