When is Reality TV Journalism? The Realhousewives Lawyer Up

I'm a tremendous fan of no good television. Indeed, I've been known to watch Bravo's The Real Housewives of New York City, to fill the long hours waiting for the new episodes of Top Chef. As it turns out, the show provides an (arguable) hook for an odd legal issue: when does a reality t.v. look like journalism?

Briefly, the show follows several "housewives" as they purport to go about their daily business in New York City. (The "housewives" often have jobs outside the home. And they aren't all married. And parts of the show are obviously scripted. And everyone is wealthy. Please don't let the details get in the way of the feel-good trash.) One, Bethenny Frankel, a chef, was dating Jason Colodne, President of Patriarch Partners LLC, a private equity firm specializing in distressed company turnarounds.

Colodne appeared briefly in the show, where he did little except for appear very, very uncomfortable with the idea of being on T.V., and watch his girlfriend emote. The day the show aired, he was fired from his job at Patriarch, which claimed that his appearances violated the firm's extremely low-profile ethos.

Colodne sued Patriarch, alleging breach of his employment agreement, and sought $55,000,000 in damages. According to the complaint, although Patriach fired Colodne for cause, that cause was pretextual, i.e., unrelated to the television show. The litigation remains mired in discovery in the Southern District.

The interesting aspect, for fans of reality t.v., is a side-suit in California, in which Patriarch sued to enforce a Rule 45 subpoena against Ricochet Television, the producers of the Real Housewives franchise. In the memorandum in support of its subpoena, Patriarch asserted that it needed access to unaired video footage of Colondne, as well as any correspondence in which the producers set out the boundaries of his involvement. It asserted that under New York's journalist shield law (which it argued applied under California choice-of-law principles) Ricochet had to turn over the information requested.

Ricochet, by contrast, argued that it was entitled to the protection of California's journalist shield law, which it argued applied, as reality t.v. deals with matter of public concern, and is more like the nightly news than you might think.

Unfortunately for fans of the law of reality t.v., the parties settled before a judge ruled on their motions. But it seemed like a fun hypothetical to share with you anyway.

(Image Source: Gossip hound and reporter Walter Winchell, courtesy of Wikipedia)

Posted by hoffman at 03:58 PM | Comments (0) | TrackBack

"Not a cough in a carload:" Images from the Tobacco Industry's Campaign to Hide the Hazards of Smoking

In 2005, Stanford's Humanities Center hosted the conference called "Agnotology: The Cultural Production of Ignorance, which included papers like "Manufacturing Uncertainty: Contested Science and the Protection of the Public's Health & Environment" and "Deny, Deny, Deny: How to Sow Confusion over Climate Change." Now Stanford Medical School is hosting a fascinating collection of ignorance-generating advertising entitled "Not a cough in a carload:" Images from the Tobacco Industry's Campiaign to Hide the Hazards of Smoking.

The collaboration of doctors in the ad campaigns is one of the most surprising aspects of the exhibit:

One technique used by the tobacco industry to reassure a worried public was to incorporate images of physicians in their ads. . . . The images were always of an idealized physician, wise, noble, and caring, who enthusiastically partakes of the smoking habit. Little protest was heard from the medical community . . . perhaps because the images showed the profession in a highly favorable light . . . . This genre of ads regularly appeared in medical journals such as JAMA, an organization which for decades collaborated closely with the industry.

The industry made some health claims for cigarettes; they were deemed better than sweets, and therefore "dentist recommended." Camel claimed that "you can smoke as many Camels as you want, their costlier tobaccos never jangle your nerves." And a calmed Rock Hudson appears in an ad claiming that, without Camels, "you may yip like a terrier" with anxiety. It's fun to compare the 1930s to 1950s ads with the sleek corporate style depicted in the documentary Helvetica.

Posted by Frank_Pasquale at 06:13 PM | Comments (2) | TrackBack

Drug Cartels And Propaganda

What if major crime groups started to post banners, drop leaflets, use noise campaigns (cars with speakers broadcasting a message), run Internet videos with gruesome scenes, and other propaganda techniques to question the government? What if the messages stated that a public official, a police officer, a special agent, a whole department, and so on are corrupt? If you think that it could never happen, know that it is happening in Mexico.

As the Dallas Morning News reports the drug war in Mexico is taking on conventional war tactics including propaganda.

Hanging from the church fence in Monterrey was a banner more than a dozen feet high addressed to President Felipe Calderón, accusing the government of favoring some cartel groups over others – a charge the government denies – and appealing for a more balanced approach. "We urge you to put neutral commanders in these jobs and not allow the narco police to stay," it read in neat black block letters. At least two dozen similar banners in 14 cities and six states appeared Monday in public places. The Monterrey church is in front of City Hall.

The article notes that these moves are tactics to counter the government’s message regarding drugs and Mexico’s war on drugs. And although the tactics are being called a disinformation campaign, it seems some of the messages may have truth in them. As the News reported in one case a cartel used propaganda to allege that an official was corrupt and possibly working for another cartel. Shortly after the banners went up, the official was arrested for corruption and protecting a cartel.

Who knows? Perhaps the tactic will catch on here in the U.S. If so, I wonder whether those who favor more information will want to protect the acts or not.

Image: "STOP THIS MONSTER THAT STOPS AT NOTHING. PRODUCE TO THE LIMIT. THIS IS YOUR WAR., 1941 - 1945" Creator: Office for Emergency Management. Office of War Information. Domestic Operations Branch. Bureau of Special Services. (03/09/1943 - 08/31/1945). Propaganda

Source: WikiCommons

Posted by Deven_Desai at 05:35 PM | Comments (6) | TrackBack

Privacy and the Media

Shameless self-plug alert: I'm pleased to announce the publication of my new casebook with co-author Professor Paul M. Schwartz (Berkeley Law School) -- PRIVACY AND THE MEDIA. [Amazon page here.]

This short paperback contains key cases and materials focusing on privacy issues related to the media. Topics covered include the privacy torts, free speech, First Amendment, paparazzi, defamation, online gossip and social network websites.

This book is designed for use as a supplemental text in the following courses and seminars: journalism, entertainment law, media law, Torts II (or advanced torts), cyberlaw, First Amendment, free speech, law and technology, privacy law, and information law.

More information about the book is available here. I posted the table of contents online.

To obtain a review copy, please email Diane Warren at Aspen.

I'm also pleased to announce that the new editions of my other casebooks are now in print -- INFORMATION PRIVACY LAW (3rd edition) and PRIVACY, INFORMATION, AND TECHNOLOGY (2nd edition). Click here for more information.

Posted by Daniel Solove at 10:39 PM | Comments (0) | TrackBack

An Obscenity Crisis?

