Category: First Amendment

2

The ACLU’s “Declaration of First Amendment Rights and Grievances”

ACLU.jpgLast week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States

government:

• Ignores its representative mandate by governing in the shadows.

• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.

• Secretly uses private parties to spy and seeks immunity to cover their illegalities.

• Silences dissent.

• Prevents citizens from petitioning their elected offi cials.

• Profiles individuals and denies freedom of movement based on association.

• Falsifies information to deny liberty.

• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.

• Prevents soldiers from communicating with their families and prosecutes their lawful speech.

• Silences whistle blowers.

• Censors the press, broadcast media, and Internet based on content.

• Prosecutes the press for revealing illegal programs.

• Obstructs oversight by elected officials.

• To preserve secrecy, places secret holds on bipartisan open government legislation.

• Funds religious programs.

• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.

Cell Phone Gag Rule

gag.jpgThere is big news on the net neutrality front today: Verizon Wireless has decided to block one group’s political speech from its text-message program:

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:

With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.

This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless’s new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.

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1

Freedom to Teach?

academe.jpgThe American Association of University Professors recently issued a white paper on academic freedom in the classroom. The report is a statement of principles by its Committee A on Academic Freedom and Tenure, which includes law professors Matthew Finkin (Illinois) and Robert Post (Yale), in response to a series of calls (including legislative proposals) for “balance” and neutrality of viewpoint in the classroom:

[C]ontemporary critics of higher education argue that instructors must refrain from stating strong opinions, for doing so would both lack balance and constitute indoctrination; that instructors must not advance propositions germane to a subject if some students with deeply held religious or political beliefs might be offended, for

doing so would create a hostile learning environment;and that instructors must abjure allusions to persons or

events that advance discussion but that some students might fail to perceive to be clearly connected to a course

description, for doing so would inject irrelevant material into the classroom. Such restrictions would excise “freedom

in the classroom” from the 1940 Statement; they would conduce not to learning but to intellectual sterility.

The response of the AAUP can be summed up in their own words as follows:

Close analysis of recent charges of classroom abuse demonstrates that these criticisms

do not seek to vindicate professional standards, because they proceed on premises that are inconsistent with

the mission and practice of higher education. Calls for the regulation of higher education are

almost invariably appeals to the coercive power of the state. In recent attempts to pass legislation to monitor

and constrain faculty in the classroom lies a deep menace, which the architects of the American concept

of academic freedom properly conceived as a potential “tyranny of public opinion.” American universities

have been subject to this tyranny in the past. Walter Gellhorn observed in 1952 that the drive to root out

communists was based on the assumption that “they will abuse their academic privileges by seeking to

indoctrinate students.” Gellhorn noted that when the New York legislature declared in 1949 that communists

ought not be permitted to teach because they disseminate propaganda, the legislature added that the

propaganda “was frequently ‘sufficiently subtle to escape detection in the classroom.’” Modern critics of the university seek to impose on university classrooms mandatory and ill-conceived

standards of “balance,” “diversity,” and “respect.” We ought to learn from history that the vitality of

institutions of higher learning has been damaged far more by efforts to correct abuses of freedom than by

those alleged abuses. We ought to learn from history that education cannot possibly thrive in an

atmosphere of state-encouraged suspicion and surveillance.

The report (which is available in the latest issue of Academe) makes fascinating reading for anyone interested in ideas of academic freedom in the classroom and teaching more generally. In my free speech and privacy classes at Wash. U., we inevitably encounter controversial issues, both about the jurisprudence and the political struggles that guide it, including terrorism, obscenity, criticism of the government, and older issues that once convulsed the nation like Vietnam and the Red Scares. I rarely take stands (at least intentionally) on these questions, but mostly because I believe that the nature of the subject demands a certain agnosticism from me given the commitments to the free exchange of ideas that is at issue in the jurisprudence. In this regard, recognizing my own ability as instructor to affect the marketplace of ideas in my classroom, I take the invitation that Tim has just given to the Senate. Sometimes I will take positions (whether I agree with them or not) in order to advance the discussion, but I try not to get too ideological, even though I have strong personal and scholarly views that are inevitable given the amount of time I spend thinking about questions of free speech and privacy in a democratic society.

But I do think it’s both inevitable and appropriate that faculty will bring their opinions as well as their knowledge into the classroom (even with the big assumption that we can separate the two). Scholars (especially those in the humanities and law schools) spend much of each day thinking and writing and developing normative or interpretive arguments. These arguments are put before the public in their writing and in the media, and there is no reason that they should not be presented to their students. Indeed, to do otherwise would be to deprive the students of the very thing they are paying a small fortune to receive – to be exposed to intelligent people with (hopefully) original thoughts about important topics. Of course, faculty must be careful not to present their ideas as truth – if they are making an argument, they must provide sufficient opportunities to be disagreed with (especially in law schools, where this exchange can serve valuable goals at the heart of the pedagogical project). Faculty may cross the line here, but I agree with the AAUP report that when this happens, internal mechanisms of professional discipline, not external regulation, is the appropriate response.

