May 4, 2015

Judges Aren't Politicians, High Court Says

Does someone who wants to be a judge have a First Amendment right to hit people up for campaign money?

Thankfully, the U. S. Supreme Court says "no," in a 5-4 decision filed April 29. The Court's split decision will hopefully keep the most unseemly aspects of money-raising out of judicial races in a way that its controversial Citizens United decision doesn't for other campaigns.

Chief Justice John Roberts' decision focused on the unique aspects of judging, reasoning, "Judges are not politicians, even when they come to the bench by way of the ballot. And a State's decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor -- and without having personally asked anyone for money."

The Court's decision in Williams-Yulee v. Florida Bar sparked a vigorous debate both inside and outside the Court on the nature of judging. Former California Supreme Court Justice Joseph Grodin -- my boss when he was on that Court in the 1980s -- cited Chief Justice Roberts' statement during his confirmation hearings that a justice's role is like an umpire calling balls and strikes, and said in the wake of the Williams-Yulee decision, "most judging takes place along a continuum between the poles of judge-as-referee and judge-as-legislator, a middle ground of tension that tends to resist simplistic metaphors."

First Amendment lawyer Floyd Abrams, who was counsel to Senator Mitch McConnell in the Citizens United case, was critical of the Williams-Yulee decision, and asserted that the decision's focus on the special role of judging "reinforces" the Citizens United decision.

I'm not so sure. While there are, to be sure, differences between judges and politicians, much of what Chief Justice Roberts says in defense of the Florida Bar's rule restricting judicial candidates' solicitations could also be said about other campaign finance restrictions. Chief Justice Roberts catalogues a number of ways judicial candidates can campaign without saying, "Please give me money." The same can be said about the campaign finance restrictions the Court struck down in Citizens United: there were a number of ways candidates could get their message across without completely discarding any campaign finance restrictions and opening the door to the unlimited spending and "one dollar one vote" cesspool of super-PACs that has engulfed elections since Citizens United.

In the end, I think the majority got it right in Williams-Yulee. I only wish some of the Court's reasoning about the importance of preserving public confidence in the integrity of the judiciary had been applied in Citizens United to the interest in, as Chief Justice Roberts called it, "preventing the appearance of corruption in legislative and executive elections."

February 27, 2015

Swastika Display Triggers Hate Speech Debate

A Sacramento man's display of a swastika on his front lawn has triggered a hate speech debate in California.

State Senator Marty Block (D-San Diego) was joined by a group of veterans, community leaders and fellow legislators February 26 in Sacramento urging the homeowner to remove the swastika from his Sacramento home. The display takes up a large portion of the front of the home.

The calls for removal are well-meaning, but the First Amendment would surely prevent the legislators from forcing the homeowner to remove the hateful symbol.

Similar attempts have failed in the past. Perhaps the best-known example occurred back in 1977, when the National Socialist Party of America announced plans to march through the predominantly-Jewish community of Skokie, Illinois, where one in six residents was a Holocaust survivor. After a trip to the United States Supreme Court, the case resulted in an Illinois Supreme Court ruling that the use of a swastika is a symbolic form of free speech and the use of the symbol itself did not constitute "fighting words." The ruling allowed the Nazis to march in Skokie.

Likewise, a 1992 decision by the U.S. Supreme Court struck down a St. Paul, Minnesota law banning displays of a burning cross or swastika. That case involved a teenager who burned a cross on the lawn of an African-American family. And in 2003 the U.S. Supreme Court ruled that a Virginia law against cross-burning went too far, although cross-burning with intent to intimidate could be banned.

Ultimately, all these cases demonstrate this country's commitment to free speech -- even revulsive speech which seems to have no place in a civilized society -- which make our country worlds apart from Hitler's Germany. And they illustrate the famous words of the French writer Voltaire: "I do not agree with what you have to say, but I will defend to the death your right to say it."

June 21, 2014

High Court Protects Public Employee Whistleblowers

The U. S. Supreme Court has taken a step in the right direction for public employee whistleblowers.

The Court's June 19 decision in Lane v. Franks reiterates that citizens don't surrender First Amendment rights by accepting public employment and that First Amendment protection of a public employee's speech requires balancing "the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees."

