Category: First Amendment

2

Praising Allah In The Military

Congress is considering legislation that would allow military chaplains to use sectarian prayers at nondenominational events. Supporters argue that Chaplains should be free to pray as their faith demands. Opponents worry that such prayers (lets be more precise: prayers that invoke the name of Jesus) will have the effect of excluding some in attendance and erode cohesion within the unit. (The Pentagon, which opposes the bill, actually frames it less in terms of marginalized troops, and more in terms of marginalized chaplains, saying “This provision could marginalize chaplains who, in exercising their conscience, generate discomfort at mandatory formations.”)

This proposal is really a one-way ratchet which is likely to create discomfort for various non-Christian soldiers, but which will rarely marginalize Christian soldiers. For example, few Christian soldiers will be troubled by Jewish prayers since they always reference a single God, referred to typically in English as “God.” They are sort of like “lesser included” versions of Christian prayers. (It is possible that a rabbi might use a Hebrew term, and this would potentially be alienating…though in my experience, many might simply find it “curious.”) Christian prayers which invoke Jesus exclude all Jews and Muslims (and people of many other faiths, not to mention agnostics and atheists) because they involve praying to a person who, in other religions, is explicitly not God. Sooner or later, at a non-denominational event, a Muslim chaplain will praise Allah, an Arabic term for God (and indeed essentially the same singular God as one would find in Christianity and Judaism). But though Allah may reference the same God, the term now carries loads of cultural baggage, such that many may hear that invocation as an explictly anti-American or anti-Christian statement.

If I truly believed that the Representatives supporting this legislation were ready – even eager – to hear chaplains praise Allah at non-religious events, I’d be more sympathetic to their cause. Call me a cynic, but I suspect that they’re simply trying to promote Christianity in circumstances where they see little downside. Twenty years from now, if Islam has grown in importance within the military, I suspect that these folks would be the first to argue for non-sectarian prayer. “It’s just not fair to our Christian troops”, they’d argue.

2

NSA Surveillance and the First Amendment

NSA3.jpgEarlier today, a federal district judge struck down the Bush Administration’s NSA surveillance program which involved intercepting international electronic communications without a warrant. The opinion is available here. I have not had time to read the opinion carefully yet, but I am especially intrigued by the court’s use of the First Amendment as one of the grounds to invalidate the program. I just completed an article entitled The First Amendment as Criminal Procedure in which I argue for First Amendment regulation of government information gathering. In the final section, I have a discussion of the NSA surveillance program.

The court’s First Amendment analysis is very brief, and I agree with Jack Balkin who observes that the “first amendment holding is novel although plausible, but it is not supported by very good arguments.” The First Amendment argument is indeed a difficult and complex one and it deserves more than just a few pages to develop. My article attempts to flesh out the First Amendment argument. Here’s the abstract:

This article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other. But many instances of government information gathering can implicate First Amendment interests such as freedom of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case, Boyd v. United States, where the Supreme Court held that the government was prohibited from seizing a person’s private papers. Over time, however, Fourth and Fifth Amendment protection shifted, and now countless searches and seizures involving people’s private papers, the books they read, the websites they surf, the pen names they use when writing anonymously, and so on fall completely outside of the protection of constitutional criminal procedure. Professor Solove argues that the First Amendment provides protection against government information gathering implicating First Amendment interests. He contends that there are doctrinal, historical, and normative justifications to develop what he calls “First Amendment criminal procedure.” Solove sets forth an approach to determine when certain instances of government information gathering fall within the regulatory domain of the First Amendment and what level of protection the First Amendment should provide.

I welcome any comments. Eugene Volokh has some interesting analysis of the court’s First Amendment analysis here.

0

Call For Papers: National Security Leak Prosecutions

The Association of American Law Schools Section on National Security Law is sponsoring a competition for papers on the topic of national security leak prosecutions in connection with its program at AALS in January. The winning piece will be published in the Journal of National Security Law and Policy and the author will be included on the panel itself. Three page abstracts are due September 5. The competition appears to be open only to law faculty. The Call for Papers is posted at:

http://www.wfu.edu/%7Echesner/NationalSecurityLaw/CallForPapers.pdf.

