Archive | Freedom of Speech

Would New Jersey Bill Criminalize the Speech in Hustler v. Falwell?

I’m sure the legislatures aren’t thinking of the bill this way, but it might well be what this bill — which cleared one New Jersey Senate committee by a 5-0 vote this summer, and which unanimously passed another committee today — would do. The bill provides, in relevant part,

1. a. A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person …

(2) sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person ….

If Larry Flynt had posted his nasty attack on Jerry Falwell online in New Jersey — assuming the Internet and this law were around back then — he would likely have been committing a crime. He might have had “the purpose to harass” Jerry Falwell, whatever that precisely means. The scurrilous parody said “about” Falwell, which talked about Falwell supposedly having sex with his mother, may well have been “indecent,” again whatever that precisely means.

Seems pretty certainly unconstitutional to me. For an example of a similar Washington law being used to try to uncover the identity of someone who published a YouTube cartoon satire of City of Renton police officers — an attempt that was premised on the theory that such publication was indeed criminal harassment, because of its supposedly lewd, indecent, or obscene references to sexual goings-on among the officers. (The matter was ultimately dropped after a public outcry.) [...]

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The KlearGear Controversy

I haven’t had a chance to blog about the case, but I thought I’d note that Public Citizen has gotten involved. Here’s the press release:

Public Citizen Asks Online Retailer To Remedy Its Retaliation Against Customer for Critical Online Review

Company Damaged Customer’s Credit After He Refused Company’s Demand for $3,500 Over Critical Web Posting

Online merchant must retract its reports to consumer credit agencies concerning a phony $3,500 debt it has sought from customer John Palmer since late spring of 2012, Public Citizen wrote the company today in a demand letter.

In December 2008, John attempted to make a purchase on the site, but the order was never delivered. His wife Jen then wrote a critical review on In 2012, the company contacted John demanding $3,500 pursuant to a non-disparagement clause prohibiting “any action that negatively impacts [or] its reputation,” a clause that it claimed was included in its online Terms of Use. However, the website found that this clause did not exist when Jen wrote her review.

The false debt that reported to credit reporting agencies has hounded the family for more than a year. Recently, for instance, the family was unable to obtain a loan to purchase a new furnace when their old one broke, so the Palmers and their three-year-old son were left without heat in October in Utah.

Even if the clause had been on the website at the time of John’s purchase, it would be invalid “because it constitutes unfair surprise in a take-it-or-leave-it contract, and the terms themselves … are so one-sided in their broad, restrictive impact as to oppress an innocent party,” Public Citizen explained in the demand letter. Any attempt to enforce such a clause in court would also violate the First Amendment because

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Freedom of the Press as Protecting All Users of Mass Communications Technology — Responding to the Redundancy Objection

In the post below, I argue that the freedom of the press was originally and traditionally understood as protecting all users of the printing press as technology (and now its technological heirs), not the press as an industry or profession. One common response, which I’ve seen in many recent comments, is that this would make the Free Press Clause redundant of the Free Speech Clause, and that this is therefore an unsound way of interpreting the constitutional text. Here’s the passage from my article that responds to this:

The freedom of the press-as-technology, of course, was not seen as redundant of the freedom of speech. [Footnote: Justice Stewart argued that the Free Press Clause should be read as protecting the press-as-industry since otherwise it would be a “constitutional redundancy.”] St. George Tucker, for instance, discussed the freedom of speech as focusing on the spoken word and the freedom of the press focusing on the printed:

The best speech cannot be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be altogether inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press.

Likewise, George Hay, who later became a U.S. Attorney and a federal judge, wrote in 1799 that “freedom of speech means, in the construction of the Constitution, the privilege of speaking any thing without control” and “the words freedom

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Freedom for the Press — Protection for an Industry/Profession, or for All Users of a Technology?

Since the issue has come up again in recent comments, I thought I’d repost the introduction to my article, Freedom for the Press as an Industry, or for the Press as a Technology? From the Framing to Today, 160 U. Penn. L. Rev. 459 (2011); the entire article is available in its full PDF form here. (For a quick response to one common counterargument — which is that this reading treats the Free Press Clause as redundant of the Free Speech Clause — see this post.)

