Judicial Problem: Defending Free Speech Is More Likely When Justices Agree With The Speech

from the doing-it-wrong dept

Democracy, as they say, is messy, but I think the messiest aspect of the American political system is the Supreme Court. Maybe messy isn't the right word. Maybe baffling would be better. The reason for my thinking so is that, growing up, I was always under the impression that Supreme Court Justices were something they really aren't. I pictured them as men and women of such knowledge and character that they were almost super-human. After all, these are the supreme-iest judges in the land; you'd think they'd be so far beyond you and I that they'd be almost incomprehensible. An idiot Senator? Sure, I can picture that. Some jackass President? Hell, we jackasses are the ones that vote them in, so sure. But the Supreme Court? Gods, right?

Of course not. It turns out, much to my unfortunate shock, that SCOTUS Justices are every bit as human as the rest of us and that they're just as guilty as us when it comes to allowing ideologies cloud their judgement. One recent study looked at this, highlighting First Amendment cases to serve as an example.

The study considered 4,519 votes in 516 cases from 1953 to 2011. It was conducted by Professor Epstein, who is about to join the faculty at Washington University in St. Louis; Christopher M. Parker, a political scientist at Centenary College of Louisiana; and Jeffrey A. Segal, a political scientist at Stony Brook University.

That article highlighted Justice Scalia's voting record, noting that he voted on free speech issues in favor of conservative speech sixty-five percent of the time, but only twenty-one percent of the time in favor of liberal speech. That said, don't confuse that highlight to indicate that this is a problem only for conservative justices.

“While liberal justices are over all more supportive of free speech claims than conservative justices,” the study found, “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.”

While this may represent a "duh" moment for many of us, it's not a problem we should be ignoring. This pervasive kind of group bias represents a very real threat to the supreme law of the Untied States and, if recent trends on the polarization of politics is any indication, it's only going to get worse. And, while many people might see this as (sigh) yet another opportunity to fall back on their stupid party lines and go to war with the guys on the other side of the aisle, here's the question specifically about free speech that the article doesn't address: what if the speech in question is something both sides disagree with?

Fun thought, right? The whole point of free speech rights is that they don't go away even if you disagree with the speech, yet the study shows that there is a tendency for Justices to vote against speech with which they don't agree. Take the famous case between the National Socialist Party of America v. Village of Skokie, for instance, and ask yourself whether you think that ruling, which allowed the Nazis to march and assemble in a largely Jewish community was the exception or the rule. It was an immensely important case, even though it allowed some truly horrific people to march in a community that would be most offended by their presence (though they never actually marched). That didn't matter. The First Amendment is the First Amendment.

Would that same ruling occur today? The study paints an unfortunate picture.

Filed Under: first amendment, free speech, supreme court

Arizona's Revenge Porn Law Punishes First Amendment-Protected Activity By Making It A Sex Offense [Updated]

from the 'solving'-a-problem-by-creating-new-problems dept

[Update to the update: when writing this post, I misread Chapter 14 of Arizona's laws to mean that a sexual offense of this nature (revenge porn) would require registration as a sex offender. Not everything listed under "Sexual Offenses" is punishable in this fashion (which includes bestiality, inappropriate contact with a minor, violent sexual assault, etc.) and as Amanda Levendowski (whose post on the law is quoted below) pointed out on Twitter, the law equates revenge porn with domestic violence, which is not an offense requiring registration. My sincerest apologies to everyone for my error. -- Tim Cushing]

Updates have been added to the post to clarify that those found guilty under this law don't end up on the sexual offenders list -- instead the crime is considered the equivalent of "domestic violence."

Another revenge porn law has just gone into effect. This time it's Arizona seeking to create a new brand of criminal already covered by existing laws. But Arizona's law does make an effort to be the worst of the worst, what with its removal of wording related to "newsworthy disclosure" and the addition of violators to the state's sex offender registry making it sexual offense on par with domestic violence (Update: earlier reports saying that it required you to be put on the sex offender's list are incorrect).

Those jokes about retweeting US Airways' model-plane-as-'marital-aid' gaffe from a few weeks back putting certain states' residents on the wrong side of newly-minted revenge porn laws aren't really jokes. Or, at least, they're the kind of "funny" that kills off your amusement in mid-laugh. The wording of Arizona's law would (much like New Jersey's) make violators out of every Arizonan who passed that photo along, as New York defense lawyer Scott Greenfield points out.

Do you have personal knowledge that the woman in the US Airways tweet consented to your distribution of her image on twitter? But you did know she was in a state of nudity, right? And you did it anyway, right? And while it may have been “newsworthy” (or at least lulzworthy) that US Airways made this huge gaffe, there is no rational nexis between a corporate screw up and a woman’s right not to have her nude landing field spewed across the interwebz, right?

Here's the law in its totality:

Be it enacted by the Legislature of the State of Arizona: Section 1. Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1425, to read: 13-1425. Unlawful distribution of images; state of nudity; classification; definitions.