25

Oprah, Suicide, Free Speech, and Torts

I am embarrassed to admit that I sometimes tape and later watch “Oprah” on t.v. I do not know that I am huge fan of her show, but I certainly find some of the guests she has on the show interesting. Anyway, Oprah said something last week that baffled me, as a legal matter. My responsive e-mailed to her GC drew no reply, so I come humbly to the blogosphere to see what you all might offer.

On one of Oprah’s shows last week, she interviewed the parents and sister of a 19-ish year old Florida State college student – very bright, very creative – who killed herself. The young-woman fed her kittens and cleaned her apartment, and then went to a hotel, took some variation of cyanide, and died. Before she left this earth, she sent a timed-delayed e-mail to her parents, starting off with a sentence along the lines of “As you probably know by now, I have passed away….” (The e-mail explained that she had struggled with depression, and she basically found the struggle futile.) I believe she also sent an e-mail to a friend and to the police, so that they would know where to find her body.

Though the story is tragic in and of itself, an overwhelmingly sad aspect of the story is that this young woman found information on the internet that helped her execute her suicide plan and some might say encouraged her to or at least coached her regarding following through. Specifically, she had been frequenting a “pro-choice” suicide blog (or chat board or message board or some such – allow me to say “blog”). (The pro-choice phrase came from the show.) It seems that the young woman was able to glean technical information about how to kill herself or links to information on what, specifically, to do kill herself from that blog. Worse, I believe her parents or Oprah said that this young woman was posting regularly on the blog to update the blog readers and posters about her two-week countdown to killing herself. One person on the blog actually helped her craft her final e-mail to her parents. Dear God.

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8

Setting the Bar, and the Limits of Empirical Research

Larry Ribstein and Jonathan Wilson are debating the merits of a strong, exclusionary, state bar.

Wilson’s position is pro-Bar:

Deregulating lawyers as punishment or retribution for a profession that has lost its way would be a recipe for disaster. Deregulating the practice of law would open the floodgates to fraud of every conceivable variety and would only compound the problems that the readers of these pages see in our civil justice system.

Ribstein, naturally, is pro-market:

Big law firms provide a strong reputational “bond” . . . Lawyers can be certified by private organizations, including existing bar associations, which can compete with each other by earning reputations for reliability. . . .We could have stricter pleading rules, or require losers to pay winners’ fees. Or how about this: let anybody into court, but adopt a loser pays rule for parties that come into court represented by anything less than a lawyer with the highest possible trial certificate . . . Even if only licensing would effectively deal with this problem, the licensing scheme should be designed specifically to protect the courts. Instead of requiring the same all-purpose license to handle a real estate transaction and to prosecute a billion-dollar class action, we could have a special licensing law for courtroom practice, backed by tight regulation of trial lawyers’ conduct – something like the traditional barrister/solicitor distinction in the UK.

Josh Wright has picked up the thread of the discussion at TOTM, and suggests that empirical evidence would inform this debate. Unfortunately, as both Larry and he note, there is a paucity of useful studies on point:

If I recall, the Federal Trade Commission has recently been involved in some advocacy efforts in favor of limiting the scope of unauthorized practice of law statutes. My sense is that a number of states must have relaxed unauthorized practice of law restrictions (I think Arizona is one), or similarly relaxed restrictions on lawyer licensing, such that one could directly test the impact of these restrictions on consumers in terms of prices and quality of service. There must be work on this somewhere.

Solove and I have gone around on this question before (see here for the powerful pro-licensing position, and here and here for Solove’s “response”).

Generally, I like Josh’s intuition. It would be quite useful to look to Arizona, or other natural experiments, to help us to answer the problem of the utility of the Bar Exam and other licensing barriers. Surely, there is no reason in the abstract to preserve an ancient system that keeps lawyer fees artificially high, diverts millions of dollars from law students to Barbri, and causes no end of mental anguish simply because it provides a new jurisprudential lens!