Lane is an example of the aphorism that while bad facts make bad law, good facts make good law.; Lane headed a statewise program for underprivileged youth in Alabama. The program had financial difficulties. Lane fired a well-connected Alabama State Representative who vowed revenge. That employee was later indicted for mail fraud and Lane testified at her trial.

The narrow question in the case was whether the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job reasponsibilities. The Supreme Court answered that question "yes."

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June 16, 2014

Will Congress Shield News Media?

Will Congress step in where the U. S. Supreme Court decided not to tread?
That's the question facing the news media and advocates of the so-called Free Flow of Information Act now that the U. S. Supreme Court in early June decided not to hear a case involving New York Times reporter James Risen. The Fourth Circuit Court of Appeals last year ruled, "There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source." (U. S. v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013).) The Supreme Court's June decision not to hear the case exposes Risen to potential jail time for not identifying a source.

Risen is the author of a book, "State of War: The Secret History of the CIA and the Bush Administration," that detailed a CIA plan to sabotage Iran's nuclear program. Prosecutors contend that a former CIA agent, Jeffrey Sterling, leaked information to Risen which was used in the book.

The Fourth Circuit's decision rejects a First Amendment privilege for reporters not to testify in criminal cases, and also rejects a "qualified, federal common-law reporter's privilege protecting confidential sources." But the Court did recognize a qualified reporter's privilege in civil cases, saying that the Fourth Circuit has "continued to recognize the important distinction between enforcing subpoenas issued to reporters in criminal proceedings and enforcing subpoenas issued to reporters in civil litigation. Subpoenas in criminal cases are driven by the quite different and compelling public interest in effective criminal investigation and prosecution, an interest that simply is not present in civil cases."

The Court rejected a privilege for Risen, holding, "he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury -- the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead."

The U.S. Supreme Court's decision not to hear the case is the latest in a number of decisions by the Supreme Court not to revisit its 1972 decision in Branzburg v. Hayes, 408 U. S. 665. For decades, many lower courts had relied upon Justice Lewis Powell's concurring opinion in Branzburg to recognize some form of reporter's privilege. Justice Powell's concurring opinion stated, "The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources."

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February 5, 2014

Bloggers Protected Like Other Journalists

What's the difference between a blogger and an old-fashioned ink-stained newspaper reporter?

Not much, according to a January 17 court ruling from the federal Ninth Circuit Court of Appeals.

Ruling on what it called a "question of first impression" on the First Amendment protections afforded a blogger sued for defamation, the Court in Obsidian Finance Group v. Cox held that "liability for a defamatory blog post involving a matter of public concern cannot be imposed without proof of fault and actual damages."

The Court's ruling was not surprising. Although the Ninth Circuit had not directly addressed whether First Amendment defamation rules "apply equally to both the institutional press and individual speakers," the Court observed that "every other circuit to consider the issue has held that the First Amendment defamation rules...apply equally to the institutional press and individual speakers." Other courts have cited the difficulty of defining who belongs to the "media."

The Court in Obsidian concluded, "The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others' writings, or tried to get both sides of a story." It said a First Amendment distinction between the institutional press and other speakers is "unworkable."

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June 30, 2012

Court Strikes Down Law Banning Lies About Medals

The Supreme Court's ruling upholding President Obama's Affordable Care Act wasn't the only split decision it handed down on June 28.

The Court also made a major First Amendment ruling, striking down the "Stolen Valor Act of 2005," which makes it a crime to lie about having received the Congressional Medal of Honor. Justice Anthony Kennedy's plurality opinion stated, "Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought....Statutes suppressing or restricting speech must be judged by the sometimes inconvenient principles of the First Amendment."

Beyond the law at issue, the Court's plurality opinion observed, "The Court has never endorsed the categorical rule the Government advances: that false statements receive no First Amendment protection. Our prior decisions have not confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more."

Does the Court's decision mean that there is now a license to commit fraud and perjury? No. The plurality opinion -- written by Justice Kennedy, and joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor -- listed fraud as a category of speech which has long been restricted, and took pains to say that perjury statutes are constitutional. "Sworn testimony is quite distinct from lies not spoken under oath and simply intended to puff up oneself," Justice Kennedy's opinion declared.

