Friday, November 20, 2009
The West Virginia Supreme Court has held that a judge's personal emails that are not otherwise related to his or her official duties are not subject to the state's Freedom of Information Act. The Associated Press had requested disclosure under the statute, but the Court held that the trial court's "analysis of the content of the e-mail and does not extend to a context-driven analysis because of public interest in the record."
Flemming Rose’s decision to run twelve cartoons of the Prophet Mohammed triggered an international controversy. In defending his decision, Rose relies on two arguments: (1) the cartoons were a necessary response to a growing atmosphere of self-censorship imposed by a totalitarian radical Islam and (2) the cartoons-far from being insulting-were actually a way to include Danish Muslims into a national “tradition of satire.” On examination both arguments are problematic. The fear of totalitarian censorship-if even it applies to Muslims-fits poorly with an American free speech discourse that counsels patience, not action in the face of totalitarian threats. Rose’s reference to a “tradition of satire” is rooted in the Danish practices of social informality (hygge) and teasing, But this argument is undercut by Rose’s own anti-immigrant rhetoric as well as the larger anti-immigrant mood in Denmark and Europe.
Download the paper at the link.
Thursday, November 19, 2009
Mark Lawson evaluates what may be a much more timid BBC after outrageous episodes such as the Russell Brand/Jonathan Ross mess. Artists are now complaining that the venerable network is now too cautious, "dumbing down" offerings because of fears over complaints. Says Mr. Lawson in part,
At the time [of the Brand/Ross scandal], a common view (certainly mine) was that, 12 months on, Ross might well have found a job elsewhere, but that the BBC's general panic over editorial guidelines might have calmed down. In fact, it has gone the other way. Ross remains in his post – a ghost of what he used to be, because of a strict system of precautionary recording and editing – while an increasing number of writers and performers are complaining about the effects of "compliance": the system of BBC editorial defences introduced after Ross/Brand and an earlier run of scandals over faked or misleading content.
Read more here.
According to MSNBC.com, Jon Gosselin's former PA may be set to sue him over a contract they may (or may not) have entered into last summer. Here's the language.
“I, Jon Gosselin, will employ Kate Major as a personal assistant handling some but not all future accounts,” Gosselin is said to have written. “She will be a sub-contractor. She will receive a percentage of accounts for payment based upon involvement.”
Read more here.
Wednesday, November 18, 2009
Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is entitled to little, if any, constitutional protection.
In A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, Professor Tarkington examines why a free speech right to impugn judicial integrity must be recognized for attorneys - even, and perhaps especially, when acting as officers of the court and making statements in court proceedings. Such a right is necessary to protect the constitutional and other rights of litigants to an unbiased and competent judiciary. Further, the recognition of such a right in the attorney preserves litigants’ access to courts and due process rights. These rights belonging to litigants are all but lost where attorneys are punished for or chilled from asserting them in court proceedings. Previous scholarly arguments - which are based on analogies to other areas of limited First Amendment protection - fail to account for the protection of the underlying rights of litigants, the role of attorneys in our adversary system, and the constitutionally-required role of the judicial branch. Importantly, the judiciary does not need to punish attorney speech impugning judicial integrity in order to protect its legitimate interests in the just adjudication of cases. In fact, by curbing speech in the presentation of claims, the judiciary undermines its own role and responsibility in remedying constitutional violations and providing fair proceedings.
Tuesday, November 17, 2009
Monday, November 16, 2009
Friday, November 13, 2009
Matt J. Duffy alerted me to this interesting New York Times article about two Germans who object to being mentioned in Wikipedia. The two have served time for murder, and now, citing German privacy laws, say they want to disappear from public view. They've managed it with the German version of Wikipedia, but the American editors are resisting, citing the First Amendment. Here's Mr. Duffy's post.
The author discusses group libel laws, and the underlying problems when free speech is used as a defense by those who would defame specific racial or ethnic groups and/or minorities. The topic is further explained in reference to various state laws, and the subsequent court cases extant at the time of the article's writing which defined the issue in terms of law. References are also made to such laws in countries other than the United States for the sake of comparison.
Download the paper at the link.
