October 22, 2010
Minnesota Court of Appeals Reverses Conviction Based On First Amendment Challenge
The Minnesota Court of Appeals has reversed the conviction of a Minnesota resident based on a First Amendment challenge to a statute that forbids the knowing communication of false information about police misconduct to investigators (Minnesota Statute 609.505(2)).
The provision challenged here criminalizes speech in the form of the intentional lie. The intentional lie is one type of expressive action that fails to “materially advance[ ] society's interest in uninhibited, robust, and wide-open debate on public issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007 (1974) (quotation omitted); see also United States v. Daly, 756 F.2d 1076, 1081-82 (5th Cir.1985) (upholding statute criminalizing aiding and assisting in making false statements to federal government on First Amendment challenge) (citing Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 465 (1965)). Knowingly communicating a false statement against public agencies causes significant harm in the form of “perversion” of “governmental departments and agencies.” United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 523 (1941) (noting Congress's interest in statute punishing false statements made to federal government). The state asserts this harm-the disruption of police functions and investigations-as a proper basis for the challenged provision. As harmful conduct, the intentional falsehood is a mode of speech that can be regulated without regard to the substance of that speech. Chaker, 428 F.3d at 1225; see United States v. Masters, 484 F.2d 1251, 1254 (10th Cir.1973) (upholding constitutionality of perjury statute and noting that it punishes “specific conduct that infringes a substantial government interest”).
Determining the protections for ...otherwise unprotected speech is a delicate task. Our guide in this undertaking is the majority opinion of Justice Antonin Scalia in R.A.V., a landmark case declaring a St. Paul ordinance banning certain cross burnings to be unconstitutional. Id. at 391, 112 S.Ct. at 2547. St. Paul punished cross burning as a hate crime, but only punished the activity when it intimidated based on race, color, creed, or gender. Id. at 380, 112 S.Ct. at 2541. Although cross burning was “proscribable” as fighting words, the Court pointed out that the First Amendment would not allow an ordinance prohibiting only those [proscribable] works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well....
Thus, “[t]he government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.” Id. at 384, 112 S.Ct. at 2543. St. Paul's selective cross-burning ordinance, though it criminalized proscribable “fighting words,” improperly discriminated based on content by only applying to certain topics (e.g., race, gender). Id. at 391, 112 S.Ct. at 2547. What was worse, according to the Court, was that the subclassification amounted to viewpoint discrimination because, under the ordinance, “fighting words” that do not themselves invoke race, color, creed, religion, or gender-aspersions upon a person's mother, for example-would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents. [Under the ordinance, o]ne could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis de Queensberry 5 rules.
In accordance with R.A.V., it is clear that the state may not regulate the use of the intentional falsehood “based on hostility-or favoritism-towards the underlying message expressed.” See id. at 386, 112 S.Ct. at 2545 (discussing fighting words as “mode of speech” that can be regulated but not for its underlying message). The provision challenged in this case punishes only those known falsehoods that are critical of police conduct. Minn.Stat. § 609.505, subd. 2. Like the ordinance invalidated in R.A.V., this distinction singles out a certain viewpoint for punishment: knowingly making false statements that assert or confirm an allegation of an officer's misconduct is criminal, while knowingly making false statements to absolve an officer of wrongdoing is not. This distinction is problematic for two main reasons:
First, punishing only false statements critical of police officers runs afoul of the basic principle that laws cannot exempt otherwise punished expression because the statement expresses approval of the government. See Schacht v. United States, 398 U .S. 58, 63, 90 S.Ct. 1555, 1559 (1970) (considering a federal statute that criminalized unauthorized wearing of a military uniform except in theatrical performances that do not discredit the armed forces and holding that a statute that “leaves Americans free to praise the war in Vietnam but can send persons ․ to prison for opposing it ․ cannot survive in a country which has the First Amendment”). “It is vital to our form of government that press and citizens alike be free to discuss and, if they see fit, impugn the motives of public officials.” Janklow v. Newsweek, Inc., 788 F .2d 1300, 1305 (8th Cir.1986). The challenged provision of Minn.Stat. § 609.505, subd. 2, defies this principle by singling out only critical statements about government actors.
