Constitutional Law Prof Blog

Third Circuit: First Amendment Right to Record Police

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

 In its opinion in Fields v. City of Philadelphia, the Third Circuit concluded that "Simply put, the First Amendment protects the act of photographing, filming, or otherwise recording police officers conducting their official duties in public."  As the panel majority opinion by Judge Thomas Ambro noted, "Every Circuit Court of Appeals to address this issue (First, Fifth, Seventh, Ninth, and Eleventh) has held that there is a First Amendment right to record police activity in public"; the Third Circuit joined "this growing consensus."

The court noted that police recording has become "ubiquitous" and that such documentation has "both exposed police misconduct and exonerated officers from errant charges."  In considering whether the recording was First Amendment expressive activity, the court noted that the case was "not about people attempting to create art with police as their subjects. It is about recording police officers performing their official duties." Thus, at stake is the First Amendment protection of the "public's right to know": "Access to information regarding public police activity is particularly important because it leads to citizen discourse on public issues, “the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”

While the right is not absolute, the court noted that there was nothing in the situation before it to warrant a discussion of the limits to this constitutional right:

Defendants offer nothing to justify their actions. Fields took a photograph across the street from where the police were breaking up a party. *** If a person’s recording interferes with police activity, that activity might not be protected. For instance, recording a police conversation with a confidential informant may interfere with an investigation and put a life at stake. But here there are no countervailing concerns.

Fields, using his iPhone, was noticed by an officer who then asked him whether he “like[d] taking pictures of grown men” and ordered him to leave. Fields refused, so the officer arrested him, confiscated his phone, and detained him. The officer searched Fields’ phone and opened several videos and other photos. The officer then released Fields and issued him a citation for “Obstructing Highway and Other Public Passages.” These charges were withdrawn when the officer did not appear at the court hearing.

Fields, along with Amanda Geraci who had been involved in a separate incident involving recording, brought 42 U.S.C. § 1983 claims for retaliation for exercising their First Amendment rights.  Thus, the court confronted the question of qualified immunity. The court held that at the time of the incident - - - 2013 for Fields - - - it was not sufficiently "clearly established" so that the law "gave fair warning so that every reasonable officer knew that, absent some sort of expressive intent, recording public police activity was constitutionally protected."

Dissenting in part, Judge Nygaard concluded that the right was clearly established.  In addition to the "robust consensus" before the conduct at issue, the Philadelphia Police Department's own "official policies explicitly recognized this First Amendment right well before the incidents under review here took place." For Judge Nygaard, "no reasonable officer could have denied at the time of the incidents underlying these cases that efforts to prevent people from recording their activities infringed rights guaranteed by the First Amendment."

Certainly, after Fields v. City of Philadelphia, no reasonable officer could now successfully argue that there is not a First Amendment right to record police activity. 

[image via]

Daily Read: On the 50th Anniversary of Loving, A Look at its Portrayal in Film

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

 In Loving v. Virginia, decided June 12, 1967, the United States Supreme Court unanimously held that the Virginia statute criminalizing marriage between White and (most)non-White persons violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  The case has become an iconic one, not only because it explicitly states that the Virginia law was "obviously an endorsement of the doctrine of White Supremacy," but also because it identifies the "freedom to marry" as "one of the vital personal rights essential to the orderly pursuit of happiness by free men." 

Creighton Law Review hosted a symposium for the 50th anniversary of the case and the issue is just published.

Among the terrific articles is one that considers the Hollywood film, released last year, as well as the previous documentary.  In the important contribution Filmic Contributions to the Long Arc of the Law: Loving and the Narrative Individualization of Systemic Injustice, Alanna Doherty argues that the film, and to a lesser extent the documentary "repackages the Lovings’ historic civil rights struggle against wider systemic oppression as a personal victory won by triumphant individuals through the power of love."  This individualization through narrative, she argues, obscures the collective and civil rights struggle that is the ground of the action the film portrays. Likewise, the "White Supremacy" of the state is attributed to a few rogue individuals. Doherty argues that such individualization is not only limited, but also accounts for the post-Loving developments in equality doctrine regarding affirmative action:

Both Loving (the film) and Fisher [v. University of Texas at Austin] (the case) present their stories of individualized racial harm at the cost of avoiding meaningful recognition of systemic injustice. While in Loving this may seem positive due to the nature of the decision, and although in Fisher the court ultimately upheld the admissions policy, harmful ideological work is still being done to our socio-legal consciousness. In Fisher, the Court set injurious legal precedent in how it evaluates affirmative action programs—under intense scrutiny and with such little deference that fewer, if any, will pass constitutional muster. And because law is an embodiment of social practices interacting with cultural conceptions in noetic space, a trend in cinematic and legal narratives to shirk responsibility for holding oppressive institutions accountable only furthers a reciprocity with cultural ideology that moves the law away from helping those most vulnerable under it.

