Thursday, January 21, 2010

Supreme Court decision a win for free speech

In a closely watched case involving an opinionated documentary film that was highly critical of Hillary Clinton and her then-current run for the Democratic presidential nomination, the United States Supreme Court rolled back limits on political speech and delivered a resounding victory to First Amendment advocates. The court rejected arguments in favor of a narrow decision that would have preserved many limits on speech, and instead broadly expanded the ability of non-profit organizations, corporations and labor unions to expend resources on political advocacy.

Hillary: The Movie isn't a subtle exercise in political speech. Produced by the conservative group, Citizens United, the film was a torpedo aimed at Hillary Clinton's presidential ambitions. The torpedo never reached its goal, having been scuttled by the Federal Election Commission, which called it a violation of the censorious Bipartisan Campaign Reform Act of 2002, a piece of legislation that goes so far as to regulate "electioneering communications" by corporations, unions and non-profits in the weeks before federal elections. Specifically, broadcasting a film like the one at issue here is banned for 30 days before primaries and 60 days before general elections. Newspapers are excluded, as are new media, like YouTube, that were unknown at the time the law was passed.

A lower court upheld the law -- and the muzzling of Citizens United -- and the case made its way to the Supreme Court. Writing for the majority in the case of Citizens United v Federal Elections Commission (PDF), Justice Anthony Kennedy summarized the extreme nature of the law -- and the reason many observers expected at least an incremental win for free speech rights:
The law before us is an outright ban, backed by criminal sanctions. Section 441b makes it a felony for all corpora-tions -- including nonprofit advocacy corporations -- either to expressly advocate the election or defeat of candidates or to broadcast electioneering communications within 30days of a primary election and 60 days of a general elec-tion. Thus, the following acts would all be felonies under §441b: The Sierra Club runs an ad, within the crucial phase of 60 days before the general election, that exhorts the public to disapprove of a Congressman who favors logging in national forests; the National Rifle Associationpublishes a book urging the public to vote for the challenger because the incumbent U. S. Senator supports a handgun ban; and the American Civil Liberties Unioncreates a Web site telling the public to vote for a Presidential candidate in light of that candidate’s defense of free speech. These prohibitions are classic examples of censorship.
Anticipating that the court would role back at leat some of the law's restrictions, some groups had urged interpretations that would keep at least some censorship in place. These friend-of-the-court briefs called for fairly complex legal needle-threading that would have applied the law in some cases, but not others. Justice Kennedy bought none of it.
The First Amendment does not permit laws that force speakers to retain a campaign finance attorney, conduct demographic marketing re-search, or seek declaratory rulings before discussing themost salient political issues of our day. Prolix laws chill speech for the same reason that vague laws chill speech: People "of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application."
For the same reason, Kennedy rejected the argument that the existence of highly regulated political action committees provides sufficient outlets for free speech.

The majority decision also rejected the recent trend toward recognizing media companies as a protected class that enjoys special free speech rights denied others.

Ultimately, wrote Kennedy, "If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

The lower court decision against Citizens United's right to engage in independent expenditures in order to publicize its members' opinion of a presidential candidate was, therefore, reversed, although disclosure and disclaimer requirements remain in place. The ultimate decision, overturning pro-censorship precedent and joined in whole or part by Chief Justice Roberts, and Justices Alito, Scalia and Thomas (the last of whom would also would have knocked down diclosure, disclaimer and reporting requirements), was a broader victory for free speech than most observers had expected.


Thursday, November 19, 2009

Sheriff Joe faces off with judge over deputy's courtroom document theft

There aren't too many ways to evoke sympathy for a law-enforcement officer who was recorded stealing documents from a defense attorney, but in Arizona, Maricopa County Superior Court Judge Gary Donahoe may have stumbled on the trick. In the case of Detention Officer Adam Stoddard, who was caught by a security camera swiping documents in a courtroom from defense attorney Joanne Cuccia while her back was turned, Judge Donahoe found the offending officer guilty of contempt. But rather than slap Stoddard with an adult penalty for an adult crime, he channeled his schoolyard days and ordered the officer to make a public apology -- and probably violated his rights in the process.

The problem is, while it may lie within the power of kindergarten teachers to order their charges to voice insincere sentiments to one another as a means of settling disputes, that's not a widely accepted use of, admittedly far-reaching, judicial power. Judges can fine people and toss them in the can, but ordering them to state predetermined opinions would seem to run afoul of First Amendment protections.

In Stoddard's case, Judge Donahoe had already dismissed as unacceptable the officer's claim that the reason he grabbed Cuccia's documents and photocopied them was because he saw a few suspicious words on the page. The documents clearly were covered by attorney-client privilege, he ruled. Yesterday, he found Stoddard guilty of contempt for his sticky-fingered grab at confidential information. Penalties for contempt usually consist of fines or imprisonment.

But ... as we've come to know, judges often hold police officers to be a somewhat higher breed of human than the rest of us. That's the best guess as to why Judge Donahoe decided to get creative in this case. Rather than deplete Stoddard's bank account or subject the officer to the shoddy prisons run by his own boss, the judge ordered a public, but meaningless, display of faux regret: a press conference to be held by November 30, at which a verbal and written apology is to be expressed by Officer Stoddard. If Ms. Cuccia is satisfied, the matter is then laid to rest.

After which, presumably, milk and cookies are to be served to all.

But the judge made a big error: Adult transgressor aren't toddlers; you can't make them voice opinions they don't hold, even when trying to do so seems to constitute a much lighter penalty than the alternatives. And Stoddard clearly isn't sorry, and neither is his grandstanding boss, Sheriff Joe Arpaio, who has already announced that the officer won't comply with the order, saying in a press release, "My officer was doing his job, and I will not stand by and allow him to be thrown to the wolves by the courts because they feel pressure from the media on this situation." He added, "I decide who holds press conferences and when they are held regarding this Sheriff's Office."

Having stepped off on the wrong foot, Judge Donahoe is now back to what he should have done to begin with: handing Officer Adam Stoddard an adult penalty for violating attorney-client privilege and interfering with the rights of criminal defendants in the courtroom.

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Tuesday, November 10, 2009

Feds want to know: Just who are your readers?

The Electronic Frontier Foundation reports that, on January 30 of this year, the Justice Department not only demanded to know who was reading the IndyMedia alternative news site, but also forbade the site to publicize the demand.
[T]he government was asking for the IP address of every one of's thousands of visitors on that date — the IP address of every person who read any news story on the entire site. Not only did this request threaten every visitor's First Amendment right to read the news anonymously (particularly considering that the government could easily obtain the name and address associated with each IP address via subpoenas to the ISPs that control those IP blocks), it plainly violated the SCA's restrictions on what types of data the government could obtain using a subpoena. The subpoena was also patently overbroad, a clear fishing expedition: there's no way that the identity of every Indymedia reader of every Indymedia story was relevant to the crime being investigated by the grand jury in Indiana, whatever that crime may be. ...

... without any legal authority to back up their purported gag demand, the government ordered Ms. Clair not to reveal the existence of the subpoena, a subpoena that as already described was patently overbroad and invalid under the SCA.
Forewarned by an earlier Justice Department inquiry about where to send a subpoena, the EFF responded and the subpoena was subsequently withdrawn. The gag order  was dropped by default after the feds failed to respond to a legal challenge..

Indymedia wasn't prepared to obey the order anyway. Following EFF's advice to online service providers, the publication deliberately refuses to keep the sort of information the government wanted.

But not all online publications are so careful.

In the end, nobody's privacy was violated, but only because IndyMedia was willing and able to fight, and had the backing of a civil liberties organization. Faced with stubborn opposition and sophisticated legal resources, the government backed down.

This time.

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Tuesday, October 6, 2009

Stop me, FTC, before I shill again

The most scathing book review I ever wrote was of a copy of a provocative historical work sent to me by the publisher's publicist -- that is, a review copy of the sort that has been provided to writers since the printing press was young. I tore into that book for its illogic and misuse of sources. I still have that book, kept around as a door stop and to boost my son at the dinner table. I'll bet that publicist would be surprised to know that, these days, the Federal Trade Commission might subject me to an $11,000 fine -- not for savaging her pet historian, but for failing to reveal that she'd given "payment" for my review with a free book.

In search of tasks to justify its unfortunate existence, the FTC claims the authority to regulate "endorsements" of products and services. It has just issued revised guidelines (PDF) regulating who must disclose what when they say kind words about anything for which they might be considered to have received compensation, no matter how small. Affected people include celebrities, experts, "regular folks" giving testimony in advertisements ... and bloggers.

The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement.

