Civil Rights Law & Policy Blog

"Aligning Campaign Finance Law"

The title of this post comes from this recent paper by Professor Nicholas Stephanopoulos, the abstract of which states:

Campaign finance law is in crisis. In a series of recent decisions, the Supreme Court has rejected state interests such as anti-distortion and equality, while narrowing the anti-corruption interest to its quid pro quo core. This core cannot sustain the bulk of campaign finance regulation. As a result, an array of contribution limits, expenditure limits, and public financing programs have been struck down by the Court. If any meaningful rules are to survive, a new interest capable of justifying them must be found.

This Article introduces just such an interest: the alignment of voters’ policy preferences with their government’s policy outputs. Alignment is a value of deep democratic significance. If it is achieved, then voters’ views are heeded, not ignored, by their elected representatives. Alignment also is distinct from the interests the Court previously has rebuffed. In particular, alignment and equality are separate concepts because equal voter influence is neither a necessary nor a sufficient condition for alignment to arise. And there is reason to think the Court might be drawn to alignment. In decisions spanning several decades, the Court often has affirmed that public policy ought to reflect the wishes of the people.

It is not enough, though, if alignment is merely an appealing value. For it to justify regulation, money in politics must be able to produce misalignment, and campaign finance reform must be able to promote alignment. The Article draws on a new wave of political science scholarship to establish both propositions. This work shows that individual donors are ideologically polarized, while parties and PACs are more centrist in their giving. The work also finds that politicians tend to adhere to the same positions as their principal funders. Accordingly, policies that curb the influence of individual donors would be valid under the alignment approach. But measures that burden more moderate entities could not be sustained on this basis.

"Professional Speech"

The title of this post comes from this compelling paper by Professor Claudia Haupt, the abstract of which states:

Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.

First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.

"The Two Trends that Matter for Party Politics"

The title of this post comes from this intriguing essay by Professors Joseph Fishkin and Heather Gerken, the abstract of which states:

 

In this essay, Professors Fishkin and Gerken argue that the Supreme Court’s deregulation of the campaign-finance system is fueling a shift toward "shadow parties" -- groups that are separate from the formal party apparatus but run by party insiders and central to the workings of the party writ large. They argue that the roots of this trend are to be found, paradoxically, not in the two parties’ weakness but in their strength. Contrary to the emerging conventional wisdom in the field, the authors suggest that the Court’s 2014 decision in McCutcheon v. FEC will do little to arrest this trend. The essay closes with a brief exploration of the trend’s normative implications. This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

Note: This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.

"Compelled Commercial Speech"

The title of this post comes from this recent paper by Professor Robert Post, the abstract of which states:

This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,” with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI”) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM”) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings. 

Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function” of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary. 

The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related” to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.” The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI. 

Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.

"Tinkering with Alito’s Code to Morse’s Limits: Why Alito’s Concurrence is Crucial to Preserving Tinker and Students’ Right to Free Speech"

The title of this post comes from this paper arguing that student free speech rights under the First Amendment have been receiving less protection than the standards articulated in Tinker v. Des Moines Independent School District. Here's the abstract:

The 2007 Supreme Court decision in Morse v. Frederick threatens the protection of student free speech that was articulated by the Court almost forty years earlier in Tinker v. Des Moines Independent Community School District, the decision in which the Court famously expressed that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

In Tinker, the Court applied the substantial disruption standard, essentially that school officials cannot restrict student speech because school officials disagree with it, but rather, that school officials can restrict content-based student speech only when it could be reasonably forecast that the speech would cause a substantial disruption to the school. 

In Morse, the Court upheld the actions of a school principal in demanding students at a school event to take down a banner that read “BONG HiTS 4 JESUS,” and in suspending a student who refused. The Court ruled in favor of the school principal but not by applying Tinker’s substantial disruption standard. Rather, the Court found that school officials may restrict student speech that can reasonably be understood as promoting illegal drug use because protecting students from the dangers of illegal drug use is an important interest. 

Although the opinion of the Court applies directly only to student speech encouraging illegal drug use, some lower courts are using the reasoning in Morse to analogize student speech encouraging illegal drug use to other areas of speech, thereby restricting speech that school officials believe students need to be protected from hearing. Thus, speech is restricted even when it would not be reasonable to think that it would cause a substantial disruption. The result is that speech is restricted essentially because school officials disagree with it, the very thing that the Court in Tinker tried to protect students from. 

Justice Alito, joined by Justice Kennedy, wrote a concurring opinion in Morse precisely because of the concern that Morse would be read more broadly than applying only to student speech encouraging illegal drug use. This Note sets forth why courts should read Alito’s concurrence as controlling the limits to Morse, as well as other reasons why Morse should be read narrowly.

"Free Speech and Guilty Minds"

The title of this post comes from this recent paper by Professor Leslie Kendrick, the abstract of which states:

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

Arizona asks federal judge to dismiss ACLU claim that state's revenge porn law violates First Amendment

The Arizona Capitol Times's Howard Fischer reports:

Assistant Attorney General David Weinzweig is arguing there is no legal basis for the lawsuit. He said the state is looking at a series of defenses, including that no one has been charged with breaking the law or is even being threatened.

 

Weinzweig also told U.S. District Court Judge Susan Bolton there are other legal problems with the claim filed last month by the American Civil Liberties Union on behalf of bookstores. That includes his contention that the lawsuit is about a purely political issue and seeks to involve the courts “in areas of government reserved to the legislative and executive branches.”

 

But ACLU attorney Lee Rowland said it’s not necessary for a bookstore owner, photographer, librarian or newspaper publisher to get arrested to challenge the law. And she brushed aside Weinzweig’s contention that the question is strictly political and beyond the reach of the courts.

 

“This is a First Amendment case,” Rowland said. “This is fundamentally about constitutional rights and whether or not our plaintiffs’ rights are being violated by this broad law. That is emphatically a question for the courts.” 

 

[...]

 

The law approved earlier this year makes it a felony to “intentionally disclose, display, distribute, publish, advertise or offer” a photo, video, film or digital recording of someone else who is naked “if the person knows or should have known that the depicted person has not consented to the disclosure.” The legislation covers not just images of nudity but also anyone engaged in any sex act.

 

Offenders could end up in prison for up to 2 1/2 years — or 3 3/4 years if the person is recognizable.

Do anti-trolling laws threaten free speech?

RT asked Centre for Investigative Journalism director, Gavin Macfadyen, about recent efforts in the UK and elsewhere to make trolling a crime -- although what's considered "trolling" perhaps isn't so clear.

"This man carries a loaded gun around your children every day..."

...reads the lawnsign Kimberly Edson placed in her yard to inform her neighbors that an area man legally carries a concealed handgun. The sign contains a picture of Matthew Halleck, who Edson says walks by her house everyday when taking his daughters to school. Edson explained:

Since we don't have a way to stop him, we felt it was important to notify the neighborhood and the parents that there is an armed man in their presence...The first couple days of school he had it very visible, we saw it and were quite concerned.

 

I have a responsibility to help create the kind of community I want to see, and I don't want to see a community where there are guns around schools...

 

He has a Second Amendment right to carry the gun, I have my 1st Amendment right to say that I don't like it...

Halleck is considering suing Edson for libel.  

"The Invention of Low-Value Speech"

The title of this post comes from this recent paper by Professor Genevieve Lakier, the abstract of which states:

It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern. 

This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern. 

By challenging the accuracy of the historical claims that the Court has used to justify the doctrine of low-value speech, this Article forces a reexamination of the basis for granting or denying speech full First Amendment protection. In so doing, it challenges the Court’s recent claim that the only content-based regulations of speech that are generally permissible under the First Amendment are those that target speech that was historically unprotected. What the history of the doctrine of low-value speech makes clear is that history has never served as the primary basis for determining when First Amendment protections apply. Nor should it today, given the tremendous changes that have taken place over the past two centuries in how courts understand what it means to guarantee freedom of speech, and to what kinds of expression the guarantee applies.

SCOTUS's First Amendment NIMBYism

Yesterday, The NYTimes's Adam Liptak reviewed SCOTUS's supreme hypocrisy on the First Amendment. Liptak observes that SCOTUS has upheld the right of lunatics to protest military funerals and the rights of anti-abortion protesters to approach abortion clinics. Yet, SCOTUS's own stoop is too close for the First Amendment to mean anything. Liptak writes:

[T]he Supreme Court’s devotion to the First Amendment has its limits. It stops at the edge of the grand marble plaza outside its own courthouse.

 

That vast and inviting space, with its benches and fountains, seems better suited to public debate than a military funeral or the sidewalk outside an abortion clinic. But the court insists on banning free speech on the plaza. Court police officers have been known to instruct visitors to remove small buttons bearing political messages.

Speech activities are relegated to the sidewalk around the court -- where ostensibly messages are less influential. 

Fortunately, as Liptak reports, SCOTUS soon may have an opportunity to reconsider whether to allow speech in front of the court. The D.C. appeals court recently heard arguments in a case arising after Capitol police ordered a man to remove his "U.S. Gov. Allows Police to Illegally Murder and Brutalize African Americans and Hispanic People" button. The government is appealing a lower court decision striking down the speech-restricted zone as “irreconcilable with the First Amendment.” As Liptak notes:

Such a statement [as that on the man's button] , on a topic of urgent public interest, would seem to be precisely what the First Amendment was intended to protect. Then again, a Supreme Court police officer once threatened a woman with arrest for displaying a sign bearing the verbatim text of the First Amendment.

 

The Supreme Court addressed the law in 1983, in United States v. Grace, ruling that it could not be applied to demonstrations on the public sidewalks around the court. Since then, the sidewalks, which are broad and set off by stairs from the plaza, have been regularly used for protests of all kinds.