The Second Circuit has affirmed a lower court's award of summary judgment in favor of the Central Intelligence Agency and against Valerie Plame and her publisher, Simon & Schuster. Ms. Plame and her publisher had alleged that the agency was interfering with her right to discuss her pre-2002 relationship with the CIA. Said the Court,
It is a bedrock principle of First Amendment jurisprudence that "'[a]ny system of prior restraints of expression . . . bear[s] a heavy presumption against its constitutional validity.'" ...The CIA's requirement that current and former employees obtain Agency clearance before disseminating any material related to their employment is not, however, a "system of prior restraints" in the classic sense. ...As the Supreme Court has explained, when a government employee "voluntarily assume[s] a duty of confidentiality, governmental restrictions on disclosure are not subject to the same stringent standards that would apply to efforts to impose restrictions on unwilling members of the public." ...Indeed, once a government employee signs an agreement not to disclose information properly classified pursuant to executive order, that employee "simply has no first amendment right to publish" such information.
This rule derives principally from Snepp v. United States, 444 U.S. 507 (1980), in which the Supreme Court rejected a First Amendment challenge to the CIA's enforcement of its secrecy agreement with former employee Frank W. Snepp III, who had published a book about CIA activities in South Vietnam without submitting his manuscript for pre-publication Agency review. The Court affirmed the district court's order enjoining future breaches by Snepp and imposing a constructive trust on profits already realized from the unauthorized publication, see id. at 508-09, concluding not only that Snepp's secrecy agreement was enforceable as an "entirely appropriate exercise of the CIA Director's statutory mandate to protect intelligence sources and methods from unauthorized disclosure," but also that "even in the absence of an express agreement -- the CIA could have acted to protect substantial government interests by imposing reasonable restrictions on employee activities that in other contexts might be protected by the First Amendment," .... The Court held that "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service," and that "[t]he agreement that Snepp signed is a reasonable means for protecting this vital interest." ...Moreover, the Court recognized the CIA's need to maintain a "dependable prepublication review procedure" in order to "ensure in advance . . . that information detrimental to national interest is not published." ...
By contrast, "[t]he government has no legitimate interest in censoring unclassified materials," and, thus, "may not censor such material, contractually or otherwise." ...Consistent with this principle, CIA regulations provide that "[t]he PRB will review material proposed for publication or public dissemination solely to determine whether it contains any classified information." Agency Prepublication Review of Certain Material Prepared for Public Dissemination § 2(f)(2) (2005) (emphasis added).
Moreover, if the Agency censors a manuscript because it contains classified information, the author is entitled to judicial review of that decision to ensure that the information in question is, in fact, properly classified under the standards set forth in the applicable executive order. ...
Such judicial review is necessarily deferential because the designation and protection of classified information "must be committed to the broad discretion of the agency responsible." ...Deferential review, however, does not equate to no review. ...A court must satisfy itself "from the record, in camera or otherwise, that the CIA in fact had good reason to classify, and therefore censor, the materials at issue." ... To that end, a court may "require that CIA explanations justify censorship with reasonable specificity, demonstrating a logical connection between the deleted information and the reasons for classification." The court's task is not to second-guess the Agency, but simply to ensure that its "reasons for classification are rational and plausible ones."
Finally, the CIA cannot prevent a former employee from publishing even properly classified information once the Agency itself has officially disclosed it. ...Although this doctrine was developed in the FOIA context, the Agency does not dispute that it may be invoked to challenge the PRB's censorship decision here. As the Fourth Circuit recognized in reviewing such a claim, a former CIA agent "should not be denied the right to publish information which any citizen could compel the CIA to produce and, after production, could publish." ...
A strict test applies to claims of official disclosure. Classified information that a party seeks to obtain or publish is deemed to have been officially disclosed only if it (1) "[is] as specific as the information previously released," (2) "match[es] the information previously disclosed," and (3) was "made public through an official and documented disclosure." ...