Jeffrey Rosen has written thoughtfully about indecency and the rise in foul and degrading language and images. I'm broadly sympathetic with his approach, and this blast from the past suggests the difficulty of doing much after the horse of coarseness is out of the barn:

Before they won the rights to use Spider-Man, the PBS educational show The Electric Company introduced a new hero called Letterman in 1971, in a series of animated cartoons. Letterman – “faster than a rolling O, more powerful than a silent E, able to leap a capital T” – would fly to the scene of a problem a fix it by plucking letters from his sweatshirt, changing bad words into good words. He would change “gun” to “bun”, or “tickle” to “pickle” (revealing, presumably, that “tickle” is a bad word). If he had enough letters, no doubt he could change “superhero” into “what a ridiculous superpower.”

As Chris Fairman notes, the regulation of social meaning can be a very difficult task; a "process of silenc[ing can] enable[] small segments of the population to manipulate our rights under the guise of reflecting a greater community."

Posted by Frank_Pasquale at 06:12 PM | Comments (0) | TrackBack

Open Source Censorship

In nations with strong Internet censorship policies, the government typically runs the effort to block unwanted Web content. China, for instance, uses its vast resources, both technological and human, to maintain its Great Firewall. But Saudi Arabia has followed a different path to acheive similar results. As Business Week reports, Saudi Arabia claims to rely on its citizens to recommend sites that should be blocked. The government reportedly receives roughly 1,200 messages a day, typically students and religious leaders, flagging offensive sites. Its Communications & Information Technology Commission (CITC) only has 25 people working on censorship issues although it does employ software to block clear-cut violations of its communications policy, such as web sites for pornography and gambling. CITC uses software from San Jose-based Secure Computing that offers a menu of 90 categories of sites to block.

Groups that monitor press freedom around the world suggest that Saudi censorship policies are "among the most restrictive in the world" in targeting criticism of the royal family and religion. Human rights group Reporters Without Borders has extensive coverage on Saudi Arabia's censorship policies. For instance, all discussions of women's rights are blocked. And, as Business Week notes, local blogger Fouad al Farhan was jailed early this year for advocating political reforms. While Farhan wrote under his own name, most of the country's 2,000 bloggers write anonymously.

The CITC, however, suggests that its censorship has the imprimatur of its citizens who participate in the government's efforts to ban pornography and unpopular ideas. It explains that only 40% of its citizens are concerned about its censorship efforts. Questions remain as to whether citizen participation in the work of CITC is, in fact, as wide-spread as the government suggests and whether our free speech values truly do have little resonance there.

Posted by Danielle_Citron at 11:03 AM | Comments (2) | TrackBack

Today's Secret Word: Porno

Yes the favorite oddity of American culture is back and just in time for Halloween. We don't mind ultra-violent films but say porno or show some nudity and it's time to ban a film. First, note that part of the ad campaign for Zack and Miri Make a Porno have dropped the "Make a Porno" part of the title. Yes it is such a bad word. Now it seems that Larry Miller, owner of the Utah Jazz and the wildly cleverly named Megaplex Theaters has banned the film from his theater chain.

Fair enough. That is his choice. The odd part is that the chain has happily run Saw V "which features beheadings and explicit self-mutilation" and is "Rated R for sequences of grisly bloody violence and torture, language and brief nudity." It also runs Quarantine "Rated R for bloody violent and disturbing content, terror and language."

Now suppose that the issue is, as claimed, that Porno has "'graphic nudity and graphic sex' and that it was 'too close to an NC-17.'" How does one explain that Sex Drive, Rated R for strong crude and sexual content, nudity, language, some drug and alcohol use - all involving teens. is playing on a couple screens within the Megaplex chain?

It is perhaps one word, a five letter word, porno. AHHHH!!!!! RUN AWAY!! RUN AWAY!!!! The horror. The horror. Oh no that's the porno. The porno.

Family Safe Media claims some rather wild numbers for the porn industry ($13.3 billion spent in the U.S. and $97 billion worldwide) and concludes "As you can probably see from reading the above statistics, it is important to have a complete Internet safety program in place consisting of an Internet filter and parental controls" which it happens to sell. Yet a Fox News story from 2007 claims that the U.S. porn industry had "Total revenue for 2006 ... at an astounding $12.92 billion." compared to $9 billion for "legitimate mainstream American cinema."

With all that money being spent and all that media being consumed can just the word porno really cause such a stir? Apparently so.

Then again it may be that Kevin Smith just upsets folks. For some it is the subject matter of his films. For me, it is that some of his films are decent and some are rot. In fact, they're all rubbish! That's it! My theater chain hereby bans all Kevin Sm.. What? Oh the kids like his stuff? I don... Huh? He is doing a new movie called Jeb and Rebba Make a Gorno? Brief nudity and lots of dismemberment? All right. I kind of like that. Let's run it on four screens.

Posted by Deven_Desai at 02:29 AM | Comments (7) | TrackBack

Judge Kozinski: The First Amendment Is Dead

Judge Alex Kozinski came to Temple this afternoon and delivered the Arlin Adams lecture, on "The Late, Great First Amendment." Typically provocative, Kozinski argued that individuals' inability to bring effective lawsuits for internet speech renders obsolete existing First Amendment doctrine. In his view, traditional First Amendment doctrine had promoted an informed democratic discourse by maintaining a threat - though remote - of the possibility of recovery for libel, defamation, copyright infringement, trademark infringement, and spreading protected national secrets. By contrast, given the Streisand effect and Wikileaks' portability and thus immunity, the modern world provides no effective remedies for unprotected speech.

Without liability pressure disciplining the speaking market, Kozinski sketched out a distopian lemons market for speech: untrusted intermediaries, unreported international and national news, and a cacophony of speakers saying little of interest.

I'm running off to class now, so I don't have time for an extended analysis, but it strikes me that Kozinski's eulogy for the First Amendment was premature for at least three reasons: (1) the kind of mass media he mourned - protected by a prior restraint doctrine and fattened by classified ads - is the exception and not the norm in our tradition, so any conclusions relying on the Amendment's relationship to the particular character of the news media seem overdrawn; (2) as my colleague David Post pointed out, there are strong economic reasons for online intermediaries to establish transparent reputations for honesty - that is, technical warranties ought to solve the lemons problem; (3) speech may be governed by law even if plaintiffs can't effectively enforce available legal rules. Think international law. Or, closer to home, think about the duty of care in Delaware. No one really believes that corporate actors are acting according to their whim and fancy despite facing no remedy for their negligence. If the First Amendment has no downside teeth, it can still create sticky norms.

As I said, a great speech. It featured references to David Lat & the Volokh Conspiracy, among others. But not CoOp. Maybe we ought to be running a hotties contest.

More later (maybe.)