[footnotes omitted].

And yet, even as Loving (the film) is subject to critique as being limited, sentimental, and nostalgic, Doherty ultimately contends that the film has legal relevance given our fraught political landscape:

perhaps the cultural and legal imagining that needs to be done in the noetic space of 2017 is one grounded in the inspiring recognition of triumphant small-scale love. Maybe what Loving truly contributes to such a tumultuous cultural moment is the notion that not only must we continue to commit to fights we should not have to fight, but that if we want to take care of each other even when the law fails us, we must decide to keep loving.

 

 

NY Federal Judge Declines To Enjoin Prohibition of Ballot-Selfie

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

In the opinion in Silberberg v. Board of Elections of New York, United States District Judge P. Kevin Castel denied a motion for a preliminary injunction against NY Election Law §17-130(10), originally enacted 126 years ago, which makes it a misdemeanor for a person to "show" a ballot after it is prepared for voting to any person. 

Judge Castel's central rationale for denying the motion relied on the age of the statute compared with the litigation:

This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well- intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.

The age of the statute also figured into Judge Castel's First Amendment analysis, distinguishing the NY statute from the ballot-selfie prohibition of New Hampshire the First Circuit recently declared unconstitutional in Rideout v. Gardner. The New Hampshire statute had been recently enacted: it would be difficult for the state to provide evidence of what would happen should the statute be invalidated and the statute was not directed at any specific technology.

While Judge Castel's First Amendment analysis is cogent, it is not entirely convincing. It may be that New York's statute violates the First Amendment, but the judge made it clear that a preliminary injunction this close to an election was not the vehicle to do so.

First Circuit: Statute Prohibiting "Ballot Selfies" Violates First Amendment

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

In its opinion in Rideout v. Gardner, the First Circuit, affirming the district judge, held that New Hampshire's prohibition of "ballot selfies" violates the First Amendment.

New Hamp. Rev. Statute §659.35, I, was amended in 2014 to provide:

No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

(amended language underlined). The rationale for the statute was to prevent situations in which voters could be coerced into providing proof that they voted in a particular way, and thus as a means to prevent vote-coercion or vote-buying. 

polling place 1900 via

Judge Sandra Lynch's succinct opinion for the First Circuit panel includes a discussion of the nineteenth century practice in which political parties and other organizations had the power to print their own ballots, which they printed in a manner as to make the ballots easily identifiable by size and color.  "This practice allowed the ballot-printing organizations to observe how individuals voted at the polls, which in turn created an obviously coercive environment. "  Thus, "New Hampshire undertook a series of reforms to combat widespread vote buying and voter intimidation" and in 1891 passed legislation requiring the Secretary of State to prepare ballots for state and federal elections, and in 1911 passed the precursor statute forbidding any voter from allowing the "ballot to be seen by any person, with the intention of letting it be known how he is about to vote."

New Hampshire's problem in defending the constitutionality of the 2014 statute is that the problem of vote-buying and coercion has been solved.  As Judge Lynch stated, New Hampshire could not point to any such incidents since the nineteenth century (with the last complaint, seemingly unsubstantiated, being in 1976).  While the state's interests might be compelling in the abstract, they need to be real.  A broad prophylactic prohibition is unwarranted, despite worries about new technologies and media.  Indeed, Judge Lynch wrote:

Digital photography, the internet, and social media are not unknown quantities -- they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, "small cameras" and digital photography "have been in use for at least 15 years," and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter's publishing a photograph of a marked ballot during that period.

