Tuesday, October 1, 2013
In an unanimous opinion in Marceaux v. Lafayette City-Parish Consolidated Government, a panel of the Fifth Circuit reversed and remanded the district court judge’s protective order requiring that the Plaintiffs, current and former police officers in the City of Lafayette, Louisiana, “take down” their website - - - "http://www.realcopsvcraft.com" - - - used to communicate their cause. (Note: the website is presently not operable).
The underlying lawsuit by the Plaintiff police officers claims that the government Defendants sought to “prevent police officers from reporting certain civil rights abuses and corruption” within the police department and “retaliated against them for objecting to these practices.” The website had “an image of the Lafayette Police Chief, a party in this suit; excerpts of critical statements made in the media concerning the Lafayette PD Defendants; certain voice recordings of conversations between the Officers and members of the Lafayette Police Department; and other accounts of the Lafayette PD Defendants’ alleged failings.” The website seemed to have been once owned by the Plaintiffs’ attorneys, but they “eventually transferred ownership of the website” to one of the police officers.
The appellate court rightly viewed the district judge’s order to cease the website as a prior restraint, but sought to “balance the First Amendment rights of trial participants with our affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity,” citing the classic case of Sheppard v. Maxwell, 384 U.S. 333 (1966).
In this civil case, theFifth Circuit, however held that there was not sufficient evidence to "establish a nexus between the comments and the potential for prejudice to the jury venire through the entirety of the Website." The panel found that ordering a removal of the website was not sufficiently “narrowly tailored” to "excising maters with a sufficient potential for prejudice to warrant prior restraint."
But the panel stated it did not intend to "tie the hands of the district court" in addressing some of the content of the website. As to the specific content of certain recordings made by the Plaintiffs and placed on the website, the panel did discuss the "ethics" of this, noting both the that ABA position is that a lawyer who records the conversation of another does not necessarily violate the Model Rules of Professional Conduct AND that the recordings were not made by an attorney. Thus, the district judge's conclusion that the recordings had to be omitted from the website because they were "unethically obtained" was disapproved.
This rather brief - - - 12 page - - - opinion is well reasoned and would make an interesting class exercise for First Amendment, especially should the website "go live" again.
[image circa 1900 via]
The memo from the Office of Management and Budget in the Executive is here.
The White House website places the blame on Congress:
Neither the United States House of Representatives nor United States Senate website addresses the issue. The USCourts.gov website is also silent on the issue.
Sunday, September 29, 2013
It's worth comparing two views of the National Security Administration (NSA) and its searches.
First, take a look at the views of Amy Zegart, the co-director of Stanford University's "Center for International Security and Cooperation." Zegart and other scholars participated in a "rare briefing" at NSA to consider "cybersecurity, the plummeting public trust in the agency, its relationship with Congress and how to rebuild the agency’s reputation and rethink its program operations." Zegart's interview is mostly sympathetic to NSA concerns, but she does say this:
They definitely wanted us to believe that what they are doing is lawful and effective. I believe the lawful part; I’m not so sure about the effective part. I think they haven’t looked hard enough about what effective means. Do they know it when they see it? And who’s to judge?
Nevertheless, it's a rather sharp contrast with a NYT article, co-authored by James Risen (recall his lititgation asserting a reporter's First Amendment right to protect sources) and Laura Poitras (recall her involvement in the Snowden revelations) that discusses wide ranging collection of data and metadata. They often rely on anonymous sources discussing classified information. Perhaps most startling is this passage in the article's last paragraph, quoting from a 2011 memo, that said even
after a court ruling narrowed the scope of the agency’s collection, the data in question was “being buffered for possible ingest” later.
Sunday, September 15, 2013
The image is from an architectural brochure linked in Glenn Greenwald's article this morning in The Guardian, "Inside the mind of NSA chief Gen. Keith Alexander," subtitled "A lavish Star Trek room he had built as part of his 'Information Dominance Center' is endlessly revealing."
Worth a look - - - and read - - - for anyone working on national security, state secrets, or surveillance issues.
Saturday, August 10, 2013
As we think about surveillance of electronic communication in the United States, it's worth (re)considering China's surveillance and censorship of electronic interactions amongst its own citizens. Jason Ng's new book, Blocked on Weibo: What Gets Suppressed on China’s Version of Twitter (and Why) promises to be an engaging exploration of the multi-layered relationships between the Chinese government and "netcitizens" and - - - importantly - - - corporations.
Here's Jason Ng in conversation with Sharon Hom, the Executive Director of Human Rights in China.
Of special interest is the screen shot showing the search for the phrase "constitutional democracy" (at about 1:36). The discussion by Ng and Hom of creative work-arounds and corporate "tolerance" is also worth a listen.
