Archive | Freedom of Speech

Texas Court Strikes Down Ban on Communications to Minors “That Relate[] to or Describe[] Sexual Conduct” Made with “Intent to [Sexually] Arouse”

The case is today’s Ex parte Lo (Tex. Ct. Crim. App. Oct. 30, 2013) — from Texas’ highest criminal court — and the provisions truck down is Tex. Penal Code § 33.021(b):

A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

(1) communicates in a sexually explicit manner [defined as “any communication, language, or material, including a photographic or video image, that relates to or describes sexual conduct”] with a minor [defined as anyone who represents himself or herself as under 17, or whom the actor believes is under 17]; or

(2) distributes sexually explicit material to a minor.

(Other statutes, not challenged here, ban sexual solicitation of a minor, and the distribution of obscene-as-to-minors material to minors.) The court reasons:

Subsection (b) covers a whole cornucopia of “titillating talk” or “dirty talk.” But it also includes sexually explicit literature such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cressida.” It includes sexually explicit television shows, movies, and performances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Malfunction” during the 2004 Super Bowl, and Miley Cyrus’s “twerking” during the 2013 MTV Video Music Awards. It includes sexually explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japanese Shunga. Communications and materials that, in some manner, “relate to” sexual conduct comprise much of the art, literature, and entertainment of the world from the time of the Greek myths extolling Zeus’s sexual prowess, through the ribald plays of the Renaissance,

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Question for Supporters of the Boycott of Ender’s Game

If you think people should boycott the movie Ender’s Game (discussed by co-blogger Dale here) because of Orson Scott Card’s anti-gay marriage remarks, do you also think that people back in the 1940s and 50s were justified in threatening to boycott movies if Hollywood employed Communists as screenwriters? Do you the studios were justified in responding to that boycott by blacklisting known Communists (and all or almost all [historian Ronald Radosh told me 98%] of them were in fact members of the Communist Party, USA)? Do you think there should be a similar blacklist today for writers like Card who express homophobic views?

UPDATE: I see some commenters are distinguishing between a boycott and a blacklist. But the whole point of boycotting an artist’s work on political/ideological grounds is to encourage a blacklist, even though no one is calling is that. You boycott an artist’s work, those employing the artist lose money, so they learn no to hire that artist or those who express similar views again. Thus, an informal blacklist. A commenter points out that this sort of scenario doesn’t involve formal collusion. So would the “blacklist” have been okay if each individual studio had done it without consulting their peers?

To put my own cards on the table, I think boycotts and blacklists are perfectly appropriate (though in a free society it’s best to give each other a little slack for the sake of social peace), and I think the blacklist of the Communists was fine to the extent it was a response to justified public hostility to Communists and Communism (remember, we’re talking about Stalinists when the blacklist started) and not to implicit threats of government action. It was, in my understanding, overwhelmingly the former. [Added: We now know that anti-Communist activists of the day were [...]

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10-Year Sentence in Kuwait for Blasphemy and for Criticism of Saudi and Bahrain Rulers

From Agence France Press:

Kuwait’s court of appeals on Monday upheld a 10-year jail term against a Shia tweeter for remarks [on Twitter] deemed offensive to Islam’s Prophet Mohammed, his wife and companions.

Hamad al-Naqi … was found guilty of the religious insults and of criticising the leaders of neighbouring Saudi Arabia and Bahrain, according to the court ruling….

Naqi claimed his Twitter accounts were hacked during that period….

If anyone can point me to an authoritative source describing the text of the remarks, I’d love to see them. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer. [...]

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How Bigoted Speech Advances Equality

In a splendidly written essay in The Atlantic, Jonathan Rauch makes the case for protecting “hate speech” in the context of a proposed boycott by some gay-rights advocates of the movie Ender’s Game (released Nov. 1).  The movie is not itself said to be homophobic but, they urge, it should be boycotted because it is based on a sci-fi novel by Orson Scott Card, who has suggested that enacting gay marriage might lead to the recruitment of children into homosexuality.  Rauch notes that anti-gay speech has had a critical role in advancing gay rights by requiring advocates to calmly and reasonably rebut opposing claims, allowing the public to assess the factual correctness and moral persuasiveness of the competing claims.  It’s a classic Holmesian marketplace-of-ideas theory of free speech:

Our great blessing was to live in a society that understands where knowledge comes from: not from political authority or personal revelation, but from a public process of open-ended debate and discussion, in which every day millions of people venture and test billions of hypotheses. All but a few of those theories are found wanting, but some survive and flourish over time, and those comprise our knowledge. . . .

America’s transformation on gay rights over the past few years is a triumph of the open society. Not long ago, gays were pariahs. We had no real political power, only the force of our arguments. But in a society where free exchange is the rule, that was enough. We had the coercive power of truth.