 

But the First Amendment vanishes when concrete turns to marble, Justice Department lawyers representing Ms. Talkin told the appeals court. 

The government argues that extending First Amendment rights to the plaza might affect cases before the Court.  

“Demonstrations outside courthouses might give rise to actual or apparent efforts to subject judicial officers to improper influence,” they said in a brief.

That is, the government argues that SCOTUS justices are not so firm of principle as to be free from the overwhelming power of loud voices and poster boards. By moving protesters down the stairs from the plaza to the sidewalk around the court, protesters can protest while the Court's high but unprincipled minds can quietly contemplate the most important legal questions of our day. Yes, it's pathetic. 

City council meeting cancelled because of attendee's 'F*ck The Police' hat

The man who wore the hat went by the name of "Bijan," and he was politely asked to remove it. But the eponymous villain wouldn't, of course.

 

The mayor's disgust was apparently so complete that he ordered everyone out of the council chambers. But citizens of Santa Ana would not leave him even in his desparate state. According to one local report:  

About 20 people defiantly remained, ready to be arrested if need be. In turn, about 30 police officers swarmed into the chambers, zip-tie handcuffs at the ready. The two sides had a stand-off for more than an hour; ultimately no arrests were made and everyone, including Bijan, left without incident after Pulido officially canceled the meeting. No word yet on when it will be re-held.

 

The city council was set to take up a discussion on decorum this evening stemming from tensions over a meeting last month. Back then, service awards for SanTana officers James Berwanger and John Rodriguez were given. That's what motivated CopWatch Santa Ana to hold protest signs in the audience reading "Berwanger is a bad cop" and "25 years of Terror."

 

Santa Ana Police Officers Association President John Franks complained to City Manager David Cavazos that the CopWatch folks took it too far that night, an opinion that Juarez doesn't disagree with--but with cause.

 

"The police not only have been harassing the community at large but also focusing their attention on certain members of CopWatch Santa Ana," he claims. Juarez says Rodriguez tossed him and another activist in the city jail for a night on loitering and impeding the free flow of traffic charges he claimed are trumped up in retaliation for their on-scene monitoring of Rodriguez last Wednesday. "We were ready to give public comment which is our freedom of speech right."

I guess it's unsurprising that people with the immediate power to restrict speech seem to value it less than those whose speech can readily be restricted - I guess that's the nature of things. But this seems pretty thin-skinned. Worse, it's unconstitutional. The mayor clearly discriminated against the expression of views - namely, F*ucking the Police - based on their content, in clear violation of the First Amendment's protection of speech. If another attendee had worn a hat reading 'Make Love to Police' to the meeting, the response certainly would've been quite different.

(h/t LAist)

Anti-Islam group claims NYC's rejection of bus signs violates its civil rights

The American Freedom Defense Initiative sued NYC's MTA because it determined that the group's "Hamas Killing Jews" ad couldn't be placed on the city's buses. "When our clients run ads exposing this Jew hatred, all of a sudden the transit authorities are worried about the 'tone' of the conversation or conjure up some threat of violence," said the group's attorney.

Woman claims her removal from town council meeting violated her First Amendment speech rights.

Jennifer Jones publishes a newspaper, has run for state office, and just loves dogs. For fun, she likes to sue officials of the town in which she lives - Quartsite, Arizona. She's a troublemaker, but her latest legal foray might actually have some merit. As The Courthouse News Service reports:

Known for its huge outdoor swap meets and gem shows, and as a haven for "snowbirds" in motor homes, the Sonoran desert town of about 3,500 residents entices some 2 million visitors every winter, when the summer's triple-digit temperatures dip down to the 70s.

 

The crowds were long gone at a town council meeting in June 2011 when Jones received a nod from Mayor Ed Foster to speak during the public-comment portion. About a minute into her criticism of the board, then-councilman Joe Winslow interrupted and made an oral motion to have her ejected for an "unidentified procedural violation." Claiming that a majority of council members supported the motion, Winslow told Jones to leave or be escorted out by police.

 

Jones said then-Police Chief Jeffrey Gilbert and police officers Fabiola Garcia and Rick Paterson moved toward her, grabbed the microphone out of her hand and forcibly ejected her from the meeting. She was then arrested for disorderly conduct but the charges were later dropped.

 

Jones sued Quartzsite, Winslow, Gilbert, Garcia, Paterson and others in 2012, but U.S. District Judge James Teilborg ruled found Wednesday that only her First Amendment claim will go forward.

 

"Even if defendants acted solely to cure plaintiff's unidentified procedural violation, defendants' actions may have run afoul of applicable law because plaintiff alleges that she was speaking peacefully about a matter of town-importance after being duly recognized to speak by the moderator of the meeting," Teilborg wrote.

"Free Speech and Guilty Minds"

The title of this post comes from this recent paper by Professor Leslie Kendrick, the abstract of which states:

It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.

Police order woman to remove 'Unmarked police car' bumper sticker

Professor Jonathan Turley lays out the basics of this disappointing story:

The two cars pulled over Konchinsky and one officer ordered her to stay in her vehicle. An officer then asked if the minivan was her vehicle and demanded her license and registration.” He then reportedly stated “With that bumper sticker, someone could think you’re impersonating a police officer.’” He then allegedly added that she could even be shot by someone who didn’t like police officers. They ordered her to pile off the bumper sticker if she wanted to go. She was late for work and later contacted the ACLU. She is the mother of one adult and one school-age child.

Read Prof. Turley's full post here.

'The Supreme Court Was Right to Allow Anti-Abortion Protests'

The LATimes may not have liked SCOTUS's decision in McCullen v. Coakley, but renowned constitutional scholar Laurence Tribe finds the decision "unquestionably" correct. In his NYTimes op-ed, he writes:

Cases like McCullen force us to balance competing constitutional values: free speech against the safety and autonomy of women. Here the balance tips unquestionably toward speech. A woman’s right to choose whether or not to terminate her pregnancy under Roe v. Wade guarantees her protection from the state. This protection does not include a right to be shielded by the state from fellow citizens hoping to peacefully convince her that she’s making the wrong choice. In his opinion for the court, Chief Justice John G. Roberts Jr. affirmed the value of these personal conversations: “If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.”

He later adds:

In his quest to bring all his colleagues on board, Chief Justice Roberts wrote an opinion that implausibly described the Massachusetts statute as neutral as between anti-abortion speech and abortion rights speech — a neutrality that four conservative justices rightly dismissed as illusory, revealing a court sharply divided beneath its veneer of unanimity.

 

Justice Antonin Scalia, the most forceful of the conservatives, correctly criticized this sleight-of-hand in his concurrence with Chief Justice Roberts, arguing convincingly, as did Justice Samuel A. Alito Jr., that the law at issue was anything but neutral toward the content of the speech at issue but represented a form of censorship. Justice Scalia and the justices joining him, Anthony M. Kennedy and Clarence Thomas, worried that a spurious unanimity by the court would encourage other jurisdictions to attempt, and get away with, similar sorts of discrimination favoring some kinds of speech over others.

 

This is not to say that other rights can never outweigh free speech. In 1992, the court upheld a buffer zone limiting political speech around a polling place. Thursday’s opinion sensibly distinguished between voting booths and abortion clinics, focusing on the difficulty of detecting low-visibility voter intimidation as compared with the “anything but subtle” harassment of women seeking abortions.

 

It focused as well on the deliberate exclusion of police officers near polling places in order to avoid the reality or appearance of official pressure on voters, an issue absent with abortion clinics, where the police are free to protect women from being pressured by others. The state has many alternative measures available to protect patient safety and autonomy, and the court’s decision rightly insists that the state must exhaust those alternatives before resorting to a blanket restriction of free speech.

 

Thursday’s opinion in no way restricts the right to choose whether or not to terminate a pregnancy guaranteed by Roe v. Wade, in 1973, and reaffirmed, in 1992, in Planned Parenthood v. Casey. Nor does recognizing a duty to protect freedom of speech in this setting ask us to deny the genuine anguish suffered even by women who are confronted by quiet protesters rather than noisy agitators on their way to use reproductive health services. But neither empathy for their anguish, nor the need to protect the safety of women seeking such services, nor the clear need to guard against the rising tide of state laws designed to restrict access to abortions, can justify far-reaching measures that restrict peaceful conversation in public spaces.

LATimes editorial laments SCOTUS decision to strike down buffer zones around abortion clinics

Yesterday, SCOTUS announced its decision in McCullen v. Coakley striking down Massachusetts' law banning anti-abortion protesters from coming within 35 feet of abortion clinics as violative of the First Amendment. The LATimes Editorial Board isn't pleased. It writes:

The 1994 shootings may have been the impetus for Massachusetts to write its first law on the subject, but the Guttmacher Institute, a research organization that supports the right to abortion, notes that clinics across the country continue to report bombings, vandalism, blockades, arson and violent protests. Just because some opponents of abortion are peaceful doesn't mean women don't need protection from others.

 

You'll hear no argument from us about how vital the right to free speech is. But that does not mean that all other rights must yield to it at all times.

Few protections exist for the victims of online harassment

One needs to spend little time online to experience the wrath of easily and oft-slighted morons. Say something about anything on a message board and you're bound to draw the attention of someone looking for space and a target for their frustrations. Such tirades are usually humorous in their simplicity, but occasionally their authors cross the line. However, as The Atlantic's Noah Berlatsky reports, a notable study by the Center on Law and Information Policy at Fordham Law School finds that victims of online harassment find little relief from the law. Berlatsky writes:

[The study's authors] point to the case of United States v. Alkhabaz, in which the defendant described in detail on a Usenet message board violent sexual acts he imagined performing on one of his classmates. The case was eventually thrown out because the defendant did not email the story to his classmate, and did not intend her to see it. As the authors say, "Alkhabaz demonstrates that the burden to determine a 'true threat' is quite high, and presumably most hostile online speech would fail to meet the standard determined by the Sixth Circuit." In fact, [Alice] Marwick and [Ross] Miller found very few incidents in which a harasser faced criminal penalties. It hardly ever happens.