The last factor acknowledges "a critical difference between official and unofficial disclosures" of information classified by the CIA. ...As a practical matter, foreign governments can often ignore unofficial disclosures of CIA activities that might be viewed as embarrassing or harmful to their interests. ...They cannot, however, so easily cast a blind eye on official disclosures made by the CIA itself, and they may, in fact, feel compelled to retaliate. See id. Mindful of this reality, the law will not infer official disclosure of information classified by the CIA from (1) widespread public discussion of a classified matter, see Wolf v. CIA, 473 F.3d at 378; Afshar v. Dep't of State, 702 F.2d at 1130-31; Fitzgibbon v. CIA, 911 F.2d at 766; (2) statements made by a person not authorized to speak for the Agency, cf. Hudson River Sloop Clearwater, Inc. v. Dep't of Navy, 891 F.2d at 421; or (3) release of information by another agency, or even by Congress, see Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999); Earth Pledge Found. v. CIA, 988 F. Supp. 623, 628 (S.D.N.Y. 1996), aff'd 128 F.3d 788 (2d Cir. 1997).
Plaintiffs do not challenge the district court's determination that Ms. Wilson's pre-2002 employment history with the CIA was, as an original matter, properly classified. ...In fact, plaintiffs acknowledge that, prior to Robert Novak's July 14, 2003 column, "[Ms.] Wilson's employment affiliation with the CIA . . . was highly classified." Appellants' Br. at 6. Moreover, plaintiffs do not contend that Novak's column, the press reports that followed purporting to describe Ms. Wilson's CIA career, or the CIA's decision to "roll back" her cover as of January 1, 2002, either declassified Ms. Wilson's pre-2002 status or officially disclosed that information. As the authority cited above makes clear, any such contention would be wholly without merit in any event, as neither press reports nor prior disclosures of information that do not "match" the information in question can officially disclose properly classified information....
Instead, plaintiffs and their amici advance two different arguments, based almost exclusively on the CIA's February 10 Letter, to support their claim of a First Amendment right to publish Ms. Wilson's pre-2002 dates of service. See Appellants' Reply Br. at 7 (conceding that absent Agency's "voluntary release" of this letter, present lawsuit would have been "unwarranted"). First, they submit that the February 10 Letter, sent by first-class mail without any classification markings, constitutes an official CIA disclosure of Ms. Wilson's pre-2002 service dates with the Agency. They assert that this disclosure, in turn, proximately caused the public revelation of the Letter by Rep. Inslee. Second, plaintiffs and amici argue that, even if this series of events did not officially disclose Ms. Wilson's service dates, the public availability of the Letter and the information contained therein deprives the CIA of its original justification for maintaining this information as classified, i.e., that "the unauthorized disclosure" of this information "reasonably could be expected to result in damage to the national security." Exec. Order 13,292, § 1.1(a)(4), 68 Fed. Reg. at 15,315-16. We consider each of these arguments in turn.
Plaintiffs' official disclosure argument is unpersuasive for two reasons: (a) the February 10 Letter to Ms. Wilson did not constitute a "disclosure," and (b) the Letter was not "made public" by the CIA. Moreover, we reject plaintiffs' contention that the Agency is chargeable with official disclosure because, through administrative negligence, it "proximately caused" public disclosure of the Letter by Ms. Wilson and Rep. Inslee.
The term "disclosure" does not reasonably encompass CIA transmittal of classified information to a former employee who (1) already knows the information in question, and (2) is contractually obligated to maintain the confidentiality of classified and classifiable information. The most common meanings of "disclose" are "to open up," "to expose to view," and "[to] lay open or uncover (something hidden from view)." ...Plainly, Ms. Wilson's dates of service were not something hidden from her. To the extent the word "disclose" also suggests an "open[ing] up to general knowledge," id., the transmittal of a letter containing personnel information only to the person referenced hardly demonstrates such a disclosure. Finally, although Ms. Wilson was no longer employed by the Agency on February 10, 2006, neither party suggests that Ms. Wilson was not authorized to receive the Letter or the information contained therein. Sending her the Letter was thus akin to providing classified information "to individuals with proper security clearance," which, we have held, cannot constitute an official disclosure.
