Concurring Opinions

Omelets and Eggs

Gerard Magliocca — Sun, 12 Feb 2012 16:03:08 +0000

I have now reached the Thirty-Ninth Congress and Bingham’s drafting of Section One of the Fourteenth Amendment, which means that my blogging will cease for a while. (Besides, I think I annoyed enough people with my posts last week. Next month I look forward to irritating people of a different persuasion when the Supreme Court hears the health care arguments.)

Couple of thoughts about the chapter that I just finished about Bingham’s prosecution of John Wilkes Booth’s co-conspirators (including Mary Surratt). The obvious irony in this case is that the great civil libertarian argued for a military trial and rejected the application of the Bill of Rights to the defendants. Here’s the more subtle point, though. But for the fame that Bingham achieved in this (highly questionable) prosecution, he may not have received a spot on the Joint Committee on Reconstruction and would not have been in a position to write the Due Process Clause into the Fourteenth Amendment. It’s probably going too far to say that Section One of the Fourteenth Amendment rests in part on the conviction of innocent people, but it’s worth pondering.

Physical Punishment and Parental Rights

Elizabeth A. Wilson — Sun, 12 Feb 2012 04:29:20 +0000

A recent study published online in the Canadian Medical Association Journal brings up the unresolved debate about parental rights and physical punishment of children. This study lends support to an argument I made some years ago in an article called “Suing for Lost Childhood” about the use of the delayed discovery rule in child sexual abuse cases. In my article, I argued that physical abuse of children and neglect can have impacts on children’s development that are as destructive as sexual abuse, but for a variety of reasons we are as a culture more attuned to issues related to children and sexuality. (I later called the analysis used in that article “narrative genealogy” as it traces the cultural origins and migrations of stories that ultimately had shaping effects on legal decisions.)

The CMAJ study reviews 20 years of published research on physical punishment of children and concludes that no evidence exists of positive outcomes. Physical punishment is correlated with aggression and antisocial behavior, cognitive impairment and developmental problems, as well as depression, spousal abuse, and substance abuse. Co-author Joan Durrant says, “”There are no studies that show any long term positive outcomes from physical punishment.” Summaries of the study say that the study refutes the frequent argument that aggression comes before corporal punishment and not vice versa. (I’ll get to the viral video of the dad shooting his daughter’s computer with a .45).

Despite the volume of studies showing the harmful effects of physical punishment (not to mention emotional abuse and physical and emotional neglect), it remains difficult even in some Western countries to challenge parents’ legal right to hit their children. The Canadian Supreme Court ruled corporal punishment within “reasonable” limits to be legal in 2004. The practice is legal in all 50 states. In contrast, the UN has been out in front of this issue. After a 2006 report found shockingly high levels of violence against children in all aspects of their lives, the UN created the position of the Special Rapporteur to the Secretary General on the issue of Violence Against Children. Since 2009, Marta Santos Pais has served in that position and the United Nations has staked out an aggressive stance anti-violence.

U.S. ratification of the Convention on the Rights of the Child (CRC) has been stalled by fears (not completely unwarranted) that the Child Convention will undermine parental rights. In response to comments by President Obama suggesting that his administration was rethinking the U.S.’s position on the CRC — now a non-signatory outlier with Somalia– the culture wars are again beginning to ramp up. A coalition of US organizations has set November 20, 2012 as the target date for the U.S. to ratify the CRC. A coalition of groups opposed to the CRC and in favor of a “Parental Rights Amendment” to the U.S. Constitution are preparing to oppose ratification. The domestic debate about the ratification CRC may soon become fiercer, now that an Optional Protocol allowing children to file an individual complaint to the Committee on the Rights of the Child will open for signatures on February 28^th.

Coincidentally, as I write this, the internet is roiling from a video a father uploaded on his daughter’s facebook where he excoriates her for a disrespectful and swear-word laden post that made it seem as if her parents are using her as a slave. The father tells his story in language just as vivid as his daughter, and I’m with him until the point when he takes his .45 and fires 8 or 10 rounds into his daughter’s computer. (“And this one’s from your mother…!”) Available here. If a husband shot a .45 into a wife’s computer, I have no doubt it would be considered an act of domestic violence. But there seems to be a lot of support for the father out there.

Super En Banc in the Ninth Circuit

Gerard Magliocca — Sat, 11 Feb 2012 03:01:17 +0000

One thought about the future of the panel opinion in Perry (on same-sex marriage) is that the Ninth Circuit can choose to go en banc without a request from the parties. Moreover, the Ninth Circuit has a unique procedure where it can go en banc from the en banc. This “super en banc” involves all of the active judges, whereas the usual one only includes eleven of them. So hold your horses on the prospects for the Supreme Court to hear this anytime soon.

Lifecycles and the Firm

Dave Hoffman — Sat, 11 Feb 2012 00:42:16 +0000

As Joan Hemingway nicely illustrated, firms ought to disclose facts about their managers which are likely to influence stock purchasing decisions, even if those facts are otherwise private and personal. Now, from a different direction, comes further evidence of the point that managers’ self-interested goals can influence their firm’s disposition. In CEO Preferences & Acquisitions, Jenter and Lewellen take a look at the relationship between CEO retirement and “the incidence, the pricing, and the outcomes of takeover bids.”

“Mergers frequently force target CEOs to retire early, and CEOs’ private merger costs are the forgone benefits of staying employed until the planned retirement date. Using retirement age as an instrument for CEOs’ private merger costs, we find strong evidence that target CEO preferences affect merger patterns. The likelihood of receiving a takeover bid increases sharply when target CEOs reach age 65. The probability of a bid is close to 4% per year for target CEOs below age 65 but increases to 6% for the retirement-age group, a 50% increase in the odds of receiving a bid. This increase in takeover activity appears discretely at the age-65 threshold, with no gradual increase as CEOs approach retirement age. Moreover, observed takeover premiums and target announcement returns are significantly lower when target CEOs are older than 65, reinforcing the conclusion that retirement-age CEOs are more willing to accept takeover offers. These results suggest that the preferences of target CEOs have first-order effects on both bidder and target behavior.”

A few thoughts.

1. As Brian Quinn noted, this is exactly what seemed to be going on in Smith v. Van Gorkom.

2. The paper includes a nice set of confounding controls, but it’d be useful to have compared founding- with non-founding-CEOS. At least anecdotally, one hears often of the founding CEO seeking cash out his sweat in a swan-song merger – and that kind of behavior seems less pernicious than a caretaker selling the company to pad her nest. In the authors’ defense, I’d imagine thatin this fortune 500 dataset there weren’t many such originating great leaders.

3. It’d be surprising if this common-sense result wasn’t already priced into the acquiring company’s shares, which might make it difficult to truly control for a recent rise in company performance against the market basket.

4. But if #3 isn’t right, I have a strong sense that I know what my new investment strategy would like. Someone want to start a corporate-executive retirement watch list with me? There are models available.

