Saturday, August 16, 2008
The Eighth Circuit has affirmed a lower court dismissal of a case brought against school officials and a Minnesota county by high school student David Riehm and his mother Colleen. The student had turned in several creative writing assignments which caused his teacher concern, and the third eventually resulted in a court's order that the student be psychiatrically examined. He and his mother sued, "seeking damages on the grounds that David’s detention violated his First Amendment right to free speech and Fourth Amendment right to be free from unreasonable seizures and Colleen’s Fourteenth Amendment right to familial integrity, and that the county’s failure to pay David’s medical bills violated Colleen’s Fourteenth Amendment substantive due process right, as well as Minnesota state law."
Said the appellate court, "As a preliminary matter, we find that the Riehms have not presented sufficient evidence regarding any First or Fourth Amendment violations by Cook County or by Diercks’s supervisor, Ann DeBevec. The county cannot be held vicariously liable for its agents’ actions under § 1983....While David lacked the history of violent tendencies we found relevant to the true threat analysis in Pulaski, the other factors considered in our analysis establish that David’s third essay qualifies as a true threat. While the author of the threat in Pulaski did not give his letter to the subject of the threat, David provided his essays directly to Mershon, and he submitted them on the school’s campus....His third essay went significantly farther and expressed, in graphic terms, a plan to kill her and himself. We conclude that as in Pulaski, David’s third essay constitutes a true threat and is not protected under the First Amendment."
Read the entire decision here. The case is Riehm v. Engelking, decided August 15, 2008.
Friday, August 15, 2008
Don't run with or on Jackson Browne is the message Mr. Browne has for Presidential candidate John McCain. The singer has sued Senator McCain, the Republican National Committee, and the Ohio Republican Committee over their use of his song "Running on Empty" in a campaign ad, saying that viewers might think Mr. Browne endorses Senator McCain for President, and that such an endorsement runs contrary to his traditional views. Apparently the ad has now been pulled, based on the Browne complaint. Read more here in an AP story, here in a BBC story, and here in a Los Angeles Times blogpost.
Patrick Garry and Candice Spurlin, University of South Dakota Law School, have published "The Effectiveness of Media Rating Systems in Preventing Children's Exposure to Violent and Sexually Explicit Media Content: An Empirical Study," in volume 32 of the Oklahoma City University Law Review (2007).
Here is the abstract.
This article states that most forms of electronic media entertainment now carry some sort of voluntary rating system. Television, motion pictures, musical recordings, and video games are all subject to a self-imposed industry rating system. While these rating systems recognize that there is much media entertainment programming that is unsuitable for children; the imposition of these rating systems also serves a self-interest of the various media industries. By adopting some type of regulatory system, self-imposed though it may be, the media industry hopes to avoid or forestall more stringent or demanding governmental regulations.
The majority of parents strongly support the efforts of Congress to protect children from harmful and offensive entertainment speech. However, most efforts by Congress to regulate violent and indecent media programming are struck down by the courts as violating the First Amendment.
The study described in this article, although narrowly focused, suggests that the voluntary measures undertaken by the media are not nearly as successful in achieving their stated goals as might otherwise be claimed. The results of this empirical study indicate that children are indeed being exposed to various media products that, according to the rating system, are inappropriate for those children. Despite the media's continual promotion of its various rating systems, the present study suggests those systems may be ineffective at best. Moreover, the rating systems could actually cause harm in that as parents rely on them to prevent their children's exposure to unwanted media programming.
Download the paper from SSRN here.
Thursday, August 14, 2008
Second Circuit Reverses Ruling On Steinbeck Copyright: Restores Rights To Publisher and Heirs of Steinbeck's Widow
The Second Circuit has reversed a lower court ruling that awarded the copyright in a number of John Steinbeck's works to his surviving son and granddaughter, and restored them to the original holders, publisher Penguin and a number of other rights holders, including the heirs of Mr. Steinbeck's widow Elaine. Here's a story on the ruling from the AP.
The Second Circuit has reversed a lower court holding awarding a summary judgment to the plaintiffs, vacated an injunction to the defendants, and remanded the case to the lower court in Cartoon Network v. CSC Holdings.
In March 2006, Cablevision, an operator of cable television systems, announced the advent of its new "Remote Storage DVR System." As designed, the RS-DVR allows Cablevision customers who do not have a stand-alone DVR to record cable programming on central hard drives housed and maintained by Cablevision at a "remote" location. RS-DVR customers may then receive playback of those programs through their home television sets, using only a remote control and a standard cable box equipped with the RS-DVR software. Cablevision notified its content providers, including plaintiffs, of its plans to offer RS-DVR, but it did not seek any license from them to operate or sell the RS-DVR.