 

Despite such difficulties, it's not clear that it would be a good idea to make it easier to criminalize online speech. As the authors say, "People from all sides of the political, social, and economic spectrum use ‘internet vigilantism’ to target and shame those they disagree with, from Men’s Rights activists shaming feminist filmmakers to feminists shaming writers they believe to be sexist." There are already high-profile discussions which frame activism by women of color online as abusive. If online speech is criminalized, it seems likely that the most powerful speakers won't be targeted first.

 

So, if the police are unlikely to act, and the First Amendment makes most legal remedies impossible, what can you do? 

 

Practically, the path most victims have taken is to use the legal system not to win a judgment, but to subpoena IP records. Legal proceedings can allow victims to unmask and potentially publicize the names of their anonymous harassers. This is what Lori Stewart eventually did. After going to the police, she was able to discover the harasser's identity; Robin B. King, a 56-year-old Defense Department employee based in the Saint Louis suburbs. (In April, King pleaded guilty to a misdemeanor count of harassment through electronic communication, according to local news reports.)

 

Unfortunately, even identifying harassers doesn't necessarily stop them. As Marwick told me in an email: "Right now unmasking anonymous users is often seen as the best option by the harassed, often because it's very very difficult to pursue criminal proceedings and service providers are not legally required to remove content or reveal information about their users. However, that doesn't mean it's an effective solution. While the threat of revealing IP addresses and ‘real names’ can deter some harassers, it's certainly not true for all."

 

Marwick added that Lori Stewart's threat to reveal Robin King's identity didn't end his harassment. Stewart had to actually get a restraining order, and press charges. 

 

Ultimately, the best way to deal with harassment is probably not legal, but communal. Marwick told me that, "there are places on the internet where such harassment does not happen, whether due to the culture and norms of the site, or aggressive moderation." She pointed to Metafilter "which discusses all manner of controversial and personal issues. It costs $5 to set up an account, and postings can easily be flagged and removed." Another example (that Marwick doesn't mention) is Comic Book Resources, a comics website which revamped its message boards after one of its writers received rape and death threats.

 

Hiring moderators and policing comments can be expensive, and the logistics become very difficult when you're dealing with something as large as Twitter or Facebook. Still, Marwick and Miller suggest that getting Twitter and Facebook to deal more proactively with harassment is likely going to be easier, and more effective, than trying to pass new laws, or increase prosecutions. And smaller venues, too, have a responsibility to prevent harassment and protect users—all the more so since the government is not likely to do it for them.

'When it comes to politics, there's no need to outlaw lying'

The Los Angeles Times's editorial board today summarily dismisses the constitutionality of laws criminalizing false statements about political candidates. It claims that such laws chill speech otherwise protected by the First Amendment, writing:

In more than a dozen states it can be a criminal offense to make a false statement about a candidate for public office. But such laws are unnecessary, and open to abuse. On Monday, the Supreme Court handed down a unanimous decision that could be the first step in doing away with them.

 

The justices ruled in favor of the Susan B. Anthony List, an antiabortion group that wants to challenge an Ohio law making it a crime to utter a false statement "concerning the voting record of a candidate or public official." The issue before the court was whether the group had suffered a sufficient injury to have standing to sue.

 

During the 2010 election campaign, the Susan B. Anthony List planned to post an ad on billboards accusing then-Rep. Steven Driehaus (D-Ohio) of voting "for taxpayer-funded abortion" when he supported the Affordable Care Act. After plans for the ad were reported in the news, Driehaus filed a complaint with the Ohio Elections Commission, a panel of which determined that there was "probable cause" that the ad was false.

 

The ad never went up because the owner of the billboard space feared legal reprisals. Driehaus withdrew his complaint after losing the election and before final commission action or referral to prosecutors. But the Susan B. Anthony List persisted in challenging the constitutionality of the law. A federal appeals court ruled that the suit couldn't proceed because the issues were now moot and the plaintiffs no longer faced an "imminent threat" of prosecution.

 

The Supreme Court's decision to overturn that ruling is welcome because citizens who believe their freedom of speech is being chilled by an unconstitutional law shouldn't have to wait until they are prosecuted to challenge the law. Furthermore, the decision increases the likelihood that the court will eventually rule on whether laws like Ohio's violate the 1st Amendment.

 

We think they do. No one condones lying about (or by) politicians. But the price of criminalizing false statements in political campaigns is that candidates and citizens alike may be deterred from engaging in the "uninhibited, robust and wide-open" debate that the court has said is protected by the Constitution. And often it will be a matter of debate whether a characterization of a candidate's record is false or merely misleading.

 

In 2012, the justices struck down a federal law making it a crime for a person to falsely claim to have received military honors. Justice Anthony M. Kennedy wrote: "The remedy for speech that is false is speech that is true." That observation is especially applicable to the cut-and-thrust of a political campaign. The veracity of statements about a candidate's record is best policed by his opponents and by fact-checkers in the media, not by prosecutors.

First Amendment right to post mugshots online?

The First Amendment is the subject of considerable dispute, particularly as it relates to freedom of speech. The Founders left very little guidance as to what qualifies as speech, and thus SCOTUS and academics have been left to debate the merits of certain conduct as speech under the First Amendment on mostly theoretical grounds. Technological advances have drastically changed methods of communication, which, in turn, have made these inquiries even more difficult.

The Internet of course has increasingly drawn the attention of First Amendment scholars. The constitutionality of laws criminalizing revenge porn, for example, appears increasingly as the subject of debate. Many believe that these laws can be written narrowly enough so as to avoid infringing on otherwise valid First Amendment activity, while others feel that the very existence of such laws inevitably chills speech. 

Similarly, the propriety of posting mugshots online is being questioned, which some websites claim is protected First Amendment speech. The websites that publish the mugshots usually don't differentiate between persons convicted of crimes and those whose charges were later dropped. As Fox News's Dan Gallo reports:

At least seven states...recently pass[ed] laws to restrict websites from profiting off mugshots: Georgia, Illinois, Texas, Utah, Oregon, Colorado and Wyoming. Marc Epstein, a lawyer for Mugshots.com, told Fox News that such laws are unconstitutional and violate his client's First Amendment rights.

 

"Unpopular speech, unpopular actions are generally protected under the First Amendment, provided they're not illegal in other ways," Epstein said. "It's uncomfortable, perhaps. But it doesn't rise anywhere near the level of extortion. We threaten nobody."

 

Consumer attorney Brian Kabatek is suing one of the websites, which he accuses of legalized extortion.

 

"They're putting it out there not for some great public purpose," he said. "They're putting it out there for economic gain. And that's the only reason they're doing this."

N.Y. limit on contributions by independent groups violates First Amendment, says federal judge

A federal judge in New York did precisely what many knew he would do - he struck down the state's limit on campaign contributions by independent groups. According to the NYTimes:

In a five-page opinion, Judge Crotty lamented the influence of outsize donations in today’s political system. He wrote that the voices of regular citizens “are too often drowned out by the few who have great resources,” and disagreed with some of the Supreme Court’s analysis in the recent case, McCutcheon v. Federal Election Commission.

 

But despite his concerns, Judge Crotty wrote that he had no choice but to follow the Supreme Court’s lead in that case and in the landmark Citizens United campaign finance case, as well as the guidance of the Second Circuit.

 

“Our Supreme Court,” he wrote, “has made clear that only certain contribution limits comport with the First Amendment.” 

Oregon judge holds flashing headlights to alert other drivers of law enforcement is protected under First Amendment

The AP reports that an Oregon judge has ruled that the First Amendment protects drivers who flash their headlights to alert other drivers of the presence law enforcement as free speech. According to the judge,  "The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct." 

As the article explains:

Hauling a truckload of logs to a Southern Oregon mill last fall, Chris Hill noticed a sheriff's deputy behind him and flashed his lights to warn a UPS driver coming the other way.

 

The deputy pulled over Hill on U.S. Highway 140 in White City and handed him a $260 ticket for improperly using his headlights, saying another deputy had seen the flashing lights from behind the UPS truck and alerted him to stop the log truck because of the signaling.

 

Outraged, Hill decided to fight the ticket, and on Wednesday, a Jackson County Justice Court judge dismissed the citation, finding that motorists flashing their headlights amounts to speech protected by the Oregon Constitution.

 

Judge Joseph Carter determined the law covering the use of high beams was valid, but was unconstitutional as it was applied by the deputy.

First Amendment protection of such conduct seems entirely reasonable to me. SCOTUS has routinely extended speech protection to generalized expressions, even when the reasoning for such expressions is not known. For example, it has protected signatures on referendum petitions, the wearing of black armbands in protest of the Vietnam War, and political yard signs. The Fourth Circuit recently even granted speech protection to support for a political candidate's campaign on Facebook by clicking the "Like" icon. Flashing one's headlights at another driver (for whatever reason) seems no less worthy of protection. 

The most compelling detail in this story is that the driver who originally received the ticket represented himself.  

As the article notes, Mr. Hill is an experienced driver who decided to fight the citation to protect himself against an increase to his insurance rate. So, he researched the issue and decided the free speech argument was applicable to the conduct for which he was ticketed. And the judge agreed.

Nicely played, sir! Nicely played indeed.

A brief summary of the development of campaign finance laws

Today, WaPo reporter Jaime Fuller provides this intriguing historical summary of political spending and attempts by federal and state governments to regulate campaign finance. She begins by recounting the early efforts of a young George Washington to persuade voters by the then-common practice of treating--whereby candidates provided banquets of food and liquor at the polling place; she ends, of course, with the Supreme Court's decision earlier this week in McCutcheon v. FEC. 