History shows that the more open the intellectual environment, the better minorities will do. We learn empirically that women are as intelligent and capable as men; this knowledge strengthens the moral claims of gender equality. We learn from social experience that laws permitting religious pluralism make

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Joseph Goebbels’ Early Novel Banned by Russian Authorities as “Extremist” Material

So reports Lenta.ru; the book is a Russian translation of Michael (1929). According to RIA Novosti,

Russian authorities launched an extremism investigation last month after reports that the novel was being sold in several Moscow bookstores, along with Benito Mussolini’s “The Third Way.” Both books were published and distributed to stores by the Algoritm publishing house. A criminal case of inciting hatred has been opened.

Mussolini’s book was ruled extremist by a Russian court in early October. Moreover, a federal law on combating extremism already recognizes the works of Italian fascist leaders, including Mussolini, as extremist without the need for additional evaluation.

In December 2012, a Moscow court added Nazi ideologist Alfred Rosenberg’s “Myth of the 20th Century” and “Memoirs,” as well as Viktor Pranov’s book, “Survival Law of the Foulest,” to the list of extremist literature banned from publication and sale. Adolf Hitler’s “Mein Kampf” has also been banned as extremist in Russia.

I would think that reading Hitler’s and Mussolini’s manifestoes would be pretty important to people studying 20th Century European history, and reading Goebbels’ novel would likewise be valuable to people who are trying to understand more about the Nazi leadership. And even if the government ought to be in the business of suppressing dangerous ideology (a view I do not hold) I would think that Goebbels’ novel is quite unlikely to be much of a danger in modern Russia. (Indeed, for whatever it’s worth, according to Lenta.ru the publisher says that it printed only two or three thousand copies, which makes it quite unlikely that it is trying to propagandize, and makes it much more likely that the books are indeed aimed at people interested in history.) In any case, though, I thought I’d note this for the benefit of those who are [...]

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Does the original meaning of the First Amendment protect a right of privacy in campaign contributions?

My Independence Institute colleague Rob Natelson examines the question from an originalist perspective, in a new working paper published on SSRN. His analysis is summarized in this blog post on his website. In brief: political contributions are best analyzed as a form of Freedom of the Press. The Freedom of the Press includes the right to anonymous authorship. The right can be breached in cases of abuse, as when a civil libel plaintiff needs to discover the identity of the person who libeled him.

Some readers may disagree with the first part of Rob’s analysis, but the point about the right to exercise the Freedom of the Press anonymously seems indisputably correct. Rob extends the anonymity argument far beyond the points made by Justice Thomas in his Citizens United concurrence. [...]

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ATF Refuses to Allow Agent to Publish Book on “Fast & Furious”

Special Agent John Dodson of the Bureau of Alcohol, Tobacco, and Firearms (ATF) wants to publish a book about the the “Fast & Furious” scandal.  ATF, like many federal agencies, has a policy limiting outside employment opportunities.  At the very least, this policy means that Dodson needs ATF approval if he wants to get paid for publishing the book.  (I’ve co-authored several items with a DoJ attorney who is subject to a similar policy.)  Under current doctrine, government employees do not enjoy the same free speech rights as private citizens, at least when the speech is related to their employment. (See generally Garcetti v. Ceballos.)

Thus far, the ATF has refused to grant such permission to Dodson, on the grounds that the book could have “a negative impact on morale” within the agency and could have “a detremental effect [sic] on [ATF] relationships” with other agencies.  This has prompted an objection from the ACLU, which argues the ATF policy violates Dodson’s First Amendment rights. According to a letter the ACLU sent ATF, “the ATF’s written guidelines for outside employment authorizations are constitutionally inadequate, and that their application to Agent Dodson’s publication request resulted in impermissible censorship of the speech of a public employee.” According to this AP report, ATF is still considering whether Dodson can publish the book if he does not receive payment. [...]

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Court Upholds Ban on Photographing Border Checkpoint

Lower courts have recently been holding that the First Amendment protects people’s right to audiorecord and videorecord in many public places, especially when they are recording the conduct of government officials. (See, e.g., ACLU v. Alvarez (7th Cir. 2012) and Glik v. Cunniffe (1st Cir. 2011).) This makes a good deal of sense; just as restricting the spending of money for speech interferes with the ability to speak, and is thus presumptively unconstitutional, so restricting audiorecording and videorecording events in public interferes with the ability to effectively and persuasively speak about those events.

