Judge Says Amazon Needs To Hand Over Recordings Created By Murder Victim's Echo Speaker

from the in-every-dream-home,-a-state's-witness dept

New Hampshire investigators will be deposing Alexa in the near future, according to a recent court ruling. The advent of in-home digital, voice-activated assistants has created a wealth of personal recordings law enforcement may now have access to. It's only been a couple of years since we first saw law enforcement attempt to obtain Alexa recordings from Amazon, but as Mike pointed out then, this was going to be the new normal. So the onus is on companies like Apple, Google, and Amazon to give customers more direct control of stored data and recordings.

In this case, prosecutors are seeking recordings made by a murder victim's Amazon Echo speaker. They hope the victim's device captured the attack and the removal of her body. Amazon has issued some boilerplate about "valid legal demands" in response, but it's likely the company won't interject itself into this case.

The key here -- unlike other cases we've discussed -- is that the device belongs to a crime victim, rather than the person who allegedly committed the crime. The short court order [PDF] from the New Hampshire court makes it clear no one but the prosecution is invited to this evidence-gathering party:

After reviewing the motion, the court takes it up and rules on it without waiting for a response from defense counsel, as it appears the defendant would have no standing to assent or object to the State's motion.

Pretty cut-and-dry. The alleged murderer can't object to the search of recordings made by the murder victim's device. Amazon can probably fight the order, but in a case like this, it seems unlikely it will. But maybe it should.

[T]he State's motion to search in lieu of a search warrant is granted.

Law enforcement rarely obtains a warrant to search a crime victim's residence if that's where the crime occurred. It's not that they don't need a warrant to perform this search. It's that the accused criminal usually has no possessory interest in the crime victim's residence and would not be able to challenge the evidence in court.

When it's a murder case, the victim is obviously in no position to challenge the search. But there's a lot of criminal activity that doesn't result in a dead person, so searching someone's house without a warrant just because they were robbed or assaulted still implicates the privacy granted to them by the Fourth Amendment. The judge here is allowing a warrantless search because there's no one to object to the search, not because it's necessarily completely legal to perform a warrantless search in this sort of situation. This paper [PDF] from the Federal Law Enforcement Training Center points out the US Supreme Court has rejected a "murder scene" warrant exception three times over the last 40 years, and yet many in law enforcement believe such an exception exists.

[T]he courts have outlined a number of “established and well-delineated” exceptions to the warrant requirement of the Fourth Amendment, including, but certainly not limited to, consent searches; searches of vehicles; searches incident to arrest; and inventory searches. However, one exception to the warrant requirement which the Supreme Court has expressly and repeatedly refused to recognize is a general “murder scene” exception. Even so, in speaking with numerous Federal law enforcement officers, many of whom have a state or local law enforcement background, it appears that a misconception regarding this point continues to exist. Most of those with whom I have spoken believe that such an exception is alive and well, and that in the course of investigating a homicide, no warrant is required to “process” the crime scene.

If Amazon wants to challenge it based on those grounds, it can try. But it also may not have the standing to challenge the warrantless search of this customer's device since it would have little possessory interest in recordings created by customers. But it's worth a shot, if only to remind law enforcement (and this judge) that there's no warrant exception for murder scenes.

Filed Under: 4th amendment, amazon echo, crime victim, echo, new hampshire, recordings
Companies: amazon

Bogus Wiretap Charges Brought Against Man Who Recorded Cops Costs NH Taxpayers $275,000

from the public-servants-still-screwing-the-people-they-serve dept

One of those things I thought would have gone out of vogue is apparently still in style in New Hampshire. The number of bullshit wiretap prosecutions brought against people recording cops has dropped precipitously over the past half-decade as courts have found use of wiretap statutes in this fashion unconstitutional, but over in the Live Free or Die state, the statute lives freely and dies even harder.