After recounting Washington's electioneering efforts in 1757, Fuller jumps to the campaign finance law passed by Congress in 1867 making it illegal to solicit donations from naval yard workers. However, the intervening years were not bereft of efforts to curb seemingly excessive spending in campaigns.

Colonial assemblies and state goverments routinely attempted to reduce the influence of money in politics. As Chilton Williamson documents in his book American Suffrage From Property to Democracy, 1760- 1860, "Colonial assemblies tried to curb these electoral abuses by a spate of laws...against the treating of electors[.]" Richard Dinkin notes, for example, the Maryland colonial assembly's attempt to limit such practices, citing a 1768 election law:

[T]hat  on any petition for treating, this house will not take into consideration, or regard the greatness or smallness of any treat, but will in all cases, in which any person or persons,...directly or indirectly give, present, or allow to any person having a voice or vote in such election, any money, meat, drink, entertainment or provision, or make any present, gift reward, or entertainment,...whatsoever, in order to be elected, or for being elected, will declare the election of such person voice.

Additionally, the move from public to private voting by the adoption of the Australian ballot--or secret ballot--was often viewed as an effort to curtail campaign spending. In fact, the eventual popularization of the Australian ballot in the U.S. is commonly attributed to Henry George's 1883 article titled Money in Elections. Notably, he writes:

To begin with what I conceive would be the greatest single reform. By adopting the Australian plan of voting, now for some years in successful operation in England, we could abolish at one stroke all the expense of printing and distributing tickets, and all the expense and demoralization consequent on the employment of “workers,” and very much lessen the importance of party nominations and party machinery. Under that plan the ballots are printed at public expense, and contain names of all persons duly registered as candidates. When the voter approaches the poll he is handed one of these ballots. He enters a compartment, where a pencil or pen and ink are provided, and, concealed from observation, strikes off the names of those he does not which to vote for, or as in England, indicates by a mark those he prefers, and then folding up the ballot, presents it… [T]he corruption of primary politics, and the practice of selling votes in nominating convents, would be destroyed, and the practice of blackmailing candidates by the so-called indorsement of political clubs whose only object is to make money, would be destroyed…[T]he practice of buying votes, and that of coercing voters by error of discharge from employment, would be in large part, if not altogether, broken up by the difficulty of telling how a man voted. There would be no putting a ticket in a man’s hand and keeping an eye on it until deposited.

CRL&P related posts:

• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Facebook "like" and First Amendment protection for the right to vote
• Remembering Tinker: The right to vote as expressive conduct
• Felon disenfranchisement, political power, and the First Amendment right to vote

Ninth Circuit declines to reconsider decision upholding CA law banning gay-conversion therapy

The Ninth Circuit said today that it will not reconsider its decision upholding California's ban on gay-conversion therapy. In August, a three-judge panel of the court held that the law did not violate the First Amendment because it regulated conduct, not speech. Indeed, the court wrote:

We conclude that the First Amendment does not prevent a state from regulating treatment even when that that treatment is performed through speech alone... [T]alk therapy does not receive special First Amendment protection merely because it is administered through speech. That holding rested on the understanding of talk therapy as the treatment of emotional suffering and depression, not speech. (citations and internal quotations omitted).

Today, the Courthouse News Service reports:

California's continued ban on gay-conversion therapy effectively hands the government a "powerful tool to silence expression," a dissenting 9th Circuit judge warned Wednesday.

 

Judge Diarmuid O'Scannlain made the remarks as his colleagues refused to hold an en banc rehearing after a three-judge panel with the federal appeals court upheld California's SB 1172.

 

The law prohibits state-licensed psychiatrists, psychologists and counselors from using sexual-orientation change therapy on patients younger than 18.

 

O'Scannlain argued Wednesday that the San Francisco-based panel who decided the issue in 2013 had improperly side-stepped the First Amendment by labeling as conduct what was essentially speech.

 

"In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California's prohibition - in the guise of a professional regulation - of politically unpopular expression," O'Scannlain wrote.

 

Empowered by this ruling of our court, government will have a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications," he added.

The strength of our commitment to First Amendment principles occasionally is tried by the deplorable crusades of bigots and twits, and I find the promotion of gay-conversion therapy to fall sqaurely within that category. Nevertheless, the First Amendment protects such speech, so I'm happy to shrug off folks promoting such beliefs when I encounter them in public. However, the mental health treatment of teenagers is a horse of a different color, so to speak. Indeed, as Ken White commented at Popehat after the release of the Ninth Circuit's initial decision:

The persuasive force of the Ninth Circuit's ruling comes from two key points. First, you can't logically object to this law in particular without objecting to the entire structure of medical regulation that the courts have permitted. In other words, if you argue that parents have a fundamental right to inflict conversion therapy on their children, I think you have to argue they have a fundamental right to select "doctors" without medical degrees or doctors who will prescribe Laetrile or even doctors who will use therapies that could be affirmatively harmful to kids, like (for instance) unregulated rebirthing therapy.

 

Second, the law does not prohibit conversion therapy of adults, and does not prohibit speech endorsing or encouraging conversion therapy. As the Ninth Circuit acknowledges, California licensed therapists can lobby and agitate for conversion therapy, tell patients and their parents they support it (and that the patient should seek it elsewhere), express their views about homosexuality and conversion therapy, recommend the therapy once the patient reaches adulthood or in other jurisdictions, and even refer minors to unlicensed persons like ministers who are free to inflict conversion therapy.

 

In short, I'm not sure how you can logically strike down this law — or even subject it to strict scrutiny — without striking down every law and regulation of medical practice that touches on any remotely controversial practice.

Criminalizing Revenge Porn

The title of this post comes from this fascinating paper by Professors Danielle Citron and Mary Anne Franks, the abstract of which states:

The non-consensual publication of non-newsworthy sexually graphic images deserves criminal punishment. It produces grave emotional and dignitary harms, exacts steep financial costs, and increases the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. Criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Profs. Citron and Franks explain that history affirms a willingness to occasionally criminalize invasions of privacy, writing:

Criminal law should have a role in deterring and punishing egregious privacy invasions like revenge porn. Criminalizing privacy invasions is not new. In their seminal article The Right to Privacy, Samuel Warren and Louis Brandeis argued that “[i]t would doubtless be desirable that the privacy of the individual should receive the added protection of the criminal law.”Since 1890, state and federal lawmakers have criminalized privacy invasions, such as the non-consensual recording of individuals in contexts where they enjoy a reasonable expectation of privacy. 

Indeed, they observe that courts have rejected claims that the First Amendment protects "certain non-consensual disclosures of private communications, such as sex tapes, on the grounds that such communications are not matters of legitimate public concern." Yet, few states have been willing to pursue the criminalization of revenge porn--i.e., the non-consensual release of private sexual communication. So far, only New Jersey and California have passed such laws. Profs. Citron and Franks argue that the ambivalence persists because (1) people don't appreciate its real harms, and (2) they misconceive the scope of the victim's consent. They claim:

One reason for society’s acceptance of non-consensual pornography is the failure to recognize the grave individual and societal harms it inflicts. Until recently, non-consensual pornography seems to have been viewed as a tolerable embarrassment. Brave victims are now speaking out to describe the physical attacks, stalking, financial costs, and psychic damage caused by this conduct. 

 

Another explanation for our inattention is the faulty assumption that a victim’s consensual sharing of a sexually explicit photograph with a trusted confidante equals a wide-ranging permission to share those images with the public. Said another way, a victim’s consent in one context is taken as consent in all contexts. Consent, however, is context-specific. Individuals who agree to being photographed or filmed for one purpose do not necessarily agree to have their images used for another. 

 

The contextual nature of consent is a staple of information privacy law. The Fair Information Practice Principles, reflected in privacy regulation and best practices, make clear that permitting an entity to use information in one context does not confer consent to use it.

Profs. Citron and Franks suggest that federal law should criminalize revenge porn--indeed, Prof. Franks is even working on federal legislation that would make internet companies liable for revenge porn posted by users. They also conclude that "[s]tates should craft narrow statutes that prohibit the publication of non-consensual pornography."

CRL&P related posts:

• California law enforcement arrest operator of revenge porn site
• Pennsylvania lawmaker expected to introduce bill criminalizing revenge porn
• School suspends teacher after receiving tip that her photo appeared on revenge porn site
• Criminalizing revenge porn need not violate the First Amendment

In Defense of 'Super PACs' and of the First Amendment

I have made a habit of posting papers debating various aspects of the post-Citizens United (pre-McCutcheon?) world of campaign finance under the First Amendment. Last week, I posted Outside Influence by Professor Anthony Johnstone, in which he explores the possibility of states and local communities regulating outside campaign spending through the "structural constitutional principles of political community"; and, yesterday, in The Last Rites of Public Campaign Financing?, Professor James Sample ponders the apparently desolate future landscape for proponents of campaign public financing.  The title of today's campaign finance contribution is also the title of this post. In In Defense of 'Super PACs' and of the First Amendment, Professor Joel Gora  argues that Super PACs are not actually the "threats to democracy" claimed by their opponents, but rather they serve as a "[boon to] speech and debate in our political process[.]" Here's the abstract:

This article is a defense of “Super PACs” and of the First Amendment principles that they embody, namely, that we need a robust, wide-open and uninhibited discussion of politics and government in order to make our democracy work. Like the famous Citizens United ruling in 2010, Super PACs have gotten a bad press and have been widely condemned as threats to democracy. But Super PACs are really nothing new. They trace their origins back to Buckley v. Valeo, the Supreme Court’s landmark 1976 free speech ruling which rejected any justification for limiting the independent expenditures for political speech. Thus, the day after Buckley, individuals and groups were free to spend whatever they wished to support or oppose political candidates.  Whether they were allowed to join together for such purposes was less clear. But Citizens United removed any lingering doubt by holding that any speaker – individual, corporate, union, non-profit – was free to make independent expenditures without prohibition or limitation. Based on those principles, a federal appeals court easily and unanimously ruled that what one person or group could do individually, several people or groups could do cooperatively, namely, pool their resources to get out their common message. That is a Super PAC.