Second, from a practical standpoint, the distinction unevenly constrains one side of discussion on a highly charged, public issue. See R.A.V., 505 U.S. at 391, 112 S.Ct. at 2547-48. In disputes over the propriety of police conduct, the resolution of allegations often comes down to the credibility of the complainant, the accused, or other witnesses and police officers. Chaker, 428 F.3d at 1226; see Susan Bandes, Tracing the Pattern of No Pattern: Stories of Police Brutality, 34 Loy. L.A. L.Rev. 665, 669 (2001) (“Questions of credibility are of paramount importance in resolving brutality claims, since most brutality takes place in secret․”). Knowingly making false statements that attempt to absolve a police officer of misconduct can compromise a meritorious case. The state cannot allow pro-police witnesses to “fight freestyle” by tolerating them making knowingly false statements that cover up police misdeeds but impose “Queensberry rules” on complainants asserting police misconduct by exposing them to the risk of criminal sanctions if their complaints are later determined to be misrepresentations. See R.A.V., 505 U.S. at 392, 112 S.Ct. at 2548.
Minn.Stat. § 609.505, subd. 2 criminalizes knowingly communicating false information regarding police only when that communication alleges misconduct. Because the distinction between false critical information and false exonerating information discriminates based on the viewpoint of the speaker and does not fit under a recognized exception to content discrimination, this subdivision of the statute violates the First Amendment. We reverse the judgment on count I and remand for the district court to address the lesser-included offense and resentence.
The case is State v. Crawley, No. A09-1795, decided September 28, 2010.
Copying To the Left Of Him, Copying To the Right of Him...
The Chronicle of Higher Education reports on an author who thinks copying is a Good Thing. Interesting idea, especially the way Marcus Boon interprets copying, but IP lawyers might be taken aback.
October 21, 2010
Reactions To Juan Williams' Firing Causes Comment All Over
[Hat tip to Mr. Owens].
Bob Guccione Dies
Bob Guccione, the founder of Penthouse Magazine, has died at the age of 79. In its heyday, the magazine was known for its explicit photographs of beautiful women and its even more explicit (and some would say unbelievable) letters to the editor. More here from NPR.
NPR Terminates Juan Williams' Employement After His Remarks On Bill O'Reilly's Show
National Public Radio has fired commentator and writer Juan Williams, presumably for remarks he made on Fox host Bill O'Reilly's show concerning his (Mr. Williams') nervousness when he sees persons in Muslim dress on an airplane. Said Mr. Williams, "I mean, look, Bill, I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."
NPR indicated that Mr. Williams' comments did not coincide with its editorial practices and raised questions concerning his credibility as an analyst. It said his contract with the network ended October 20th. Here is part of NPR's statement concerning the termination of Mr. Williams' employment.
NPR News has terminated the contract of longtime news analyst Juan Williams after remarks he made on the Fox News Channel about Muslims.
Williams appeared Monday on The O'Reilly Factor, and host Bill O'Reilly asked him to comment on the idea that the U.S. is facing a dilemma with Muslims.
O'Reilly has been looking for support for his own remarks on a recent episode of ABC's The View in which he directly blamed Muslims for the Sept. 11, 2001, attacks. Co-hosts Joy Behar and Whoopi Goldberg walked off the set in the middle of his appearance.
Williams responded: "Look, Bill, I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."
Late Wednesday night, NPR issued a statement praising Williams as a valuable contributor but saying it had given him notice that it is severing his contract. "His remarks on The O'Reilly Factor this past Monday were inconsistent with our editorial standards and practices, and undermined his credibility as a news analyst with NPR," the statement read.
Williams' presence on the largely conservative and often contentious prime-time talk shows of Fox News has long been a sore point with NPR News executives.
More here from the BBC.
Court Hears Churchill Appeal
An appellate court is hearing Ward Churchill's arguments to be reinstated at the University of Colorado, Boulder. Mr. Churchill won a jury verdict, but not reinstatement, in an ugly fight over his 2007 termination after the University investigated comments he made about some 9/11 victims and other writings. More here from the DenverPost.com.
University of Virginia Report On Climate at the Virginia Quarterly Review Released
A report by the University of Virgina on management at the Virginia Quarterly Review concludes that while the editor at that journal did not exactly bully his underlings, his management style was somewhat, ah, unrestrained. The VQR's managing editor committed suicide earlier this year. More here from the Chronicle of Higher Education.
University of San Diego Institute Assists Educators With Tricky Questions Concerning Student Use of Electronic Devices
Check out the University of San Diego's Electronic Communications Devices Project (ECDP), which helps educators and administrators figure out the limits of policing student activity on the web and in the use of such devices. More here from the Chronicle of Higher Education.
"The Hobbit" May Be Leaving New Zealand
"The Hobbit" may be leaving New Zealand for another venue, in spite of word that SAG, AFTRA and other unions have abandoned their boycott of the picture. Now union members are attempting to convince the director/producer to stay in the country.
