Category: First Amendment


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

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

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

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

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

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

Food Fraud & the First Amendment

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

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

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

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

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

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

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

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


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

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

The verdict is now in. From the AP:

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

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

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

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

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

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

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Funerals and Free Speech

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

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

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

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Privacy’s Other Path: Recovering the Law of Confidentiality


Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

Can Antitrust Accommodate Privacy Concerns?

The proposed Google/DoubleClick merger has provoked a complaint from EPIC and concern from many privacy advocates. EPIC claims that Google’s standard M.O. amounts to a “deceptive trade practice:”

Upon arriving at the Google homepage, a Google user is not informed of Google’s data collection practices until he or she clicks through four links. Most users will not reach this page. . . . Google collects user search terms in connection with his or her IP address without adequate notice to the user. Therefore, Google’s representations concerning its data retention practices were, and are, deceptive practices.

One key question raised by the proposed merger is whether privacy concerns like these can be folded into traditional antitrust analysis. Peter Swire argues that they can; he believes that “privacy harms reduce consumer welfare [and] lead to a reduction in the quality of a good or service.” I am broadly sympathetic with Swire’s aims, but I worry that contemporary antitrust doctrine is too etiolated to encompass his concerns.

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The Boy Who Cried “National Security”: The Need for Greater Skepticism About Government Secrecy

redact2.jpgI just blogged about an incident where the 2nd Circuit sought to have Howard Bashman remove an unredacted judicial decision from his site and replace it with a redacted version. Apparently, the redacted version attempted to remove information about a rather dicey interrogation technique the FBI used. According to Tony Mauro of the Legal Times:

Based on a comparison of Bashman’s original posting of the opinion and the redacted version that the 2nd Circuit posted today, the Court acted to keep from view details of the FBI interrogation, in which agents allegedly threatened to turn Higazy’s family in Egypt over to Egypt’s security service, which could use torture and “give his family hell.”

Is such a redaction appropriate? What is the national security benefit of keeping this information secret?

Claims of secrecy in the name of national security must really be put under rigorous scrutiny. Far too often, courts and others defer to the government’s contention that certain information must be kept secret or else a security nightmare will ensue. In many cases, however, claims of secrecy are really attempts by government officials to cover their asses or conceal their misdoings. Recall the Pentagon Papers? The government made lavish claims that national security would be imperiled. Attorney General John Mitchell declared that disclosing the papers would “cause irreparable injury to the defense interests of the United States.” And what did the papers turn out to be? Evidence that the government misled the public about how the US became involved in Vietnam.

Given the current state of the law, there’s little incentive for the government not to cry “national security” to conceal ugly information. At worst, the courts or journalists or others just refuse the government’s request. But often, they capitulate. They will frequently defer to the government’s claims. So why not try? What’s there to lose? There needs to be some mechanism to punish unnecessary claims of “national security” to conceal information that shouldn’t be concealed. And there should be much more skepticism in evaluating such national security claims. How many times does a boy need to cry wolf before we start at least questioning the veracity of his cries?


Who, Exactly, Is a Journalist?

bashman.jpgIs Howard Bashman a journalist? Bashman is the author of How Appealing, a very popular legal blog that many readers here read — and that anybody who wants to keep informed about new cases and legal developments should be reading. Bashman frequently posts or links to court decisions when they are released online, and a recent set of events raised the question of whether he should be considered to be a journalist.

media3a.jpgAccording to the ABA Journal:

federal appeals court quickly withdrew an opinion issued yesterday in a case filed by a Sept. 11 detainee because of concerns it contained information filed under seal.

The opinion by the 2nd U.S. Circuit Court of Appeals revived a lawsuit by Egyptian student Abdullah Higazy who was detained after the attacks. Higazy claimed an FBI agent had coerced him to make a false confession.

The court was not quick enough for the blog How Appealing, which posted the opinion after a reader sent it along by e-mail. A clerk later called blog author Howard Bashman to ask him to take it down, but he has not complied.

The court planned to issue a revised opinion this morning, the New York Sun reports.

Bashman told that by the time he posted the opinion on his blog, hosted by American Lawyer Media, the ruling had already been viewed by hundreds if not thousands of individuals, and it was widely circulated by e-mail to those who were interested in the case.

“In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the Internet, referred to information contained in an appendix whose contents remained under seal,” Bashman wrote in an e-mail.

Bashman’s account of the incident is posted on How Appealing.

Matthew Felling, writing at CBS’s website, examines Bashman’s claim to be a member of the media:

So not only is this a case of transparency, it’s also an anecdote begging the question “What makes someone a journalist?” Bashman called himself a “member of the news media,” yet as far as this writer could tell from a few clicks, he happens to be a Pennsylvania attorney who also operates a blog. . . .

Does readership define a journalist? Bashman added in a follow-up e-mail that he gets nearly 10,000 readers on “a typical weekday.” Does receiving money for writing make one a journalist, as Bashman does?

As far as this writer is concerned, Bashman fits the bill. But where is the line drawn? This isn’t a classroom discussion, a distinction without a difference, as we enter murky legal waters and a Federal Shield Law is considered on Capitol Hill.

Who is a journalist in an age where anybody can write to a worldwide audience? I believe that anybody can be a journalist — a journalist is what a journalist does. In other words, being associated with a mainstream media entity doesn’t determine who is a journalist and who is not. One doesn’t need to be part of any organization to report information to the public.