Posted by hoffman at 06:33 PM | Comments (11) | TrackBack

COINTELPRO in a Digital World

In a move reminiscent of the FBI's infiltration of political advocacy groups in the 1960s and early 1970s, the Maryland State Police engaged in covert surveillance of groups opposed to the Iraq war and capital punishment. According to a report recently released by former Maryland Attorney General Steven Sachs, Maryland troopers secretly attended meetings of anti-death penalty and anti-war activists in 2005 and 2006. At one meeting, a small group of activists met at a church to call a death-row inmate for whom they provided emotional support. This activity, and others like it, prompted the Maryland State Police to include group members in state and federal criminal intelligence databases. Unfortunately for the activists, the state database, known as Case Explorer, had a limited drop-down screen for entering names, all of which ensured that the users of the system would categorize individuals as terrorists.

News of the covert surveillance and the individuals' inclusion in these databases as terrorists came to light this summer when the Maryland State Police responded to a public records request pursued by the ACLU. Maryland Governor Martin O'Malley commissioned former AG Steven Sachs to investigate the matter. Sachs's report explains that the Maryland State Police commanders never bothered to ask if the groups posed a reasonable threat to public safety before commencing covert surveillance of them. On the contrary, the groups were determined not to violate the law. According to the New York Times, Maryland State Police are now tracking down 53 "innocent individuals to let them know they were entered as suspected terrorists" in the state and federal databases for their involvement in peaceful protest. In legislative hearings in Annapolis, Maryland this week, former Maryland State Police superintendent insisted that the program was a legitimate surveillance of "fringe people" who wanted to "disrupt the government."

To be sure, the surveillance itself raises serious concerns about chilling protected political expressive activity. But it also demonstrates the profound power of automated systems, whose design forces important decisions to be made about individuals. By requiring police to categorize individuals as some form of "terrorist," the systems' design effectuated an important decision about those individuals, one that could have serious impact on their reputation and lives if that information were released. The digitization of such designations has a lasting, generative power, far beyond the FBI files of the COINTELPRO era that could not be shared with the ease of today's networked computer systems.

Posted by Danielle_Citron at 03:00 PM | Comments (1) | TrackBack

The Sanctity of Polling Places

This election season, like others, will involve a variety of contests relating to political and other activity at or near polling places. Already officials in Kentucky, Pennsylvania, and Nebraska have encountered (or in some instances engendered) some confusion regarding whether voters may wear campaign paraphernalia to the polls. Various exit pollers, campaigners, and petitioners have also filed lawsuits alleging that restrictions on activity near polling places violate the First Amendment. Although much of the focus leading up to election day has been on registering voters, we should also be aware that polling places themselves are hotly contested democratic venues. Voting is not the only action at the polls.

Of course, activists and lawyers are acutely aware that confusion regarding and limitations upon the exercise of the franchise can substantially interfere with the fundamental right to vote. Indeed, particularly in close elections, allegations of voter interference, fraud, and disfranchisement are now rather routine. But these same concerns have contributed to the transformation of many polling places into politics- and speech-free zones. The substantial limits on political and press activity within these zones raise serious First Amendment concerns. There are, of course, sound reasons (i.e., ensuring access and providing for the orderly administration of elections) for imposing some limits on political campaigning near polling places. Indeed, the Supreme Court, in Burson v. Freeman (1992), upheld Tennessee's ban on political activity within 100 feet of polling places under a strict scrutiny standard. But as Justice Stevens observed in dissent:

Campaign free zones are noteworthy for their broad, antiseptic sweep. The Tennessee zone encompasses at least 30,000 square feet around each polling place; in some States, such as Kentucky and Wisconsin, the radius of the restricted zone is 500 feet–silencing an area of over 750,000 square feet. Even under the most sanguine scenario of participatory democracy, it is difficult to imagine voter turnout so complete as to require the clearing of hundreds of thousands of square feet simply to ensure that the path to the polling place door remains open and that the curtain that protects the secrecy of the ballot box remains closed.

We must be careful, as Justice Stevens said, not to "confuse sanctity with silence." Despite the First Amendment concerns associated with polling place limits, many states have imposed bans similar to Tennessee's. Many have also sought to restrict press activity such as exit polling near polling venues. The media have generally been successful in challenging these restrictions. Officials seem to have over-reacted to the perceived dangers of this form of information-gathering. Although exit polling has a somewhat checkered history, including in the 2000 presidential election, there is no evidence that it generally interferes with the franchise or disrupts elections. A district judge found in one case that of the 5,090 complaints registered by Florida voters in the 2006 congressional elections, not a single one related to exit polling.

So as we go to the polls in a few weeks, let us hope that the various limits on campaigning and other "political" activity near polling places will not be used to deny anyone access to the ballot. We should also hope that petitioners and exit pollsters will have reasonable access to the voting public.

Posted by Timothy Zick at 02:24 PM | Comments (1) | TrackBack

The State of the First Amendment

The First Amendment Center has released the results of its annual nationwide survey regarding First Amendment liberties. As usual, respondents expressed general support for free speech and other First Amendment liberties. But when asked about specific situations, the answers suggest a willingness to accept a substantial measure of governmental control.

As usual, a number of survey questions related to broadcast and other media. There was substantial support for content restrictions and even some government directives with regard to media. For example, 66% of respondents said the government should require television broadcasters to allot equal time to liberal and conservative broadcasts (62% would extend that requirement to newspapers); 39% of respondents would extend the indecency regulations applied to broadcast television to cable and satellite media; and 38% would permit government to require broadcasters to report a specified amount of "positive news" in return for licenses to operate. These numbers are relatively consistent over the past several years. One number that did creep up a bit--the number of respondents who agree with the statement "the falsifying or making up of stories in the American news media is a widespread problem" (66%).

Various other content regulations also garnered substantial support. For example, nearly a third of respondents disagreed that musicians should be allowed to sing songs with lyrics that others might find offensive; 42% responded that speakers should not be allowed to say things in public that might offend religious groups; 54% said the same thing with respect to racial groups. And 50% thought schools ought to be able to discipline students for posting (while off campus) entries on social networking sites that may be "disruptive" to school classes. These numbers, too, seem relatively consistent across time.

These, however, were not the most interesting (or disturbing) results of the survey.

What really caught my attention was the number of adult Americans surveyed who could not name a single First Amendment liberty. Four in ten respondents could not name even one of the freedoms mentioned in the text of the First Amendment -- the lowest percentage in the 11-year history of this survey. I recall one particular experience that is consistent with these results. Years ago, I was listening to a radio program during which callers were challenged (with prizes at stake) first to name a freedom in the First Amendment and then to state the last name of a Simpsons character. Most of the callers in this (admittedly unscientific) sample readily identified Apu's last name (Nahasapeemapetilon), for example, yet could not list even one First Amendment freedom.

