Legislator Wants To Ban People From Posting Pictures Of Accidents To Social Media... For At Least One Hour

from the dumb-idea-with-implausible-logistics dept

Kentucky legislator John "Bam" Carney thinks social media might be getting a bit out of hand. His response? Prior Restraint: The Legislation. (via Slashdot)

A bill assigned to the House Judiciary Committee would prohibit anyone who witnesses “an event that could reasonably result in a serious physical injury” from publishing information about that event on the Internet for at least an hour if their posting could identify potential victims.

Violators could be fined $20 to $100 per incident. Exceptions are made for the news media, victims of the event and emergency responders at the event.

See how many problems you can find in that two-sentence summary.

Would posting video of a football game to Facebook violate this law? ("An event that could reasonably result in a serious physical injury.") How about a traffic stop? (Risk for physical injury again, obviously.) For that matter, is the law only violated IF a "serious physical injury" occurs or just when it could be the potential end result? Example: an automobile accident looks horrendous but everyone involved suffers only cuts and bruises. Does this fall on the right side of Carney's proposal?

And that's before you get to the costs involved in tracking down a person who posted the illicit footage to hit them up for $20-100. If nothing else, a guaranteed money-loser like this should be tossed on P&L merits alone.

The "one hour" blackout also poses a problem. Who determines when the countdown starts? Those issuing the tickets? The EMS crew (if any)? The victims (if any)? An official clock located at Carney's office?

On top of that, there's the always sticky question about who is or isn't "media," as well as the attendant First Amendment issue that even "Bam" recognizes is a problem (but that somehow hasn't prevented him from offering up the bill in the first place).

Of course, Carney has his reasons for crafting (a very generous depiction of the effort involved) this bill. Apparently, this isn't a stupid piece of legislation. It's actually an icebreaker.

“It’s purely my intent to get a discussion going out there, asking people to be more respectful about what they put on social media,” Carney said.

That's a hell of a way to have a "discussion:" tell someone to shut up and take money out of their wallet if they don't.

The second half of his statement explains the copious amounts of "do something" dripping off his single-sheet proposal.

“We’ve had some incidents, including one in my community, and I’d hate for anyone to learn about the loss of a loved one through social media.”

Something happened to a neighbor or, more likely, a powerful constituent, who gave Carney an earful about today's social media being nothing more than 24-hour tabloid TV staffed by youthful miscreants waving around iThings. Pure speculation, but I'd be surprised if it's not in the same neighborhood as the truth.

Something happened.

People said something should be done.

"Bam" Carney will do something.

And here it is: SOMETHING.

(1) Any individual who witnesses an event that could reasonably result in a serious physical injury as defined in KRS 500.080 shall not post any information identifying the potential victims on the Internet or other electronic media until at least one (1) hour has passed from the moment the event was first witnessed.

(2) This section shall not apply to: (a) The injured individual; (b) Any member of the news media; or (c) Any emergency responder responding to the event.

(3) Any individual who violates this section shall be fined not less than twenty dollars ($20) nor more than one hundred dollars ($100) for each offense.

BE IT ENACTED THAT I'M GOING TO TEACH THE PUBLIC SOME MANNERS, DAMMIT.

And, finally, one last voice offering clueless support of a bad bill -- this one belonging to another government employee: Tiger Robinson, Pulaski County Public Safety Director.

“There have been times we’ve been pulling bodies out of cars and these people are standing there, snapping pictures on their phones to post on Facebook. It’s just not right.”

Maybe so. But attempting to herd people towards a subjective level of decency can rarely be accomplished without trampling on a few civil liberties. Carney's trying to nudge the public towards his and Robinson's public decorum ideal, and if a little prior restraint is what's needed to achieve this goal, a little prior restraint is what the public will get.

Filed Under: bam carney, free speech, john carney, kentucky, posting pictures, prior restraint, social media

Appeals Court Rejects Prior Restraint In Defamation Case; Could Have Gone Further

from the make-it-so dept

As highlighted by the folks at EFF, Judge Richard Posner has ruled in an appeal on a defamation case, tossing out an injunction against two individuals who defamed two other people. The details of the actual case fall into the "somewhat nutty" category, involving some religious stuff that we'll skip over as not relevant. What you need to know is that two people (Patricia Ann Fuller and Paul Hartman) were sued and found to have defamed Kevin McCarthy and Albert Langsenkamp. Some of those people go by other names and titles (including Mr. Langsenkamp referring to himself as a Papal Knight of the Holy Sepulchre), but we'll leave that aside. The court found in favor of the plaintiffs and said that the defamation occurred. The only real issue on appeal was whether or not the judge's decision to issue a very broad injunction against Hartman and Fuller was appropriate.

And here we come to an issue that comes up semi-frequently in discussions of defamation cases: if you are found guilty of defamation, can you be (1) forced to take down the defamatory content and (2) barred from saying it again (or saying something like it)? For the most part, courts have said that you cannot have an injunction against defamation, because that's classic prior restraint in violation of the First Amendment. That is, the government cannot tell someone "you cannot say that." So, in most cases, the remedy for defamation is a monetary one (along with the satisfaction of a court ruling saying that what was said about you was false). There are some fairly narrow exceptions in some courts that have argued that it's okay to tell someone that they cannot repeat the very same statements found to be defamatory.

