Threat Charges Overturned After Some Threats Deemed Impossible To Carry Out And Others Left No One Feeling Threatened

from the defending-the-right-of-jackasses-to-be-jackasses dept

Is a threat still a threat if there's no possible way the threatened deed could possibly be carried out?

Venkat Balasubramani (writing for Eric Goldman's blog) has gotten his hands on another bizarre "true threat" case, this one originating from Georgia and carrying enough unpleasant baggage that it made its way to the state's Supreme Court despite the central threat being nothing of the sort.

Lister W. Harrell is nothing if not disagreeable. He was charged with violations related to his position as a landlord. He blew off his court date and tried to "persuade" two court clerks to withdraw the arrest warrant for his failure to appear. This led to charges of animal cruelty and attempting to intimidate a court officer. That's where things get "fun," in the sense of the word that means "I'm so glad this happened to someone else."

On April 29, 2013, Harrell placed messages on the internet site Facebook that referred to Dodge County Superior Court Clerk Rhett Walker and Deputy Chief Clerk Tammy Graham. One post threatened that if the bench warrant was not lifted, Harrell would post an internet link to a video which he claimed showed Graham engaging in sexual activity with Harrell and two other men…

That's an ugly threat. One problem, though:

[N]o such video existed.

Not having the very thing he was attempting to blackmail a court clerk with didn't stop Harrell from continuing to make other claims he had no chance of backing up.

At trial, evidence was also presented that on April 15, 2013, Harrell left two voicemail messages intended for Shirley Webb, Harrell’s former girlfriend and the mother of two of Harrell’s children. In one message, Harrell stated that he was Sid Carter, Webb’s current boyfriend, was placing the call from the cell phone of Harrell’s son, and referred to a “dead pussy” in Webb’s mailbox. In the other message, Harrell implied that he intended to upload pornographic videos of Webb to an internet site.

Apparently, this "pornographic" video didn't exist either.

Harrell did much, much more than this. According to the allegations, a dead cat was found in Webb's mailbox and an animal trap in the adjoining area between Harrell and Webb's property. Harrell also "slowed down" when driving by the house and "pointed at the mailbox."

He also went after court clerk Rhett Walker, making another set of vaguely-threatening statements.

In another post, Harrell listed Walker’s personal cell phone number and urged readers to call Walker to tell him to leave Harrell alone while he was “on the run,” and thus not ruin Harrell’s “chicken foot eating victory.*” Harrell also initiated telephone communication with Walker in an attempt to persuade him to lift the bench warrant, saying that if he did not do so by a certain date, Harrell would “turn [Walker’s] world upside down,” and that “you know what will happen on Facebook.”

*No idea.

However, the court found that while Harrell was odious and childish, he was not guilty of issuing anything resembling a "true threat."

The court says that under Virginia v. Black, states may criminalize true threats, which it says are defined as statements where the speaker intends to create a fear of bodily harm. Under this standard, none of Harrell’s statements qualified. His posts to the Facebook group “DixieMafia,” while embarrassing and even caustic, did not intend to place anyone in fear of harm. Nor did the putative victims testify that they were placed in any fear of harm as a result of his statements.

So, we have threats that couldn't possibly be carried out (the nonexistent sex videos), threats that no one felt genuinely threatened by, and a dead cat of unknown origin, but tied to this case by Harrell's statements. And with that being the only thread tying Harrell to the dead cat, the court severs the connection by declaring it to be "improperly joined" to the rest of the charges. That being said, Harrell can still be tried for animal cruelty. The high court's decision notes that a jury could reasonably find that the dead cat in the mailbox was related to the animal trap found on the premises, but his "dead pussy" comment left on Webb's voicemail won't be a part of the evidence.

The moral is that most criminals are terrible people, but not all terrible people are criminals. A lot of what falls under protected speech can be brutish and nasty without breaking the law. That may seem like a bad thing, but ensuring free speech remains free means having to support decisions in which it seems like a terrible person has gotten away with something. Some statements he made were vague. Others were merely laughable. And even at their ugliest, the targets of his statements remained unimpressed. It's pretty hard to make a "threat" charge stick when no one admits to feeling threatened.

Filed Under: first amendment, free speech, lister harrell, true threats

Court Tells State Psychology Board It Can't Use Its Powers To Regulate Protected Speech

from the derailing-a-power-trip dept

Oh, look. It's the government getting in the way of itself.

A Kentucky psychiatry board cannot censor the nation's longest-running newspaper columnist for providing advice as a "family psychologist," a federal judge ruled.

John Rosemond, whose Dear Abby-style parenting column is syndicated in more than 200 newspapers, claims he received a threatening cease-and-desist letter from the Kentucky Board of Examiners of Psychology on May 7, 2013.

