Category: First Amendment


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.


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.


Expunged? What Happens When A Blogger Decides To Remove Posts?

Kneaded_eraser.jpgFollowers of Boing Boing and Web flaps may know about a decision by one of BB’s writers, Xeni Jardin. Apparently, Ms. Jardin had previously posted material about Violet Blue’s (another blogger/Web writer/journalist) work. Then, at some point, Ms. Jardin decided that she did not wish to have that material on BB anymore. So she removed the posts (by the way the removal occurred more than a year ago but has only recently gained attention). And there is the issue. According to the New York Times, BB readers were most upset. Some saw the act as hypocritical. Ms. Blue found the practice “horrifying.” The practice has been given the name “unpublished” as in “being unpublished.” (This term is a misnomer as is discussed later.)

Possibly the most important factor is that BB patrons saw the act as breaking an unspoken understanding and failing to communicate with them. Some including Ms. Blue argue that the practice violates some norms of the Web. Maybe it does. But that alleged norm is probably not so real. And it seems difficult to really claim that one wants BB or others to detail every move or thought they make. Still the sense of outrage is more than palpable. For the law folks, the event raises questions about norms and perhaps who owns the posts.

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Public Service — Cool Job Opening at Creative Commons

ccl-title-d.JPG Looking to work at a place with smart people who encourage you to use your legal skills to support and really grow a long-term project? Well, if you love education and have a law degree, your time may be now. Creative Commons, one of the coolest non-profits out there, has project called ccLearn. ccLearn has a mission:

ccLearn is a division of Creative Commons which is dedicated to realizing the full potential of the Internet to support open learning and open educational resources (OER). Our mission is to minimize barriers to sharing and reuse of educational materials — legal barriers, technical barriers, and social barriers.

They are looking for someone to be ccLearn Counsel and Assistant Director.

NOW there have been several posts about how to think about a law job. So before you flood the contact below, I urge you to read the job description, write a targeted letter, and polish that resume to show how you fit. As with many of these jobs, the candidate may not have all the desired experience. But often you can show that you excel in a couple core areas and have aptitude in others with some chance of getting the job. Also make sure you know as much as you cna about CC–its history, mission, and how you think ccLearn fits CC in general. Someone who says this job looks cool but has no idea about the work and overall nature of the place will not be likely to get the job.

Here is how to apply:

“If interested, please submit:

Cover Letter explaining your relevant interest in ccLearn and in the position.


Three References; please include email and phone number.

Applications and questions can be sent to:

Jennifer Yip

Operations Manager

jennifer [at]

fax: 415.278.9419″

NOTE; I am not the contact in any way, shape, or form. This post is truly a public service announcement.

Hat tip: Mike Carroll (If you like law, technology, music, and copyright, read Mike’s blog. It is excellent, and Mike has always been someone worth listening to and engaging with.)


The New TSA Identification Requirement

passport2.jpgThe TSA, in its never-ending quest to inconvenience us without keeping us safe, has once again changed its rules on identification. According to the old rule, if you didn’t provide ID at the airport, you would be subjected to secondary screening. Now, you may be denied the right to fly entirely. According to the TSA:

Beginning Saturday, June 21, 2008 passengers that willfully refuse to provide identification at security checkpoint will be denied access to the secure area of airports. This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity.

This new procedure will not affect passengers that may have misplaced, lost or otherwise do not have ID but are cooperative with officers. Cooperative passengers without ID may be subjected to additional screening protocols, including enhanced physical screening, enhanced carry-on and/or checked baggage screening, interviews with behavior detection or law enforcement officers and other measures.

What this rule basically seems to be doing is trying to prevent people who have a conscientious objection to presenting ID from being able to fly. For example, John Gilmore refused to present his ID and challenged the TSA identification requirement in federal court. He lost in the 9th Circuit, which held that he could have undergone secondary screening or walked away — he wasn’t forced to present his ID.