However, while there are a bunch of rulings on this topic, it's never quite gone to the Supreme Court, so there's at least some ambiguity. In this case, the District Court judge basically ignored all of that and issued a massively broad injunction. Without having the jury specifically determine which statements were defamatory, the judge issued an injunction saying that they couldn't publish any of the statements that the plaintiffs claimed were defamatory -- or "any similar statements" -- and further ordered Hartman to take down his entire blog.

That's pretty clear prior restraint, and indeed the three judges on the appeals court all agreed, throwing the case back to the district court. As Posner noted, the lawyers for Fuller and Hartman were... shall we say... not the most professional, which may have contributed to the result:

The conduct of the litigation in the district court by the lawyer representing Fuller and Hartman showed, as the district judge explained in granting the request for attorney’s fees, a serious and studied disregard for the orderly processes of justice. That disregard has persisted on appeal. Many of the grounds on which Fuller and Hartman seek reversal were waived, are frivolous, or are incomplete, with the important exception of the permanent injunction entered by the district judge, to which we devote the balance of this opinion.

Part of this included not filing a timely objection to the injunction, which in most cases would mean that this issue wouldn't be reviewed. However, Posner notes that given the seriousness of prior restraint and the First Amendment, it's still appropriate to explore this issue, especially since the public could be harmed:

Fuller and Hartman missed the deadline for responding to McCarthy’s motion for a permanent injunction, however, and ordinarily such a miss would have justified the judge’s rejecting any objection to the injunction as untimely. But the injunction in this case had the potential to harm nonparties to the litigation because enjoining speech harms listeners as well as speakers.

Posner's main issue with the injunction is just how incredibly broad it is, and the fact that the jury never determined if each specific statement was defamatory. He stays away from the larger question of whether or not defamation can ever be enjoined, by noting that the broad nature of this injunction is reason enough to toss it:

But this is not a case in which we have to decide whether defamation can ever be enjoined because, even if it can be, the injunction issued by the district judge cannot be sustained. An injunction against defamatory statements, if permissible at all, must not through careless drafting forbid statements not yet determined to be defamatory, for by doing so it could restrict lawful expression. The injunction that the district judge issued in this case was of that character, owing to its inclusion of vague, open-ended provisions for which there is no support in the jury verdict or, so far as appears, in the district judge’s own evaluation of the evidence. We have no jury findings as to which statements were defamatory, and the plaintiffs didn't even ask the judge to address that absence, so he didn’t. As illustrative of the injunction’s resulting excessive breadth, notice that it orders Hartman to take down his website, which would prevent him from posting any nondefamatory messages on his blog; it would thus enjoin lawful speech.

As Posner further notes:

An injunction against speech harms not just the speakers but also the listeners (in this case the viewers and readers). “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” ... The injunction in this case is so broad and vague that it threatens to silence Fuller and Hartman completely.

Unfortunately, Posner does not just toss out the injunction completely, but rather sends it back to the lower court to try again, meaning that the judge may get another chance to try an injunction.

There's a good concurring opinion from Judge Diane Sykes, who agrees with tossing out the injunction, but disagrees with sending it back to the lower court, making an even stronger argument in saying that injunctions are an inappropriate remedy for defamation, citing numerous cases that make this argument:

More fundamentally, the question whether an injunction is permissible at all in this context is a sensitive and difficult matter of First Amendment law. A court order permanently enjoining future speech is a prior restraint and as such is presumptively unconstitutional. Any prior restraint comes to us “bearing a heavy presumption against its constitutional validity,” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963), and “permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints” because they impose a “true restraint on future speech,” Alexander v. United States, 509 U.S. 544, 550 (1993). As the Supreme Court explained in its seminal case condemning prior restraints, an injunction against future speech—making any publication of the suppressed speech punishable as contempt—is “the essence of censorship.” Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931).

Consistent with this bedrock free-speech principle, the traditional rule in defamation law is that “equity does not enjoin a libel or slander[;] … the only remedy for defamation is an action for damages.” e360 Insight v. The Spamhaus Project, 500 F.3d 594, 606 (7th Cir. 2007) (quotation marks omitted); see also Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 239 F.3d 172, 177 (2d Cir. 2001); Kramer v. Thomp-son, 947 F.2d 666, 677 (3d Cir. 1991); Comm. for Creative Non-Violence v. Pierce, 814 F.2d 663, 672 (D.C. Cir. 1987). This rule “has enjoyed nearly two centuries of widespread acceptance at common law.” Kramer, 947 F.2d at 677; see also Erwin Chemerinsky, Injunctions in Defamation Cases, 57 SYRACUSE L. REV. 157, 167–68 (2007); Michael I. Myerson, The Neglected His-tory of the Prior Restraint Doctrine: Rediscovering the Link Be-tween the First Amendment and the Separation of Powers, 34 IND. L. REV. 295, 308–22 (2001).

The Supreme Court has not yet directly addressed whether injunctive relief is a constitutionally permissible remedy for defamation, but the general equitable rule accords with the Court’s prior-restraint jurisprudence dating back to Near, which invalidated a Minnesota statute that permitted the issuance of temporary and permanent injunctions against persons and organizations engaged in the publication of defamatory newspapers, magazines, or other periodicals. 283 U.S. at 702, 723; see id. at 712 (“[S]uppression is accomplished by enjoining publication, and that restraint is the object and effect of the statute.”).

