media law @ UM

Should cruel speech be protected by the First Amendment?

2009-04-20T16:57:00.000-07:00

Sure. We protect vituperative hate speech, and cruelty is a mainstay of literature, so why not.
How about selling depictions of cruelty to animals?
So you mean I can’t watch a bullfight filmed in Spain or a cockfighting video from the Philippines?
How about selling “crush videos” of kittens and puppies being slaughtered?
OK, who’s going to say the First Amendment protects that?
For the first time in many a year, the Supreme Court is going to decide (probably next year) whether a certain type of content is so devoid of expressive value that it doesn’t deserve protection by the First Amendment.
The high court has decided to take an appeal of a Third Circuit ruling striking down a federal law outlawing most depictions of cruelty to animals. The law, which was aimed at crush videos, is actually worded much more broadly.
Applying the strict scrutiny test, the appeals court reversed, 10-3, the conviction of a Virginia man for selling videos of dogfights. The government, the majority said, could not show a compelling interest in such a law and the law was both vague and overbroad.
The appeals court decided not to carve out an exception to the First Amendment as was last made in a case 27 years ago, involving child pornography, in New York v. Ferber, 458 U.S. 747 (1982) (holding that child pornography depicting actual children is not protected speech). The court said, “Preventing cruelty to animals, although an exceedingly worthy goal, simply does not implicate interests of the same magnitude as protecting children from physical and psychological harm.”
Early predictions are that the Supreme Court will side with the lower court and hold the law unconstitutional. But that doesn’t mean Congress won’t take another crack at the law and narrow it so it does withstand scrutiny. After all, as the New York Times’ Adam Liptak noted, quoting a source at the Humane Society, crush videos, which had all but disappeared from the Internet, have “popped back up on the Internet as a result of the Third Circuit’s ruling.”

Be in the thick of things

2009-04-09T08:30:00.000-07:00

Here's a great internship opportunity--and possibly a future job. Jenny Donohue, who graduated last year, interned at the Senate Finance Committee, and now has a permanent job there as a press assistant. So now she's looking for interns for this summer. Here's the message from her:

The press shop internship requires substantial knowledge of writing and editing skills as well as knowledge of current events. As a former intern I highly recommend it even to students who intend to pursue more traditional careers in Journalism. My experience here was invaluable. The Finance Committee has jurisdiction over Tax, Trade, Health Care, Social Security, Medicare and Medicaid and Montana Senator Max Baucus is the Chairman. The current economic climate and upcoming health care reform debate make this summer one of the most interesting times in history to work for the committee. Finance Committee internships are highly sought after, but because of Max, Montana students get priority.

Interested students should email me their resume at Jennifer_Donohue@finance-dem.senate.gov. The deadline for summer positions is fast approaching so the sooner the better. Feel free to call me with any questions at (202) 228.4515.

Spring Fling

2009-04-07T14:15:00.000-07:00

Whew. Wonder what critics of Bess' column would think of this. If you take a newspaper out of the mix, does it change things? Note that the University of Maryland administration, faced with a legislator's ire and threats to eliminate state funding to UMd canceled plans to show the full film. Instead, there was an educational free speech forum featuring excerpts from the film. Nonetheless, a university spokesman said, "The University of Maryland is a diverse learning environment that respects the right of a free society to offer opinion, including opinions that may differ dramatically from the larger community,"
At two University of California campuses, the film was shown without much of a fuss.

