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Category: First Amendment

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Beware the Teenie Weenie: Social Norms and Expressive Culture

teenieweenie.jpgI’ve been doing a lot of reading and thinking about intellectual freedom lately, as part of a project on the overlap between intellectual privacy rules and First Amendment values. I’ve also come across some pretty weird stuff, like this story from the German media about a children’s book deal that fell through. A famous German children’s book author was trying to get a book deal to publish a translated version of her illustrated children’s book in the US. Unfortunately, the deal didn’t happen after an irreconcilable disagreement arose over a picture appearing in a museum scene in the book. As the article puts it rather cheekily:

What could possibly have got the suits at [the publisher] so hot under the overly starched collar? A painting depicting a gratuitous Roman orgy being viewed by wide-eyed 5-year olds? A massive bronze phallus gawped at by an awestruck group of pre-teens? Hardly. Apart from a tasteful nude reclining in a slightly blurred watercolor in the background, the main offending artifact was a tiny male statue and its microscopic penis.

Apparently, the offending image was less than half a millimeter in size, but the publisher insisted on its removal for fear of a backlash from offended parents.

We could dismiss this as a fairly silly story about the lunacy of the publishing industry, but I think there is a serious issue here. This is not an issue of censorship, because the government is not involved in making the book unavailable. But one of the problems with the way we tend to think about speech, is that we are fixated on the model of legislative rules that get remedied (or not) by judges. If we’re really interested in promoting an expressive culture, we need to look beyond this judicial anti-censorship model.

The teenie weenie case points up the critical role of social norms in helping to define the contours of our expressive culture. Theories of free speech focus a great deal on legal rules even though most people’s decision to speak or not speak on questions is principally mediated by the concern of how others (employers, friends, strangers, book publishers) will act towards us depending upon what we say. The norms of the book publisher in this case meant that this book was not made available for the US market.

What’s the harm with that? Well, the ability to think for ourselves requires access to a wide variety of materials. When books aren’t published because they are offensive, we are deprived of what they offer. This case involves just one book, but the aggregated effect of small decisions like this really determines the intellectual space that our minds inhabit. The social norms which this decision seems to reflect would (if strong enough) push certain notions of art out of children’s literature, and could have an effect on how children come to see the world, the nature of art, and the human body. Publishers of books are in business to make money, but they should also realize (as reporters and librarians frequently do) that they occupy a social institution that has real effects on our expressive culture. Our expressive culture depends on publishers fulfilling their professional role as guardians of free speech as well as profit-maximizers. Wimping out because of possibly imaginary fears of angry parents does us all a disservice, at least if we care more about an open-minded culture than protecting people (even little ones) from the teenie weenie.

From First Amendment Absolutism to Financial Meltdown?

There is a very interesting post by William Birdthistle on potential rating agency responsibility for the subprime mortgage meltdown contagion. As the WSJ reported,

In 2000, Standard & Poor’s made a decision about an arcane corner of the mortgage market. It said a type of mortgage that involves a “piggyback,” where borrowers simultaneously take out a second loan for the down payment, was no more likely to default than a standard mortgage. While its pronouncement went unnoticed outside the mortgage world, piggybacks soon were part of a movement that transformed America’s home-loan industry: a boom in “subprime” mortgages taken out by buyers with weak credit.

Here come the regulators. Some economists are quick to criticize the ratings agencies:

[T]the real-estate bubble of recent years, like the stock bubble of the late 1990s, both caused and was fed by widespread malfeasance. Rating agencies like Moody’s Investors Service, which get paid a lot of money for rating mortgage-backed securities, seem to have played a similar role to that played by complaisant accountants in the corporate scandals of a few years ago. In the ’90s, accountants certified dubious earning statements; in this decade, rating agencies declared dubious mortgage-backed securities to be highest-quality, AAA assets.

But there’s a big difference between accountants and raters: the latter get first amendment protection for their assessments. Is this a wise extension of the first amendment? It’s a difficult question, but I think the new scandals will lead to increasing calls for regulation, if not liability, of the ratings agencies.