A. IT IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE.

B. THIS SECTION DOES NOT APPLY TO ANY OF THE FOLLOWING:

1. LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, REPORTING UNLAWFUL ACTIVITY, OR WHEN PERMITTED OR REQUIRED BY LAW OR RULE IN LEGAL PROCEEDINGS.
2. LAWFUL AND COMMON PRACTICES OF MEDICAL TREATMENT.
3. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A PUBLIC OR COMMERCIAL SETTING. 4. AN INTERACTIVE COMPUTER SERVICE, AS DEFINED IN 47 UNITED STATES CODE SECTION 230(f)(2), OR AN INFORMATION SERVICE, AS DEFINED IN 47 UNITED STATES CODE SECTION 153, WITH REGARD TO CONTENT PROVIDED BY ANOTHER PERSON.

C. A VIOLATION OF THIS SECTION IS A CLASS 5 FELONY, EXCEPT THAT A VIOLATION OF THIS SECTION IS A CLASS 4 FELONY IF THE DEPICTED PERSON IS RECOGNIZABLE.

D. FOR THE PURPOSES OF THIS SECTION, "STATE OF NUDITY" AND "SPECIFIC SEXUAL ACTIVITIES" HAVE THE SAME MEANINGS PRESCRIBED IN SECTION 11-811.

Section 14 is Arizona's catchall for sexual offenses, which pushes this law past the usual expansions of stalking or harassment laws and puts violators on the state's sex offender registries and makes an offense the equivalent of a "domestic violence" offense. This is what happens when legislators mistake themselves for crusaders. Constitutionally-protected speech takes the hit while witches get burned.

But isn’t it unconstitutional, since “[t]he Supreme Court has held that offensive, embarrassing, disgusting, and even false speech warrant protection under the First Amendment”? Lawprof Danielle Citron debunks the “myth” (even though Citron doesn’t go as far as [Mary Anne] Franks in her zeal to get the evil men at any cost [see footnote 45]) because revenge porn is special, unlike the crush videos rejected in Stevens, by reasoning that aspires to sophistry.) But since revenge porn is so evil, it isn’t subject to logic that would otherwise apply, so we can blindly leap over logical gaps in a single bound. Constitution, gone. Well, at least non-lawyer fans see no problem dismissing it.

Beyond the fact that the bill criminalizes First Amendment activity, and beyond the fact that it makes it a criminal offense to post newsworthy/notable photos as part of a journalistic endeavor, there's the all-encompassing language at the beginning of the law that will (if given over to zealous interpretation -- and what part of this bill isn't marked by zealotry?) make sex offenders out of people who've never posted a nude pic in their life. Amanda Levendowski's writeup of Arizona's new law purposefully excludes links to supporting information specifically because of the law's first paragraph.

The law could apply to the snaps of Anthony Weiner’s dangerzone that he didn’t publicly tweet (which Buzzfeed included in its July 25, 2013 story). Or US Airway’s gaff-tweet of a woman’s landing strip* and the subsequent sharing of the image (as HuffPo did in its story about the tweet on April 14, 2014), which is the very issue I blogged about last week.

I’m intentionally NOT linking to these sites: It doesn’t look like the statute defines disclosure, and who knows what a determined prosecutor might interpret “distribution” to mean.

People who intentionally post "revenge porn" are inveterate assholes, but their actions hardly fit under a sexual offender law. And there are plenty of existing laws that tackle what they do. (Most revenge porn sites seem to be run by people who have no problem with breaking other laws as well.) People who inadvertently wander into the oncoming path of the DO SOMETHING Express aren't criminals in any sense of the word. But a whole lot of other complications (including limited/no employment) await Arizonans who post the wrong picture online. About the only positive in the bill is that it doesn't screw with Section 230 protections.

Just because the activity depicted can be described as "sexual" does not make this a sexual offense on the order of domestic violence. It's more closely aligned with harassment/stalking and should have stayed that way. This law will be abused. There can be no question about that. Revenge porn aficionados shouldn't walk away unscathed, but First Amendment-protected activity shouldn't be steamrolled simply to make the path to shutting down revenge porn as smooth as possible.

Filed Under: arizona, first amendment, revenge porn, sex offenders

Pulitzers Make Rep. Peter King Mad

from the he-never-got-a-pulitzer-for-appeasing... dept

Rep. Peter King has made it clear that he will stop at nothing to attack anyone who thinks Ed Snowden did something useful. He was one of the first to call for the reporters who revealed the NSA's surveillance to be prosecuted and has no qualms about lying to get his way. He's even gone so far as to argue that anyone who claims the NSA is "spying" or "snooping" is committing slander.

His main beef is his supposed belief that Snowden and anyone reporting on the facts he revealed are somehow "appeasing" terrorists. Of course, that's quite ironic, given King's history as a major terrorist appeaser in supporting the IRA decades ago, even as they were blowing up buildings that resulted in death and injury to many.

However, it's long been clear that King has no self-awareness and no understanding of his own hypocrisy. Within minutes of the Pulitzers announcing that one of its prizes was being given to the publications that reported on the Ed Snowden documents, King angrily tweeted his disgust:

Awarding the Pulitzer to Snowden enablers is a disgrace

— Rep. Pete King (@RepPeteKing) April 14, 2014

Notice that King refers to two respected news publications and countless journalists as "enablers" rather than journalists. There's only one person who's a disgrace in this situation and it's Rep. Peter King. Someone might want to send him a copy of the First Amendment, and its parts about freedom of the press. King seems to have forgotten his oath to uphold that part of the Constitution.