Rosemond, dubbed a family psychologist in his byline, holds a master's degree in psychology and is licensed to practice North Carolina, but is not qualified to provide psychological services to Kentucky residents, according to the board.

The letter, signed by Assistant Attorney General Brian Judy, further alleged Rosemond's advice that parents of a deadbeat teen confiscate their son's cell phone as a "wake-up call," amounted to professional services rendered.

DEAR GOD. The horror. It's like something Ann Landers would say but without wandering off to briefly consider the social destruction wrought by cellphone use at the dinner table.

Yes, the Kentucky psychiatry board concern-trolled a syndicated advice columnist, presumably because it felt general advice dispensed across multiple states somehow threatened its rent-seeking regulatory apparatus. But it's finding no comfort from the court, which has told it to stop using its powers to throttle protected speech.

The Board tried to argue that Rosemond's column was unprotected "professional speech," due to his byline as a psychologist. The court finds all kinds of problems with this argument.

This theory is both consistent with how the doctrine has been applied in the aforementioned cases addressing the professional speech doctrine, and is also sensible in light of the doctrine’s aims. Pursuant to this doctrine, the government is permitted to regulate speech in limited circumstances so as to protect the individual receiving advice— the client. As articulated by Justice White, without this professional-client relationship, the doctrine’s vices outweigh its virtues.

In this case, that “personal nexus between professional and client” does not exist. Neither party suggests that Rosemond has any idea who the teenager in his column is. In fact, nobody knows the individual who Rosemond was writing about or whether that person lives in Kentucky. Nobody knows if the teenager’s parents read the article or took the advice, much less if anyone was harmed. For all the Board knows, the “wakeup call” worked and, instead of harming the teenager, it served its purpose. Furthermore, Rosemond receives no compensation from any person in exchange for the advice offered in his columns. Put plainly, the question and answer format used by Rosemond is nothing more than a literary device. The relationship that is necessary between a professional and a client to trigger application of the professional speech doctrine just did not exist. This should not come as much of a surprise to the Board, who conceded in oral argument that it knew of no case that defined professional speech in the way the Board sought to apply the doctrine.

Once again, legal arguments best described as "novel" fail to score any points. An argument without precedent rarely holds up in court. Comparing the Board's assertions to the actual facts of the case, the court calls the entity out for its transparent attempt at regulating protected speech.

Rosemond’s speech is neither commercial, nor professional. Instead, the Board used K.R.S. § 319.005 to restrict Rosemond’s speech because it took issue with the message he was conveying. Such government regulation is content-based, and only constitutional if it survives strict scrutiny.

The court also takes the time to criticize the board for its attempt to scuttle Rosemond's tagline.

The Board also argues that the tagline at the bottom of Rosemond’s column is commercial speech, and further that Rosemond’s “unqualified use” of the term family psychologist is “potentially misleading, to the public’s detriment.” For the same reasons that the Board’s attempted regulation of the body of Rosemond’s column is content-based, so too is its regulation of his tagline. If Rosemond described himself as something other than a “family psychologist,” or qualified his statement, then the Board would not have pursued him. As discussed, supra, this is the hallmark of a content-based restriction.

The decision then goes on to point out that the Board's actions seem particularly meritless and perhaps even a bit vindictive.

If the State’s interest is really in preventing persons unlicensed in the Commonwealth of Kentucky from holding themselves out as licensed professionals, it is difficult to understand how Dr. Phil, Dr. Oz, and countless other self-help gurus would not also be in the Government’s crosshairs. The Board has never investigated another newspaper columnist, nor book author for holding themselves out to be a “psychologist” without proper licensure in Kentucky. When asked how the Board would respond to a complaint if one were levied against Dr. Phil, the Board did not know. While there is no evidence in the record demonstrating that other public personalities similarly hold themselves out to be “psychologists” in Kentucky, it is hard to believe that others do not.

Finding in favor of the columnist, the court has ordered a permanent injunction against the Board's use of its power to regulate protected speech. But why did it even get to this point?

Well, certain regulatory agencies have tried to expand their reach by regulating speech under the guise of public safety. A few years back, North Carolina tried to shut down a blogger extolling the virtues of the "paleolithic diet" by claiming he was dispensing dietary advice without a license. Some government agencies just want to have control. Others dislike outsiders who don't "buy in" to the special "club." (Licensing for psychologists in Kentucky runs $300 initially and $100 per year after that.)

In Rosemond's case, a retired psychologist filed a complaint with the Board after reading one of Rosemond's columns. This resulted in the Board's serving of an affidavit demanding Rosemond pull his column. Rosemond refused and filed a suit against the Board instead, seeking declaratory judgment that the Board's conduct violated his First Amendment rights. He won. And all of this can be traced back to a retired professional who disagreed with Rosemond's advice, and an agency only too eager to flex its regulatory muscle. A complaint that should have been greeted with a shrug has resulted in a judicial smackdown that will prevent the Board from acting so stupidly in the future.