My sex advice: Butt out

2009-03-14T16:07:00.000-07:00

Well, as you can see, the controversy over the Kaimin’s lil’ ol’ sex column is making national headlines in newspapers and blogs and on TV. Why, I’m not sure. Maybe because a UM law professor who should know better is the one raising a stink, trying to shut the column down.
First Amendment law and precedent on this is pretty darn clear. The government—in this case the state, whether it be the legislature, the board of regents or the university administration—has no business censoring a public university’s newspaper, and the editors of the Kaimin have full editorial discretion as to what they run in the paper. Indirect attempts at censorship, such as stacking the publications review board or cutting funding or imposing “professional” standards on columnists are still censorship.
As such they run smack up against two principles: One, the prohibition against prior restraint that is central to the First Amendment and two, the near-prohibition against actions or laws aimed at the content of speech. That’s where the doctrine of strict scrutiny comes in. Faced with state action aimed at the content of speech, courts have to examine whether there is a compelling governmental interest for the state to take such action and whether the action is necessary and narrowly tailored. So think about it. What compelling governmental interest would the government have in censoring a sex advice column in a university newspaper? Protecting the innocence of college students? Gimme a break. Protecting the morals of society? The Taliban would certainly like that.
The First Amendment protects unpopular, risky, troublesome, cranky, vituperative and yes, sexual speech as long as it isn’t obscene, which Bess’ sex column is light years away from. As Justice Douglas said in Terminiello, “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” 
I would like to repeat what the 10th Circuit Court of Appeals said in Pring v. Penthouse, that ridiculous parody of Miss Wyoming: “There is no accounting for the vast divergence in views and ideas. However, the First Amendment was intended to cover them all. The First Amendment is not limited to ideas, statements, or positions which are accepted; which are not outrageous; which are decent and popular; which are constructive or have some redeeming element; or which do not deviate from community standards and norms; or which are within prevailing religious or moral standards. Although a story may be repugnant in the extreme to an ordinary reader, and we have encountered no difficulty in placing this story in such a category, the typical standards and doctrines under the First Amendment must nevertheless be applied. The magazine itself should not have been tried for its moral standards. Again, no matter how great its divergence may seem from prevailing standards, this does not prevent the application of the First Amendment. The First Amendment standards are not adjusted to a particular type of publication or particular subject matter.”
In a Sunday editorial, the Missoulian condemns this attempt at censorship, saying, "The “Bess Sex Column,” so far as we can tell, is entirely within the bounds of the First Amendment. The Kaimin is a real newspaper, and the students who work for the Kaimin are real journalists. They are not mouthpieces for the university or the state. Just like every other decent newspaper, they are accountable only to their readers - who just happen to be fellow students at the University of Montana."

President Dennison, too, has the Kaimin’s back on this, and you can be sure he’ll be blasted by religious-conservative moralizers. Politicians may get involved. But for now, it’s reassuring to read the words of President Dennison, in a letter he wrote on Friday:

Dear Mrs. and Mr. Murphy:

Thank you for the note about the First Amendment, pornography, censorship, and the Kaimin column. While I believe I understand and appreciate your perspective, and recognize your apparent frustration with the position I have taken, I trust you will recognize that the issues are not quite so simple. You appear to know more about the intentions of “our forefathers” than I, since the wording of the First Amendment seems fairly expansive, as courts through the U. S. Supreme Court have made clear.

The question about the column’s contribution to the education of students has some serious ramifications. The Editor and Editorial Board have judged the column of some value, although apparently not on the basis of its “appeal” to any particular segment of the reading population. Under the policies long in place on this campus, the students who pay for the Kaimin with their fees – about 60 percent of the cost comes from paid advertising in the paper – actually employ the editorial staff who adhere to those policies. While I have the obligation as the publisher to assure adherence to policies and responsible reporting, I interpret that responsibility within the context of long-standing interpretations of the meaning and force of the First Amendment as applied to student newspapers.

To elaborate, a student newspaper has the fundamental purpose of enhancing the quality of the educational experience for students. Those serving as editors, reporters, and other staff gain real world experience with managing the difficult issues that arise from time to time because of decisions made about the operation of the paper. The faculty advisor counsels the students but does not make the decisions for them. I exercise my responsibilities in the same manner. Certainly occasions can arise when the publisher must intervene for clear and direct reasons to protect the integrity of the paper and the University. However, I seriously doubt that the offensiveness of the printed material provides such a “clear and direct reason.” Given the serious doubt, I have exercised judicious caution and have not intervened.

Equally clear, written or spoken words with which we agree need no protection. The First Amendment serves its most essential purpose by protecting speech and writings which offend us or contain content with which we disagree. I certainly agree with your statement that “You [i.e., George Dennison] are in charge.” Being in charge and acting to impose censorship does not alter the fact of censorship, which strikes me as the result of an effort to prohibit the publication of views, opinions, and the like with which I disagree or which offend me personally.

In an educational setting, discussion and debate about such matters has the greatest educational value. Discussion has occurred and will continue. The students involved learn a great deal in the process, far more than if I assumed the role of arbiter or editorial review board of one. Newspapers depend on the support of their readers, even more so in today’s highly competitive media environment. Those who aspire to leadership positions in the world of the free press need real world experience with the consequences of their decisions.

Let me conclude with the observation that I prefer to read newspapers whose editors subscribe to good taste and judgment. Moreover, I do not read newspaper articles that I find disgusting or repulsive. I believe other people do the same. None of us has the right to impose our sense of taste and judgment on others, although we certainly have the right to argue our positions and prevail in the public arena or “marketplace of ideas” through the persuasive power of our arguments.

Sincerely,

George M. Dennison
President

Gag 'em good

2009-03-02T11:03:00.000-08:00

Prior restraint clearly doesn't bother some governments. Let's take Egypt as an example, where a judge barred the press from reporting on a potboiler of a murder case that reaches the highest levels of government. The suspect is a well-connected Cairo businessman, the victim a Lebanese diva. Reporters who defied the ban have been fined. But in an online world, how much can information can the government end up stopping?