Thursday, January 31, 2013
Law students (and future law students) are watching this on The Colbert Report:
(h/t Chase Vine)
Wednesday, January 23, 2013
In its unanimous twenty page opinion in Doe v. Prosecutor, Marion County today, the Seventh Circuit concluded that the Indiana statute restricting registered sex offenders from social media is unconstitutional.
At issue was Indiana Code § 35-42-4-12, prohibiting sex offenders from “knowingly or intentionally us[ing]: a social networking web site”1 or “an instant messaging or chat room program” that “the offender knows allows a person who is less than eighteen (18) years of age to access or use the web site or program.
Recall that the district judge rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open, and reasoning that many "sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims."
Reversing, the Seventh Circuit found that the statute was not narrowly tailored to serve the state’s interests, but "broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors." The opinion stressed that there were many alternative - and more specific - means by which the state could accomplish its purpose.
The court made clear that the problem was the statute's overbreadth with its caveat:
this opinion should not be read to affect district courts’ latitude in fashioning terms of supervised release, 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to a term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment[.]”), or states from implementing similar solutions. Our penal system necessarily implicates various constitutional rights, and we review sentences under distinct doctrines.
Additionally, while subsequent Indiana statutes might meet a narrowly tailored requirement, "the blanket ban on social media in this case regrettably" did not.
Thursday, January 3, 2013
The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act and California’s Proposition 8 cases," or "DOMPRP8."
The disclaimer is worth a look:
Disclaimer: We have provided a link to this site because it has information that may be of interest to our users. The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.
Wednesday, December 26, 2012
An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar. The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."
The newspaper's actions come in the wake of renewed conversations regarding gun control and ownership. However, the disclosure of information using google maps is not new. Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage. (Recall Prop 8 is now before the United States Supreme Court.)
While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant. In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state. Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous. The names were thus disclosed.
State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records. The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.
[image screenshot via]
Thursday, December 20, 2012
The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."
Any mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:
As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.
In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.
Professor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation. In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts." He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists. Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence." Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.
Ford's arguments about the social science literature, however, are exceedingly well-taken. In sum, it is inconclusive at best. Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:
The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.
Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games. This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.
[image: Mortal Kombat via]
Monday, November 26, 2012
The energy surrounding the Court's anticipated grant of certiorari in at least one of the same-sex marriage cases - - - either one or more of the DOMA cases or the Prop 8 case (Perry v. Brown) - - - raises yet again the question of public access to Supreme Court oral arguments. While these cases are only the latest, they perhaps have special resonance given the Court's quelling of the planned broadcast of the Proposition 8 trial in federal court on dubious procedural grounds.
Prof Lisa McElroy's article, Cameras at the Supreme Court: A Rhetorical Analysis, forthcoming in BYU Law Review and available in draft on ssrn, argues persuasively for the broadcast of Supreme Court proceedings, based on the public's interest in accessing its government, including the judicial branch. The contribution of McElroy's excellent piece, however, is that it is not simply an argument, but an engagement with the "stories" the Court - - - and its Justices - - - tell about the Court and its lack of cameras. McElroy writes that there
can be no doubt that the Court has sincere concerns when it comes to granting public access to the Supreme Court, especially through broadcasting of official Court work. Among them are a desire for day-to- day privacy, a concern that allowing cameras or internet streaming will somehow damage the public’s perception of the Court, fears that broadcasting could somehow subject the Court or the Justices personally to mockery, and concerns that funny or less-than-devout comments made during oral argument might end up on the Internet or on programs like Jon Stewart. It is concerned that televising Supreme Court proceedings would change the very nature of those proceedings.
But, she continues,
the question we must ask is whether these concerns add up to a story with a factual basis, or whether they are a fairy tale that the Justices tell Americans–perhaps even themselves. Are the Court’s concerns borne out objectively, or are they instead a part of the story the institution has created (consciously or unconsciously) to justify its refusal to allow the American people virtual and physical access? Are inaccessibility, grandeur, and intimidation the only paths to legitimacy and respect?
Additionally, McElroy discusses whether the members of the Court are simply uncomfortable with technology, or jealous of their privacy (an increasingly untenable rationale), or worried about security, or not interested in change.
For any scholar or student considering issues of public access to Court proceedings, McElroy's article is a treasure as well as a treasure trove.
Thursday, November 15, 2012
Is there an analogy between the discovery and publication of list of videos that then-nominee for Justice on the Supreme Court Robert Bork checked out from a local DC store and the discovery and discussion of the gmail account of ex-CIA chief David Petraeus? Are both invasions of privacy that provoke public outrage and should lead to Congressional action to protect individual rights?