The Stolen Valor case, United States v. Alvarez, produced three separate opinions. Justice Kennedy's plurality opinion applied strict scrutiny to the law, saying, "When content-based speech is in question...exacting scrutiny is required," and holding that the law flunked that test because, "The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie." Justice Kennedy pointed out that Xavier Alvarez, the man who lied about having received a Congressional Medal of Honor, was perceived as a phony even before the FBI began investigating his false statements.

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December 27, 2011

"Stolen Valor" Case Poses Free Speech Test

The U. S. Supreme Court will soon hear a case which could do major damage to First Amendment free speech protections.

The case, U. S. v. Alvarez, involves the "Stolen Valor Act," a 2005 law which makes it a crime to lie about having received a military medal of honor. The federal 9th Circuit Court of Appeals found the law unconstitutional but the Supreme Court on October 17 agreed to hear the case.

The 9th Circuit had held, "if the Act is constitutional...then there would be no constitutional bar to criminalizing lying about one's height, weight, age or financial status on or Facebook, or falsely representing to one's mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspect of their lives from time to time." The ever-colorful Chief Judge Alex Kozinski commented that talking about oneself is "precisely when people are most likely to exaggerate, obfuscate, embellish, omit key facts or tell tell tales. Self-expression that risks prison if it strays from the monotonous reporting of strictly accurate facts about oneself is no expression at all."

But 9th Circuit Judge Diarmuid O'Scannlain, who dissented from the court's denial of rehearing, saw it differently, saying, "restrictions upon false speech do not receive strict scrutiny." The 9th Circuit majority, however, held, "regulations of false factual speech must, like other content-based speech restrictions, be subjected to strict scrutiny unless the statute is narrowly crafted to target the type of false factual speech previously held proscribable because it is not protected by the First Amendment."

No one argues that falsely claiming to have received a Medal of Honor is the highest and best form of free speech. But if the Supreme Court upholds the Stolen Valor Act it will likely expand the kinds of speech which are categorically exempted from First Amendment protection. This would create a slippery slope under which many forms of political speech might be subject to criminal sanctions if found to be untrue. After all, there is sometimes a fine line between the embellishments and half-truths which pervade political discourse, and the flat-out lies at issue in the Alvarez case. (Xavier Alvarez, a member of a water board in southern California, said in 2007 that he had been wounded as a Marine and had in 1987 received a Medal of Honor. He had never served in the military. The government prosecuted him and he conditionally pled guilty to violating the Stolen Valor Act, while reserving his rights to challenge its constitutionality. The Act imposes a penalty of up to a year in prison plus a fine; Alvarez was sentenced to three years probation and a $5,000 fine.)


Consider the issue of "job creation," sure to be front and center in the 2012 elections. In the recent campaign for San Francisco Mayor, one candidate said he had "created" thousands of jobs. His "creation"? He voted for tax breaks for companies located downtown. On the Presidential level, Mitt Romney likes to talk about his record of "job creation." If he is lying about his record -- his venture capital firms laid people off after leveaged buyouts -- should he go to jail? The point is, criminalizing lies is likely to pose serious threats to free speech.

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December 7, 2011

Did Brown Cell Out Privacy Rights?

California Governor Jerry Brown disappointed privacy advocates with his October 9 veto of a bill which would have required law enforcement officers to have a warrant before searching cell phones incident to an arrest.


The bill, Senate Bill 914, sailed through the Legislature with a 32-4 Senate vote and unanimous 70-0 support in the Assembly. It would have overturned a California Supreme Court decision, People v. Diaz(2011) 51 Cal. 4th 84, which held that a search of a defendant's cell phone incident to an arrest was lawful, even without a warrant, because a cell phone is like an article of clothing.

Dissenting Justice Kathryn Werdegar argued that, "The potential intrusion on informational privacy involved in a police search of a person's mobile phone, smartphone or handheld computer is unique among searches of an arrestee's person and effects," because a smartphone can contain hundreds of thousands of messages, photographs, videos, maps, contacts, financial records, memoranda and the like.