Filed Under: first amendment, free speech, john rosemond, kentucky, licensing, psychology

Man Gets $35k Settlement After Arrest For Posting 'Fuck The Fucking Cops' On Department Facebook Page

from the 1A-ftw dept

It's becoming quite a period of time for the profane when it comes to interacting with law enforcement, apparently. We had just recently discussed one man's victory in federal court over a town that didn't appreciate him writing "Fuck your shitty town bitches" on a speeding ticket he'd mailed in. Well, back in 2012, another delightful human, Thomas Smith, was apparently arrested for being an ass on the Arena, Wisconsin, Facebook page.

In July 2012, the Village of Arena in Wisconsin posted a note on its Facebook page announcing a slew of arrests. Smith then posted "Fuck ths fucking cops they ant shit but fucking racist basturds an fucking all of y'all who is racist," as well as "Fuck them nigers bitchs wat you got on us not a dam thing so fuck off dicks." He was arrested for disorderly conduct and unlawful use of a computer and telephone. He was originally convicted by a local jury, but that decision was overturned by the Wisconsin Court of Appeals, which ruled Smith's First Amendment rights were violated.

Um, yeah, memo to the police in Arena: being a jerk to police, calling them names, and using deplorable language is no more a violation of the law than blatantly mispelling the insults themselves and using the kind of grammar that I actually kind of wish would get people thrown in the clink. Likely the jury was presented with what Smith had written and decided he was a jerk and ruled against him. That doesn't change the fact that the arrest and conviction were both unconstitutional, of course. And, after Smith and his attorney sued the village, the village agreed, settling with Smith for $35,000.

Smith and his attorney, Tom Aquino, sued the village for an unspecified amount. Wednesday, the village settled with him, according to Aquino.

"We have always believed that the defendant’s liability was clear. Federal and state courts have routinely held that the right to free speech is not limited to polite speech alone," Aquino wrote in a blog post. "In our country, we are entitled to criticize our government with passion. The use of some four-letter words in the course of doing so is never a crime."

It can't be easy to be a good cop and have to endure a profane tirade on a public town Facebook page, but that doesn't excuse the violation of basic civil rights in retaliation. And Smith's speech, while lacking poetry and panache, is certainly protected. It's about time law enforcement realizes that profanity is still free speech so that they can stop costing municipalities this kind of settlement money.

Filed Under: arena, first amendment, free speech, police, social media, wisconsin

Donald Trump Threatens Ridiculous Defamation Lawsuit Over Attack Ad

from the slappity-slapp-slapp dept

Donald Trump may be running for President, but apparently his notoriously thin-skinned approach (along with the quick legal trigger) to handling criticism has not yet gone away. Trump has been fighting with the conservative group Club for Growth for some time, and it put out something of an attack ad against him noting, among other things, that Trump has supported raising taxes (a huge no-no for the Club for Growth) among other things. As political attack ads go, this one is fairly tame. But it didn't stop Trump from having his lawyers send a blustery cease and desist letter to Club for Growth, claiming the ad is defamatory (the letter was first posted by Olivia Nuzzi from the Daily Beast):

Simply stated, your Attack Ad is not only completely disingenuous, but replete with outright lies, false, defamatory and destructive statements and downright fabrications which you fully know to be untrue, thereby exposing you and your so-called "club" to liability for damages and other tortious harm. For example, while your Attack Ad blatantly misrepresents to the public that Mr. Trump "supports higher taxes", nothing could be further from the truth. To be clear, Mr. Trump's tax plan, which is scheduled to be released later this week, supports a lowering of taxes.

Not surprisingly, a closer look at your Attack Ad reveals that your supposed "source" for this statement is -- according to the small print on your website -- nothing more than a single article published in the Advocate on February 15, 2000, which quoted Mr. Trump as supposedly saying he would "impose a one-time net worth tax of 14.25% on the superwealthy ... to pay off the national debt." That's it. While a reputable organization would have at least had the decency to disclose its source -- and the fact that the source article is more than 15 years old -- your pitiful little grup conveniently chose to leave that information out in a delierate attempt to mislead the public into believing that it is reflective of Mr. Trump's current position -- when unquestionably, it is not. Making matters worse, you then chose to appear on several talk shows, including MSNBC's Morning Joe, in which you furthered the erroneous notion that Mr. Trump "supports higher taxes" even though you have absolutely no factual support for that statement. In other words, you lied. Mr. Trump does not support higher taxes. This is the very definition of libel.

Actually, it's not even close to the definition of libel. It's almost certainly not libel at all.

The letter concludes in usual bluster:

In the event, however, we do not promptly receive these assurances, please be advised that we will commence a multi-million dollar lawsuit against you personally and your organization for your false and defamatory statements and the damage you have intentionally caused in my client's interests as well as pursue all other remedies available to us at law or in equity.