As a result, Super PACs played a noticeable role in the 2012 federal elections. But despite popular misconception, they did not dominate or control those elections, accounting for only 10 percent of the campaign spending, almost all contributions to them were fully and publically disclosed, and almost no corporations played any role in any such Super PAC spending. Indeed, so far as is known, extremely few Fortune 500 companies have contributed to support a Super PAC. Rather, Super PACs enabled more speech and debate in our political process, a result to be desired most significantly under the First Amendment. So, rather than being a threat to democracy, Super PACs have been a boon.

CRL&P related posts:

• Old School/New School Speech Regulation
• Abrams's unsatisfying WSJ column on the 'most indefensible First Amendment ruling' this century
• California law enforcement arrest operator of revenge porn site
• Remembering Tinker: The right to vote as expressive conduct
• Facebook "like" and First Amendment protection for the right to vote

The Last Rites of Public Campaign Financing?

The title of this post comes from this paper from Professor James Sample arguing that the current state of the Supreme Court's First Amendment jurisprudence as to campaign finance has created likely overwhelming legal and political obstacles to the viability of public financing options. Here's the abstract:

In the wake of the Supreme Court’s 5-4 decision in Arizona Free Enterprise v. Bennett, this Article asserts the current predicament of public campaign financing is such that options that are still on the table under the Court’s First Amendment jurisprudence are, with only rare and idiosyncratic exceptions, fiscal and political non-starters. Conversely, options that would be, and indeed previously had been, fiscally and politically viable, are now, even after years of their routine practice in varied jurisdictions, no longer constitutional. It is, in short, simultaneously a legal and practical dilemma. 

Short of highly unlikely swings of the Supreme Court pendulum, and absent an even more unlikely constitutional amendment, cities, states, and federal government actors, who might otherwise consider allowing candidates for office to opt for voluntary public financing, now find themselves between a legal rock and a fiscal hard place: unless a jurisdiction adopts, via extraordinarily high initial lump sum funding that grossly overspends the people’s money to the point of fiscal ruin, any candidate opting in is effectively volunteering only to play the role of a sitting duck. 

On the more promising side, this Article asserts that systems that operate based on offering funding as a multiple for small-donor donations offer one potential solution to the dilemma. However, the Article ultimately contends that such systems are particularly vulnerable in jurisdictions with small populations insofar as moneyed interest groups from outside the jurisdiction can easily overwhelm, for example, even the multiplied donations of the citizens of largely rural states or jurisdictions.

Citizens United exception permits state regulation of 'outside influence' in domestic politics

In Outside Influence, Professor Anthony Johnstone argues that states could curtail "outside influence" in state and local politics without violating "the otherwise universal speaker-neutrality rule of Citizens United" under protection of "the structural constitutional principles of political community." Here's the abstract:

By what rights do outsiders influence state or local politics? "Outsiders" include an array of persons other than the citizens of the community, including non-resident individuals, corporations, and various other organizations that channel the influence of those outsiders into a state or local political process. "State or local politics" include all politics, including elections held by states for federal officials. The question recurs in voting, petitioning, campaign finance regulation, and lobbying, as well as other areas related to political activity such as corporate governance. Relatively recent developments have accelerated the nationalization of American politics. These nationalizing forces, including the strengthening of non-party national political interest groups by federal legislation and judicial decisions, and national efforts to counter those groups' interests, pose the question more urgently now. 

This article considers how much outside influence matters to the constitutional analysis of state politics. It defends the principle applied in Bluman v. FEC as an exception to the otherwise universal speaker-neutrality rule of Citizens United, applicable at the state as well as the national level, and to out-of-state as well as foreign outside interests. It does so by drawing parallels between legal efforts to police national and state boundaries in politics, and assessing the competing rights claims of outsiders to cross those boundaries and participate fully in domestic politics. The article suggests that the structural constitutional principle of political community supports certain state regulations, but not prohibitions, of outside influence across a range of political activities.

Old School/New School Speech Regulation

The title of this post comes from this intriguing paper by Professor Jack M. Balkin arguing that the development of "the digital infrastructure of communication" has expanded the opportunities for private expression, and thus has required governments to create new methods of regulating speech. Here's the abstract:

In the early twenty-first century the digital infrastructure of communication has also become a central instrument for speech regulation and surveillance. The same forces that have democratized and decentralized information production have also generated new techniques for surveillance and control of expression.

“Old-school” speech regulation has traditionally relied on criminal penalties, civil damages, and injunctions directed at individual speakers and publishers to control and discipline speech. These methods have hardly disappeared in the twenty-first century. But now they are joined by “new-school” techniques, which aim at digital networks and auxiliary services like search engines, payment systems, and advertisers. For example, states may engage in collateral censorship by threatening Internet intermediaries with liability to induce them to block, limit, or censor speech by other private parties.

Public/private cooperation and co-optation is often crucial to new-school techniques. Because the government often does not own the infrastructure of free expression, it must rely on private owners to assist in speech regulation and surveillance. Governments may use a combination of carrots and sticks, including offers of legal immunity in exchange for cooperation. States may also employ the “soft power” of government influence. Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats.

Finally, governments have also devised new forms of digital prior restraint. Many new-school techniques have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions. Prior restraints are especially important to the expansion of government surveillance practices in the expanding National Surveillance State. Gag orders directed at owners of private infrastructure are now ubiquitous in the United States; they have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible, and largely isolated from traditional first amendment protections.

(h/t Balkinization)

Where Free Speech Collides With Abortion Rights

The New York Times's Adam Liptak reports today on McCullen v. Coakley, on which the Supreme Court will hear oral arguments this Wednesday. The Court is tasked with determining the constitutionality of Massachusetts's law prohibiting anti-abortion protesters from entering a 35-foot buffer zone around abortion clinics--a challenge to the Court's 2000 decision in Hill v. Colorado. The title of this post comes from Liptak's article, which begins:

A couple of mornings a week, Eleanor McCullen stakes out a spot outside the Planned Parenthood clinic here and tries to persuade women on their way in to think twice before having an abortion.

 

But she has to watch her step. If she crosses a painted yellow semicircle outside the clinic’s entrance, she commits a crime under a 2007 Massachusetts law.

 

Early last Wednesday, bundled up against the 7-degree cold, Ms. McCullen said she found the line to be intimidating, frustrating and a violation of her First Amendment rights. The Supreme Court will hear arguments on Wednesday in her challenge to the law.

 

The state’s attorney general, Martha Coakley, who is the lead defendant in the suit, said the 35-foot buffer zone created by the 2007 law was a necessary response to an ugly history of harassment and violence at abortion clinics in Massachusetts, including a shooting rampage at two facilities in 1994.

 

“This law is access balanced with speech balanced with public safety,” Ms. Coakley said. “It has worked extremely well.”

Last week, CRL&P commented on Floyd Abrams's related op-ed in The Wall Street Journal.

Abrams's unsatisfying WSJ column on the 'most indefensible First Amendment ruling' this century

On January 15, SCOTUS will hear oral argument in  McCullen v. Coakley--the challenge to Massachusetts' law prohibiting anti-abortion protesters from coming within 35 feet of an abortion clinic. The case calls into question the Court's 2000 decision in Hill v. Colorado, in which it upheld a Colorado statute that banned protesters from coming within 100 feet of abortion clinics--or from coming within eight feet of persons approaching the facility. Yesterday, in The Wall Street Journal,  renowned litigator Floyd Abrams called Hill the Court's "most indefensible First Amendment ruling so far this century."  Abrams writes:

According to the state, the 2007 legislation was enacted in response to antiabortion protesters blocking entrances to abortion clinics, harassing women who were seeking abortions, and otherwise impeding their efforts to do so. Both federal and state legislatures had previously sought to deal with such misbehavior. Federal law punishes as a crime those who "by physical obstruction" attempt to "intimidate or interfere" with any person "obtaining or providing reproductive health services." A pre-existing Massachusetts law, passed in 2000, makes it criminal to "knowingly obstruct, detain, hinder, impede, or block another person's entry to or exit from a reproductive health facility." These statutes are narrowly drafted and do not raise any plausible First Amendment objections.

 

In contrast, the 2007 Massachusetts law, with its 35-foot exclusion zone, is anything but narrow in its impact. It effectively prevents Eleanor McCullen and her colleagues from engaging in entirely peaceful, nondisruptive antiabortion advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective. This is what First Amendment law refers to as "overbreadth"—laws that in the course of criminalizing constitutionally unprotected speech or activities limit or impair speech that is fully protected.

Sadly, Abrams failed even to acknowledge perhaps the most relevant precedent in this case: Burson v. Freeman.  In Burson, the Court considered a challenge to a Tennessee statute that prohibited among other things "the display of campaign posters, signs or other campaign materials, [or the] distribution of campaign materials" within 100 feet of a polling place. The Court concluded that the exercise of First Amendment rights at the polling place "[conflicted] with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud." Thus, the statute was constitutional.

Like the right to vote, the Supreme Court decision in Roe v. Wade confirms that abortion is a fundamental right.* In both cases, the law restricts First Amendment speech in places where illegal activity has been shown to disrupt the exercise of another fundamental right; the Court's decision in Burson also "effectively prevents...entirely peaceful, nondisruptive [political] advocacy via the distribution of leaflets and oral advocacy at the very places it is most likely to be effective." 

Perhaps Abrams opposes Burson, too. Perhaps not. Or, perhaps he would distinguish the two cases. We don't know, because he didn't say. It would have been helpful for "[t]he dean of the First Amendment bar" to clarify his position.