Tempest in Tempe: First Amendment in the Desert

Derek Bambauer — Fri, 10 Feb 2012 22:10:48 +0000

In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

It was a technical mistake;
Change.org was spamming ASU; and
ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

Boston University Law Review, Volume 92: Issue 1 (January 2012)

Boston University Law Review — Fri, 10 Feb 2012 20:48:00 +0000

Boston University Law Review

Volume 92 Number 1 – January 2012

ARTICLES

Statistical Knowledge Deconstructed
Kenneth W. Simons
Page 1

The New Judicial Deference
Kim Lane Scheppele
Page 89

The Supreme Court and the Regulation of Risk in Criminal Law Enforcement
Jonathan Remy Nash
Page 171

ESSAY

The Geography of the Death Penalty and Its Ramifications
Robert J. Smith
Page 227

NOTES

Defining a New Punctilio of an Honor: The Best Interest Standard for Broker-Dealers
Nicholas S. Di Lorenzo
Page 291

Showing Your School Spirit: Why University Color Schemes and Indicia Do Not Deserve Trademark Protection
Stephanie Frank
Page 329

Calling the Supreme Court: Prisoners’ Constitutional Right to Telephone Use
Peter R. Shults
Page 369

Can’t the Supreme Court Just Say No to Cameras?

Dave Hoffman — Fri, 10 Feb 2012 18:40:32 +0000

It’s been widely reported that SB.1945, if passed, would compel the Supreme Court to televise its proceedings. Here’s the relevant bill text:

‘The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.”

Two questions.

(1) This seems badly drafted to me. What does “television coverage” mean for the purposes of this bill? Does it mean that the camera gets to swivel between Justices and the attorney? That it can face the wall? But more interestingly,

(2) What ifthe Supreme Court just says no? The Marshall of the court reports to the Chief, not to the President or the Congress. What is the Coult were simply to decide, as a body, that it didn’t feel bound by another branch’s wishes on how to conduct its proceedings? Obviously, this would never actually happen. But imagine a different case, where the Congress prescribed wig-wearing? Or how long arguments would last? Or brief length or content? I recall a Larry Tribe con law exam in which the Congress wrote a law the required the court to decide its constitutionality in a matter of days. That struck me as unlikely to survive scrutiny. Similarly here, there’s a plausible separation of powers argument that the Congress doesn’t have the right to tell the Court how to run its house. That’s precisely what Mike Dorf argued in this column, and it’s surprising to me that so few mainstream journalists have picked up the objection. (But see this Scotusblog discussion.) Basically, if I were the Court and I didn’t want to be on TV, I’d consider telling Congress to go pound sand. They don’t have an army either.

What Does Jones Mean for the Exclusionary Rule?

David Gray — Fri, 10 Feb 2012 17:20:33 +0000

Many thanks to Danielle and the good folks at Co-Op for inviting me back and for again tolerating my slow starts. I am late to the Jones party, but nevertheless cannot pass on the opportunity to say a few things. Foremost, I think I represent the views of criminal procedure professors nationwide when I thank the Court most sincerely for its timing. A couple of terms back the Court issued its opinion in Gant “clarifying” Belton smack in the middle of reading week, which was difficult timing to say the least. More common practice still is the Court’s regular habit of issuing the game-changers in May and June, which requires us to write long mails to students explaining to them how much of what we said to them over the past semester ought be wiped from their memories and to make decisions about whether to give credit on exams for answers that were right when written, answers that were wrong when written but are now right, both, or neither. By contrast, the timing of Jones could not have been better for most of us, who were set to teach the two-prong test from Harlan’s Katz concurrence that week. There was and continues to be some adjustment in what we teach about the Fourth Amendment, but at least it is all timely. So . . . Thanks Your Honors, very considerate indeed!

It is tempting to jump into the substantive conversation about whether Jones is good, bad, neutral, or a complete enigma for the Fourth Amendment, but I will demur for now, mainly because I cannot find sure footing for anything beyond the obvious: Trespass is back baby! (If it was ever gone). Instead, I’d like to wonder out loud about one of the adjustments I’m facing in class as we turn to our discussions of the exclusionary rule: What, if anything, does Jones mean for remedies. The issue was not briefed or argued in Jones, and each of the written opinions seems to assume without comment that the remedy provided by the district court—exclusion—was appropriate. Howard Slugh wrote a bit about this over at the National Review, but there is certainly much more to say.

It is not at all clear that the exclusionary rule has any footing in a Fourth Amendment that is about places. Roger Roots’s recent efforts to prove otherwise notwithstanding, most folks agree that, until Boyd in 1886, the remedies available for Fourth Amendment violations were the same remedies available for all tortious trespasses: return of illegally seized property and damages. Boyd itself did not mark a dramatic change. All the Court did there was to recognize, albeit temporarily, that allowing the government to introduce illegally seized papers will sometimes implicate the Fifth Amendment right against compelled self-incrimination. The Fifth Amendment continued to loom large behind the Fourth Amendment exclusionary rule in Weeks, where the Court rejected efforts by law enforcement officers to subpoena for use at trial illegally seized papers that had been returned to the defendant, and in Silverthorne, where officers made investigative use of illegally seized papers. Although Katz was decades in the future, the rise of the Fourth Amendment exclusionary rule in these early cases is nevertheless accompanied by tantalizing foreshadow. In Weeks, for example, Justice Day contends that “it is not the breaking of his doors and rummaging of his drawers that constitutes the essence of the [Fourth Amendment] offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property . . .” This and similar comments in these early cases bind the birth of the Fourth Amendment exclusionary rule to a shifting understanding of the Fourth Amendment as securing not just property, but the conditions of private repose, which are fundamental to our understandings of liberty, and that property rights are meant to secure. Absent this shift, it is hard to see where the exclusionary rule would get traction.

To the extent Jones carries forward a late-eighteenth century understanding of search, we are therefore left to wonder whether the exclusionary rule will be available for Jones violations. Given skepticism on the Court about the merits of the exclusionary rule, and particularly the Court’s contemporary commitment to the proposition that the exclusionary rule is justified solely by its utility as a deterrent, it’s hard not to worry. There seem to be three main issues.

The first is historical. If Jones defines Fourth Amendment violations according to a 1792 understanding of the Fourth Amendment, then does it also limit remedies to those available in 1792? Here we can look forward to rehashing standing debates about theories of constitutional interpretation with Justice Kennedy casting the deciding vote.

The second is more substantive. Although the Court long ago abandoned its early justifications of the exclusionary rule as a personal remedy justified by commitments to constitutional principle and judicial integrity, the Court has recently rehabilitated some of those arguments to limit the exclusionary rule. Hudson is a good example. There Justice Scalia argued for the Court that, absent a constitutional right to destroy evidence, there is no cognizable nexus between knock and announce violations and the discovery and seizure of evidence. Rather, he contended, the Fourth Amendment interests at stake in the knock and announce rule are limited to preservation of property and the opportunity to collect oneself before confronting law enforcement. The Court therefore held that exclusion should not be available as a remedy for knock and announce violations because exclusion does not vindicate the Fourth Amendment interests at stake. Those interests, the Court concluded, would be better served by tort actions seeking compensation for broken doors and emotional disturbance.

The exclusionary rule seems to have similar problems with “fit” in cases of Jones violations. To paraphrase a point made by Justice Thomas in other contexts, the Fourth Amendment violation contemplated by Jones was complete at the installation of the device. Although that trespass had to have been effected with the purpose of obtaining information, there is no requirement in Jones that any information actually be obtained. If the violation was complete at the installation, it is hard to see how punishing subsequent conduct by law enforcement, here turning on and monitoring the device, would vindicate the Fourth Amendment right or interest at stake at the installation. One might argue that monitoring the device constituted a separate Fourth Amendment—the Jones minority certainly did—or a continuation of the initial Fourth Amendment violation, but the majority specifically declined to do so.