You'd think that someone running for president would know better than to totally flip his lid over some random attack ad. You'd think that his lawyer would (1) know that this is not defamation and that (2) threatening as such only gives the original ad much more attention. Trump, as a very public figure, would need to show that the information in the ad was not just false, but that Club for Growth knew it was false and deliberately posted such false information to harm Trump. That's not going to happen, not in the least because there's plenty of evidence to support the claims that Trump has advocated (recently) for higher taxes. The Federalist provides a list of some recent articles:

ABC (Aug. 6): Donald Trump Once Proposed the Biggest Tax Hike Ever
Bloomberg (Aug. 26): Donald Trump says he wants to raise taxes on himself
CNN (Aug. 27): Donald Trump: Tax the rich more
New York Times (Aug. 31): Increase taxes? Talk by Donald Trump alarms G.O.P.
International Business Times (Sept. 8): Elizabeth Warren Praises Donald Trump Tax Plan

Yeah, good luck with that "very definition of libel" thing.

Club for Growth seemed to take the whole thing in stride, tweeting out the following reply: If you can't read it, it says: Short response to @realDonaldTrump Stop Whining. Threatening a bullshit SLAPP suit against a political attack ad that says things that are basically true doesn't seem particularly presidential.

Filed Under: attack ad, donald trump, first amendment, raise taxes, slapp, taxes, thin skin
Companies: club for growth

Federal Judge: Profanely Insulting An Entire Town On A Speeding Ticket Is Protected Speech

from the f#*@-yeah dept

Do you remember Willian Barboza? No? He was the un-creative but quite profane young man who, upon being pulled over for speeding the laughably-named Liberty, New York, mailed in his ticket and fine with these wonderful words of wisdom scrawled across the top.

Fine, so Barboza isn't exactly Robert Frost. Still, his admittedly vulgar etchings probably weren't reason enough for the city to refuse his payment and subsequently charge him with harrassment under a horribly unconstitutional law. The city went that route anyway, though, and the matter went before a court, where the judge dismissed the charges against Barboza, as his profanity upon the ticket was obviously protected speech. I had thought that was the end of the story. I was wrong.

Shortly after that, Barboza, with the help of the New York Civil Liberties Union and attorney Stephen Bergstein, filed a lawsuit against the town of Liberty, assistant district attorney Robert Zangla and the two officers who arrested Barboza. The suit alleged that the arrest had violated Barboza's First Amendment right to free speech.

Barboza's attorneys argued that officials in Liberty had seriously misinterpreted New York's aggravated harassment statute. The statute says it's against the law for a person to "harass, annoy, threaten or alarm” someone "by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication." But Seibel said Thursday that what Barboza wrote, "though crude and offensive to some, did not convey an imminent threat and was made in the context of complaining about government activity," and therefore did not violate the statute.

And, frankly, it's hard to argue with his attorneys. The wonderful thing about free speech is that the speech is free even if the listener doesn't like it. The city's attempt to twist a harrassment law into the kind of pretzel that allows it to silence the criticism of government or law enforcement was deplorable and not befitting a town that takes the name of Liberty. As a person who relies on language some might find salty in order to make or emphasize a point, it would be a travesty to have to wonder whether simple expression might result in arrest and jail time. I, frankly, can't think of anything more un-American.

The judge hearing Barboza and the NYCLU's case agreed with them completely.

Judge Cathy Seibel said that prosecutors and police in Liberty, New York, violated Willian Barboza's civil rights when they arrested and prosecuted him for writing "Fuck your shitty town bitches" on a ticket he received in 2012. The judge stated that Zangla is liable for damages because he violated Barboza’s clearly established constitutional rights, but that the two police officers are not liable because Zangla instructed them to make the arrest. Seibel also ruled that Liberty will have to stand trial for failing to train police officers regarding the First Amendment.

Perhaps we should be getting the primary schools Zangla went to involved as well, because First Amendment protection is elementary school civics class stuff. Regardless, it's a win for all of us salty-mouthed bastards.

Filed Under: first amendment, free speech, liberty, new york, speeding ticket, willian barboza

FCC: Sorry, No -- Net Neutrality Does Not Violate ISPs' First Amendment Rights

from the legal-shenanigans dept

Back when Verizon sued to overturn the FCC's original, flimsier 2010 net neutrality rules, the telco argued that the FCC was aggressively and capriciously violating the company's First and Fifth Amendment rights. "Broadband networks are the modern-day microphone by which their owners engage in First Amendment speech," Verizon claimed at the time. It's an amusing claim given that the entire purpose of net neutrality is to protect the free and open distribution of content and data without incumbent ISP gatekeeper interference. Verizon ultimately won its case against the FCC -- but not because of its First Amendment claim, but because the FCC tried to impose common carrier rules on ISPs before declaring they were common carriers.