October 20, 2010
Controversy Over Channel 4's Airing of Prince Harry Kidnap Film
Calls are mounting that urge Britain's Channel 4 to abandon its plans to air a docudrama centered on the Taliban's fictionalized possible kidnapping of Prince Harry, the younger son of the Prince of Wales. The Air Chief Marshal has weighed in, suggesting that the drama is a bad idea, but Channel 4 defends itself saying the program explores a legitimate issue of public concern. The Guardian's Mark Lawson examines the limits of journalistic fantasy here.
Nigerian Approaches To Regulating Cyber Crime and Attacks on Privacy
Nigeria has been in the throes of implementing technology law and computer crime legislation for the best part of half a decade. Within this period, there have been two Bills drafted in an attempt to bring our laws up to date and in line with our counterparts in other parts of the globe.
It is to be noted however that while these attempts are an acknowledgement of the need for such legislation, the reality is that there are a number of gaps in relation to what has been proposed in these Bills and what is required for the laws to be adequate enough to tackle the growing risks, threats and vulnerabilities that can accrue to governments, organisations, and individuals when trying to legislate for computer crime.
This article provides insight into current global computer crime and privacy legislations, a critique of the Draft Nigerian Bills, followed by a recommendation for review based on the implementation of a cybercrime legislation framework for Nigeria.
Download the paper from SSRN at the link.
Best Practices In Fair Use and Copyright Law
Private ordering is increasingly playing a role in determining the scope of intellectual property rights both as a de facto and a de jure matter. In this essay, I consider the best practices movement and its efforts to use private ordering to limit the scope and enforcement of copyright law. Best practices statements in the copyright context establish voluntary guidelines for what should be deemed fair uses of others’ copyrighted works. I identify some of the de facto successes of the best practices movement, but also raise a number of concerns about the project. As I have discussed elsewhere, the incorporation of industry practices and social norms into the law in the context of intellectual property can be problematic. The best practices statements have limited value for setting a standard for appropriate uses because they are very one-sided, having been developed without input from the content owners whose work is likely to be used. This one-sided approach to custom is misguided as a normative matter, but may also backfire because courts are more likely to incorporate the more restrictive and dominant practices that promote IP holders’ rights.
Not only are the best practices statements’ call for incorporating unrepresentative customs problematic, but the statements can also be critiqued on other grounds. First, the statements are misleading about the parameters of fair use law – a fact which is particularly concerning given that the intended audience is not composed of legal professionals. Second, some of the statements propose overly constraining limitations on fair use that will limit what can be made both as a de facto and de jure matter. The essay concludes with some suggestions for ways that the best practices project could be redirected in positive ways that support law reform and the defense of reasonable fair use claims without risking the downsides of the current statements.
Download the article from SSRN at the link.
October 19, 2010
To Catch a Predator, Auf Deutsch
Tatort Internet (Crime Scene Internet), the German version of "To Catch a Predator," seems to be a controversial as its U.S. counterpart. Its host, Stephanie von Guttenberg, a descendant of Otto von Bismarck and the wife of a German minister, is a fast-rising tv star, defends the show's tactic of luring and then exposing sexual predators on screen. But the show is receiving criticism for not following the law.
Delaware Senatorial Candidate Makes Her Mark On British Journalism
Delaware Senatorial candidate Christine O'Donnell's question about the location of the principle of separation of church and state has made it across the pond and onto the front page of the Guardian. Notes reporter Richard Adams, "The US constitution has its quirks but it is crystal clear on one issue: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," begins the first amendment, adopted in 1791. But more than 200 years later, its meaning appears to be lost on Christine O'Donnell, the Tea Party favourite running for a US Senate seat."
October 18, 2010
Government Speech and the Publicly Employed Attorney
In Garcetti v. Ceballos, the U.S. Supreme Court incorporated the “government speech” doctrine into its case law regarding the speech rights of public employees. This incorporation had the effect of nullifying a public employee’s free speech rights whenever the employee is speaking pursuant to her official duties. While the Garcetti rule may be problematic in a number situations, it is particularly problematic as applied to publicly employed attorney speech, most notably the speech of prosecutors and public defenders. Attorney speech (including the speech of publicly employed attorneys) is not government speech and should not be treated as government speech.
A major premise of the government speech doctrine – allowing the government to make expressive choices – does not apply to criminal process. Compliance with the Constitution upon prosecution of an individual is not an “expressive choice” left to government discretion. The primary justification underlying the government speech doctrine is that government speakers will be responsible for the messages they promote through political accountability. Such political accountability does not exist for attorney speech aimed at preserving the rights of criminal defendants. More importantly, political accountability is both insufficient and inadequate to protect the constitutional rights and interests at stake. Indeed, in the criminal process context, the content of the “government message” is dictated by the Constitution and the role of attorneys in our system of justice. Finally, the scope of government control inherent in the theory and practice of the government speech doctrine is at odds with and interferes with the core function of the publicly employed attorney.