Back in 2015, prosecutors brought wiretapping charges against Alfredo Valentin. Valentin had returned home one day to find a SWAT team in the middle of a no-knock raid. Apparently, Valentin's roommate was also a heroin dealer. Valentin had been called home by a neighbor who noticed his dog wandering the street, apparently set free (and still alive!) by the SWAT team's home-breaching efforts. Valentin chose to record the officers as they proceeded with the raid despite officers telling him (wrongly) that he couldn't.

This became a wiretapping charge because the cops couldn't handle a citizen ignoring a direct order. They claimed Valentin "hid" the phone by placing it down by his leg while he kept recording. Apparently, the officers could still see the phone, so claims of it being a "secret" recording were per se moronic. But this was what the flimsy, highly-questionable charges rested on: a supposedly surreptitious recording officers in attendance knew was happening.

The charges were tossed and Valentin sued. Now, with the ACLU's help, Valentin has obtained a settlement (but not an admission of wrongdoing) from the government.

The settlement, which was reached in late September, was announced Wednesday by the ACLU-New Hampshire.

Lehmann said Valentin received about two-thirds of the settlement, and he will use it to get his life back together. He was arrested in March 2015. The previous year, Free State activists from New Hampshire prevailed when the U.S. First Circuit Court of Appeals ruled that any person has a First Amendment right to video or audio-record police officers engaged in official duties in public places.

Gilles Bissonnette, the ACLU-NH's legal director and co-counsel, said the settlement recognizes that recordings of police are a critical check on police power.

"The police need to understand that individuals who are recording their work without interference have a constitutional right to do so, and it is not cause for their arrest," Bissonnette said.

The First Amendment right exists with or without a police officer giving consent to the recording, the ACLU said.

The $275,000 settlement will hopefully help Valentin piece back together a life law enforcement officers vindictively destroyed. Following his arrest, Valentin lost his job of eleven years and has spent the past two years trying -- and failing -- to restart his career. Having a felony arrest on his record doesn't help, even if charges were ultimately dropped.

New Hampshire's wiretapping statute still stands. The state requires two-party consent for recordings. But, as has been pointed out by courts previously, the state's statute does not apply to recording public servants like police officers performing their duties in public. The state's Attorney General made this explicitly clear in the wake of the First Circuit Appeals Court's Glik decision. A memo [PDF] clarifying the right to record police was sent to law enforcement agencies in 2012, so the officers here -- and the prosecutor who chose to continue pressing charges -- had no excuse for their actions. In the process, they cost an innocent person his job and derailed his life for the better part of two years. And in the end, they'll have the bill covered by New Hampshire taxpayers and a signed agreement saying they did nothing wrong.

Filed Under: alfredo valentin, new hampshire, police, recording police, wiretap

Charles Harder Loses Again: You Can't Just File Defamation Lawsuits In A Random State Because You Like Its Statute Of Limitations

from the sorry-charles dept

As you may know, Charles Harder is the lawyer behind the lawsuit Shiva Ayyadurai filed against us, so feel free to view everything we say here through that prism. Last week, of course, the judge in our case dismissed the case against us, noting that everything we said was clearly protected by the First Amendment. But that wasn't Harder's only loss of the week. Eriq Gardner points out that he also lost a case he filed against The Deal.

That case had been filed a couple months before our lawsuit, in federal court in New Hampshire. It was filed on behalf of Scottsdale Capital Advisors, a company based in Arizona, and one of its execs, the Nevada-based John Hurry, against the Delaware-registered and New York-based "The Deal" and one of its reporters, the California-based William Meagher. Now, you may wonder why this lawsuit was filed in New Hampshire, seeing as none of the states above include "New Hampshire." And, indeed, the court was wondering that too, because it dismissed the case over this bit of weird venue shopping:

Scottsdale has failed to establish that defendants have the minimum contacts with New Hampshire required for this court to exercise personal jurisdiction over them in this action consistent with the Fourteenth Amendment’s due process clause. Specifically, the plaintiffs have not demonstrated that their claims are related to the defendants’ forum-based activities or that the defendants purposefully contacted New Hampshire such that they could expect to answer for their actions here.

