Category: First Amendment


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.]


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.

Unnaturally Made Killers

After a week of media coverage of the Virginia Tech tragedy, we can compare how different outlets have shaped our view of events there. Megan McCardle notes:

I haven’t found a single editorial addressing one factor we know creates these mass murders: reporting on the mass murders. In the next few weeks and months, even over the next few years, expect to see copycat killings inspired by Cho’s actions. The more saturated the media coverage, the more such events we are likely to get.

Of course, it’s impossible to fully assess causation here, an issue that has vexed media reformers for decades. But Thomas de Zengotita has weighed in on how deeply mediated this killer’s self-conception was, and how the whole event quickly became polarized between different “scripts,” or ways of making sense of a terrible reality. Many criticize the media for airing so much of the shooter’s “media kit,” for complicity in fulfilling (if posthumously) a disturbed soul’s demand for the world’s attention.

Some respond that competitive pressures made the decision by NBC to share the materials inevitable. The Canadian Broadcasting Company decided not to air the Cho videos….but they are under less ratings pressure than American broadcasters, and at the time it aired the tapes, NBC was losing share to ABC.

Is there a role for law to deter an arms race of sensationalism? Fred Yen has mentioned a possible copyright issue here, but it’s hard to imagine the shooter’s family being capable of putting such a suit at the top of its concerns….especially immediately in the aftermath of the murders.

Could a ban on broadcast of such materials work? Perhaps, but I imagine would-be celebrity killers would simply upload their rants into the BitTorrent and YouTube ether. Blogs would quickly jump on disseminating it, eager for the fame & links that it could bring.

So despite my occasional dirigisme, I can’t see a role for law here. The public’s insatiable appetite for sensationalism, and predictably ensuing frenzies for renown, appear to be a durable aspect of a decentralized and link-driven web. Technology + Competition > Values.


Can the First Amendment Serve as a Source of Criminal Procedure?

first-am-as-crim-pro.jpgTypically, when we think of the constitutional criminal procedure that regulates government information gathering, we think of the Fourth and Fifth Amendments. But many government investigations involve collecting information about speech, association, religion, and the consumption of ideas. The NSA surveillance of telephone calls, for example, involves speech. National Security Letters can be used to obtain information about association and the consumption of ideas. And so on.

Does the First Amendment apply? Should it? If the First Amendment serves as a source of criminal procedure, what procedures does it require? For example, could the First Amendment require a warrant? An exclusionary rule?

For the answers, please check out my new article, The First Amendment as Criminal Procedure, 82 N.Y.U. L. Rev. 112 (2007).

I’ve posted the final published version of the article on SSRN.


Bong Hits for What?

Thanks to Dan for the introduction and to the whole Co-op team for hosting me. And thanks for your indulgence over the next few weeks as I share a few thoughts on constitutional law, criminal law, and other topics.

This morning, the Supreme Court heard oral arguments in Morse v. Frederick, the First Amendment case involving a high school student suspended for displaying a banner emblazoned, “Bong Hits 4 Jesus.” Joseph Frederick was an 18-year-old high school senior in January 2002, when he displayed his banner across the street from his high school in Juneau, Alaska, as the Olympic torch procession passed by. The Ninth Circuit found that Frederick’s First Amendment rights were violated even under the less protective standards applied to student speech. The school board (represented by Ken Starr) has denounced the Ninth Circuit’s decision as “unforgivingly libertarian.” As Linda Greenhouse and Marty Lederman have noted, a number of conservative religious organizations have filed briefs in support of Joseph Frederick. The organizations are apparently deeply concerned by the far-reaching authority that the school district has asserted to suppress speech inconsistent with the school’s own understanding of its “basic educational mission,” a mission that may include the inculcation of support for specific public policy positions.

So much for the weighty doctrinal questions that are likely to capture the Court’s attention. One of the things I find most interesting—and amusing—about the case is a slightly different underlying question: what does “Bong Hits 4 Jesus” mean, anyway?

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