Tuesday, June 30, 2015

Daily Read: Corey Robin on Dignity (and Whitney Houston)

Over at his eponymous blog, CUNY-Brooklyn Political Science professor Corey Robin has an interesting take on the controversial passage from Justice Thomas's dissent in Obergefell criticizing the "dignity" rationale of Kennedy's opinion for the Court by stating in part that slaves" did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. " 

Robins's post, "From Whitney Houston to Obergefell: Clarence Thomas on Human Dignity," is worth a read, and even worth a listen if you are so inclined.




June 30, 2015 in Cases and Case Materials, Courts and Judging, Due Process (Substantive), Fundamental Rights, Race, Reconstruction Era Amendments, Sexual Orientation, Sexuality, Thirteenth Amendment, Web/Tech | Permalink | Comments (0)

Monday, May 18, 2015

DC Circuit Holds No Clearly Established Right Not To Be Tasered

In its opinion in Lash v. Lemke, the Court of Appeals for the District of Columbia Circuit affirmed the grant of a summary judgment in favor of law enforcement officers in a suit filed by an Occupy D.C. protestor for a violation of Fourth and First Amendment rights.

Judge Griffith, writing for the court, and joined by Chief Judge Garland and Judge Kavanaugh, described the arrest of Ryan Lash at the Occupy DC encampment in January 2012 by United States Park Police Officers Tiffany Reed, Frank Hilscher, and Jennifer Lemke:

Officer Tiffany Reed, who had been following Lash as he hurried through the tents, stepped up behind Lash and seized his arms from the rear. Lash pulled his arms away and held them in front of his body, continuing to walk away as he insisted that he was innocent. Reed again sought to restrain Lash from behind and Lash again pulled his arms away from her. Reed then took hold of Lash’s left arm while Hilsher approached and seized his right arm. Lemke approached at the same time and drew her Taser from its holster, holding it ready.

Though Lash’s arms were now held by two different officers, he continued to struggle to keep his feet while Reed and Hilsher worked for several moments to gain control of him. Lemke, standing nearby and behind the trio, fired her Taser into Lash’s lower back. He fell to the ground, and the officers handcuffed him.

Lash argued that Lemke’s use of the Taser constituted excessive force in violation of Lash’s Fourth Amendment rights and was motivated by retaliatory animus against his protected expression in violation of his First Amendment rights.  The defendant officers raised qualified immunity and the district judge granted summary judgment in their favor.

Relying on Ashcroft v. al- Kidd (2011), the DC Circuit Court of Appeals concluded that the "claimed right, whether it exists or not, is by no means 'clearly established.'"  In so doing, however, the court acknowledged that this inquiry cannot be abstract, but must occur "in the specific context of the case."  This "context," the court further acknowledged, depended on whether Lash was "resisting arrest." 

This would seemingly make summary judgment - - - requiring no genuine disputes of material fact - - - difficult, but the court interestingly relied on multiple video-recordings of the "episode" which rendered Lash's description a "visible fiction."   

Here is one of the videos of the incident:


The court further rejected Lash's arguments regarding the video as conclusive:

Lash argues that we may not rely on the videorecordings in this way because they “cannot fully convey everything that people at the scene felt” such as “how much force one person is exerting” or “the level of detail a person will experience in the moment.” This is no argument at all. The Supreme Court has explained that we determine whether a right is clearly established based on the “objective legal reasonableness of an official’s acts,”  protecting officers from liability unless “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”  Subjective factors like those Lash identifies here cannot shed any light on whether a reasonable officer in these circumstances would have believed her actions violated Lash’s clearly established rights. It is that objective test, not Lash’s knowledge or Lemke’s thoughts, that determines the scope of qualified immunity. The videorecordings in the record provide us all we need to determine what a reasonable officer would have known at the scene. And we do not hesitate to conclude from the videorecording that there is “no genuine issue of material fact” regarding Lash’s active resistance.

[citations omitted]

Given the increased use of videorecordings in cases against police officers, the court's discussion of 'what the video shows' might be expected to be used in other cases.

Here, however, the court concludes that Lash was "actively resisting arrest," and thus there was no clearly established right not be subject to a Taser. 

 As to the First Amendment claim, the court quickly found that Lash did not show the officer had "retaliatory animus."