In any event, the report is a thoughtful and thought-provoking take on some critical and timely issues, and even if you don’t agree with me (or them), it’s well worth reading and thinking about.

24

War and the Politics of Free Speech

A few days ago, the United States Senate handily (75-25) passed a “sense of the Senate” resolution condemning a political advertisement placed in the New York Times by the anti-war group MoveOn.org. Many conservatives, most prominently presidential candidate Rudy Giuliani, complained both about the substance of the ad and the process by which it came to be in the Times — the allegedly “discounted” price and the timing (the ad ran the day of General Petraeus’s congressional testimony). The ad referred to General Patraeus as “General Betray Us” and accused him of “cooking the books” for the White House to justify the much-debated surge in Iraq. After reviewing the General’s credentials, the Senate resolution calls on the Senate to “strongly condemn all personal attacks” against General Petraeus and other members of the armed services and to “specifically repudiate the unwarranted personal attack on General Petraeus by the liberal activist group MoveOn.org.” (A propsoal sponsored by Senator Barbara Boxer (D-California), which failed (51-46), more broadly called on the Senate “to strongly condemn all attacks on the honor, integrity and patriotism” of those in the armed services.)

As Sandy Levinson has observed, the ad was extraordinarily “dumb politics.” It allowed supporters of the war in Iraq to once again shift the debate from events on the ground in that country to partisan domestic politics in this one. As I noted in an earlier post, there are substantial dangers attending the cozy relationship between many prominent Democrats and anti-war advocacy groups like MoveOn.org. In the face of what was indeed a sharp attack on General Petraeus, Republicans once again rallied behind the “support the troops” mantra. President Bush himself took the unusual step of condemning the ad, suggesting that members of the Democratic Party were “more afraid of irritating [MoveOn.org] than they are of irriating the United States military.” Under the circumstances, many Democrats apparently felt they had no choice but to publicly denounce the ad and vote for the resolution.

It is a pity Senators of both parties did not reject and renounce this politicization of free speech. Although the Senate’s finger-wagging resolution carries no penalties (and thus cannot be challenged as a violation of the First Amendment), it is shamefully antithetical to the spirit and values of the First Amendment. In New York Times v. Sullivan, the Supreme Court emphasized our “profound national commitment to the principle that debate on public issues should be uninhibted, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In times of war, when lives are literally at stake, one can reasonably expect less inhibition on the part of speakers. Of course, senators possess individual expressive rights. But it is inappropriate for the United States Senate to institutionally condemn expression regarding matters of public concern, or to single out a political advocacy group for special rebuke. In our marketplace of ideas, the people ought to decide for themselves whether the criticism of General Petraeus constituted an unwarranted “personal attack” or a warranted criticism. The Senate’s condemnation distorts the marketplace and threatens to chill others from presenting sharp attacks against favored subjects. Although it focuses on MoveOn.org and its advertisement, the Senate resolution seems to suggest that military leaders and members of the armed services are now beyond “sharp” and “caustic” criticism. Is the president, as Commander-in-Chief of the armed forces, entitled to the same protection from “personal attacks”? The business of the Senate is to debate and enact laws for the benefit of the country. Surely that distinguished body has more pressing business than the politicization of expression.

17

Saggy Pants and the First Amendment

PANTS2.jpgThe city of Atlanta, as the Chicago Tribune reported recently, looks likely to join a growing number of cities that have enacted laws regulating saggy trousers as constituting indecent exposure. These laws strike out at the fashion of men wearing their pants off their hips exposing their boxers or women wearing their jeans low so as to expose thongs. Unlike school dress codes regulating hip-hop clothing that have been promulgated in cities like Indianapolis, these laws apply beyond the school context to regulate dress in public.

It’s an interesting question whether these laws would violate the First Amendment as currently understood. On the one hand, we know from cases like Cohen v. California that the government cannot regulate clothing’s expressive qualities, even when such expression contains profanity. On the other hand, notwithstanding the Cohen line of cases, indecent exposure laws requiring people to wear clothes are probably constitutional under some kind of residual (and weak) power to require decency in public. Saggy pants laws form a kind of hybrid case, regulating in terms of indecent exposure on the theory that undergarments cannot be displayed in public, but seem to be directed at the expression of identity through clothing. The harms that these laws seek to remedy are those of personal offense and outrage – something like “I am offended by the dress of that young man over there.” Laws that try to protect hurt feelings from being upset (particularly in public) tend to do very poorly when subjected to First Amendment analysis. Moreover, because saggy pants laws single out a particular fashion for regulation, I would think that they raise serious constitutional problems under the First Amendment. That said, given the murky government power to enact indecent exposure laws, I’d be hesitant to call all saggy pants laws categorically unconstitutional under current doctrine without the text of an actual ordinance and/or facts upon which to apply it.