In describing the extent of the issue, he notes that "in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose 26 percent in the latest six-month reporting period, to nearly 8,000; the company said that it complied with 90 percent of the requests, either fully or partially."
Maas also quotes Robert Bork, not known as a friend of civil liberties, as resolutely ambivalent: "Is there too much intrusion into private lives? I can't answer that very well, because sometimes there is, sometimes there isn't."
The piece is worth a read for anyone considering how our constitutional notions of privacy shift and change.
[image: "Eavesdropping" by Vittorio Reggianini (1858–1938) via]
Wednesday, October 24, 2012
A "daily read" worth watching: Richard Posner (pictured) presented his lecture "How I Interpret Statutes and the Constitution" via video for Columbia Law Federalist Society's Madison Lecture Series on Judicial Engagement.
Posner speaks about originalism and living constitutionalism, proposing his own "middle-ground theory of interpretation that emphasizes common sense and analytic simplicity."
Friday, October 5, 2012
Being argued today in the Third Circuit is George v. TSA, a case seemingly about Arabic language flash cards as a rationale for airport detention by the TSA and Philadelphia police officers with obvious First Amendment implications.
The government has appealed from the denial of its motion to dismiss.
Plaintiff Nick George is represented by the ACLU, and the organization not only has an informative case page with documents, but an effective video:
[image of flash cards for sale at Amazon via]
Sunday, June 24, 2012
In her 19 page opinion in Doe v. Prosecutor, Marion County, Judge Tanya Walton Pratt of the Southern District of Indiana upheld the state's statute prohibiting some sex offenders from accessing social media.
She rejected Doe's First Amendment challenge, concluding the statute was sufficiently tailored and left ample alternatives of communication open.
The judge rejected the claim that the use of Facebook for the purposes this statute is meant to foreclose are already criminalized by another statute. Instead, she seemingly shifted the burden to Doe to suggest a more narrow statute that would achieve the state's goals:
That said, Mr. Doe’s argument is important for what it does not say. Tellingly, Mr. Doe never furnishes the Court with workable measures that achieve the same goal (deterrence and prevention of online sexual exploitation of minors) while not violating his First Amendment rights. Here, the statute bars a subset of registered sex offenders from visiting a subset of web sites that minors (and the public at large) use with regularity, which include Facebook, Twitter, Google Plus, various chat rooms, and various instant messaging programs. In other words, Mr. Doe is only precluded from using web sites where online predators have easy access to a nearly limitless pool of potential victims.
She then added her own rationale:
Given the high recidivism rates, it is obvious that many sex offenders have difficulty controlling their internal compulsions to commit these crimes. It stands to reason that many sex offenders might sign up for social networking with pure intentions, only to succumb to their inner demons when given the opportunity to interact with potential victims.
Regarding alternatives for communication, she readily conceded that
social networking is a prominent feature of modern-day society; however, communication does not begin with a “Facebook wall post” and end with a “140-character Tweet.”
But the list she provides of other "myriad feasible alternative forms of communications" may strike avid facebook users as odd: "the ability to congregate with others, attend civic meetings, call in to radio shows, write letters to newspapers and magazines, post on message boards, comment on online stories that do not require a Facebook (or some other prohibited account), email friends, family, associates, politicians and other adults, publish a blog, and use social networking sites that do not allow minors (e.g. LinkedIn and a number of other sites which allow only adults)." The LinkedIn exemption is interesting. While the statute itself seems unclear, and the judge admits that there was "some confusion on this point during the briefing," she concluded that "it is seemingly clear that Mr. Doe can use the professional networking web site LinkedIn."
According to an AP report by Charles Wilson, the ACLU will appeal.
Tuesday, May 8, 2012
The Seventh Circuit in ACLU v Alvarez has instructed the district court to enjoin Illinois broad "eavesdropping statute" from being applied to a "police accountability" recording program in Chicago.
Illinois has one of the most severe wiretapping statutes under which, as the Seventh Circuit noted, might allow "silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment."
The majority of the panel phrased the question as "whether the First Amendment prevents Illinois prosecutors from enforcing the eaves- dropping statute against people who openly record police officers performing their official duties in public." The American Civil Liberties Union of Illinois (“ACLU”) challenged the statute as applied to the organization’s Chicago-area “police accountability program,” which "includes a plan to openly make audio- visual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders."
The majority reasoned that the
the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to content- neutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s free- speech and free-press guarantees.
The majority supported this conclusion in a lengthy and closely argued analysis, peppered with scholarly citations as well as cases. It noted that the "First Circuit agrees," citing and discussing Glik v. Cunniffe.
Posner's dissent was predictable given his stance during the oral arguments in which he expressed disdain for a "civil rights" group ever having anything useful to say regarding police practices. He highlighted the procedural posture of the case (a preliminary injunction) and the presumed constitutionality of statutes unless a judge has a "gut feeling" regarding the statute. On the substance, he stressed the privacy interests of the persons engaged with police officers.