While Judge Sykes notes that some courts have allowed very narrowly tailored injunctions for the specific repetition of statements, she questions the wisdom of those rulings, stating "I'm not sure I agree with this modern trend" and then notes that the key cases where this has occurred have very distinct facts associated with them that "make it difficult to map their holdings onto defamation law." And, she notes, the key cases that are often cited aren't really defamation cases at all. And thus injunctions in defamation cases are tricky to accept:

Defamation by its nature is highly contextual. A statement that is defamatory in one circumstance, time, or place might not be defamatory in another circumstance, time, or place. A permanent injunction as a remedy for defamation does not account for constantly changing contextual factors that affect whether the speech is punishable or protected. If factual circumstances change in a way that affects the defamation calculus, the person enjoined must risk contempt or seek the court’s permission to speak. As the Court said emphatically in Near, “[t]his is the essence of censorship.”

And thus, she feels that sending the case back down only opens up another opportunity for unconstitutional prior restraint -- and, tragically, gives off the belief that this is okay:

By offering the district court an opportunity to craft a new injunction, my colleagues imply that such a remedy is constitutionally permissible—indeed appropriate in cases of judgment-proof defamers who might not be deterred by a damages award.... I cannot join this part of the court’s opinion. At the very least, it wrongly implies that a core liberty secured by the First Amendment—the right to be free from prior restraints on speech—does not protect people who lack the means to pay a judgment.

It's too bad this wasn't the actual opinion, but it's still better than nothing. Overall it's a good ruling, but it would be nice to have it confirmed once and for all that injunctions against future speech are, indeed, prior restraint.

Filed Under: 7th circuit, defamation, free speech, injunctions, prior restraint, richard posner

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.

Judge Realizing He Probably Can't Block Release Of Surreptitiously Recorded Video

from the slappity-slapp-slapp dept

Last month, we wrote about a judge in California issuing a temporary restraining order barring an anti-abortion group from releasing a video it had surreptitiously recorded of a conversation it held with a life sciences company named StemExpress, where the group pretended to be an organization interested in doing business with StemExpress. You can argue that the group, the Center for Medical Progress (CMP), did something quite shady (it's the same group that similarly recorded conversations with a Planned Parenthood exec) in misrepresenting who they were, secretly recording conversations, and editing and releasing the videos -- but that doesn't change the fact that the court really can't bar the release of the video. Because that's called prior restraint.

As we explained last time, the only possible out for StemExpress was to argue that the group had signed a non-disclosure agreement, which effectively waived any First Amendment rights, but that would be a huge stretch. Our main concern was that in the ruling for the restraining order, there was basically no discussion of the First Amendment/prior restraint question, which deserved a thorough review.

CMP struck back with an anti-SLAPP filing (under California's pretty good anti-SLAPP law), highlighting the First Amendment questions:

Defendants obtained the recording and the documents in the course of conducting an investigation into possible illegal activity, with the purpose of documenting and exposing this activity to the public to spur action and reform. The complained-of conduct is quintessential newsgathering, protected by the First Amendment. Plaintiffs' complaint, therefore, is directed at conduct (newsgathering) in furtherance of the exercise of the constitutional right to free speech and petition....

And, as Popehat explains, it appears the judge is now realizing that a restraining order is likely unconstitutional. The decision in response to the anti-SLAPP motion points out that there really isn't any legitimate reason to block the release of the video.

Plaintiff does not persuade the Court that the discovery it seeks is necessary to obtain the preliminary injunction. That is because it appears unlikely that the Court is going to grant the preliminary injunction. The injunction Plaintiff seeks would prevent Defendants from disseminating the videotapes. First, this proposed injunction would constitute a prior restraint on the Defendants' rights under the First Amendment and the parallel protections under the California Constitution.... Therefore, it is unlikely that the preliminary injunction will ultimately be granted.... This general prohibition on prior restraints even applies to speech whose publication is false, defamatory, violative of privacy rights or otherwise tortious.

Second, even if Plaintiff's evidence demonstrates that the videotapes were obtained in violation of Penal Code Section 632, Section 632 does not prohibit the disclosure of information gathered in violation of its terms.... For that reason, the Court is unlikely to enjoin the dissemination of the tapes. Nor does Penal Code Section 637.2 help Plaintiffs. That section permits a person injured by a violation of Penal Code Section 632 “to bring an action to enjoin and restrain” such violation. It does not permit an action to prevent the dissemination of the unlawfully obtained recording.

This is a procedural step away from a final ruling on the issue, but is rather in response to a discovery request. But, at the very least, it suggests that StemExpress's attempt to block the release of the video is almost certain to fail. And, of course, it has now called much more attention to the video when it does get released.

Filed Under: first amendment, free speech, prior restraint, video
Companies: center for medical progress, stemexpress

Court Shuts Down Police Union's Attempt To Bury Reporting On Sheriff's Dept.'s Hiring Of Bad Cops, Thieves And Sex Offenders

from the shut-up,-they-motioned dept

Late in 2013, the LA Times published information from applications processed by the Los Angeles Sheriff's Department that showed the agency was generally unconcerned by past misconduct and illegal behavior by applicants -- especially if those applicants were former police officers or prison guards. This is the government's other revolving door, one that ensures a bad cop won't stay jobless for long.