The whole set of guidelines is problematic for a host of reasons. Rather than dig broadly into the mess, I'll focus on the application of the endorsement rules to bloggers/new media, since that's a topic near and dear to my heart.

And bloggers are the specific target -- ink-stained scribblers and traditional broadcasters need not fret, for specious reasons that all seem to boil down to the number of First Amendment-savvy lawyers The New York Times and CBS have on staff.

The FTC even provides its own scenarios as to when endorsement rules would apply, and the one they offer for bloggers is illuminating.

A college student who has earned a reputation as a video game expert maintains a personal weblog or “blog” where he posts entries about his gaming experiences. Readers of his blog frequently seek his opinions about video game hardware and software. As it has done in the past, the manufacturer of a newly released video game system sends the student a free copy of the system and asks him to write about it on his blog. He tests the new gaming system and writes a favorable review. Because his review is disseminated via a form of consumer-generated media in which his relationship to the advertiser is not inherently obvious, readers are unlikely to know that he has received the video game system free of charge in exchange for his review of the product, and given the value of the video game system, this fact likely would materially affect the credibility they attach to his endorsement. Accordingly, the blogger should clearly and conspicuously disclose that he received the gaming system free of charge. The manufacturer should advise him at the time it provides the gaming system that this connection should be disclosed, and it should have procedures in place to try to monitor his postings for compliance.

A "college student" who just happens to write online about his hobby is subject to federal regulation? Really?

The rules suggest that the company soliciting the review "should advise" the college student, but there's nothing obvious in the rules to insulate the poor, dorm-living nerd from liability should he fail to mention that he got to keep the freebie.

Book reviewers are affected too, prompting MediaBistro to ask, "if it turns out that (some) publishers really do expect endorsements, bloggers might want to ask themselves: If this book is intended as compensation, is it enough compensation?" (Occasional reviewers who find themselves buried under a blizzard of review copies can answer that question easily.)

And in this increasingly DIY era, it's a mystery as to whether legally unsophisticated garage-based musicians or after-school-blogging music fans will have to fork over any fines the FTC may levy for kind words about a new single or album.

But does there even have to be a freebie to constitute "material connections" between reviewers and companies? After all, advertising involves money, and even small blogs can run ads either directly or through services like Google Ads.

And here's another complication: Who is subject to these rules? Oh sure, the FTC says its rules apply to bloggers and that "theCommission does not consider reviews published in traditional media (i.e., where a newspaper, magazine, or television or radio station with independent editorial responsibility assigns an employee to review various products or services as part of his or her official duties, and then publishes those reviews) to be sponsored advertising messages," but just what is a blogger? The FTC adds that "Internet news website with independent editorial responsibility" might also get a pass, but the dividing line is vague, and much of the evolving media is more dynamic and seat-of-the-pants than the FTC wants to pretend. Are the writers at Gawker bloggers? MediaBistro? How about at The Examiner, which employs editors but has much less editorial infrastructure than does, say, The New York Times?

Clearly, though. anybody writing for fun, on their own time, is subject to the new regulations. As media becomes democratized and grassroots in a way never seen before, we've finally reached the point where intrusive media regulations really are reaching into our bedrooms and threatening amateur enthusiasts. These are the people least likely to be willing or able navigate their way through federal regulations regarding what they can say and how it must be said.

The result is either going to be mass defiance of the rules, rendering them irrelevant, or else stepped up and necessarily arbitrary enforcement, resulting in a chilling effect on grassroots media.

Either way, the best way to address the whole issue is to dump the rules -- and the presumptuous, intrusive FTC along with them. Let people figure out for themselves who is and isn't credible, and keep the regulators at a healthy distance from our conversations with one another, whether online or off-line.

Oh, and by the way, I plan to keep reviewing stuff including books, good or bad, and I'll likely keep some of it around -- for reference, or for ballast.

Consider that my disclosure.


Saturday, October 3, 2009

FBI says: Shut your mouth

A federal appeals court may have slapped the Federal Bureau of Investigation last year for its misuse of gag orders to prevent discussion of government investigations conducted under the authority of National Security Letters, but that hasn't slowed the feds very much. According to the American Civil Liberties Union, despite a court's finding that such gag orders are constitutionally suspect and should be subject to judicial review, the FBI continues to muzzle recipients of the controversial letters, preventing them from participating in public debate over the Patriot Act and the security state.

National Security Letters are powerful tools that allow federal agents to obtain information about investigation targets from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies on their own say-so, without judicial review. Some 47,000 such letters were issued in 2005 alone, according to the Department of Justice's Office of the Inspector General (PDF). The letters don't receive much public discussion, probably because many of the recipients are also issued gag orders, forbidding them to discuss the experience.

Those gag orders were found to be constitutionally suspect exercises of "prior restraint" in a decision issued last year by the Second District U.S. Court of Appeals. In its decision, the court said:

The nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny. On the other hand, the Government’s analogies to nondisclosure prohibitions in other contexts do not persuade us to use a significantly diminished standard of review. In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity.

While the court stopped short of barring the gag orders, it did say each order should be subject to judicial review to allow the target a chance to object.

But, says the ACLU, the FBI is "continuing to unconstitutionally enforce its five-year-old gag order on a John Doe NSL recipient and his ACLU attorneys."

"The FBI's misuse of its gag power continues to prevent NSL recipients like Doe – who have the best first-hand knowledge of the FBI's use and abuse of NSL power – from participating in the Patriot Act debate in Congress," said Melissa Goodman, staff attorney with the ACLU National Security Project.

Unable to speak out about their experiences as the subjects of National Security Letters, recipients of such letters, including businesspeople and librarians, can only stand on the sidelines while the discussion is conducted in theoretical terms.

Worse, the ACLU maintains that the gag order on its John Doe client is being used to suppress the revelation that an NSL was used in a search for records it was not legally entitled to obtain.

The Senate Judiciary Committee is currently considering legislation (PDF) that could limit the use of National Security Letters.

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Friday, September 4, 2009

No free speech in Scottsdale (or Tucson either, it seems)

According to a recent legal opinion issued in Arizona, if you want to do nothing more than say nice things in public about your favorite elected officials, you have to register as a political action committee and submit to a spiderweb of red tape that's confusing even to legal experts. That interesting opinion was issued in a case involving endorsements made by the Scottsdale Area Chamber of Commerce, and it's further evidence that the always questionable effort to guarantee "clean elections" by regulating speech is nothing more than censorship intended to muzzle non-politicians.

The issue came up during last year's city council elections in the prosperous community of Beverly Hills in the desert ... err ... Scottsdale, Arizona. In the weeks leading up to the vote, the local chamber of commerce sent out mailings and bought time for television advertisements praising four candidates who "support Scottsdale's quality of life." The ads never said "vote for" these candidates or "vote against" their opponents because, under the law, that clearly qualifies as "express advocacy." Such advocacy is a sort of speech that, First Amendment not withstanding, is so allegedly dangerous to the public that the government has determined it can be exercised only after filing the proper paperwork, and subject to close scrutiny.

Really! According to Arizona law, which is based on U.S. Supreme Court opinion:

A. For purposes of this chapter, "expressly advocates" means:

1. Conveying a communication containing a phrase such as "vote for," "elect," "re-elect," "support," "endorse," "cast your ballot for," "(name of candidate) in (year)," "(name of candidate) for (office)," "vote against," "defeat," "reject," or a campaign slogan or words that in context can have no reasonable meaning other than to advocate the election or defeat of one or more clearly identified candidates ...

If you want to engage in express advocacy, you have to register as a political action committee and ... well ... the paperwork equivalent of a colonoscopy is required. You'll find the easy-to-read details here (see Chapter 6 in particular). But if you avoid express advocacy, you can supposedly still engage in something resembling free speech.

That's what the chamber of commerce relied upon when it went forward with its efforts, and it's the section of law the chamber's attorneys cited when they responded to two inevitable complaints from candidates not lucky enough to be given attaboys in the flyers and the ads.

But Scottsdale officials referred the complaints to a supposedly disinterested party, in the form of the Tucson city attorney. And Tucson obliged its sister city with an opinion (PDF) condemning the chamber of commerce for engaging in unregulated political speech, and calling for thousands of dollars in fines. To reach this conclusion, Tucson's Principal Assistant City Attorney, Dennis P. McLaughlin, emphasized the next paragraph of the law:

2. Making a general public communication, such as in a broadcast medium, newspaper, magazine, billboard, or direct mailer referring to one or more clearly identified candidates and targeted to the electorate of that candidate(s):

(A) That in context can have no reasonable meaning other than to advocate the election or defeat of the candidate(s), as evidenced by factors such as the presentation of the candidate(s) in a favorable or unfavorable light, the targeting, placement, or timing of the communication, or the inclusion of statements of the candidate(s) or opponents, or

(B) In the sixteen-week period immediately preceding a general election.