[Chicago Police Officers on horeseback near "El" via]
Tuesday, April 3, 2012
Awaiting Governor Jan Brewer’s signature is Arizona HB-2549 , a bill that “updates” the previous telephone harassment statute to apply to the internet. The bill applies to obscene, lewd, profane language as well as the suggestion of any lascivious act.
The bill’s text, which would be codified as Arizona Revised Statutes §13-2916, entitled "Use of an electronic or digital device to terrify, intimidate, threaten, harass, annoy or offend; classification; definition", with the updated provisions IN ALL CAPS, provides:
A. It is unlawful for any person, with intent to terrify, intimidate,threaten, harass, annoy or offend, to use ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person. It is also unlawful to otherwise disturb by repeated anonymous ELECTRONIC OR DIGITAL COMMUNICATIONS the peace, quiet or right of privacy of any person at the place where COMMUNICATIONS were received.
B. Any offense committed by use of AN ELECTRONIC OR DIGITAL DEVICE as set forth in this section is deemed to have been committed at either the place where the COMMUNICATIONS originated or at the place where the COMMUNICATIONS were received.
C. Any person who violates this section is guilty of a class 1 misdemeanor.
D. FOR THE PURPOSES OF THIS SECTION, "ELECTRONIC OR DIGITAL DEVICE" INCLUDES ANY WIRED OR WIRELESS COMMUNICATION DEVICE AND MULTIMEDIA STORAGE DEVICE.
The First Amendment concern is that the statute is overbroad. It seems the new statute would apply to general communication on web sites, blogs, listserves and other Internet communication. Translated from the telephone to the Internet, the analogies are imperfect at best: a comments section of a blog, a youtube video, a facebook posting, or any number of Internet “communications" are simply not like a one-to-one telephone call.
Recent First Amendment cases such as US v. Stevens have declined to extend obscenity, and the Internet, unlike the telephone, is not a "regulated media."
If Governor Brewer signs the bill, a First Amendment challenge will surely follow.
[image, telephone circa 1931, via]
Friday, February 17, 2012
A broad statute banning persons convicted of certain sex offenses from accessing "social media" has been held unconstitutionally overbroad under the First Amendment in Doe v. Jindal, by Judge Brian Jackson, Chief Judge of the Middle District of Louisiana.
Louisiana Revised Statute §14:91.5, passed in 2011, provides that the "using or accessing of social networking websites, chat rooms, and peer-to-peer networks by a person who is required to register as a sex offender and who was previously convicted" of specified crimes involving minors. The penalties are severe:
(1) Whoever commits the crime of unlawful use or access of social media shall, upon a first conviction, be fined not more than ten thousand dollars and shall be imprisoned with hard labor for not more than ten years without benefit of parole, probation, or suspension of sentence.
(2) Whoever commits the crime of unlawful use or access of social media, upon a second or subsequent conviction, shall be fined not more than twenty thousand dollars and shall be imprisoned with hard labor for not less than five years nor more than twenty years without benefit of parole, probation, or suspension of sentence.
The federal judge first found that John Doe and James Doe had standing to challenge the act. In construing the overbreadth challenge under the First Amendment, the judge looked to the Court's recent pronouncements in US v. Stevens, and similarly found that the statutory ban reached a substantial number of unconstitutional applications. The judge noted that the statute reached many commonly read news and information sites and interpreted the offense to be completed once a user accessed the website, whether intentionally or by mistake. The judge found the definition of "chat room" particularly problematic, as its ban would reach "the website for this Court."
While the state's interest in protecting children was undoubtedly "legitimate," the statute was not sufficiently precise or narrow.
As Louisiana officials consider an appeal to the Fifth Circuit, the legislature might also consider statutory revision.
[image: "Facebook man" via]
Sunday, January 29, 2012
Need a bit of humor? The latest episode of The Daily Show had some provocative comedy related to constitutional law developments earlier this month.
On the FCC v. Fox oral arguments, Stewart made somewhat implicit comparisons between sex and violence.
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|A Love Supreme - Profanity & Nudity on TV|
And on the Court's decision in Hosana-Tabor, he made some very explicit comparisons between Lutheran synod law and Moslem Shari'a law.
|The Daily Show With Jon Stewart||Mon - Thurs 11p / 10c|
|A Love Supreme - Religious Freedom vs. Americans with Disabilities Act|
Friday, January 20, 2012
In case you missed retired Justice JP Stevens on The Colbert Report:
|The Colbert Report||Mon - Thurs 11:30pm / 10:30c|
|Colbert Super PAC - John Paul Stevens|