So, why file in New Hampshire? Here's a hint:

• Statute of limitations for defamation lawsuits in New York: One Year
• Statute of limitations for defamation lawsuits in Delaware: Two Years
• Statute of limitations for defamation lawsuits in California: One Year
• Statute of limitations for defamation lawsuits in Arizona: One Year
• Statute of limitations for defamation lawsuits in Nevada: Two Years
• Statute of limitations for defamation lawsuits in New Hampshire: Three Years

Which one of those is not like the others?

The articles at issue in the lawsuit were published on December 6, 2013, March 20, 2014 and April 16, 2014. The lawsuit was filed on November 18, 2016. In other words, the lawsuit was filed over two years after the publication of the articles, and thus any state with a one-year or two-year statute of limitations -- including all of the states connected to the various parties -- would not have worked. New Hampshire, however, has that lovely three year statute of limitations.

The ruling then details the rather extraordinary effort that Scottsdale's lawyers put into trying to argue that New Hampshire is the right place to hear a case when none of the parties is actually in New Hampshire. In short, the argument appears to be that Dartmouth, a college based in New Hampshire, has a subscription to The Deal, and therefore it's published in New Hampshire. And also, The Deal tried to get Dartmouth to renew its subscription, and thus it "conducted business" in New Hampshire. The court is... not impressed for a variety of reasons.

At the time it published Meagher’s articles, and in the time since, The Deal has had only one subscriber in New Hampshire -- Dartmouth College. According to The Deal’s records, no user accessed these three articles through the Dartmouth subscription. Nor did either of the two users of the Dartmouth subscription who had signed up to receive “The DealFlow Report” at the time the articles were published open the attachments containing links to the March 25 or April 22 articles; and no evidence suggests either opened the attachment containing a link to the December 10 article. Indeed, according to data collected through Google Analytics, not a single user who read these articles through The Deal’s online portal was located in New Hampshire.

Because no evidence suggests that anyone in New Hampshire -- Dartmouth-affiliated or otherwise -- viewed the three allegedly-defamatory articles, the plaintiffs focus on other contacts between The Deal and Dartmouth. For example, The Deal solicited Dartmouth’s subscription, and renewals thereof, through emails and telephone calls specifically directed at Dartmouth. Furthermore, during the time period between January 1, 2013 and June 2017, 81 individuals were registered to use The Deal’s online portal under Dartmouth’s subscription. Approximately 30 to 40 students each year were permitted to access The Deal’s online portal via IP authentication (that is, without entering a log-in name or password). The Deal registered a total of 7,232 “sessions” by Dartmouth users visiting its online portal during this time period. The Deal also communicated directly with between 32 and 48 individuals at Dartmouth by email during this time, including regular circulation of “The DealFlow Report” to the two Dartmouth-affiliated individuals who had signed up for it.

But, the court notes that's not nearly enough to make New Hampshire the proper venue:

First, the circulation of the allegedly-defamatory articles in New Hampshire is negligible.... (“The size of a distribution of offending material helps determine whether a defendant acted intentionally.”). Though some 7,000 members of the Dartmouth community theoretically had access to The Deal Pipeline, the plaintiffs do not dispute the defendants’ representation that only 30 users were signed up to use that subscription to access The Deal’s online portal at the time the articles were published, and that only two users actually received an email newsletter containing active links to the articles. Such “thin distribution may indicate a lack of purposeful contact,” and it appears to do so here....

Regardless of the number of individuals who could have accessed the offending articles through Dartmouth’s subscription to The Deal Pipeline, the evidence presented suggests that none did. Unlike in Keeton and Calder, where New Hampshire residents read the allegedly libelous statements, presumably, damaging the plaintiffs’ reputations, Scottsdale’s reputation in New Hampshire cannot be impacted by the statements allegedly published in New Hampshire if no one in New Hampshire saw the statements.