But, as the chamber points out in its response to the initial complaints, that wider definition only applies if speech is coordinated with the candidates in question. "The Chamber did not coordinate its educational effort with any candidate or campaign. No such coordination has been alleged." Says the next paragraph of the law:

B. A communication within the scope of subsection A, paragraph 2 shall not be considered as one that "expressly advocates" merely because it presents information about the voting record or position on a campaign issue of three or more candidates, so long as it is not made in coordination with a candidate, political party, agent of the candidate or party, or a person who is coordinating with a candidate or candidate's agent.

The Tucson opinion concedes that the expenditures were independent -- not coordinated with the candidates -- but asserts that this is a violation in itself, since independent expenditures are regulated by another section of the law. Says McLaughlin:

Because SACOC's expenditures were independent, SACOC also violated A.R.S. 16- 912(B) and (D) by failing to put the statutorily required information regarding its three largest political committee contributors on its direct mailer and television advertisement.

Is your head spinning yet? Mine is, and I read laws and legal opinions all the time. We don't really need to delve into whose opinion of the law is better grounded here, all we need to do is recognize that we're well into questions involving how many law school grads can dance on the head of a pin. (The answer is "none" -- law school grads can't dance. But they do make a lot of money debating the interpretation of supposedly clear language!) It doesn't matter who's right, because it's clear that no matter the supposed risks of respecting free speech rights, regulating political speech is enormously dangerous, risking legal sanction and fines that can't help but discourage political participation.

The harm here isn't so much that the Scottsdale Area Chamber of Commerce has had its rights threatened by this opinion. Even if McLaughlin's legal excrescence is allowed to stand, the chamber can afford to pay its fines and jump through legal hoops during the next election. It will be an annoyance, but chambers of commerce are generally sophisticated and well-heeled and can afford to pay the admission fees established by campaign finance laws.

But what about you? If the Scottsdale Chamber of Commerce is ensnared in an expensive battle of the lawyers, what happens to your ad hoc group of neighbors when you put up posters saying that your local representative is a jerk (or, less likely, a credit to the community)? Will you pony up the cash for an election attorney who can get you properly registered and regulated? Or will you keep your mouth shut?

Or will you take the best option under current law and put your information out anonymously, trusting that the state can't muzzle people it can't find?

Restrictive campaign finance laws aren't peculiar to Arizona -- they apply across the country under the laws of the many states, and in elections regulated by the federal government. You might want to consider pushing for their repeal, in hopes of restoring some protection for free speech rights.

Just be careful that your efforts don't slip over into "express advocacy."


Thursday, August 20, 2009

Universities schooled about free speech

Late August is here, which means college students across the country are contemplating a return to bars, parties and -- oh yeah -- classes. As they arrive at campus, though, many of them are actually entering an environment where free speech and diversity of opinion are less respected than they are at home. Often disguised as harassment codes, free speech restrictions are alive and well at colleges and universities, and actually still have defenders in both the legal and academic communities.

The Foundation for Individual Rights in Education has spent the last decade at the forefront of the effort to ensure that respect for liberty is among the lessons taught on the nation's campuses. FIRE fights the good fight, but there are still plenty of schools where administrators think stifling debate -- or even suppressing opinions -- is more important than encouraging the free exchange of ideas.

Just weeks ago, the University of Louisville was ordered to reinstate a nursing student, Nina Yoder, who had written provocative posts on her Myspace page about her political and cultural views and the alleged irresponsibility of (unidentified) patients she had tended. Yoder prevailed in the free speech battle, but only after taking her case to federal court.

Yale University Press continues to raise worries about its commitment to free speech by agreeing to publish a book about the Mohammed cartoon controversy only after the author reluctantly agreed to omit the actual cartoons.

And last month, a federal judge struck down the Los Angeles Community College District's sexual harassment code as an affront to constitutionally protected free speech rights, which public universties are legally bound to respect.

FIRE maintains a rogues gallery of "worst of the worst" public and private universities that are especially egregious in maintaining policies that suppress speech and the free exchange of ideas. Private universities, while not bound by the First Amendment, can sometimes be challenged on contractual grounds if they promise but fail to protect an open environment for expression. They can also just be publicly shamed for their authoritarian policies. The Red Alert List currently features:

Michigan State University -- "Michigan State University (MSU) has been named to FIRE's Red Alert list after finding student government leader Kara Spencer guilty of 'spamming' and misuse of university resources for criticizing the administration's plan to change the school calendar."

Colorado College -- Colorado College landed on the list because the school "refused to remove the guilty finding from the records of two students who posted a parody flyer on campus and reaffirm its published commitments to free speech."

Brandeis University -- Brandeis earned its place on the list after it "declared Professor Hindley, a nearly 50-year veteran of teaching, guilty of racial harassment and placed a monitor in his classes after he criticized the use of the word 'wetbacks' in his Latin American Politics course."

Tufts University -- "Tufts University earned its Red Alert status by finding in May that The Primary Source (TPS), a conservative student newspaper, violated the school’s harassment policy by publishing two satirical articles during the past academic year."

Johns Hopkins University -- "Johns Hopkins University earned its Red Alert designation by suspending eighteen-year-old junior Justin Park for posting an “offensive” Halloween party invitation on the popular social networking site"

In addition to the institutions listed above, Boston College was recently given a "red light" rating for failing to live up to its promises of an open environment for expression. And Northern Illinois University currently features as FIRE's "speech code of the month" over broad rules banning "Intentional and wrongful use of words, gestures and actions to annoy, alarm, abuse, embarrass, coerce, intimidate or threaten another person."

While college speech restrictions seem to fail in court time and again, and draw nearly universal condemnation, they do have their defenders. In April, the Harvard Law Review published an article criticizing the pro-free-speech decision in DeJohn v. Temple University (PDF). The piece complained that the decision "deprives institutions of meaningful guidance as to how to combat harassment while respecting freedom of speech."

That's how speech restrictions are usually defended; it's a balancing act between free speech rights and whatever values happen to occupy the would-be censors' attention. Somehow, speech always seems to get short shrift when the censors start weighing their priorities.

Fortunately, though, they don't usually get their way in court or when it comes to public opinion. As the First Amendment Center points out:

The speech codes that have been challenged in court have not fared well. Courts have struck these policies down as being either overbroad or vague. A statute is overbroad if it prohibits a substantial amount of protected speech in its attempts to restrict unprotected speech. A statute or regulation is vague if it does not adequately inform a person what expressive conduct is prohibited and what expressive conduct is allowed, leaving a person to guess at its application.

But the speech codes are still out there, tripping up students and faculty alike until somebody expends the time and energy to knock them down.

So if you're a college student returning to school in a couple of weeks, get ready for some good times. But keep FIRE's number on speed dial.

Below, FIRE President Greg Lukianoff discusses campus speech codes..


Wednesday, August 19, 2009

Newsflash: Authorities don't arrest a protester

CNN's Rick Sanchez may have got his knickers in a bunch over armed (but peaceful) protesters outside a venue where President Barack Obama was giving a speech to veterans, but Secret Service and local law enforcement acted with appropriate restraint, leaving the demonstrators alone to make their point. Their respect for the protesters' rights to free speech and to bear arms deserve notice -- as does the hysterical wailing from some quarters about armed dissidents being allowed too near the king president.

Over at Crooks and Liars, Heather complains, "I think it is completely irresponsible and if the gun laws in Arizona allow this, there's something wrong with their laws."

And at Democratic Underground, Joanne98 moans, "If police--and the Secret Service--allow guns at political events, then members of the public have to fear for their safety and their very lives."

And, as mentioned above, CNN's Rick Sanchez reported the protest as if riots had broken out in the streets and the Secret Service had fled the scene.

Instead, though, federal and loacal law-enforcement officials did what they do all too rarely: they respected the rights of peaceful individuals to state their case, even if that case included legally carrying arms. After all, Arizona is an open carry state -- you need a permit to carry a firearm concealed, but not to have it in plain sight.

Officials are not always this restrained. Last week, a man was arrested in Hagerstown, Maryland, and turned over to the Secret Service after brandishing a sign saying "Death to Obama." The president was nowhere near the scene. In 2004, Secret Service agents questioned a high school student about his anti-war drawings -- one of which depicted the head of then-President George W. Bush on a stick. Under the former president, it became increasingly common for law-enforcement to herd political protesters into "free speech zones," and to arrest anybody who strayed from behind the fence and bothered elected officials with actual dissent.