That's of course why the FCC finally decided to define ISPs as common carriers under Title II. But in their torrent of lawsuits against the FCC's new rules, ISPs continue to try and hide their anti-competitive intentions behind the First Amendment. AT&T's court filing from earlier this year, for example, made it clear AT&T intends to argue the FCC is violating its First and Fifth Amendment rights:

"In a statement of issues that AT&T intends to raise when the case moves further into the court process, the company said last week that it plans on challenging whether the FCC’s net neutrality order "violates the terms of the Communications Act of 1934, as amended, and the First and Fifth Amendments to the US Constitution." The First and Fifth Amendment will be used to attack the FCC's decision to reclassify both fixed and mobile broadband as common carrier services, as well as the FCC's assertion of authority over how ISPs interconnect with other networks."

In its own filing in the US Court of Appeals for the District of Columbia Circuit (pdf) this week, the FCC argues that this reasoning is, to use a less technical term, crap:

"Nobody understands broadband providers to be sending a message or endorsing speech when transmitting the Internet content that a user has requested. When a user directs her browser to the New York Times or Wall Street Journal editorial page, she has no reason to think that the views expressed there are those of her broadband provider. Nor is there anything in the record to suggest that companies providing mass-market retail broadband service as defined in the Order are seeking to convey any particularized message to their users. Instead, when providing Broadband Internet Access Service, broadband providers function (and are understood by their users to function) simply “as conduits for the speech of others, not as speakers themselves."

You'd think that would be common sense, but ISPs have a long, occasionally-successful history of hiding their dubious and/or anti-competitive shenanigans behind the First Amendment. Verizon has argued it has a First Amendment right to hand your call data over to the government. Comcast has argued its First Amendment rights are violated when it's told to stop blocking competitor channel access to its cable lineup. Charter has tried to argue that requiring it adhere to local video franchise agreements similarly violates its free speech rights.

In the net neutrality case, ISP lawyers are basically throwing everything they can at the wall and hoping something sticks. But the First Amendement claim here is painfully thin, given it's the ISPs interfering in content they didn't create and have no real authority over. It's also risky for ISPs currently protected by common carrier safe harbor protections to start arguing they're responsible for every thought that's transmitted over the Internet. It seems so much wiser for ISPs to stick to the kind of things they're truly good at: like violating your Fourth Amendment rights at every conceivable opportunity.

Filed Under: fcc, first amendment, net neutrality
Companies: at&t, verizon

Federal Court Finally Says That Gag Order On 11-Year-Old National Security Letter Should Be Lifted Already

from the big-win dept

Five years ago, we wrote about a pretty big victory against National Security Letters (NSLs), which the government has long used to get around the 4th Amendment, demanding information from companies, complete with a perpetual gag order. In 2007, an anonymous ISP owner fought back, speaking out against the whole gag order thing, but not even being able to say what ISP he was associated with, because of that gag order. In 2010, Nicholas Merrill, of Calyx Internet Access, was finally able to admit that he was the one fighting the gag order -- after reaching an agreement with the government (and that was after a number of trips back and forth between the district and appeals courts). Now, five years later, a federal court has finally ruled that the gag order, which was issued back in 2004, should be lifted, because the government has no "good reason" for keeping it in place and keeping the gag order would violate the First Amendment. You can read the redacted order here, which is an interesting read. Basically, a permanent gag order doesn't really fit with that whole First Amendment thing we have here in the US -- but the court prefers to focus on whether or not there's any reason to keep the order in place now.

There's a lot of procedural history here (which explains why it took this long for a ruling, but...). It turns out that in 2014, Merrill and the DOJ reached a further "agreement" that allowed Merrill to talk more about the NSL, but said he could still not discuss an attachment that explained what kinds of records the government sought. This latest part of the lawsuit is about that last remaining part of the gag order. And the court is not impressed by it at all.

Here, the Government has not demonstrated a good reason to expect that public disclosure of the parts of the Attachment that remain confidential would risk one of these enumerated harms; nor has the Government provided the Court with some basis to assure itself that the link between disclosure and risk of harm is substantial. The Government's justifications might constitute "good" reasons if the information contained in the Attachment that is still redacted were not, at least in substance even if not in the precise form, already disclosed by government divisions and agencies, and thus known to the public. Here, publicly-available government documents provide substantially similar information as that set forth in the Attachment. For that reason, the Court is not persuaded that it matters that these other documents were not disclosed by the FBI itself rather than by other government agencies, and that they would hold significant weight for a potential target of a national security investigation in ascertaining whether the FBI would gather such information through an NSL. The documents referred to were prepared and published by various government divisions discussing the FBI' s authority to issue NSLs, the types of materials the FBI seeks, and how to draft NSL requests.
<
Indeed, one of these documents is a publicly-available Department of Justice Office of Legal Education manual that provides a sample attachment that encapsulates much of the redacted-information in the Attachment here in dispute....