The third issue is deterrence. For some time now a stable, though often bare, majority of the Court has held that the sole justification of the exclusionary rule is its capacity to deter law enforcement officers from violating the Fourth Amendment. In the context of elaborating this justification of the exclusionary rule the Court has argued that exclusion can only deter where the officer in question and those similarly situated can be deterred by the threat of exclusion. So, for example, officers who make an arrests based on the good faith belief that they are enforcing an active warrant will not be deterred by the threat of exclusion because they do not believe that they are violating the Fourth Amendment. This was the Court’s argument in Herring a couple of terms ago.

Here the exclusionary rule would appear to have some purchase in the context of Jones violations. After all, to qualify as a Fourth Amendment violation under Jones the trespass must have been effected with the purpose of obtaining evidence. Given that purpose, the threat of exclusion might well be expected to deter. Once again, however, we must confront the fact that the violation in Jones was the installation, not the monitoring. On the Court’s strict deterrence logic, what would be deterred by the exclusionary rule is therefore the monitoring, not the initial installation. Given the Court’s views on indirect deterrence, it seems odd to contemplate punishing lawful conduct in order to deter unlawful conduct.

Even assuming that the exclusionary rule could deter the unlawful installation in Jones, however, the Court has also held that exclusion will not be available unless its benefits clearly outweigh costs to truth seeking, punishing the guilty, and public perceptions of justice. This is, of course, a highly context-sensitive inquiry, but if the violation in Jones was the installation and not the monitoring, and exclusion as a punishment is therefore one more step removed from the offense, then the exclusionary rule seems to inflict a direct and significant cost to truth in the hope of a achieving quite indirect and speculative deterrence benefits.

All of this is, of course, both speculative and cynical. The exclusionary rule was not an issue in Jones, and there are good and credible reasons for thinking that the Court would have or should have imposed exclusion had it been. Whether those reasons will prevail when the question of remedy for Jones violations is presented, the future will tell. For now the speculation will be great fodder for class.

Free Speech Architecture – Responses

Marvin Ammori — Fri, 10 Feb 2012 16:49:08 +0000

I am excited about the great points made so far here on Concurring Opinions, and want to again extend my thanks to Danielle and everyone who has participated. I’m speaking on the paper in a few hours, and then plan to engage the points made by Marc, Tim, and Zephyr. I hope we’ll be able to continue these discussions well into future.

(Government) Speech Spaces

Timothy Zick — Fri, 10 Feb 2012 14:06:17 +0000

In terms of free speech architecture, I think the developing “government speech” principle poses some important questions. Under this principle, some spaces are principally reserved for government speech rather than public discourse. Are government speech spaces exceptions to the doctrine Marvin otherwise views optimistically, a separate aspect of speech architecture, not part of speech architecture at all, or simply products of a flawed doctrine or principle?

I recognize that at this point the governmental speech architecture is not very well-developed. But its foundation is coming into clearer focus. In some spaces, including the workplace and a small public park in Pleasant Grove City, Utah, the Supreme Court has exempted certain government decisions from free speech scrutiny on the ground that the spaces do not function as forums for public speech, but rather as government speech spaces. As I have argued elsewhere, at least on a conceptual level the Pleasant Grove decision comes close to turning a traditional public forum into a governmental forum. Given its uncertain parameters, a host of other spaces might be affected by the government speech principle. These might include some virtual spaces, such as government websites, that might otherwise serve as forums for public discussion. Under the developing government speech principle, the more involved the government is in terms of funding, managing, and controlling speech activity in a particular space, the more plausible its argument that access may be denied — even on the basis of content.

Perhaps this is just a small wrinkle with regard to speech architecture. Or perhaps the government speech principle will create some significant cracks or holes in the archictecure. Either way, I wonder what, if anything, Marvin thinks this doctrine says about the government’s relationsip to speech spaces.

On the Servicing Settlement

Frank Pasquale — Fri, 10 Feb 2012 02:47:46 +0000

Today, Jon Walker tweeted that “No one man has done more to protect the power of the financial elites than President Obama.” Is that a fair assessment? Here are some views expressed on the mortgage settlement today:

Adam Levitin, The Servicing Settlement: Banks 1, Public 0:

[The settlement] cover[s] robosigning and overbilling in foreclosures. Given the relatively narrow scope of this settlement, it’s not surprising that the dollars involved are quite small compared to the overall harms created by the housing bubble and aftermath.

The formal price tag for the settlement is $25 billion, although it is projected to accomplish up to $40 billion in relief. Only $5 billion of that is hard cash contributed by the banks. Let me repeat that. The five banks involved in the settlement, which have a combined market capitalization of over $500 billion, are putting in only $5 billion. That’s less than 1% of their net worth. And they are admitting no wrongdoing. To call that accountability is laughable. . . . $32 billion of the settlement is being financed on the dime of MBS investors such as pension funds, 401(k) plans, insurance companies, and the like—-parties that did not themselves engage in any of the wrong-doing covered by the settlement.

William K. Black, How Liberals are Getting Spun in the Mortgage Settlement Debate:

The Obama administration’s record of prosecuting elite financial frauds is worse than the Bush administration’s record, which is a very large statement. This fact is demonstrated by a November report by Syracuse University’s Transitional Records Access Clearinghouse (TRAC), “Criminal Prosecutions for Financial Institution Fraud Continue to Fall.” The truth is that neither administration has prosecuted any elite CEO for the epidemic of mortgage fraud that drove the ongoing crisis, in contrast to over 1,000 elite felony convictions arising from the Saving & Loan debacle in the 1980s.

Yet today’s ongoing crisis caused losses more than 70 times greater than the S&L debacle, and the amount of elite fraud driving this crisis is also vastly greater. Bank CEOs leading what I call “accounting control frauds” now do so with impunity. . . . The [staffing level of the current Obama administration] working group does not pass even the most generous laugh test. No one who has ever been involved in a successful, complex criminal investigation of a large organization could take it seriously.

Robert Kuttner, The Mortgage Deal with the Devil:

Ideally, we didn’t need this settlement now. It would have been better for prosecutors to mount more cases, not just related to robo-signing and MERS but aimed at the fraud at the heart of mortgage securitization. Then, prosecutors could extract penalties that more accurately fit the crime—specifically fines and mortgage relief as restitution, well into the hundreds of billions of dollars. This is said to be Schneiderman’s goal, both in agreeing to join the settlement once it was revised so as not to tie his hands and taking part in the Justice Department task force.

Yves Smith, The Top 12 Reasons Why You Should Hate the Mortgage Settlement:

We’ve now set a price for forgeries and fabricating documents. It’s $2000 per loan. This is a rounding error compared to the chain of title problem these systematic practices were designed to circumvent. The cost is also trivial in comparison to the average loan, which is roughly $180k, so the settlement represents about 1% of loan balances. It is less than the price of the title insurance that banks failed to get when they transferred the loans to the trust. It is a fraction of the cost of the legal expenses when foreclosures are challenged. It’s a great deal for the banks because no one is at any of the servicers going to jail for forgery and the banks have set the upper bound of the cost of riding roughshod over 300 years of real estate law.