And even if there were a present problem that needed solving, "the statute still fails for lack of narrow tailoring."  Judge Lynch's opinion for the panel stated that the statute infringed on the rights of all voters and not the smaller (or even nonexistence) pool of those motivated to cast a vote for illegal reasons.  Additionally, there exist other state and federal laws prohibiting vote corruption which are adequate to address the problem, should it arise.  In an interesting footnote, the court lists statutes from other states allowing ballot selfies and notes that these states have not reported "an uptick" in vote buying or voter intimidation.

The First Circuit opinion applied intermediate scrutiny under the First Amendment.  The district judge had concluded the New Hampshire statute was a  content-based regulation and applied strict scrutiny.  However, relying on McCutcheon v. FEC (2014), the First Circuit reasoned that given that the statute fails the lower intermediate standard, the court need not "parse the differences" between the two standards in this case.  Nevertheless, the First Circuit did note that the New Hampshire statute affects voters who are engaged in "core political speech," and in a footnote quoted from the amicus brief for Snapchat that "younger voters" especially use ballot selfies as political expression.

Governments contemplating prohibiting "ballot selfies" would be wise to reconsider after a read of Rideout v. Gardner.

DC Circuit Holds No Clearly Established Right Not To Be Tasered

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

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

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

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

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

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

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

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

Here is one of the videos of the incident:

 

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

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

[citations omitted]

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

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

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

 

Second Circuit Grants Full Court Review to Occupy Brooklyn Bridge Case

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

The Second Circuit has granted full court review in Garcia v. Does, a panel decision which allowed plaintiffs' complaint arising from their arrests for participating in a demonstration in support of the Occupy Wall Street movement.  The panel, affirming the district judge, denied the motion to dismiss of the defendants/appellants, holding that on the current record it could not

resolve at this early stage the ultimately factual issue of whether certain defendants implicitly invited the demonstrators to walk onto the roadway of the Brooklyn Bridge, which would otherwise have been prohibited by New York law.

The unidentified Doe officers argued that video evidence warrants a dismissal.  The First Amendment issue of "fair warning" to revoke permission to protest is at issue in the case - - - which would seemingly require more than (incomplete) video evidence.  Yet the issue of qualified immunity is seemingly argued as overshadowing the incomplete evidence.

Brooklyn Bridge via

Judge Debra Ann Livingston's lengthy dissent from the opinion by Judges Calabresi and Lynch argues that the panel majority "failed to afford the NYPD officers policing the “Occupy Wall Street” march the basic protection that qualified immunity promises – namely, that police officers will not be called to endure the effort and expense of discovery, trial, and possible liability for making reasonable judgments in the exercise of their duties."

Judge Livingston's views most likely attracted other judges.  Now the  "in banc" court (as the spelling is used in the Second Circuit) will hear the case, including Senior Judge Calabresi because he was on the panel.

 

Ninth Circuit Upholds LA's Condom Mandate in Adult Films

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

In its opinion in Vivid Entertainment v. Fielding, a panel of the Ninth Circuit affirmed the district judge's denial of a preliminary injunction to Los Angeles Measure B, passed by voter initiative in 2012.

The central issue in the case was the so-called "condom mandate" that requires performers to use condoms during "any acts of vaginal or anal sexual intercourse."  The opinion, authored by Judge Susan Gruber, and joined by Judge Alex Kozinksi and sitting by designation Judge Jack Zouhary, agreed with the district judge that the First Amendment challenge to the mandate was subject to intermediate scrutiny.  The Ninth Circuit relied in large part on the "secondary effects" doctrine, finding that

The purpose of Measure B is twofold: (1) to decrease the spread of sexually transmitted infections among performers within the adult film industry, (2) thereby stemming the transmission of sexually transmitted infections to the general population among whom the performers dwell.

The court rejected the argument that strict scrutiny should apply nevertheless because Measure B was a "complete ban" on the protected expression, which plaintiffs would define as "condomless sex" ("condomless sex differs from sex generally because condoms remind the audience about real-world concerns such as pregnancy and disease . . . films depicting condomless sex convey a particular message about sex in a world without those risks).   Citing Spence v. Washington (1974), the Ninth Circuit concluded that "whatever unique message Plaintiffs might intend to convey by depicting condomless sex, it is unlikely that viewers of adult films will understand that message."  Moreover, in an interesting footnote (6), the Ninth Circuit distinguished between the expression and the conduct: 

On its face, Measure B does not ban expression; it does not prohibit the depiction of condomless sex, but rather limits only the way the film is produced.

