Category: First Amendment


“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.


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.


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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Intellectual Privacy

Late last week, I finally sent my latest article out to the law reviews. It’s called “Intellectual Privacy,” and it’s about the ways that certain kinds of privacy protections advance, rather than inhibit, First Amendment values. I’m really excited about the project, which I believe has something useful to say about both a number of recent legal issues (involving the War on Terror and also the War on Pornography) as well as our understandings of First Amendment theory. I’m hoping to post it on SSRN shortly, but in the meantime, here’s the abstract:

The use of information about intellectual activity has become central to a wide variety of modern legal problems. In this paper, I offer a theory of intellectual privacy, the critically-important interest lurking beneath the surface of these disputes. Intellectual privacy refers to the zone of protection necessary for free thought and cognition in which individuals can make up their minds about a wide variety of issues both important and trivial. Unlike many other notions of privacy, which are in tension with free speech, intellectual privacy safeguards critical First Amendment values. First, I show how intellectual privacy has been underappreciated in a number of contemporary disputes, including warrantless wiretapping and data mining by government, private-sector uses of personal information relating to intellectual activity, and the introduction of reading habits as evidence in criminal trials. Second, I present a theory of intellectual privacy having four elements – the freedom of thought and belief, spatial privacy, the right of intellectual exploration, and the confidentiality of communications. Third, I show how and why intellectual privacy should be an essential part of our First Amendment theory, and suggest some ways in which it could be better incorporated into both constitutional doctrine and the fabric of our legal culture more generally.

Larry Tribe’s Lochner?

The net neutrality debate is heating up as an epic battle between Google and carriers like Verizon, SBC, and Comcast. Now Larry Tribe is weighing in to cut off the debate, apparently arguing that virtually any regulation of the big carriers’ treatment of content could violate the First Amendment (according to this report):

Professor Tribe was asked . . . whether he thought broadband providers should be allowed to censor music lyrics critical of the President of the United States. Tribe rephrased the question: Can [broadband providers] be forced to act as common carriers? [and. . . ] cited Hurley . . . 515 U.S. 557 (1995) as the decision that “would probably apply here.” In that case, the organizers of a parade did not want to include among the marchers a group espousing a view with which the organizers did not agree. The Supreme Court ruled that the parade was not merely a conduit for the speech of participants.

The Court contrasted the parade organizers with cable operators who were the subject of Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) by noting that cable, unlike a parade permit, confers a “monopolistic opportunity to shut out some speakers.” But guess what? Like it or not, cable doesn’t confer a monopolistic opportunity anymore.

Um, does Comcast have a “message” when it brings me 500 channels? I’m mystified by the parade analogy.

As our guest blogger Neil Richards has noted, (and as Oren Bracha and I argue in our piece on search engine regulation), the First Amendment is the 800-pound gorilla in the room of equitable information policy. Many First Amendment absolutists would like to see it eviscerate the public’s rights to privacy and cultural self-determination. Following Richards’ work, I’m going to explore why an absolutism like Tribe’s might seem tempting, and why it is so crucial that courts resist it. In a nutshell: Tribe would do for information policy what Lochner did for economic regulation….a sad result for a thinker who so compellingly recognized “speech as power” in his book Constitutional Choices.

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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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