“[T]he freedom … of the press” specially protects the press as an industry, which is to say newspapers, television stations, and the like — so have argued some judges and scholars, such as the Citizens United v. FEC dissenters and Justices Stewart, Powell, and Douglas. This argument is made in many contexts: election-related speech, libel law, the journalist’s privilege, access to government property, and more.

Some lower courts have indeed concluded that some First Amendment constitutional protections apply only to the institutional press, and not to book authors, political advertisers, writers of letters to the editor, professors who post material on their websites, or people who are interviewed by newspaper reporters. Sometimes, this argument is used to support weaker protection for non-institutional-press speakers than is already given to institutional-press speakers. At other times, it is used to support greater protection for institutional-press speakers than they already get. The argument in the latter set of cases is that the greater protection can be limited to institutional-press speakers, and so will undermine rival government interests less than if the greater protection were extended to all speakers.

But other judges and scholars — including the Citizens United majority and Justice Brennan — have argued that the “freedom … of the press” does not

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“Reconsidering Citizens United as a Press Clause Case”

An excellent new Yale Law Journal article by Stanford Prof. Michael McConnell. The abstract:

The central flaw in the analysis of Citizens United by both the majority and the dissent was to treat it as a free speech case rather than a free press case. The right of a group to write and disseminate a documentary film criticizing a candidate for public office falls within the core of the freedom of the press. It is not constitutional for the government to punish the dissemination of such a documentary by a media corporation, and it therefore follows that it cannot be constitutional to punish its dissemination by a non-media corporation like Citizens United unless the freedom of the press is confined to the institutional media. Precedent, history, and pragmatics all refute the idea that freedom of the press is so confined.

The result in Citizens United was therefore almost uncontrovertibly correct. No one disputes that corporations, such as the New York Times Company, can editorialize during an election, and other groups performing the press function have the same right, even if they are not part of the traditional news media industry. A holding based on the Press Clause, though, would not have implied any change in constitutional doctrine about campaign contributions, which are not an exercise of the freedom of the press.

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Who Qualifies as “Media” for Purposes of Texas Law Governing Appeals?

I wanted to pass along another brief the UCLA First Amendment Amicus Brief Clinic submitted last week. This one is on behalf of the bloggers at SCOTUSblog, the Supreme Court of Texas Blog, How Appealing, InstaPundit, and Power Line (3/4 of the bloggers there), in SEIU v. Professional Janitorial Service, Inc. (Tex. Sup. Ct.) (the link is to the decision that is being appealed), and my students Nate Barrett, Garry Padrta, and Scott Sia worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here.

Here’s the issue: Defendants often move for summary judgment before trial; they argue that, even assuming the evidence that the plaintiff has identified before trial is correct, defendant is entitled to win as a matter of law, without the need for a trial. This is a way of avoiding the extra expense and risk of trial, in those situations where the law is on defendant’s side. But if the judge rules against defendant, the trial goes on, and the defendant isn’t entitled to immediately appeal; the defendant has to wait for the appeal until after trial, when the losing party can indeed appeal.

But Texas Civil Practice & Remedies Code § 51.014(a)(6) provides various exceptions, including when the lawsuit “is based in whole or in part upon a claim against or defense by a member of the electronic or print media, acting in such capacity, or a person whose communication appears in or is published by the electronic or print media, arising under the free speech or free press clause of the First Amendment to the United States Constitution [or the similar Texas constitutional provisions]” (emphasis added). Texas courts of appeals disagree on how to define [...]

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Google Books’ Scanning and Snippet Display of Books Is Fair Use, and Thus Not Copyright Infringement

So holds Authors Guild, Inc. v. Google Inc. (S.D.N.Y. Nov. 14, 2013). I’m still on the road, and thus can’t blog about the opinion in detail, but I’ve read it and I think its fair use finding is quite right.

Thanks to How Appealing for the pointer.

UPDATE: Matthew Sag has a summary of the reasoning. [...]