I’m one who routinely presents my ID to the TSA officials at the airport. I think that the ID requirement is stupid, but I just want to get to my plane and not be hassled. But others, for reasons of conscience or protest, do not want to present their ID at the airport. This new TSA rule strikes me as problematic from a First Amendment standpoint, since it seems to be designed to target those who don’t present ID for expressive reasons. As such, this new TSA requirement might be a form of viewpoint discrimination.

Although the First Amendment doesn’t restrict the TSA from requiring IDs in order to board an airplane, it does restrict using the ID requirement to penalize people who engage in expressive conduct. Because the TSA requirement seems to be targeted to this kind of expressive conduct (hence the exception for lost or stolen IDs), it may run afoul of the First Amendment.

I haven’t fully analyzed this argument, so I’m just throwing it out there. Do you think that there is a First Amendment problem with the new TSA rule?

Hat tip: Bruce Schneier, who writes: “I don’t think any further proof is needed that the ID requirement has nothing to do with security, and everything to do with control.” Indeed, this rule will allow TSA officials who don’t like you to have even greater power. If you lose your ID, you better hope that the TSA officials believe you, take pity on you, and otherwise think you’re being cooperative. It’s entirely up to them!

Wolin and Greenwald on the Media

The recent Scott McLellan book on his time as a wind-up mechanical press secretary has generated a lot of commentary; perhaps the NYT’s sardonic categorization of Washington tell-alls puts it best:

There are several kinds of Washington memoirs: “I Reveal the Honest Truth,” a kiss-up-and-tell designed to settle scores (nod to honesty optional). “I Was There at the Start,” designed to make the author appear to be the linchpin of history. And, most tedious: “I Knew It Was a Terrible Mistake, but I Didn’t Mention It Until I Got a Book Contract.”

Nevertheless, amidst the choreographed effort to discredit the new McLellan as a zombie, it’s useful to step back and think about the press corps we now have. As many have already noted, the McClatchy newspapers managed to report truths about the buildup to war in Iraq long before more popular and established outfits did. Why was this?

Noted political theorist Sheldon Wolin has recently published Democracy Incorporated at Princeton University Press; he suggests the following:

In an earlier time it was common to liken the free circulation of ideas to competition in a free marketplace: the best ideas, like the superior product, would prevail over inferior competitors. In the highly structured marketplace of ideas managed by media conglomerates, however, sellers rule and buyers adapt to what the same media has pronounced to be “mainstream.” Free circulation of ideas has been replaced by their managed circularity. The self-anointed keepers of the First Amendment flame encourage exegesis and reasonable criticism. Critics who do not wish to be considered as “off-the-wall” attract buyers by internalizing co-optation. Accepting the conventions of criticism entails accepting the context created and enforced by the “house” voices. The result is an essentially monochromatic media. In-house commentators identify the problem and its parameters, creating a box that dissenters struggle vainly to elude. The critic who insists on changing the context is dismissed as irrelevant, extremist, “the Left”—or ignored altogether.

But one question that immediately comes to mind in light of Wolin’s critique is whether voters have the background necessary to assimilate the types of commentary he’d like to see. Consider the latest attack on common assumptions about democracy from George Mason, by Rick Shenkman:

[I]n Just How Stupid Are We? [Mason Prof.] Shenkman cuts through the Gordian knot of contemporary politics with a shatteringly simple claim: the problem lies not in the machinations of elite business leaders and policy-makers, but in the gross ignorance and irrationality of millions of ordinary voters. . . . Only 2 out of 5 voters can name the three branches of the federal government. Only 1 in 7 can find Iraq on a map. . . A Washington Post poll in September 2003 found that 70% of Americans believed Saddam Hussein was responsible for 9/11. A majority continued to believe this even after the 9/11 Commission reported that the claim was groundless.

Though I’ve found much to commend in Bryan Caplan‘s and Ilya Somin’s worries about voter competence, I ultimately feel the George Mason revival of Walter Lippmann’s classic complaints about democracy goes too far. There simply is too much self-serving media refusal to acknowledge basic facts–whether irrefutable facets of science or history, or the types of biases that drive media coverage.

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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.

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