The Legislature agreed. SB 914 would have overturned the Diaz decision. The author, State Senator Mark Leno (D-San Francisco), said, "If you like to attend political rallies, parades, protests or sit-ins, you might want to consider leaving your cell phone at home in the event arrests are made. A recent California Supreme Court decision allows police to rummage through all of the private information on your smart phone as part of an arrest, including your text messages and e-mails." He said the court's decision raised many privacy concerns, and a bi-partisan majority of the Legislature agreed. Leno said cell phones "store a wealth of personal information," and that accessing information on a cell phone is "fundamentally different than searching an arrested person's wallet, cigarette pack or jeans pockets."

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November 23, 2011

Occupy Movement Raises Thorny First Amendment Issues

The Occupy movement is raising some thorny First Amendment issues.

Protesters have First Amendment rights to demonstrate and march, and they've raised important issues about the rising income inequality in this country.

On the other hand, governments traditionally have been able to impose so-called "time, place and manner" restrictions, so the issue becomes whether Occupy protesters have First Amendment rights to permanently occupy certain public places.

I had little sympathy for homeless people in San Francisco's Golden Gate Park who left syringes and human waste in the park and despoiled its natural beauty.

But I have more sympathy for those who've pitched tents in downtown spaces like San Francisco's Harry Bridges Plaza and Oakland's Frank Ogawa Plaza. For one thing, there's a clear speech message associated with their encampment. For another, they are occupying what seem like public spaces more suitable for public gatherings than enjoyment of natural beauty and the great outdoors.

Recently police have moved in and evicted Occupiers from places in which they've pitched tents in many cities. In some places, such as the University of California Davis, the police have stepped over the line, using pepper-spray on non-violent protesters who linked arms on the campus.

I don't doubt that the authorities can take steps to protect the public health. But special care must be taken to ensure that the exercise of pure political speech is not sacrificed in the process.

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October 15, 2011

Supreme Court Bludgeons California Video-Game Law

Is Mortal Kombat the highest form of free speech?

Maybe not. But it is protected by the First Amendment, according to a majority of the U. S. Supreme Court.

The Supreme Court's ruling on June 27 in Brown v. Entertainment Merchants Association struck down a California law restricting the sale or rental of violent video games to minors. It makes for interesting reading, and it produced several different opinions. Justice Antonin Scalia -- joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan -- delivered a full-throated defense of violent video games, holding, "Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny." He compared violent video games to Grimm's Fairy Tales, where the wicked queen, as punishment for trying to poison Snow White, "fell dead on the floor," and to Cinderella, where her evil stepsisters "have their eyes pecked out by doves."

The California law was dead on arrival, the Court said, because the state "acknowledges that it cannot show a direct causal link between violent video games and harm to minors."

Justice Samuel Alito and Chief Justice John Roberts weren't so sure. Alito wrote, "In the view of the Court, all those concerned about the effects of violent video games -- federal and state legislators, educators, social scientists, and parents -- are unduly fearful, for violent video games really present no serious problem. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in 'kind' from reading a description of violence in a work of literature. The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show."

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September 7, 2011

BART Touches Third Rail in Cell-Phone Shutdown

The Bay Area Rapid Transit system (BART) stepped into a touchy First Amendment issue when it shut off cell-phone service this summer in response to protests over a police action.

The decision sparked protests from First Amendment advocates and even criticism from BART board members who thought the agency overreacted to protesters.

BART argues that it has no obligation to provide cell-phone service at all in its underground tube and tunnels. But the protesters argued, with some justification, that once BART provides cell-phone access it shouldn't cut it off to prevent protesters and riders from communicating and peacefully assembling.

Some even likened BART's actions to those of deposted Egyptian leader Hosni Mubarak, who tried to cut off cell-phone and Internet access to prevent swelling protests in Cairo which eventually brought down his regime.

That comparison may same somewhat over the top, but it does seem that there are better ways to prevent protests from getting out of hand than to prevent peaceful BART riders from communicating with each other and their loved ones. The BART board is in the process of setting a policy on cell-phone use -- and one hopes the policy will be sensitive to First Amendment rights.