Photos of war coffins

2009-02-26T14:40:00.000-08:00

We'll have to see how this plays out, but the policy announced today by Defense Secretary Robert Gates--allowing press photographers access to Dover Air Force Base where the nation's war dead arrive in the U.S.--is a very welcome step. Gates did put a condition on it, the approval of the dead soldiers' family, so it'll be interesting to see what happens. But it is an encouraging sign of openness by the Obama administration to allow access to such images, which represent the dignity of faithful service to the country as much as they represent the loss of human life in a far-off war

Where Have All the Student Speech Rights Gone?

2009-02-25T19:25:00.000-08:00

In 1965, Mary Beth Tinker, a 13-year-old eighth-grader in Des Moines, Iowa, her 15-year-old brother John and three other school friends protested the Vietnam War by wearing black armbands. They were suspended. Mary Beth and John then sued the school district alleging that their First Amendment rights had been restricted.

Forty years ago, on Feb. 24, 1969, the U.S. Supreme Court agreed, saying “…in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom--this kind of openness--that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society…It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

That was probably the high-water mark for high school student free speech rights. Less than 20 years later, in Hazelwood v. Kuhlmeier (1988), the Court held that high school newspapers could be censored. More recently, in 2007, in Morse v. Frederick, (Listen to the 5-minute Opinion Announcement) the Court held that students could be disciplined for erecting a banner at a school-sponsored event off school grounds, which read “Bong Hits 4 Jesus.”

And at the same time, more lower courts have been endorsing school discipline of students for communicating, away from school, messages on Facebook, MySpace, YouTube and other social networking sites that are perceived as perhaps threatening or disruptive. In a sense, this is a throwback to the old bad tendency test. See my article in the current Montana Journalism Review, page 38 (type 40 in the go-to-page box).

Is this widening zone of control over student speech a development that has its roots in Columbine and other instances of school violence? What does the increasing attention paid to cyber-bullying add to this trend? Is greater control over student speech the price students have to pay in return for greater safety? Did they have a choice in this trade-off? Should they?

Peeling off the gag

2009-02-24T12:44:00.000-08:00

Obscured in the post-election whoop-de-doo was this U.S. Court of Appeals decision in December striking down a provision in the Patriot Act as an unconstitutional prior restraint. Essentially, the court said that an automatic gag order imposed by the FBI on anyone at an organization that received a "national security letter," such as a library or a telephone company was in violation of the First Amedment. The C/A held that courts must determine whether such a gag order can stand, not just rubber-stamp the FBI's action.

Can state ban sales of violent video games to minors?

2009-02-23T20:13:00.000-08:00

So thought the California legislature in 2005, when it passed a bill that would establish, in effect, an adults-only category of ultra-violent video games. Patterned after obscenity laws, the law would bar the sale of an interactive video game to anyone under 18 if the game was so violent it was patently offensive, according to prevailing community standards for minors, and lacked serious literary, artistic, political or scientific value.
But the 9th Circuit Court of Appeals (which includes Montana) has just struck down that attempt at censorship, saying that the state could not show that such games cause psychological harm to minors and that young people could be protected only by being banned from buying them.
The court used the strict scrutiny analysis for content-based restrictions on speech, saying "the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests.
The legislator who sponsored the law has urged the state to appeal the ruling to the U.S. Supreme Court.
Here's a link to the opinion in Video Software Dealers Assn. v. Schwarzenegger.

Was he or wasn't he?

2009-02-16T09:05:00.000-08:00

Was Abraham Lincoln friendly to the First Amendment? Well, maybe not friendly, considering some of the actions he and some Union generals (particularly Ambrose Burnside) took during the Civil War against Copperhead newspapers and editors. Maybe a better word is "respectful," considering the grave dangers the war posed to the nation and the inchoate (look it up) nature of the First Amendment, argues First Amendment scholar Ron Collins.

Can you copyright Hope?

2009-02-09T09:51:00.000-08:00

One of the most famous images of recent times, the Obama poster created by artist Shepherd Fairey, is now the subject of litigation between him and the Associated Press, which claims he violated AP's copyright on a photo taken by one of its photographers. There will probably be further developments before we get around to discussing this copyright case, but it already presents some interesting issues.

Briefs deadlines pushed back two days

2009-02-09T09:42:00.000-08:00

I've pushed the deadlines for the three briefs back, each by two days, so that they fall on a Thursday instead of a Tuesday.
Briefs are still due in person to me at the beginning of class.

Brief 1, now due Thursday, Feb. 19
Brief 2, now due March 12
Brief 3, now due April 16

Do rats have free speech rights?

2009-02-06T08:46:00.000-08:00

Gosh, the things you learn. Rats DO have free speech rights—sort of. We’re talking inflatable 10-foot rat balloons, used by labor unions in recent years to signal a labor dispute (get it?). Turns out there’s a whole rat speech jurisprudence—several cases pitting unions against municipalities, even featuring scissor attacks on the blown-up rodents. Follow this trail of crumbs for a ratatouille of exciting First Amendment tails.