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Tarek Mehanna Conviction for Aiding al Qaeda Upheld

I’m on the road right now, and won’t have the time to blog further about this, but I suspect that some of our readers have followed the case — especially given the defendant’s First Amendment arguments — so I thought I’d note today’s First Circuit opinion. (Note that the title of the post is an oversimplification; Mehanna was charged with a variety of related crimes.) [UPDATE: Prof. Marty Lederman (Just Security) has more on the case.] Here’s a very brief excerpt that offers a general summary of the court’s First Amendment analysis:

[T]he district court’s instructions captured the essence of the controlling decision in [Holder v. Humanitarian Law Project], where the Court determined that otherwise-protected speech rises to the level of criminal material support only if it is “in coordination with foreign groups that the speaker knows to be terrorist organizations.” If speech fits within this taxonomy, it is not protected. This means that “advocacy performed in coordination with, or at the direction of,” [a Foreign Terrorist Organization] is not shielded by the First Amendment. The district court’s instructions tracked the contours of this legal framework. The court appropriately treated the question of whether enough coordination existed to criminalize the defendant’s translations as factbound and left that question to the jury.

I thought I’d also pass along something I wrote along similar lines three years ago, after Humanitarian Law Project was decided:

[Consider a fact pattern that] comes from the treason-by-propaganda cases, such as the Axis Sally case, Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). Mildred Gillars recorded this “Vision of Invasion” broadcast while working for the Nazis:

This program was a radio play of an hour’s length broadcast in the month before the Allied invasion of Europe. The scenes alternated

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Did The Dark Knight Rises Infringe a Trademark When Catwoman Was Offered a Program Called “Clean Slate”?

Here’s one more brief that the UCLA First Amendment Amicus Brief Clinic submitted last week. This one is on behalf of the Electronic Frontier Foundation, in Fortres Grand Corp. v. Warner Bros. Entertainment Inc. (7th Cir.) (the link is to the decision that is being appealed), and my students Nathan Davis, Sara Liss, and Paulette Rodriguez-Lopez worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here.

Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

Here’s a summary of the case, from the opinion below:

Warner Bros. produced the latest Batman film — The Dark Knight Rises — and it includes a handful of references to a fictional software program called “clean slate.” The Plaintiff, Fortres Grand Corporation, manufactures and sells a real software program called “Clean Slate.” Fortres’s theory is that it is in fact trademark infringement when a fictional product bears the same name as its real product. Warner Bros. takes the opposite view and has moved to dismiss

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Campus Videorecording and Bans on “Harassment” and “Intimidation”

As the previous post noted, I’m passing along another brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. This one is on behalf of the Student Press Law Center and the Foundation for Individual Rights in Education, in O’Brien v. Welty (9th Cir.) (the link is to the decision that is being appealed). My students Curtis Brown, Sara Liss, and Ali Vaqar worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here.

Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

Summary of Argument

Videorecording is presumptively protected by the First Amendment. To be sure, videorecording, like other protected First Amendment activity, may be subject to more restriction in nonpublic fora and limited public fora than in traditional public fora. If a university implements a policy clearly prohibiting videorecording professors in their offices without their consent, such a policy might be constitutional.

But the 5 Cal. Code Regs. § 41301(b)(7) ban on “interfer[ing]

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Commenter Sues Newspaper for Refusing to Remove Comments About Him

He loses, in Hupp v. Freedom Communications, Inc. (Cal. Ct. App. Nov. 17, 2013), and will likely have to pay the defendant’s attorney fees to boot (under the California anti-SLAPP statute). Plaintiff Paul Hupp’s claim was that the Orange County Register “violated its user agreement ‘by making public comments and not removing said comment about Plaintiff that includes but is not limited to; invading the privacy of Plaintiff, harassed Plaintiff, was harmful to Plaintiff.'” But the Register isn’t liable in tort for the commenters’ alleged misconduct, and it isn’t liable under the contract, either, because its contract specifically stated that it wasn’t promising to delete any comments that violated its policies:

[W]e reserve the right, but undertake no duty, to review, edit, move, or delete any User Content provided for display or placed on the Service, at our sole and absolute discretion, without notice to the person who submitted such User Content.

And in any event, according to the court, the plaintiff didn’t provide any argument supporting his breach of contract claim.

Incidentally, the VC makes a cameo appearance in footnote 3:

It is interesting to note that, despite his alleged privacy concerns, Hupp participated in the Volokh Conspiracy postings, even though many details of his life were openly discussed.

Hardly a key part of the logic, but, hey, our names in print! “Things are going to start happening to [us] now.” Thanks to Prof. Shaun Martin (California Appellate Report) for the pointer.

UPDATE: The problem with posting while tired — the title originally said that the commenter sues the newspaper for refusing to remove his comments; of course that isn’t so, since his claim was that the comments were other people’s comments that violated the posting policy. D’oh! Sorry about that. [...]