From a relatively minor office that was originally intended to defer to Congress, the presidency has become a quasi-monarchical position expected to evoke instant reverence among the masses. Voicing disagreement within earshot of the president is now treated almost as an act of blasphemy. As a result, writes Gene Healy, author of the Cult of the Presidency:

Whatever social power celebrities have over those that surround them—and it’s considerable—the environment in which the president exists is even more unnatural. Rock stars and movie idols can order their functionaries around and buy their own planes, but they can’t send the Seventh Fleet through the Taiwan Strait or bomb Syria. And the stakes are much smaller where Russell Crowe, Lindsay Lohan, or Tom Cruise is concerned. If fame and wealth go to a celebrity’s head, he ends up jumping up and down on Oprah’s couch, no harm done to the wider world. If the president loses his grip on things, there’s rather more at stake…

So it's encouraging that officials are not only backing off the authoritarian "free speech zones" that prevailed so recently, but are even recognizing protesters' right to go armed.

And if a few officials and their lackeys feel unease at the sight of guns in the hands of the great unwashed, well, as the tag line for the movie V for Vendetta put it, "People shouldn't be afraid of their government. Governments should be afraid of their people."


Thursday, July 30, 2009

Mouthing off to a cop really is constitutionally protected

Harvey Silverglate is a First Amendment scholar and free speech advocate who even conservatives can love; he co-founded the Foundation for Individual Rights in Education which, among other duties, defends free-speech against college speech codes, and he frequently criticizes political correctness. He's also a neighbor of Henry Louis Gates, Jr., who thinks Gates's charges of racism in his treatment by Cambridge police are ill-founded. Nevertheless, he considers Gates's arrest a constitutional violation and an abuse of police authority.

I'm happy to say that Silverglate's take is a more sophisticated version of the conclusion I reached last week. Then, I wrote:

Having determined that the man forcing the door was legally authorized to be in the house and to jimmy any stuck lock in the place if he so desired, police were free to leave to escape any unpleasant accusation directed at them by Gates. Even if the man had truly slipped into full-on loud-and-defensive mode, so what? It's his house, and so long as he doesn't get violent, he can speak any words, in any tone, that he pleases.

If you don't like it, leave.

But that's not the inclination of modern police officers, who all too often act as if the worst crime of all is to fail to defer to a badge.

And again:

It doesn't matter how confrontational, loud or tumultous Gates was. He had already demonstrated that he was in his own home. Having determined that no crime had been committed, police were free to leave -- unless their egos got in the way.

Gates's claim that racism was at work can't be proven or disproven unless officers confess to bigotry. But it's likely that Gates was arrested for "contempt of cop" -- an unspoken, unofficial crime that has ensnared thousands of Americans at one time or another, no matter their color.

Sergeant James Crowley's arrest of Gates on a "disorderly conduct" charge based on the professor's use of charges language against the police officer in his home and on the porch was rooted in the "fighting words" exception to First Amendment protection. Unfortunately for police officers, that exception doesn't mean what they often think it means -- in fact, it may mean nothing at all. That could explain why the charge was so quickly dropped after the arrest. In Forbes, Silverglate puts it thusly:

Supporters of Sgt. Crowley's power and right to arrest Professor Gates--assuming the worst version of what Gates spewed at the officer--rely on the "fighting words" doctrine. But there is a problem with such reliance: The Supreme Court's affirming of a conviction for disturbing the peace based upon "fighting words" directed to a police officer has never been replicated since the original 1942 fighting words doctrine was announced in Chaplinsky v. New Hampshire.


[T]o the extent that tossing an expletive at some hothead on the street might conceivably produce a violent reaction, surely such words directed to a trained police officer should not be expected to incite such a response. To be sure, much of police training is specifically directed at producing a peace officer who knows how and when to keep a violent response wrapped under a highly polished discipline. It would be an insult to any law enforcement agent to assume that he or she would respond, with violence, to unpleasant--even offensive--words. Hence, even at its worst, Gates' reaction to the officer's presence and questioning cannot by any stretch be deemed grounds for an arrest. Professor Gates, in other words, was fully protected by the First Amendment. It was the officer's duty to restrain his own response, particularly the exercise of his official powers of arrest.

Indeed, the expansive nature of First Amendment rights, even in a confrontation with official power, was made vivid in the 1971 Supreme Court case, Cohen v. California. Paul Cohen was arrested in the Los Angeles County Courthouse for wearing a jacket emblazoned with the words "Fuck the Draft." He was convicted for "offensive conduct" because, the state court ruled, "offensive conduct" meant "behavior which had a tendency to provoke others to acts of violence." Even though no one actually threatened Cohen, said the state court, an attack was "reasonably foreseeable."

The Supreme Court reversed. The great conservative justice John Marshall Harlan wrote that "Fuck the Draft" was not "obscene" and that its offensiveness did not render it unprotected--even in the corridors of a courthouse!

Silverglate goes on to criticize police officers across the country -- and elsewhere -- for being "overly sensitive to insults from those they confront." And being police officers, they act out their sensitivity not by crying in their beer, but by using their extensive powers to punish people who direct verbal abuse or mere objections their way.

But the laws law-enforcement officers rely on for pressing "disorderly conduct" charges against people who verbally challenge and insult them have shaky foundations. One good First Amendment challenge, lodged, perhaps, by a prominent Harvard professor with an army of constitutional scholars on his side, could totally undermine the ability of the police to haul people away in handcuffs for what they say.

In fact, the legal basis for such a challenge is already well-founded, with plenty of free speech red meat siting in the casebooks. In 1990, Judge Alex Kosinski of the 9th Circuit Court of Appeals wrote in a case that is relevant to that of Gates:

Duran's conduct is not totally irrelevant, however, as it suggests a possible motive for his detention, one upon which law enforcement officers may not legitimately rely. The Durans contend, and the district court held, that Aguilar stopped their car at least partly in retaliation for the insult he received from Duran. If true, this would constitute a serious First Amendment violation. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Hill, 482 U.S. at 461, 107 S.Ct. at 2509. The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Id. at 462-63, 107 S.Ct. at 2510. Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

Duran ultimately won that case (in fact, the court of appeals upheld his earlier victory in the district court). In his own home, Gates would very likely have prevailed on the same grounds. So should we all -- when our free speech rights are fully respected and "contempt of cop" is no longer an unwritten crime.

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Wednesday, July 15, 2009

Michigan court says gag orders and sentences don't necessarily mix

The other day, I wrote of the plight of Bob Newland, a drug-policy reform advocate who, as part of his sentence for pot possession, has been forbidden to publicly advocate marijuana legalization for a year. Now, a Michigan case (PDF) overturning a gag order on a preacher raises further doubt about the propriety of the muzzle placed on the marijuana activist.

Newland was forbidden to speak out on a core matter of public policy -- an area in which his political views irked the judge. By contrast, the Rev. Edward Pinkney was jailed for violating his probation by penning a fiery editorial explicitly criticizing the judge in his case and calling down the wrath of God on the man's head.

That the appeals court backed Pinkney and found that his free speech rights had been violated suggests that Newland's sentence is well out of bounds.

Pinkney had been found guilty of buying votes in a the recall election of a local politician. He was sentenced to probation subject to certain conditions, one of which forbid him to "engage in any assaultive, abusive, defamatory, demeaning, harassing, violent,
threatening, or intimidating behavior, including the use, through any electronic or print media
under [his] care, custody or control, of the mail, e-mail or internet."

Nevertheless, Pinkney wrote an OpEd, published in a monthly newspaper, calling the judge in his case, "racist" and "corrupt" and paraphrasing Deuteronomy to instruct the judge:

[I]f thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed [sic] shall come upon you and your family and over take thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist.

For his troubles, the preacher was sent to the cooler for violating the "no defamation" clause in his probation.

In its opinion, the Michigan Court of Appeals noted:

A probation condition may impinge on a probationer’s First Amendment rights... However, such a condition is subject to careful review... The condition must be narrowly tailored...and be primarily designed or directly related to the rehabilitation of the defendant and to the protection of the public. ... The condition must be “narrowly drawn to protect the public from a situation that might lead to a repetition of the same crime.”

Calling the judge in his case unpleasant names and damning him to Hell posed no threat of causing more vote-buying, or, as the court put it:

The 15th condition of defendant’s probation prohibited defendant from engaging in defamatory and demeaning communications. The condition was a blanket prohibition on such behavior; defendant was prohibited from making defamatory or demeaning communications about any person, including coworkers, neighbors, and congregants. Such a blanket prohibition is not directly related to defendant’s rehabilitation of the election law crimes he committed, which impugned the integrity of the electoral process, or to the public’s protection from a repetition of the crimes.

