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Category: First Amendment

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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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Singing the Blues

lawrecord.jpgA nice story illlustrating a conflicts of rights problem from Philadelphia:

Maybe you’ve heard about the case of Anthony Riley, the cherubic American Idol wannabe with the angelic tenor who didn’t see why he should stop singing in Rittenhouse Square.

Charged with disorderly conduct, he has his day in court July 3.

Since being cuffed and spending 18 hours in jail, Riley’s seen his star rise, singing for City Council, appearing on local television. He’s become the smiling face of a city-wide movement of those who believe music is free speech, and that police have better things to do than arrest someone singing “A Change is Gonna Come.”

Hard to argue with that.

But you probably haven’t heard from Jonathan Frank, who lives 11 floors above that jewel of a square, in a most rarefied prison.

“I represent the other side of the argument,” he says, sitting in his living room amid hundreds of books, a humming floor fan, and a pair of noise-canceling headphones bought for $35 at a store for hunters.

The rest of the column is pretty good too, especially the part where Riley asked the cop arresting him for the relevant statutory basis. The cop’s response: I am the law. Classic.

[Photo Credit: Law Records.]

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How Much Does the First Amendment Limit Juror Privacy?

gavel2a.jpgThe Pennsylvania Supreme Court, in a recent decision — Commonwealth v. Long, — A.2d —-, 2007 WL 1574157 (Pa. 2007) — concluded that the First Amendment requires public disclosure of jurors’ names. This is an issue that the U.S. Supreme Court has not yet addressed. According to the court:

First, with respect to the value of openness in criminal trials, a trial by jury and public access to criminal trials serve the same function-ensuring the fairness of the judicial process. From the earliest days of this country, it was believed that the jury was the best way to assure a fair trial. See The Federalist No. 83, at 545 (Alexander Hamilton) (The Modern Library ed.) (“[The jury trial] is a valuable check on corruption”). Likewise, public scrutiny of the criminal justice system enhances the quality and safeguards the integrity of the factfinding process, “with benefits to both the defendant and to society as a whole.” Openness also fosters an appearance of fairness, which increases public respect for the criminal justice system as a whole. “And in the broadest terms, public access to criminal trials permits the public to participate in and serves as a check upon the judicial process-an essential component in our structure of self government.”

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Anuj Desai on the Post Office and the First Amendment

Envelope 1a.jpgProfessor Anuj Desai (U. Wisconsin Law School) has posted his forthcoming article, The Transformation of Statutes into Constitutional Law: How Early Post Office Policy Shaped Modern First Amendment Doctrine, on SSRN. Anuj’s paper is a fascinating history of the early Post Office and how statutory protection of letters influenced constitutional law. From the abstract:

We typically think of constitutional law as the product of text, structure, constitutional history, ethical and moral philosophy, or common law doctrine. At times, though, constitutional law comes directly from societal institutions; those institutions in turn are often rooted in legislative, not judicial, choices. In this article, I tell an intriguing story of constitutional lawmaking in which policy choices about an institution developed into constitutional law. I look at two important areas of First Amendment doctrine: First Amendment constraints on government spending, i.e., “unconstitutional conditions”; and what is known in First Amendment jurisprudence as “the right to receive.” I argue that the genesis of both doctrines can be found in legislative choices made during the formation of one of the nation’s first “administrative agencies,” a communications network that was viewed as the internet of its day: the United States Post Office. When the twentieth century Supreme Court held that the First Amendment can constrain government spending and then later, in a separate line of cases, established “the right to receive,” the Court initially relied on specific attributes of the post office. Those attributes in turn had been established by choices made by policymakers during the late eighteenth century. In short, the Court incorporated aspects of the early postal statutes into First Amendment doctrine. Legislative choices in effect became constitutional law.

I really enjoyed reading this article — it’s a very interesting piece, especially for anybody interested in legal history and First Amendment law.

Speech vs. Defiance

frederickbanner.jpgAfter hearing a very interesting discussion between Jay Sekulow and Kenneth Star on the “Bong Hits for Jesus” case, I had a few thoughts.