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You Can’t Force Public School Students to Salute the Flag (or to Hold Their Hands over Their Hearts)

That’s been well-settled First Amendment law for 70 years, but some government officials are still not on top of it. Three years ago, a judge’s attempt to force people to say the Pledge hit the news; now, it’s a Florida teacher. According to Hernando Today,

An Explorer K8 teacher was suspended [for five days without pay] after trying to force one of her students to say the Pledge of Allegiance, according to an investigation….

After the student informed [teacher Anne Daigle-McDonald] of [his religious objection to saluting,] McDonald went to the front of the class and said, “If you don’t want to say the pledge, you still have to put your hand on your heart and if you don’t want to do that, you should move out of the country,” according to the report.

The report also shows McDonald said something about there not being a religion that prohibits doing the pledge, according to the investigation.

Several other students in the class corroborated the allegations, according to the investigation.

Here, by the way, is a passage from the Court’s 1943 Barnette opinion, striking down a compulsory flag salute (and not just the compulsory pledge); the logic would apply equally to a compulsion to put one’s hand on one’s heart:

There is no doubt that, in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. The State announces rank, function, and authority through crowns and maces, uniforms

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Irish Constitutional Convention Recommends Referendum on Changing Blasphemy Ban to “Incitement to Religious Hatred” Ban

The Irish Constitution expressly prohibits blasphemy; the Irish Constitutional Convention has just voted to recommend a referendum on replacing this provision with a ban on “incitement to religious hatred,” though delegates were split on whether there should be a statutory blasphemy ban as well:

Voting yesterday on whether the offence of blasphemy should be kept as it is in the Constitution, 38 per cent said yes, 61 per cent no and 1 per cent were undecided or had no opinion.

In a follow-up question, 38 per cent said the offence should be removed from the Constitution, 53 per cent said it should be replaced with a new general provision to include incitement to religious hatred and 9 per cent had no opinion. Asked whether there should be a legislative provision for the offence of blasphemy, 49 per cent of members said yes, 50 per cent said no and 1 per cent were undecided or had no opinion.

According to the Irish Times,

Dr Ali Selim of the Islamic Cultural Centre of Ireland said the offence should be retained, arguing that freedom of expression should not be “unrestrained” and must be used responsibly. The Order of the Knights of St Columbanus argued in a written submission that the constitutional prohibition on blasphemy served to safeguard the right of believers “not to suffer unwarranted offence arising from the gratuitous impugning of sacred matter”.

On the other hand, secularist groups, civil liberties groups, and “[t]he umbrella group representing almost all Christian churches in Ireland” urged repeal of the ban. As readers of the blog might gather, I think both a ban on blasphemy and a ban on “incitement to religious hatred” are improper. Religious belief systems, like other belief systems, should be open to criticism and mockery — and, indeed to [...]

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Yelling “Toy Guns” on a Crowded Facebook Page

From an East Haven, Ct. Police Department press release:

On October 22, 2013, Angelo Appi (DOB 1-3-1967) turned himself into the East Haven Police Department on an arrest warrant charging him with Breach of Peace in the Second Degree.

The arrest warrant originated from an incident that took place the previous day in which Appi allegedly posted on Facebook the following message “Maybe I have to walk in with Toy guns just to prove a point!”

The comments were regarding Joseph Melillo Middle School in which Appi has previously pointed out what he believes are lapses in security at the school.

The Facebook posting prompted over fifty calls to the middle school from parents concerned about the message.

According to the Principal at Joseph Melillo Middle School, more than double the number of students called out of school the day following the incident than those that call out on a typical day.

While Mr. Appi stated that he believes it is his First Amendment right to free speech to comment, the right to free speech is not absolute as indicated by U.S. Supreme Court rulings.

The comment made by Mr. Appi is not protected speech and is akin to yelling “fire” in a crowded theater or “bomb” in an airport when no such threat exits. Mr. Appi’s comments caused alarm and concern for a significant number of parents whose children attend Joseph Melillo Middle School.

Mr. Appi has a court date of October 30, 2013 at New Haven Superior Court.

This strikes me as ridiculous, and clearly unconstitutional. As the New Haven Register reports (see also here), Appi has indeed been pointing to lapses in school security, and made the “maybe I have to walk in with Toy guns just to prove a point” comment (apparently without the [...]

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