[....]

The Government contends that if the parts of the Attachment that remain secret are disclosed, potential targets could change their behavior to evade law enforcement. But those targets can already learn, based on publicly available infonnation, that the FBI could obtain such information through NSLs.

In the end, the court says the gag order makes no sense.

... the Court finds that the Government has not demonstrated a good reason to believe that potential targets of national security investigations will change their behavior to evade detection, or that disclosure of the Attachment in its entirety would create a substantial risk of one of the statutorily enumerated harms.

And then there's the whole First Amendment thing. The court notes that if it accepted the DOJ's arguments, the First Amendment would have an issue with that:

If the Court were to find instead that the Government has met its burden of showing a good reason for nondisclosure here, could Merrill ever overcome such a showing? Under the Government's reasoning, the Court sees only two such hypothetical circumstances in which Merrill could prevail: a world in which no threat of terrorism exists, or a world in which the FBI, acting on its own accord and its own time, decides to disclose the contents of the Attachment. Such a result implicates serious issues, both with respect to the First Amendment and accountability of the government to the people. As Judge Cardamone warned in his concurrence in Doe v. Gonzales, "a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens," and such unending secrecy could "serve as a cover for possible official misconduct and/or incompetence."

But the court, unfortunately, refuses to take things one step further, in saying that the gag order itself violated his First Amendment rights. Instead, it focuses just one whether or not the government still has a "good reason" to keep the gag order in place. Saying that it no longer does, it says it has no need to address the more constitutional question of whether or not the gag order itself violated Merrill's rights.

Also, somewhat amusingly, because the court is ordering the DOJ to lift the gag order, but because it's technically still in place, you get some odd redactions in the ruling, where the government is pointing out why certain things should not be redacted... but they still are, likely because the gag order is still in place, even as the court has ordered it lifted. There are a lot of these kinds of examples, but here's a shorter one: And another longer one:
Oh, and then there's this glorious footnote: The court is not persuaded, but everything is blacked out anyway. Because that's how these things work. In fact, Merrill remains gagged for 90 days, and only after that can he actually reveal what the FBI asked for 11 years ago.

Filed Under: doj, fbi, first amendment, free speech, gag order, national security letters, nicholas merrill, nsl, nsls, redactions
Companies: calyx

Colorado Judge Ignores First Amendment, Allows Prior Restraint In Banning Aretha Franklin Film

from the not-how-it-works dept

Late last week, singer Aretha Franklin succeeded in convincing a judge in Colorado to stop the Telluride Film Festival from screening the documentary Amazing Grace -- a concert film shot by Sydney Pollack that was actually filmed back in 1972, but was never shown. Franklin, of course, has no copyright in the film, but argued in her injunction request that she had an agreement with Pollack not to use the film without her authorization. From the complaint:

Ms. Franklin has never given permission for the use of this footage in any commercial context and has not authorized the public release of the footage. The footage was taken with the express understanding that it would not be used commercially without agreement and consent by Ms. Franklin.

Franklin argued that part of the agreement between Warner Bros., which held the rights to the film, and Alan Elliott, who apparently purchased those rights from WB, was that Elliott would then obtain all the necessary "authorizations, consents and releases and pay all re-use fees and other compensation required by applicable collective bargaining or individual contracts or otherwise required by law." While parts of the complaint hint at possible copyright claims, there really is none here, which is why the actual counts in the complaint do not mention copyright. Instead, they lean heavily on the (already troublesome) concept of publicity rights, as well as an anti-bootlegging law, which makes little sense, since the video is far from a bootleg.

As noted above, amazingly, the judge, John Kane, very quickly obliged and issued a short injunction barring the showing of the film. There is basically no discussion of the issues at all. Rather, Judge Kane merely repeats verbatim the arguments made by Franklin and then orders the injunction, blocking the showing of the movie.

This is ridiculous. As Eriq Gardner at the Hollywood Reporter lays out in great detail, it is difficult to see how this is possible under the First Amendment. When we're talking about speech -- even defamatory speech -- courts cannot issue injunctions, because that's prior restraint. There may be other remedies, but it seems dangerous to argue that a publicity rights claim can lead to an entire film being blocked:

In Colorado, a plaintiff can't prevail on a publicity rights claim if a defendant's use of the plaintiff's name and likeness is privileged under the First Amendment. That much is clear by prior cases. The state's Supreme Court has held the analysis turns on two issues — whether the use is primarily commercial or noncommercial and whether such use reasonably relates to a publication concerning a matter that is newsworthy or of legitimate public concern. Feature films are almost always deemed noncommercial (as opposed to, say, an advertisement) while the public concern of Amazing Grace is a toss-up.