Filed Under: appeasers, ed snowden, first amendment, journalism, peter king, pulitzers, terrorism

Supreme Court May Take A Shot At Defining The Point At Which Protected Speech Becomes An Unprotectable 'Threat'

from the yes,-there's-a-lousy,-dark-humored-joke-in-that-headline dept

The Supreme Court may take up the question of whether or not communicated threats are still threats even if the person making the statement doesn't necessarily have the ability or the intent to carry them out. In short, at what point does it turn from protectable speech into something the First Amendment won't cover?

The latest case involving the legal parameters of online speech before the justices concerns a Pennsylvania man sentenced to 50 months in prison after being convicted on four counts of the interstate communication of threats. Defendant Anthony Elonis' 2010 Facebook rant concerned attacks on an elementary school, his estranged wife, and even law enforcement.

"That's it, I've had about enough/ I'm checking out and making a name for myself/ Enough elementary schools in a ten mile radius/ to initiate the most heinous school shooting ever imagined/ and hell hath no fury like a crazy man in a Kindergarten class/ the only question is … which one?" read one of Elonis' posts.

This is a subject we've discussed several times previously. People (mainly teens) have made statements and comments via social media that have veered close to being threats, but once investigated, turn out to be nothing more than stupid kids being stupid. Prosecutors and law enforcement have made some questionable decisions in their attempts to portray youthful indiscretions as the words of would-be killers, such as withholding the surrounding context or willfully misreading the words themselves.

Elonis' case is a bit more complicated. For one, Elonis is 30 years old. While growing older doesn't necessarily make you immune from stupidity, the expectations are a bit higher in terms of online discourse. It's a little harder to claim you're running on the same high-octane concoction of hormones and blood displacement that teenage boys are. Not that all youthful indiscretions are excusable, but given that age group's tendency towards disproportionate drama in all things, it does make it more understandable.

In addition, Elonis' statements were directed at a variety of targets, any of which would seem to be a viable recipient for his anger. Not only did Elonis mention shooting up a school (specifically a kindergarten), but he also apparently had dire "plans" for his wife and local law enforcement. Again, the post-Sandy Hook law enforcement/judicial mentality further clouds the issue, raising the question that if Elonis had left out the part about the school shooting, would he still be facing 30 months in prison? (Of course, threatening law enforcement tends to create just as much of a legal mess, usually one far worse than simply threatening your estranged spouse does…)

But the odds are fairly long that the Supreme Court will find the ability to carry out the threat matters as much as the perception of everyone else but the person making the statement.

Only one federal appeals court has sided with Elonis' contention that the authorities must prove that the person who made the threat actually meant to carry it out. Eight other circuit courts of appeal, however, have ruled that the standard is whether a "reasonable person" would conclude the threat was real.

This long shot is also reliant on another long shot: that the administration will support this appeal. A similar case involving an Iraq War vet was greeted by the White House with a written petition asking the Supreme Court to reject the case. These two obstacles make it unlikely that the judicial system will start treating so-called "threats" any differently than they have in the past. And it's a very long past. David Kravets at Ars Technica points out that the statute being applied to these cases originated in 1932.

There are legitimate threats and these are rightly not treated as free speech. But there are others that are treated as legitimate threats even when there's no evidence the person uttering them has the ability, much less the intention to back up their unfortunate statements. Applying a 1932 statute to the wide open discourse platform that is the internet is doing little more than putting loudmouths and idiots in jail. Those who mean actual harm to others generally don't enlighten their future targets via Twitter, Facebook and forum posts.

By all means, potential threats should be investigated, but the courts need to come to the realization that these statements cannot be entirely robbed of their context (including intent and ability) and presented "as is" to the hypothetical "reasonable person." Reasonable people are completely capable of understanding that not every hurtful word can actually hurt someone, nor do they believe every "threat" is the sign of impending danger. Not only should the statute be reconsidered, but so should the court's "reasonable person" ideal.

Filed Under: first amendment, free speech, speech, supreme court, threat

NY Prosecutor: Annoying Someone Is A Criminal Act, Especially If It's In Writing

from the because-'on-a-computer' dept

Some very interesting claims arose from oral arguments related to a case that has been kicked around the court system for a couple of years now. The case is People v. Golb, one that arose out of an extended disagreement between two college professors (Norman Golb of the University of Chicago and Lawrence Schiffman of NYU) over the origins of the Dead Sea Scrolls.

One thing led to another… which then (inexplicably) led to Norman Golb's son, Raphael, creating more than 50 online aliases to create a ground swell of support for his father's views… which then (even more inexplicably) led to Raphael Golb impersonating Lawrence Schiffman (via email) in order to portray Schiffman as a plagiarist -- using Schiffman's own email address. It is this Golb the People have a problem with.

(Even more inexplicably, this somehow also led to a lawyer claiming to represent Schiffman sending legal threats to bloggers who had covered the case, asserting that their "criminal postings" needed to be taken down immediately. Clifford A Rieders Esq. could not have picked a worst trio of bloggers to send baseless legal threats to: Scott Greenfield of Simple Justice, Eugene Volokh of the Volokh Conspiracy and Ken White of Popehat. Lessons were indubitably learned.)

In January of 2013, the court found that the younger Golb's First Amendment rights had not been violated during his prosecution for impersonating Schiffman in order to discredit him.

The pre-Washington Post version of Volokh Conspiracy covered the relevant parts of the decision.