(emphasis in original).  The panel opinion also discussed - - - and rejected - - - the arguments that Measure B was not sufficiently "narrowly tailored" in the intermediate scrutiny test because there was a voluntary testing and monitoring cheme for sexually transmitted diseases and that Measure B would be "ineffective" because producers could simply move beyond county lines. 

The district judge did, however, find that certain portions of Measure B did not survive the constitutional challenge.  On appeal, the plaintiffs argued that Measure B was not subject to severance.  The Ninth Circuit panel rejected the severance argument, but helpfully included as an appendix to its opinion a "line-edited version" of Measure B.

Finally, the Ninth Circuit panel rejected the argument that the appellate court did not have Article III power to hear the appeal because the intervenors - - - including a Campaign Committee Yes on Measure B - - - lacked Article III standing.  The panel distinguished Hollingsworth v. Perry (the Prop 8 case), noting that here it was not the intervenors that sought to appeal but the plaintiffs themselves who had invoked the court's power.

[image via]

Daily Videos: "Citizen Four" and Edward Snowden Interviews

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

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

 

 

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

 

 

First Circuit Finds Adult-Entertainment Zoning Regulations Unconstitutional

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

In its opinion in Showtime Entertainment v. Town of Mendon, the First Circuit reversed a grant a summary judgment for the Massachusetts town and found that the zoning bylaws infringed on Showtime Entertainment's "right to engage in a protected expressive activity" violated the First Amendment.

Judge Juan Torruella's opinion for the unanimous panel first confronted the issue of whether the challenge to the zoning bylaws should be viewed as a facial challenge or as an as-applied challenge.  Here, there was "little practical distinction": there were only four plots of land within the "Adult Entertainment Overlay District" to which the bylaws applied.  But because the relief sought was an invalidation of the zoning bylaws, the court treated the challenge as a facial one. 

Additionally, the court discussed whether the town's actions should be judged as content-based, thus meriting strict scrutiny, or should be judged as content-nuetral, meriting intermediate scrutiny.  The court withheld its conclusion, finding that the zoning bylaws failed even the more deferential intermediate scrutiny standard.

The problem for the Town was that its stated governmental interests - - - its proferred secondary effects - - - did not further a substantial governmental interest unrelated to the speech.  These interests were two: the town's "rural aethetics" and traffic.  The problem for the Town was that it sought to advance these interests only as to the Showtime Entertainment lot of the four lots and not as to the other lots occupied by a 6,900-square-foot self-storage facility, a drive-in movie theater with an estimated capacity of 700 vehicles,
and a 10,152-square-foot nightclub.   While the court clarified that its inquiry was not strictly a "underinclusive" one: "Nonetheless, we rightly pay attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose."

Thus, as to the "rural aesthetics," the court noted that there was no cognizable difference between a large building hosting adult-entertainment or another large building.  The court also noted that counsel for the Town conceded at oral argument that "what's in the building" also mattered, thus seemingly acknowledging that this was a content-based regulation.  The traffic concerns suffered a similar fate, with the court finding no distinct traffic concerns for this type of business than for others along this heavily traveled route. 

 In some secondary effects cases, courts merely defer to studies, but here the court discussed them specifically (noting it conducted an "independent review of the studies") and found them lacking.  The studies had a common theme regarding the effect of adult-entertainment businesses on neighborhoods: the effect has a "limited radius."  This undermined the Town's fallback argument that Showtime Entertainment effected the rural aesthetic of the town as a whole, rather than the non-existing rural aesthetic along the busy highway.  Additionally, the court detailed the traffic studies, finding that they did not actually mention traffic, or were "largely anecdotal, rely nearly exclusively on personal perceptions rather than verifiable data, and include significant hedging language, such as indicating that increased traffic is merely a hypothesis."  The court also stated that in "several cases, they also make apparent that the true, primary concern is not traffic, but the type of patrons thought to visit adult-entertainment businesses," thus becoming content-based.

The secondary effects doctrine has proven a controversial one, with some of the Justices who first proffered the notion later disavowing it.  The First Circuit refreshingly gives the doctrine a rigorous application.

[images: the drive-in movie in Mendon via; the image of Mendon portrayed on its website via]

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

Here's the video:

 

 

 

Commentary available from Reuters  and NYT.