* Although calling the right to vote fundamental, the Court's jurisprudence makes clear either 1) it is not fundamental; or 2) the Court is confused as to what the right's fundamental status means. But more on this later.

(h/t WSJ's Law Blog)

Speak! If you're into that sort of thing...

Today in Forbes, columnist Doug Bandow enters the Free Speech/'Duck Dynasty' kerfuffle by way of his request from Santa to "stop people from confusing the First Amendment with free expression." He starts off well, too. He correctly notes: 

The A&E network suspended Robertson, but that has nothing to do with the First Amendment, which protects against government suppression of speech. Instead, if I don’t like something you say and don’t want to work or even associate with you, that is just life. In a free society that should be my right—both of expression and association—as basic as your right to voice your opinion.

 

Of course, your family then can threaten to stop working with me, as Robertson’s family has warned A&E. And viewers and potential viewers can decide whether they want to watch or not, which seems to be what most of the country is talking about at the moment. But this battle has nothing to do with the Constitution and the essential framework for a free society. 

All's good and well. I'm in total agreement. Great.

But then Bandow goes further by asking people to refrain from speaking out against speech they find offensive. He writes:

A separate wish, but highlighted by the Duck Dynasty imbroglio, is that people would stop turning every little controversy into a matter of high moral outrage. Why should anyone get excited about what someone on a silly television show says off the set? In a large, complex society like our own, lots of people will believe things and behave in ways which irritate and even outrage us. Life will be better if we generally tolerate the opinions and actions of others.

 

But there’s no reason to turn the world upside down in response to those who believe ObamaCare will make medicine affordable, consider homosexuality to be a sin, think Republicans are terrible people, don’t like atheists or Catholics (or both), make stupid gender-, race-, or ethnic-based remarks, or are generally obnoxious and clueless. You don’t like what they said/did? Minimize your contact at work. Avoid them at the Christmas party. Don’t visit their barbershop. Refuse to respond to their provocations.

 

But don’t try to drive everyone you disagree with from the public square. We all benefit from a diverse, vibrant, and provocative public environment despite the irritations and offenses caused by some. A world turned ever more intolerant, nasty, and threatening by zealous PC police of all sorts will be a truly depressing place. Not to mention that we might end up as victims of the new public Star Chamber as well.

First, A&E is not "public square." Robertson's opponents want his microphone taken away, not the suppression of his ideas. That is, Robertson may continue to say exactly what he believes, but his opponents prefer that he do so from a street corner. The right to free speech is not the right to amplified speech.

Second, the First Amendment envisions precisely the type of confrontation from which Bandow wishes people to shirk. It contemplates the need for individuals to speak out against ideas and opinions with which they disagree, and to offer the solutions they believe will best serve society.

The First Amendment's protection of free and open discussion of ideas is further premised on the understanding that such freedom promotes the social good. That is, only in a free and open marketplace of ideas can citizens make the best judgments about the direction of society and its government. As First Amendment scholar Thomas Emerson wrote:

[Human judgment] can seldom rest at the point any single person carries it, but must always remain incomplete and subject to further extension, refinement, rejection or modification. Hence an individual who seeks knowledge and truth must hear all sides of a question, especially as presented by those who feel strongly and argue militantly for a different view. He must consider all alternatives, test his judgement by exposing it to opposition, make full use of different minds to sift the true from the false...

 

More importantly, the same reasons which make open discussion essential for an intelligent individual judgment make it imperative for rational social judgments. Through the acquisition of new knowledge, the toleration of new ideas, the testing of opinion in open competition, the discipline of rethinking its assumptions, a society will be better able to reach common decision that will meet the needs and aspirations of its members.

How is the marketplace served if people refrain from entering it?

It's not. And calls for people to refrain from entering that space are no less confused than those from people claiming Robertson's suspension oppresses his freedom to speak. 

The Founders imagined a couragous people, not a cowardly one.

CRL&P Daily Reads: Dec. 14, 2013

NSA, Cyber Command will remain under the control of one military officer; NSA's top civilian official is retiring at the end of the year; but, NSA has already undergone many changes.

Gun control activists leave Capitol Hill to build up infrastructure in the states, while support for tighter gun laws lessens; gun violence is a daily reality for some schools; Politico says Utah is America's gun permit mill; and, CNN columnist says 'Background checks pose no threat to legal gun ownership.'

Detroit's bankruptcy disrupts settlement payments to the man whose wrongful conviction landed him in prison for nearly a decade.

Tea Party groups suing county officials in Texas for denying them use of the county courthouse. 

The Revenge Porn Avengers.

 

California law enforcement arrest operator of revenge porn site

San Diego police yesterday arrested the operator of a revenge porn site and charged him with "31 counts of conspiracy, identity theft, and extortion." According to The Los Angeles Times:

A 27-year-old San Diego man was arrested Tuesday on suspicion of operating a "revenge porn" website and demanding up to $350 to remove sexually explicit photos of women that were often posted by angry former boyfriends or ex-husbands.

 

Kevin Christopher Bollaert was arrested by California Department of Justice agents and is being held at San Diego County jail on $50,000 bail. He faces 31 felony counts of conspiracy, identity theft and extortion.

 

"Online predators that profit from the extortion of private photos will be investigated and prosecuted for this reprehensible and illegal internet activity," said Atty. Gen. Kamala D. Harris.

 

Bollaert allegedly created a website in December 2012 that allows the anonymous posting of nude and sexually explicit photos. The website required that the poster include the subject's name, location, age and Facebook profile.

 

Prosecutors said more than 10,000 images were posted, from California and other states.

As I have said, I believe that laws that subject to criminal liability people who send sexually explicit images of an ex-lover without their consent could be crafted so as to conform to the First Amendment.  This case, however, raises the more difficult question as to whether online publishers of revenge porn ought to be subject to prosecution.

In Bartnicki v. Vopper, the Supreme Court held that the publication of material illegally obtained by a third party is protected by the First Amendment. The Court said: "In this case, privacy concerns give way when balanced against the interest of publishing matters of public importance...We think it clear that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." 532 U.S. 514, 536 (2001). However, the Court emphasized that its ruling applied narrowly to matters of "public concern," and it is still unclear what qualifies as such. One would think that revenge porn wouldn't qualify...

Further, assuming that revenge porn is a matter of public concern, there is the question as to whether revenge porn could be considered to have been illegally obtained by a third party. Arguably, revenge porn generally is not obtained illegally; the third party presumably received the image (or took it himself) from its subject. 

In this case, the site operator charged the victims of revenge porn to have pictures of them removed from his site, which perhaps makes this case easier. But, suppose he took the pictures down willingly; and/or suppose he did not include the names or locations of the victims... 

These issues and others will continue to arise as more states criminalize revenge porn. Lawyers and legislators will have to draw lines differentiating the legal from the illegal, which will make these debates increasingly interesting for legal scholars--but painful for victims. 

CRL&P related posts:

• School suspends teacher after receiving tip that her photo appeared on revenge porn site
• Criminalizing revenge porn need not violate the First Amendment
• Bloomberg.com editorial weighs in on revenge porn debate
• Pennsylvania lawmaker expected to introduce bill criminalizing revenge porn

CRL&P Daily Reads: Dec. 11, 2013

NSA takes advantage of 'cookies' used for advertising to track surveillance targets.

Federal judge rejects California AG's request for dismissal in case challenging law requiring 10-day waiting period for gun owners.

Cruel and unusual punishment suit after prisoner placed in solitary confinement for one month could cost taxpayers.

American man claims discrimination after the California Department of Corrections denied him a job because he had previously used a false SSN, while in Illinois this guy still has a job.

Amendment aimed at protecting sexual assault victims scrapped as Congress passes the National Defense Authorization Act.

Bill introduced in the Senate to eliminate state laws regulating the sexual activity of people with HIV.

Chinese Law Prof is expelled for criticizing China's one-party government.

Man convicted of a hate crime after attacking a Sikh cab driver to serve more than three years in prison. 

And, a six-year old is suspended after kissing a classmate on the cheek. I wonder if he would have received similar punishment if had hit her.

 

The New Software Jurisprudence and the Faltering First Amendment

In his upcoming article, Professor Liam O'Melinn explores the First Amendment's applicability to computer code and finds that "the new software jurisprudence" is seriously jaundiced because of misunderstandings about the free software movement. The title of this post comes from his article, of which the abstract states:

Courts have recently begun to respond to the call to provide First Amendment protection for software, with ominous results. A debate has raged over the past several years over whether or not computer code should be considered “speech” and therefore be entitled to the full protection of the First Amendment. An examination of important decisions in recent cases attempting to settle this debate requires a revision of the basic assumption that the First Amendment will offer effective protection to programs, their authors, and their users. While there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term “the new software jurisprudence,” cast severe doubt on the ability of the First Amendment to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more,with the ironic result that the First Amendment may now be used to justify the suppression of expression rather than to prohibit such suppression. 

 

This line of jurisprudence for software threatens a legal revolution premised on the belief that the specter of copyright infringement represents a perpetual emergency. At the same time, it is evident that this legal revolution will have to contend with a counter-revolution brought about by the free software movement. DeCSS represents only the tip of an iceberg which has thus far escaped real notice by the law, but the movement is becoming so important that it will force itself to be recognized. Indeed, it has already mounted a vigorous and to this point successful assault on the trade secret status of the technology which the movie industry has chosen to protect its content. A full investigation of the importance of this phenomenon lies well beyond the scope of this article; for the moment it must suffice to note that the character of open source software and the people who produce it will challenge the legal and economic assumptions at the heart of the law of intellectual property. Free software is not the product of pirates who steal from others and vend their wares in dark corners. Nor is it brought about by the incentives which, according to conventional thinking, are necessary conditions to creativity. The creation of free software, moreover, is an expressive activity which will leave its impress on the law. 