Janell Ross, Mortgage Settlement Leaves Some Foreclosure Victims Wanting:

Settled into a new life — one with a low credit score in the 500s that makes buying a car or even connecting utilities a more expensive proposition, in a neighborhood populated mostly by senior citizens instead of middle-class families with kids — Monica Zapata’s anxiety is under control. Ricardo Zapata has a new job managing a Cuban restaurant. The family has a lot less money and little hope of owning a home again in the next decade. Those aren’t the things that sometimes leave Zapata fighting back tears. . . . “I try to be a grateful person, really I do,” said Monica Zapata. “But it’s almost a slap in the face when you consider everything we’ve been through.”

Better Markets Blog, A Criminal Sellout:

[T]he most egregious aspect of all this may be the reporting: stories repeatedly use innocuous words that obscure what really happened here. For example, so-called “robo signing” is massive, systematic, fraudulent, criminal conduct. This is where banks themselves or their contractors sign legal documents to file in court swearing under oath that the facts are true and therefore support the legal application to take someone’s home away from them, i.e., foreclose.

Can you think of anything more despicable? Lying under oath to get someone thrown out of their home and onto the street. That’s what robo-signing means and what it obscures every time that word is used. Then, there’s always someone saying, basically, no harm, no foul because it’s just a “paper work” problem and these people are all delinquent and “deserve” to be thrown out on the street. Really? Since when does saying “trust us” while we lie to you under oath make illegal conduct acceptable?

I have long been concerned about foreclosure fraud and other bank abuses. If the reactions above are on target, we are in danger of entrenching a two-tier system of justice. An inflection point has been reached in a long, tragic decline in the rule of law in matters relating to powerful banks. It will be very interesting to see where the negotiators go on to work after they leave government employ.

Image Credit: American Casino.

Did Rahm Learn Anything From Cass?

Sarah Waldeck — Thu, 09 Feb 2012 19:15:33 +0000

This week Governor Pat Quinn of Illinois signed legislation that will allow the City of Chicago to put speed cameras in the one-eighth mile buffer zones around schools and parks. As the Chicago Tribune has reported, the City has more than 600 public schools and only slightly fewer parks, so this legislation gives Chicago the authority to cover roughly half of its territory with speed cameras. The City says it will concentrate on the approximately 80 areas where the need for speed enforcement is particularly acute.

Although Quinn signed the legislation, the cameras are the handiwork of Mayor Rahm Emanuel. The Mayor says he developed the plan after school officials and the police expressed concerns about public safety. Emanuel’s critics—and he has a lot of them—paint the legislation as being more about revenue generation than public safety. Drivers who go more than 5 miles over the speed limit will be fined $50 and drivers who go more than 11 miles over the limit will be fined $100. The Mayor has said repeatedly that he doesn’t care if the cameras generate any revenue; the legislation is all about keeping kids safe.

Let’s take the Mayor at his word and assume that his only goal is to make Chicago safer. What would traffic engineers and behavioral economists advise? They would tell him to install dynamic speed displays, which announce the posted speed limit and display in large digital numbers the speed of each driver going past. One of the first experiments with these displays took place in school zones in suburban Los Angeles in 2003. Drivers slowed down by an average of 14 percent and in some zones the average speed dropped below the limit. The use of dynamic speed displays has since become commonplace and research has consistently shown that they cause drivers to slow down by about 10 percent for several miles.

These displays upend the usual approach to traffic enforcement because there is no penalty for displaying a speed that is higher than the posted limit. Instead, the display works by creating a feedback loop: (1) sensors instantly capture and relay information about the driver’s speed; (2) the large public display of numbers carries real punch because few people want to be perceived as reckless or careless; and (3) the driver has immediate opportunity to slow down by simply easing up on the gas. This feedback loop is so effective that traffic safety experts have concluded it does a better job of changing driving habits than techniques that depend on police issuing tickets. (You can read about dynamic speed displays and feedback loops more generally here.)

Chicago’s speed cameras will be accompanied by highly visible signage, so time will tell whether the combination of signage and speed cameras make drivers slow down in the short term and change their driving habits in the long term. If I were advising a mayor whose priority was public safety, however, I’d recommend the use of dynamic speed displays that provide effective feedback to drivers in the moments before they enter a school zone, and not cameras whose feedback comes in the mail several days after the driver already has sped by a school.

Preserving Free Speech Architectures — vs. Designing New Ones

Marc Blitz — Thu, 09 Feb 2012 06:32:26 +0000

Thanks to Marvin for giving us such a fascinating and well-done article to debate here – and to Danielle and Concurring Opinions for giving us a virtual space for that debate can happen. I’m grateful for the invitation to join in.

Marvin’s major target throughout his article is the “negative liberty” view of free speech. The First Amendment, he argues, is not only a barrier against official abuse. It is also a constitutional power source that provides a basis for a legislature to do things it otherwise couldn’t do, especially when it comes to safeguarding – or, if necessary, modifying – the “architecture” of spaces essential for communication.

I couldn’t agree more with the article’s claim that the First Amendment law needs to take stock of architecture – and that, it should do so, at least in part, with an eye to “ensuring that Americans have adequate physical and virtual spaces available for speech.” I also agree that, in many cases, freedom of expression relies not solely on courts alone to give it force, but rather on a more complicated division of labor: Courts play an essential role in blocking legislative and other government censorship, but it often falls upon other actors – legislatures, agencies, social movements, sub-cultures – to both protect and nourish individual liberty of thought and expression in other ways. Marvin’s argument impressively answers both of these needs in First Amendment jurisprudence.

This is a significant move, and one I hope gets a lot more attention. But ultimately, I’m not sure that answering such needs requires quite as radical a paradigm shift as the one Marvin proposes. More specifically, I’m not sure that making sufficient room for architecture and architecting requires that we dethrone the negative liberty theory, and replace it with an alternative grand theory of First Amendment architecture. Rather, I’d like to propose that perhaps something a bit less radical, and a bit more theoretically modest, will be good enough – an approach that is aimed not at reshaping First Amendment theory as a whole, but rather as fitting it to a relatively new and challenging problem: namely, the fact that freedom of expression has come to depend heavily on electronic communication networks and virtual environments run by private (rather than government) actors, and with technologies can change more rapidly and jarringly than more familiar free speech architectures.

One reason I don’t think we need to dethrone the negative liberty approach to First Amendment is that – while it may well be inadequate to the task Marvin has his sights on – it gets us at least a decent part of the way there, and then even further along the path when it allows room for public forum doctrine.

Those who espouse the negative liberty approach are **not** thereby committed to turn a blind eye to questions about communicative architecture. Even if free speech law neither obligates nor empowers legislatures to enact laws that bolster speech – even if its sole mission is to stop government from suppressing speech, that mission may well include thwarting indirect forms of speech suppression wherein the government silences us by making speech very difficult or painful rather than illegal. For example, government might do so by arranging our social, physical, and/or legal environment in such a way that those who speak will not be able to do so anonymously. A city might, as in the case of Talley v. California (1960), adopt an ordinance barring anonymous distribution of handbills. Or it might require door-to-door solicitors to register with the town (as it did in Watchtower Bible & Tract Society of NY v. Stratton (2002)). These ordinances affect free speech architecture: Absent the ordinances, the world allows you to remain unknown as you pass out handbills or distribute literature door-to-door. With the ordinances, the First Amendment landscape is significantly different in that certain acts of expression or distribution become possible only if your audiences knows (or can rather easily find out) who you are. Yet the Court found both of these ordinances unconstitutional – and a proponent of the negative liberty approach could reach the same result. If the government is not permitted to censor or chill speech under the First Amendment, then perhaps it should be barred not only from making the speech illegal – but also from making it significantly more uncomfortable. I don’t see any of this as inconsistent with Marvin’s argument. But I think it’s worth stressing because it shows that while the negative liberty approach may not be entirely up to the job of protecting First Amendment architectures, it is perhaps better equipped to do so than Marvin acknowledges.