At the risk of sounding "elitist," that's just appalling. I used to think that events like "Constitution Day" were somewhat gimmicky. But this and more would seem to be necessary -- not to celebrate the Constitution, but to simply learn something about its basic principles. Among other fundamental problems, results like these expose high-minded principles like "consent of the governed" as somewhat farcical notions. How can you consent when you don't know the basic rules under which you are actually being governed? Perhaps I'm making too much of the inability of 40% of respondents to simply list First Amendment freedoms. There are, after all, 27 amendments -- can we really expect Americans to know what they all say? Perhaps these respondents understand their First Amendment freedoms on some other terms, or by some alternative name. I have serious doubts about the latter proposition. As to the former, which I admit was offered somewhat sarcastically, I don't think it asks too much of the citizenry upon which so much First Amendment theory and doctrine rests to at least have the power of recall with regard to these essential liberties. So I wonder, to get back to the survey results, how many of the 40% who cannot list a single First Amendment freedom are among those who would accept, for example, outright content restrictions in public places. After all, you can hardly be expected to defend liberties you don't even know exist.

Posted by Timothy Zick at 03:58 PM | Comments (2) | TrackBack

The Fleeting Expletives Case

In preparation for a Supreme Court Preview event here at William & Mary, I've been reading the briefs in FCC v. Fox, the so-called "fleeting expletives" case. I am to serve as one of the "justices" at our simulated oral argument (the Supreme Court will hear argument on November 4), in which Erwin Chemerinsky and Tom Goldstein will be advocates. The case is presented to the Court as a run mine administrative law case. For those not familiar with the case, it involves review of the FCC's decision in 2004 to sanction broadcast of even isolated or inadvertent ("fleeting") expletives. The policy change seems to have been animated by fleeting utterances of variations of the words "fuck" and "shit" by Bono, Cher, Nicole Richie, and a host of "shock jocks." At the risk of having myself recused, I want to briefly address what Fox refers to in its merits brief as "the 800 pound gorilla in the corner of the room" -- whether the FCC's indecency regime comports with the First Amendment.

In its "contextual" enforcement since the change of policy, the FCC has held that the use of expletives in Saving Private Ryan and on a morning news program were not indecent, while the use of expletives in a documentary on the blues was sanctionable. In any other context, of course, this sort of regime would raise serious and likely fatal First Amendment problems. That it does (or may) not in the broadcast context is owing to the Court's decision in FCC v. Pacifica Foundation (1976), which narrowly permitted the FCC to move the "verbal shock treatment" of the Carlin "Filthy Words" monologue and other "indecent" expression into a "safe harbor" (10 p.m. to 6 a.m.) when children would be less likely to be listening and watching. If the First Amendment is the "800-pound gorilla," Pacifica is the elephant in the room in the pending case. Its limited grant of authority to the FCC was largely premised on (1) the "uniquely pervasive presence" of broadcast media and (2) the fact that broadcast content was "uniquely accessible to children." But today neither of these premises seems factually correct. Cable, Internet, and other media are as or likely more "pervasive" than broadcast, and all are accessible to children. In addition, technologies like the V-Chip would seem to offer less restrictive alternatives to the expansive indecency regime now used by the FCC. Finally, as Fox notes, several decisions subsequent to Pacifica have invalidated indecency standards very similar to the one enforced by the FCC. For these and other reasons, in the final portion of its brief Fox argues that the FCC's present indecency regime violates the First Amendment.

I think there is some merit to Fox's arguments, although the Court need not and likely will not go this far in the pending case should it decide to reject the FCC's policy change. But is it time to go even further, and overrule Pacifica? I've always had some trouble accepting the Court's rationale in Pacifica, including the notion that the broadcast of certain words is akin to an unavoidable "assault." But at this point the decision seems like a glaring anachronism. I admit that in a world slathered with so many forms of indecency, there is an argument for preserving at least this one safe haven or zone of decency. And I have no sympathy for the networks if, as some suspect, their challenge is based on a perceived competitive disadvantage with cable in the race to the cultural bottom. But would broadcast really devolve into an expletive free-for-all if the FCC stopped policing for "indecent" words? (It didn't in the decades leading up to the FCC's policy change.) With so many communication/entertainment options and filtering technologies available, is occasionally indecent language on broadcast stations still a substantial concern? To how many people? (Nearly all of the 234 complaints in the Bono incident were mass-generated by a single group.) In the end, I'm just not sure that the FCC's regime, including its most recent regulatory "swear jar" approach, is worth the candle. I wonder what others, particularly parents, think.

[Update: According to a recent survey, 39% would extend indecency restrictions currently applicable to cable and satellite television.]

Posted by Timothy Zick at 10:48 AM | Comments (4) | TrackBack

Meatspaces, Cyberspaces, and (Relative) Expressive Freedom

From time to time I see commentary suggesting that expression might actually be less free, or may become less free, in cyberspaces than it is in traditional physical or "meat" spaces. Consider, for example, the opening of this AP story: "Rant all you want in a public park. A police officer generally won't eject you for your remarks alone, however unpopular or provocative. Say it on the Internet, and you'll find that free speech and other constitutional rights are anything but guaranteed." I was reminded of this issue recently when I saw that YouTube's guidelines apparently now include a ban on terrorism-training videos. This newest addition to the "content bans" already in place on this and countless other sites prompted me to consider whether the concern that speech might actually be less free on the Web than in the streets and other physical places might have some merit.

The problem, of course, is that there is no way to accurately measure "relative liberty" in our physical and virtual realms. But we can make some very general observations.

For example, content bans like those in the YouTube guidelines are far more prevalent in cyberspaces than physical ones. (There is, of course, no constitutional prohibition on such bans in cyberspace, at least in privately governed virtual communities.) As a result, there is a vast amount of expression -- "hate speech," "gross" or distasteful" content, sexually explicit but non-obscene expression, encouragement that falls short of unlawful incitement, etc. -- that is (purportedly) banned in many places on the Web, like YouTube, but that would be constitutionally protected in physical places.

But concerns that virtual spaces are becoming less free than physical forums as a result of this and other limits seem somewhat alarmist, and probably incorrect. Having spent considerable time recently examining the exercise of expressive liberties in public places, I would take issue with the assumptions in the AP story quoted above. Expressive liberties are hardly "guaranteed" in physical forums. Content restrictions are, after all, merely one form of speech regulation. I found many cases in which speakers were removed from public spaces or denied access, sometimes based on content, but more often owing to failure to meet one or more detailed procedural requirements that apply to public expression. Indeed, expression that would routinely be fully protected in cyberspaces is often restricted or prohibited in physical ones. Nevermind the sexually explicit but non-obscene expression that flourishes on the Web. Think of the mall patron who is tossed out for wearing an "inappropriate" t-shirt. Or the sidewalk counselor or funeral protester displaced by various time, place, and manner restrictions. The issues of "order" and "offense" at the center of these and other "meatspace" cases are essentially irrelevant in cyberspaces.