When asked by Felling what made him a journalist, Bashman responded that he has long been paid by media entities to run his blog. But being paid money shouldn’t define whether one is a journalist. Bashman is just as much a journalist even if he doesn’t get any money for his efforts — he’s still engaging in the same activity: bringing information to the public.

But are there any lines that can be drawn? Are we at Concurring Opinions journalists? Is the teenager who blogs about her personal feelings and social life a journalist? Is everybody with a MySpace or Facebook page a journalist?

Here are some possible ways to draw the line and some of their pitfalls:

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Eighth Circuit Rules Against MLB In Fantasy Baseball Suit

baseball7.jpgEarlier today, the Eighth Circuit ruled against Major League Baseball in the high-profile fantasy baseball case of CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media. The case was brought by CBC, a St. Louis-based fantasy sports company against Major League Baseball seeking a declaratory judgment that CBC’s fantasy baseball games did not infringe upon the players’ rights of publicity or in the alternative that the First Amendment immunized it from liability. Dan and Kaimi blogged about this case last year here and here. In today’s ruling, the Eighth Circuit held that CBC infringed the players’ rights of publicity (which they had licensed to MLB) but that any state-law publicity claim was preempted by CBC’s First Amendment right to use player names and statistics.

I’ve got a lot to say about this case (which I think got the First Amendment issues exactly right), but in the interests of full disclosure, I should note that I consulted with lawyers from the St. Louis office of Harness Dickey in structuring the First Amendment and publicity arguments, and that I helped draft some of the briefs. Since this compromises any appearance of objectivity, I’ll say only this by way of comment: I think the case was straightforward from a First Amendment point of view, but the really interesting implication of the case is what it will mean for the massive (and profitable) fantasy sports industry. CBC had been a licensee of baseball for the statistics, but baseball terminated the license a few years ago, apparently in an attempt to bring all fantasy baseball (and all of its profits) under its control. Today’s holding seems to stand for the proposition that baseball cannot “own” the historical facts of its games (just as famous people can’t own the facts of their biographies), and it protects fantasy sports companies to continue to offer games that are not merely “official” licensed products controlled by the major sports leagues. It’s also a much-needed strike against the rise of unnecessary intellectual property licensing, which my colleague Jennifer Rothman, as well as Jim Gibson and Elizabeth Winston have written about recently.


BBC America and The Virtues of a Free Press

bbc news_final.JPGLike most British expats, I subscribe to the digital cable channel BBC America to help keep in touch with culture back home, whether it’s Graham Norton, The Office, or the fantastically entertaining car-show-that’s-not-really-about-cars Top Gear. BBC America’s lineup used to be largely fluff, though hugely entertaining and well-written fluff. As a First Amendment scholar, though, I was quite interested by their recent decision to produce a nightly BBC News telecast for the American market, which they call BBC World News America (it also airs later each evening under a slightly different name).

I’ve only watched the show a few times, but have been very impressed by it. Two stories in particular struck me for what they say about the potential for television journalism. The first story was an interview with former Pakistan Prime Minister Benazir Bhutto, in which she discussed her intentions to return to Pakistan and run for election as a moderate. Broadly speaking, Bhutto is certainly the kind of candidate that many Westerners would like to see in charge in Pakistan – moderate, Westernized, and a speaker of fluent English. One could thus have forgiven the BBC for giving her an easy time. But they didn’t. The interviewer (also the anchor) Matt Frei gave her a torrid time, asking her tough questions about how she could believe that a moderate woman could effectively lead an increasingly radicalized and fundamentalist Islamic state. Bhutto rose to the challenge, but that’s not really the point. The point is the willingness of a television news reporter to subject a world figure to sustained questioning, going beyond the offered platitudes of a politician to try to get at the truth. It’s something that the major US networks (let’s not mention local news) with the possible exception of PBS could learn from.

The second story was earlier this week – a video of life in Burma smuggled out of the country by a brave BBC journalist who could have been imprisoned or worse for merely making the video. The video showed the streets of Myanmar, armed soldiers, and interviews with pro-democracy activists and Buddhist monks in hiding. It showed the value of an independent press, as well as why the media is often the first thing authoritarians (or would be authoritarians) seek to discredit or control.

My point about all this is not to praise BBC America for airing such a serious program (though they deserve praise, even if the commercials they air during it are a bit odd), but rather to make a more general point about First Amendment law and social norms. In the US, First Amendment doctrine guarantees broad protections for the media, freeing them (in practice, if not overtly in theory) from government control, defamation liability, privacy claims, and other sorts of public or private legal controls. But when it comes to a free, independent, and vibrant press (I’m tempted to say uninhibited and robust also, to quote NYT v. Sullivan), law is not enough. Press protections are necessary but not sufficient. We still need journalists who are willing to ask tough questions of important national and international figures, and we still need journalists who are willing to risk imprisonment or even death to report the news. In other words, the social norms of journalists need to be strong, and they need to be oriented to their traditional mission of informing us about what we need to know. We live in a time of infotainment and profit-driven media where we seem to have more reporters covering Brangelina than the War in Iraq. I also think it’s true that there is more hard news on Comedy Central than on NBC. These realities can (and should) give us pause. But the BBC World News America blueprint is a courageous one, and as someone that cares about a vibrant and aggressive free press, I hope it not only succeeds but catches on.