The court also notes that there's a strong appearance that the lawsuits were filed to create a burden on the reporter, Meagher:

The defendants’ burdens of appearing in New Hampshire and the inconvenience to the plaintiffs weigh somewhat against finding jurisdiction here. While that burden on The Deal, a corporate defendant located in New York, is not heavy, the burden on Meagher, an individual residing in California, may be. Ticketmaster-N.Y., 26 F.3d at 210 (“The burden associated with forcing a California resident to appear in a Massachusetts court is onerous in terms of distance . . . .”);....

“As the First Circuit has explained, however, the ‘burden of appearance’ factor is important primarily because ‘it provides a mechanism through which courts may guard against harassment.’” R&R Auction Co., LLC v. Johnson, 2016 DNH 40, 23 (Barbadoro, J.) (quoting Ticketmaster-N.Y., 26 F.3d at 211). This is not the first action that Scottsdale has brought against the defendants for defamation. In May 2016, Scottsdale sued the defendants in New York, where The Deal is located. It withdrew that action on the eve of the deadline for defendants’ motion to dismiss, forcing the defendants to incur the expense of drafting that motion unnecessarily, and then filed this action in New Hampshire. Scottsdale also sued FINRA in Arizona over its investigations of Scottsdale. The defendants here suggest that “the Plaintiffs’ primary strategic purpose” for bringing both the New York and New Hampshire actions “was to coerce Defendants into revealing the identity of Mr. Meagher’s confidential source in the hopes that this information would bolster their case against FINRA in Arizona.” Scottsdale does not deny -- nor even address -- this allegation in its objection and did not do so at oral argument. This factor, therefore, weighs heavily against the reasonableness of this court finding personal jurisdiction.

This ruling also comes the day after another Charles Harder lawsuit was filed in New York. Again, there, we noted that there were serious statute of limitations questions.

In a profile of Charles Harder published in the Hollywood Reporter last year, it was noted that Harder is well aware of the differences in state laws over defamation:

In his offices, Harder keeps charts mapping the differences in libel and privacy laws throughout the country. He also has become a pro on where to strategically file cases.

It appears that at least some courts are not impressed with the "strategy" behind where Harder files his cases.

Filed Under: charles harder, john hurry, jurisdiction shopping, new hampshire, statute of limitations, william meagher
Companies: scottsdale advisors, the deal

U.S. Court Of Appeals Upholds Ruling That New Hampshire's Silly Ballot Selfie Ban Violated The First Amendment

from the silence-citizens! dept

You may recall that roughly a year ago, a federal judge struck down a New Hampshire law that made "ballot selfies" illegal. The state had essentially updated its laws revolving around limiting the ability to sell votes or influence the public through depicting who a person voted for to include criminalizing anyone that took a picture of their completed ballot and shared it on social media. The state had said that allowing that sort of thing encouraged voter corruption, with the idea that ballot selfies would be used as a form of proof that a bought vote had been completed, or might otherwise be used to influence other members of the public as to how to vote. It was a strange theory, given how unlikely it would be for a corrupted voter to post evidence of his or her corruption on Facebook, not to mention that stating that a person essentially couldn't engage in a form of political speech via a picture was flatly unconstitutional. The federal judge agreed.

But, for reasons I cannot begin to fathom, New Hampshire appealed this ruling. And so it went before the U.S. Court of Appeals for the 1st Circuit... which found the law to be flatly unconstitutional as well.

The court held this statute violated the First Amendment; whether or not it’s viewed as content-based (and I think it should be), the statute is unconstitutional because it fails even the “intermediate scrutiny” applied to content-neutral speech restrictions.

From the ruling itself:

Digital photography, the internet, and social media are not unknown quantities — they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation...But even accepting the possibility that ballot selfies will make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring.

The ruling goes on to detail the two reasons. First, the court points out that none of the fears the state raises as its reasons for enacting this law have been realized and that curtailing the free speech rights on an entire population over a theoretical problem ain't a thing that the state can do. Second, should those fears actually come to reality, the court points out that there are already laws on the books to address them and, again, limiting free speech rights on an entire population when that's the case isn't going to fly.