At the same time, this opens up a bunch of questions about what limits, if any, there are on this right. (For instance, many states have laws barring one party to a conversation from secretly recording that conversation, at least in many circumstances, yet that too burdens people’s ability to gather information.) Here is one court decision from a few days ago, Askins v. U.S. Dept. of Homeland Sec. (S.D. Cal. Sept. 20, 2003), upholding such a limitation. I’m not sure what the right analysis is here, but I thought the court’s discussion was worth passing along:

According to the Complaint, Mr. Askins is a U.S. citizen living primarily in Mexicali, Mexico who frequently crosses the border into the United States. He maintains and contributes to a blog that addresses environmental issues and human rights abuses in the U.S.-Mexico border region. Mr. Askins’ work “involves extensive research, investigation, and analysis of CBP activities.” …

On or about April 19, 2012, Mr. Askins took “three or four photographs of the exit of the secondary inspection area” while standing approximately “50–100 feet from the exit from the secondary inspection area.” When he took these pictures, he was in the United States and “not engaged in the act

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“Alice in Wonderland Has Nothing on Section 518 of the New York General Business Law”

So begins Expressions Hair Design v. Schneiderman (S.D.N.Y. Oct. 3, 2013):

Under the most plausible interpretation of that section, if a vendor is willing to sell a product for $100 cash but charges $102 when the purchaser pays with a credit card, the vendor risks prosecution if it tells the purchaser that the vendor is adding a 2% surcharge because the credit card companies charge the vendor a 2% “swipe fee.” But if, instead, the vendor tells the purchaser that its regular price for the product is $102, but that it is willing to give the purchaser a $2 discount if the purchaser pays cash, compliance with section 518 is achieved. As discussed below, this virtually incomprehensible distinction between what a vendor can and cannot tell its customers offends the First Amendment and renders section 518 unconstitutional.

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It’s a Crime to Say This About Muslim Men in Denmark

According to the Copenhagen Post (Sept. 18, 2013), Danish-Iranian artist Firoozeh Bazrafkan was convicted under “anti-racism legislation” for posting this blog entry on a newspaper Web site, quoting and endorsing an earlier statement by Lars Kragh Andersen:

I am very convinced that Muslim men around the world rape, abuse and kill their daughters. This is, according to my understanding as a Danish-Iranian, due to a defective and inhumane culture — if you can even call it a culture at all. But you can say, I think, that it is a defective and inhumane religion whose textbook, the Koran, is more immoral, deplorable and crazy than manuals of the two other global religions combined.

“By publishing the statement in the blog, the defendant presented statements in which a group of people are mocked and degraded because of their belief,” the court ruled, and that was enough to make the speech criminal.

I oppose bans on “hate speech” generally, but bans on criticism of religion strike me as especially wrong. Religions are connected to ideologies and to cultures. They can do good and they can do harm. They deserve to be evaluated and criticized, just as any ideologies deserve to be evaluated and criticized.

Islam, Christianity, and Judaism, and any other religions — and their adherents — should have no more immunity from criticism than Communism, libertarianism, liberalism, conservatism, or any other belief system, especially since belief systems produce action systems. Sad to see what has become unsayable in Europe, and what European governments are apparently trying to make unthinkable as well.

Thanks to Walter Olson (Overlawyered) for the pointer. [...]

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California High School Blocks NRA T-Shirt Because It Depicts a Weapon

[UPDATE: The school has backed down, see below.]

So reports CBS Los Angeles:

Sophomore Haley Bullwinkle said when she wore her NRA shirt to Canyon High School last month, she landed in the principal’s office for violating the school’s dress code that forbids offensive, violent or divisive clothing….

The shirt … features a buck, an American flag and a hunter’s silhouette. It also has the words “National Rifle Association of America: Protecting America’s Traditions Since 1871” written in the center….

Principal Kimberly Fricker [wrote] in an email [to Bullwinkle’s father that], “The shirt had a gun on it, which is not allowed by school police. It’s protocol to have students change when they’re in violation of the dress code.”

But this policy (which does indeed ban all depiction of, among other things, “violence” and “weapons”) is unconstitutional, even under the relaxed First Amendment standards applicable in government-run K-12 schools. As Newsom ex rel. Newsom v. Albemarle County School Bd. (4th Cir. 2003) held in a very similar case. And it’s also illegal under California’s Leonard Law, a state statute that provides high school students with even broader protection than does the First Amendment.

For a similar story from earlier this year, see here.

UPDATE: The NRA reports (thanks to commenter D. Laden for the pointer) that the school has apologized:

Sent on behalf of Michael L. Christensen, Superintendent of Schools, Orange Unified School District:

Response to Canyon High School NRA Shirt Incident

Canyon High School has a policy prohibiting clothing depicting or promoting violence. In this incident, a student was referred to the counseling office by a security officer because she was wearing a shirt with a logo that included a rifle. The student was instructed by a staff member to change her shirt and was

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Could Doctors’ Public Condemnation of Homosexuality Lead to Medical Board Investigation of Doctors?