 

As time goes on, the free software programmers will require a revision of the now familiar role of equity in copyright law. The high quality of the software they create, coupled with its truly democratic rights of access, will provide the most telling challenge to the notion that only monopolistic economic incentives can lead to creative excellence. Finally, as their favorite mode of expression works a revolution not only in the way we communicate but in our very conception of property, they will effect fundamental changes in the way in which the law links expression and function . Unfortunately, it is not clear that the First Amendment will help them in their work. The courts have promised to develop legal and constitutional standards appropriate to the character of software, but in this effort they have largely failed. When they begin to focus less on the specter of piracy and more closely on the nature of software and the democratic access to information which it promotes, they will come closer to developing a novel and vital jurisprudence and to fulfilling their promise.

CRL&P Daily Reads: Dec. 10, 2013

Allegedly illegal strip searches in Milwaukee jail could cost the city millions; man acquitted of drug charges files a civil rights suit against FBI alleging malicious prosecution; police face civil rights suit after officer pleads guilty to child porn; jail staff knew diabetic woman in their care needed insulin perhaps days before she died; Miami Gardens police allegedly used excessive force and denied medical treatment to arrestee; and, man was killed by a police officer who had accidently been tased by another officer.

Atlantic says Obama misled MSNBC's Chris Matthews on NSA surveillance; Guardian reflects on how the debate over surveillance has changed since Snowden's leaks; Nobel-winning writers say NSA surveillance is compromising freedom; Bill Clinton worries about the NSA's collection of economic data; and, NSA makes tech companies worry about profits.

Federal judge holds journalists have no constitutional right to be embedded with military; and, ACLU says prison officials violated the First Amendment by denying reporters access to prisoners after a riot.

Gun manufacturers doing better than before Newtown.

Same-sex couples race to challenge Texas's same-sex marriage ban; and, this graph shows geographical online efforts to promote gay-rights.

 

Pennsylvania lawmaker expected to introduce bill criminalizing revenge porn

Pennsylvania may be the next state to consider whether to enact legislation criminalizing revenge porn--generally, the non-consensual distribution of nude or sexually explicit photos or videos with the intent to cause emotional distress. State Sen. Judy Schwank (D) is expected to introduce a bill that would make revenge porn a second-degree misdemeanor:

"The nature of these acts is particularly personal and malignant, and the abuse can be devastating to victims, who nationally have lost jobs, had relationships with family and friends severely damaged and found themselves stalked by strangers," Democratic state Sen. Judy Schwank wrote in a memo to other senators seeking co-sponsors for her bill.

 

Currently, authorities can try to punish people through existing laws such as harassment, but Schwank said that isn't always easy and doesn't carry enough penalties.

 

"Even harassment charges apparently would apply only if there is a repeated course of conduct despite the reality that a single Internet posting can result today in an infinite number of viewings," Schwank wrote in her co-sponsorship memo.

 

She said her legislation would make posting such images a second-degree misdemeanor, which is a grade higher than harassment. If the victim is a minor, the penalty would be steeper, a third-degree felony.

Last week, Delegate-elect Marcus Simon introduced a revenge porn bill in the Virginia General Assembly, which the House of Delegates is expected to consider in January. Several other states are considering similar bills, but only California and New Jersey actually have passed such laws. 

With websites peddling revenge porn reportedly growing, these bills seek to provide protection to victims for whom remedies are usually inadequate.

Victims of revenge porn are typically women--like this teacher who was recently suspended from teaching after the school discovered a nude photo of her on a revenge porn site. However, this is not always the case. Recently, a male doctor was the victim of a vengeful ex-lover who retaliated by posting pictures he had sent her. According to The Cincinnati Enquirer:

He was a doctor having an affair with a married patient he was treating for depression.

 

He sent her lewd pictures and videos of himself. When their affair ended, she accused him of retaliating by getting her fired. She responded by posting online the explicit pictures and videos he’d sent her. Then, he asked a judge to force her to keep his pictures private.

 

The case, playing out before Hamilton County Common Pleas Court Judge Norbert Nadel, illustrates the new privacy battles being waged after bitter breakups and relationships forged in an increasingly online world. Similar cases have helped spawn a new catch phrase – “revenge porn” – and have caused legislators to change laws in some states.

 

“The reason for its increase is convenience,” said lawyer John Garon, director of the Northern Kentucky University Law + Informatics Institute. “The camera has become part of the bedroom.”

 

Amelia’s Dolly Beattie is suing Terrence McCoy. She accuses McCoy of taking advantage of his status as her doctor while having sex with her.

Opponents of such legislation typically are concerned that these laws chill protected speech. But, as CRL&P has argued, such forecasts seem improbable. Revenge porn is capable of such narrow defintition that carefully crafted legislation likely would not affect protected First Amendment speech.

CRL&P related posts:

• School suspends teacher after receiving tip that her photo appeared on revenge porn site
• Criminalizing revenge porn need not violate the First Amendment
• Bloomberg.com editorial weighs in on revenge porn debate
• Third Circuit finds middle schoolers’ “I ♥ boobies” bracelets protected by First Amendment
• Facebook "like" and First Amendment protection for the right to vote

CRL&P Daily Reads: Dec. 9, 2013

Senate likely to extend ban on plastic guns, but nexus of gun-control debate has shifted to the states; and, four of five members of the city council in rural Rhode Island town face recalls after recommending changes to process for issuing concealed weapons permits.

Obama about ready to announce changes to NSA surveillance program; major tech companies submit open letter to Obama and Congress demanding new limits on NSA's freedom-harming surveillance; Snowden might testify before the EU Parliament's committee on civil liberties; local law enforcement is using software in NSA-style monitoring of cellphone data, and here's how it does it; and, Sen. Paul calls for a renewed commitment to the Fourth Amendment.

Rutger's basketball player alleges civil rights violations against former coach for allegedly repeated verbal and physical abuse; and, New Orleans settles civil rights lawsuit alleging man was falsely arrested and held for five months.

Editorial lambasts New Mexico prison for placing 71-year-old in solitary confinement for one month on suspicion of bringing meth into the facility.

Internet companies speak out against former Cincinatti Bengals cheerleader's defamation suit after federal judge allows it to proceed.

Lexington facing protests after booking for its New Years Eve party a DJ who previously ran a revenge porn site.

 

CRL&P Daily Reads: Dec. 7, 2013

Federal court hears case alleging the heat on death row in a Louisiana prison is unsafe; civil rights lawsuit filed alleging that a diabetic inmate died because the prison failed to provide adequate medical care; and, civil rights lawsuit alleges the police in a Miami suburb targeted African-Americans.

Fourth Circuit orders gun found on a convicted felon suppressed because it was obtained during an illegal search.

Americans are more deeply divided on gun policy than before Newtown; Plain Dealer columnist contrasts Newtown parents efforts to keep children safe from guns with those of gun-rights activists; and, Georgia man mistakingly kills a man suffering from Alzheimer's.

Iowa Supreme Court upholds law banning non-residents from hunting on property that they own.

Amish girl refuses chemo.

Panel discusses 'Who's afraid of free speech' at Newseum; and, South Carolina sheriff refuses to lower flag to honor Mandela.

 

School suspends teacher after receiving tip that her photo appeared on revenge porn site

A Cincinnati-area school has placed one of its teachers on administrative leave after receiving a tip that a nude photo of her had been posted on a revenge porn site, according to USA Today. Although the school has not released the teacher's name, it did send email to staff and parents of its students explaining the situation. Thus, by simply deducing which faculty member has been absent, the school community could easily determine her identity.

Several states are considering whether to enact laws criminalizing revenge porn, but only California and New Jersey have actually passed such laws. Anti-revenge porn activists also will ask Congress to enact federal laws to protect victims of revenge porn.

Opponents have expressed concerns that such laws will chill protected First Amendment speech on the internet, while others worry that such laws  will reach "fine art." But, narrowly tailored legislation criminalizing only the nonconsensual posting of nude images likely would not have that affect.

CRL&P related posts:

• Criminalizing revenge porn need not violate the First Amendment
• Bloomberg.com editorial weighs in on revenge porn debate
• Facebook "like" and First Amendment protection for the right to vote
• Third Circuit finds middle schoolers’ “I ♥ boobies” bracelets protected by First Amendment

CRL&P Daily Reads: Dec. 4, 2013

Georgia prosecutors struggle to decide whether to apply stand-your-ground law to man who shot Alzheimer's patient who attempted to enter his house; House passes gun-control bill, but Sen. Schumer hopes for broader reforms; Politico explains why gun control advocates might have to settle for small gains; guns and ammunition have been stolen from Dallas SWAT; student brings a stun gun to a Cleveland Heights elementary school; and, one teacher explains why she talks to her middle-school students about guns.

Three couples challenge Utah's same-sex marriage ban.

Federal judges question the Wisconsin law requiring abortion clinics to have admitting privileges at nearby hospitals.

First Amendment controversy continues to brew after Pheonix bans gun-rights activist's 'Gun Saves Lives' billboard.

Snowden was considered for Walters's 'Most Interesting Person of the Year'; and, The Atlantic informs us that there was a pre-Snowden Snowden (with perhaps a less villanous name--Yardley).

 

CRL&P Daily Reads: Dec. 2, 2013

SCOTUS rejects challenge to the ACA's employer mandate as it prepares to hear challenges to ACA's contraceptive coverage mandate.

Think Progress says Texas's voter ID law could produce six-hour delays to vote.

Guardian explores how the pact between the U.S and U.K. led to modern surveillance; and, Glenn Greenwald responds to continued attacks over his release of Snowden's NSA leaks.

Constitutional Law Prof Blog previews oral argument in an upcoming First Amendment case: U.S. v. Apel.