Even if Franklin wins this analysis and shows she has a likelihood of prevailing in her lawsuit, under the proper standard of law, she then needs to demonstrate "irreparable harm" to obtain an injunction. In past court cases, judges have refused to enjoin works even when defamation can be shown or even when someone's privacy rights are being violated. Publicity rights should theoretically evoke an even higher bar because what's being protected is commercial use of their identity.

Even worse, the judge relies on that agreement between Warner Bros. and Elliott concerning Elliott's requirement to get permission. But the actual lawsuit here is against neither WB nor Elliott... but against the Telluride Film Festival, which is not a party to that agreement and thus should not be bound by it. So, even if one were to argue that Elliott had somehow waived his First Amendment rights in signing that contract, that says nothing at all about Telluride's.

The expansive reading of the situation by the judge is really dangerous. As Gardner points out, such a reading of publicity rights laws could allow celebrities to block reporters from writing about them by claiming it is violation of their rights. Furthermore, considering the First Amendment questions at play here, it is even more troubling that Judge Kane doesn't even mention the First Amendment at all, nor does he explore the issue of prior restraint. Even more bizarre? Despite the lack of any copyright claim, the judge seems to focus on the lack of "fair use" for why he's shutting the film down:

A film that essentially recreates the entire concert experience is not fair use of this footage.

Again, the complaint doesn't even make a copyright claim, so it makes no sense to do a fair use analysis in the first place, and even if there was such a claim, a fair use analysis requires a lot more than just saying "hey, it's not fair use." You have to at least do a four factors analysis. But, again, that's neither here nor there since there was no copyright claim in the first place.

And, unfortunately, since the Telluride Film Festival is now over, it's not clear if the festival will appeal this ruling, which will keep it busy in court for no clear benefit. But, in the meantime, the ruling has scared off multiple other festivals that had planned to show the film. As Gardner points out, all of this prior restraint was because Judge Kane couldn't even be bothered to realize who the defendant was, nor did he appear to recognize a blatant case of prior restraint when it landed on his desk:

Judge Kane has done a disservice by issuing a hasty ruling on a last-minute injunction bid — telling THR that this one was an easy call because producer Alan Elliott needed Franklin's permission. Except that's not what he was being asked to adjudicate! Elliot wasn't the defendant after all. Instead, film festivals (and distributors and news organizations) now have to worry about prior restraints on use of a celebrity's likeness and name. And sorry, Aretha, but this is hardly good news for artists who often use the names and likenesses of other artists in their creative endeavors. If she had made a deal that gave her the copyright on the footage — meaning the ability to control reproduction and distribution — that would be one thing; Here, she's attempting the ride the same vehicle that Lindsay Lohan attempted to use to stop a Pitbull song.

I agree with Gardner that this is a horrible ruling, from a judge who seemed to be in a rush to agree with Franklin, without even realizing what the issues were or who the parties were in court (and if they were subject to the contract). The only "saving grace" is that this ruling is at the district court level, rather than appeals court where it would become the rule for the circuit -- but it's already leading to prior restraint and scaring off film festivals from showing the film. And, you can bet that this case will be cited by others looking to use publicity rights to censor content in violation of the First Amendment.

Filed Under: alan elliott, amazing grace, aretha franklin, censorship, copyright, documentary, first amendment, free speech, injunction, john kane, movies, prior restraint, publicity rights, telluride
Companies: telluride film festival, warner bros.

Court Rules Gran Turismo Protected By 1st Amendment In Including Company Logos For Realism

from the track-speech dept

Ever since video games got to a point of enough realism, how those games depict real-life locations and real life "props" has become an interesting question due to, of course, trademark law. Electronic Arts recently stepped into this question, for entirely unrelated reasons, when it announced it was no longer going to ask for permission to depict realistic and branded weapons in its shooting games. The question has always been more prevalent in the world of sports games, however, with stadiums named for advertising partners and advertising depicted all over the stadiums and equipment within the sport.

Well, we've got another case of a video game producer attempting to rely on First Amendment protections to be able to depict a third party brand within its game, as Gran Turismo made use of Italian flooring company Virag's logo for realistic effect. And, according to the outcome between Virag and Sony in California, the First Amendment wins.

Virag is an Italian flooring manufacturer -- and it also sponsors car races. Its name and logo have appeared on tracks in Sony's realism-obsessed Gran Turismo games, as seen in the image above, and the company sued Sony in California -- but a judge just tossed out most of Virag's claims.

With this order, the First Amendment status of video games as an expressive medium continues to be upheld. "Gran Turismo 5 and Gran Turismo 6 are expressive works that qualify for First Amendment protection," judge Laurel Beeler wrote.