But I’m quite skeptical that this is an answerable question, at least in the short term. My thinking is informed somewhat by the new Malcolm Gladwell New Yorker essay about basketball. Although Gladwell extols the virtues of statistical analysis (instead of anecdote, judgment, and valuing the joy of watching Allen Iverson triumph despite his height), the lesson I took from the piece was that:

Most tasks that professionals perform . . . are surprisingly hard to evaluate. Suppose that we wanted to measure something in the real world, like the relative skill of New York City’s heart surgeons. One obvious way would be to compare the mortality rates of the patients on whom they operate—except that substandard care isn’t necessarily fatal, so a more accurate measure might be how quickly patients get better or how few complications they have after surgery. But recovery time is a function as well of how a patient is treated in the intensive-care unit, which reflects the capabilities not just of the doctor but of the nurses in the I.C.U. So now we have to adjust for nurse quality in our assessment of surgeon quality. We’d also better adjust for how sick the patients were in the first place, and since well-regarded surgeons often treat the most difficult cases, the best surgeons might well have the poorest patient recovery rates. In order to measure something you thought was fairly straightforward, you really have to take into account a series of things that aren’t so straightforward.

I know how I would test the direct cost of legal service in Pennsylvania, and I’ve no doubt that it would go down if I (by fiat) abolished the state bar. But I have no good idea of how we can measure lawyer “quality”. To take something as obvious as criminal defense, some really good public defenders will lose every case for a year, but take comfort in having not lost on the top count of a single indictment. Saying that a public defender who went 0 for 50 in 2005 was a less “good” attorney than a prosecutor who went 50-0 would be a real problem. Facts drive litigation, and make empirical investigation of lawyer quality as a quantitative matter hard. And that is for attorneys who perform in public. How do you evaluate the relative strength of deal counsel on a gross level? Count the typos in the document? Talk with the business folks, and ask who got in the way less? [Obviously, deal counsel can be very good and very bad: the point is we need metrics that are easily coded by, say, research assistants.]

So here is the question for our readers. Can you design an empirical project that measures both litigation and transactional practice quality as a function of licensing?

0

A Tale of Two Bloggers

volokh-eugene.jpgcutler-jessica.jpg

Per Paul Caron’s invitation, I’ve decided to write up a short paper based on my comments at the Harvard Bloggership Conference. It is a 5-page essay entitled A Tale of Two Bloggers: Free Speech and Privacy in the Blogosphere. It will be published as part of the symposium. From the abstract:

In this essay, Professor Solove examines Glenn Reynold’s new book, An Army of Davids, which champions little guy bloggers (the “Davids”) who are taking on mainstream media entities (the “Goliaths”).

Who exactly is David? We have a rather romantic conception of bloggers; we envision Eugene Volokh, but most bloggers are probably more akin to Jessica Cutler, the U.S. Senate staffer who blogged about sex gossip. The average blogger is a teenager writing an online diary, not a scholar or amateur journalist.

We see blogging as something that enhances freedom, expression, and self-development. But when blogging places gossip online, gossip transforms from being localized and forgettable to being permanent and widespread. We might find it harder to engage in self-exploration if every false step and foolish act is chronicled forever in a permanent record. Ironically, the unconstrained flow of information on the Internet might impede our self-development and freedom. Solove argues that the law should hold bloggers to a reasonable standard of care to avoid revealing private information about others.

You can download the essay here.

3

Blogger sued for trade libel

From the Boston Globe:

A coastal Maine blogger who criticized the state’s tourism office has been hit with a lawsuit seeking potentially more than $1 million in damages for allegedly making false statements and posting on his website, Maine Web Report, images from proposed tourism advertisements a New York agency prepared for Maine officials.

. . .

The advertising agency is suing Dutson on three counts: copyright infringement, defamation, and trade libel/injurious falsehood. It seeks statutory damages of $150,000 for each of six images it alleges were infringed upon, as well as unspecified punitive damages and legal fees.