NPR examines 'forgotten' issue of fair housing.

Albaquerque looks to reform its allegedly costly intiative process.

Next LA fire chief will have to deal with legacy of race and sex discrimination.

SCOTUS doesn't have enough to do.

 

CRL&P Daily Reads: Dec. 1. 2013

Kansas City Star editorial says electoral reforms should focus on making voting easier for eligible voters; and, The New Republic explains how this might be accomplished.

Guardian columnist explores some of the consequences of the continuing controversy over the NSA's surveillance program.

SCOTUS to decide whether government can prevent some from protesting based on security interests.

Woman wants Mississippi to recognize same-sex marriage so that she can get a divorce; and, lawmaker challenges Hawaii's new law legalizing same-sex marriage in court.

Women still make less than men for the same work.

Americans still don't agree on gun policy; and, man makes a gun made from things available at airports.

NPR explores pilot program that provides public defenders to immigrant detainees.

 

CRL&P Daily Reads: Nov. 30, 2013

Three-judge panel reverses dismissal favoring City of Chicago in case alleging it responds more slowly to 911 calls made by Blacks and Hispanics.

WaPo explains how recent abortion decisions affected the Senate's debate over the filibuster.

Columbus Dispatch explores Ohio Bureau of Motor Vehicles panel criteria for reviewing vanity plates.

Voting rights activists claim Los Angeles County redistricting discriminates against Latinos; and, Cleveland Plain Dealer editorial board says pending voting bills restricting early voting and mandating ballot uniformity are voter suppression measures.

French parliament wants to impose new fines on solicitors of prostitution services.

 

CRL&P Daily Reads: Nov. 27, 2013

Revelations about the extent of the NSA's surveillance program could put international data-sharing agreements at risk; federal judge hears arguments regarding the release of DOJ documents on the legality of NSA's surveillance program; The Atlantic explores the inception of the NSA; and, Microsoft will change encryption to prevent NSA surveillance.

Texas National Guard will allow same-sex couples to apply for benefits immediately; gay teen banned from mall at which he allegedly was attacked; Kentucky couple fined one cent for remaining in county clerks office after closing time to protest same-sex marriage ban; and, judge okays terminally ill woman's request to marry her female partner before Illinois same-sex marriage law becomes effective.

Colorado Democrat resigns after gun-rights advocates successfully petition for her recall; and, Plain Dealer guest columnist argues that Ohio legislature should pass gun-safety laws to prevent children from accessing guns.

Voters claim Lousiana segregated African Americans into one racially-gerrymandering congressional district.

SCOTUS to hear arguments as to constitutionality of ACA's contraceptive rule; and, it will consider the First Amendment rights of Bush protesters alleging official's attempts to disperse them were not supported by valid security interests.

 

The New Speech

The title of this post comes from this fascinating article inquiring into the potential for First Amendment challenges as technological developments produce new speech platforms. Here's the abstract:

Could the government prevent Facebook from deleting an individual’s Facebook account without first following government-prescribed procedures? Intervene to require Google to conduct its search engine rankings in a certain manner, or subject Google to legal liability for wrongful termination or exclusion? Require social networks and search engines to prominently reveal the criteria by which their algorithms sort, order, rank, and delete content? Demand that some user information or data be deleted, withheld, made inalienable, non-transferable, ungatherable or uncollectable? Engage in detailed regulation of the intellectual property and privacy relationships that inhere between individual users and the platforms they engage?

Each of these questions implicates the First Amendment, and as each question reveals, the same stresses that strained the institution of property when Charles Reich wrote The New Property in 1964 confront digital speech in 2014. The most important “speech” of the next century will be generated, intermediated, transformed, and translated by massive computers controlled by powerful institutions: petitions in front of the shopping mall replaced with “Likes” on Facebook and “Votes” on Reddit; sports leagues replaced by leagues of Counter-Strike and Call of Duty; broadcast and cable news replaced by interactive, algorithmically-generated, computer-curated granularly distributed news memes spread via blogs and aggregators.

As more of the activities that were once exclusively the province of the physical world become the province of the digital, more of the issues that once confronted the distribution and allocation of rights in property will confront the distribution and allocation of rights in speech. While the great speech debates of the twentieth century were about the content of speech — that is, what one could say — the great speech debate of the twenty-first century will be about what counts as speech and whose speech counts. Will it be that of institutions and algorithms, or individuals and organic communities?

These are questions courts are already confronting and they are getting the answers wrong. In contrast to scholars who by turns either deemphasize the transformative nature of the New Speech or argue that courts will have little impact on its growth, this Article argues that potentially critical judicial missteps are already occurring. Just as the needs of modern industrial society were delayed and often stymied by the judiciary of the early twentieth century, if we fail to consider the implications of the speech decisions courts make now, the needs of the modern information society may be delayed and stymied by the judiciary of the early twenty-first.

This Article is an effort to explore the ways in which speech platforms represent a new challenge to the First Amendment, one that will require it to bend if we are to prevent the Lochnerization of the Freedom of Speech. It ties together various threads — the power of automation, the centrality and power of Internet media platforms, the doctrines developing in the courts, the actual acts of censorship in which these platforms regularly engage, and the core purposes the First Amendment was designed to serve — to make a sustained argument that we must think seriously about restructuring and dejudicializing the First Amendment if we are to avoid seeing the First Amendment transformed into a powerful shield for the very sorts of censorship it was written to prevent.

 

Remembering Tinker: The right to vote as expressive conduct

A CRL&P reader recently brought to my attention the Tinker Tour, an ongoing event by the Student Press Law Center to educate students about their First Amendment rights. The tour commemorates the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, in which the court affirmed the First Amendment right of high school students to wear black armbands in protest of the Vietnam War.

On Tuesday, Mary Beth and John Tinker visited their former high school to speak to students. The Des Moines Register reports:

The Tinkers were among five Des Moines students suspended in December 1965 for wearing the black armbands.

The siblings received hate mail after their 1965 suspension. The window of the family car was shattered by a brick. Someone threatened to bomb their home. But with the help of American Civil Liberties Union attorney Dan Johnston, they continued to fight for their rights.

After attempts to repeal the decision were shot down by the local school board, the Tinkers, along with then-16-year-old Roosevelt High School student Christopher Eckhart, took their case to court.

The resulting 7-2 U.S. Supreme Court decision guaranteed that students today have the right to express their opinions without fear, said Mike Hiestand, an attorney with the Virginia-based Student Press Law Center, a sponsor of the Tinker Tour.

Tinker is particularly interesting for what the case says--or doesn't say--about what expressive conduct qualifies as speech under the First Amendment, which, of course, depends on context. Writing for the Court, Justice Fortas found "that the wearing of an armband for the purpose of expressing certain views is the type of symbolic act that is within the Free Speech Clause of the First Amendment"; the wearing of the bands "was closely akin to 'pure speech.'" Ibid. at 505. Specifically, the Court observed that the students wore the "black armbands...to exhibit opposition to this Nation's involvement in Vietnam" at a time when the justness of that involvement was being hotly debated. Ibid. at 510-11. ("They wore [the armbands] to exhibit their disapproval of the Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example, to influence others to adopt them." Ibid. at 514. ). "[W]e do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet," wrote Justice Fortas. Ibid. at 513.

CRL&P readers know that I believe that the right to vote ought to be protected First Amendment speech. The Tinker case is another example of protected expressive activity that does not materially differ from public voting.

Although voters today choose candidates on the basis of a complicated set of policy issues, this certainly was not the case in the American colonies and the early American Republic. In Voting in Provincial America, Robert J. Dinkin emphasizes "the major concerns of the state were confined to providing defense against external enemies and keeping internal order." As such, the task of voters "was to choose from among rival candidates the men he believed to be the best leaders[.]"

At that time, voting itself had persuasive value. As Richard R. Beeman describes in his book The Varieties of Political Experience in Eighteenth-Century America, viva voce voting commenced with the most prominent men voting first. As such, candidates hoping to win elections would court these men in hope that their support on Election Day would convince voters down the line to support them. George Washington learned this lesson the hard way, losing his first election badly. But, he changed his strategy, and several years later won a seat in the House of Burgesses. As Beeman wrote: "The strategy of marshaling a prominent display of support early in the election was, at least in this case, highly successful, as Washington raced to an early lead that only grew as the day wore on."

Public voting evinced voters' support for candidates and parties, and such practices continued until the end of the 19th century. The Court has granted First Amendment protection to similar expressive acts, as it did in Tinker. Now, the Court ought to extend such protection to the right to vote as well.

For more on the Tinker's story, see Kali Borkoski's commentary on SCOTUSblog.

CRL&P related posts:

• Facebook "like" and First Amendment protection for the right to vote
• Felon disenfranchisement, political power, and the First Amendment right to vote
• A surprising story about unsurprising circumstances: political partisanship burdening the right to vote
• Criminalizing revenge porn need not violate the First Amendment
• Third Circuit finds middle schoolers’ “I ♥ boobies” bracelets protected by First Amendment.

 

CRL&P Daily Reads: Nov. 21, 2013

Many believe NSA intrusions go too far, and most Americans believe Snowden leaks harmed national security; President Reagan played a role in NSA's development; NSA spies on Britons despite no-spying pact; and, Toomey & Kaufmann argue that the problems with NSA surveillance are the result of too much secrecy.

Wisconsin Supreme Court to hear challenge to voter ID law; proponent of Wisconsin voter ID law claims that people who can't vote just don't care; and, Massachusetts House approves early voting and online registration.

Online impersonators are not protected by the First Amendment, according to the Pennsylvania Supreme Court.

Disgruntled businessman uses newspaper editor's name to direct people to hardcore porn website.

Police use of license plate readers draws criticisms from privacy groups.

Rep. John Lewis speaks about President Kennedy's complicated relationship with civil rights.