April 6, 2009

Federal Shield Law May Pass This Year -- Free Flow of Information Act, HR 985, Clears House Judiciary Committee

This may be the year the long-debated and much-needed federal shield law passes.

The so-called Free Flow of Information Act, HR 985, cleared the House Judiciary Committee March 25, and the committee's chairman, Rep. John Conyers, committed to "swift action" on the bill this year. Last year the federal shield law sailed through the House, 398-21, but stalled in the Senate at the end of the session in the face of opposition from the Bush Administration and its Justice Department. The shield law has bipartisan backing, with Senator Arlen Specter (R-Pa.), the ranking member of the Senate Judiciary Committee, having introduced S448, a similar measure.

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April 1, 2009

Rights of Celebrities Can Collide With First Amendment

What do Dustin Hoffman, Joe Montana and Vanna White have in common?

All have been plaintiffs in high-profile cases testing whether a person's right to profit from celebrity overcomes a First Amendment right to talk about them or do a parody about them.

Joe Montana, the former San Francisco 49er quarterback, was thrown for a loss in a 1990s suit against a San Jose newspaper which reproduced, in poster form, actual newspaper pages containing his picture. Dustin Hoffman, too, lost a lawsuit which parodied the famous photo of him from the movie "Tootside," in which he appeared in drag. But Vanna White had better luck when she sued Samsung Electronics for running an ad using a robot which resembled her as the "Wheel of Fortune" spokesperson.

These cases show that when you use a famous person's likeness, you may get sued and the result of any lawsuit is not entirely predictable. A use which drives home a point, makes editorial comment on a celebrity, is predominantly a parody, or is newsworthy will generally be protected by the First Amendment and/or state law. A purely commercial use, on the other hand, is likely to expose the user to liability.

Bottom line here: you can generally comment on or criticize celebrities, but it's risky to use their name or likeness without permission for purely commercial purposes.

January 9, 2009

Anonymity Collides With Full Campaign Disclosure

Two interests which both find some support in the First Amendment -- the right to be anonymous and the public's right to know -- collide with each other in a new federal court lawsuit.

The lawsuit was filed by supporters of Proposition 8, the California measure passed by voters in November which effectively outlaws gay marriage (and which is now being challenged in the California Supreme Court). The organizations behind Proposition 8 are challenging campaign finance laws which require disclosure of contributors and the amount of their contributions. They contend that their coerced identification ("outing") infringes their First Amendment rights.

It is a difficult issue. On one hand, the U. S. Supreme Court has upheld the right to anonymous speech and in one case held that the NAACP did not have to disclose its membership list. But on the other hand, the entire system of campaign finance reform depends on the public's ability to know who contributes to candidates and initiative measures. In an era when large corporations can spend massive amounts to defeat grassroots initiative measures, "anonymity" could result in defeating the public's right to know who's behind deceptive advertising campaigns.

Putting aside gay marriage, which isn't the primary issue in this latest case, both sides have good arguments. But I wouldn't bet on the plaintiffs being able to toss campaign finance laws out the window in this one.

January 8, 2009

How to Defame Yourself and Influence People

I've often said that one of the best ways to bring attention to something is to try and censor it.

A San Francisco defamation suit reported today is a good example of this. A local chiropractor, it seems, was unhappy about a negative review of him posted on the website Yelp. He sued the poster, who had complained about the chiropractor's bill.

I don't know how many people read the negative review in the first place, but after the daily newspaper did a front-page article about the lawsuit -- fairly and accurately reporting that the chiropractor had filed the lawsuit, and quoting lawyers on both sides -- a lot more people know about the review. In other words, it might have been better for the chiropractor if he had just ignored the Yelp review. In fact, someone quoted in the article today says people reacted more negatively to the chiropractor filing a lawsuit than they would have to what the Yelp review said in the first place.

The morals of the story are (1) the best remedy for speech is counter-speech, and (2) in the words of the old comic strip, if someone says something about you you don't like, Grin and Bear It.

December 22, 2008

The First Amendment and your vanishing portfolio

What do the First Amendment and your vanishing stock portfolio have in common?