The official disclosure doctrine applies only when classified information is "made public." ... Plaintiffs argue that the CIA's February 10 Letter qualifies as a "public" document under the Federal Records Act, 44 U.S.C. § 3301, and Federal Rule of Evidence 902. The Letter might be considered a "public" document in the sense that it was created by a federal agency "in connection with the transaction of public business," 44 U.S.C. § 3301, see also Fed. R. Evid. 902(2) (providing that no extrinsic evidence of authenticity is required to admit domestic public documents not under seal under certain conditions), but this is beside the point. The Letter was not "public" in the sense relevant to the official disclosure doctrine. Specifically, the Letter was not a "matter of public record" that could be "easily discoverable" by any interested member of the public, the twin factors we identified as critical to official disclosure in Hudson River Sloop Clearwater, Inc. v. Department of Navy, 891 F.2d at 422. The February 10 Letter was private correspondence sent directly -- and only -- to Ms. Wilson at her home. We conclude that such a limited transmittal of classified information to an employee contractually bound to maintain its secrecy does not constitute an official disclosure.
In urging us to reach a different conclusion, plaintiffs note that Ms. Wilson sought the February 10 Letter to facilitate Rep. Inslee's legislative efforts on her behalf -- efforts that would foreseeably involve public disclosure of the Letter's contents on the floor of Congress. The argument is defective in a critical respect: plaintiffs adduce no evidence that, prior to transmittal of the February 10 Letter to Ms. Wilson, anyone at the CIA was aware that the Wilsons were communicating with Rep. Inslee, much less that they were urging him to introduce legislation on her behalf.
To be sure, the February 10 Letter did become a matter of public record when Rep. Inslee placed it in the Congressional Record on January 16, 2007. Plaintiffs contend that this public disclosure is chargeable to the CIA as the equivalent of official disclosure because of the Agency's admitted negligence in failing to mark the Letter as classified or to utilize appropriate procedures for transmitting classified information. See Declaration of Karen F. Tumolo, Senior Benefits Specialist, OPR, CIA, at 3-4 (acknowledging that CIA "neglected to perform . . . classification review of Ms. Wilson's personnel file" before sending the Letter, and conceding that it was a "mistake to mail the improperly marked letter containing classified information to Ms. Wilson"). Plaintiffs submit that, in the absence of such markings or procedures, it was reasonably foreseeable to the CIA that Ms. Wilson would (1) conclude that the information contained in the Letter was unclassified and that there were "no restrictions on its further dissemination," Appellants' Reply Br. at 2; and (2) ultimately make the Letter public. This argument fails for two reasons.
First, even if we were to assume that when Ms. Wilson and Rep. Inslee decided to make the February 10 Letter public, they acted in the good faith -- but mistaken -- belief that the information contained therein was no longer classified, that would not demonstrate official disclosure by the CIA. A former employee's public disclosure of classified information cannot be deemed an "official" act of the Agency. Like the retired Admiral in Hudson River Sloop Clearwater, Inc., Ms. Wilson, as a retired CIA employee, could not "effect an official disclosure of information." ...The decision to permit the public release of the Letter by Rep. Inslee was indisputably Ms. Wilson's, not the CIA's. She possessed, in the privacy of her home, the only copy of the Letter outside of the Agency's walls, and it would have remained there but for her decision (1) to send it to Rep. Inslee, and (2) to give her permission for him to place it in the Congressional Record. Thus, even if Agency negligence in transmitting the Letter to Ms. Wilson somehow excuses her actions in allowing Rep. Inslee to make the classified information public, it cannot, as a matter of law, support a finding that her actions and those of Rep. Inslee effected an official disclosure of classified information by the CIA.
Second, we decline plaintiffs' invitation to rely on the doctrine of "proximate cause" to conclude that the placement of the February 10 Letter into the Congressional Record is attributable to the CIA as the foreseeable result of Ms. Tumolo's negligence in failing properly to mark or send the Letter. Even assuming that proximate cause could play a part in a determination of official disclosure, the principle cannot be applied in this case.
