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Category: First Amendment

1

Journalist Privilege and Law Enforcement Leaks

freespeech1.jpgIn a very interesting case, U.S. District Court Judge Rosemary Collyer recently held a Washington Post reporter in contempt of court for not revealing the source of a leak in the investigation of Wen Ho Lee. [Click here for the court's opinion.] The case involves a civil suit by Lee against a number of federal agencies for violating the Privacy Act of 1974, 5 U.S.C. § 552a. Lee was a scientist employed by the Department of Energy and was being investigated by the FBI for espionage for China. Ultimately, the espionage case collapsed and Lee pled guilty to one count of mishandling computer files.

During the investigation, Washington Post journalist Walter Pincus published a few articles about the Lee investigation, identifying him by name and discussing extensive details of the investigation, including “his and his wife’s employment histories, their financial transactions, details about their trips to Hong Kong and China, details concerning the Government investigation and interrogation, and purported results from polygraph tests.” Pincus indicated that anonymous government sources supplied him with the information.

Lee has sued the government for violating the Privacy Act, which prohibits government agencies (including the FBI) from disclosing records about an individual. Lee sought from Pincus who his sources were. Pincus raised the journalist privilege, claiming he should be sheilded from being forced to disclose.

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6

Article III Groupie Disrobed: Thoughts on Blogging and Anonymity

A3G.bmp“Article III Groupie” is the pseudonym for the mysterious author of a wildly popular blog about the federal judiciary, Underneath Their Robes. The blog is a lighthearted and witty discussion of the federal judiciary, chronicling the lives of judges and law clerks. Article III Groupie (or A3G for short) describes herself as an attorney from a Top 5 law school who works at a “large law firm in a major city, where she now toils in obscurity.” She writes: “During her free time, she consoles herself through the overconsumption of luxury goods. Her goal in life is to become a federal judicial diva.” Her identity has long remained shrouded in secrecy.

As she describes her blog:

This weblog, “Underneath Their Robes” (“UTR”), reflects Article III Groupie’s interest in, and obsession with, the federal judiciary. UTR is a combination of People, US Weekly, Page Six, The National Enquirer, and Tigerbeat, focused not on vacuous movie stars or fatuous teen idols, but on federal judges. Article III judges are legal celebrities, the “rock stars” of the legal profession’s upper echelons. This weblog is a source of news, gossip, and colorful commentary about these judicial superstars!

Her blog has become a regular read among the legal blogosphere. Even federal judges enjoy it. According to a New Yorker article:

The blog has many fans, including Richard Posner, the legal scholar and federal appeals-court judge in Chicago. “The beauty contests between judges can’t be taken very seriously, but I enjoy the site,” he said. “It presents good information about clerkships and candidates. It’s occasionally a little vulgar, but this is America in 2005.”

People have long wondered who A3G is. The drawing she supplies on her profile page is of an attractive Sex-in-the-City-type diva . . . and one who purports to be starstruck by the nerdy world of the federal judiciary. How exciting that someone–anyone–-is even interested in this lonely corner of the world in the same way that groupies are into rock stars!

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8

Suing Wikipedia

Wikipedia.jpgWhat happens if there’s a Wikipedia article about you that’s unflattering? What if it is in error or revealing of your private life? Wikipedia, for those not familiar with it, is an online encyclopedia that is written and edited collectively by anybody who wants to participate.

Daniel Brandt, a blogger who maintains blogs called Google Watch and Wikipedia Watch complained to Wikipedia administrators asking them to delete an entry about him. What should one’s rights in this regard be?

Here’s what Brandt writes:

There is a problem with the structure of Wikipedia. The basic problem is that no one, neither the Trustees of Wikimedia Foundation, nor the volunteers who are connected with Wikipedia, consider themselves responsible for the content. . . .

At the same time that no one claims responsibility, there are two unique characteristics of Wikipedia that can be very damaging to a person, corporation, or group. The first is that anyone can edit an article, and there is no guarantee that any article you read has not been edited maliciously, and remains uncorrected in that state, at the precise time that you access that article.

The second unique characteristic is that Wikipedia articles, and in some cases even the free-for-all “talk” discussions behind the articles, rank very highly in the major search engines. This means that Wikipedia’s potential for inflicting damage is amplified by several orders of magnitude.

Brandt muses whether he ought to sue Wikipedia:

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0

The Pretexual Prosecution of an Adult Webmaster

nopicture.jpgEric Goldman (law, Marquette) has a very interesting post about the arrest and prosecution of the operator of an adult website where users could upload photos of people having sex. Goldman writes:

On October 7, Wilson was arrested by Florida state police and charged with 301 counts of obscenity (each of 100 photos have been charged with distribution, offering to distribute and conspiring to distribute; plus a bonus felony charge of wholesale distribution). My understanding is that the subject photos were all user-uploaded and that the charges are all based on state law (not federal law).