It is in even better shape when it is supplemented by the public forum doctrine, which I’m not sure is as glaring exception to the negative liberty model as some writers claim. After all, as Tim Zick has already pointed out, public forum doctrine doesn’t force the government to build a park where there is none or preserve it in perpetuity. Nor does it empower the federal government to create such a space in a city on the grounds that local government actors have failed to do so. Rather, free speech law comes into the picture in a significant way only after the forum – the park or street or other forum – is already there. And when it performs its function, one might argue, that function is largely a negative one: it doesn’t force the government to build the park, but once the park is up and running, it forces the government to refrain from silencing certain speakers in it (whether by penalizing their speech or kicking them out).

To be sure, there is a difference between what a speaker gets from public forum doctrine and what she gets from much of the rest of free speech law: Where a speaker may otherwise have to supply her own platform for speech, in a traditional public forum like a street or park it comes packaged with the speech rights in a sense. But I think the best way to understand public forum doctrine is not as a striking and inexplicable departure from the negative liberty approach but rather as a Burkean gloss on it. After all, one might argue, it was not the courts themselves that brought into existence the architectures that support First Amendment activity in public forums. It was – as the Court itself has told the story — the development of traditions outside of the courtroom: in parks and streets, said Justice Roberts in Hague v. CIO, we find property that has “immemorially” been open to the public and since “time out mind . . .used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” In some cases – as with the home – the basis for protection might be a set of physical facts (homes are shielded by walls) as well as evolving social norms and common law rules (you don’t spy through your neighbor windows, and if you do, you might be legally on the hook for that). And one might find a similar basis for insulating public universities’ curricular decisions or public libraries’ collections from legislative interference: Both of these institutions have evolved of norms and professional practices over the years that strongly emphasize intellectual freedom. In such situations, free speech architecture isn’t ordered into existence by courts and legislatures. Rather, courts find it in the cultural world outside of them and bring it under the First Amendment’s coverage. In these instances, however, the First Amendment’s role is the more conservative one of preserving speech-supporting architecture against legislative attack, not empowering the legislatures to generate it where it doesn’t exist. Moreover, where free speech architectures come into existence this way, we shouldn’t be shocked – or disappointed – if the specific jurisprudence that arises around them consists of a “messy” – and seemingly incoherent “collection of exceptions” to the more standard “negative liberty” default (I’m quoting p.3 of the article). A one-size-fits-all jurisprudence may simply not be able to accommodate institutions that have evolved to support speaking or reading in very different ways.

This doesn’t mean that this is a satisfactory stopping point – or that Marvin is wrong to want to want go beyond it. Neither the negative liberty approach nor public forum doctrine (even some improved counterfactual version of it) is well-suited to protect privately-operated First Amendment architectures from privately-generated First Amendment threats, especially in situations where the fast pace of technological change may make it quite difficult for courts to identify a decades-long history of speech-protecting norms or architectural features, let alone a tradition of freedom they might characterize as having existed “time out of mind.” While Marvin’s article interestingly suggests that consistent free speech principles operate “across private and public spaces” and “across media technologies,” I suspect that this underemphasizes an important dividing line between speech architectures (on the public side of the line) where the standard model (+public forum doctrine) may be better than Marvin admits, and speech architectures (on the private side) where our need for a different approach is clearer and more urgent.

Look forward to continuing the conversation tomorrow.

Free Speech and Foot Traffic

Zephyr Teachout — Thu, 09 Feb 2012 02:01:35 +0000

I will be brief for now, though I have much to say about Marvin Ammori’s wonderful article and discussion. Thank you for inviting me to join.

Two quick thoughts for today:

First, the more I embed myself in public forum doctrine (a dangerous side effect of involvement with Occupy Wall Street), the more Dr. Seuss-like it starts to seem, the rhyme in my head being: “walking means talking and free speech is on beeches.” The short of it being that the likelihood of a court finding a public forum seems highly correlated with whether or not it is (a) a beach or (b) a public thoroughfare with foot traffic. In other words, there is a high likelihood that it is a place that few people want to listen to rants, let alone plan the next financial transaction tax. Organizing in mid-summer on the Coney Island beach sounds wonderful, but a little distracting, and sidewalks, as places go, are not conducive to long, extended meetings. Everyone is too busy bustling past. Two quick examples: In HERE, the Second Circuit put great weight on the question of whether Lincoln Plaza formed “part of the City’s transportation grid.” In First Unitarian, the Tenth Circuit makes plain that “Expressive activities have historically been compatible with, if not virtually inherent in, spaces dedicated to general pedestrian passage.”

Why the emphasis on sidewalks and walking? Parks, under this analysis, are more public forum-prone if people walk through them. Several things could be happening here. It could be that justices are not particularly good organizers: these days, sidewalks aren’t great for organizing, let alone for communicating to vast swaths of people. Second, it could be that the ghost of the public easement treading through the cases. Public easement analysis and public forum analysis share many of the same elements, and it may be, for reasons more related to legal culture than logic, that persistent use under claim of right by the public (as against the government or a private party) is be the most powerful claim for public forum. And why are beaches given a pass? It’s not because they are great places for Tea Party rallies—I’d suggest it might be because there’s a public easement there. Maybe what is really happening is property law, not constitutional law—the scope of easement must necessarily include the right to speak, and on public lands the public qua people can gain an easement against the public qua government.

Second, it strikes me that left and right, scholars tend to try to squeeze so much of their political philosophy squeezed through the thin reed of the First Amendment. Perhaps this is inevitable, but it seems so small to bear so much.

I will contribute more tomorrow!

How and why to boycott Apple

Brishen Rogers — Wed, 08 Feb 2012 23:28:14 +0000

In the wake of two Times articles and an episode of This American Life exposing working conditions among Apple’s suppliers, various bloggers and commentators have called for a consumer boycott. One respected tech blogger even called the conditions “barbaric,” arguing that “the blame lies not with Apple and other electronics companies—but with us, the consumers.”

I find the argument that Western consumers owe a moral duty to overseas workers quite compelling, particularly with regard to luxury goods such as Apple’s. See Iris Marion Young on that point. Yet I don’t think a traditional boycott is a good idea, for two basic reasons. First, it is self-defeating. Putting aside the irony that such a boycott cannot be organized without using Apple products, the collective action problem is huge. Eventually an iPhone will break, or get dropped in the bathtub, or a new app or album will be needed, and the best-intentioned consumers will defect.

Second, what exactly is the ask? Should Apple leave China? That would be bad for the workers. Should Apple demand higher labor standards? Sure … but what would they be? Apart from egregious safety violations or forced labor, someone needs to articulate demands, and define success, or the boycott will just drag on, and on, and on.