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

Ninth Circuit Orders "Innocence of Muslims" Video Taken Down

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

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

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

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

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

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

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

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

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

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

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

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

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

Out of the Furnace? And Into the First Amendment

Can a movie be tortious consistent with the First Amendment?  That's the question raised by the  complaint in DeGroat v. Cooper filed this week in federal court concerning the movie "Out of the Furnace."

The fictional movie directed by Scott Cooper (a defendant in the lawsuit) stars actor Christian Bale (pictured right)  as Russell Blaze, who, when his younger brother "mysteriously disappears" and law enforcement seems inadequate and slow, takes the "law into his own hands" to find his missing brother.   

The plot may seem prosaic, but importantly, the action is set in the Ramapo moutains of northern New Jersey amongst a particular group of people some of whom possess a particular surname that coincides with the plaintiffs.  As a paragraph from the complaint alleges:

 [in the movie] the young man becomes involved in an underground bare-knuckle fight ring leading to his murder by a violent and evil character, Harlan De Groat, who is the chief of a gang of “inbreds” living in the Ramapo Mountains in New Jersey. Harlan DeGroat, portrayed by Woody Harrelson, is the head of a criminal gang that is identified as the Jackson Whites; which gang is described as a community of “inbreds” that inhabits the Ramapo Mountains in New Jersey. Another gang member is identified as Dwight Van Dunk. The community is depicted as lawless, drug- addicted, impoverished and violent; and the members appear to be of some sort of racially mixed heritage.

As the complaint also states, the plaintiffs "are members of the Ramapough Lunaape Nation, a Native American ethnic group recognized as a tribe by the States of New Jersey and New York," and the "Ramapough Lunaape people were referred to locally as 'Jackson Whites,' a derogatory term with various origins ascribed to it, none of them complimentary."  Moreover, "DeGroat and Van Dunk are well known common surnames among the Ramapough Lunaape Nation, and have been for two hundred years or so."

The claims for relief include defamation, false light, and negligent infliction of emotional distress.

The response by Cooper and "Relativity Media," will surely include a First Amendment defense. 

Among the cases that will be important is Time, Inc, v. Hill, decided by the Supreme Court in 1967, involving Time's discussion of a play "The Desperate Hours" in which the Time magazine article stated that the play related to a tragedy suffered by Hill and his family.   The Court ruled against  James Hill - - - who was represented by future US President Richard Nixon - - - reversing the jury verdict in the family's favor while discussing the relationships between "fictionalization" and the First Amendment. 

To the extent it is based in fact, an interesting comparison is journalist Ben McGrath's 2010 article, "Strangers on the Mountain" published in The New Yorker.  McGarth's piece centered upon the Ramapo Mountains, the people who live there, including the DeGroat family and so-called "Jackson Whites" and "Rampaough Indians," and a variety of legal issues, including criminal and environmental. 

Yet it would seem that "Out of the Furnace" has a strong First Amendment claim unless the film loses its fictional patina, a prospect that seems unlikely.  

 

 

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Ninth Circuit: The Prop 8 Trial Videotapes Remain Sealed

The Ninth Circuit today issued its opinion in Perry v. Brown holding that the Proposition 8 trial videotapes will not be released.  The panel - - - Judges Reinhardt, Hawkins, and NR Smith - - - reversed the decision of Northern District of California Chief Judge Ware that the videotapes should be released.

Judge Reinhardt's opinion for the unanimous panel made clear that the decision was not focused on the policy questions regarding broadcast of trials or the First Amendment right of press access or publication.  Instead, the opinion highlighted the unique and narrow question: whether "the district court abused its discretion by ordering the unsealing of the recording of the trial notwithstanding the trial judge’s commitment to the parties that the recording would not be publicly broadcast."

The panel assumed without deciding that the "trial recording is subject to the common-law presumption of public access," but found that there was a "sufficiently compelling reason to override any such presumption here."

In short, the panel found that the sufficiently compelling reason was Judge Walker Vaughn's repeated assurances to the litigants that the trial recordings would not be published:

the district court [Judge Ware] failed to appreciate the nature of the statements that the trial judge [Judge Walker] had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. . . . the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.

The Ninth Circuit opinion is not a constitutional one, but certainly seeks to respect the integrity of Article III courts.  But it means that afficiandos of the Prop 8 trial will have to be content with the voluminous transcript that remains available, or with the re-enactment of the trial produced by actors, or with Walker's extensive opinion itself.