Defendant’s convictions arise out of his use of emails to impersonate actual persons. Nothing in this prosecution, or in the court’s jury charge, violated defendant’s First Amendment or other constitutional rights… Among other things, defendant sent emails in which one of his father’s rivals purportedly admitted to acts of plagiarism…

Defendant was not prosecuted for the content of any of the emails, but only for giving the false impression that his victims were the actual authors of the emails. The First Amendment protects the right to criticize another person, but it does not permit anyone to give an intentionally false impression that the source of the message is that other person (see SMJ Group, Inc. v 417 Lafayette Restaurant LLC, 439 F Supp 2d 281 (SD NY 2006]).

This decision is now being appealed, and the Volokh Conspiracy (Beltway Edition) is again on the scene, pointing out how the prosecutor is pushing for a very broad reading of relevant statutes -- something that will be of concern to anyone who might say something offensive via the internet.

I’ve blogged before about the danger of criminal harassment laws, when they are extended beyond offensive speech to one particular unwilling person — the traditional telephone harassment example — and apply instead to speech about a person. (See posts here and here, as well as this law review article, which starts by concrete examples of how such laws have been used.) And the prosecutor’s statement in this argument helps illustrate just how broadly prosecutors can read such laws.

Eugene Volokh quotes part of the oral arguments presented April 2nd. Here's the lead-up and the relevant quote, both of which highlight the prosecutor's (Vincent Rivellese) ridiculous stance, as well as the judges' incredulity at what's being claimed.

CHIEF JUDGE LIPPMAN: Is this aggravated harassment or is this just annoying behavior?
MR. RIVELLESE: Well, it's both, that's for sure. What's the - - -
CHIEF JUDGE LIPPMAN: Well, but is it technically a crime? Can it be in this kind of - - -
MR. RIVELLESE: Yes.
CHIEF JUDGE LIPPMAN: Isn't that a little bit overbroad?
MR. RIVELLESE: No.
CHIEF JUDGE LIPPMAN: No? Go ahead. Why not?
MR. RIVELLESE: This - - - this is the closest argument obviously in the case, but the aggravated harassment involves an intent to harass, annoy or alarm, and it's - - - it's got an intent that's required. It's also got the likelihood of harassing or alarming the recipients or the victims. It's also got - - -
JUDGE SMITH: If I - - - if I ask you a question that I expect to be an annoying question, and is likely to be an annoying question, am I committing a misdemeanor by asking the question?
MR. RIVELLESE: No, because there's no writing. The aggravated harassment - - -
JUDGE SMITH: Oh, but - - - oh, but if I submitted the question in writing, it would be a misdemeanor?
MR. RIVELLESE: Well, if - - - if you conveyed to somebody. So if you e-mailed somebody or you wrote a letter - - -
JUDGE SMITH: Really? Really?

The delineation is obviously foggy if saying something is no crime, but writing it down is. Further on:

JUDGE SMITH: If I e-mail someone an annoying question, I get a year?
MR. RIVELLESE: Well, it has to be likely to annoy, harass, or alarm - - -
CHIEF JUDGE LIPPMAN: So if Judge Smith put what he's asking you now in writing, this is a crime?
MR. RIVELLESE: I'm not annoyed. I'm not annoyed. So I'm fine.
CHIEF JUDGE LIPPMAN: Oh, okay, you're not annoyed. Okay. It might have been mis - - -
JUDGE SMITH: Give me - - - give me time.
MR. RIVELLESE: The proper discussion - - -
JUDGE ABDUS-SALAAM: Counsel, is it that subjective that the person who receives the question has to feel that it's annoying?
MR. RIVELLESE: Well, no, it is - - - it's reasonableness.
JUDGE ABDUS-SALAAM: It has to have an objective right.

So it would appear. Objective but not subjective, but in this case, with the impersonation of another person, Rivellese seems to feel that it's actually more a subjective problem, especially when it's not even the victim who's being directly targeted. And the "intent to annoy and alarm" exception to the First Amendment should be enforced even if the speech is about a person rather than directed at a person.

JUDGE PIGOTT: But as a third - - - you're saying there can be a third-party aggravated harassment.
MR. RIVELLESE: Yes, if still - - - there's still an intended victim.
JUDGE PIGOTT: So if - - - well, that's I - - - you get - - - you get three college kids - - - you get some college kid who write - - - who e-mails the girlfriend of his roommate saying, you know, he really is a useless person. Is that aggravated harassment with respect to the victim, boyfriend/roommate?
MR. RIVELLESE: Yes, because it's got - - -
JUDGE PIGOTT: Really?
MR. RIVELLESE: It meets all the elements. It does not require that the person that you send the communication to is the same person that you intend to harass, annoy and alarm.

This is what alarms Volokh. The narrow targeting of the First Amendment exceptions are being broadly read by prosecutors. This is the sort of expansion -- one that pushes behavior normally subject only to civil actions into criminal territory -- that invariably makes its way into newly-crafted laws targeting online behavior.

Here's what Volokh originally said about the decision that's now being appealed.

Intentionally trying to make others believe that someone did something (write an e-mail) that he did not inflicts specific harm on that other person, whether by harming his reputation or at least by making others think that he believes something that he doesn’t (which will often be civilly actionable under the false light tort). To be sure, that usually leads to civil liability, but nothing in the Court’s decision suggests that criminal liability in such cases is impermissible, especially when the law is limited to relatively clearly identifiable falsehoods, such as falsely claiming to be someone you are not.