But putting First Amendment doctrine to one side, I still think saggy pants laws would be a terrible idea. Our clothes can be a form of personal expression – they are one of the most important ways we project our selves and our identities to the world. The government may decide (and be entitled to) regulate the dress of children in school in pursuit of educational objectives generally, but outside that narrow context, it is up to children (and their parents) to decide how they should dress. Indecent fashion statements, like other forms of expression, are not the kinds of things that the government should be wasting its time, energy, and scarce law enforcement resources on. I would imagine that the Atlanta police probably have more pressing problems to deal with than young people (or maybe even the elderly) showing too much thong. There’s also a significant racial component to this issue, as the fashions being scrutinized are inspired and associated with Black popular culture. This is an additional consideration of constitutional magnitude counseling a light regulatory hand here.

I think that in the long run, we’ll look back on this question with the same incredulity that we now regard the fuss over Elvis Presley’s swiveling hips on Ed Sullivan or the long-haired men and short-haired women of the 1960s. Politics has fashions no less than clothing, and I hope this fashion for these kinds of laws will soon go the way of New Wave hairdos and other regrettable fashion mistakes.

9

Student Tasered At Kerry Forum

taser2.jpg.bmpThis video, which has received quite a bit of attention, shows a journalism student at the University of Florida being restrained and ultimately tasered by campus police officers at an event at which Senator John Kerry was speaking. The video appears to present a nearly complete version of the events in question (although there were apparently additional cameras, which may reveal additional evidence). As related here, the video’s sequence of events begins with the student asking Senator Kerry (out of frame) whether he was a member of Skull and Bones at Yale University. Prior to that, the student had asked why Senator Kerry had conceded the 2004 presidential election and had not supported impeaching President Bush. As he finishes the Skull and Bones question, the microphone is apparently cut off. The events that follow speak for themselves.

UPDATE: Here is a more complete video of the events.

Is this student a heckler attempting to “take down” a speaker, as discussed in my previous post? Or does the exchange with Senator Kerry represent an appropriate, if aggressive, questioning of a public official? In either case, did the authorities react appropriately to the student’s words and actions?

[The student was released from jail on his own recognizance. He has been charged with resisting an officer and disturbing the peace. The university has asked state investigators to review the incident.]

5

“Facebook in the Flesh”

The Web has often and, I think, justifiably been touted as a democratizing and empowering communications medium. But as with any communications phenomenon of this magnitude, there are bound to be some negative effects. I am not talking here about the threats to children or the ubiquity of online pornography. In more basic social and expressive terms, the manner in which people associate and communicate “online” may be producing certain deleterious effects with regard to such activities “offline.” Although there are likely others, I want to discuss two such potential negative effects.

The first possible negative effect relates to basic interpersonal skills and social networking. As some educators (the author included) are doubtless aware, students have a tendency to resort to email rather than make appointments for face-to-face meetings with instructors. Disembodied or “virtual” communication can of course be quite beneficial in terms of things like convenience and efficiency. But for students, emailing, texting, and participating in social networking sites like MySpace and Facebook are not primarily related to convenience and efficiency; they are now the principal means of connecting to and communicating with others. What effect are these modes of online communication having on real space encounters and interactions? Consider a recent orientation seminar offered at New York University, entitled “Facebook in the Flesh.” As reported in the September 17 edition of The New Yorker, the seminar was apparently designed to teach students how to socialize and build social networks in person — social processes that a seminar brochure recognized could be very “intimidating” to students. At one point, participants were paired off and given instructions on how to do such elementary things as ask questions and discover commonalities and connections. Thus, one possible negative effect from online modes of expression is the difficulty, and in some cases even inability, to effectively interact with others located in the same physical space. This negative effect may have serious social and economic, as well as expressive, ramifications. (According to a recent survey, time spent at work has not decreased despite the availability of mobile technologies.)

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The Unbeatable Big Lie

It’s a commonplace of First Amendment theory that more speech is better–that the cure for troubling or irresponsible expression is simply more expression. Collins and Skover’s The Death of Discourse questioned that idea years ago, and seems to be getting ever more empirical confirmation. As Shankar Vedantam reports in the WaPo,

Contrary to the conventional notion that people absorb information in a deliberate manner, . . . studies show that the brain uses subconscious “rules of thumb” that can bias it into thinking that false information is true. Clever manipulators can take advantage of this tendency.

