Category: First Amendment

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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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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.]

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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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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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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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Pole Dancing: The New Pilates?

ole.jpgThe New York Times, among many other outlets, reports today on a dispute between a pole dancing instructor and a local zoning board in a suburb outside Pittsburgh. The instructor was denied a permit to operate her business, which offers instruction in “pole dancing, power lap dancing, salsa and other forms of dance and fitness.” The permit was allegedly denied on the ground that the dance studio is an “adult” business illegally located within 1,000 feet of a bar in a residential area. The instruction apparently does not involve nudity and there is no audience. The instructor, represented by the ACLU, alleges that local officials denied the permit because of the design of her website and logo (which contains a high-heeled shoe) and because the dancing is “provocative” and involves “sexual innuendo.” If that is the case, the instructor may have a viable First Amendment claim (in addition to a statutory one regarding application of the zoning law itself). Contrtary to the popular portrayal of this case as one concerning the expressiveness of pole dancing, note that the ACLU is framing the issue as one of teaching or instruction rather than expressive dance. The Supreme Court has held that social dancing is not protected under the First Amendment. Performative dance, on the other hand, has received some protection. In particular, the Court has at least been willing to assume that nude dancing is expressive. On the matter of the expressiveness of exotic dance (including the sort that involves nudity), I recommend the (thick) description offered by Judge Richard Posner in his concurrence in Miller v. City of South Bend. Judge Posner begins: “The dancers were presentable although not striking young women. They danced on a stage, with vigor but without accomplishment, . . .” There is much, much more for the curious reader. Given the lack of any audience (other than those in the class), it seems wise to frame this as a “right to teach” case. Assuming this is protected activity, the allegations and quoted statements by officials seem to suggest content discrimination.

But I am as or more interested in the cultural implications of this case than its free speech aspects.

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Porn Air

I’m delighted to be back at Concurring Opinions. As I did during my last visit, I plan to write primarily about First Amendment issues. During work on my book, Speech Out of Doors, I was immersed in some of the more traditional aspects of expression – public forum issues, face-to-face expression, acts of public protest, and regulation of public expression. I’ve been thinking lately about the extraordinary transformation of the First Amendment, particularly during the last decade or so. The very meanings of “speech,” “assembly,” “petition,” and “press” have been significantly altered, primarily as a result of technological and communicative advances. Among the changes are a variety of new forms of speech, online protests and assemblies, an increasingly Web-based politics (i.e., online fundraising, the YouTube debates, the recent Obama vice presidential text), and of course the phenomenon of a “citizen press.”

One significant aspect of this expressive transformation involves the mobility of expression. In an article and in the final chapter of my book, I examine some of the ways in which mobile computing technologies are transforming the communicative environment and the First Amendment. It is, of course, a tremendous convenience to be able to access the Web from wherever one happens to be. As well, new technologies can facilitate “smart mobbing,” public social networking, and spontaneous gatherings. But always-on access will occasionally expose us – in some cases fleetingly, and in others in a more intrusive manner – to the communicating and viewing habits of others. A few years ago I recall reading news reports about “drive-by porn” – the visible display of pornographic images on video monitors inside vehicles. Phone service providers in the U.S. have been much slower than their counterparts in other parts of the world to allow sexually explicit content to be accessed through their services. But given the market for such content, how long will this be the case? And now some airlines are making wireless Web access available on flights. This is welcome news for passengers who wish to remain connected in the air. But it has raised the concern that some passengers will access sexually explicit content in flight. This will render some passengers “captive” to expression they (presumably) will not want to see (and possibly hear). The airlines apparently plan to have flight attendants monitor Web use, and presumably intervene when “inappropriate” content is accessed. Some brief thoughts on “Porn Air” after the jump.