That's much more limited than what the prosecutor's arguing. His argument removes the limitations (falsehoods and false impersonation) and suggests that nearly any attempt to harass or annoy someone is a criminal offense. This is on top of his claim that there's a clear delineation between oral and written speech, with the latter being the more "criminal" of the two. It's this sort of broad reading that makes nearly every new cyberbullying/harassment law a handy new tool to criminalize a vast swath of online behavior.

Filed Under: annoying, first amendment, free speech, harassment, lawrence schiffman, normal golb, raphael golb

Katherine Heigl Wants Six Mil-Do After Drugstore Tweets Picture Of Her Shopping There

from the publicity-bytes dept

When I become king of America, I can assure you that anything resembling publicity rights will be stricken from the legal record. We've seen entirely too much craziness recently over these laws that appear to create something of a VIP class citizenry. But while even the typical ownership culture insanity usually has an inkling of logic to it, Katherine Heigl suing a drugstore for six million dollars simply for tweeting a photo of the actress shopping there is a whole new level of protectionism.

It's a form of publicity rights gone insane yet again, after Duane Reade tweeted and Facebook-ed a paparazzi photo of Heigl walking out of a Duane Reade, carrying some bags of whatever she had just purchased.

Heigl, the star of the films "The Ugly Truth" and "Life as We Know It" and a best supporting actress Emmy winner for "Grey's Anatomy," filed the lawsuit on Wednesday in New York federal court. The complaint said she was photographed in March near a Duane Reade store in New York while filming a new television series. Duane Reade posted the photo on its Twitter and Facebook account with captions advertising the store without her approval, the complaint said.

The 15-page lawsuit cited a tweet that Heigl claimed Duane Reade posted last month. "Love a quick #DuaneReade run? Even @KatieHeigl can't resist shopping #NYC's favorite drugstore," it said.

Now, we should all know by now that New York's publicity rights laws resemble something a dictator might have put together, strictly governing what the little people can do with images of the important folks. That said, Duane Reade may have a pretty strong defense in that the photo was an accurate representation of a thing that happened. A picture is worth a thousand words, as they say, and all this picture is saying is "Heigl shopped at our drugstore and, hey, here's some photo evidence to prove it."

In fact, Duane Reade seems confident enough in its position that, as of writing this, the tweet is still up.

This is unlike some other publicity cases we've seen, such as when local grocery stores in Chicago congratulated Michael Jordan with an ad campaign, or the misinterpreted representation of celebrities in video games. This is a picture of something that happened represented over social media. At some point, it has to raise certain First Amendment issues about the broadness of various state publicity rights laws, when such laws can be used to prevent someone from accurately describing factual information. Yes, the point of publicity rights laws is to prevent companies from creating a false endorsement of a product, but is accurately describing the fact that someone shops at a store really a false endorsement?

On top of the publicity rights claim, Heigl claims that this is a form of "false advertising," but one could reasonably argue that (a) it's not false and (b) it's not advertising. The latter claim may be a little trickier, but where is the line between an advertisement, and some social media jockey at Duane Reade just tweeting out a photo. That line may become... very important to the outcome of this particular lawsuit.

But Heigl wants you to know she's not some kind of greedy monster:

The complaint said Heigl intends to donate all proceeds from the lawsuit to The Jason Debus Heigl Foundation, which was established in 2008 after her brother was killed in a car accident.

You're not fooling anyone. This is an ego-driven abuse of the legal system. Or, it would be, if publicity rights weren't opening the door to a whole new level of ownership culture insanity, where merely tweeting a picture of a thing that happened suddenly became actionable.

Filed Under: false advertising, first amendment, katherine heigl, publicity rights, tweets
Companies: duane reade

Federal Revenge Porn Bill Will Look To Criminalize Websites

from the dangerous-step dept

My own representative in Congress, Jackie Speier, has apparently decided to introduce a federal "revenge porn" bill, which is being drafted, in part, by Prof. Mary Anne Franks, who has flat out admitted that her goal is to undermine Section 230 protections for websites (protecting them from liability of actions by third parties) to make them liable for others' actions. Now, I've never written about Franks before, but the last time I linked to a story about her in a different post, she went ballistic on Twitter, attacking me in all sorts of misleading ways. So, let me just be very clear about this. Here's what she has said:

"The impact [of a federal law] for victims would be immediate," Franks said. "If it became a federal criminal law that you can't engage in this type of behavior, potentially Google, any website, Verizon, any of these entities might have to face liability for violations."

That makes it clear her intent is to undermine Section 230 and make third parties -- like "Google, any website, Verizon... face liability."

Now, her retort to all of this is likely that she's not seeking to undermine Section 230 in any way. Rather, she's attempting to do something of an end-run around it. Section 230 has never protected sites from liability of federal crimes -- just civil infractions and state crimes. So her goal is to make the amorphous concept of "revenge porn" a "federal crime" thereby suddenly making third-party websites liable. She will argue that does nothing to undermine Section 230. A more reasoned and thoughtful look at the issue, however, shows how this effort is fraught with dangerous consequences and potential First Amendment problems.