The point is that political speech is about as sacred a thing as a secular republic like ours has. That New Hampshire is going to such lengths to keep people from being able to proudly show that they voted, and who they voted for, seems strange for a state with a motto of "Live free or die."

Filed Under: ballot selfies, first amendment, free speech, new hampshire

New Hampshire Legislator Introduces Bill Protecting Libraries' Right To Run Tor Relays

from the privacy-shouldn't-be-considered-inherently-suspicious dept

A small town library in New Hampshire that went to war with the DHS over a Tor relay has become the unlikely impetus for new legislation aimed at protecting public libraries from government overreach.

New Hampshire state legislators have introduced a new bill that allows public libraries to run privacy software like Tor.

The bill, crafted by State Rep. Keith Ammon (R) and sponsored by six other lawmakers, emphasizes the role that encryption and privacy tools will play in upholding the long tradition of privacy in public libraries.

“Public libraries ... have upheld and protected patron privacy as one of their core values since 1939,” the bill reads. “In a library (physical or virtual), the right to privacy is the right to open inquiry without having the subject of one’s interest examined or scrutinized by others.”

Libraries have occasionally been the frontline for privacy skirmishes. "Warrant canaries" are a library creation. In the case of the Kilton Public Library, the DHS stepped in and demanded the Tor relay it was running for use by patrons be shut down. The library fought back, eventually forcing the DHS to back down.

To prevent this sort of thing from happening again, Ammon's bill would grant libraries the right to run Tor relays and other software to protect users' anonymity.

Public libraries may allow the installation and use of cryptographic privacy platforms on public library computers for library patrons use. Cryptographic privacy software shall include Tor or other privacy software that encrypts user's information to protect it from surveillance or collection. Public libraries may also support infrastructure for cryptographic software that helps to promote a free and open Internet, such as running Tor relays. Public libraries shall not give records relative to use of cryptographic privacy software to a government agency without first providing written notice to the person in question.

This is likely to run into law enforcement opposition, even though there have been very few prosecutions linked to abuse of public library computers.

The Library Freedom Project continues to push ahead with its plan to install Tor exit relays in as many public libraries as possible. Despite the DHS no longer demanding relays be shut down and begrudgingly accepting the fact that running a relay is not an illegal act -- nor even a reasonably suspicious one -- the agency still insists Tor is mostly just there to cover up criminal activity.

The use of a Tor browser is not, in and of itself, illegal. There are legitimate purposes for its use. Originally designed, implemented and deployed by [the] United States Naval Research Laboratory, Tor affords users a way to share information over public networks without compromising their privacy. However, the protections that Tor offers can be attractive to criminal enterprises or actors and HSI will continue to pursue those individuals who seek to use the anonymizing technology to further their illicit activity.

In fact, as Ars Technica's Cyrus Farivar pointed out on Twitter, the DHS is still holding onto some bitterness from being shouted down by a tiny public library.

Newly-released DHS email mocks @flexlibris et al’s efforts, citing this @arstechnica story. https://t.co/zUS3sd3v8K pic.twitter.com/uCTaSvoFqB

— Cyrus Farivar (@cfarivar) February 18, 2016

Emails related to the DHS's shutdown on the relay contained this derisive statement about Alison Macrina -- one of the leaders of the "Tor relay in every library" project:

Just terrific…… that kid seems to be thinking an inch past the end of her nose

This isn't likely to be the end of government efforts to shut down the use of encryption/anonymization software by publicly-accessible entities. But, if the legislation passes intact, future battles will be fought somewhere other than New Hampshire.

Filed Under: encryption, keith ammon, libraries, new hampshire, privacy, tor

Court Tosses Bogus Wiretapping Charge Against Man Who Recorded Cops Who Raided His House

from the we'll-assault-you-and-your-house-in-public,-but-please-don't-record-us dept

For many years, law enforcement agencies used (mostly outdated) wiretapping laws to justify arrests and prosecutions of citizens who recorded them during their public duties. For a long time, they succeeded, with Illinois seeing a great many of these thanks to its (unconstitutional) law. That law has since been nullified by the courts, but there are still a few legacy laws out there being abused to shut down recordings of police officers.