The local police union and members of the Sheriff's Department tried to get a court to agree to some prior restraint in hopes of preventing this information from being made public. According to the lawsuit, the documents were "stolen" and, as stolen property, the LA Times had no right to hold onto it, much less publish it.

Of course, this assertion is wrong on multiple levels, starting with the fact that it's not illegal for journalists to publish stolen documents. If it was, hundreds of journalists would be in jail. The law cited by the union only prevents law enforcement officers from stealing or disseminating this information. On top of that, while the lawsuit alleged the documents were stolen, no evidence was provided to back up this claim.

This attempt to prevent information of public interest from reaching the public was greeted with an anti-SLAPP motion from the LA Times. This was sustained by the lower court, which found the plaintiffs' arguments severely deficient.

The court noted the Doe declarations ALADS submitted “contain no personal details about the declarants that would relieve them of the obligation of identifying themselves, particularly when the declarations contain the hearsay statement of defendant Faturechi concerning when the article is going to be published and what it will contain -- the evidence most critical to the showing of irreparable harm or immediate danger that plaintiff must make to justify ex parte relief.” The court also observed, “The declarations are also very vague in their reference to the personal information that Faturechi told the declarants he would be publishing.” The court “decline[d] to issue a TRO imposing a prior restraint on defendants’ free speech based on the speculative hearsay testimony of anonymous witnesses.”

The court denied the application on the additional ground that ALADS -- by its own admission -- had known for weeks if not months that the Times had information from the OPS/LASD deputies’ files, that notwithstanding this knowledge it had not proceeded by noticed motion, and therefore that “any exigency appear[ed] to be of [ALADS’] own making . . . . ”

This, of course, led to an appeal.

The appeal, even if successful, would have been a lost cause. By the time it reached the California appeals court, the information had already been published. Once prior restraint was denied, the only thing left for the plaintiffs to do was find some way to punish the paper for its act of journalism.

The appeals court is similarly unmoved by the plaintiffs' post-publication arguments, which are pretty much mostly a repetition of its previous failed arguments, with the addition of the assertion that the LA Times shouldn't have been able to invoke anti-SLAPP laws because it was trafficking in "stolen" material. Again, the appeals court agrees with the finding of the lower court -- that the plaintiffs make a lot of accusations, but can't seem to be able to back them up.

ALADS asserts the trial court erred in finding the Times had met its burden on the first step of the analysis because the Times obtained the LASD files “through criminal means.” ALADS repeats the allegation from its complaint that the Times reporter “stole, received from someone else who stole, or otherwise unlawfully came into physical possession of the confidential background investigation files...” As the trial court correctly observed, ALADS has presented no admissible evidence that Faturechi or anyone else at the Times stole anything.

And even if the documents were indeed stolen, the LASD officers and police union can't seem to find anything that indicates a law was broken by the LA Times' publication of the material.

ALADS cites -- and miscites -- various statutes it contends are violated by Faturechi’s mere possession of the records. For example, ALADS asserts that section 6200 of the Government Code makes it a crime for “any person” to steal, remove, or secrete “official government documents.” But the statute does not say “any person.” It says “[e]very officer” who has custody of a record “deposited in any public office” shall not steal, remove, secrete, destroy, mutilate, deface, alter, or falsify the record or permit another person to do so. The section is entitled “Custodial officers; theft, destruction, alteration, falsification.” Similarly, ALADS claims Government Code section 3307.5 “makes it illegal, as a matter of law, for anyone” to release a photograph of a peace officer to the public. In fact, that statute concerns officers’ relationships with the agencies that employ them. It says officers shall not be “required as a condition of employment” to consent to the use of their photographs on the Internet.

The court also addresses the "privacy violation" arguments advanced by the police union and the anonymous Doe plaintiffs, finding them similarly weak.

The first problem with ALADS’ argument is that any privacy right in the information contained in deputies’ employment applications belongs to the deputies (and their employer, LASD), not to the deputies’ labor union. “It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded.”

Finally, the court takes on the union's claim that its attempted prior restraint wasn't really prior restraint.

[T]he injunction ALADS seeks would not be “content-neutral” at all. ALADS asks the court to enjoin the Times from publishing any article containing any information in 16 listed categories, including the names of any OPS/LASD deputies, their photographs, and their “non-public criminal history.”

In sum, ALADS has cited no case permitting the kind of injunction it seeks here, to restrain a newspaper from publishing news articles on a matter of public concern: the qualifications of applicants for jobs as law enforcement officers. ALADS has cited no case because there is no such case. For more than one hundred years, federal and state courts have refused to allow the subjects of potential news reports to stop journalists from publishing reports about them.

Which is all this actually is. The police union and the Doe officers, too concerned about their reputations to put their name on the lawsuit, wanted nothing more than to bury unflattering information. Neither the union nor the officers seemed to have any problem with former officers fired for misconduct or illegal behavior being allowed back into positions of authority and power, but they had a serious problem with the LA Times letting the public in on its dirty secrets. Fortunately, two consecutive courts refused to buy the plaintiffs' censorious, malformed arguments.