May 18, 2015 in Courts and Judging, Criminal Procedure, Film, First Amendment, Fourth Amendment, Opinion Analysis, Speech, Web/Tech | Permalink | Comments (3) | TrackBack (0)

Thursday, March 19, 2015

Welcome Race and the Law Prof Blog

An exciting new venture and promising source for race and the law scholars, teachers, and students:

Race and the Law Prof Blog


Professors Khaled A. Beydoun, Atiba Ellis, Brant T. Lee & Nareissa Smith

(pictured below)


March 19, 2015 in Race, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, February 6, 2015

Daily Video: Nancy Leong Interviews Scott Dodson, Editor of RBG Book

LawProf Nancy Leong's exciting new project, TheRightsCast, starts off with an interview of LawProf Scott Dodson about his new anthology, The Legacy of Ruth Bader Ginsburg just published by Cambridge University Press.  The book has a terrific array of contributors.

 Worth a watch!





February 6, 2015 in Books, Courts and Judging, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 14, 2015

Second Circuit Allows First Amendment Public Employee Retaliation Claim to Proceed

In its opinion today in Smith v. County of Suffolk, a unanimous panel of the Second Circuit reversed the grant of a summary judgment in favor of the Suffolk County Police Department. 

Smith, a police officer, had presumably engaged in First Amendment protected activity, including unathorized communication with media: Smith corresponded with CNN commentator Jeffrey Toobin over a period of three years; Smith exchanged emails with Newsday correspondent Christine Armario expressing concern that the Department’s policy of arresting unlicensed drivers led to ethnic discrimination.

640px-One_of_the_finest,_advertising_poster_for_tobacco_collecting_cards,_ca._1890Additionally, Smith had presumably been subject to an adverse action: he was suspended without pay and transferred to an administrative position.  He thereafter retired.

These presumptions were made by the district court, not appealed by the Police Department, and so accepted by the Second Circuit as true.  However, the district court's ruling that the third of the elements necessary to establish a prima facie case under Pickering v. Board of Education (1968): a causal connection between the protected speech and the adverse action. Instead, the Second Circuit found that

The plain language of several of the disciplinary charges at the heart of the adverse actions directly implicates not only the fact that Smith had engaged in protected speech, but also the content of that speech. . . . The Department. . . characterized the content of the speech and cited that characterization as the basis for several disciplinary charges.

The Second Circuit then analyzed whether a summary judgment was warranted under  Mount Healthy City School District Board of Education v. Doyle (1977), if the Department "would have investigated, transferred, and suspended Smith absent his citizen-media speech." The court reasoned that the Mount Healthy defense requires specifics:

Much as plaintiffs are required at the prima facie stage to demonstrate not only the existence of protected speech but a causal connection between that speech and the adverse action, defendants asserting a Mount Healthy defense may not rely solely on the occurrence of unprotected misconduct: they must also articulate and substantiate a reasonable link between that misconduct and their specific adverse actions. A general statement that the employer would have taken some adverse action will not suffice.

(emphasis in original).  Moreover,

Put simply, the evidence of record before us permits only inferences. Those inferences may be drawn in either party’s favor, and we require more than inferences from an employer seeking summary judgment based on the Mount Healthy defense.

Similar to the Supreme Court's unanimous decision last term in Lane v. Franks, the Second Circuit's opinion is another indication that courts should take First Amendment claims by public employees more seriously. 

[image via]

January 14, 2015 in First Amendment, Opinion Analysis, Speech, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Daily Read (and Videos): James Risen on James Risen

With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterlingthe situation of James Risen is in limbo.  In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source. 

19484530Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT.  As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).

Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others.  The segment explains and situates the controversy, including its current status under President Obama.  It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted." 

The entire segment is definitely worth watching:




Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:

AMY GOODMAN: So, you’re covering the very people who could put you in jail.

JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.

A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here).  One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.

For ConLawProfs teaching First Amendment, these "sources" could be well-used.

October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Daily Videos: "Citizen Four" and Edward Snowden Interviews

With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.

First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.



Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:



October 14, 2014 in Current Affairs, Due Process (Substantive), Executive Authority, Film, First Amendment, Foreign Affairs, International, News, Speech, Theory, War Powers, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 23, 2014

New Jersey Supreme Court Finds Constant GPS Monitoring of Sex Offender Unconstitutional as Ex Post Facto

In a closely divided opinion in Riley v. New Jersey State Parole Board, the New Jersey Supreme Court has found that its Sex Offender Monitoring Act (SOMA), passed in 2007, violates the prohibition on  ex post facto laws under both the New Jersey and United States Constitutions when applied to a person whose crime was committed in 1986 and was released from prison not under any type of parole supervision.

George Riley, who is now 81 years of age, argued that the monitoring constituted punishment, rather than simply civil consequences. The majority of the court found that SOMA was penal in nature: it "looks like parole, monitors like parole, restricts like parole, serves the general purpose of parole, and is run by the Parole Board. Calling this scheme by another name does not alter its essential nature."

OM210_Final-2The majority also discussed the particulars of the GPS monitoring: the device combines the transmitter and tracking device into a single ankle bracelet that Riley experiences as heavy and causes pain when he sleeps; the device identifies Riley as a sex offender "no less clearly than if he wore a scarlet letter"; the device transmits prerecorded messages while Riley is in public; Riley must be "tethered" to an electrical outlet for one or two hours every sixteen hours and cannot be out of range of the GPS receiver; and the wearing of the GPS is not reviewable under SOMA.

The majority stressed that Riley was not otherwise subject to probation and parole, but had completed his sentence, thus distinguishing his situation from some of the other cases that had considered the GPS monitoring issue.  However, the majority did note that "North Carolina Supreme Court in 2010 upheld against an ex post facto challenge a statute that provided for GPS monitoring of sexual offenders, regardless of whether the offenders had completed their sentences." 

Importantly, the majority applied United States Supreme Court precedent in analyzing whether the New Jersey statute was punitive and specifically stated that the "New Jersey Ex Post Facto Clause is interpreted in the same manner as its federal counterpart."  Thus, the state may clearly seek United States Supreme Court review of the state supreme court's holding in Riley. Whether or not it will is uncertain, but the division on the New Jersey Supreme Court as well as divisions among state courts may tip the balance toward asking the United States Supreme Court for review.

[image via]

September 23, 2014 in Courts and Judging, Criminal Procedure, Opinion Analysis, Sexuality, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2014

McCutcheon and Collins on McCutcheon at Cato Today

At the Cato Institute in Washington D.C. and live-streaming today at noon (EST), there's a discussion featuring Shaun McCutcheon - - - millionaire, plaintiff, and now author of Outsider Inside the Supreme Court: A Decisive First Amendment Battle- - - and Professor Ron Collins - - - First Amendment scholar and author of When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

They will be joining others to discuss the Court's decision this Term in McCutcheon v. FEC and the future of campaign finance under the First Amendment.

More information here.

June 18, 2014 in Campaign Finance, Cases and Case Materials, Conferences, First Amendment, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, May 15, 2014

Academic Freedom in Kansas

Prompted by an incident last September involving the tweet of a journalism professor at the University of Kansas linking the NRA's Second Amendment advocacy to a gun shooting that left thirteen people dead - - - and the university's strong reaction to it - - - the Kansas Board of Regents engaged in a reconsideration of its "social media" policy.

An amended policy has finally been adopted.

It includes suggestions of a workgroup emphasizing academic freedom and the First Amendment. 

LogoAdditionally, the new policy also attempts to digest the current state of First Amendment law:

3.  The United States Supreme Court has held that public employers generally have authority to discipline their employees for speech in a number of circumstances, including but not limited to speech that:

i.  is directed to inciting or producing imminent violence or other breach of the peace and is likely to incite or produce such action;

ii.  when made pursuant to (i.e. in furtherance of) the employee’s official duties, is contrary to the best interests of the employer;

iii.  discloses without lawful authority any confidential student information, protected health care information, personnel records, personal financial information, or confidential research data; or

iv.  subject to the balancing analysis required by the following paragraph, impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, impedes the performance of the speaker’s official duties, interferes with the regular operation of the employer, or otherwise adversely affects the employer's ability to efficiently provide services.

In determining whether an employee’s communication is actionable under subparagraph iv, the interest of the employer in promoting the efficiency of the public services it performs through its employees must be balanced against the employee’s right as a citizen to speak on matters of public concern.