But here’s an idea worth considering: a one-day boycott in which people refuse to purchase anything from Apple, iTunes, or the App Store. The demand would be that Apple commit to rigorous, external monitoring of its suppliers. More after the jump…

The thing is, promoting fair working conditions in developing countries is not rocket science, though it is politically difficult and very time-consuming. Inspections need to be unannounced, frequent, and thorough, monitors must have sufficient time and resources to understand what is really going on within factories, and monitors must have an independent base of power — oftentimes the media — through which they can ensure that companies implement their recommendations.

A one-day boycott could press Apple to take those steps, and could help build a consumer organization to hold Apple accountable in the medium- to long-term. It seems like a good idea to me for several reasons.

1. This is do-able. As noted above, people are not going to stop buying or using Apple products for any extended period. But if lots of consumers coordinated their refusal to buy on a particular day, and applied it to hardware and the App Store and iTunes, the calculus may change. That action would make a measurable impact on Apple’s sales that day, even if not on their long-term bottom line, signalling that consumers are seriously upset about the China revelations.

Whether Apple cares will depend on the numbers and the media coverage. I admit that I have no clue what a critical mass would be — a hundred thousand? five hundred? A million? (That *would* be cool, Sean Parker). But once critical mass is reached, and media took notice, Apple could not defend itself on grounds of consumer indifference, and their hip, semi-counter-cultural brand image could take a hit. That may effect their profits, or their projected profits, just as it did for Nike, Walmart, and other companies who have changed social policies in response to consumer pressure.

2. Social media dramatically reduce organizing costs. Through them, we can allocate small actions into something much, much bigger at no real cost, making it possible to effect major changes without demanding too much from any one individual. The Arab Spring showed this dramatically. A nice domestic analogue is the recent “move your money campaign,” which (among other things) got BofA not to increase debit card fees. That effort succeeded in part by facilitating individuals’ ability to move their money — something many already wanted to do — and in part by demonstrating that others were doing the same, making that action safe and appealing. It built momentum until the idea went viral.

In the Apple context, a small but well-organized group could wield the sort of “regulatory big stick” generally missing in the global labor context. Once enough people signed up, and demonstrated they were willing to take coordinated action, Apple would have to decide whether to ignore the group, dig in its heels, or bargain. Depending on the campaign’s visibility, the first two strategies might backfire, especially if the group is media-savvy and its demands are reasonable.

Moreover, assuming the one-day boycott went well, and the group had momentum, Apple would have to wonder what was coming next: a three-day boycott? A week-long one? Such uncertainty dramatically increases the pressure on a target — as Saul Alinsky once said, “It’s not how much power you have, it’s how much power the other side thinks you have.”

3. Organizing this would not be especially hard. A programming collective is needed to set up a website through which people could commit to not buy from Apple on some day in the future … perhaps May First, just to pick a day at random? <Apple’s annual meeting. Also, check out this Facebook page.>> Someone needs to put together proposed demands, poll people who have signed up regarding those demands, and do some loose coordination. If the project takes off, there should be media outreach, as well as outreach to independent Chinese trade unionists and democracy activists. As suggested by one of my students, local activists could also organize pickets and other media events at Apple stores on the day chosen.

Whatever (preferably minimal) structure is set up, it would need to be autonomous from anyone with a financial or political interest here. That means autonomy from the labor movement, and from companies, activists or organizations who have beef with Apple for some other reason. It would also need to be decentralized whenever possible, so as to reduce organizing costs and to encourage maximum participation.

4. Some thoughts on demands. In the short term, Apple could demand that their suppliers install ventilation so that factories don’t explode and create hotlines through which workers could “report abusive conditions and seek mental counseling.” In the longer term, Apple could sign onto the Workers’ Rights Consortium (WRC) or adopt its strategies, which are the gold standard in this field and described nicely by Mark Barenberg in his excellent chapter in this book. The WRC seeks, through the monitoring process, to establish the conditions under which workers’ own democratic organizations can gain a foothold and promote workers’ interests in the long run.

In other words, Apple could demand that suppliers — and, frankly, the Chinese state — respect workers’ rights to form democratic and independent trade unions. Chinese workers do not enjoy that right today. Meanwhile, the company should not cut-and-run, even if they hit some bumps. Rather, Apple should articulate clear demands regarding working conditions to factory managers and to political actors in China, and should reward compliance by increasing their investment in China. While many have said that China is largely impervious to outside pressure on labor standards, that may no longer be true. As the Times’ points out, there is a sort of halo effect associated with producing for Apple, one which China will not want to lose.

Ultimately, Apple may be singularly well-positioned to effect change in China, and Apple consumers may be singularly well-positioned to effect change at Apple. Meanwhile, change in China and at Apple will have broader effects among developing nations and among tech companies. So a well-organized and targeted boycott may be a very, very good idea.

Free Speech Architecture: Universal Access to Speech Spaces (#7)

Marvin Ammori — Wed, 08 Feb 2012 21:53:18 +0000

So far I have discussed four principles concerning speech spaces (and Brett has added one). This is the fifth principle concerning speech spaces that I set out in my recent article. The First Amendment encourages access for all Americans to physical and digital speech spaces, even if the “unregulated” speech market would not provide access to many speakers. Those that benefit most from government efforts to expand universal access to speech spaces are speakers in rural areas or those without extensive means.

The traditional public forum doctrine, of course, promotes universality. Streets and parks are open to all, and they provide small, unpopular, or poorly financed speakers with an opportunity for a forum. These speakers often won’t have access to other speech spaces, like broadcast channels or newspapers. But government’s work towards achieving universal speech spaces has not been limited to public forums.
In early American history, the vast postal network allowed universal access for newspapers and other forms of communication. The U.S. had more postal roads per capita than any other nation. Nowadays, the government has adopted policies for a wide array of media to ensure universality of basic speech spaces. In the area of telephone service, carriers are legally required to subsidize low-income, rural, and non-commercial speakers, and they may do so by charging higher rates to other customers. Similarly, when the FCC hands out licenses to cell phone companies, its chief stated goal is to make cell phone service available nationwide.

With television, broadcast companies must serve all segments of a society, even less profitable ones like children (through mandated educational programs) and the disabled (through closed captioning). Cable companies are required to carry broadcast stations so that all Americans can access free, over-the-air television. And most localities require cable companies to serve the entire community.

Perhaps most critically, the federal government has taken steps to promote universal access to the most vital speech space of the 21st century, the Internet. The FCC, at Congress’s behest, is now devising a plan to promote the expansion of Internet service to all Americans.

Some of these universality regulations have been challenged on First Amendment grounds, with companies arguing that the mandatory build-out of cable or phone systems to specified customers forced the companies to “speak” to those with whom it would rather not converse. This is a “compelled speech” argument. But courts have generally rejected such arguments, usually at the district court level, suggesting that the greater goal of universality takes precedence over any arguable infringement of the speech rights of a small number of speakers.

Indeed, the recent National Broadband Plan proposed by the FCC is focused on ensuring the availability of access to high-speed Internet for all Americans (at least in principle). Ensuring access to such important speech spaces is important to guaranteeing all Americans can participate in our democracy and our culture today. This principle is suggested in the Supreme Court’s oft-quoted maxim that the First Amendment’s basic tenet is that the “widest dissemination” of information, from diverse sources, is necessary for public welfare. Government policy, and some judicial doctrine, further this goal of ensuring the widest dissemination of information.