Taking a step back, though, let's be clear: revenge porn -- the practice of posting naked pictures of someone (who likely took those photos for an individual or themselves, rather than the public) along with that person's identifying information -- is odious. Those who are involved in the practice are morally repugnant individuals. And yet, what we've seen is that there do appear to be ways to deal with them. One of the most well-known creators of revenge porn, Hunter Moore, was recently arrested on charges that he conspired with another person to hack into email accounts to get more photos. Often, those engaged in revenge porn are also engaged in extortion over those images or other crimes on which they can be charged. Some revenge porn sites have been hit with lawsuits for copyright infringement -- though that creates a whole different set of problems.

Meanwhile, amazing folks like Adam Steinbaugh have been diligently tracking down and exposing the details of people who operate revenge porn sites, which can sometimes be an effective (if slightly ironic) way to get them to go away. But that's an example where more speech is often a better result than censoring speech by increasing liability.

Still, you can see why there's a temptation to create a new anti-revenge porn statute. The whole concept of revenge porn is itself repugnant, so it's tempting (especially as a lawmaker) to pull out that old hammer and create some regulations. But the dangers of regulating based on reacting to the odiousness of those sites may obscure the way such laws will inevitably -- as Prof. Franks herself admits -- impact companies that are clearly not engaged in revenge porn.

In the article about the legislation, EFF's Matt Zimmerman (who, actually, just left EFF) points out that using criminal law here is "dangerous" because it would likely lead lots of companies to reflexively delete all sorts of content, including plenty of perfectly legal and legitimate content, to avoid the sort of liability Franks describes. And that's the huge problem here. By spreading liability, you guarantee over-censorship. It's easy for people who are narrowly focused on a single issue to not recognize the wider impact that issue may have. Trying to accurately describe what "revenge porn" is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA's Section 230.

People who don't think through the details seem to assume that it must be easy to define what is "revenge porn," but the deeper you go, the more difficult it becomes to define -- and the more risks there are of both over-criminalizing and creating serious First Amendment issues. For example, you could say that sites should be forced to take down photos of individuals where those individuals insist that the photos are problematic. But then you'd have to deal with situations, like with Ranaan Katz, where he went after a blogger and Google (using civil copyright law) for posting an "unflattering" photo. Do we really want to bring criminal law into that arena?

And the First Amendment issue is not easy to get around. At all. As lawyer Mark Bennett discussed in trying to create a First Amendment-compliant anti-revenge-porn statute, it's not an easy challenge:

The First Amendment problem we face is that “posting nude or explicit images of former lovers online” is speech; a statute focused on such posting is a content-based regulation of speech; content-based regulations of speech are presumed to be invalid (that is, speech is presumed to be protected); and the Supreme Court in U.S. v. Stevens expressly rejected a balancing test for content-based criminal laws, instead applying a categorical test.

At best, Bennett tries, as an exercise, to see if it would be possible to extend obscenity laws to cover "revenge porn," but that would massively expand obscenity laws, again in potentially dangerous ways. The problem here is that pretty much everyone agrees that revenge porn is a really horrible thing -- but any attempt to criminalize it will have serious implications way beyond the targeted issue.

Instead of following Franks down that dangerous road, it would be wise to focus on ways to use existing laws to go after those who are clearly engaged in related questionable behaviors. Changing the laws to put the burden on third parties is only going to create significant new problems. I'm disappointed that my own Representative in Congress, Jackie Speier, appears to not realize this, and I will be contacting her office to express my concerns about the bill.

Filed Under: cda, first amendment, jackie speier, liability, mark bennett, mary anne franks, revenge porn, section 230, speech

US Judge: Baidu's Decision To Block Certain Sites Is Protected By The First Amendment

from the of-course-it-is dept

We were bothered a few years ago to see the usually insightful Tim Wu suddenly arguing that search engine results had no First Amendment protections. The idea seemed ludicrous. Search engine results are opinions from that search engine about what is the most appropriate response to a query. It is clearly a form of speech and thus should be protected. The specific question, however, has barely been tested in court. However, a new ruling makes it quite clear that search engine results are protected by the First Amendment. Of course, it's in a case where this may feel somewhat ironic: some activists had sued Chinese search engine Baidu for refusing to show results pointing to their own pro-Chinese democracy writings. They argued that this violated New York's "public accommodations law."

And while it may seem funny to think that a website that is clearly trying to block access to certain content is standing up for the First Amendment, the ruling gets it exactly right, in noting that search engines have every right, under the First Amendment, to make editorial decisions about what to include and what not to include:

In short, Plaintiffs’ efforts to hold Baidu accountable in a court of law for its editorial judgments about what political ideas to promote cannot be squared with the First Amendment. There is no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. As the Supreme Court has explained, “[t]he First Amendment does not guarantee that . . . concepts virtually sacred to our Nation as a whole . . . will go unquestioned in the marketplace of ideas.” Texas v. Johnson, 491 U.S. 397, 418 (1989). For that reason, the First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects Plaintiffs’ rights to advocate for democracy. Indeed, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Id. at 414 (citing cases). Thus, the Court’s decision — that Baidu’s choice not to feature “pro-democracy political speech” is protected by the First Amendment — is itself “a reaffirmation of the principles of freedom and inclusiveness that [democracy] best reflects, and of the conviction that our toleration of criticism . . . is a sign and source of our strength.”