While the policy may be a fair attempt to articulate Garcetti v. Ceballos, such an articulation does little to clarify the rights of publicly employed academics to speak - - - on social media or otherwise - - - about controversial issues.  The current case before the United States Supreme Court, Lane v. Franks, is not likely to address the broader issues.  

Returning to the journalism professor's tweet, now that there is an amended policy, is it any more clear that he could (or could not) be disciplined?  Or will the policy merely chill speech?


May 15, 2014 in Current Affairs, First Amendment, Teaching Tips, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

Daily Read: Deven Desai on Data Hoarding and Associational Freedom

"The amount of data available to law enforcement creates a type of honey pot—a trap that lures and tempts government to use data without limits."  What should the constitutional limits be?  And what is their source?  In a new article, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, available on ssrn (and forthcoming in Notre Dame Law Review) Law Prof Deven Desai  (pictured) argues that constitutional protections for association - - - rooted in the Fourth Amendment as well as the First - - - is a method for disciplining governmental access to both forward and backward-looking surveillance in our current age of "data hoarding."

Deven_desai-tu-websiteDesai argues:

The mechanisms for information gathering have taken different forms at different times in history, but regardless of the precise method or when the acts occur, we can see the goal: suppression of association. Mail has been read, student speech and political actions watched, library records obtained, membership in the Communist Party scrutinized, a list of individuals to detain in case of a national security emergency created, a fifteen year program to gather information about “the Communist Party, the Ku Klux Klan, antiwar groups, civil rights groups, women’s rights groups, and gay rights groups” created, and civil rights leader Martin Luther King threatened depending on various perceived threats and surveillance programs. These practices now include the FBI’s gathering of publicly available information “directly,” through third parties, or if handed over “voluntarily” by third parties.  The NSA’s recent activities map to the same behaviors that threaten and attack associational freedom. The NSA has targeted online activities of alleged Muslim radicalizers—those who offer troubling speeches—to secure information, such as about viewing pornography online, to discredit or embarrass the speakers. That tactic is not about law enforcement. Just as those in power have gone after the Democratic-Republican Societies, war protestors, civil rights activists, and others questioning the government, the tactic is about intimidation and suppression. One might try and argue that all this activity is only for national security and anti-terror investigations and thus permitted under current laws. But NSA activities have not been cabined to national security interests. The NSA is not allowed to spy on domestic targets. It has done so anyway. The NSA’s “Associational Tracking Program” has collected purely domestic communication information including from and to whom a call is made, the length of the call, and when the call is made, on a daily basis for later analysis by the NSA. This data has come directly from telecommunication providers such as Verizon, which complied with a court order. 165 In addition, the NSA has hacked telecommunication lines to gain access to communications and metadata passing through Google and Yahoo data centers.

[footnotes omitted].

Ultimately, Desai contends that "pervasive surveillance turns us into sheep."  But the First Amendment has not been sufficient to protect against surveillance because a "mypoic" view of the First Amendment as requiring expressive speech misses the associational aspects at stake.  Additionally, the associational aspects of the Fourth Amendment are often neglected, but should be considered "core."

Given the continuing revelations about widespread surveillance, Desai's intervention and suggested reorientation of doctrine is certainly worth a serious read.

April 7, 2014 in Association, First Amendment, Fourth Amendment, Interpretation, Privacy, Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, April 6, 2014

NSA Documents Database

Need to find a particular document or search for a particular name in the trove of items made available from the National Security Agency?  Or just want to look around?

The ACLU now has a handy database, available here.

520px-Old_Lady_with_Magnifying_Glass_LACMA_51.38.14As the announcement explains:

This tool will be an up-to-date, complete collection of previously secret NSA documents made public since last June. The database is designed to be easily searchable – by title, category, or content – so that the public, researchers, and journalists can readily home in on the information they are looking for.

We have made all of the documents text-searchable to allow users to investigate particular key words or phrases. Alternatively, the filter function allows users to sort based on the type of surveillance involved, the specific legal authorities implicated, the purpose of the surveillance, or the source of the disclosure. For example, you can have the database return all documents that both pertain to "Section 215" and "Internal NSA/DOJ Legal Analysis."

An important tool for scholars and advocates. 