Plaintiffs, which hold the copyrights to numerous movies and television programs, sued Cablevision for declaratory and injunctive relief. They alleged that Cablevision's proposed operation of the RS-DVR would directly infringe their exclusive rights to both reproduce and publicly perform their copyrighted works. Critically for our analysis here, plaintiffs alleged theories only of direct infringement, not contributory infringement, and defendants waived any defense based on fair use.
Cable companies like Cablevision aggregate television programming from a wide variety of "content providers"-the various broadcast and cable channels that produce or provide individual programs-and transmit those programs into the homes of their subscribers via coaxial cable. At the outset of the transmission process, Cablevision gathers the content of the various television channels into a single stream of data. Generally, this stream is processed and transmitted to Cablevision's customers in real time. Thus, if a Cartoon Network program is scheduled to air Monday night at 8pm, Cartoon Network transmits that program's data to Cablevision and other cable companies nationwide at that time, and the cable companies immediately re-transmit the data to customers who subscribe to that channel.
Under the new RS-DVR, this single stream of data is split into two streams. The first is routed immediately to customers as before. The second stream flows into a device called the Broadband Media Router ("BMR"), which buffers the data stream, reformats it, and sends it to the "Arroyo Server," which consists, in relevant part, of two data buffers and a number of high-capacity hard disks. The entire stream of data moves to the first buffer (the "primary ingest buffer"), at which point the server automatically inquires as to whether any customers want to record any of that programming. If a customer has requested a particular program, the data for that program move from the primary buffer into a secondary buffer, and then onto a portion of one of the hard disks allocated to that customer. As new data flow into the primary buffer, they overwrite a corresponding quantity of data already on the buffer. The primary ingest buffer holds no more than 0.1 seconds of each channel's programming at any moment. Thus, every tenth of a second, the data residing on this buffer are automatically erased and replaced. The data buffer in the BMR holds no more than 1.2 seconds of programming at any time. While buffering occurs at other points in the operation of the RS-DVR, only the BMR buffer and the primary ingest buffer are utilized absent any request from an individual subscriber.
As the district court observed, "the RS-DVR is not a single piece of equipment," but rather "a complex system requiring numerous computers, processes, networks of cables, and facilities staffed by personnel twenty-four hours a day and seven days a week." To the customer, however, the processes of recording and playback on the RS-DVR are similar to that of a standard set-top DVR. Using a remote control, the customer can record programming by selecting a program in advance from an on-screen guide, or by pressing the record button while viewing a given program. A customer cannot, however, record the earlier portion of a program once it has begun. To begin playback, the customer selects the show from an on-screen list of previously recorded programs. The principal difference in operation is that, instead of sending signals from the remote to an on-set box, the viewer sends signals from the remote, through the cable, to the Arroyo Server at Cablevision's central facility. See id. In this respect, RS-DVR more closely resembles a VOD service, whereby a cable subscriber uses his remote and cable box to request transmission of content, such as a movie, stored on computers at the cable company's facility. But unlike a VOD service, RS-DVR users can only play content that they previously requested to be recorded.
Cablevision has some control over the content available for recording: a customer can only record programs on the channels offered by Cablevision (assuming he subscribes to them). Cablevision can also modify the system to limit the number of channels available and considered doing so during development of the RS-DVR.
In the district court, plaintiffs successfully argued that Cablevision's proposed system would directly infringe their copyrights in three ways. First, by briefly storing data in the primary ingest buffer and other data buffers integral to the function of the RS-DVR, Cablevision would make copies of protected works and thereby directly infringe plaintiffs' exclusive right of reproduction under the Copyright Act. Second, by copying programs onto the Arroyo Server hard disks (the "playback copies"), Cablevision would again directly infringe the reproduction right. And third, by transmitting the data from the Arroyo Server hard disks to its RS-DVR customers in response to a "playback" request, Cablevision would directly infringe plaintiffs' exclusive right of public performance. Agreeing with all three arguments, the district court awarded summary declaratory judgment to plaintiffs and enjoined Cablevision from operating the RS-DVR system without obtaining licenses from the plaintiff copyright holders.