My first thought on hearing about the case was that there clearly should be no issue here at all, since Baidu is a private corporation, not a government actor. But the real issue is over NY's public accommodations law -- and whether or not that compels Baidu to "speak" in a certain way by changing its algorithms and results. It's that point that the judge is making. The public accommodations law cannot be used to compel speech in this manner, which leads him to properly note that Baidu's choices are a form of protected expression.

The judge highlights a number of similarly applicable cases, first comparing Baidu to a newspaper, in which editorial decisions are considered protected speech. Then it compares it more directly to a different, though in some ways similar, case -- Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, in which the courts said that private parade organizers can't be forced to include groups they disagree with:

The question in Hurley was whether Massachusetts could “require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey.” Id. at 559. The Court held that allowing the state to do so would “violate[] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” Id. at 573; see also, e.g., Pac. Gas & Elec. Co. v. Pub. Util. Comm’n of Cal., 475 U.S. 1 (1986) (plurality opinion) (relying on Tornillo to invalidate a rule requiring a privately owned utility to include with its bills an editorial newsletter published by a consumer group critical of the utility’s ratemaking practices). “‘Since all speech inherently involves choices of what to say and what to leave unsaid,’” the Court explained, “one important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say.’” Hurley, 515 U.S. at 573 (quoting Pac. Gas & Elec. Co., 475 U.S. at 11, 16 (plurality opinion)). Notably, the Court found that principle applied even though the parade organizers did not themselves create the floats and other displays that formed the parade and were “rather lenient in admitting participants.” Id. at 569. “[A] private speaker,” the Court stated, “does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech. Nor . . . does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication.”

In both of these cases, I would personally disagree with the choices made. I think it's awful that a Chinese search engine regularly attempts to block access to pro-democracy writings and I equally think it's ridiculous that various St. Patrick's Day parades actively seek to block gay, lesbian and bisexual groups from participating. Yet, in both cases, as private organizations, they have the right to decide what to include and not include. Just as everyone who finds those decisions despicable has the right to speak out against them.

This ruling may feel ironic in that it appears to further the cause of Chinese government censorship in the name of the First Amendment, but as Judge Jesse Furman notes, there's really nothing ironic at all in protecting the right of private parties to make their own editorial decisions, no matter how offensive they might seem.

Filed Under: blocking, chinese democracy, editorial choices, first amendment, free speech, search engines
Companies: baidu

Former Obama Official: Free Speech Ruling Hurts 'Public Civility' And 'Democratic Self-Government'

from the say-what-now? dept

Cass Sunstein, who recently got some attention for being a member of the task force President Obama asked to review the NSA's surveillance practices, is probably more well known as both a former Obama official and the co-author of the highly influential (if somewhat problematic) book Nudge (which has even inspired an entire organization within the UK government).

Sunstein has written a column for Bloomberg, which reads more like a #slatepitch -- taking something rather basic, and arguing a contrarian view solely for the sake of being contrarian. In this case, Sunstein is trying to argue that the key First Amendment ruling in New York Times v. Sullivan, which just turned 50 years old, has a "dark side."

As you hopefully are aware, NYT v. Sullivan established a key standard in defamation cases involving public figures, noting that for there to be defamation, there needs to be "actual malice." It was the first case that really recognized how defamation law and the First Amendment can clash -- and the Supreme Court set a much higher bar for defamation in order to defer to the power of the First Amendment. The ruling was both sound and quite important. It noted the chilling effects on free speech (and, specifically, a free press) that would result if anyone could be sued for a false statement made in the course of a political debate. Recognizing that it is entirely possible for someone to say something that is not technically correct, but without meaning to distort the situation, the court made it clear that for defamation to apply to a public official (who often had the means to respond to any false claims directly), there needs to be "actual malice" where the intent is to defame them, rather than just an incidental misstatement of the facts.

This ruling has been a key free speech ruling that has been helpful way beyond just the ability of the press to report freely without fearing a minor error will lead to a massive lawsuit and liability. But Sunstein, apparently, thinks we might be better off if there was a great chill in speech. Better, he seems to suggest, that millions be silenced out of fear of liability, than that a few people make minor non-malicious errors in the course of political debate:

But amid the justified celebration, we should pay close attention to the dark side of New York Times v. Sullivan. While it is has granted indispensable breathing space for speakers, it has also created a continuing problem for public civility and for democratic self-government.

How is free speech a risk to self-government? Apparently it has something to do with mean talk show hosts and (gasp!) bloggers:

When it comes to public figures, all sorts of false allegations are permissible, whether they involve birth certificates, drug abuse, sexual misconduct or income tax fraud. One result is that those who seek public office put their reputation at immediate risk.

One of the goals of the court’s ruling was to protect self-government, but the effects on self-government are not all good. Talk show hosts, bloggers and users of social media can spread ugly falsehoods in an instant -- exposing citizens to lies that may well cause them to look on their leaders with unjustified suspicion.

After all of this, he basically says "ignore everything I just said" by then admitting that "the court got the balance right in New York Times v. Sullivan." It makes you wonder why he even brought this up in the first place. He insists it's because he wants people to recognize that NYT v. Sullivan, rightly or wrongly, "can claim at least some responsibility for adding to a climate of distrust and political polarization in the U.S."