This is good news on several levels. To start, having a judge slap down an obnoxious attempt by a company to sue over the depiction of that company's brand, essentially free advertising, is always welcome. Add to that the further cementing of video games as a medium of expressive art, something that really ought to have been settled in the minds of the masses by now. And, finally, anything that gives game developers a greater sense of freedom to pursue realism with less regard for the insane permission culture that has invaded the arts works for me as well.

As a few commentators have pointed out, Sony likely prevailed because the case was heard in the US, where we have fair use provisions with some actual teeth, compared with the EU where, if anything, the culture of permission is even greater. I would argue that if a region's intellectual property law is such that companies feel emboldened to try to end what is essentially free advertising within art, some revisions to those laws are needed.

Filed Under: first amendment, gran turismo, logos, realism, video games
Companies: sony, virag

American Teen Gets 11 Year Sentence For Pro-ISIS Tweets That Taught People How To Use Bitcoin

from the really,-now? dept

Earlier this summer, the DOJ proudly announced that a Virginia teenager, Ali Shukri Amin, had taken a plea deal for "providing material support to ISIL" (the terrorist organization that everyone outside of the US government calls ISIS). This is back in the news now that Amin has been sentenced to 11 years in prison. Let's get this out of the way: ISIS is clearly a horrific and dangerous organization. But does what Amin did really deserve 11 years in prison? The details of the case against him also seem to raise some serious First Amendment questions about what counts as "material support."

First: the one area where Amin's actions do seem fairly questionable are when he helped another Virginia teen travel to Syria, apparently to join ISIS. That part definitely seems like it stepped over the legal line. But, the rest of the charges against him seem... like a teenager using Twitter and other social media to discuss stuff he's interested in. Amin ran a Twitter account called @AmreekiWitness, which had about 4,000 followers. He tweeted pro-ISIS propaganda, but that still seems to be a form of protected speech, last I checked. And, his big "crime" appears to be linking to an article about why ISIS supporters should use Bitcoin.

The following are examples of the defendant's use of Twitter in furtherance of his conspiracy to provide material support to ISIL:

On or about July 7, 2014, using the @AmreekiWitness account, the defendant tweeted a link to an article he authored entitled "Bitcoin wa' Sadaqat al-Jihad" (Bitcoin and the Charity of Jihad). The link transferred the user to the defendant's blog, where the article was posted. The article discussed how to use bitcoins and how jihadists could utilize this currency to fund their efforts. The article explained what bitcoins were, how the bitcoin system worked and suggested using Dark Wallet, a new bitcoin wallet, which keeps the user of bitcoins anonymous. The article included statements on how to set up an anonymous donations system to send money, using bitcoin, to the mujahedeen.

On approximately August 1, 2014, the defendant showed support for ISIL and his desire to help garner financial support for those wanting to commit jihad. Through @AmreekiWitness the defendant discussed methods to provide financial support for those wanting to commit jihad and for those individuals trying to travel overseas.

On approximately August 19, 2014, the defendant showed support for ISIL and desire to support ISIL. The defendant tweeted that the khilafah needed an official website "ASAP," and that ISIL could not continue to release media "in the wild" or use "JustPaste." Through various tweets, the defendant provided information on how to prevent the website from being taken down, by adding security and defenses, and he solicited others via Twitter to assist on the development of the website.

The defendant also operated an Amreeki Witness page on the website ask.fm. The defendant used these accounts extensively as a platform to proselytize his radical Islamic ideology, justify and defend ISIL's violent practices, and to provide advice on topics such as jihadists travel to fight with ISIL, online security measures, and about how to use Bitcoin to finance themselves without creating evidence of crime, among other matters.

The defendant also created the pro-ISIL blog entitled, "Al-Khilafah Aridat." On this blog, the defendant authored a series of highly-technical articles targeted at aspiring jihadists and ISIL supporters detailing the use of security measures in online communications to include use of encryption and anonymity software, tools and techniques, as well as the use of the virtual currency Bitcoin as a means to anonymously fund ISIL.

Tweeting about Bitcoin and saying that ISIS needs a website is a crime? One that deserves over a decade in jail? Obviously, aiding ISIS in any way is incredibly stupid, but it seems like a pretty slippery slope to argue that teaching people how to use Bitcoin or saying that ISIS needs a website rises to the level of "material support for ISIS" by itself. It seems like such a definition could lead to many, many people at risk. If you disagree with US policy for dealing with ISIS and say so -- at what point does it cross over the line? It seems way too easy to twist this into criminalizing dissent, rather than actually supporting a designated terrorist organization.

I'm all for coming up with ways to stop the spread of ISIS, and to prevent further attacks by the group. But jailing an American teenager over his tweets seems... excessive.

Filed Under: ali shukri amin, bitcoin, doj, first amendment, isis, material support, terrorism
Companies: twitter