Another win has arrived for citizens who play an key part in the law enforcement accountability process. Photography Is Not A Crime reports that New Hampshire native Alfred Valentin has had wiretapping charges against him dismissed. Incredibly, New Hampshire prosecutors tried to use another state's law (via an appeals court decision) against Valentin in hopes of getting the charges to stick.

In an attempt to convict the Manchester man, prosecutors tried to take advantage of the Massachusetts wiretapping law, which is different than New Hampshire’s law.

In Massachusetts, the wiretapping law criminalizes all secret recording of conversations, even those that take place in public.

The prosecution claimed that Valentin secretly audio recorded two Manchester police sergeants by holding his phone by his leg, although it apparently wasn’t so secret that the cops didn’t notice.

The events leading to the failed prosecution of Valentin began with a no-knock raid by Manchester's SWAT team. Valentin had taken in a roommate who, unbeknownst to him, was currently under investigation for heroin trafficking. While Valentin was at work, the police raided his house, firing incendiary devices through his windows and seizing his home security cameras.

Valentin was summoned home by a neighbor who had found his dog wandering the streets. When he arrived, he was greeted by plainclothes officers who refused to identify themselves. The officers refused to show him a search warrant, telling him to "come back in an hour" when a supervisor would be there. Valentin returned to see the supervisor (and warrant) and began recording his interactions with the officers. The officers responded by arresting him for violating the state's wiretapping law.

This arrest was followed up by the police department issuing a press release falsely stating Valentin had been arrested in connection with a heroin trafficking investigation. In fact, he was never a suspect and was never charged with any drug-related violations. Because of this bogus press release, Valentin lost his job. He is now suing the involved officers for over $1 million, citing a list of constitutional violations and libel-related complaints.

The prosecutors invoked Massachusetts law by way of the First Circuit's Glik decision -- one that found citizens have a First Amendment right to record public servants in any area that does not carry a "reasonable expectation of privacy." The New Hampshire court quotes this part of the Glik decision:

"[T]he First Amendment protects the filming of governmental officials in public spaces .... "

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting 'the free discussion of governmental affairs."'

The state prosecutors, however, focused on this part of the decision.

The State contends the U.S. Court of Appeals for the First Circuit in Glik and Gericke "found that, in the absence of a statutory exception, the First Amendment to the Federal Constitution does not protect an individual who intercepts public officials' oral communications unless ... the act of recording is done openly."

The officers spotted the cellphone, leading to Valentin's arrest, so it seems unlikely he wasn't "openly" recording them. Valentin maintains he was holding the phone at chest level, which would have made it even more apparent he was holding a recording device. No matter which version of the events is accurate, the placement of phone bears no weight on the court's decision.

The State's representation of Glik and Gericke is manifestly incorrect. The question of "openness" did not enter into the First Amendment analysis in either case. In Glik, the plaintiff brought First and Fourth Amendment claims against Massachusetts following an arrest under Massachusetts' wiretap statute for recording police.

In its First Amendment analysis, the Glik Court wrote, "(i]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative." Glik later suggests that the First Amendment does not protect filming that interferes with police duties. The Court, however, explicitly declined to specify further limitations stating, "[t]o be sure, the right to film is not without limitations… We have no occasion to explore those limitations here, however." Likewise, Gericke allows for reasonable restrictions on the right to record police, but never discusses whether such recordings must be open.

The Glik decision's question of "openness" only applies to alleged Fourth Amendment violations. The state then argued that both issues must be tied together, because if a secret recording is permissible under the First Amendment then the resulting arrest would be a Fourth Amendment violation. The state argues that both cannot be simultaneously true. The court points out the flaw in this analysis.