[image via]


April 6, 2014 in Current Affairs, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, March 24, 2014

Illinois Supreme Court: State's Eavesdropping Statute Unconstitutional

Can a government criminalize the recording of conversations absent consent without violating the First Amendment, or perhaps the Due Process Clause?

In its opinion in People v. Clark, and a companion opinion in People v. Melongo, the Illinois Supreme Court held the state's statutory criminalization of eavesdropping unconstitutional.

Both cases relied upon ACLU v. Alvarez, in which the Seventh Circuit enjoined the statute from being applied to a Chicago police accountability program.

In Clark, the Illinois Supreme Court held that 720 ILCS 5/14-2(a)(1)(A), the eavesdropping statute, violated the First Amendment's overbreadth doctrine "because a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep."  The court recognized the ubiquity of smartphones and other recording devices.


Importantly for the court, the statute criminalized a "whole range of conduct involving the audio recording of conversations that cannot be deemed in any way private."  It gave these examples:

  1.  a loud argument on the street;
  2. a political debate in a park;
  3. the public interactions of police officers with citizens (if done by a member of the general public); and
  4. any other conversation loud enough to be overheard by others whether in a private or public setting.

Although the opinion in Clark is a brief 9 pages, it's substantial and well-reasoned.

Equally brief and well-reasoned, although somewhat more complex, is the companion opinion in Melongo.  The state argued that Melongo's First Amendment claim was not cognizable on appeal, unlike the Due Process claim, and that the constitutional claims were inconsistent with her defense at trial.  Nevertheless, the court found that the statutory provision was unconstitutional under the First Amendment for the same rationale as in Clark.  Melongo also raised a constitutional claim to the "publishing provision" of the statute, which further criminalizes the "publishing" of any recording made without consent.  The court similarly found this provision overbroad.

It will be interesting to see how the Illinois legislature responds.

 [image via]

March 24, 2014 in Criminal Procedure, Due Process (Substantive), Fifth Amendment, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, March 10, 2014

Daily Video: Edward Snowden Speaks

"I took an oath to support the Constitution, and I felt the Constitution was violated on a massive scale," Edward Snowden said in his video conference delivered from his asylum in Russia to the South By Southwest (sxsw) Interactive Festival. 

Here's the video:


 Some good analysis at LATimes.  [to be updated]

March 10, 2014 in Current Affairs, First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

FISC Rejects Government Motion to Keep Telephony Records More Than Five Years


Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an opinion today Foreign Intelligence Surveillance Court Judge Reggie Walton denied the Government's motion to amend a previous order requiring  "telephony metadata produced in response to the Court’s orders be destroyed within five years."  The Government argued that it should be allowed to retain data beyond five years because destruction of the metadata “could be inconsistent with the Government’s preservation obligations in connection with civil litigation pending against it.”

In denying the motion without prejudice, the judge reasoned that FISA’s minimization requirements are not superseded by the common-law duty to preserve evidence.  The Government's presumed "fear that the judges presiding over the six pending civil matters may sanction the government at some point in the future for destroying BR [telephony] metadata that is more than five years old," was, the judge stated, "far-fetched."  The judge's dismissal was without prejudice to a subsequent motion "providing additional facts or legal analysis, or seeking a modified amendment to the existing minimization procedures."

Taking the motion to dismiss at face value, it seems that the Government was actually worried that it might be sanctioned in civil trials if it destroyed evidence after five years and wanted a ruling from the court.


A more nefarious interpretation would be that the Government used the excuse of civil trials to attempt to extend the time it could keep telephony metadata, but was thwarted by the court.

And an even more nefarious interpretation would be that the Government wanted the "cover" of a court opinion to destroy telephony metadata that might be beneficial to plaintiffs in pending civil matters.

And an even more nefarious interpretation?   There are sure to be more speculations.

[image via]

March 7, 2014 in Cases and Case Materials, Executive Authority, Fourth Amendment, Opinion Analysis, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 5, 2014

Government Dismisses Bulk of Indictment Against Barrett Brown

In the controversial indictment by federal government of Barrett Brown (pictured below), one of the most startling First Amendment issues was the protection of "speech" consisting of hyper-linking.