Thus, whatever one might think of the "fences" being erected in the various frontiers of cyberspace, they do not come close to replicating the often repressive bureaucracy that affects speech in physical places. That is not to say that cyberspace restrictions cannot or will not become repressive in this sense. But as they develop, many cyber-limits are likely to be counteracted by user/speaker tactics that have no real-space analogues. Moreover, as the YouTube "ban" on terrorism-training videos shows, one of the substantial differences between cyber- and physical places is the sheer amount of alternative space available for broadcasting content that might be banned in certain places. While a limit or ban on expression in a particular physical place may effectively prohibit broadcast of the message, the videos and other content displaced from one cyber-forum will likely be posted someplace. In First Amendment terms, there are far fewer physical than virtual "alternative forums." Physical space is simply more finite; and the public physical space that might support expressive activities has been shrinking for years.

These are, of course, only a few issues that must be considered in even beginning to compare "relative" liberties with reference to place. Perhaps the better approach is not to engage in the comparative effort at all. Owing to their unique characteristics, physical and virtual spaces can often complement and supplement one another. Whatever their separate merits and flaws, together our physical and virtual spaces comprise a healthy and robust expressive culture.

Posted by Timothy Zick at 11:45 AM | Comments (1) | TrackBack

Freedom of Expression Elsewhere

Public protest and dissent have been much in the news lately -- here and in many other parts of the world. I'll highlight just two examples, with a brief comparative assessment regarding each.

The first example is from China. As was widely reported in the media during the run-up to and during the Olympics, some were hopeful that the awarding of the summer games would result in greater expressive and other liberties in that country. Alas, it was not to be. Superficially, there was more "breathing space" for public dissent. After all, authorities did designate three "protest zones" in Beijing. Of course, one had to apply for a permit to use these spaces. Those who applied were promptly arrested, based solely on their desire to protest government policies. Some putative foreign protesters were deported. In the end, not a single permit was issued. A report in today's New York Times provides further evidence that the Olympics did not result in greater tolerance for public dissent in China. As reported, authorities recently followed a group of would-be protesters from their rural homes to the city, arrested them, and detained them (forcing some, apparently, to strip so they would not attempt to flee) before they could mount a peaceful public demonstration.

Those (like myself) who are critical of governmental efforts to repress protest and contention in this country must of course acknowledge that things are worse -- sometimes, as this story suggests, far worse -- in other parts of the world. Of course, we ought not to use a country like China as our civil liberties index. And there are, in fact, some interesting parallels between China's policies and our own. Where, for example, do you suppose the Chinese authorities got the idea to designate "protest zones"? Expressive zoning has become a routine aspect of public policing in this country. As well, although the American media report with some surprise that protesters in China have to "register" with authorities and get permits to speak, protesters in this country are not generally entitled to use public forums without permission either. Some, like many college students, must indeed "register" with authorities in order to speak in certain places. Indeed, permit requirements, license fees, and a host of other bureaucratic hurdles must be cleared in most places in this country before a lawful public rally or demonstration can be held. To be sure, authorities in this country generally act in good faith, and without regard to the content of the expression, in processing permits and issuing registrations. And authorities here, again generally speaking, do not detain putative protesters without just cause and mistreat them. But that does not mean it is never done -- as events at many recent public protest events in the United States, including the conventions in Denver and St. Paul, tend to show. Some of the incidents in China that seem to have captured the media's attention involved the arrest of elderly women who attempted to engage in peaceful protest. Does anyone remember the arrest and embarrassing trial of the "Granny Peace Brigade," a group of elderly women accused of blocking access to the Armed Forces Recruitment Center in Times Square? We are, as we should be, a far more open society in many ways -- and in particular in terms of public contention and dissent -- than is China. But the differences might not be quite as substantial as many would like to think.

The second example -- from Thailand -- after the jump.

For several weeks now, protesters In Thailand have been camping outside the prime minister's office in an effort to bring down the ruling government. So far the situation sounds familiar. Power to the people, right? We have become accustomed to thinking of protest in this country as largely a tactic of those "poorly financed causes of little people." But as reported, the Thai protest does not follow this model at all. This is a "top-down" protest movement. It is a protest not for more democracy, but in some sense against too much of it (although the government itself is hardly a model democracy). The interests of the rural poor, the protesters maintain, are being over-protected by the current government. It is almost impossible to fathom such a protest dynamic in this country. Of course, social and political elites have participated and at times even led protest movements in the United States. But can you imagine a protest by these and other elites complaining of the political power of rural and other poor people, and demanding greater representation of their own interests in government? Not in this democracy.

Posted by Timothy Zick at 02:24 PM | Comments (2) | TrackBack

The Political Conventions and the First Amendment

Now that the major party conventions are over, I thought I would provide a retrospective comparison of these events with their predecessors in 2004 with regard to the exercise of First Amendment liberties. Although there was much that was (disturbingly) familiar, there were some differences worth noting. Here is a brief recap:

More of the Same

1. The Protest Environment. As I noted in a prior post, the spaces around the convention centers were "militarized." This involved, among other things, physical barriers and large numbers of officers in the public places surrounding the convention sites. It is difficult to fully appreciate what this looks and feels like on the ground, absent participation in protest activities. Some participants I have spoken to recount feeling surprised and intimidated by the presence of brigades of officers in full riot gear. The show of force is, of course, at least partially meant to maintain public order and secure large public spaces. Is it also meant to intimidate and suppress? Militarization's effects on even lawful protest activity are, of course, very difficult to measure. But is it so implausible to believe that some number of potential protesters might be deterred from attending an event in this environment? We are very likely to see militarization tactics at future conventions and other mass events. I have heard comments to the effect that today's relatively small number of protest participants is indicative of a lack of enthusiasm for such activity, or sincere doubts regarding its efficacy. But we ought to be mindful of the influence of this sort of intimidating, militarized environment on public displays of contention. At some point, the costs of participating may simply be too high for some.
2. Preemptive Actions. There are reports that police and other officers engaged in pre-convention raids of some protesters' residences. This has occurred at other mass events, including summits in Washington, D.C. and the previous political conventions. The preemptive model of policing is consitent with the general transformation of public policing at mass events. Methods generally associated with combating terrorism are now being applied prior to and during public demonstrations and protests.
3. Mass Arrests/Use of Force. Hundreds of protesters and others were arrested at the conventions. Some of those arrested were engaged in unlawful behavior, for example the destruction of property. But as at prior conventions, many of those arrestred in Denver and St. Paul were released after a very short time. At the 2004 Republican National Convention in New York City, more than 1,800 protesters were arrested. Some 90% of these arrests were dismissed or adjourned in contemplation of dismissal. Of those arrested in New York, 550 were released before arraignment owing to a failure to comply with a state mandate that required arraignment within 24 hours. If the past is any guide, the vast majority arrested in Denver and St. Paul were simply in the wrong place at the wrong time. Police in Denver and, especially, St. Paul, appear to have cast very broad "security" nets on the streets. As well, as at past conventions some protesters are alleging that police unlawfully used pepper spray and other means of force to disburse crowds of demonstrators. Some civil actions against the host cities and police have already been filed.
4. Covert Surveillance. Juding from claims made by authorities in pre-convention legal challenges, agents once again engaged in extensive Web and other surveillance prior to the conventions. Whether the surveillance was of a similar scope to that performed prior to the 2004 Rebublican National Convention (18 months, global, and mostly of protesters planning lawful demonstrations and other events) may never be known -- unless the information is disclosed, as it was after the 2004 Republican National Convention in New York City, as a result of discovery in future lawsuits.
5. Protest Zoning. Finally, as at the 2004 party conventions, officials designated protest or demonstration zones to restrict the movement of protesters and their access to contested audiences and sites. These zones were challenged in court. Not surprisingly, courts in Denver and St. Paul upheld the restrictions, despite acknowledging that they interfered with lawful First Amendment activity including handbilling. As I noted in my prior post, part of the courts' reasoning was that the demonstration zones were not as repressive as those used in Boston and New York City in 2004. In the Denver case, the court held that protesters were not constitutionally entitled to be within "sight and sound" of the convention center. In essence, both courts held that demonstrators were permitted to be "close enough" to the delegates and the contested convention sites, and that there were alternative avenues of communication -- the Web, the various representatives present, and other public spaces.