Filed Under: bad cops, first amendment, journalism, la sheriff's department, lasd, police union, prior restraint, reporting

Judge Bars Anti-Abortion Group From Releasing Video... Raising Serious First Amendment Questions

from the have-you-heard-of-prior-restraint dept

What is it with judges and prior restraint lately? A judge in a Los Angeles Superior Court has issued a temporary restraining order blocking an anti-abortion group from releasing a video. And, yes, obviously, anything involving abortion is going to be controversial, no matter what your stance on the issue is -- and this also involves the same group that made plenty of headlines recently over some other videos involving Planned Parenthood. I'm hoping that folks here will pay attention to the First Amendment issue, rather than get into any sort of ideological argument over the parties involved or their campaigns because you're not going to convince anyone, no matter what side you're on, and you're likely to just piss everyone else off -- so leave those debates for other sites please.

Instead, the real question here is whether or not a court can actually do this. As per usual, Popehat has a good post detailing why this is most likely unconstitutional prior restraint, but might not be. Kinda. Sorta. Barely.

You can read the filing for the restraining order (h/t to Adam Steinbaugh who dug out the complaint), which comes from a life sciences company named StemExpress, and makes all sorts of claims, which can basically be summed up as "we thought our conversations were private!" And you can read the actual temporary restraining order, which is much more limited than what StemExpress requests.

It appears the crux of the argument is (1) that California is a two party consent state for recordings (which is stupid, but that's another issue for another day) and (2) the representatives for the faux company who were actually a part of this group that set up the meeting signed a non-disclosure agreement. The first part probably doesn't much matter for the question of the restraining order (it absolutely could lead to other legal issues and problems for the group that made the recording), as it's still a form of prior restraint. The second issue, however, is at least a bit more compelling because one could make an argument that the group that made the recording proactively waived their First Amendment rights in signing that agreement -- and thus the court was effectively enforcing the agreement that the parties had agreed to themselves.

Still, as Popehat notes, there is woefully little discussion of the First Amendment/prior restraint questions:

Remarkably, StemExpress' TRO application contains no prior restraint analysis whatsoever. Its sole concession to the First Amendment is an argument that (1) this isn't a First Amendment violation because it's an illegal recording, and (2) it's not a First Amendment violation because the defendants are free to speak or write about what happened at the meeting, they just can't release the recording. We don't have a transcript of the hearing, and we don't know what other arguments the court may have considered, but this is troubling.

In my opinion, StemExpress could have made a decent argument if it had focused on the apparent fact that CMP signed nondisclosure agreements and then violated them. First Amendment rights are broad, but can be deliberately waived. That's why confidentiality and nondisclosure agreements are often enforceable. While the state of the law isn't perfectly clear, there's a colorable argument that threatened breach of a nondisclosure agreement may be a basis for prior restraint if the underlying confidentiality interest is strong enough. It's not a bulletproof argument, but it's much better than ignoring the prior restraint issue entirely.

In sum: if the court based the prior restraint on a violation of California's secret-recording law, I think it probably violates the First Amendment. But the order might be sustainable because CMP engaged in the dubious practice of signing a pledge of confidentiality with the intent of breaking it.

Of course, Popehat also notes that if the group already gave the video to someone else -- such as a journalist -- the court can't block that group from releasing it, as that is definitely prior restraint.

In short, chances are that this video is going to get out no matter what eventually -- and to some extent, this lawsuit and request for a restraining order is only likely to draw more attention to the whole thing in the first place (and the fact that StemExpress doesn't want it to come out).

Filed Under: abortion, anti-abortion, first amendment, free speech, los angeles, prior restraint, video
Companies: stemexpress

Judge Orders Newspaper To Delete Article, Newspaper Reminds Judge That It's In The US And The 1st Amendment Exists

from the welcome-to-america dept

This seems to happen all too often, but a local judge has forgotten about the whole 1st Amendment thing. Last week, Bergen County Superior Court Judge Jane Gallina-Mecca ordered the Bergen Dispatch to take down a news article. The article was about a specific family court case, involving custody of a child. It's not surprising that there might be some concern over privacy rights in such cases, but even so, that does not allow a judge to flat out order a newspaper to take down an article -- even more so when the order came out of a closed hearing where no one from the newspaper was even present. In response, the Bergen Dispatch posted a fairly snarky article that reiterates some of the details from the case, and concludes with this wonderful paragraph:

While the Bergen Dispatch reviews its options we have confirmed that Bergen County does currently remain part of the State of New Jersey and that currently New Jersey is still part of the Union of states that is governed by the United States Constitution and the Bill of Rights. As such, Bergen County citizens continue to enjoy the right to freedom of speech and the right to a free press.

Informed of this little tidbit of information, the judge has since vacated the original order, but it's still astounding that it had to go that far in the first place.