Employment Division v. Smith is Wrong

Gerard Magliocca — Wed, 08 Feb 2012 20:53:18 +0000

I’ve never been a fan of the Court’s holding that a neutral statute of general application is constitutional even if it imposes a significant burden on a religion. There is decent evidence that this was contrary to the original understanding of the Fourteenth Amendment, Michael McConnell wrote a terrific article making the case against the decision when it first came out, and others have offered plenty of criticisms.

Recent events, though, show why Smith rests on a questionable understanding of the First Amendment. When a neutral and generally applicable employment discrimination statute was applied to churches, the Court adopted a “ministerial exception” and distinguished Smith. When HHS adopted a rule about contraceptives and made no exception for Catholic institutions, howls went up that this violates religious freedom. And those howls are right. Now I’ll grant that you could say that this is just a matter for Congress or state legislatures. (In other words, religious freedom could mean more than what the Court says is constitutionally required, though that doesn’t explain the “ministerial exception” case.) But I think that the Catholic organizations upset about the new regulation ought to have a constitutional claim. But they don’t.

The Disconnect Between What People Say and Do About Privacy

Joseph Turow — Wed, 08 Feb 2012 18:55:34 +0000

In the course of my research I’ve been fortunate to be able to speak at length with media planning executives and practitioners. They spend much of their time figuring out how to use data to send commercials to targeted segments and individuals online. When the conversation turns to privacy issues, they invariably dispute that the public is genuinely concerned with the topic. “When they respond to your surveys people may claim to worry about privacy issues,” the industry practitioners tell me. “But look at what they actually do online. People will give up personal information just to get a discount coupon. And look what they reveal about themselves on Facebook! The disconnect between what people say and do shows that policymakers and academics misjudge the extent to which the public really cares about the use of data about them by marketers.”

It’s an interesting argument and one that must be taken seriously. One response I give is that people are indeed complex, but their behavior doesn’t mean they are two-faced when it comes to privacy. Rather, findings from national telephone surveys (conducted by me and with colleagues) going back to 1999 show that the majority of Americans are deeply unaware about what goes on with their information about them online. They know companies follow them, but they have little understanding of the nature of data mining and targeting. They don’t realize companies are connecting and using bits of data about them within and across sites. They think that the government protects them regarding the use of their information and against price discrimination more than it does. And over four surveys, about 75% of adult Americans don’t know that the following statement is false: “When a website has a privacy policy, it means that the site won’t share information about you with other companies without your permission.”

“Why don’t Americans know such things?” industry practitioners often ask me after I recite such findings. “And why don’t they use anonymizers and other technologies if they are so concerned about leaking data about themselves?” My answer to that typically takes the form of “people have a life.” Learning ins and outs about the online world can be complex, and people have so many priorities regarding their families and jobs. Too, when they go online, whether to Facebook, YouTube or a search engine, they want to follow their needs and leave. In moments of rational contemplation they may well indicate web wariness. But online their need to accomplish particular goals and often engage in emotional relationship-building may trump rationale calculation. Chris Hoofnagle, Jennifer King, Su Li, and I inferred this pattern even from young adults—men and women 18-24 who common wisdom suggests wouldn’t care a whit about privacy.[1]

There is an additional explanation for people’s lack of knowledge about how data about them are treated under the internet’s hood. Unfortunately many of the most prominent digital-marketing actors engage in a kind of doubletalk about their use of information. It’s a consistent pattern of public faux disclosure that may simultaneously encourage people’s confidence in the firms’ activities and obfuscate the privacy issues connected with those activities. And some of the biggest players engage in this privacy-doublespeak dance.

Consider how Google recently told its users about its decision to link information about their activities across its most popular services and multiple devices beginning March 1. The consolidation was clearly a response to a number of developments. Strategically, Google wanted to use its previously siloed data in ways that would be competitive to its increasing competitor, Facebook.[2] More tactically, Google was motivated by the firm’s need to meet a European-Union directive that beginning May 1 all advertisers must obtain consent from their customers to allow websites to set cookies. In the words of the U.K. trade magazine New Media Age, “Consolidating its multiple privacy policies, of which it has over 60, for all its accounts will mean consumers only have to give consent once for it to be effective across all Google products.”[3]

In the U.S. Google faced a major risk with the data consolidation. The company had to know that some would see the action as violating last year’s agreement with Federal Trade Commission not to change its handling of people’s data without their explicit permission. In fact, the Electronic Privacy Information Center filed a complaint with the FTC insisting Google’s new approach violates the deal.[4] Perhaps to blunt such criticism, the company shouted out its new privacy regime to broad publics. For several days Google emblazoned its search page and the landing pages of its other holdings with statements such as “We’re changing our privacy policy” followed by blunt signals of seriousness—for example, “This stuff matters” or “Not the same yada yada.” But if you clicked the link to learn more, you found essentially the same yada yada. The urgency evaporated. The language gave no sense that beginning March 1, to quote the Los Angeles Times, “the only way to turn off the data sharing is to quite Google.” [5] Instead, clickers saw the comforting statement that the change was all good. The privacy policy would be “a lot shorter and easier to read.” It would reflect “our desire to create one beautifully simple and intuitive experience across Google.”[6]

Google certainly isn’t alone in this purposefully confusing, often two-faced approach to the public. Consider how Amazon makes it seem that its data mining is transparent with respect to its visitors. On its landing page the firm is straightforward in letting you know that it is connecting what it previously saw of your site behavior with what others who did similar things bought. But a trudge through the privacy policy will reveal that Amazon’s seemingly open approach to visitors’ data on the home page actually obscures a far broader and impenetrable use of their data for the company’s own and others’ marketing purposes. Check out Pandora for a similar pattern of transparency and non-transparency in data-handling. Or visit the Digital Advertising Alliance’s op-out area and note the disconnect between the availability of the opt-out choice and the rhetoric around it that makes its selection seem slightly absurd.

This sort of doublespeak may be endemic to the approach data-driven marketers are taking to the public. As Wall Street Journal columnist Al Lewis recently noted, “Mark Zuckerberg says Facebook’s IPO is not about the money. But he then says it’s about creating a liquid market so his employees and investors can get their money—proving the maxim that it’s always about the money.”[7] Such corporate “explanations” of their activities add yet another reason for the public’s failure to understand the dynamics of big data in their lives.

[1] Chris Jay Hoofnagle, Jennifer Kinng, Su Li, and Joseph Turow, “How Different are Young Adults from Older Adults When it Comes to Information Privacy Attitudes and Policies?” August 14, 2010. Report available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589864&download=yes , accessed February 8, 2012.

[2] Byron Acohido, Scott Martin, and Jon Swartz, “Consumers in the Middle of Google-Facebook Battle,” USA Today, January 26, 2012, http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1, accessed February 8, 2012.

[3] “Google to consolidate privacy data to bolster ad targeting,” New Media Age, January 25, 2012. Thanks to Jeffrey Chester for pointing out this article to me.

[4] Byron Acohido, Scott Martin, and Jon Swartz, “Consumers in the Middle of Google-Facebook Battle,” USA Today, January 26, 2012, http://www.usatoday.com/tech/news/story/2012-01-25/google-facebook-competition/52796502/1 , accessed February 8, 2012.