Despite the many similarities, however, there were some critical differences between the 2004 and 2008 conventions with regard to the exercise of First Amendment liberties.

Differences

1. Preemptive Lawsuits. In Boston and New York City in 2004, protesters were chided by courts for not challenging protest zones and other restrictions early enough such that proper relief could be ordered. Protesters in both Denver and St. Paul filed lawsuits well before the conventions, in an effort to force authorities to disclose limits on First Amendment activity at the conventions and to entice substantial numbers of participants to join their movements. Although they gained some basic information as a result of this tactic, protesters still found themselves in court just prior to the start of the conventions. Part of the dificulty with this strategy was that authorities either had not yet determined the substantive restrictions that would apply at the two sites, or were not willing to disclose restrictions on the ground that this might compromise security. In short, although protesters were wise to start the judicial process earlier, they gained very little as a result of their preemptive lawsuits.

2. Liability Insurance. In what may turn out to be a very significant "first" in terms of convention security, the Republican host committee purchased a liability policy prior to the convention. The policy covered physical and property damage up to $10 million, and also covered the legal expenses associated with any lawsuits filed by protesters and others against state, city, and county officers. Host cities for prior conventions and summits, including Seattle and D.C., have been hit with several million dollar judgments. St. Paul was not willing to take that chance. The private insurance approach will obviously save the taxpayers substantial sums should any of the lawsuits lead to damage awards. It also enabled St. Paul to give assurance to officers from outside the city that their legal expenses would be covered, thus increasing the size of the security force at the convention. But there are two potential concerns with this unique arrangement. The first, voiced by some protesters, is that insuring officers in this manner may encourage them to act more aggressively. I'm not sure about that. For one thing, the host cities would generally provide legal defenses for officers engaged in public policing activities. For another, I'm not sure many officers would make this sort of calculation in determining how to act on the ground and in the moment. The other concern, however, is that large damage awards against cities are a form of public accountability for actions by public officials. If the taxpayers are incensed by them, they can vote the bums out. That check no longer exists once the expense is shifted to a private party.

3. Arrests of Journalists. The security nets at the 2004 conventions were broad. But I do not recall them sweeping in nearly as many journalists as were arrested at the 2008 conventions, particulary the event in St. Paul. There are reports that AP reporters, camera crews, and well-known journalists like Amy Goodman were arrested in St. Paul. Journalists do not have any special First Amendment right to be in officially restricted areas. But authorities, out of respect for their constitutional and public functions, and probably to avoid adverse publicity, have generally avoided arresting them --at least without substantial cause. Some of the video accounts (and this form of evidence, as Howard Wasserman has noted, is becoming increasingly prevalent) suggest that officers acted quickly (and in some cases forcefully) to arrest journalists who were reporting as protest events transpired. I do not know whether, as some have suggested, journalists were actually targeted by police. We can only hope that their being swept into the security dragnet will not affect reporting at future events.

4. Terrorism Charges. Finally, some of the protesters in St. Paul apparently face terrorism-related charges under the Minnesota version of the federal Patriot Act. It will be interesting to see what conduct precipitated those charges. If it was nothing more than public disruption or, worse, advocacy of "anarchy," future protesters (most of whom are now subject to surveillance) may take note of the enhanced risk of public demonstrations and contention.

Posted by Timothy Zick at 04:00 PM | Comments (1) | TrackBack

The Reaction to Convention Militarization

Brian Leiter wonders why more legal bloggers, especially those of a libertarian persuasion, have not commented on the happenings outside the political conventions. In particular, Leiter highlights the arrest of Amy Goodman and other journalists. This silence is in stark contrast to the abundance of commentary regarding what transpired within the convention halls. To be fair to the blawgosphere, there has been some limited commentary on these matters. But not, as Leiter correctly notes, nearly as much as one might expect given the serious nature of the First Amendment contests that occurred outside both conventions.

As in 2004, the 2008 convention protesters confronted what I refer to in my book as the "militarization" of public space. At these critical democratic moments, officials again engaged in pre-event surveillance (overt and covert), "preemptive" raids, designation of national conventions as "National Special Security Events" (among other things, this places the Secret Service in charge of convention security), substantial shows -- and in some cases uses -- of force, mass arrests, and spatial restrictions on protest activity. Militarization at political conventions has historical roots in the 1960s; but it has become a unique form of repression since September 11, 2001. We shall see how the mass arrests are resolved in the courts. As for the physical restrictions on expressive activity, courts in Denver and St. Paul upheld limits on the location of protest activity as content-neutral time, place, and manner regulations. In both cases, the courts made a point of observing that the restrictions in 2008 were not as bad as those imposed on protesters in 2004 -- in particular the protest cage erected in Boston. That is, of course, an extraordinarily low bar.

I plan to compare the conventions of 2004 and 2008 in terms of the exercise of First Amendment liberties in a subsequent post. I want here, however, to respond to Brian Leiter's comment regarding the paucity of commentary on some of the "police state" tactics in Denver and St. Paul.