Since the muzzling probation condition went beyond proper limits and violated Pinkney's free speech rights, the state had no right to jail Pinkney for his words.

The Michigan decision raises interesting questions about Newland's sentence because the words he's forbidden to utter also have no relation to his crime. Yes, the activist was sentenced for illegal possession of marijuana, but under the gag order he's forbidden not just to solicit further legal violations, but also to advocate changing the law through means established to accomplish just such an end so that his actions would have been perfectly legal.

Such a gag order isn't "narrowly drawn to protect the public from a situation that might lead to a repetition of the same crime” since the opinions he's barred from voicing are aimed at eliminating the crime itself.

Of course, a Michigan state court decision isn't binding upon the courts of South Dakota, where Newland was convicted and sentenced. But many of the principles and precedents cited by the court -- some established by federal courts, including the U.S. Supreme Court -- are.

If Bob Newland wants to go to bat for his free speech rights, his arguments have already been written by some highly placed judges in Michigan.


Tuesday, July 14, 2009

Sentenced to shut up

The sentence for a South Dakota drug-policy-reform advocate convicted of felony possession of marijuana is raising concerns about fundamental individual rights. Bob Newland, the director of the South Dakota chapter of the National Organization for the Reform of Marijuana Laws, founder of South Dakotans for Safe Access, a medical marijuana group, and publisher of Hemphasis, was sentenced to one year in the Pennington County Jail, with all but 45 days suspended. During that year, he is forbidden to publicly advocate marijuana legalization.

On July 6, Newland sent out an email saying, in part:

This will be the last email I send under the banner ‘South Dakotans for Safe Access‘ at least for a year.

By now, most of you know I plead to a felony count of possession of marijuana in May. Today I was sentenced.

In an hour-long sentencing hearing, Judge Delaney waxed reminiscent as he described his admiration for Muhammad Ali’s stance against an illegal war, which cost him millions of dollars and his peak performing years, during which time he did not complain, nor did he leave the country that so abused him for his beliefs.

Then, citing the fact that he (Judge Delaney) had to account for his actions to the hundreds of kids he sees in juvenile court, he sentenced me to a year in the Penn. Co. jail, with all suspended but 45 days. During the suspended part of the sentence I will wear a bracelet that senses alcohol use and I will be subject to arbitrary p-ss tests by a probation officer to detect illegal “drug” use. In addition I may have no “public role” in cannabis law reform advocacy during that year. ...

According to the Rapid City Journal, Judge Delaney told Newland, who will turn 61in jail, "You are not going to take a position as a public figure who got a light sentence." The judge also told Newland that he didn't want the advocate to be in a position to encourage minors to consume intoxicants.

Newland was found with marijuana and a scale after a traffic stop -- a clear violation of the law, though not necessarily a wrongful act, if you believe that the government has no business criminalizing consensual activities among adults.

But, morality of the law aside, Newland's sentence was a light one for an acknowledged felony -- except for the very restrictive gag order. It's unusual for judges to require defendants to remain quiet about their political opinions. While judges have wide-ranging authority to impose restrictions, these usually revolve around issues relevant to their crimes, such as proximity to a victim, or refraining from further criminal activity, or requirements that make it easier for authorities to monitor behavior, such as search access and ankle bracelets. Throwing in a suspension of First Amendment-protected rights to speak out on matters of public policy is gratuitous and offensive.

What legitimate interest could a judge have in suppressing political opinions?

Jack King, director of public affairs and communications for the National Association of Criminal Defense Lawyers, raised exactly that point when he told the Rapid City Journal, "I don't know if the judge realized that he was imposing his politics on Mr. Newland as a condition of his probation."

But we've taken a long road to this path with other suspensions of civil rights that are said to be inappropriate for those convicted of serious crimes. Convicts, even nonviolent ones, supposedly can't be trusted with firearms, so felons are often deprived of the legal right to own the means to defend themselves and their families -- even decades after their crime. And felons are deprived of the right to vote temporarily or permanently in most states as a continuation of the medieval tradition of "civil death" which stripped felons of their rights. There's been a move on in recent years to restore voting rights, pointing out that the loss of rights unrelated to ensuring that prisoners pose no threat is incompatible with a free society.

In a 2004 article for the American Bar Association's Human Rights magazine, arguing against suspending voting rights, Marc Mauer, assistant director of The Sentencing Project, wrote of what he considered an example of suspended rights taken to the extreme:

Suppose, for example, a legislator proposed a bill to make it unlawful for a probationer to write a letter to the editor or to participate in a protest rally. Surely few policymakers or citizens would find this an appropriate consequence of a conviction.

Ironically, Mauer's absurd example is exactly where Newland is now.

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Friday, April 17, 2009

The other side's protests are never legitimate

The usual suspects came out of the woodwork to attack the hordes who braved occasionally hideous weather to protest against taxes, government spending and a sometimes messy array of other perceived policy flaws. The tea parties don't represent legitimate grassroots grievances, the critics charge, or they've been taken over by nutcases who just don't like the president. This is all par for the course. Some pundits don't like it when amateurs dabble in political speech; others can't believe that any significant segment of the country would dare to disagree with them.

Writing in the Los Angeles Times, long-time political commentator Marc Cooper says:

Whip out your Lipton and don your tinfoil hat and join the protest against ... against ... against what exactly? ...

Then again, this rash of tea parties is being organized not only by the pseudo-journalists at Fox News (with Glenn Beck, Neil Cavuto and Sean Hannity actively stoking the flames) but also by FreedomWorks, a conservative lobbying outfit headed by former House Majority Leader Dick Armey. I suppose it was Armey's constitutional if morally dubious privilege to have built an entire political career out of defending the wealthy.

We get it, Marc. The protesters don't repesent your concerns, and the protests were pulled together by people you don't like, so never mind that simultaneous demonstrations drew large crowds across the country.

To Cooper's credit (if you can call it that), he has the virtue of being consistent. Back in 2002, when anti-war sentiment was the grassroots cause of the moment, he took demonstrators to task for being organized by the wrong people and for incorporating extraneous concerns. In the pages of the LA Weekly, he wrote:

For fundamentalist is the most polite and diplomatic characterization I can attach to a small choir of leftists who as much as declared jihad on me and a couple of other writers when we suggested that at least a tad of critical thought should be applied in building a peace movement.

With the Bushies blindly pushing for conflict with Iraq, we had argued, it's going to take a very big, a very broad and — yes — a very mainstream anti-war movement to maintain the peace....

Just as I don't want George Bush making war in my name, I don't want apologists for Saddam Hussein like Ramsey Clark going on TV anymore speaking in my name for peace.

In the future, we should let Marc organize all our protests so that they're more photogenic and promote the right message.

That's not to say that radicals and nuts didn't attach themselves to the peace movement -- they did. But that comes with the territory when protest movements aren't pre-packaged, but take on a life of their own. If it's any consolation, tea partiers embarrassed by the presence of immigrant-bashers and conspiracy theorists can point to the communists and dictator-strokers who plagued opponents of the war in Iraq.

Most criticism of the peace movement came from pro-government conservatives, though, who sought to marginalize anti-war activism as if real Americans couldn't possibly oppose military adventurism. Back then, Rush Limbaugh accused anti-war protesters of raising phony concerns and said that politicians questioning U.S. involvement in Iraq were "insulting soldiers all over the place."

David Horowitz said protesters had a "desire to hurt this country and its citizens."

These days, we have Paul Krugman claiming the tea party protesters are full of "crazy stuff" and that "the tea parties don’t represent a spontaneous outpouring of public sentiment. They’re AstroTurf (fake grass roots) events..."

Dana Milbank charges that the anti-tax protests were a "washout" that served up a "noxious brew" with "sinister overtones."


The fact is that, when thousands and tens of thousands of people show up to express their opinions and their anger, the grassroots are speaking. It's not all the grassroots of course; populations don't speak with one voice or hold one opinion. But all the efforts of George Soros or Newt Gingrich can't make people turn out to carry signs and listen to speakers in the rain if those people aren't ticked off about something.

Delegitimizing broad-based political opposition is an old tactic. Some people, like Marc Cooper, do it because they're elitists who don't trust the grassroots with something so powerful as opinions of their own. And others, like Krugman, Milbank, Limbaugh and Horowitz, are cynical political apparatchiks, who attempt to strip legitimacy from any movement that doesn't support their own ideas. They're especially aggressive in their tactics when defending a status quo that represents their own ideology.

Whatever their motivation, people who would deny public participants in the political process the authenticity of their own viewpoints have nothing of value to say themselves.