We review a district court's grant of summary judgment de novo....It is undisputed that Cablevision, not any customer or other entity, takes the content from one stream of programming, after the split, and stores it, one small piece at a time, in the BMR buffer and the primary ingest buffer. As a result, the information is buffered before any customer requests a recording, and would be buffered even if no such request were made. The question is whether, by buffering the data that make up a given work, Cablevision "reproduce[s]" that work "in copies," 17 U.S.C. § 106(1), and thereby infringes the copyright holder's reproduction right....The district court mistakenly limited its analysis primarily to the embodiment requirement. As a result of this error, once it determined that the buffer data was "[c]learly . . . capable of being reproduced," i.e., that the work was embodied in the buffer, the district court concluded that the work was therefore "fixed" in the buffer, and that a copy had thus been made....In doing so, it relied on a line of cases beginning with MAI Systems Corp. v. Peak Computer Inc., 991 F.2d 511 (9th Cir. 1993). It also relied on the United States Copyright Office's 2001 report on the Digital Millennium Copyright Act, which states, in essence, that an embodiment is fixed "[u]nless a reproduction manifests itself so fleetingly that it cannot be copied." U.S. Copyright Office, DMCA Section 104 Report 111 (Aug. 2001) ("DMCA Report") (emphasis added), available at http://www.copyright.gov/reports/studies/dmca/sec-104-report-vol-1.pdf.
The district court's reliance on cases like MAI Systems is misplaced. In general, those cases conclude that an alleged copy is fixed without addressing the duration requirement; it does not follow, however, that those cases assume, much less establish, that such a requirement does not exist. Indeed, the duration requirement, by itself, was not at issue in MAI Systems and its progeny. As a result, they do not speak to the issues squarely before us here: If a work is only "embodied" in a medium for a period of transitory duration, can it be "fixed" in that medium, and thus a copy? And what constitutes a period "of more than transitory duration"?
The MAI Systems court referenced the "transitory duration" language but did not discuss or analyze it. The opinion notes that the defendants "vigorously" argued that the program's embodiment in the RAM was not a copy, but it does not specify the arguments defendants made. This omission suggests that the parties did not litigate the significance of the "transitory duration" language, and the court therefore had no occasion to address it. This is unsurprising, because it seems fair to assume that in these cases the program was embodied in the RAM for at least several minutes.
Accordingly, we construe MAI Systems and its progeny as holding that loading a program into a computer's RAM can result in copying that program. We do not read MAI Systems as holding that, as a matter of law, loading a program into a form of RAM always results in copying. Such a holding would read the "transitory duration" language out of the definition, and we do not believe our sister circuit would dismiss this statutory language without even discussing it. It appears the parties in MAI Systems simply did not dispute that the duration requirement was satisfied; this line of cases simply concludes that when a program is loaded into RAM, the embodiment requirement is satisfied-an important holding in itself, and one we see no reason to quibble with here.
In sum, no case law or other authority dissuades us from concluding that the definition of "fixed" imposes both an embodiment requirement and a duration requirement....We now turn to whether, in this case, those requirements are met by the buffer data.
Cablevision does not seriously dispute that copyrighted works are "embodied" in the buffer. Data in the BMR buffer can be reformatted and transmitted to the other components of the RS-DVR system....a work's "embodiment" in either buffer "is sufficiently permanent or stable to permit it to be perceived, reproduced," (as in the case of the ingest buffer) "or otherwise communicated" (as in the BMR buffer)....The result might be different if only a single second of a much longer work was placed in the buffer in isolation. In such a situation, it might be reasonable to conclude that only a minuscule portion of a work, rather than "a work" was embodied in the buffer. Here, however, where every second of an entire work is placed, one second at a time, in the buffer, we conclude that the work is embodied in the buffer.
Does any such embodiment last "for a period of more than transitory duration"? Id. No bit of data remains in any buffer for more than a fleeting 1.2 seconds. And unlike the data in cases like MAI Systems, which remained embodied in the computer's RAM memory until the user turned the computer off, each bit of data here is rapidly and automatically overwritten as soon as it is processed. While our inquiry is necessarily fact-specific, and other factors not present here may alter the duration analysis significantly, these facts strongly suggest that the works in this case are embodied in the buffer for only a "transitory" period, thus failing the duration requirement.