It may simply be the case that many people -- members of the general public, public officials, and academic libertarians -- have come to view militarization as invevitable and in some sense justified. Perhaps many have simply accepted the government's claim that in order to preserve "security" for the general public at mass events like political conventions, protest activities must be curtailed (sometimes substantially so). One cannot, of course, completely discount the possibility of violence or terrorism at such events. Thus, officials must prepare for the worst case. Insofar as seemingly innocent persons like Amy Goodman are swept into the broad security net, this may be viewed by some as "collateral damage." It is unfortunate, to be sure, but in the eyes of many probably not malicious or abusive under the circumstances (at worst, a few bad apples . . . ). So long as no attack or other violence occurs, officials in this context, as in others, seem to receive substantial credit from the public for "keeping us safe." This is, on a much smaller scale, something like crediting the Bush Administration for keeping the general public safe from terrorist attacks -- again, irrespective of the loss of liberty for some persons. In sum, it may be the case that many simply believe that the government has properly balanced liberty and security in this context.

But there is a less rational and, I fear, equally plausible reason that many people are not especially bothered or exercised by the events in Denver and St. Paul. There is a palpable sense, at least from the comments the public has posted in response to certain news accounts and videos, that the protesters essentially got what they "deserved." Many may believe that these "troublemakers," some small number of whom are self-professed "anarchists," should not be publicly dissenting and trying to disrupt political conventions in the first place. Public protest, on this view, is a socially and politically useless exercise. More than this, some may well view it as "unpatriotic." I don't know, of course, whether it is fair to go so far as to say that the (mostly) silent masses simply do not like protesters -- and thus cannot be bothered to defend their right to protest peacefully and to be free from police state tactics and violence. But there does seem to be very little, and decreasing, tolerance for their activities. Perhaps this intolerance even extends to journalists, who can highlight protesters' messages and instances of abuse. This generally negative attitude holds not only at high-profile conventions but across a range of places and contexts. In the book, I discuss many instances of police misconduct and denial of fundamental expressive rights that received little or no attention from the media, law professors, or other commentators. These are instances in which our high First Amendment rhetoric fails to match the reality on the ground.

Perhaps to highlight an egregious case like Goodman's may, for some, come too close to acknowledging that officials in Denver and St. Paul (as in Boston and New York in 2004) over-reacted or abused their authority in some circumstances. It may come uncomfortably close to acknowledging that none of the peaceful protesters arrested or subject to abuse at the conventions actually "had it coming."

Posted by Timothy Zick at 04:30 PM | Comments (15) | TrackBack

Pole Dancing: The New Pilates?

The New York Times, among many other outlets, reports today on a dispute between a pole dancing instructor and a local zoning board in a suburb outside Pittsburgh. The instructor was denied a permit to operate her business, which offers instruction in “pole dancing, power lap dancing, salsa and other forms of dance and fitness.” The permit was allegedly denied on the ground that the dance studio is an “adult” business illegally located within 1,000 feet of a bar in a residential area. The instruction apparently does not involve nudity and there is no audience. The instructor, represented by the ACLU, alleges that local officials denied the permit because of the design of her website and logo (which contains a high-heeled shoe) and because the dancing is “provocative” and involves “sexual innuendo.” If that is the case, the instructor may have a viable First Amendment claim (in addition to a statutory one regarding application of the zoning law itself). Contrtary to the popular portrayal of this case as one concerning the expressiveness of pole dancing, note that the ACLU is framing the issue as one of teaching or instruction rather than expressive dance. The Supreme Court has held that social dancing is not protected under the First Amendment. Performative dance, on the other hand, has received some protection. In particular, the Court has at least been willing to assume that nude dancing is expressive. On the matter of the expressiveness of exotic dance (including the sort that involves nudity), I recommend the (thick) description offered by Judge Richard Posner in his concurrence in Miller v. City of South Bend. Judge Posner begins: “The dancers were presentable although not striking young women. They danced on a stage, with vigor but without accomplishment, . . .” There is much, much more for the curious reader. Given the lack of any audience (other than those in the class), it seems wise to frame this as a "right to teach" case. Assuming this is protected activity, the allegations and quoted statements by officials seem to suggest content discrimination.

But I am as or more interested in the cultural implications of this case than its free speech aspects.

The Times article notes that pole dancing instruction has been “gaining in popularity across the country.” It is difficult to know whether this is true, although there seems to be some anecdotal support for the claim. In some communities, the book club seems to have been replaced (or supplemented) with pole dancing instruction. The phenomenon is not limited to the U.S. It appears to be catching on in (of all places) China (check out the video report for a sample of the instruction provided). While the report on China suggests that many of the female students there might never have seen a stripper, I would imagine that the connection, particularly although not exclusively among adult women, is clear enough in this country. So what explains the apparent rise in the popularity of this form of instruction? Is it simply a function of boredom with conventional workouts? Is it, as some have argued, a form of release for the stay-at-home mom? A form of female empowerment? I suppose some exercise is better than none at all (although the experts seem to disagree regarding the health benefits of pole dancing). Regardless of its benefits or rewards for those middle-aged and even beyond, I doubt many would suggest that this is something teenage girls (some of the Chinese students appeared to be quite young) should be encouraged to do in lieu of or in addition to, say, soccer. But as a consumer and observer of pop culture, I realize I could well be wrong about that.

Posted by Timothy Zick at 04:06 PM | Comments (4) | TrackBack

Porn Air

I’m delighted to be back at Concurring Opinions. As I did during my last visit, I plan to write primarily about First Amendment issues. During work on my book, Speech Out of Doors, I was immersed in some of the more traditional aspects of expression – public forum issues, face-to-face expression, acts of public protest, and regulation of public expression. I’ve been thinking lately about the extraordinary transformation of the First Amendment, particularly during the last decade or so. The very meanings of “speech,” “assembly,” “petition,” and “press” have been significantly altered, primarily as a result of technological and communicative advances. Among the changes are a variety of new forms of speech, online protests and assemblies, an increasingly Web-based politics (i.e., online fundraising, the YouTube debates, the recent Obama vice presidential text), and of course the phenomenon of a “citizen press.”

One significant aspect of this expressive transformation involves the mobility of expression. In an article and in the final chapter of my book, I examine some of the ways in which mobile computing technologies are transforming the communicative environment and the First Amendment. It is, of course, a tremendous convenience to be able to access the Web from wherever one happens to be. As well, new technologies can facilitate “smart mobbing,” public social networking, and spontaneous gatherings. But always-on access will occasionally expose us – in some cases fleetingly, and in others in a more intrusive manner – to the communicating and viewing habits of others. A few years ago I recall reading news reports about “drive-by porn” – the visible display of pornographic images on video monitors inside vehicles. Phone service providers in the U.S. have been much slower than their counterparts in other parts of the world to allow sexually explicit content to be accessed through their services. But given the market for such content, how long will this be the case? And now some airlines are making wireless Web access available on flights. This is welcome news for passengers who wish to remain connected in the air. But it has raised the concern that some passengers will access sexually explicit content in flight. This will render some passengers “captive” to expression they (presumably) will not want to see (and possibly hear). The airlines apparently plan to have flight attendants monitor Web use, and presumably intervene when “inappropriate” content is accessed. Some brief thoughts on “Porn Air” after the jump.