Ms. Wilson gave Rep. Inslee permission to publish the CIA Letter on January 12, 2007. Plaintiffs assert that this decision was the natural result of Ms. Tumolo's negligence, as Ms. Wilson would have to have been a "mind-reader" to understand that the information contained in the Letter was classified in light of the Letter's "unclassified form." Appellants' Reply Br. at 2; Appellants' Br. at 1, 17, 23, 30. This argument confronts two hurdles: (1) Executive Order 13,292, which expressly states that "[i]nformation assigned a level of classification under this or predecessor orders shall be considered as classified at that level of classification despite the omission of other required markings," Exec. Order 13,292, § 1.6(f), 68 Fed. Reg. at 15,318 (emphasis added); and (2) the inquiry obligation imposed by the standard CIA Secrecy Agreement, see supra at [12-13]. Both strongly suggest that even if a former CIA employee might point to the lack of proper markings on a document to excuse her own disclosure of classified information, the law should not identify official disclosure in such circumstances on a theory of proximate cause. In any event, we reject plaintiffs' proximate cause argument for a more fundamental reason, namely, that it is effectively refuted by the chronological record.
By January 2007, when Ms. Wilson authorized Rep. Inslee to include the February 10 Letter in the Congressional Record, she and her attorney had already conducted months of negotiations with the PRB over the content of her memoir. During these negotiations, by Ms. Wilson's own account, the PRB repeatedly advised her that her pre-2002 status remained classified and could not be publicly disclosed. Indeed, the central purpose of the letter sent by Ms. Wilson's attorney to the PRB on January 9, 2007 -- just three days before Ms. Wilson gave Rep. Inslee permission to disclose the Letter -- was to object to the decision of "senior Agency management . . . not to permit her to disclose her Agency affiliation prior to 2002." Jan. 9, 2007 Letter from D. Smallman to G. Wright, at 2. Moreover, the CIA's position on this point was relayed to Ms. Wilson personally and at some length in a November 2006 meeting. ...Thus, even if Agency negligence in the transmittal of the February 10 Letter could have prompted Ms. Wilson mistakenly to assume that her pre-2002 dates of service with the CIA were no longer classified, that misimpression was plainly corrected during her 2006 negotiations with the PRB before she gave Rep. Inslee permission to place the Letter into the Congressional Record. In light of this sequence of events, Ms. Wilson's decision to permit public disclosure of the Letter was not the "normal or foreseeable consequence of the situation created by the defendant[s'] negligence," but rather an action "independent of . . . defendants' conduct." ...Thus, we easily reject as without merit plaintiffs' argument that CIA negligence could be deemed the "proximate cause" of Rep. Inslee's public disclosure of Ms. Wilson's pre-2002 dates of service.
A liberal reading of the briefs filed by plaintiffs and their amici reveals a possible alternative argument in support of Ms. Wilson's claimed First Amendment right to publish her pre-2002 employment status. While acknowledging that "protecting . . . the secrecy of information important to our national security" is a "compelling interest" that justifies censoring a former agent's public statements... plaintiffs and their amici submit that where, as here, the information the former agent seeks to discuss is already in the public domain and, thus, no longer "secret," that interest is weakened and, indeed, overcome by the former agent's strong First Amendment right to participate in the "free discussion of governmental affairs," Buckley v. Valeo, 424 U.S. 1, 14 (1976)....They emphasize that, even if Ms. Wilson's pre-2002 dates of service were correctly classified at the outset and have not been "officially disclosed" by the CIA, the form in which that information is present in the public domain -- a signed letter from a CIA employee "in a position to know of [the information] officially," Alfred A. Knopf, Inc. v. Colby, 509 F.2d at 1370 -- is one that leaves little doubt as to the information's accuracy and serves clear notice on foreign intelligence services of Ms. Wilson's probable pre-2002 Agency affiliation. Further, plaintiffs and their amici note that Ms. Wilson is required by CIA regulations to include a disclaimer in her book stating that its contents should not "be construed as asserting or implying U.S. Government authentication of information." See Fair Game at copyright page. Thus, they assert that any discussion by Ms. Wilson of her pre-2002 employment status would not "lend credence to" the information already contained in the publicly available February 10 Letter, Alfred A. Knopf, Inc. v. Colby, 509 F.2d at 1370; nor would her disclosure have the same diplomatic repercussions as an official acknowledgment of that information by the CIA, see Afshar v. Dep't of State, 702 F.2d at 1134.
The precise legal challenge underlying this argument is not clearly stated. Nevertheless, we identify two possibilities, neither of which has merit.