Against this evidence, plaintiffs argue only that the duration is not transitory because the data persist "long enough for Cablevision to make reproductions from them."... As we have explained above, however, this reasoning impermissibly reads the duration language out of the statute, and we reject it. Given that the data reside in no buffer for more than 1.2 seconds before being automatically overwritten, and in the absence of compelling arguments to the contrary, we believe that the copyrighted works here are not "embodied" in the buffers for a period of more than transitory duration, and are therefore not "fixed" in the buffers. Accordingly, the acts of buffering in the operation of the RS-DVR do not create copies, as the Copyright Act defines that term. Our resolution of this issue renders it unnecessary for us to determine whether any copies produced by buffering data would be de minimis, and we express no opinion on that question.
In most copyright disputes, the allegedly infringing act and the identity of the infringer are never in doubt. These cases turn on whether the conduct in question does, in fact, infringe the plaintiff's copyright. In this case, however, the core of the dispute is over the authorship of the infringing conduct. After an RS-DVR subscriber selects a program to record, and that program airs, a copy of the program-a copyrighted work-resides on the hard disks of Cablevision's Arroyo Server, its creation unauthorized by the copyright holder. The question is who made this copy. If it is Cablevision, plaintiffs' theory of direct infringement succeeds; if it is the customer, plaintiffs' theory fails because Cablevision would then face, at most, secondary liability, a theory of liability expressly disavowed by plaintiffs.
Our refusal to find Cablevision directly liable on these facts is buttressed by the existence and contours of the Supreme Court's doctrine of contributory liability in the copyright context. After all, the purpose of any causation-based liability doctrine is to identify the actor (or actors) whose "conduct has been so significant and important a cause that [he or she] should be legally responsible."... But here, to the extent that we may construe the boundaries of direct liability more narrowly, the doctrine of contributory liability stands ready to provide adequate protection to copyrighted works.
The district court apparently concluded that Cablevision's operation of the RS-DVR system would contribute in such a major way to the copying done by another that it made sense to say that Cablevision was a direct infringer, and thus, in effect, was "doing" the relevant copying. There are certainly other cases, not binding on us, that follow this approach. ...We need not decide today whether one's contribution to the creation of an infringing copy may be so great that it warrants holding that party directly liable for the infringement, even though another party has actually made the copy. We conclude only that on the facts of this case, copies produced by the RS-DVR system are "made" by the RS-DVR customer, and Cablevision's contribution to this reproduction by providing the system does not warrant the imposition of direct liability. Therefore, Cablevision is entitled to summary judgment on this point, and the district court erred in awarding summary judgment to plaintiffs.
Plaintiffs' final theory is that Cablevision will violate the Copyright Act by engaging in unauthorized public performances of their works through the playback of the RS-DVR copies.
The district court, in deciding whether the RS-DVR playback of a program to a particular customer is "to the public," apparently considered all of Cablevision's customers who subscribe to the channel airing that program and all of Cablevision's RS-DVR subscribers who request a copy of that program. Thus, it concluded that the RS-DVR playbacks constituted public performances because "Cablevision would transmit the same program to members of the public, who may receive the performance at different times, depending on whether they view the program in real time or at a later time as an RS-DVR playback." ...We cannot reconcile the district court's approach with the language of the transmit clause. That clause speaks of people capable of receiving a particular "transmission" or "performance," and not of the potential audience of a particular "work." Indeed, such an approach would render the "to the public" language surplusage. Doubtless the potential audience for every copyrighted audiovisual work is the general public. As a result, any transmission of the content of a copyrighted work would constitute a public performance under the district court's interpretation. But the transmit clause obviously contemplates the existence of non-public transmissions; if it did not, Congress would have stopped drafting that clause after "performance."
On appeal, plaintiffs offer a slight variation of this interpretation. They argue that both in its real-time cablecast and via the RS-DVR playback, Cablevision is in fact transmitting the "same performance" of a given work: the performance of the work that occurs when the programming service supplying Cablevision's content transmits that content to Cablevision and the service's other licensees. See Br. of Pls.-Appellees Twentieth Century Fox Film Corp. et al. at 27 ("Fox Br.") ("The critical factor . . . is that the same performance is transmitted to different subscribers at different times . . . . more specifically, the performance of that program by HBO or another programming service." (third emphasis added)).
Thus, according to plaintiffs, when Congress says that to perform a work publicly means to transmit. . . a performance. . . to the public, they really meant "transmit . . . the 'original performance' . . . to the public." The implication of this theory is that to determine whether a given transmission of a performance is "to the public," we would consider not only the potential audience of that transmission, but also the potential audience of any transmission of the same underlying "original" performance.
