First Amendment Lawyer Blog

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.

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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.”

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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.

Continue reading "First Amendment and Copyright Fair Use Give (Michael) Savage Treatment to Lawsuit" »

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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.

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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.

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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, http://www.courtinfo.ca.gov/opinions/archive/H028579M.PDF, 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.

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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.

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