Let’s assume the photos are truly obscene. This assumption may be questionable; the probable cause report indicates that they are extremely hard-core pornography but not out of the ordinary. But even if the photos are obscene, I simply can’t understand this prosecution. If the photos are user-uploaded, then all state anti-obscenity laws trying to hold the webmaster liable for them should be preempted by 47 USC 230.

Wilson, the website operator, also allowed military personnel in Iraq and Afghanistan to load up photos of enemy corpses. Goldman writes:

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16

Using Lawsuits to Unmask Anonymous Bloggers

anonymity-1a.jpgAn interesting recently-filed lawsuit raises the issue of whether a company can file a lawsuit just to find out the identity of an anonymous blogger in order to fire him.

The case involves an employee of Allegheny Energy Service who posted an anonymous comment to a Yahoo! message board devoted to his company. He made the posting from his home computer. In the post, he attacked the company’s management as well as the company’s diversity program, using a racial slur in the process.

The company filed a “John Doe” lawsuit against the anonymous blogger for a tort claim of “breach of fiduciary duty and breach of duty of loyalty.” The employee was completely unaware that a lawsuit had been filed against him.

Three months after filing the lawsuit, the company filed an emergency motion to prevent “John Doe” from posting more messages. It claimed that Doe’s posting violated the company’s anti-harassment policy. The company obtained a subpoena and served it on Yahoo. Yahoo sent an email to the employee that Yahoo would respond within 15 days unless the employee filed a motion to quash. The employee claimed he never received the email. Yahoo subsequently turned over the employee’s identity to Allegheny Energy. Afterwards, Allegheny Energy filed papers to discountinue its civil action against the employee. The employee was then fired for making the racial slur.

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2

Beware of the Big Bad Bloggers

forbes.jpgIt’s Halloween, and who is the biggest scariest monster on the block? Me. That’s because I’m one of them “bloggers” according to a sensationalistic article published in Forbes Magazine.

The article, written by Daniel Lyons and entitled “Attack of the Blogs,” has been drawing the ire of the blogosphere. A stew of fear and vitriol, the article begins with the sentence:

Web logs are the prized platform of an online lynch mob spouting liberty but spewing lies, libel and invective.

He also writes:

Blogs started a few years ago as a simple way for people to keep online diaries. Suddenly they are the ultimate vehicle for brand-bashing, personal attacks, political extremism and smear campaigns. It’s not easy to fight back: Often a bashing victim can’t even figure out who his attacker is. No target is too mighty, or too obscure, for this new and virulent strain of oratory.

Bloggers should certainly be responsible and law-abiding, and bloggers shouldn’t (and don’t) have an immunity from lawsuits for defamation or invasion of privacy.

What is most ironic, however, is that after attacking bloggers for being lawless brigands, Lyons proceeds to offer some tips for “fighting back” against the bloggers that are equally as unethical and lawless as the bloggers in his caricature:

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0

Good Media, Bad Media

media1.jpgA 4-year old girl’s mother was murdered, and the girl was left abandoned. She was put on TV, and people’s calls helped her and lead to her mother’s killer. But now it is hard to get the media to leave the girl alone. From the New York Times:

But now, those caring for the girl . . . say coverage by the news media has become a curse. She is trapped inside her relatives’ home on Long Island, they say, unable to play outside or ride the new bicycle she received as a gift.

Eighteen days have passed since [the girl] talked about pizza, pickles and her cat on television, after child welfare officials made her available to the cameras in an extraordinary effort to find out who she was. Reporters have followed every step of her story and, until last night, had been camping outside the home of [the girl’s] temporary guardians, hoping for a new photograph or a word from them. . . .

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7

The Blog Impersonators

mierblog3.jpg

Harriet Miers, as my co-blogger Kaimi pointed out, is the first Supreme Court Justice nominee to have her own blog – Harriet Miers’s Blog!!! Her first entry:

OMG I CAN’T BELIEVE I’M THE NOMINEE!!!

This is BIGGEST DAY OF MY LIFE!!! EVER!!!!

OMG OMG OMG

Needless to say, it’s a fake. And so is a blog called Luttig’s Lair purportedly written by Judge J. Michael Luttig.

Anyone can sign up on a free blogger platform, such as Blogger, and create a blog. In anybody’s name. In your name. You might have a blog and not even know about it.

The Miers and Luttig blogs are quite funny because everybody knows they’re phony. But it is easy to imagine a case where reality and parody are not so readily discernable. What’s to stop me from creating a blog by you? (Don’t even think of vice-versa!)

The law provides at least two potential remedies. One is the tort of libel, which provides for damages when a person publishes falsehoods that damage the reputation of another. This wouldn’t apply to Miers because the blog is an obvious parody – no reasonable person would think it were true.