Like the district court's interpretation, this view obviates any possibility of a purely private transmission. Furthermore, it makes Cablevision's liability depend, in part, on the actions of legal strangers. Assume that HBO transmits a copyrighted work to both Cablevision and Comcast. Cablevision merely retransmits the work from one Cablevision facility to another, while Comcast retransmits the program to its subscribers. Under plaintiffs' interpretation, Cablevision would still be transmitting the performance to the public, solely because Comcast has transmitted the same underlying performance to the public. Similarly, a hapless customer who records a program in his den and later transmits the recording to a television in his bedroom would be liable for publicly performing the work simply because some other party had once transmitted the same underlying performance to the public.
We do not believe Congress intended such odd results. Although the transmit clause is not a model of clarity, we believe that when Congress speaks of transmitting a performance to the public, it refers to the performance created by the act of transmission. Thus, HBO transmits its own performance of a work when it transmits to Cablevision, and Cablevision transmits its own performance of the same work when it retransmits the feed from HBO.
Furthermore, we believe it would be inconsistent with our own transmit clause jurisprudence to consider the potential audience of an upstream transmission by a third party when determining whether a defendant's own subsequent transmission of a performance is "to the public." ...Plaintiffs contend that it is "wholly irrelevant, in determining the existence of a public performance, whether 'unique' copies of the same work are used to make the transmissions." Fox Br. at 27. But plaintiffs cite no authority for this contention. And our analysis of the transmit clause suggests that, in general, any factor that limits the potential audience of a transmission is relevant....Furthermore, no transmission of an audiovisual work can be made, we assume, without using a copy of that work: to transmit a performance of a movie, for example, the transmitter generally must obtain a copy of that movie. As a result, in the context of movies, television programs, and other audiovisual works, the right of reproduction can reinforce and protect the right of public performance. If the owner of a copyright believes he is injured by a particular transmission of a performance of his work, he may be able to seek redress not only for the infringing transmission, but also for the underlying copying that facilitated the transmission. Given this interplay between the various rights in this context, it seems quite consistent with the Act to treat a transmission made using Copy A as distinct from one made using Copy B, just as we would treat a transmission made by Cablevision as distinct from an otherwise identical transmission made by Comcast. Both factors-the identity of the transmitter and the source material of the transmission-limit the potential audience of a transmission in this case and are therefore germane in determining whether that transmission is made "to the public."
This holding, we must emphasize, does not generally permit content delivery networks to avoid all copyright liability by making copies of each item of content and associating one unique copy with each subscriber to the network, or by giving their subscribers the capacity to make their own individual copies. We do not address whether such a network operator would be able to escape any other form of copyright liability, such as liability for unauthorized reproductions or liability for contributory infringement.
In sum, because we find, on undisputed facts, that Cablevision's proposed RS-DVR system would not directly infringe plaintiffs' exclusive rights to reproduce and publicly perform their copyrighted works, we grant summary judgment in favor of Cablevision with respect to both rights.
The case is Cartoon Network v. CSC Holdings. Read the entire opinion here.
Worldwide Entertainment Group is suing the hot Paris Hilton for failing to provide publicity support for the film "National Lampoon's Pledge This!", a movie that was not so hot. WEG paid the stylish Ms. H one million dollars to star in the flick and to serve as executive producer, but now alleges that she was derelict in her duty to promote the film. Read more here.
Wednesday, August 13, 2008
Here's a piece from NPR on the Hays Code, forty years after a series of judicial decisions, resistance from movie studios, and changing viewer tastes dismantled it. Here's more discussion from NPR on comic books and censorship, on censorship in Bollywood, and whether the media is now imposing censorship from within. Is a uniform production code on its way back?
For more on the rise and fall of the Hays Code, try the following books.
Thomas Doherty, Pre-Code Hollywood: Sex, Immorality, and Insurrection in American Cinema, 1930-1934 (1999).
David Hajdu, The Ten-Cent Plague: The Great Comic-Book Scare and How It Changed America (2008).
Clayton R. Koppes and Gregory D. Black, Hollywood Goes to War: How Politics, Profits, and Propaganda Shaped World War II Movies (1990.
Mick Lasalle, Complicated Women: Sex and Power in Pre-Code Hollywood (2001).
Leonard J. Leff and Jerold L. Simmons, The Dame in the Kimono: Hollywood, Censorship and the Production Code (2d ed., 2001).
Sarah Smith, Children, Cinema and Censorship: From Dracula to Dead End (2005).