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Banner Planes & The First Amendment

BannerPlane.gifRelaxing at the beach in New Jersey this weekend, I watched dozens of plane towing banners fly by. I suspect that I wasn’t alone this particular weekend in wondering about the messages the planes were dragging. Unlike the ordinary banners, which advertise casino events, or rarely marriage proposals, all of this weekend’s banners seemed to be critical of someone in City government in Longport, NJ, though its not clear quite who or for what.

“Longport – Is Mayor Russo The Premier Puppet?” ”

“Ken you and Barbie look great together. Does Barbie know about peter?”

“Longport – Just Say No More to Russo’s ‘Gang Of Four.’ Stay Tuned.”

“Twinthugs plumbing. No permits needed. Premier condos and houses only.”

“Ken and Joe nabbed in FBI sting. Did Ken sing?

Obscure enough to be interesting, vague enough to avoid libel, and (with nothing else to do but watch the surf come in) the topic of literally thousands of conversations over sandy ice cream.

Anyway, I looked it up. Turns out, the planes relate to a bitter zoning battle, that has turned into an even nastier first-amendment fight, as the local government here tries to prohibit a landowner from videotaping interactions with city officials. Not the kind of high drama that ends up in casebooks, but still kind of a huge, festering, mess! Law: you can’t escape it, even on vacation.

If anyone else saw these banners, and recalls some of the other messages, feel free to comment.

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Is the National Enquirer Reliable? The Revenge of Priest-Klein

images-1.jpegCheck out this good article about the National Enquirer’s pursuit of the John Edwards adultery story. Contra Kaus, surely the most likely reason that the mainstream press was reluctant to follow up on the N.E.‘s allegations is that the paper is, quite literally, supermarket trash, and thus presumed to be unreliable.

Not so, says its editor David Perel:

“[C]ontrary to what you might think, the Enquirer’s record in courtroom lawsuits is no better or worse than other media outlets. Unknown is the number of out-of-court settlements the paper has had. ‘Every newspaper gets sued; It’s a fact of life,’ Perel (left) said. ‘But, you know, we do pretty well. That’s not to say we get everything right. We don’t. But you show the newspaper that does, I’ll start subscribing to it right now.'”

The italicized bit is key. As the Priest-Klein selection hypothesis predicts, we can’t learn much about the merits of parties’ pre-suit behavior by looking at outputs from the litigation process. Maybe the National Enquirer is much less reliable than other papers: it gets more demands for retractions, pays out more cash to keep individuals from filing lawsuits, and settles earlier in the life of litigation to avoid verdicts. Or maybe it is much more reliable. Nothing about the rate that a litigant wins in court tells you a thing about that party’s merits – it doesn’t even tell you anything meaningful about the law firm’s acuity. After all, when I used to work at Cravath, I observed that we lost much more often than we won in Court, but the cases that were publicly exposed were the exceptional runts of the litter. [That said, I think that exceptional win or loss streaks have meaning, a topic I’ll likely return to in a later post, to talk about one attorney I know who has won all fifty civil jury cases he’s tried over a long career.]

Still, just for fun, I checked in the WL PLEADINGS database, which contains several million complaints and trial pleadings from both state and federal court over (around) the last eight years, and ran the following searches, looking only at filed complaints:

enq.jpeg1. “national enquirer” & libel defamation “false light” : 17 results.

2. “news corporation” & libel defam! slander “false light”: 19 results

3. “Philadelphia inquirer” & libel defamation “false light” : 29 results.

4. “boston globe” & libel defam! slander “false light”: 45 results

5. “new york post” & libel defam! slander “false light”: 54 results

6. “new york times” & libel defam! slander “false light”: 212 results

What does this tell you? Maybe that that the Times is the most reliable paper of the bunch, because it is willing to stand up for stories than other papers, at least to the extent that it forces plaintiffs to sue, while other papers prefer to settle at the first whiff of trouble. Or maybe the Times is the least reliable paper. The public data don’t exclude either hypothesis. Nor is the fact that the Enquirer is the middle of the fact particularly informative. The Priest-Klein hypothesis sure is a buzzkill.