Frankly, that's ridiculous. People always like to assume that political discourse has somehow reached a "new low" in their own lifetimes, often ignoring that political discourse in the US has been ridiculous from the very beginning. To blame the level of partisan rancor today on an important free speech ruling is based on nothing other than general contrarianism, rather than any sort of proof.

Filed Under: cass sunstein, defamation, first amendment, free speech, nudge, nyt v. sullivan, political discourse

Google Points Out That Even The Copyright Office Thinks Judge Kozinski's 'Innocence Of Muslims' Ruling Is Wrong

from the that's-not-copyrightable dept

Late last week, the 9th Circuit appeals court asked the various parties to file briefs on whether or not it should reconsider Google's motion for a stay on Judge Alex Kozinski's horrific ruling that an actress, Cindy Lee Garcia, who appeared in approximately 5 seconds of the infamous 13-minute "trailer" of "Innocence of Muslims" had a copyright interest in her performance and could legitimately demand Google remove all copies of the film. Despite the extremely controversial ruling, and the First Amendment implications associated with it, Kozinski almost immediately rejected the motion. However, another judge in the 9th Circuit took it upon him or herself to ask the court to reconsider the question "en banc" (usually meaning all the judges, but in the 9th Circuit, it's a panel of 11). On Wednesday, both sides filed their motions, limited solely to the question of whether or not the court should reconsider the motion for a stay -- but they certainly hint at the arguments that are going to play out as this case goes forward.

Google's brief also includes one rather important new piece of information: after the ruling came out, the Copyright Office rejected Garcia's attempt to register that same copyright.

While this lawsuit was pending, Garcia also was pursuing her copyright on another front. On September 25, 2012, she filed an application with the U.S. Copyright Office in order to comply with 17 U.S.C. § 411(a), which requires such an application as a prerequisite to any copyright infringement suit. On December 18, 2012, however, the Copyright Office wrote to Garcia’s lawyer and informed her that, barring further information from Garcia, Garcia was not entitled to register a copyright.... “For copyright registration purposes, a motion picture is a single integrated work,” it wrote. “Assuming Ms. Garcia’s contribution was limited to her acting performance, we cannot register her performance apart from the motion picture.” ... The Copyright Office informed Garcia’s lawyer that unless she could provide further information about Garcia’s role, her application would be rejected.... Garcia responded by asking the Copyright Office to delay its adjudication of her application until after the panel ruled in this case....

On March 6, 2014, the Copyright Office issued a letter rejecting Garcia’s application.... It explained that “the U.S. Copyright Office * * * views dramatic performances in motion pictures to be only part of the integrated work— the motion picture” and that the Office’s “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.”.... The Office also explained why it was inappropriate for it to delay its ruling during the pendency of this case. Citing 17 U.S.C. § 411(a), it wrote that “Congress expressly envisioned that registration decisions by the Register of Copyrights would precede adjudication in the courts” so that the courts have the benefit of the Copyright Office’s decision and so that the Office can intervene to defend that decision.... When applicants institute lawsuits prior to the Copyright Office’s decision, it explained, “the Register’s statutory right to intervene in an action instituted pursuant to a refusal to register is nullified.”

While I often disagree with the Copyright Office on things, nearly everyone should at least agree that it tends to lean towards a more copyright maximalist point of view, happy to allow copyrights on nearly everything. For even it to reject the copyright here, and do so forcefully, suggests that Judge Kozinski's ruling is way out of line -- and, at the very least, deserves a more thorough rehearing.

Google goes on to explain why, even without this, the original order should be put on the shelf while the court reconsiders, again making a very compelling argument that Garcia has no copyright interest and no case. I won't rehash the arguments here, but they're worth reading. At the very least, it's difficult to see how anyone (even those who agreed with the original order) can't see how the ruling is controversial, raises serious issues, and deserves to be stayed until the court can make sure this is the result it thinks is appropriate.

Garcia's brief on the other hand, dispenses with careful legal logic, and plays heavily on emotion -- reprinting some of the "death threats" Garcia received for her appearance in the video. While these were, no doubt, distressing to Garcia, that is unrelated to the actual copyright question at play here, and seem designed solely to lead to an emotional reaction, like the one it appears Judge Kozinski had. Even when the filing does delve into making actual legal arguments, they seem questionable. For example, Garcia's lawyer dismisses the idea that appearing in only 5 seconds of the film has any bearing on the copyright question, and even quotes Judge Learned Hand saying: "no plagiarist can excuse the wrong by showing how much of his work he did not pirate." But that's both misleading and not applicable here. This is not an issue of plagiarism. It's a question of copyright infringement, and de minimis use and fair use (where the amount of the work plays a key role) are well established. To pretend that these issues are meaningless is to ignore some rather basic copyright law (though, so is claiming that an actress has a copyright interest in a movie).

Reading through the two motions you get a sense of two very different levels of expertise concerning copyright law. On top of that, a third filing, from lawyer Andrew Bridges representing a bunch of internet companies, including Automattic, Twitter, Facebook, Pinterest and IAC (and indicating more may soon sign on), suggests that a large part of the internet ecosystem is about to weigh in on why Kozinski's ruling is absolutely insane as well. Hopefully, the court at least recognizes that it should rehear the question of whether or not a stay should be granted on the original prior restraint order.

Filed Under: alex kozinski, cindy garcia, copyright, copyright office, first amendment, innocence of muslims
Companies: automattic, facebook, google, iac, pinterest, twitter, youtube