Mark A. Vieira, Sin in Soft Focus: Pre-Code Hollywood (2003).
Tuesday, August 12, 2008
Director Peter Berg ("Hancock," "Friday Night Lights") is being sued by the family of an assistant propmaster who died in an accident during the filming of "The Kingdom," in 2006. Mr. Berg was in an SUV that hit a smaller vehicle carrying Nick Papac on the closed set of the film. The injured Mr. Papac died later at a hospital. Also named in the suit are the driver of the SUV and the production company. Read more here in an AP story.
Coopers, the Australian brewer, is asking for Her Majesty's pardon after objections surfaced to its new advertisement that runs "Forget the Monarchy, Support the Publicans." Unfunny, say monarchists. So down have come the ads, and Coopers is apologizing for this bit of lèse majesté. Read more here in a Guardian story.
Third Circuit Refuses To Create New Category Of Unprotected Speech; Vacates First-Ever Conviction Under 18 USC 48
In United States v. Stevens, the Third Circuit has declined to created a new category of unprotected speech and has vacated the first conviction ever obtained of a defendant under 18 U.S.C. [Sec.] 48.
Robert Stevens was convicted of "knowingly selling depictions of animal cruelty with the intention of placing those depictions in interstate commerce for commercial gain...". The statute provides for an exception: "Subsection (a) does not apply to any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value."
Resort here to some legislative history is instructive, not as a device to help us construe or interpret the statute, but rather to demonstrate the statute's breadth as written compared to what may originally have been intended. The legislative history for § 48 indicates that the primary conduct that Congress sought to address through its passage was the creation, sale, or possession of "crush videos." A crush video is a depiction of "women inflicting . . . torture [on animals] with their bare feet or while wearing high heeled shoes. In some video depictions, the woman's voice can be heard talking to the animals in a kind of dominatrix patter. The cries and squeals of the animals, obviously in great pain, can also be heard in the videos." H.R. REP. NO. 106-397, at 2 (1999). Testimony presented at a hearing on the Bill, and referenced in the House Committee Report, indicates that "these depictions often appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting."
Yet, the government interests identified in the House Committee Report in support of § 48 do not focus on crush videos. The primary interest identified there is the federal government's interest in "regulating the treatment of animals." H.R. REP. NO. 106-397, at 3. Similarly, the House Report states that the Government has an interest in discouraging individuals from becoming desensitized to animal violence generally, because that may serve to deter future antisocial behavior toward human beings....
This broader focus on animal cruelty is consistent with the text of § 48 and it is also reflected in the House Report's discussion of why the speech that § 48 targets should be deemed outside the protection of the First Amendment.... The Report concedes that § 48 is a content-based restriction, but states that the harm it would address, by reducing cruelty to animals, "so outweighs the expressive interest, if any, at stake, that the materials [prohibited by § 48] may be prohibited as a class."... The Report minimizes the expressive interest of any speech prohibited by the statute because "[b]y the very terms of the statute, material depicting cruelty to animals that has serious utility-whether it be religious, political, scientific, educational, journalistic, historic, or artistic-falls outside the reach of the statute."
The Government does not allege that Stevens participated in the interstate transport of "crush videos." Nor does the Government allege that the videos Stevens sold contained prurient material. The Government also concedes that § 48 constitutes a content-based restriction on speech. Nonetheless, the Government argues that the type of speech regulated by § 48 falls outside First Amendment protection. By doing so, the Government asks us to create a new category of unprotected speech. We proceed in two parts. First, we show how § 48 regulates protected speech. Second, because § 48 regulates protected speech, we must subject the statute to strict scrutiny. As shown below, the statute cannot withstand that heightened level of scrutiny.
The acts of animal cruelty that form the predicate for § 48 are reprehensible, and indeed warrant strong legal sanctions. The Government is correct in arguing that animal cruelty should be the subject of not only condemnation but also prosecution. To this end, anti-animal cruelty statutes have been enacted in all fifty states and the District of Columbia. These statutes target the actual conduct that offends the sensibilities of most citizens. The fundamental difference between these state statutes and § 48 is that the latter does not federally criminalize the conduct itself. Rather, § 48 prohibits the creation, sale, or possession of a depiction of animal cruelty. That regulating a depiction has First Amendment implications is obvious. We begin, then, with the Government's contention that the depictions of animal cruelty restricted by 18 U.S.C. § 48 qualify as categorically unprotected speech.