Plaintiffs' argument could be construed to assert that, even if Ms. Wilson's pre-2002 dates of service have not been officially disclosed and remain properly classified, because identical information is already in the public domain, the harm that would result from her discussion of that information is either negligible or nonexistent and the CIA's interest in preventing such an imperceptible harm is insufficient to overcome her First Amendment rights. This argument overlooks a critical fact: as a condition of her employment with the CIA, Ms. Wilson signed a contract forever waiving her right to "disclose in any form or in any manner . . . information which is classified pursuant to Executive Order and which I have obtained during the course of my employment or other service with the Central Intelligence Agency." CIA Form Secrecy Agreement P 3. This contract is binding and enforceable. ...
Ms. Wilson, "of course, could have refused to sign" a Secrecy Agreement with the CIA, "but then [s]he would not have been employed, and [s]he would not have been given access to the classified information [s]he may now want to broadcast."... Having chosen to sign the required Secrecy Agreement, and not having received a release from her obligations thereunder, see CIA Form Secrecy Agreement P 13, Ms. Wilson remains bound by its terms, which do not include an exception permitting her to discuss information that remains classified provided that little or no harm would result. No different conclusion is warranted by the fact that Ms. Wilson is obliged to disclaim in her memoir any CIA authentication of facts discussed therein.
Plaintiffs and their amici might also be understood to challenge the CIA's continued classification of Ms. Wilson's dates of service on the ground that no further harm can come from discussion of these facts in light of the public availability of the February 10 Letter. See generally Exec. Order 13,292, § 1.1, 68 Fed. Reg. at 15,315 (providing that information may only be classified if, inter alia, "the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, and the original classification authority is able to identify or describe the damage"). As we noted supra at [26-27], when the propriety of a classification is challenged, a court appropriately reviews the record, "in camera or otherwise," to ensure that the CIA has "good reason to classify, and therefore censor, the materials at issue," and that the Agency has, with "reasonable specificity, demonstrat[ed] a logical connection between the deleted information and the reasons for classification," ...
To the extent plaintiffs do not contest the Agency's initial classification of Ms. Wilson's dates of service, but only its decision to maintain that information as classified, defendants note that an administrative procedure is available to pursue declassification first with the CIA and, if unsuccessful, on appeal to the Interagency Security Classification Appeals Panel. ... This Appeals Panel consists of senior-level representatives of the Departments of State, Defense, and Justice, the CIA, the National Archives, and the President's Assistant for National Security Affairs. See Exec. Order 13,292, § 5.3(a)(1), 68 Fed. Reg. at 15,328. Thus, as the Fourth Circuit has observed, this Panel's members likely have a better background "than any judge . . . for making classification and declassification decisions." ... We need not, however, here decide a question not specifically briefed by the parties, i.e., whether a former CIA employee should be required to pursue this administrative option before challenging the propriety of continued classification in a federal court action. We conclude that, in any event, plaintiffs' continuing classification challenge is without merit.
In determining whether the CIA still has good reason to classify Ms. Wilson's pre-2002 dates of service, we note that the Agency's underlying concern is not limited to the simple disclosure of a few dates. If Ms. Wilson were to state in her memoir, "I was a CIA operative from date X," then any discussion of her activities after that date, whether by Ms. Wilson or others, would necessarily reveal CIA "sources and methods," information that lies at "the heart of all intelligence operations." For this reason, the Supreme Court has recognized the CIA's authority to preclude disclosure of even "superficially innocuous information" when it might facilitate the discovery of more sensitive matters....Indeed, the CIA explained this precise concern to Ms. Wilson in 2006, observing that her disclosure of the "specific time" of her CIA employment, when combined with other information in her memoir "that may be unclassified standing alone," could reveal sources and methods of agency intelligence operations. Letter from PRB Chairman R. Puhl to V. Wilson, at 1. Accordingly, we must assess the impact of Ms. Wilson's proposed discussion of her dates of service not in isolation, "but also with regard to what secrets [those facts] could divulge when viewed in light of other information available to interested observers." ...