Whether or not you agree with the sentiments expressed by the participants, yesterday's tea parties were just as legitimate and grassroots as last year's anti-war protests. They may be right, or they may be wrong, but they're real.

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Thursday, April 2, 2009

Best publicity for a critic of the police EVER

So the Arizona Republic reports that Phoenix cops raided the home of a man who maintains a Website and blog that are harshly critical of the police department. That man, Jeff Pataky, has apparently cultivated informants inside the informant and broken interesting stories about official misconduct.

Pataky, a former software sales and marketing executive who now focuses his energy shoveling content on, said he believes his online criticism of the department - along with past criticisms of police investigations - led officers to serve a search warrant at his home last week.

Police officials said Wednesday that a Phoenix detective prompted the investigation after complaining about harassment, though they declined further comment. ...

Investigators confiscated computer material and other items from Pataky's north Phoenix home, which he considered a threat to quit writing.

"We have heard internally from our police sources that they purposefully did this to stop me," Pataky said. "They took my cable modem and wireless router. Anyone worth their salt knows nothing is stored in the cable modem."

Phoenix Assistant Chief Andy Anderson said the harassment case is unique because of the connection to an unaccredited grassroots Web site. He said the blog is one part of the case, though he did not provide specifics of the ongoing investigation.

"This isn't about the blog," Anderson said. "That's just where the investigation led."

"Unaccredited grassroots Web site"? As opposed to accredited official Web sites? What the hell?

Oh, and "harassment" now sounds like one of those all-purpose complaints meant to justify any official act.

The Phoenix area is home, of course, to Maricopa County Sheriff Joe Arpaio, who capped off his feud with the Phoenix New Times by arresting two newspaper executives at their homes under a highly questionable state law that criminalizes online publication of personal information about law-enforcement officials. State lawmakers are now considering toughening that law.

I thought the Phoenix PD was a bit smarter than Arpaio -- not better, just smarter. After all, Pataky is now getting wide publicity for his efforts courtesy of the best public-relations boost any muckraker could ever hope for. The cops would have done better to leave well enough alone.

For his part, Pataky doesn't appear to be slowing down. He's still running his Website and he's suing the city over the raid earlier this month. Pataky has even published a copy of the internal memo Phoenix City Attorney Stephen Craig issued in response to the lawsuit.

Let me give those links again. Website here. Blog here.

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Tuesday, February 24, 2009

Arizona censorship law may get more muzzling power

Several years ago, the Phoenix New Times, a spunky weekly newspaper in Arizona, published the home address of Maricopa County Sheriff Joe Arpaio in the course of an investigation into how the camera-loving "America's toughest sheriff" had managed to acquire such an impressive investment portfolio on the salary he drew from the county. Arpaio and an ally, Maricopa County Attorney Andrew Thomas, replied with a criminal inquiry against the newspaper for violating an obscure and constitutionally questionable law against publishing law-enforcement officers' personal information on the Internet. That law is now being revisited by legislators in a way that may make it even more restrictive.

The law in question currently says:

It is unlawful for a person to knowingly make available on the world wide web the personal information of a peace officer, justice, judge, commissioner, public defender or prosecutor if the dissemination of the personal information poses an imminent and serious threat to the peace officer's, justice's, judge's, commissioner's, public defender's or prosecutor's safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent.

It's a strange law, extending special protection to a particular class of people -- cops, judges, prosecutors and the like -- arguably without regard for the equal protection requirements of the Fourteenth Amendment. It also, of course, threatens freedom of speech and freedom of the press with prior restraint, content-based regulation of what can be published -- but only on the World Wide Web. The Phoenix New Times wasn't targeted for publicizing the location of Arpaio's plush abode in its pages, but for putting a copy of the article online. Why? Probably because such limitations are pretty clearly First Amendment violations when applied to the print media, but new media still exists in a bit of a legal limbo -- or, it did when the law was passed.

The Arizona law isn't alone; a Florida man faces charges for publishing a police officer's address online in that state. His lawyer is, not surprisingly, challenging the law as unconstitutional. Interestingly, violation of the Florida law is a misdemeanor, while Arizona makes it a class 5 felony.

But the Arizona law, as currently written, at least includes the caveat that publishing police officers' personal information online is illegal only if "the dissemination of the personal information poses an imminent and serious threat." Whether that's much of a limitation or not is anybody's guess -- interpretation is in the hands of the local officials who enjoy the benefits of the law. Your attorney can debate the meaning of "imminent" while you cool your heels (or warm them -- this is Arizona) in the lock-up.

Courtesy of Rep. Jerry Weiers, though, HR 2380, currently working its way through the legislature, would revise the law to remove the "imminent and serious" requirement and read as follows:

It is unlawful for a person to intentionally communicate or make available on the internet the personal information of an eligible person if the eligible person makes a written demand of the person to not communicate or make available the eligible person's personal information.

The new language defines "eligible person" as "a current or retired peace officer, justice, judge, commissioner, public defender or prosecutor." In place of the "imminent and serious" verbiage of the current law, the new language adds the requirement that an "eligible person" actively demand that his or her information remain off the Internet (but it can still be published on paper or broadcast over the air). That's more of a tool than a limitation, though, since it allows officials under investigation to fire off letters at will muzzling bloggers and the Web editions of newspapers.

As the Arizona Republic complains in an editorial, "All they have to do is write a demand letter, and - voila! - they control the media, which could face felony prosecution for failing to abide by their demands. There is no procedural mechanism by which a person could challenge such a letter."

I have good relations with the Republic, but the newspaper inexplicably seems to approve of the existing version of the law because it "protects undercover officers from imminent danger." I would never be so crass as to point out that the law has little impact on a primarily dead-tree operation like the Republic, while threatening smaller (and less lawyer-heavy) online operations.

Whoops! I guess I just did.

Weiers hasn't responded to my inquiries about his rationale for the new law, but my guess is that he hopes to shore up the legislation against challenges even while making it more of a bludgeon in public officials' hands. In the wake of a ham-handed arrest of two of its executives in the course of its wrangling with Arpaio, The Phoenix New Times is taking the sheriff to court for civil rights violations, and the muzzle law just might play a major role in the case.

The law should come up, and whatever version is in place when a judge finally examines the abusive piece of legislative excretia, it should be swept away as an unacceptable exercise of censorship.


Friday, February 20, 2009

Good luck with that online 'Fairness Doctrine'

For the past few days, the online world has been a-buzz with reports that Rep. Henry Waxman, the powerful chairman of the House Energy and Commerce Committee, wants to control what people can say not just in radio and television broadcasts, but also over the Internet. It's important to note that Waxman and company deny the report of a new "Fairness Doctrine," with a committee spokesperson calling the report "false." Take the assurances of government officials for what they're worth -- less than you paid for them. But as oppressive as the idea of government regulation of speech is, it's fair to say that censorship of the Internet wouldn't just be legally challenging -- it would be damned near impossible.

According to the original report on The Prowler blog at The American Spectator:

"Does one radio station or one station group control four of the five most powerful outlets in one community? Do four stations in one region carry Rush Limbaugh, and nothing else during the same time slot? Does one heavily trafficked Internet site present one side of an issue and not link to sites that present alternative views? These are some of the questions the chairman is thinking about right now, and we are going to have an FCC that will finally have the people in place to answer them."

Legally speaking, it's difficult to see what basis the U.S. government would have for regulating Internet content. Since Reno v. ACLU, when Supreme Court Justice John Paul Stevens wrote that there is "no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet," the courts have largely treated online media as due the same protections as print media, with little room for government control of content.

That stands in welcome contrast to the latitude the courts have granted politicians to meddle, at least initially, in other new technologies, such as cinema, radio and television. As Robert Corn-Revere wrote in an overview of electronic free speech for the First Amendment Center, "contrary to the First Amendment tradition, the electronic media tend to be born in captivity."

Of course, the rationale for regulating broadcast media has long been that it's a special case since radio and TV stations use the "public airwaves" and therefore have a duty to tailor their content to the public interest -- as interpreted by government officials.

But the "public airwaves" argument has a dubious history. It was pretty clearly cooked up as a deliberate end-run around First Amendment protections, as something censors could hang their hats on when arguing for the power to control a new medium that promised to rival print in reach and popularity.

In his 1991 book, Freedom, Technology and the First Amendment, author Jonathan Emord wrote:

As early as the First National Radio Conference in 1922, Secretary of Commerce Hoover had said that the "ether" was a "public" medium. By the Fourth National Radio Conference in 1925, he had developed a theory that the entire broadcasting industry was one necessarily imbued with a "public" character, that is, a nature that must be under government controls to ensure that it presented programming in the "public interest." ...