This suit has various elements, and it’s hard to say how much of it would go forward in the absence of the (more conventional) copyright claims. This is not purely a trade libel suit based on blog content. But it contains that claim, and as such, it’s a sobering data point. In particular, if these kinds of suits (trade libel over blog content) become a broader trend, that will have serious effects on blogs. After all, a good deal of the blogosphere is dedicated to criticism of some industry or other. There is the classic “I had a bad experience with X airline” post; there are series of posts criticizing a business or industry; and so on.

Trade libel requires (as far as I’m aware, in every jurisdiction – though I’m not an expert) actual falsehood, so that is a potential defense. But even a successful defense can be costly and time-consuming and stressful, and I suspect that few bloggers would want to risk a lawsuit. Thus, the real effect of such lawsuits is the chilling effect — that bloggers will become more hesitant in their criticisms. This may be a good thing in some cases — Heaven knows thablogs often generate more heat than light — but is certainly not an unalloyed good.

In the mean time, let me say that my New York trip has been great. Loved the food. Even the subways smelled nice. Please don’t sue me, Mayor Bloomberg. Or the blog. I was just kidding when I complained about that stale bagel. And I deleted that post, anyway. What post? I didn’t see any post about a stale bagel. Did you, guys? Didn’t think so. Carry on. Nothing to see here.

17

Internet Censorship and the US Military

marines1a.jpgIf you learned that certain blogs and websites are being censored for having political content, you’d say: “That’s no surprise. China does it all the time.” Well, it’s not just China . . . the US Military appears to be taking some lessons from the Chinese government. A few days ago, Wonkette discussed an email it purportedly received from a soldier in Iraq complaining of Interent censorship. The email stated:

Just to let you know, the US Marines have blocked access to “Wonkette” along with numerous other sites such as personal email (i.e. Yahoo, AT&T, Hotmail, etc), blogs that don’t agree with the government point of view, personal websites, and some news organizatons. This has taken effect as of the beginning of February. I have no problem with them blocking porn sites (after all it is a government network), but cutting off access to our email and possibly-not-toeing-the-government-line websites is a bit much.

Another email posted recently on Wonkette is even more troubling:

Anyway, I had a few minutes today and thought I’d look and see what else was banned on the Marine web here. I think the results speak for themselves:

* Wonkette – “Forbidden, this page (http://www.wonkette.com/) is categorized as: Forum/Bulletin Boards, Politics/Opinion.”

* Bill O’Reilly (www.billoreilly.com) – OK

* Air America (www.airamericaradio.com) – “Forbidden, this page (http://www.airamericaradio.com/) is categorized as: Internet Radio/TV, Politics/Opinion.”

* Rush Limbaugh (www.rushlimbaugh.com) – OK

* ABC News “The Note” – OK

* Website of the Al Franken Show (www.alfrankenshow.com) – “Forbidden, this page (http://www.airamericaradio.com/) is categorized as: Internet Radio/TV, Politics/Opinion.”

* G. Gordon Liddy Show (www.liddyshow.us) – OK

* Don & Mike Show (www.donandmikewebsite.com) – “Forbidden, this page (http://www.donandmikewebsite.com/) is categorized as: Profanity, Entertainment/Recreation/Hobbies.”

If this email is true, I find it to be quite troubling. It is disturbing enough that the government is censoring political views from US soldiers. It is ironic that we are denying democratic discourse to our troops who are busy attempting to spread democracy in the Middle East. And it is really alarming if only certain political viewpoints are being censored while others are not. Anyway, this story just seems too outrageous to be true, and I sure hope it isn’t.

1

Government Issue Porn

agReport.gif It’s no surprise that the Attorney General is turning up the heat on pornography. (Christine started us talking about DOJ recordkeeping rules last week, and the Google issue bubbled up a few weeks before.) Porn is an anathema to the GOP’s base, and with few supporters (other than those card carriers over at the ACLU and the 34 million (soon to be 40 million) anonymous consumers hunkered down behind their monitors), such attacks are an easy way to satisfy social conservatives. Perhaps Alberto Gonzalez will take the same approach as Reagan’s AG, Edwin Meese: preparation of a Porn Report. The Attorney General’s Commission on Pornography Final Report (available, at least in part, here) was more than a condemnation of pornography; it was a complete reference volume on the field. History, law, a feminist critique of objectification – everything was there in one intimidating tome. To prove that world was filled with truly porny porn, the Commission produced serious evidence: loads of material extracted from genuine dirty books and magazines. This was one racy government document; I can only imagine the lines at those designated library repositories. Sales must also have been solid. Just as happened with The Starr Report, a commercial publisher stepped in and republished the fat government document. (The flashy book cover, to the right, is the reprint.)