Plaintiffs do not disagree that Ms. Wilson's dates of service should be viewed in this broader context. Rather, plaintiffs contend that whatever injury to our national security the CIA could legitimately fear from the disclosure of Ms. Wilson's pre-2002 dates of service was sustained when the February 10 Letter became public. Thereafter, continued classification is no longer reasonable. We are not convinced.
Plaintiffs' argument is at odds with Section 1.1(b) of Executive Order 13,292, which provides that classified information is "not . . . declassified automatically as a result of any unauthorized disclosure of identical or similar information." ... To the extent plaintiffs suggest that this provision does not apply because Ms. Tumolo's transmittal of the February 10 Letter was "authorized," we reiterate that this transmittal did not effect the public disclosure of the Letter. That action was taken by Ms. Wilson herself when she gave Rep. Inslee the Letter and her permission for its public release. See supra at [32-37]. Moreover, even if Ms. Wilson's actions could be attributed to a bona fide misunderstanding, we hold that a former agent cannot use her own unauthorized disclosure of classified information as a springboard for challenging the CIA's ability to maintain that information as classified.
Even putting aside Ms. Wilson's role in the public disclosure of the Letter, however, her challenge to the continued classification of her dates of service is unavailing. To be sure, the February 10 Letter, written on CIA letterhead and signed by an official from the Agency's personnel department, appears more reliable as evidence of Ms. Wilson's prior CIA affiliation than the sort of "public speculation" generally dismissed in the case law. ... Nevertheless, a bureaucratic transmittal from the CIA's personnel department to a former employee is hardly akin to the CIA director personally reading relevant information into the Congressional Record, as took place in Wolf v. CIA, 473 F.3d at 379. The distinction is not only that the latter act constituted an "official disclosure," see id., but also that anything short of such a disclosure necessarily preserves some increment of doubt regarding the reliability of the publicly available information. The CIA's refusal to permit the elimination of that remaining doubt with respect to Ms. Wilson's pre-2002 service itself protects valuable information, namely, the accuracy of the facts stated in the February 10 Letter and whether there is anything left to hide on the subject. We decline to discount the importance of such "lingering doubts" to maintaining the secrecy of CIA sources and methods relating to unconfirmed periods of Ms. Wilson's Agency service, Military Audit Project v. Casey, 656 F.2d 724, 745 (D.C. Cir. 1981), and to preserving the options of deniability and professed ignorance that remain important niceties of international relations....
Having determined that defendants could demonstrate that Ms. Wilson's dates of service should remain classified, the question remains, of course, whether they have done so here with the "specificity" necessary to confirm the rationality of their decision....In short, does the Agency have good reason to conclude that full disclosure of Ms. Wilson's employment history "reasonably could be expected to result in damage to the national security"? Exec. Order 13,292, § 1.1(a)(4), 68 Fed. Reg. at 15,315-16. We have reviewed defendants' unclassified submissions as well as -- without objection by the parties -- the classified materials provided to the court ex parte, and we conclude, as the district court did, that defendants have met their burden.
Our discussion of the classified facts in this opinion is necessarily circumspect. Nevertheless, we conclude from these facts that plaintiffs' disclosure of the information presently censored by the CIA would do more than reveal dates of service. It would facilitate the identification of particular intelligence sources and methods, thereby compromising the Agency's ability to use such sources and methods in the future. That the CIA views these risks as real and substantial is demonstrated by the significant actions already taken by the Agency and described in the classified submission. In sum, the CIA has advanced "good reason" to maintain any pre-2002 Agency service by Ms. Wilson as classified and to prevent the inclusion of such information in her memoir. ...The CIA having provided "rational and plausible" reasons for continued classification, id., our review obligations are satisfied, and we will not further second-guess Agency judgment, see John Doe, Inc. v. Mukasey, 549 F.3d at 875, 882.
Because we reject plaintiffs' argument that no good reason supports the CIA's maintenance of Ms. Wilson's pre-2002 dates of Agency service as classified, and because we have already determined that this information has not been officially disclosed by the CIA, we necessarily conclude that plaintiffs' First Amendment challenge to defendants' redactions to Fair Game fails as a matter of law. Ms. Wilson -- like every other current and former Agency employee who has signed a Secrecy Agreement -- "simply has no first amendment right to publish" the information here at issue, regardless of how "public" her past activities appear to have become....