If the First Amendment protects secret recordings, the State argues, there could have been no probable cause to arrest the plaintiff, and so the Court would have had no reason to decide whether the recording was secret. To the contrary, the fact that a criminal charge violates the First Amendment does not mean that the arrest underlying the charge violates the Fourth Amendment. Thus, the Glik's analysis about whether the recording was secret for Fourth Amendment purposes does not show that secret recordings are beyond the First Amendment's protection.

[...]

As such, absent contrary authority from the State, the Court finds that the First Amendment protects secretly filming police in public, for the same reasons that the First Amendment generally protects filming police. The public has the right to gather and disseminate information about the police.

Officers can secretly record citizens in public areas and vice versa. Public areas carry very limited expectations of privacy and any privacy protections that might be implicated are dramatically decreased for public servants performing their duties in public areas. No relevant court decision says otherwise. There is no statutory requirement that citizens inform public servants that they are being recorded in these situations.

With this out of the way, Valentin should be able to proceed with his lawsuit. Violation of his First Amendment rights has been determined by this dismissal. This will allow him to focus on the other constitutional violations listed in his suit, as well as the alleged libelous statements that cost him his job.

Filed Under: alfred valentin, new hampshire, police, recording police, wiretapping

Cop Fights State Agency For Right To Place '0INK' License Plate On His Own Vehicle

from the this-is-why-the-word-'humorless'-often-precedes-'bureaucrat' dept

Vehicle vanity plates are a form of expression -- albeit one often severely limited by the arbitrary decisions of state agencies. Last year, we covered a man's battle against New Hampshire's Dept. of Motor Vehicles for the right to be subjected to increased police harassment attach a "COPSLIE" license plate to his car. He won (but probably also lost), in part because his backup vanity plate application -- for a government-hugging "GR8GOVT" -- was approved by the agency.

This put to lie the agency's claim that it only forbade plates that would be "offensive" to a "reasonable person." Many more people would disagree with the sentiment that government is "great" than would find the thought of cops lying "offensive." It didn't help that the agency also pointed out in its rejection paperwork that individual employees found his "COPSLIE" plate insulting -- thereby inserting the agency as a proxy for the average New Hampshirean.

Now, the shoe's on the other foot (to a certain extent...) and the battle is being fought in a different state. First off, it's a cop who's being denied his request for a vanity plate. The common ingredient is a highly-arbitrary rejection process. Here's a very brief summary, from Martha Neil's article for the ABA Journal.

An Indiana cop may be on the verge of regaining his treasured 0INK vanity plate.

The state’s top court heard arguments Thursday on a class action pursued by Greenfield police officer Rodney Vawter, with the help of the American Civil Liberties Union of Indiana, after his renewal application for the 0INK license plate was denied, the Associated Press reports.

Vawter, a rare self-effacing law enforcement officer, had the plate for three years before the state suddenly revoked it, claiming it was "offensive." Of course, the state seems to have no idea what is or isn't offensive, and simply rolls dice/throws darts/flips coins when dealing with vanity plate applications, as Tim Evans of the Indy Star pointed out earlier this year.

What's the difference between the words HATER and HATERS?

Nothing other than the letter "s" — unless you ask the Indiana Bureau of Motor Vehicles.

The BMV denied a personalized license plate request for "HATER" but approved one that said "HATERS."

It also denied "SXY" but approved "BIGGSXY." "FOX LIES" was rejected, but "FOX NEWS" was given a thumbs-up. "CNCR SUX" was a no-no, but "WNTR SUX" was A-OK.

The ACLU, which is representing Vawter in his license plate battle, found even more examples of the impossible (and impossibly flexible) "standard" the state's Bureau of Motor Vehicles applies to plate applications.

Ken Falk, the ACLU's legal director, cited plates the BMV has allowed that also might be deemed offensive, such as "BLK JEW," ''HATE" and "FOXY GMA."