The moment is ripe for a new update – Porn 2K, perhaps – but times and technology have changed a great deal in the interim. Nowadays, a report need not take the form of a paper book that gathers dust in the Government Document Collection. Like many government publications, it can be distributed on the web – complete with hypertext links to sources. Imagine the manifold ways that a Gonzalez Report might show the nature and extent of pornography in America. If the Meese Report soldiered through, making its case through the use of dry text, a new hi-tech report could provide readers with link after link to graphic, vulgar, offensive, genuinely nasty smut. And the nature of this smut has changed! Pornography, like everything else, has gone the way of the celebrity. So what atrocities might be exposed in this report?

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1

Criticizing Referees and Judges

The conclusion of the collegiate and professional football seasons has brought about more than the usual number of questionable — and outright blown — calls. In response to Sunday’s replay-assisted overturning of a Pittsburgh interception, the NFL issued a statement informing fans that the call was wrong. The play should have been called — as it originally was — an interception, and the Steelers (likely) would have won the game without the drama that occurred after that point.

The controversies bring up a subject on which I plan to write this summer — the ways in which sports and the legal profession can learn from the ways each deals with criticisms of those who apply the rules. The differences are extensive and interesting.

In terms of actual independence, judges are much more insulated than are sports officials. Even in the states, where 80% of judges are elected, often terms are long and few judges have re-election challenges to worry about. (There are exceptions, of course.) And the federal system’s tenure and salary protection provide significant independence beyond the level enjoyed by state judges.

Sports officials, by contrast, may be fired more or less at will (though I am not familiar with the specifics of the NFL’s policy and invite comment from those who are). Sure, fans do not play much of a role in deciding whether to keep a referee employed, but when a significant error like this one occurs, some repurcussions are likely. At the least, Morelli will not work any more games this season, and he could even be fined, according to ESPN’s Chris Mortensen. On top of this, officials in the NFL and all amateur athletics are part-timers who have to hold down real jobs to earn a living. It is conceivable that officials’ dependence on other forms of income could lessen their ability to be independent in the face of criticism from employers, clients, etc.

In terms of criticism, though, it is judges who must endure more from the participants. Both sports officials and judges hear plenty of criticism from the public, of course, and sports officials must hear the criticism even when working. (“Kill the umpire,” etc.) But sports leagues have been draconian in prohibiting comment by players and coaches about officiating blunders. After Sunday’s Steelers-Colts game, for example, Steeler Joey Porter said, “I know they wanted Indy to win this game; the whole world loves Peyton Manning. But come on, man, don’t take the game away from us like that.” It is likely that he will be fined, even though the NFL agrees that the call was a mistake. (Porter, of course, accused the referee of bias and not just blowing the call, but there are plenty of examples where fines have been assessed merely for calling attention to officiating mistakes. The best quote on the subject is from Jim Finks, New Orleans Saints General Manager, who responded to a question about calls during one of his team’s games, “I’m not allowed to comment on lousy no good officiating.”

The legal profession, too, attempts to squelch free speech criticizing judges, but recognizes that First Amendment principles limit the extent to which parties, lawyers, politicians, and the public can be restricted.

My question is predominantly a practical one: Do restrictions on criticism of sports officials add to their respect? Does a sports league, or do individual officials, gain anything when the league prohibits a coach from saying that a particular official blew a call when replay after replay makes that fact clear to everyone? Is the speech ban prophylactic, in that the real goal is to eliminate comments relating to potential bias or limit violence? What, then, explains the leagues’ apparent acceptance of on-field criticisms of officials (e.g., Marv Levy: “You over-officious jerk!”)?