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5

A Victory for Anonymous Blogging

anonymity2.jpgAnonymous bloggers received a great victory this week in a case decided by the Delaware Supreme Court — Doe v. Cahill (Oct. 5, 2005). The case involved John Doe, who anonymously posted on a blog statements about Patrick Cahill, a City Councilman of Smyrna, Delaware. Doe, in criticizing Cahill’s job performance, noted that Cahill had “obvious mental deterioration” and was “paranoid.” Cahill sued Doe for defamation.

Doe was anonymous, but his IP address could be linked to his postings, and Cahill sought to obtain Doe’s identity from Comcast, Doe’s ISP. Comcast notified Doe that Cahill was seeking his identity, and Doe immediately went to court to prevent the disclosure of his identity. The case reached the Delaware Supreme Court, which concluded that Cahill should not be permitted to obtain Doe’s identity.

The issues in this case are very important. Many of you comment here anonymously; and many comment anonymously on other blogs. Some have anonymous blogs, such as the person pretending to be Supreme Court nominee Harriet Miers on a blog or the pseudonymous “Article III groupie,” who maintains the famous blog, Underneath Their Robes. EFF has produced a manual about how to blog anonymously.

What if your identity – and those of the Miers impersonator and Article III groupie — could readily be unmasked?

The First Amendment provides for a right to speak anonymously. It does so because without anonymity, people might be chilled in saying certain things. But what happens when anonymous speakers defame people or invade their privacy? Those injured people should be able to sue. This issue has been a difficult one for courts, which have tried to balance a person’s free speech rights to speak anonymously with the injured plaintiff’s rights to proceed with a lawsuit.

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3

Why Volokh Is Wrong on Public Records and the First Amendment

freespeech4.jpg

In an interesting and thoughtful post, Eugene Volokh (law, UCLA) takes issue with California’s Megan’s Law, Cal. Penal Code § 290.46(j), which places personal data about sex offenders on the Internet yet restricts the uses of this data. The law allows people to use the information “only to protect a person at risk.” It prohibits the use of the information for, among other things, purposes related to insurance, loans, credit, employment, benefits, and housing.

Volokh writes:

So California law suppresses presumptively true statements of fact about criminals based on a public record, unless one’s purpose is “only to protect a person at risk.” If one learns that a neighbor or a coworker has committed a heinous crime, and wants to tell people — not specifically to protect a person at risk, but (for instance) to urge people not to give a fellowship to someone with such bad morals, or to urge businesses not to associate with such an evil person — one risks damages liability or an injunction.

Seems like a pretty clear First Amendment violation, especially given Florida Star v. B.J.F. If it’s unconstitutional to bar speakers from revealing the names of rape victims when those names were accidentally released by government officials into the public record, I’d think that it would be unconstitutional to bar speakers from revealing the names of rapists when those names were deliberately placed by government officials into the public record. But it seems that California weighs the privacy of public-record information about sex criminals more heavily than its law-abiding citizens’ constitutionally protected free speech.

I disagree with Volokh on both legal and policy grounds. Regarding the law, Florida Star restricts liability for disclosing information after the government has made it public. However, in Los Angeles Police Department v. United Reporting Publishing Co., 528 U.S. 32 (1999), the Supreme Court concluded that the government may selectively grant access to public record information. A California law required those seeking access to records of arrestee information to promise that the data should not be used for commercial solicitation purposes. The Supreme Court concluded that the law was not “prohibiting a speaker from conveying information that the speaker already possesses” but was merely “a governmental denial of access to information in its possession” under which it had no duty to disclose.

The Court has thus created a distinction between pre-access conditions on obtaining information and post-access restrictions on the use or disclosure of the information. A law cannot establish a post-access restriction on the use of information that is publicly available. Once the information is made available to the public, Florida Star prohibits a state from restricting use.

But pre-access, the government can establish conditions upon which access is granted. In a way, this sets up a contract-like situation. The government supplies people with information if they agree to use it only in certain ways. This is similar to when the government offers other benefits and specifies how they should be used. There are some limits — the unconstitutional conditions doctrine — but these limits have generally not been very restrictive.

Regarding policy, I believe that information use restrictions are a terrific way to balance the government’s making information publicly available and protecting privacy. Otherwise, the government is caught in a difficult zero-sum trade-off between public access to information and privacy. To protect privacy, governments would have to restrict the disclosure of the information entirely, but this would make less data available to the public. With use restrictions, such as those in the California Megan’s Law, the government can make the information available to protect people but can limit uses that do not further this purpose. This can prevent undue discrimination against those sex offenders who have been released from prison and who are trying to rehabilitate themselves.

I could go on for much longer, but I’ve sketched out the basic point. If you want to read a more detailed argument, check out this article, this article, and my book, The Digital Person.