[5] Jessica Guynn, “Google to Expand Its Tracking of Users,” Los Angeles Times, January 25, 2012, B1.

[6] “Google Policies & Principles,” http://www.google.com/policies , accessed February 8, 2012.

[7] Al Lewis, “Facebook, Dead of Alive,” Wall Street Journal, February 5, 2012, http://online.wsj.com/article/SB10001424052970203889904577199481841403756.html?mod=WSJ_hp_mostpop_read , accessed February 8, 2012.

Distinguishing Magarian’s “Ought” from Ammori’s “Ought”

Marvin Ammori — Wed, 08 Feb 2012 17:29:12 +0000

Timothy Zick and Greg Magarian make some great points in their recent posts. For those unfamiliar with Zick or Magarian, they are two of the most important and insightful thinkers writing about the First Amendment today, evidenced even in these brief posts. I’m going to respond to Greg’s first.

Greg’s piece accuses me of being overly optimistic, and for misinterpreting First Amendment precedent and doing so for (misguided) strategic reasons. He assures us that First Amendment precedent is awful and getting worse. He says I should just admit as much, and that I should argue merely that the precedent “ought” to be better, not that it “is” any good at all. And his examples of the awfulness of doctrine include Citizens United (which I disagree with, but don’t dwell on as it is not so clearly “spatial,” the focus of the paper) and also points to the public forum cases.

We agree in part actually, but disagree in part. Here is where I disagree: I am more likely to celebrate what the doctrine is but not out of misguided strategy but because he thinks doctrine ought to be something different from what I think it ought to be.

A few years go, Greg and I had a discussion over dinner. At that dinner, he said that the courts should impose media access rules directly, based on the First Amendment alone, whether or not a law would create that access rule. I said that generally such access rules should be permissible, but not judicially required. My argument was based partly on institutional competence: judges are not really expert in media policy. Judges and clerks are not at the top of my list for people who should devise spectrum policy or draft the communications regulations. And I think the public should indeed be more involved in making such decisions of designing our speech systems–and other institutions are designed to be more responsive to the public. Greg thinks courts ought to impose access rules and other rules; I think, subject to some limits, courts ought to defer to a range of permissible decisions by legislatures and agencies about such rules. This is why Greg takes me to task for celebrating the shopping mall case: I am less troubled that the courts did not directly impose access for speech but merely permitted governments to enact laws requiring access.

This is why Greg says, “But when the Supreme Court faced the question whether the First Amendment required shopping centers to tolerate expressive activity, the Court said no. So yes, First Amendment law sometimes steps out of the way of voluntary government efforts to advance speech interests over other interests.” To me, that is important. Courts and lawyers often argue (or assume) that the First Amendment flat out forbids government from opening new spaces for speech–particularly digital spaces. That the First Amendment does not forbid such action says something about the First Amendment–just as it not requiring access to shopping malls says something about the Amendment. And, in my opinion (and in that of some others), this permissiveness contradicts the notion that government must not pursue substantive speech-based goals, such as opening speech spaces, when they interfere with the speech market. For Greg, such permissiveness “doesn’t contradict or even complicate the negative liberty paradigm,” but I see it differently.

Finally, we do agree on a few things. The doctrine as it is could be better. I don’t think it’s perfect and it is certainly not getting better, but there are important strains in the doctrine, particularly regarding government discretion to promote diversity of sources, universal access, national and local speech, and simply additional speech spaces. There are far too many cases in our First Amendment tradition that uphold censorship. Far too many cases enable government to silence speech based on content-neutral reasons (something Tim has argued forcefully in his work on public spaces). And I am almost ashamed to engage in any comparative institutional analysis–weighing whether the Supreme Court is a better decision-making institution than the Congress is like asking whether the institution that brought us Bush v. Gore, Citizens United, and Holder v. Humanitarian Project should be trusted more than the institution, Congress, with a 9% approval rating that brought us the debt ceiling fiasco, nonstop gridlock, that recently rushed to pass a censorial copyright bill before being derailed (and had passed immunity for warrantless wiretapping and provided the president with the power to hold US citizens indefinitely without a trial). Still, for reasons mentioned above, regarding the permissibility of opening speech spaces for speech, I am willing to be more optimistic than my friend Greg, though he does provide some excellent reasons for pessimism.

Free Speech Architecture: Spaces for National & Local Speech (#6)

Marvin Ammori — Wed, 08 Feb 2012 17:06:52 +0000

At our nation’s founding, the framers of the Constitution faced a formidable challenge: creating a national democracy that would bind together thirteen diverse and autonomous states spread over a large geographical area. In 1787, the only successful historical models of democratic governance were small, tightly knit units, such as the ancient Greek city-states. No nation had ever succeeded in maintaining a democracy on such large and disparate turf as the thirteen colonies. James Madison argued that size actually favored democracies, as large countries were less likely to fall subject to “faction.” Federalism was another important answer to the question. But a less heralded answer was aggressive pursuit of promoting a national identity and national unity, while still preserving the independent, unencumbered character of local spaces. Ensuring both national unity and local forums would pose a challenge.

But early American leaders did not rely merely on an “unregulated” speech market and negative liberty.

Rather, American leaders established speech policies that consciously furthered two distinct purposes: the promotion of some speech virtual speech spaces to unify the nation and the promotion of others to preserve local communities. These affirmative goals illustrate the fourth principle evident in precedent, a principle that has been almost completely overlooked in First Amendment literature.

As discussed in earlier posts, a critical medium of public discourse in early America was the newspaper, and newspapers relied on the postal system for distribution. To promote national unity, Congress subsidized the cost for newspaper editors to mail their papers to other editors in different states. This policy encouraged local papers across the nation to include news from distant areas of the nation. The outcome of this “free exchange” was that readers would be informed about national affairs, not just local community news. In addition, the government’s heavy investment in a vast network of postal roads ensured that citizens in even the most remote areas of the nation had access to this shared, national journalism.

In tandem with these nation-unifying speech policies, early policymakers also enacted rules consciously to ensure local forums for speech. Congress provided inexpensive or free mailing rates newspapers within a local region, providing a huge price advantage for local newspapers over national papers. As a result, local papers flourished, and did not have to compete in on a level playing field with big city papers from New York and elsewhere. These rates were based on conscious speech policy, not a relation to postal costs. (Paul Starr, Richard Keilbowicz, Ed Baker and others have written important work about postal policy and media generally.)

More recently, rules for television broadcasters illustrate similar governmental policies to encourage spaces for local discourse in response to a market that would “naturally” tend towards national discourse. The government assigned broadcast television licenses to ensure that even small communities have at least one local news outlet. Further, the FCC long encouraged local news coverage through various rules and requiring cable companies to carry local broadcast television stations. Similarly, the FCC divided its AM radio licenses in order to guarantee a certain number of stations serving local, regional, and national markets, ensuring national and local forums. Telephone laws, including complex subsidy systems, have encouraged community cohesion by setting very low prices for local calls and subsidizing them with far more expensive long distance rates, even though long distance calls do not have much higher marginal costs.

None of these policies seem especially controversial, and they have received little attention in First Amendment scholarship. These policies are, however, highly substantive and value-laden. They represent active government involvement in speech decisions, and, more than that, they represent government’s use of affirmative policies to shape the structure of American discourse – with an eye toward fostering the very structure of our democracy.