Brown described himself in his court papers as "a thirty-two year old American satirist, author and journalist,"  who "founded Project PM, a collaborative web publication whose contributors conduct research using publically available materials such as information obtained from leakers and hackers" and that "came to focus on the private military and intelligence contracting industry. This transition came amidst a federal crackdown on leaks escaping Washington and an attempt to prosecute whistleblowers."  The indictment focused on the posting of a hyperlink to files from a third party, Stratfor, Strategic Forecasting, Inc., a "global intelligence" company.

Brown's  motion to dismiss the indictment included First Amendment arguments as well as arguments that his conduct did not satisfy the elements of the crime. 

Today the United States Government moved to dismiss  its own indictment, counts 1, and 3-12 - - - all the counts reliant on the hyper-linking.


This leaves count 2 of the indictment: possession of stolen credit card account numbers and their CVVs (Card Verification Values), a count that Brown's own Motion to Dismiss similarly did not address.

This also leaves two other indictments against Brown. 

[image via]


March 5, 2014 in Criminal Procedure, First Amendment, Speech, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, February 28, 2014

Daily Video: A Camera and Protest in the United States Supreme Court

Here's the video:




Commentary available from Reuters  and NYT.

Our discussion of the oral arguments in McCutcheon and its relationship to Citizens United is here.

February 28, 2014 in Campaign Finance, Film, First Amendment, Speech, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

Ninth Circuit Orders "Innocence of Muslims" Video Taken Down

The intersection of First Amendment and copyright is not always well-marked and it is certainly murky in the Ninth Circuit's divided opinion in Garcia v. Google, involving the controversial "Innocence of Muslims" video posted on YouTube (owned by Google, Inc.). 

Writing for the majority, Chief Judge Alex Kozinski sets the scene:

While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”

The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

The copyright issue seems to be whether an actor can copyright her performance and how issues such as fraud and work-for-hire fit into such an analysis.  Yet even if Garcia prevails in her copyright claim, a First Amendment issue arises with the relief - - - a preliminary injunction.  The majority gives short shrift to Google's First Amendment argument raising such an argument:

The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement. Cf. Eldred v. Ashcroft, 537 U.S. 186, 219–220 (2003). Because Garcia has demonstrated a likelihood of success on her claim that “Innocence of Muslims” infringes her copyright, Google’s argument fails. The balance of equities therefore clearly favors Garcia and, to the extent the public interest is implicated at all, it, too, tips in Garcia’s direction.

(Recall that the Court in Eldred upheld the Sonny Bono Copyright Term Extension Act and found copyright generally consistent with the First Amendment).

Dissenting, Judge N.R. Smith argued that the First Amendment should be weighed heavily as the public interest militating against a preliminary injunction - - - but only because he believes there is no statutory claim for copyright infringement:

The public’s interest in a robust First Amendment cannot be questioned. See Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). Opposite this vital public interest is Garcia’s allegation of copyright infringement. Properly enforcing the Copyright Act is also an important public interest. See Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1197 (9th Cir. 2011). Indeed, if Google were actually infringing Garcia’s copyright, the First Amendment could not shelter it. See Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003).

But the case at bar does not present copyright infringement per se. Instead (in an unprecedented opinion), the majority concludes that Garcia may have a copyright interest in her acting performance. Maj. op. at 10. As a result, Google’s contention, that issuing a preliminary injunction on these facts may constitute a prior restraint of speech under the First Amendment, identifies an important public interest.

As Judge Kozinski's majority opinion notes, this is "a troubling case."  But while the majority is troubled by the deception of and possible harm to Garcia, others are more troubled by the First Amendment implications of ordering any material removed from YouTube.  YouTube has complied, but has availed itself of the oft-suggested remedy of "more speech" as in the image below:

Screen Shot 2014-02-27 at 12.17.45 PM

February 27, 2014 in Courts and Judging, Current Affairs, Film, First Amendment, Opinion Analysis, Religion, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Calls for Congressional Action on Surveillance: "The Day We Fight Back"

Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.

The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act).  The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues.  The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."

The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.


While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments.  Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.

February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

Daily Read: The Intercept on the NSA and Targeted Killing

A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today.  It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.


Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."

The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program.  It ends by implicating President Obama:

Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.

And Obama may even think it's one a "strong suit" of his.

This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.

February 10, 2014 in Congressional Authority, Executive Authority, Foreign Affairs, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)