RR
[image via]

Arrest of Documentary Filmmaker in House of Representatives

As the NYT reports, the filmmaker Josh Fox whose documentary “Gasland” raised questions about "fracking," was escorted from a House of Representatives subcommittee hearing today and given a misdemeanor citation. 

Although Fox shouted this "is a public hearing!” and “I’m being denied my First Amendment rights,” the subcommittee members had voted to exclude Fox and his camera crew for lacking proper media credentials.

A video of the hearing, sans any arrests, is available here.

For ConLawProfs teaching First Amendment this semester, this could be the basis for an interesting in-class discussion or problem.

RR

Ron Paul and The Federal Reserve

With Ron Paul reportedly becoming a "serious contender" in the presidential primary, there is renewed attention to his views on the Federal Reserve as "dishonest, immoral, and unconstitutional," encapsulated in his campaign slogan, "end the fed. " 

An extended video, Fiat Empire, now about 6 years old, is a good introduction to the issues. 

The argument supporting the unconstitutionality of the Federal Reserve can be summed up in the phrase "the poster child of unconstitutional private delegation," cited to John Hart Ely in Timothy Canova's article, Black Swans and Black Elephants in Plain Sight: An Empirical Review of Central Bank Independence, available on ssrn.  Section 4 of the article is a great overview and argument regarding the Federal Reserve.  (I assigned this section last semester in Constitutional Structures in conjunction with Free Enterprise Fund v. PCOAB which Canova also discusses, and showed a short clip from Fiat Empire; it was well-receoved by students.)

As Canova notes, concerns about the Federal Reserve arise both from the "populist libertarian right" and the "populist progressive left" :  When "Representative Ron Paul, a Republican libertarian from Texas, introduced a bill to subject the Federal Reserve to an audit by the Government Accountability Office (GAO)" it was "cosponsored on the left by such Democratic and progressive Congressmen as Dennis Kucinich from Ohio and Alan Grayson from Florida." 

Canova and others, including Joseph Stiglitz, Jeffrey Sachs, and Robert Reich have been named experts on a panel advising a United States Senator to "develop legislation to restructure the Fed and tighten rules on conflicts of interest, ensure that the Fed fulfills its full-employment mandate, increase transparency, protect consumers and reduce income inequality."  That Senator is Bernie Sanders, Independent-Vt.   And while Paul and Sanders may agree on some aspects of the Federal Reserve, they seem to be very far apart on health care reform.

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Footnote of the Day: Star Trek as a Citation for the State's Police Power

If there is one citation that best explains the constitutional "police power" of the state, it might be from well-established precedent, or perhaps even literature, but what about Star Trek? 

Here's the footnote:   

See Star Trek II: The Wrath of Khan (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: “Don't grieve, Admiral. It is logical. The needs of the many outweigh ...” to which Kirk replies, “the needs of the few.”

Robinson v. Crown Cork & Seal Co., Inc., __ S.W.3d ___, 2010 WL 4144587  n.21 (Willet, J. concurring) (Tex. 2010). 

The case addressed whether a statute that limits certain corporations' successor liability for personal injury claims of asbestos exposure violated the prohibition against retroactive laws contained in article I, section 16 of the Texas Constitution as applied to a pending action.

The Texas Supreme Court held the statute unconstitutional, finding any public interest served by the statute to be "slight."

Justice Willet, concurring, viewed the case not merely about whether the statute “singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation,” but it is about delimiting “the outer edge of police-power constitutionality,” an issue that “has bedeviled Texas courts for over a century.”   Thus, Willet writes:

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

Footnote 21, of course, is to the word "Vulcan."

RR

with J. Zak Ritchie

[image: Star Trek Wrath of Khan uniform, via]

OSCAR Nominations: ConLaw Perspectives

Have a constitutional law perspective on the best-picture nominee and blockbuster Avatar? 
Consider this CFP from The Journal for the Study of Religion, Nature and Culture.  (H/T Feminist Philosophers).

And among the Academy Award nominees for documentary film is The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers, suitable for viewing (or reviewing) while teaching New York Times v. United States.  If a class trip to the local cinema is not possible, consider one of the compressed and evocative snippets available:

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