The experiments also highlight the difference between asking people whether they still believe a falsehood immediately after giving them the correct information, and asking them a few days later. Long-term memories matter most in public health campaigns or political ones, and they are the most susceptible to the bias of thinking that well-recalled false information is true. . . . .[O]nce an idea has been implanted in people’s minds, it can be difficult to dislodge. Denials inherently require repeating the bad information, which may be one reason they can paradoxically reinforce it. (emphasis added).

There’s a great political science literature on the topic as well, describing how many individuals’ perceptions are locked into “schemas” that lead them to discount information that contradicts their worldview and credit that which reinforces it.

Is there any take-away lesson from this depressing portrait of human incorrigibility? Perhaps the following: if you or your side is the subject of a vicious attack, don’t try to rebut it at length. Just try to change the subject.

For example, it appears naive to think of a political campaign as a public debate attempting to reach the truth about difficult issues. Campaigning is a struggle for salience, for putting one’s own issues at the “top of concerns” that voters consider as they choose a candidate. In such struggles for saliency, each candidate essentially tries to convince the electorate that his or her favored set of issues are most important for government to address. Watch for this dynamic in 2008–even when they are challenged on specific issues in debates, candidates will try to change the subject rather than educate the public on some perceived weak point.

10

Federal Judge Strikes Down Patriot Act NSL Provision

Earlier today, a federal judge struck down a part of the Patriot Act allowing the service of National Security Letters without judicial oversight. An AP report on the decision can be found here. NSLs, as Dan has blogged about here and here, are a statutory authorization to the FBI that allow it to secretly obtain records about people from businesses and instututions with which they have a relationship. NSLs don’t require judicial oversight and some requirement of individualized suspicion or probably cause, but merely some “relevance” to an ongoing national security investigation. This relevance determination is made internally by the FBI and does not have to be put before a neutral judge or other official.

The opinion is complicated (and long at 106 pages), but I think any assertion that NSLs need to be regulated by a neutral decisionmaker is a step in the right direction. NSLs, as the district court recognizes, threaten First Amendment values. As I’ve argued in a recent article, NSLs threaten a variety of important interests, but most especially threaten the intellectual privacy of ordinary people. NSLs can be used to request a wide variety of information, including historical and transactional information relating to telephone calls and e-mails. As intellectual activity becomes increasingly mediated by the use of computers and the Internet (i.e., what you are doing right now in reading this post), the records created from such activity remain secreted by ISPs, websites like this one, and on our hard drives. The creation of these records provide a potential gold mine to government and others who are interested in learning about the ways in which we engage with and develop our thoughts and ideas. Both popular literature and legal theory have long documented the chilling effect on expression that results from the surveillance of our intellectual activities (including reading, thinking, and speaking). NSLs are one of the main tools by which government can obtain information about our intellectual activities, and thus the interposition of some meaningful legal constraint upon the power of the government to do this is essential. This is not to minimize the government interest in deterring and preventing threats to our national security, but merely to note that when the government engages in intellectual surveillance, there is an equally important interest on the other side — our freedom of thought and our ability to generate new and potentially controversial ideas.

This important case is certain to be appealed by the government, and it will be interesting to see what happens.

0

Why There’s No First Amendment Right to Sell Personal Data

There are a number of really interesting cases pending in the First Circuit and its lower federal courts that raise questions of confidentiality and free speech in the context of the commercial trade in prescription drug information. In New Hampshire, Maine, and Vermont, data mining companies have raised First Amendment challenges to state laws that restrict the ability of pharmacists to sell information about which doctors prescribed which drugs. More information about these cases from the AP can be found here. I’ve written about this phenomenon here, arguing that there are sound doctrinal, jurisprudential, and policy reasons to reject any idea that regulation of the commercial data trade raises any serious First Amendment problems.

These cases all involve laws passed by states concerned about the sale of prescription information to data mining companies, who buy information about which doctors prescribe which drugs from pharmacies and then massage the data for use in marketing and other industry purposes. The laws vary in their particulars, but basically forbid or regulate the ability of pharmacies to sell the information. In April, a federal district court in the New Hampshire case struck down New Hampshire’s law under the Central Hudson test as violating the companies’ free speech rights. The First Amendment argument can be boiled down as follows: because the laws stop pharmacies from telling other people about their customers, they violate the pharmacy companies’ free speech rights and are therefore unconstitutional.

I think this is a silly argument, as I explain after the jump.

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