The answer is the need for openness, transparency and watchdogs on powerful institutions. The people who created the First Amendment more than two centuries ago had never heard of hedge funds, but they knew that too much power and wealth concentrated in too few hands would create a huge problem. Sadly, that lesson got lost in the financial markets as greedy hedge funds and investment banks piled up money in opaque investments and a complicit administration ignored the warning signs of financial disaster created by things like the subprime mortgage crisis. Because little information about many investments such as hedge funds is publicly available, neither the press nor public were able to ferret out information and help the government do its job of keeping businesses honest.

Now, a watchdog press is pointing out that there were plenty of warning signs, but the problem was hidden too long by powerful financial institutions and an administration which got enough support from those financiers to make it all too willing to look the other way. We're finding out now -- after stock indexes have dropped 40 percent -- what happened to us. As President-elect Barack Obama said today, agencies like the Securities and Exchange Commission were "asleep at the switch" while people like Bernard Madoff apparently made off with billions of dollars.

What all this means is that transparency, a watchdog press and blogosphere, and an informed citizenry are necessary to protect our rights -- and our pocketbooks -- from those who would take them away.

August 19, 2008

Anonymous Speech: Right or Wrong?

One of the hallmarks of the Internet age has been the increasing prevalence of anonymous speech.

No one can question that there is a First Amendment right to anonymous speech. The U.S. Supreme Court affirmed that point in the case of McIntyre v. Ohio. Anonymous speech serves many important purposes: people who are aware of government or corporate wrongdoing can alert the public to wrongdoing anonymously in situations where they can’t use their real name.

Neither the government nor the courts should be in the business of regulating speech, and the marketplace of ideas is big enough to include anonymous speech under certain circumstances. And the Internet is certainly a forum for uninhibited and impassioned speech. But not everything that legally can be said should be said, and in most cases a writer’s credibility is higher when they’re willing to put their name behind what they say. So anonymous speech is alive and well – but anonymous or not, it doesn’t hurt to think before posting.

But a small number of online commentators post racist, homophobic, sexist and mean-spirited comments and hide behind the cloak of anonymity given to them as online commentators, as one editor has said. The editor wrote: “We’re trying to balance people’s right to free speech with the responsibility not to be slanderous, libelous, sexist, racist or just plain mean.”

July 31, 2008

First Amendment and Copyright Fair Use Give (Michael) Savage Treatment to Lawsuit

Does the First Amendment protect someone’s use of another’s copyright or trademark to make fun of them?

That question has been at the forefront of several cases involving so-called “parody” of intellectual property. Many cases have found parody of copyrighted works or trademarks protected under the “fair use” doctrine or the First Amendment or both. One of the best-known examples was a parody of the song “Pretty Woman” which the U.S. Supreme Court held was protected. Another case held that a 29-second song “When Sonny Sniffs Glue” which parodied the original “When Sunny Gets Blue” was a fair use.

A U. S. District Judge in San Francisco, Susan Illston, recently applied “fair use” principles in a lawsuit brought by radio talk show host Michael Savage. Savage went on a tirade (“Take your religion and shove it”) about Muslims and the Council on American-Islamic Relations. The Council posted his virulent remarks on its website, and Savage sued it for copyright infringement. Judge Illston gave the lawsuit savage treatment, dismissing it based upon the “fair use” doctrine and the “Oh Pretty Woman” case. See Savage v. Council on American Relations et al. She noted that the Copyright Act “expressly permits fair use for the purposes of criticism and commentary.” The same First Amendment which allows Michael Savage to rant about Muslims enables them to criticize him.

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July 31, 2008

The First Amendment and Judicial Independence: an Uneasy Coexistence

The First Amendment and judicial independence – both prized pieces of American democracy – have an uneasy coexistence these days.

Many states elect their trial judges and the justices of their highest courts, and in some states, like West Virginia, big-money corporate interests have waged expensive campaigns to elect or defeat Supreme Court justices. John Grisham’s “The Appeal” offers a gripping tale about a fictional – but plausible – attempt to “buy” a seat on the Mississippi Supreme Court and swing the outcome of a pending case. In California this year, opponents of the California Supreme Court’s gay marriage ruling are likely to accuse the court of “judicial activism” in a multi-million dollar attempt to reverse its ruling.