The fact that others, not subject to such a secrecy obligation, are free to investigate Ms. Wilson's past and to compile and discuss all available information regarding her career -- including the February 10 Letter -- is not, as plaintiffs insist, an absurd or anomalous result. The law has long distinguished between "strangers," who "may republish previously published material," and former intelligence agents, who "are bound by formal agreements not to disclose [classified] information." ... As noted, when Ms. Wilson elected to serve with the CIA, she accepted a life-long restriction on her ability to disclose classified and classifiable information. That Ms. Wilson's service may have been cut short by the failure of others to respect the classified status of her employment may well have warranted investigation. But these circumstances do not absolve Ms. Wilson of her own secrecy obligations.
Read the full opinion here.
The Federal Communications Commission (FCC) uses the term “embedded advertising” to describe both product placement and product integration.This paper first discusses the current statutory and regulatory framework applicable to embedded advertising. Then the paper discusses various reform positions that were articulated in comments to the FCC in a recent rulemaking docket. This analysis includes discussion of the first amendment protections for advertising and for the creative works in which the integrated marketing is embedded, since the advertising is difficult to separate from its entertainment platform. The paper concludes with recommendations for next steps by the FCC and industry.
Download the paper at the link.
Thursday, November 12, 2009
The Media Center of New York Law School has posted video of its recent Conference on Broadband in a Post-Stimulus Environment here. A transcript of papers will be available in Media Law & Policy this spring; papers will be posted on SSRN as well.
Thanks to Professor Michael Botein of NYLS for the information.
Wednesday, November 11, 2009
Newly published by Robert Corn-Revere, who practices with Davis, Wright, Tremaine in Washington, DC, "Fairness 2.0: Media Content Regulation in the 21st Century."
Whether Anglo-Australian intellectual property laws can adequately protect Indigenous traditional knowledge has sparked much debate. Part I of this paper examines the interaction between copyright law and Indigenous art, and argues that an approach based on copyright is largely misconceived and wrongly discourages a consideration of mechanisms that lie outside copyright law. There are possibilities beyond copyright that need to be explored, including a ‘sui generis’ framework of rights. Part II of the paper focuses on such a framework-in particular, what is intended to be achieved by such an approach and whether such a framework should be implemented in Australia is considered.
Download the article from SSRN here.
It has become lamentably common for courts to issue preliminary injunctions in copyright cases once rights holders have shown a reasonable likelihood of success on the merits without going on to require them to prove that they will suffer irreparable harm unless the injunction issues. Harm is too often presumed to be irreparable if plaintiffs have made out a prima facie case of infringement. This presumption cannot be squared with traditional principles of equity, as interpreted in numerous Supreme Court decisions, particularly eBay, Inc. v. MercExchange LLC, 547 U.S. 388 (2006).
While a presumption of irreparable harm is inappropriate in all copyright cases, it is particularly troublesome in cases involving transformative uses of existing works, such as parodies and remixes and mashups, because free expression and free speech interests of creative users are at stake and transformative uses cases often raise plausible non-infringement defenses. Indeed, if any presumption about harm is appropriate in transformative use cases, it should probably run in favor of irreparability of harm to the defendants’ free expression and speech interests under First Amendment case law which treats preliminary injunctions as presumptively unconstitutional prior restraints on speech.
Public school students have been using the Internet to tease, bully, and ridicule their classmates, teachers, and schools. The Supreme Court has held that schools can punish students for some speech without violating the constitution, if it is uttered on school grounds during school hours. Courts, however, have been divided over when, if ever, schools may punish students for comparable off-campus cyberspeech. Because the Supreme Court has provided no direct guidance, this Note examines the Supreme Court’s view of students’ First Amendment rights on campus, the student-teacher relationship, and basic First Amendment principles to determine whether schools may punish students for off-campus cyberspeech that would otherwise be protected by the First Amendment. This Note concludes that although, in some circumstances, schools may punish students for off-campus cyberspeech that attacks their fellow students, it is unconstitutional for schools to do the same where the student speech targets teachers, administrators, or the school itself.
Download the article from SSRN at the link.
Tuesday, November 10, 2009