Filed Under: 1st amendment, bergen dispatch, censorship, jane gallina-mecca, new jersey, prior restraint

9th Circuit Judge Slams His Colleagues For First Amendment Failings In Waiting So Long To Fix Cindy Garcia Ruling

from the good-move dept

We already wrote about the 9th Circuit's en banc ruling that effectively "dissolved" the 9th Circuit's earlier, horrible, ruling in support of Cindy Garcia, ordering Google/YouTube to block any and all copies of the "Innocence of Muslims" videos that she appeared in (for just a few seconds). However, right before that ruling came out, a rather interesting amended dissent to an earlier ruling in the case came out. Written by Judge Stephen Reinhardt, he takes issue with the fact that a year ago, the 9th Circuit refused to do an "emergency rehearing" of the case. While it did eventually rehear the case, Judge Reinhardt notes that the end result was rather insane: because the court refused to move on the matter quickly, a perfectly legal video was censored from the internet for over a year. And that has tremendous First Amendment concerns:

This is a case in which our court not only tolerated the infringement of fundamental First Amendment rights but was the architect of that infringement. First we issued an order that prohibited the public from seeing a highly controversial film that pertained to an ongoing global news story of immense public interest. Then we ordered that the public could see it only if edited to exclude a particular scene, thereby conditioning freedom of expression on a judicially sanctioned change in the message expressed. We did this primarily because persons or groups offended by the film’s message made a threat—in the form of a fatwa—against everyone connected with the film. By suppressing protected speech in response to such a threat, we imposed a prior restraint on speech in violation of the First Amendment and undermined the free exchange of ideas that is central to our democracy and that separates us from those who condone violence in response to offensive speech.

Preach it, Judge Reinhardt. The Judge wants to send a message to his colleagues on the court about the ridiculousness of this situation:

Although I agree with the en banc opinion that is being issued in the normal course well over a year after the unconstitutional order, I dissent from this court’s earlier refusal to go en banc immediately on an emergency basis. Only by doing so could we have prevented the irreparable damage to free speech rights in the lengthy intervening period until we could take the case en banc under our regular procedure. The unconscionable result is that our court allowed an infringement of First Amendment rights to remain in effect for fifteen months before we finally issued our opinion dissolving the unconstitutional injunction issued by a divided three-judge panel.

And, as he points out, the court basically sanctioned blatant censorship because some people were offended by a video:

By leaving in place the panel’s unprecedented gag order for well over a year, we surrendered to the threats of religious extremists who were offended by the film. For a United States court to do so was anathema to the principles underlying the First Amendment. It is remarkable that this late in our history we have still not learned that the First Amendment prohibits us from banning free speech in order to appease terrorists, religious or otherwise, even in response to their threats of violence.

By refusing to immediately rehear this case en banc, we condoned censorship of political speech of the highest First Amendment magnitude. Although amateurish, offensive, and banned in many undemocratic countries, Innocence of Muslims is a film of enormous political, social, and religious interest....

[....]

By censoring Innocence of Muslims and limiting the public’s access to the film, we allowed fear of those opposed to the film’s message to trump our commitment to a robust First Amendment. In that circumstance, it was contrary to the fundamental obligation of our judiciary and a violation of this court’s constitutional duty for us to fail to go en banc in response to the emergency call. It is of no comfort that the panel shortly amended its original gag order to allow Google to show versions of the film with Garcia’s five-second appearance deleted. “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) (emphasis added). A prior restraint is no less offensive to the First Amendment simply because it enjoins only a certain quantity of words or a small portion of a film. To the contrary, “it is wholly inconsistent with the philosophy of the First Amendment” for a court to pick and choose which speech and how much of it may be permitted as opposed to being enjoined. See Stanley v. Georgia, 394 U.S. 557, 566 (1969). Indeed, it exacerbates the First Amendment injury for a court to condition the right to speak on a change in the message being expressed.....

Nor does the fact that the suppression of speech ended with the en banc opinion lessen the violence done to the First Amendment. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). For over a year we violated the First Amendment by censoring a film that had become part of a global news story of utmost importance. “[E]very restraint issued in this case, whatever its form, has violated the First Amendment—and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly.” New York Times Co., 403 U.S. at 727 (Brennan, J., concurring). Restoring First Amendment freedoms after a lengthy period of unconstitutional judicial censorship does not cure the problem. Those freedoms should never have been denied, and the exercise of freedom that was lost pending en banc proceedings cannot be recovered.

Further, Judge Reinhardt puts this censorship in context:

In the fifteen months since the court refused to rehear the case on an emergency basis, there have been numerous developments regarding threats by religious extremists who reject pluralist values—the rise of the Islamic State of Iraq and Syria (ISIS), the murderous attack on Charlie Hebdo, the barbarous beheadings of innocent civilians, the kidnappings of young girls and their enslavement because of their religious membership, the bitter warfare between Shiites and Sunnis and among their terrorist allies, the emergence of groups such as Boko Haram, the failures of nascent democracies to take hold in the wake of the Arab Spring, and the spread of increasingly virulent anti-Semitism throughout Europe, if not the world. Setting aside the fact that Innocence of Muslims is an offensive film of poor quality, it was part of the ongoing debate pertaining to such events and its voice was silenced while the continuing debate was at a peak. Although the inability to view this particular film may have been no great loss, the suppression of speech was, as a matter of principle, intolerable under the First Amendment: a court ordered a political video removed from the public sphere because of threats of violence, thereby changing the content and context of ongoing global discourse. The constitutional violation is not cured by restoring access to the video well over a year later, long after the time when it was most relevant to the debate and of greatest interest to the public.

Thank you, Judge Reinhardt, for saying what many people have been thinking about this ruling since it first came out. It's amazing how quickly some will jump to supporting prior restraint when it is speech they don't like. It is good to be reminded that this is not acceptable -- especially by a court.