Yes, say 60% of the state medical boards respondents surveyed in Greysen et al., Online Professionalism Investigations by State Medical Boards: First, Do No Harm, 158(2) Ann Intern Med. 124-30 (2013). Here’s the vignette that was given in the survey:

Discriminatory Speech Online

A concerned staff member at a local hospital reports discriminatory language on a physician’s Facebook page:

“I saw this homosexual patient who came in complaining of dysuria and wants me to help. Well … that’s what you get for being gay. I really don’t feel any compassion for these people — they don’t deserve antibiotics, they need to change their behaviors.”

Note that this didn’t involve breach of patient confidentiality (that was a separate vignette). Nor is it just a matter of when a private or public employer may choose to fire an employee. Rather, this has to do with when a medical board can investigate a doctor, with an eye towards imposing disciplinary measures.

And indeed the Federation of State Medical Boards takes the same view, saying that “State medical boards have the authority to discipline physicians for unprofessional behavior relating to the inappropriate use of social networking media, such as … Discriminatory language or practices online” (again, quite apart from breaches of confidentiality, which are covered by a separate bullet point). “State medical boards have the option to discipline physicians for inappropriate or unprofessional conduct while using social media or social networking websites with actions that range from a letter of reprimand to the revocation of a license.” Moreover, I take it that the reprimands won’t just be the board expressing its own views; rather, the discriminatory-lanaguage-based reprimands can lead to greater punishment in the future for future offenses.

This strikes me as a serious lack of attention to First Amendment rights. Though [...]

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Son of Palestinian Authority President Loses Libel Lawsuit

The decision is Abbas v. Foreign Policy Group, LLC (D.D.C. Sept. 27, 2013); the defendants were the company that publishes Foreign Policy magazine and Jonathan Schanzer, the VP for Research at the Foundation for Defense of Democracies. An excerpt:

Mr. Abbas contends that the Commentary poses two “libelous questions:” (1) “Are the sons of the Palestinian president growing rich off their father’s system?; and (2) “Have they enriched themselves at the expense of regular Palestinians — and even U.S. taxpayers?” Mr. Abbas alleges that these questions “may be read as assertions of false fact that [he] is wrongfully and possibly criminally getting rich off his ‘father’s system.’” Purportedly, these questions ask “those he works with and all the world to wonder if plaintiff has ‘enriched’ himself ‘at the expense of regular Palestinians — and even U.S. taxpayers.’” Defendants argue that “the Commentary merely posed questions, without stating or implying as factual matter that Plaintiff was guilty of criminal or corrupt conduct, and Plaintiff has wholly mischaracterized the Commentary in an effort to suggest otherwise.”

A statement challenged as defamatory, regardless of whether it is posed as a question, cannot be libelous unless it can reasonably be read as a false assertion of fact. “[I]nquiry itself, however embarrassing or unpleasant to the subject, is not accusation.” …

[T]he two questions posed in the Commentary cannot reasonably be read to imply the meaning that Mr. Abbas alleges — that he “is wrongfully and possibly criminally getting rich off of his ‘father’s system’ ” or that he is enriching himself “at the expense of regular Palestinians and even U.S. taxpayers” — or can they be read to imply the assertion of objective facts. Though the conclusions Mr. Abbas draws are possible answers to the questions posed by Mr. Schanzer, the questions invite

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Ban on “Advis[ing or] Encourag[ing] … Another” to Commit Suicide Violates First Amendment

So holds today’s State v. Final Exit Network, Inc. (Minn. Ct. App. Sept. 30, 2013). The court concluded that the statute “criminalizes any and all expressions of support, guidance, planning, or education to people who want to end their own lives, whether from a public platform, such as a book, or in the private setting of a hospital room or family home,” and was therefore unconstitutionally overbroad. The court disagreed on this issue with State v. Melchert-Dinkel (Minn. Ct. App. 2012), which is now being reviewed by the Minnesota Supreme Court; presumably the Minnesota Supreme Court will consider the reasoning of the court of appeals’ opinion in this case (Final Exit Network) in reaching its ultimate decision.

The court did not decide whether a statute focused on speech to a particular person, advising or encouraging that person to commit suicide, might be outlawed, by analogy to the “solicitation of crime” exception (see United States v. Williams (2008)). “The state urges us,” the court noted, “to construe the statute to prohibit only speech ‘that intentionally advises a specific person, with the specific intent to aid the person in taking the other person’s own life,’ but acknowledges that the plain language of the statute does not so read.” [...]

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