The Government acknowledges that the speech at issue in this case does not fall under one of the traditionally unprotected classes. The Government argues, however, that these categories may be supplemented. That, in itself, is an unassailable proposition. But, we disagree with the suggestion that the speech at issue here can appropriately be added to the extremely narrow class of speech that is unprotected. Out of these categories, only Ferber is even remotely similar to the type of speech regulated by § 48. Recognizing this difficulty, the Government attempts to analogize between the depiction of animal cruelty and the depiction of child pornography. That attempt simply cannot carry the day.
In Ferber, the Court considered the constitutionality of a New York criminal statute that prohibited persons from knowingly promoting sexual performances by children under the age of 16 by distributing material that depicted such performances....The Supreme Court in turn reversed the New York Court of Appeals, holding that the statute was constitutional because child pornography, whether obscene or not, is unprotected by the First Amendment....
In reaching that conclusion, the Court cited five factors favoring the creation of a new category of unprotected speech:
1. The State has a "compelling" interest in "safeguarding the physical and psychological well-being of a minor."...
2. Child pornography is "intrinsically related to the sexual abuse of children in at least two ways. First, the materials produced are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation. Second, the distribution network for child pornography must be closed" in order to control the production of child pornography. ...
3. "The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production" of child pornography. ...
4. The possibility that there would be any material of value that would be prohibited under the category of child pornography is "exceedingly modest, if not de minimis."...
5. Banning full categories of speech is an accepted approach in First Amendment law and is therefore appropriate in this instance....
Amy Adler, Inverting the First Amendment, 149 U. PA. L. REV. 921, 938 n.77 (2001); ...
Without guidance from the Supreme Court, a lower federal court should hesitate before extending the logic of Ferber to other types of speech. The reasoning that supports Ferber has never been used to create whole categories of unprotected speech outside of the child pornography context. Furthermore, Ferber appears to be on the margin of the Supreme Court's unprotected speech jurisprudence....
Even assuming that Ferber may, in limited circumstances and without Supreme Court guidance, be applied to other categories of speech, 18 U.S.C. § 48 does not qualify for such treatment. The Court cited five bases in Ferber for upholding the anti-child pornography law. That reasoning does not translate well to the animal cruelty realm. We address the five-factor rationale in its entirety, although the first factor is the most important because, under Ferber, if the Government's interest is not compelling, then this type of statute necessarily violates the First Amendment.
The compelling government interest inquiry at issue here overlaps with the strict scrutiny analysis discussed presently. No matter how appealing the cause of animal protection is to our sensibilities, we hesitate--in the First Amendment context--to elevate it to the status of a compelling interest.
Three reasons give us pause to conclude that "preventing cruelty to animals" rises to a compelling government interest that trumps an individual's free speech rights. First, the Supreme Court has suggested that the kind of government interest at issue in § 48 is not compelling....The Supreme Court in Lukumi held that city ordinances that outlawed animal sacrifices could not be upheld based on the city's assertion that protecting animals was a compelling government interest....The Government contends that Lukumi is inapplicable to a compelling government interest analysis.
Although that case dealt with the Free Exercise Clause rather than the Free Speech Clause, and was limited by the Court to the context of the particular ordinances at issue, it remains instructive. The possible relevance of Lukumi was noted under the "Dissenting Views" section of the House Report of § 48:
Although the Supreme court [sic] recognized the governmental interest in protecting animals from cruelty, as against the constitutional right of free exercise of religion[,] the governmental interest did not prevail. Therefore, it seems that, on balance, animal rights do not supersede fundamental human rights. Here, while Government can and does protect animals from acts of cruelty, to make possession of films of such acts illegal would infringe upon the free speech rights of those possessing the films.
H.R. REP. NO. 106-397, at 11. When we consider Lukumi along with the fact that the Supreme Court has not expanded the extremely limited number of unprotected speech categories in a generation, the only conclusion we are left with is that we--as a lower federal court--should not create a new category when the Supreme Court has hinted at its hesitancy to do so on this same topic.
Second, while the Supreme Court has not always been crystal clear as to what constitutes a compelling interest in free speech cases, it rarely finds such an interest for content-based restrictions. When it has done so, the interest has--without exception--related to the well-being of human beings, not animals. When looking at these cases, as well as the interests at issue in the unprotected speech categories, it is difficult to see how § 48 serves a compelling interest that represents "a government objective of surpassing importance."...