Filed Under: 9th circuit, alex kozinski, censorship, cindy garcia, first amendment, innocence of muslims, prior restraint, stephen reinhardt

Appeals Court Gets It Right The Second Time: Actress Had No Copyright Interest In 'Innocence Of Muslims'

from the took-'em-long-enough dept

Phew. For quite some time now we've been following the curious case of Cindy Garcia, who by all accounts was duped into being an actress in a film that was eventually sorta/partially released on YouTube as "Innocence of Muslims" and was cited by some as causing violence around the globe (a claim that others dispute). Garcia, for perfectly good reasons, was not happy to be appearing in a controversial film that was entirely different than the film she thought she was in. However, she then tried to use copyright law to take the film down. This seemed laughable on its face, and the district court quickly dismissed it. To the surprise and horror of many, however, on appeal, the 9th Circuit, led by Judge Alex Kozinski, overturned widely settled law for decades and claimed that the copyright claim was valid and further ordered Google/YouTube to block every copy of the movie -- which most people thought was a clear case of prior restraint against the First Amendment.

After some back and forth, the 9th Circuit agreed to rehear the case with a full slate of 11 judges (en banc). The case was heard late last year and just today, the 9th Circuit dissolved its previous ruling and is now upholding the district court ruling against Garcia. Judge Kozinski dissented, not surprisingly. Disclaimer: We filed an amicus brief in this case as well.

The ruling, written by Judge Margaret McKeown gets right to the point, copyright is not supposed to be used for outright censorship:

In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech. The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.

As pretty much everyone has noted, the court also points out that it's sympathetic to the position that Garcia was put in by events out of her control. However, that is no excuse for abusing copyright law for the sake of censorship.

We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression. Garcia’s theory can be likened to “copyright cherry picking,” which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act. Putting aside the rhetoric of Hollywood hijinks and the dissent’s dramatics, this case must be decided on the law.

And, what that means is that Garcia has no copyright interest just because she appeared in the film. The court repeatedly notes (as did many others) that even the US Copyright Office denied Garcia's attempt to copyright her performance. And, further, notes that if the court were to accept Garcia's claim it would create quite a mess for copyright law:

Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed—splintering a movie into many different “works,” even in the absence of an independent fixation. Simply put, as Google claimed, it “make[s] Swiss cheese of copyrights.”

Take, for example, films with a large cast—the proverbial “cast of thousands”—such as Ben-Hur or Lord of the Rings. The silent epic Ben-Hur advertised a cast of 125,000 people. In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood). Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.

The court actually spends a lot of time on this, noting what a ridiculous situation it would make for the entire movie industry, which again raises serious questions about why the MPAA chose not to participate in this case.

Untangling the complex, difficult-to-access, and often phantom chain of title to tens, hundreds, or even thousands of standalone copyrights is a task that could tie the distribution chain in knots. And filming group scenes like a public parade, or the 1963 March on Washington, would pose a huge burden if each of the thousands of marchers could claim an independent copyright.

Even beyond the whole swiss cheese thing, the court rightly points out that copyright is given to those who "fix" the work in a tangible medium, and Garcia did, well, none of that:

Garcia’s copyright claim faces yet another statutory barrier: She never fixed her acting performance in a tangible medium, as required by 17 U.S.C. § 101 (“A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”) (emphasis added). According to the Supreme Court, “the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” .... Garcia did nothing of the sort.

For better or for worse, Youssef and his crew “fixed” Garcia’s performance in the tangible medium, whether in physical film or in digital form. However one might characterize Garcia’s performance, she played no role in fixation. On top of this, Garcia claims that she never agreed to the film’s ultimate rendition or how she was portrayed in Innocence of Muslims, so she can hardly argue that the film or her cameo in it was fixed “by or under [her] authority.”

Finally, even though it notes it does not need to, the court addresses the question of "irreparable harm" which was a key part of Kozinski's original ruling. Here, the court rightly points out that, while Garcia may face harm, it's not because of the copyright and abusing copyright law to protect against such harm is not what the law allows.

Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from—and incompatible with—copyright and copyright’s function as the engine of expression.

In broad terms, “the protection of privacy is not a function of the copyright law. . . . To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author.”

The court further cites cases such as Scientology abusing copyright to try to suppress a study and Hulk Hogan suing Gawker to suppress a sex tape, to show that, while many people seek to abuse copyright law in this manner, it is totally inappropriate.

And then there's this:

Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a “right to be forgotten,” although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States.

And, finally, the ruling smacks around the original injunction from Kozinski for its clear First Amendment problems:

The takedown order was unwarranted and incorrect as a matter of law, as we have explained above. It also gave short shrift to the First Amendment values at stake. The mandatory injunction censored and suppressed a politically significant film—based upon a dubious and unprecedented theory of copyright. In so doing, the panel deprived the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.

[....] The panel’s takedown order of a film of substantial interest to the public is a classic prior restraint of speech..... Prior restraints pose the “most serious and the least tolerable infringement on First Amendment rights,”... and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin copyright claim in a five-second performance.

Well done, 9th Circuit. Of course, it's still bizarre it took you two tries to get it right.