It's this sort of thing that led to a county Superior Court judge declaring the BMV's inconsistent policy unconstitutional back in May. Nevertheless, the state's Solicitor General says the BMV retains the right to reject "offensive messages" -- which apparently covers Vawter's joking self-disparagement. It's taking this all the way to the state's Supreme Court. And rather than approve the "UNHOLY" license plate requested by a KISS fan (after approving others like "BIBLE4ME" and "GODTHANKS"), the BMV has simply chosen to stop issuing vanity plates until the Supreme Court makes a final decision.

Quite obviously, Vawter's plate would offend roughly zero people -- certainly far fewer than other plates the agency has issued. The fact that Vawter had the plate for three years before the BMV decided to claw it back only adds to general untrustworthiness of the BMV's slippery approval process. As it stands, the system is obviously (and almost flagrantly) unconstitutional. Hopefully, the state Supreme Court will make a final determination and force the BMV to give Vawter back his in-joke/vanity plate. And hopefully this determination will curb the number of rejections handed out by overly-sensitive bureaucrats with more power than skin thickness.

Filed Under: 01nk, free speech, indiana, license plates, new hampshire, police
Companies: aclu

New Hampshire Law Banning Ballot Selfies Struck Down As Unconstitutional

from the free-speech-or-gtfo dept

As anyone who pays attention to technology and social trends knows, selfies have been a thing for a while now, for some reason. These testaments to the massive inflation of our own egos have occasionally created pushback in a variety of forms, from the banning of selfie sticks from roughly all the places to, sigh, intrusions into intellectual property matters as they relate to damn dirty monkeys. And, in a bit of news that missed my radar for some reason, last year New Hampshire updated its laws prohibiting the photography of voting booths and records to include criminalizing individual voters taking so-called "ballot selfies", in which they proudly tweet out a picture of a completed ballot.

The original laws against this type of thing, most of which were codified in the 1970s, typically were put in place to stave off influencing the public in voting matters by a show of votes and warding off the possibility of paid-for votes being carried out with the photograph being used to confirm the vote was completed. These goals, while seemingly laudible, are misguided for any number of reasons, including the limitation on expression for fear of a might-be-possible-future-crime and the fact that all manner of people discuss their voting habits all the freaking time anyway, such that a photograph doesn't really add much to the discussion. When my friend tells me he writes in Bear Grylls for President every four years because, hey, that dude drinks his own urine, imagine what crazy shit he'll do as President, I don't shout "Pics or it didn't happen!" at him.

And, in a moment of legal beauty, a federal judge in New Hampshire agrees and has declared ballot selfies to be free and protected speech.

In his ruling, U.S. District Court Judge Paul Barbadoro said it's speculation to think people will be coerced into selling votes if they can post the image online. During arguments in June, lawyers for the state acknowledged there are no known cases of vote-buying or coercion in New Hampshire.

"You think people are going to post a photo on Facebook?" he said [during oral arguments]. "'I'm a proud seller of my vote! I just sold my vote for $25!' At some level, you have to use common sense."

The ACLU argued successfully in favor of three voters who had been investigated after posting pictures of completed ballots on social media. Included amongst those three individuals was one gentleman whose photo showed that he had written in his own dog's name because he hated all the legitimate candidates. And before anyone in our government runs off to start investigating whether Fido in fact bribed this man to vote this way, you should know that Fido was dead at the time. Dead dogs go to heaven, they don't commit federal election fraud. Cats might, pending my further study of the possibility.

In any case, the point is that political expression is perhaps the most sacred form of free speech in our republic. A law outlawing a form of that speech in favor of concern for something that hasn't ever happened probably isn't the best way to govern.

"Today's decision is a victory for the First Amendment," Gilles Bissonnette, legal director of the ACLU-NH, said in a prepared statement. "Political speech is essential to a functioning democracy. The First Amendment does not allow the state to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban would address underlying criminal conduct."

Indeed. Selfies are many things, and not all of them good. But they are certainly speech.

Filed Under: ballots, first amendment, new hampshire, selfies