The First Amendment protects these attacks on the courts, and it protects judges’ attempts to defend themselves. That much is clear from a U.S. Supreme Court case called Republican Party of Minnesota v. White. But there’s something unseemly, and deeply disturbing, about politicizing the courts. Judges and appellate court justices are supposed to be like umpires, calling balls and strikes, not playing for one team or the other. If they are dragged into political fights and have to raise and spend millions of dollars from the very people who have cases before them to defend themselves, the quality of justice suffers, the impartiality of the courts is imperiled, and public confidence in the courts takes a hit.

July 31, 2008

Media's Coverage of Election Won't Make Everyone Happy

The media will inevitably come under intense criticism this year for its coverage of the Presidential election. Supporters of John McCain have criticized the media for favoring Barack Obama. Hillary Clinton’s backers considered some in the media sexist, and Obama backers have complained of what they consider racist comments by members of the media.

‘Twas ever thus. The media – like politicians – can make some of the people happy all of the time, and all of the people happy some of the time, but can’t – and shouldn’t try to – make all of the people happy all of the time.

This election’s “media” coverage is complicated by the full emergence of the Internet and the blogershere and the cacophonous coverage produced by such a multitude of voices. Ironically, though, the Internet’s allowance of a greater number of voices may bring us back closer to where we were at the birth of our nation, when a panoply of pamphleteers peddled their wares and when one journalist – who was said to have been paid by Thomas Jefferson – called George Washington “a traitor, a robber and a perjuror,” and another accused President John Adams of “selfish avarice.”

Next time your candidate gets pilloried, or his or her words are taken out of context, think of those unfair and scurrilous attacks on George Washington more than 200 years ago – and think of how lucky we are to have the First Amendment’s protection for free speech and a free press – whatever “the press” is these days – instead of the enforced censorship that reigns in places like China.

July 14, 2008

A First Amendment shield for bloggers?

Congress is debating whether there should be a federal “shield law” for reporters, modeled after state reporter’s privilege laws which exist in 35 states and which help protect vital First Amendment rights.. Of the 15 states which don’t have statutory protections for reporters, all but one have some form of protection for reporters against compelled disclosure of their sources.

A key issue is whether such reporter’s privilege laws should apply only to reporters from traditional media such as newspapers and television stations, or whether online journalists and bloggers should have protection. One federal case warned against extending a federal common law privilege to “bloggers in pajamas.”

A California Court of Appeal, in the well-reasoned decision of O'Grady v. Superior Court,, held that on-line journalists are “reporters, editors, or publishers entitled to the protections of the constitutional privilege. If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial.”

This reasoning is persuasive. If sources need a promise of confidentiality to blow the whistle on corporate and government wrongdoing – and they do – and if journalists need to offer confidentiality on occasion, it shouldn’t matter whether the journalist’s story is delivered in a truck or over the Internet. Either way, the reporter’s privilege is protecting important speech and enabling vital stories to be told. Congress should pass a shield law, and it should extend to on-line journalists.

June 26, 2007

First Amendment: Tie goes to the speaker

It’s been said that when it comes to the First Amendment, the tie goes to the speaker, not the censor.

The U. S. Supreme Court’s free speech decisions have generally adhered to that principle, but not always. The Court threw out campaign finance regulation partly because a speaker should have the autonomy to choose the content of his own message, and the regulations went too far in prohibiting campaign ads. We can expect to see plenty of free – and no doubt misleading – speech as the November 2008 elections approach.

The same day the Court struck down bars on campaign ads, however, it upheld the decision of an Alaska school censoring a student’s banner in the famous “Bong Hits for Jesus” case. The court showed more deference to school officials than it did to a high school student’s free speech rights. Dissenting Justice John Paul Stevens stated, “In my judgment, the First Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. This nonsense banner does neither, and the Court does serious violence to the First Amendment in upholding – indeed, lauding – a school’s decision to punish Frederick for expressing a view with which it disagreed.”

Justice Stevens was right, in my view. The court should have displayed the same “tie goes to the speaker, not the censor” attitude in that case that it displayed when it came to campaign finance regulations.