There is a "concurring" opinion from Judge Paul Watford, in which he argues the majority decision went too far in making broad claims, and he would have preferred a more narrow (and less useful) ruling, focusing solely on the "irreparable harm" question and leaving aside the entire (important) question of whether or not Garcia had any copyright interest in the film. Thankfully, the majority of the panel did not agree with him.

And, finally, we get to Kozkinski's panicked defense of his own original ruling:

Garcia’s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was original and it was fixed at the moment it was recorded. So what happened to the copyright? At times, the majority says that Garcia’s performance was not copyrightable at all. And at other times, it seems to say that Garcia just didn’t do enough to gain a copyright in the scene. Either way, the majority is wrong and makes a total mess of copyright law, right here in the Hollywood Circuit.

Wait, what? The 9th Circuit is "the Hollywood Circuit?" I mean, sure, technically Hollywood is in the 9th Circuit, but...

In its haste to take internet service providers off the hook for infringement, the court today robs performers and other creative talent of rights Congress gave them. I won’t be a party to it.

Kozinski is wrong. As most of the rest of the court and the Copyright Office and tons of copyright experts all seem to recognize, Garcia has no copyright interest in her performance. She did not fix it in a tangible medium. Kozinski goes on to argue that this ruling is what will create a true mess of copyright law:

The implications are daunting. If Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie. If some dastardly crew member were to run off with a copy of the Battle of Morannon, the dastard would be free to display it for profit until it was made part of the final movie. And, of course, the take-outs, the alternative scenes, the special effects never used, all of those things would be fair game because none of these things would be “works” under the majority’s definition. And what about a draft chapter of a novel? Is there no copyright in the draft chapter unless it gets included in the published book? Or if part of the draft gets included, is there no copyright in the rest of it?

I think the majority ruling does a damn good job responding to this point, by pointing out that it's "moral outrage and colorful language" more than legal analysis:

The dissent spins speculative hypotheticals about copyright protection for book chapters, movie outtakes, baseball games, and Jimi Hendrix concerts. See Dissent at 35, 38. This hyperbole sounds a false alarm. Substituting moral outrage and colorful language for legal analysis, the dissent mixes and matches copyright concepts such as collective works, derivative works, the requirement of fixation, and sound recordings. The statutory definitions and their application counsel precision, not convolution.

All in all, while it's ridiculous that we had to go through this in the first place, after quite some time, the court finally got it right, no matter what Kozinski has to say.

Filed Under: 9th circuit, alex kozinski, cindy garcia, copyright, free speech, injunctions, innocence of muslims, irreparable harm, prior restraint
Companies: google, youtube

Judge Tries To Gag Reporters Covering Court Case, Gets Ignored

from the shut-up,-he-ineffectually-demanded dept

Prior restraint much? (via Jim Romenesko)

Anthony J. Sineni III, 52, of Standish sought to restrict media coverage of the case against him in the Cumberland County Courthouse in Portland and persuaded a judge to order the media not to report what he or any witnesses said in court.

Judge Jeffrey Moskowitz, the deputy chief of the state’s district court, told members of the media as the hearing began what they could and could not report.

A reporter for the Portland Press Herald protested the order and asked for time to contact legal counsel. Moskowitz denied the request and said the hearing would proceed without delay, declaring that anyone who did not agree to comply with his order to report only what the prosecutor and Sineni’s attorney said would be ejected from the courtroom.

How a judge arrived at the conclusion that he could violate the First Amendment rights of these reporters is unexplained. (Perhaps he'll explain it during the special hearing he's called for Wednesday, involving the paper and its lawyers.) It simply is. Sineni -- facing charges related to a domestic violence case -- asked and received. Except that his granted request was ultimately futile. The Portland Press Herald seems to have a better grasp on the First Amendment than Judge Moskowitz does.

An attorney for the Portland Press Herald, Sigmund Schutz, said Monday evening that the judge’s order to the media was a clear violation of the public’s First Amendment constitutional right of free speech.

“There is a 100 percent chance that the order is unlawful,” Schutz said. “I think there is no question that the U.S. Supreme Court and other courts have been very clear, what occurs or is said in the court is a matter of public record.”

Sineni, however, appears to believe little things like the First Amendment don't apply to him or his case. He also seems to feel laws of all types are for other people, according to testimony delivered by his ex-girlfriend (Winona Hichborn) -- the same testimony the Press Herald was ordered not to report on.

“Tony (Sineni) told me before that he is above the law and that if he gets away with this they won’t be able to touch him,” Hichborn testified, flanked by her attorney and a victim-witness advocate.

So, it appears Sineni is every bit as wrong as Judge Moskowitz is. Sineni pled no contest but conceded there was enough evidence find him guilty on two of the charges. The law appears to be pulling level with Sineni's cruising altitude. And the ruling issued by Moskowitz has been treated as though he had never bothered wasting his breath uttering the unlawful order in the first place. Good for the Press Herald, which had the insight and fortitude to call BS and do what it was supposed to be doing in the first place: reporting on events that occurred in a public forum.

And as for Sineni, he has hopefully learned that trying to shut people up only makes them speak more loudly -- and that raised voice tends to create plenty of echoes. What would have just been a local interest story is now spreading nationally, and that won't be doing any favors for Sineni's reputation -- or Judge Moskowitz's.

Filed Under: anthony sineni, anthony sineni iii, first amendment, free speech, jeffrey moskowitz, portland, portland press herlad, prior restraint