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Lilla on “The Great Separation”

Mark Lilla made an impression on me when he made the following point about intellectuals’ discomfort with “ultimate questions:”

It is not that anyone thinks that incivility, promiscuity, drug use, and irresponsibility are good things. But we have become embarrassed to criticize them unless we can couch our objections in the legalist terms of rights, the therapeutic language of self-realization, or the economic jargon of efficiency.

Lilla’s forthcoming book “The Stillborn God: Religion, Politics and the Modern West” is excerpted in the NYT Mag this week. He traces the intellectual history of western conceptions of tolerance and freedom of conscience, exploring the historical contingency of commitments most of us take as second nature.

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Sensible Copyright Policy vs. The First & Fifth Amendment?

I’m at the IPSC at Depaul this week. I’m really enjoying the papers so far. I’ve got a few comments on Lydia Loren’s Aligning Incentives with Reality: Using Motivation for Creation to Shape the Scope of Copyright Protection, which I heard this morning.

Loren argues that there are many types of works that are now getting copyright protection that don’t necessarily need to be incentivized by it. For example, she doubts whether the Vatican needs copyright protection to be motivated to produce encyclicals, or emailers need such protection to induce their communications. She proposes “less robust, or ‘thin,’ copyright protection for those types of works that do not require the incentive of the copyright to be created and distributed.” She worries that unneeded protection may lead to overproduction of certain works–a concern I share. But her presentation led me to a few questions.

First, do we know that there is a direct relationship between copyrightability of a category of works and the quantity, dissemination, and quality of that category of works? Might we believe that a chain reaction of propertization actually impedes production? If we do, we might want more protection of overproduced works.

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A Federal Journalist Shield Law

newspaper1b.jpgA bill in the U.S. House of Representatives, the Free Flow of Information Act, endeavors to create a federal privilege for journalists — a shield from being forced to identify anonymous sources. According to a Washington Post editorial in support of the bill:

Unfortunately, recent history has shown that some federal prosecutors and civil litigants do not value this flow of information as much as those of us in the media and the public do. In recent years, more than 40 reporters have been hauled into federal court and questioned about their sources, notes and reports in civil and criminal cases. While 49 states and the District of Columbia have shield laws or court decisions that protect the relationship between reporters and their sources, there is no statutory protection at the federal level.

A House bill sponsored by Rep. Rick Boucher (D-Va.) and Rep. Mike Pence (R-Ind.) would change that. The legislation would not offer an absolute privilege of non-disclosure to journalists. We don’t advocate such a shield — nor does The Washington Post Co., which has joined other media companies to lobby Congress on behalf of the bill, due to be voted on today by the House Judiciary Committee.

Instead, H.R. 2102 would compel the disclosure of a confidential source’s identity in federal court under three discrete circumstances: “to prevent an act of terrorism against the United States or other significant specified harm to national security”; “to prevent imminent death or significant bodily harm”; and to identify a person who may have unlawfully revealed a business trade secret or disclosed private health information or “nonpublic personal information,” such as financial information.

Overall, a federal court must determine “that the public interest in compelling disclosure outweighs the public interest in gathering or disseminating news or information.” This strikes us as a reasonable balance.

My views on the bill are mixed. It makes some reasonable exceptions, including allowing the identification of sources who reveal private information about people. It would also not be restricted only to the mainstream media — it would also protect bloggers and others who engage in journalism. But it does have some flaws which I will discuss later.

My friend and law school classmate, Charley Kimmett, who is representing Steven Hatfill, pointed me to this post by Mark Grannis (a partner at his firm), critiquing the Free Flow of Information Act:

Advocates for the media say the legislation is necessary to protect whistleblowers, like “Deep Throat” of Watergate fame. But the subpoenas that have prompted media hand-wringing don’t have anything to do with whistleblowers. On the contrary, the cases in which reporters are subpoenaed tend to be cases in which the reporters allow themselves to be used by government officials who disclose sensitive information about private citizens. Some such disclosures are literally criminal, and they can ruin innocent lives.

We know the names of the victims, falsely accused of atrocious crimes by officials who could call press conferences if they were willing to be accountable for their statements. But because the leakers are government officials, the government shows little interest in exposing them. To get any redress, the victim must act as his own prosecutor, and he needs testimony from the reporters who so willingly published the leaks they received. Unless those reporters are required to testify (just like other citizens who witness other crimes), there will rarely be any justice for the victims.