First, is this really going to be a problem? Will passengers access pornographic content in the close quarters of the airline cabin? After all, pornography exists in many physical forms; there do not seem to be any instances of passengers flipping through Playboy and Penthouse in flight. One would expect that most passengers would feel socially constrained in such an environment, and that they would defer such viewing at least until they arrived at their hotels or other destinations. But there will undoubtedly be exceptions. Prior to entering academia, I was part of the trial team that defended the Children’s Internet Protection Act (CIPA). CIPA requires that schools and public libraries receiving certain federal funds install content filters on Internet terminals. In the course of defending CIPA, I examined the viewing habits of (anonymous) patrons at various public libraries across the United States and interviewed many librarians. Many library patrons seemed to have no reservations about viewing pornography in the public spaces of the library. I have also seen a few customers in coffee houses viewing pornographic content in full view of other customers (including children). Perhaps these people believed they were being discrete. Perhaps they did not care. In any event, it seems that although this is not likely to be a common occurrence or issue, at least some small number of passengers will view sexually explicit content in the air.

Assuming in-flight porn surfing will occur, what if anything can or should be done about it? It certainly seems irresponsible, not to mention potentially dangerous, for the airlines to simply let the passengers settle any disputes about viewing habits themselves. On the other hand, do we really want flight attendants monitoring or regulating access to Web content? Suppose a passenger is offended by suggestive but non-sexually explicit content? Will that passenger possess something akin to a heckler’s veto? There is, of course, technically no First Amendment issue here (assuming flight attendants are not required to monitor usage pursuant to some government mandate). But this scenario does place both passengers and flight attendants in a rather awkward and potentially adversarial position with regard to personal viewing habits. And, as was the case in some libary systems, it could engender a hostile work environment for some flight attendants. Most importantly, perhaps, it seems unwise to add this task to those flight attendants are already expected to perform. In short, having flight attendants act as content monitors does not seem like a workable or wise solution.

Assuming, again, that social norms are not sufficient to deter this behavior, is there a technological or physical fix that might relieve flight attendants from monitoring the use of mile-high Wi-Fi? As in the library setting, perhaps a content filter of some sort might be feasible and workable on planes. But as in libraries, there are bound to be complaints about blocked sites. How will those be resolved? One of the proposed solutions in the library context was to affix “privacy blinds” to the public terminals, thus preventing passersby or nearby patrons from seeing what was on the screen. Headphones would obviously solve any audio intrusions. Perhaps these, or some other technological solution, are the most appropriate response. These are issues that will likely have to be addressed in other contexts in which once "private" content and communication are transported into public places.

(Hat tip to Chris Borgen of Opinion Juris for bringing this issue to my attention.)

Posted by Timothy Zick at 11:00 AM | Comments (4) | TrackBack

Banner Planes & The First Amendment

Relaxing at the beach in New Jersey this weekend, I watched dozens of plane towing banners fly by. I suspect that I wasn't alone this particular weekend in wondering about the messages the planes were dragging. Unlike the ordinary banners, which advertise casino events, or rarely marriage proposals, all of this weekend's banners seemed to be critical of someone in City government in Longport, NJ, though its not clear quite who or for what.

"Longport - Is Mayor Russo The Premier Puppet?" "
"Ken you and Barbie look great together. Does Barbie know about peter?"
"Longport - Just Say No More to Russo's 'Gang Of Four.' Stay Tuned."
"Twinthugs plumbing. No permits needed. Premier condos and houses only."
"Ken and Joe nabbed in FBI sting. Did Ken sing?

Obscure enough to be interesting, vague enough to avoid libel, and (with nothing else to do but watch the surf come in) the topic of literally thousands of conversations over sandy ice cream.

Anyway, I looked it up. Turns out, the planes relate to a bitter zoning battle, that has turned into an even nastier first-amendment fight, as the local government here tries to prohibit a landowner from videotaping interactions with city officials. Not the kind of high drama that ends up in casebooks, but still kind of a huge, festering, mess! Law: you can't escape it, even on vacation.

If anyone else saw these banners, and recalls some of the other messages, feel free to comment.

Posted by hoffman at 10:13 PM | Comments (2) | TrackBack

Is the National Enquirer Reliable? The Revenge of Priest-Klein

Check out this good article about the National Enquirer's pursuit of the John Edwards adultery story. Contra Kaus, surely the most likely reason that the mainstream press was reluctant to follow up on the N.E.'s allegations is that the paper is, quite literally, supermarket trash, and thus presumed to be unreliable.

Not so, says its editor David Perel:

"[C]ontrary to what you might think, the Enquirer's record in courtroom lawsuits is no better or worse than other media outlets. Unknown is the number of out-of-court settlements the paper has had. 'Every newspaper gets sued; It's a fact of life,' Perel (left) said. 'But, you know, we do pretty well. That's not to say we get everything right. We don't. But you show the newspaper that does, I'll start subscribing to it right now.'"

The italicized bit is key. As the Priest-Klein selection hypothesis predicts, we can't learn much about the merits of parties' pre-suit behavior by looking at outputs from the litigation process. Maybe the National Enquirer is much less reliable than other papers: it gets more demands for retractions, pays out more cash to keep individuals from filing lawsuits, and settles earlier in the life of litigation to avoid verdicts. Or maybe it is much more reliable. Nothing about the rate that a litigant wins in court tells you a thing about that party's merits - it doesn't even tell you anything meaningful about the law firm's acuity. After all, when I used to work at Cravath, I observed that we lost much more often than we won in Court, but the cases that were publicly exposed were the exceptional runts of the litter. [That said, I think that exceptional win or loss streaks have meaning, a topic I'll likely return to in a later post, to talk about one attorney I know who has won all fifty civil jury cases he's tried over a long career.]

Still, just for fun, I checked in the WL PLEADINGS database, which contains several million complaints and trial pleadings from both state and federal court over (around) the last eight years, and ran the following searches, looking only at filed complaints:

1. "national enquirer" & libel defamation "false light" : 17 results.

2. "news corporation" & libel defam! slander "false light": 19 results

3. "Philadelphia inquirer" & libel defamation "false light" : 29 results.

4. "boston globe" & libel defam! slander "false light": 45 results

5. "new york post" & libel defam! slander "false light": 54 results

6. "new york times" & libel defam! slander "false light": 212 results

What does this tell you? Maybe that that the Times is the most reliable paper of the bunch, because it is willing to stand up for stories than other papers, at least to the extent that it forces plaintiffs to sue, while other papers prefer to settle at the first whiff of trouble. Or maybe the Times is the least reliable paper. The public data don't exclude either hypothesis. Nor is the fact that the Enquirer is the middle of the fact particularly informative. The