[E]ven more fatal to the Government's position, because the statute does not regulate the underlying act of animal cruelty--which must be a crime under state or federal law in order to trigger § 48--we can see no persuasive argument that such a statute serves a compelling government interest. While the statute at issue in Ferber also prohibited the distribution of the depiction of sexual performances by children under the age of 16, 458 U.S. at 749, the Supreme Court went to great lengths to cabin its discussion of the depiction/act conflation because of the special role that children play in our society. Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.
In order to serve the purported compelling government interest of preventing animal cruelty, the regulation of these depictions must somehow aid in the prevention of cruelty to animals. With this depiction/act distinction in mind, it seems appropriate to recast the compelling government interest as "preventing cruelty to animals that state and federal statutes directly regulating animal cruelty under-enforce." ...The House Committee Report for § 48 stated that the statute targeted the depiction rather than the act because under-enforcement of state animal cruelty laws is a particular problem in the crush video industry. H.R. REP. NO. 106-397, at 3. The Report approvingly cited witnesses who testified to this effect. Consistent with these findings, the Government states that "as a practical matter, it is nearly impossible to identify the persons involved in the acts of cruelty or the place where the acts occurred." While this justification is plausible for crush videos, it is meaningless when evaluating § 48 as written. By its terms, the statute applies without regard to whether the identities of individuals in a depiction, or the location of a depiction's production, are obscured.
Read the opinion here.
New York Court Orders Newspaper To Provide Plaintiffs With Information "In Its Control" On Anonymous Posters
A New York court has ordered a non-party newspaper to provide plaintiffs in a defamation suit with "such information, if any, in its possession or control that could reasonably lead to the identification of anonymous posters" so that the plaintiffs can pursue their suit against the posters. The court ruled that the plaintiffs had met the Dendrite requirements, had identified the defamatory statements, had provided notice via the forums, and had made a showing of the merits of their case. Read the ruling here. The case is Ottinger v. The Journal News.
Paul Kelso reports that a Radio Free Asia journalist is still awaiting credentials to report on the Beijing Games. The journalist, Dhondup Gonsar, is of Tibetan parentage and broadcasts in Tibetan. The agency responsible for issuing credentials, Bocog, said Mr. Gonsar's documents were "in process." Mr. Kelso reports that Radio Free Asia's broadcasts are often blocked by the Chinese government. Read more here.
Ben Stiller's new film Tropic Thunder is garnering some complaints from the differently abled who allege that the film "humiliates people with intellectual disabilities", according to this BBC story. Mr. Stiller's character uses the word "retard" several times during the film to refer to another character. Production company Dreamworks denies that the movie, which also stars Robert Downey, Jr., has any such motivation.
Monday, August 11, 2008
A controversy has emerged over a novel about one of the Prophet Muhammed's wives. Writer Sherry Jones had planned to publish her novel The Jewel of Medina with Random House. But comments from scholars, indicating that the novel might incite anger within the Muslim community, apparently caused Random House to change its mind, and it cancelled plans to publish the book. Read more here in an article in The Daily Texan and here in an article from the BBC. Here's an essay from one of the scholars involved, Dr. Denise Spellberg, and another from Asra Nomani.
Slashdot reports that three MIT students have been enjoined from talking about a vulnerability they've discovered in the smartcards used on the Boston subway. The three had planned to present their research at the Defcon conference in Las Vegas but a federal judge granted a TRO requested by the Massachusetts Bay Transit Authority. The Electronic Frontier Foundation has already taken up the case.
The Drama Family Entertainment Company is suing singer Mary J. Blige for copyright infringement over the use of the song "Work That" on her album "Growing Pains." The song is also used in an iPod commercial, although Apple is not being sued. Read more in an MSNBC.com story.
Media attending the recent Manchester United testimonial for Ole Gunnar Solskjaer were asked to sign a contract stating they would not take photographs of his children, even though the public attending were allowed to take such photos. The contract stated that media who did not sign would be barred from the stadium. The Newspaper Publishers Association is protesting the contract, which it says was presented without prior notice. Read more here.
Times of London editor Giles Coren is in hot water over a piece he wrote about Poles and Polish immigration to the UK. The paper has received complaints, including one from the Polish Ambassador; apparently the piece is considered insufficiently sensitive to Poland and Polish sensibilities. Mr. Coren used the word "Polack" in the article. Mr. Coren is noted for his rather direct way with words. According to this Guardian article, the Press Complaints Commission may launch an investigation, since he may have breached the editors' code of practice.