Protecting Attorney Speech Under the First Amendment
In June 2010, the United States Supreme Court held that Congress could constitutionally prohibit attorneys from providing legal assistance and advice regarding lawful nonviolent conduct to groups that the Secretary of State has designated as Foreign Terrorist Organizations (FTOs). The plaintiffs, Ralph Fertig and the Humanitarian Law Project, wished to assist two such FTOs invoke international human rights law, petition the United Nations and United States Congress, and peacefully resolve their disputes. The Supreme Court held that the statute clearly prohibited plaintiffs’ proposed activities, but did not violate the Free Speech Clause of the First Amendment because the attorneys could still engage in “independent advocacy” of any message they wished to promote. Allegedly, the plaintiff attorneys’ First Amendment rights were not abridged because the law merely criminalized (with a potential fifteen-year prison sentence) their speaking “in coordination with or under the direction of” their proposed clientele.
Holder v. Humanitarian Law Project underscores some of the distinctive problems associated with restrictions on attorney speech. Unfortunately, as demonstrated by the Court’s opinion, as well as Justice Breyer’s impassioned dissent, there is not a workable First Amendment methodology for analyzing restrictions on attorney speech.
Indeed, many regulations on attorneys can be couched as restrictions on attorney speech because the work of an attorney is done primarily through oral and written communications. Attorneys – through their speech – play a key role in providing access to justice and the fair administration of the laws. They provide to clients speech that has the force of law and that is intended to invoke or avoid the power of government in securing individual or collective life, liberty, or property.
In this paper, I propose a new access-to-justice theory of the First Amendment to be used in examining the constitutionality of restrictions on attorney speech – regardless of the regulating entity. The access-to-justice theory proposes that where attorney speech is key to providing or ensuring access to justice or the fair administration of the laws, it needs special protection under the Free Speech Clause, akin to the core protection afforded political speech. The paper identifies four types of attorney speech that deserve this high level of protection, namely, (1) the power to invoke the law on a client’s behalf; (2) the provision of legal advice regarding proposed or past client conduct; (3) the ability to raise relevant and colorable arguments in court proceedings; and (4) the ability to preserve the Constitutional rights of others.
Traditional self-regulation of attorneys preserved, although imperfectly, the special role of attorneys in our justice system because, in theory, the judiciary as regulator understood the attorney’s role. By providing First Amendment protection to attorney speech that is essential to our justice system, the access-to-justice theory also safeguards the attorney’s essential role as self-regulation declines and regulation is imposed by national and intergovernmental entities, including legislative entities subject to majoritarian pressures.
Download the paper from SSRN at the link.
University of Kentucky Agrees To Allow Student Paper Distribution at Home Games
The University of Kentucky has reached a deal with its student newspaper with regard to newspaper distribution on stadium grounds. The Kentucky Kernel, the student paper, wanted to distribute its issues in the parking lot on home game days. The University at first refused, contending that an outside vendor had exclusive rights to media distribution. But it reached an agreement with the Kernel. The students can keep newspaper racks and a vendor in place in the lot but may not walk around the lot distributing the paper. More here from the Lexington Herald-Leader.
"The Hobbit" Greenlighted
Even though labor problems continue with regard to "The Hobbit," it and a companion film have been greenlighted by New Line and Warner Brothers. More here.
Fourth Monroe E. Price International Media Law Moot Court Competition Invites Registrations
From Professor Louise Scott, The Programme in Comparative Media Law and Policy, The Centre for Socio-Legal Studies, Oxford,
Registrations are now being invited for the 4th Monroe E. Price International Media Law Moot Court Competition. The moot court competition, organised by the Programme in Comparative Media Law and Policy (PCMLP) at the University of Oxford, seeks to expand interest and expertise in media law and policy amongst students by giving them an opportunity to interact with leading academics, policy makers and industry players, both from the UK and abroad. This year’s problem bridges issues of technology, content and regulation to expose students to cutting-edge areas of media law. (See the case here: http://pricemootcourt.socleg.ox.ac.uk/sites/pricemootcourt.socleg.ox.ac.uk/files/Moot%20Problem%202011.pdf).
In previous competitions we have welcomed teams from Africa, Asia, Europe, the Middle East and North America and we expect that the 2011 competition will be even more international. The oral rounds are held at the University of Oxford and offer students an opportunity to argue a case before a bench of prestigious judges from different legal systems and backgrounds. The oral rounds will be held from 30 March – 2 April 2011.
The closing date for registrations is 12 November 2010. Further information can be found at: http://pricemootcourt.socleg.ox.ac.uk/.