1) This case strikes me as the reductio ad absurdum of the classic “liberal autonomy” case for free speech. The plaintiff by his own admission has virtually no message except for “I want to show that I can exercise my free speech rights” . . . begging the great question posed by John H. Garvey in his book What are Freedoms For? As Garvey argues,

We should understand freedom . . . as a right to act, not a right to choose; and furthermore, we should view freedom as a right to engage in actions that are good and valuable. This may seem obvious, but it inverts a central principle of liberalism–the idea that the right is prior to the good.

2) Given the ambiguity of this message, Starr tried to make the case about an admin law issue; who is to decide a) whether a student’s speech is part of a school activity and b) whether the student’s message contradicts the school’s educational mission?

3) Expect the question raised by 2a to be increasingly important as schools start scouring MySpace and other social networking sites for objectionable speech. Consider this suspension for a YouTube video: “A model student is in court this week over a 40-day suspension for posting a mocking in-class video to YouTube of ‘Mongzilla’, a high school english teacher.” The administration is careful not to say that the speech itself is being punished, but rather, that the suspension “was punishment for the disruption created by the students secreting a video camera into [the teacher's] class and dancing in a mocking, disrespectful manner while her back was turned.”

4) Following Garvey (and perhaps Collins and Skover), I think cases like Mongzilla & Bong Hits can be distinguished from more protectible advocacy. The former seem to be more about defiance than a real message. The students involved could learn a lot from Martin Buber’s basic idea of stressing “mutual, holistic existence without qualification or objectification of the other.” Perhaps the old “speech/conduct” distinction will prove useful here.

From Right-of-Reply to Norm-of-Trackback

One of the things I love about the blogosphere is the way that comments let readers correct you or turn your attention to something you may have missed. One of my recent posts on copyright law illustrates how this process can work. James Grimmelmann has suggested that this right to comment, and to trackback to one’s own post upon linking to another’s post, is a big victory for free speech. While right-of-reply laws may be stymied by Miami Herald v. Tornillo, these innovations let everyone have their say.

Should the mainstream media adopt similar norms? Consider the case of a recent WSJ commentary entitled “The Innocence Myth,” arguing that the rate of false convictions is very low. You can find critiques of it online if you google “innocence myth,” and the WSJ does publish some skeptical letters to the editor. But my colleague Michael Risinger is about to publish a piece that he believes definitively refutes the WSJ piece. As he argues:

If one is at all serious about trying to determine the empirical truth about the magnitude of the wrongful conviction problem, one must make an attempt to associate the denominator with the same kind of cases represented in the numerator. . . . In an article now in galleys at Northwestern Law School’s Journal of Criminal Law and Criminology, I have tried to do just that. Using only DNA exonerations for capital rape-murders from 1982 through 1989 as a numerator, and a 407-member sample of the 2235 capital sentences imposed during this period, this article shows that 21.45%, or around 479 of those, were cases of capital rape murder. Data supplied by the Innocence Project of Cardozo Law School and newly developed for this article show that only two-thirds of those cases would be expected to yield usable DNA for analysis. Combining these figures and dividing the numerator by the resulting denominator, a minimum factually wrongful conviction rate for capital rape-murder in the 1980’s emerges: 3.3%.

The WSJ has so far failed to publish Prof. Risinger’s letter to the editor, and claims a policy against allowing responses to commentaries. But would it at least behoove the Journal to provide a link to Risinger’s work after this opinion piece? I don’t see how this could hurt. . . . especially given time already devoted to screening letters to the editor. The Journal could make the links inobtrusive, as it does in this fantastic article on predatory debt collectors.

I hope that more of the mainstream media (MSM) follows the lead of the Washington Post, which provides great links to blogs (and opportunities for comment) on virtually all of its online articles (including editorials). Perhaps “opening up” the letters to the editor section in this way will be a bit of a burden at the beginning. But as technology makes these online forums more permeable, the usual excuse of “space constraints” (for shutting out diverse views) will be less and less convincing.