These are thoughtful and valid points. Leaks by government officials are often self-serving, damaging to individuals, and not in the public interest. This was the case, in my opinion, with the Valerie Plame leak.

Grannis goes on to argue:

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Sex, Laws, and Videotape (Genarlow WIlson Edition)

Genarlow Wilson, you may recall, is the young man sentenced to a 10-year mandatory sentence in Georgia for occurrences at a wild hotel room New Year’s Eve party with other high schoolers when he was 17 years old. He was acquitted of raping a 17-year-old girl who said that she was intoxicated and that her intercourse with Wilson was not consensual. He was convicted, however, of engaging in oral sex with a 15-year-old girl, even though all agree that encounter was consensual, because she was below the 16-year-old age of consent. (Moreover, the fact that they had oral sex in particular triggered a much more severe penalty than would have applied to intercourse, a quirk in Georgia law that the Legislature has since changed). The trial judge recently ordered Wilson released, calling his sentence “a grave miscarriage of justice,” but that order has since been appealed. Meanwhile the case has become a cause celebre, drawing comment from Jimmy Carter to Barrack Obama and, inevitably, spawning a web site and legal defense fund.

Clearly, there are dozens of possible legal blog posts embedded in this story: gender, race, sentencing, statutory rape and strict-liability crimes, the judge’s proper role in such circumstances. But I am going to focus on an information law angle — specifically, does the law require the release of a videotape at the center of the legal case, as the Georgia D.A. says, or forbid it, as the U.S. Attorney says?

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What Larry Doesn’t Get

Legal legend Larry Lessig has recently decided to refocus his energies from intellectual property activism to a broader fight against the corruption of the political process. As he explained to readers of the Lessig Blog:

In the US, listening to money is the only way to secure reelection. And so an economy of influence bends public policy away from sense, always to dollars. . . . .I’m convinced we will not solve the IP related issues until these “corruption” related issues are resolved. So I hope at least some of you will follow [me] to this new set of questions.

While I agree with many of Lessig’s policy goals in the IP arena, I am troubled by this turn from substance to process. To put it bluntly: I doubt anyone can squeeze money out of the political process (or even substantially limit its role) given the Supreme Court we have and our undemocratic constitution. So what’s the answer for those who feel certain laws are unjust, inefficient, or corrupted?

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ACLU v. NSA

NSA3.jpgIn ACLU v. NSA, –F.3d — (6th Cir. 2007), a panel from the 6th Circuit held that the ACLU and other plaintiffs lacked standing to challenge the Bush Administration’s warrantless wiretapping program conducted by the National Security Agency (NSA). NYT coverage is here. According to the sketchy details known about the program, the court noted, “it has been publicly acknowledged that the TSP [the Terrorist Surveillance Program, as it has now been named by the Administration] includes the interception (i.e., wiretapping), without warrants, of telephone and email communications, where one party to the communication is located outside the United States and the NSA has ‘a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.”

The plaintiffs are “journalists, academics, and lawyers who regularly communicate with individuals located overseas, who the plaintiffs believe are the types of people the NSA suspects of being al Qaeda terrorists, affiliates, or supporters, and are therefore likely to be monitored under the TSP.” The plaintiffs claimed that the NSA wiretapping violated, among other things, the First Amendment, Fourth Amendment, and the Foreign Intelligence Surveillance Act (FISA).

According to Judge Batchelder’s opinion, the plaintiffs could not establish standing because they could not directly prove that they were subject to surveillance. One of the problems with the court’s reasoning is that there is little way for the plaintiffs to find out more specific information about whether particular plaintiffs’ phone calls have been wiretapped. As a result, the government can violate the plaintiffs’ First and Fourth Amendment rights with impunity if they cannot ever learn enough to gain standing to challenge the surveillance.

In a recent article, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007), I examined the nature of the injury to First Amendment activities from government surveillance. I wrote:

Determining the existence of a chilling effect is complicated by the difficulty of defining and identifying deterrence. It is hard to measure the deterrence caused by a chilling effect because it is impossible to determine with certainty what people would have said or done in the absence of the government activity. Often, the primary evidence will be a person’s own assertions that she was chilled, but merely accepting such assertions at face value would allow anyone claiming a chilling effect to establish one. At the same time, demanding empirical evidence of deterrence is impractical because it will often be impossible to produce.