In Hoover's view, the broadcaster's freedom of speech had to be suppressed to ensure the propogation of a "preferred" message, one tailored by government for the benefit of the listening public. ...

Born two centuries earlier, Hoover might have argued that newsprint and ink were national treasures that should be safeguarded by the state -- and carefully doled out only to "responsible" publishers. We're lucky Hoover wasn't born early enough to wear a tricorn hat, because the courts bought his self-serving reasoning (except for Supreme Court Justice William O. Douglas, who once wrote, "The Fairness Doctrine has no place in our First Amendment regime.").

Dubious as the "public airwaves" argument is, it doesn't apply to the online speech. The courts have returned to First Amendment sanity with their rulings regarding the Internet. Cyberspace hasn't been declared some sort of public trust subject to political whim, and regulators have been given no authority over a medium where publishers operate subject to rules similar to those applied to newspapers and magazines. It's difficult to see legal doctrine toward the Internet changing so dramatically that speech protections would be as hobbled for Websites and Vloggers as they are for radio stations.

But there's a bigger hurdle to an Internet Fairness Doctrine than the Constitution: the ease with which it can be evaded by publishing beyond the reach of the law. Even during the early days of broadcast regulation, some radio entrepreneurs escaped the clutches of the Federal Radio Commission (later the FCC) by setting up stations in Mexico. Laws stop at the border, but radio waves do not, so outlaw broadcasters ran souped-up transmitters to the delight of their audiences -- and the dismay of the "public airwaves" types. Broadcast content regulations are less onerous (for the moment) than in the past, so border radio is no big deal these days -- but it still exists.

But radio stations have to cluster near the border to be relevant, even as they evade the censors. Internet operations can be based anywhere. Try pulling up the Sydney Morning Herald some time. You'll never notice, but those servers are a long ways from here. Well, unless you're Australian, of course, in which case you're proving my point by scanning these words at The Examiner.

Even assuming some sort of Internet Fairness Doctrine could pass legal muster, how would it be applied to Websites that suddenly shifted all their content to servers in Antigua, or Holland, or Estonia? It'd be like border radio all over again, except that free speech entrepreneurs could do their business from cafes in Prague instead of dusty towns in Mexico.

This is hardly a new concept. Even China, which built censorship into its Internet connections, has trouble controlling access to forbidden content based beyond its borders.

Whether or not Rep. Henry Waxman actually has any interest in regulating online speech with a new and more overbearing than ever Fairness Doctrine, I have no doubt that some officials would love to give it a try. They wouldn't be in government if they didn't love the idea of control.

But if they ever tried, it would be one of the more widely defied and ineffective regulations ever imposed by the U.S. government.


Sunday, February 1, 2009

Student bloggers might actually get a taste of free speech in Connecticut

Across the country, students in public high schools have discovered, to their dismay, that the First Amendment that's supposed to restrict government action apparently doesn't protect comments they make on the Internet while at home from punishment by school officials. Suspended, detained, or otherwise punished, students say their right to free speech beyond school officials' jurisdiction is being violated. A Connecticut legislator agrees and wants to ensure that students' right to speak their minds online is protected.

Avery Doninger, a high school student in Burlington, Connecticut, was barred from serving on the student council after referring to school administrators as "douchebags" on her personal blog. Robert Afnani, of Langley High School, in Virginia, was told to shut down his home-based proxy server or face suspension (public pressure forced school officials to back off). Justin Layshock, a Pennsylvania high school student, was suspended and transferred to an alternative education program for parodying a school official on Myspace. Wesley Juhl, a Nevada high school student, was suspended for making blog comments about a classmate and a teacher from his home computer. At least one school district, Libertyville-Vernon Hills Area High School District 128 in northern Illinois, has formally adopted a policy threatening students with consequences for material they post on the Internet during their own time.

Punishment of students for material they post online on their own time, off school grounds, is so common that the Electronic Frontier Foundation maintains a section of its Website devoted to the problem. The Student Press Law Center has also addressed the issue.

Courts are split on the issue. Working from a line of reasoning established by Tinker, a landmark decision regarding students' First Amendment protections, some courts have held that off-campus speech is beyond the reach (PDF) of public school officials unless it's threatening or otherwise disruptive to the school.

But in the case involving Avery Doninger, mentioned above, the U.S. Court of Appeals for the Second Circuit gave school officials wide discretion to punish vulgar, but non-threatening speech by a student even though it took place after school hours and off school grounds. The court's reasoning was that Doninger's blog should be treated as on-campus speech because "the blog was related to school issues, and it was reasonably foreseeable that other LMHS students would view the blog and that school administrators would become aware of it." They further reasoned that her choice of words could cause "foreseeable risk of substantial disruption" -- as a result of hurt feelings, apparently. That decision, issued just last year, would seem to empower at least one set of government employees to punish expression critical of those officials.

That's a powerful lesson in the consequences of speaking out for inmates of the public schools.

Until the U.S. Supreme Court decides to address the issue, hopefully extending the First Amendment to public school students, any solution will have to come through legislation. Connecticut State Senator Gary LeBeau has stepped forward to do just that. The legislation he proposes is simple, saying only:

Be it enacted by the Senate and House of Representatives in General Assembly convened:

That sections 10-233c and 10-233d of the general statutes be amended to prohibit school authorities from punishing students for the content of electronic correspondence transmitted outside of school facilities or with school equipment, provided such content is not a threat to students, personnel or the school.

Just a few words that would reaffirm the protections the First Amendment already seems to offer to free speech.

LeBeau's bill, assuming it passes, would apply only to Connecticut, of course. But that would mean the students of one state would be a little more certain in the exercise of their free speech rights.


Friday, January 2, 2009

I guess the cops just lost a fan

Do you have any of that NYPD paraphernalia that became so popular after the 9/11 terrorist attacks? Well, I strongly suggest you stash it away in the back of your closet -- at least, that's what you should do if you live anywhere near Belleville, Illinois. That's the garden spot where Adam C. Weinstein was rousted for nothing more than wearing a T-shirt bearing the word "POLICE." As a result, we can expect that the local cops will get a refresher course in First Amendment law.

According to the Madison County Record:

Adam C. Weinstein, of Missouri, claims he was attending a pre-Christmas party on Dec. 23, 2006, at about 11:34 p.m. at Crehan's Bar in Belleville, according to the complaint filed Dec. 22 in St. Clair County Circuit Court.

When Weinstein initially arrived at the party, he was wearing a green sweater with the black shirt bearing the word "POLICE" underneath the sweater. After getting hot at the bar, Weinstein removed his sweater, to reveal the "POLICE" shirt, the suit states.

Shortly afterwards, Weinstein claims he was told that some police officers wanted to talk to him outside.

The officers, it turns out, wanted to know if Weinstein was an actual police officer. He's not; he's an emergency medical technician. Hmmm ... an EMT who wears a shirt saying "police" of the sort that is available from shops across the country. What do you want to bet he was actually an enthusiastic fan of law enforcement, right up until ...

Belleville police officer Jeff Vernatti placed Weinstein under arrest and placed handcuffs around his wrists, but "tightened them too tightly on Plaintiff," according to the complaint.

After Weinstein asked if it was illegal to wear a T-shirt with the word "POLICE" on it, Vernatti told him to "shut the f*** up, you're real f***ing stupid, you are a dumb-a** with no common sense, do you know how f***ing stupid you are?" the suit states.

Vernatti then twisted Weinstein's wrists and quickly walked him across the parking lot, Weinstein claims.

Vernatti shoved Weinstein against the police cruiser with such force that his belt buckle left an impression on his abdomen, then pushed Weinstein into the back seat of the car, according to the complaint.

When Weinstein asked Vernatti to loosen his handcuffs, Vernatti instead tightened them and added a second pair onto his wrists, the suit states.

The Belleville prosecuting attorney, not being quite as big a bonehead as Officer Vernatti, dropped the case. Dropping the case, though, doesn't erase the incident, nor does it make Officer Vernatti any less of a jerk. But a lawsuit ...

Weinstein is suing for false arrest, false detention, excessive force, and a host of other complaints that logically follow from grabbing a man and roughing him up because he's ... wearing a T-shirt.

Incidentally, police officers should have had it drummed into their heads by now that even the nastiest anti-police slogans are protected by the First Amendment to the U.S. Constitution. The criticism can appear on T-shirts, bumper stickers, in print, in song, or be aired in a public place. There's a whole field of legal study related to the penalties for law-enforcement officers who ignore the right of citizens to sound off against cops.

As for arresting a man for wearing an overtly neutral message that was probably pro-police? Well, that's not just a violation of free speech rights. That's plain stupid public relations -- possibly a bigger fumble than a constitutional transgression in this day and age.