In other words, the chilling effect doctrine is a mess. By requiring too much specific proof of deterrence, courts can effectively make it impossible for any plaintiff to establish a chilling effect. In my article, I attempted to use First Amendment doctrines to help illuminate a more meaningful approach toward analyzing the existence of a chilling effect:

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The Steven Hatfill Case, Law Enforcement Leaks, and Journalist Privilege

freespeech-1a.jpgIt seems to happen way too often. Despite policies and laws that forbid law enforcement officials from mentioning the names of suspects who are not yet formally accused or even arrested, leaks invariably seem to happen. The leaks can wreak havoc in the lives of those whose names are mentioned. Many of these people wind up never being charged with any crime, yet their reputations are destroyed by the leaks and resulting media attention.

One example of this is Andrew Speaker, the TB patient whose name was apparently leaked by a law enforcement official and a “medical official” (presumably a medical official of the government). These officials probably committed tortious conduct — there is a good argument that the leaks might be violations of the breach of confidentiality tort. There is also a good argument that the leaks violated Speaker’s constitutional right to information privacy (for a discussion of this right, see my post here) and the Privacy Act (if they were federal officials).

Another example is Steven Hatfill, the so-called “person of interest” that government officials identified as involved in the Anthrax attacks. Hatfill’s reputation was annihilated when these leaks took place. He was never charged with any crime. Hatfill is now suing the federal government for the leaks. But one of the difficulties in suing is identifying the government officials who made the leaks. Hatfill is seeking the names of the officials from several journalists, who are claiming that the names are protected by journalist privilege. From the Washington Post:

Hatfill, a physician and bioterrorism expert, has not been charged in the attacks, in which five people were killed and 17 were sickened by anthrax bacteria mailed in envelopes. In a lawsuit, he accuses the Justice Department of violating the federal Privacy Act by giving the news media information about the FBI’s investigation of him.

To help prove their case, in which Hatfill is seeking an unspecified monetary award, his attorneys want several reporters, including Allan Lengel of The Washington Post, to reveal the identities of law enforcement officials who were cited anonymously in stories about the investigation. The journalists contend that the First Amendment and a federal common-law privilege shield them from having to disclose the names. . . .

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Piercing the Veil of Anonymous Bloggers

Lives of Others Picture.jpgI’m delighted to be guest-blogging at Concurring Opinions, and thanks to the crew here for the invitation! I regularly blog to a much smaller audience at Info/Law (and will cross-post most of these guest appearances over there), but it will be fun to discuss a somewhat wider variety of topics here. That said, it turns out my first entry is at the heart of information regulation.

Brian Leiter notes this news story about a South Korean law which has just taken effect, requiring large web sites to obtain real names and the equivalent of Social Security numbers from everyone who posts content. He compares this approach to that taken in the US where, he says, “there exist only private remedies against Internet sociopaths and misogynistic freaks who hide behind anonymity. I suppose time will tell which is the better approach.”

Personally, I don’t need to wait for the passage of time to criticize the South Korean initiative (which has been under discussion there for some four years). Obviously, this law arises in a cultural context very different from our own, which I believe explains a good deal of the difference in approach. And it may not even be as different as it first appears. But there are principled reasons, distinct from cultural ones, to oppose a “show me your papers” internet.

First and foremost, it should be no surprise that China reportedly is looking at a similar model — as a technique to curb dissent, not just cyberbullying. (If you have seen the film The Lives of Others, pictured above — and you really should see it — you will remember how it portrayed East Germany registering typewriters.) The ability to remain anonymous protects unpopular speakers who might otherwise be unable to spread their ideas. In some countries, anonymous bloggers risk life and limb. Despite massive internet filtering by governments, blogging still provides dissidents a powerful tool. Even in more democratic countries, whistleblowers, political outsiders, and unhappy employees use anonymous blogging to avoid retribution. An outright ban on anonymity will curtail such often-useful speech.

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