By the way, Belleville is the same municipality that made news recently for imposing tight regulations on who can celebrate Halloween, when it can be celebrated, and banning adults from wearing masks at other times of year. So, next October 31, if you want to have a little fun, drive to Belleville dressed as a police officer.

Just make sure your lawyer is on speed dial.

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Tuesday, December 16, 2008

Federal court gags on gag orders

National security letters have been a stain upon the U.S. criminal justice system for several years now, permitting, as they do, federal investigators to go on a fishing expedition through private records -- and then forbidding the recipients of the letters to publicly complain about the treatment they've received. Now, after a decision by the U.S. Court of Appeals for the Second Circuit, the use of the letters will finally be subject to some judicial oversight.

Some oversight, implying a bit of restraint.

In a 2007 report (PDF) revealing widespread abuses of National Security Letters, the Department of Justice's Office of the Inspector General described the documents:

Four federal statutes contain five specific provisions authorizing the Federal Bureau of Investigation (FBI) to issue national security letters (NSLs) to obtain information from third parties, such as telephone companies, financial institutions, Internet service providers, and consumer credit agencies. In these letters, the FBI can direct third parties to to provide customer account information and transactional records, such as telephone toll billing records.

Before the Patriot Act, NSLs could be used only to gain information "involving a foreign power or an agent of a foreign power." The Patriot Act allowed the use of NSLs in pretty much any case where the words "espionage" or "international terrorism" were invoked. By 2005, 53% of NSLs involved Americans rather than foreigners.

And invoked they have been.

The Inspector General's report points out that the use of these letters soared from 8,500 in 2000 (before the Patriot Act) to 39,000 in 2003, 56,000 in 2004, and 47,000 in 2005. Each letter may contain more than one request for information, so even those figures understate the matter.

And the FBI apparently engaged in poor recordkeeping. The report dug through the files and found 17% more NSLs than had been officially recorded.

This is all important because NSLs allow federal agents to engage into far-reaching probes through sensitive private information, on the say-so of federal law enforcement officers, without judicial review.

And if you're an ISP or a phone company and don't like being on the receiving end of an NSL, tough luck. You can't complain in public about the letter, inform the ultimate subject of the investigation or do much at all but fume -- in private -- about the situation. The gag order, like the NSL, is on the say-so of the agents conducting the investigation.

In the words of Title 18, Section 2709(c):

... no wire or electronic communications service provider, or officer, employee, or agent thereof, shall disclose to any person (other than those to whom such disclosure is necessary to comply with the request or an attorney to obtain legal advice or legal assistance with respect to the request) that the Federal Bureau of Investigation has sought or obtained access to information or records under this section.

Until now.

Last year, a federal district court judge found the gag order provisions of the national security letters to be offensive to the First Amendment and to separation-of-powers language in the Constitution. That decision was appealed.

The Second District U.S. Court of Appeals agreed to a large extent (PDF), although it was much more deferential to the government's "national security" mantra than was the lower court. The appeals court noted that the gag order served as a constitutionally suspect "prior restraint" on speech, even if it's one that operates in a specific area of speech.

The nondisclosure requirement of subsection 2709(c) is not a typical prior restraint or a typical content-based restriction warranting the most rigorous First Amendment scrutiny. On the other hand, the Government’s analogies to nondisclosure prohibitions in other contexts do not persuade us to use a significantly diminished standard of review. In any event, John Doe, Inc., has been restrained from publicly expressing a category of information, albeit a narrow one, and that information is relevant to intended criticism of a governmental activity.

The court also dismissed the government's argument that judges should simply accept FBI officials' assurances that national security would be at stake if NSL recipients were allowed to air their complaints in public, saying that such a role would reduce judges to "petty functionaries."

Ultimately, the court let the NSL gag orders stand, but required that the FBI initiate judicial review of each order to determine if it's justifiable and to give the recipient an opportunity to contest the order in court. This is a much less sweeping decision than the one reached in the lower court, but it's a real challenge to the "just trust us" security state philosophy that has prevailed through the Bush years.

After all these years and tens of thousands of national security letters, it's about time that somebody got a chance to take a look at what the investigators have been doing under cover of legally imposed silence.

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Monday, November 24, 2008

Censorship through red tape

Politicians have always been annoyed by folks who bug them to do or not do things. Somehow, they've successfully subjected such people to strict rules, never mind that the act of lobbying is nothing more than exercising First Amendment rights to "freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." And these days, few people annoy politicians more than bloggers -- which could be why online pamphleteers in Washington state may soon find themselves wading through a web of lobbying regulations.

Lobbying is regulated in the Evergreen State by the Public Disclosure Commission. The PDC defines who is subject to the state's strict rules on political activism and attempts to influence public policy. As the Seattle Times boils it down:

Under the law, lobbyists must register with the state, and submit regular reports about who pays them, how they spend money, and which issues they're working on.

Groups that don't fit the traditional definition of "lobbyist" also have to file reports, provided they meet certain spending thresholds while leading public campaigns intended to influence public policy.

There's a fair amount of paperwork and hassle involved, and not a little bit of expense -- especially if you screw up. The PDC can impose thousands of dollars in penalties. That's a challenge for organizations and businesses that have to divert resources to ensure that they're in compliance with the rules. But it could be a deal-killer for bloggers whose resources consist of little more than passion and a little free time. Unable to afford legal advice or fines, many of them might have to pull in their horns to steer well clear of activities which could potentially incur big costs and penalties.

Which may be the whole point.

This isn't the first time that government officials have turned their potentially muzzling attention on online publishers and activists. Just two years ago, Congress considered legislation that could have required some bloggers to register as lobbyists under threat of up to ten years of prison time. The measure would have applied to anybody who spent or received $25,000 over three months as part of their political efforts. Critics pointed out that a blogger raising money for newspaper or radio advertising would have been swept up in the requirements. The grassroots Ron Paul blimp effort might well have brought down the wrath of the regulators, as could any other online political fundraising campaign.

The Senate ultimately stripped the legislation of language that would apply to bloggers, though it's clear that online activists are now on the political class's radar.

Washington's PDC has been asked to rule whether political activism on the Internet is subject to regulation. The commission has touched on the issue (PDF) in the past, ruling that "payment is key." The commission also allows that "blogs may also be entitled to the 'media exemption'" -- a series of provisions that acknowledge that efforts to regulate what lawyer-heavy newspapers say about government isn't going to fly.

What's largely at issue now is whether the blend of activism and journalism in which so many bloggers engage is going to land them on the regulated lobbyist or unregulated media side of the divide -- and subsequently, whether they'll be able to carry on the freewheeling online activity that has made the Internet such an exciting place for political expression.

The media exemption has always been arbitrary, of course. The idea that journalists are supposed to be disinterested and objective observers is a relatively new conceit -- and one that few people buy, if the polarized audiences for MSNBC and Fox News are any evidence. Early newspapers were often associated with one political faction or another and happily bared their teeth at the opposition. So when modern bloggers cover issues even as they rally the troops for or against candidates and policies, they're doing nothing that journalists weren't doing back when the country was founded.

The low barrier to entry and minimal costs of getting a message out provided by the Internet probably raise politicians' concerns, but that's their problem. The Internet is just a medium, and taking advantage of easy online communications shouldn't mean that you surrender your free speech rights. Plenty of respected news outlets now focus their efforts on the Internet, including the Christian Science Monitor, which has dropped its print edition.

"Payment is key" is clearly no answer. Newspapers are usually paid a lot more than the average blogger for their advertising space, and their column inches for or against a ballot issue or candidate can have every bit as much (or as little) impact as the publicity campaign funded with contributions raised through a Website. It's difficult to understand why a blogger should have to struggle through reporting and disclosure requirements for actively campaigning against a measure when a newspaper gets free rein to campaign for it.

In fact, the more you look at it, the more the idea that some people whould have to jump through regulatory hoops to voice their opinions while others get a pass to say what they please without fear of red tape looks ridiculous.

By making it remarkably easy for people to publish, organize, raise funds and make a fuss, the Internet is blending journalism, activism and organization in a way that probably suits people better than the rigid definitions of recent years. It's making lobbying less of a profession and more of an activity available to anyone. And by doing so, it's showing up lobbying regulations as threats to fundamental rights.

Some fans of lobbying rules fret that if bloggers and other online activists win a free speech victory against the regulators, other lobbyists might just close up their physical offices and move their efforts to the Internet.

Well ... so what if they did?

Maybe its time to recognize that assembling and petitioning politicians aren't just unfortunate practices that we have to tolerate, but fundamental rights. Bloggers deserve to rescued from restrictive rules that would muzzle their political expression, but so does everybody else.