Tolerant or politically correct?

2009-02-04T14:59:00.000-08:00

What to do with a politician who insists that Islam is a violent religion? Let him speak his mind—and produce films, books, etc.—or charge him with violating Muslims’ human rights? That’s the issue in the Netherlands with MP Geert Wilders; the Dutch government recently decided to be less tolerant of his views and to prosecute him. Google “Geert Wilders” and you will find all kinds of opinions. Here’s a recent opinion by a U.S. sophomore.
You can find Wilders' short film, "Fitna" here. But be sure to watch the other short film, Schism, which cleverly reverses Wilders' argument.

There's no law against commenting

2009-02-03T14:28:00.000-08:00

particularly on this blog dedicated to free speech, so fire away!

They're moving us

2009-02-02T10:05:00.000-08:00

As of Thursday, Feb. 5, we will be in a different classroom: Room 304 in Old Journalism. Need to accommodate a disabled student in another class. Please try and get there on time.

2009-01-30T19:12:00.000-08:00

Remember last Thursday we were talking about how we have voluntarily given up so much privacy? Well, here's a couple of interesting links. The first is to another Dick Polman column about privacy vs. open government, in this case the use or perhaps abuse by gay activists in California of campaign financing laws to pinpoint on Google maps the homes and offices of those who contributed to the successful Prop. 8 banning gay marriage. The second link is to a somewhat geekier subject about the use, and possible abuse, of location technology on cellphones. You can run but you can't hide.

2009-01-29T13:02:00.000-08:00

“Democracies die behind closed doors . . . When government begins closing doors . . . it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment . . . did not trust any government to separate the true from the false for us . . . They protected the people against secret government.”
Circuit Judge Damon J. Keith, Detroit Free Press v. Ashcroft,
Check out this nifty, new Guide to Open Government, which will come in handy when we get to Access.

Why it's exciting to be studying the First Amendment today

2009-01-28T19:21:00.000-08:00

"At a pace and range not seen before, we are attempting to apply the principles of the First Amendment to an increasingly diverse society even as technology is redefining — at breakneck speed — what we mean by free expression and association." Read more of Gene Policinski's column

Shallow end of the gene pool

2009-01-27T08:39:00.000-08:00

If you run a pool or market betting on the death of the president, are you breaking state or federal law? If you find that law, please let me know. It may be reprehensible, but is it illegal?

Just a signal?

2009-01-27T06:55:00.000-08:00

If you program a satellite from the U.S. to enable Hezbollah's TV station to reach a wider audience, are you protected by the First Amendment? Not according to a federal court in New York,which held that the defendants provided material support to a foreign terrorist group. But if you were to do the same thing for a friendly Arab network broadcasting the president's first interview, no one would think twice about it.

Sunlight, the best disinfectant

2009-01-25T13:46:00.000-08:00

Elections do matter. Voting does make a difference. Case in point:

When George W. Bush was in office, secrecy trumped sunlight. Today, with Barack Obama in office, sunlight trumps secrecy.
Read more at Dick Polman's American Debate

Welcome

2009-01-15T15:21:00.001-08:00

Welcome to the media law blog. I will post on current media law issues, as an adjunct to the class website. I'll keep my eye out for interesting issues and news to post, and ask you to do the same; if you want me to post something, shoot me an email. I encourage you to participate and to check in frequently and/or to subscribe to the blog's RSS feed. Also, be sure to bookmark the class website.

A fine mess

2008-03-18T09:25:00.000-07:00

A former USAToday reporter, now a journalism professor in West Virginia, is the target of punitive fines levied by a federal judge after she refused to reveal confidential sources in a suit brought by a man once believed to have mailed letters filled with anthrax spores in 2001. Steven Hatfill sued the federal government, claiming that in talking about him to reporters, officials violated the federal Privacy Act.

Toni Locy wrote two articles about the case in 2003. Hatfill says he needs her sources to find out who leaked any information about him to the press.

Locy was held in contempt by U.S. District Court Reggie Walton, who, in an unprecedented action, ordered Locy to pay the fines without any outside help. The fines, which escalate the longer Locy remains silent, reach $5,000 a week. Locy has said she cannot begin to pay the fines from her $75,000 annual salary at the University of West Virginia. However, the judge’s contempt order has been stayed pending an appeal to the Court of Appeals for the District of Columbia, which will hear arguments on May 9.

Gannett Co., Ms. Locy’s former employer, is trying to stop Judge Walton’s orders and media organizatons have filed friend of the court briefs. “No judge has ever officially ordered that a reporter held in contempt may not accept reimbursement from an employer (or anyone else),” notes the Reporters Committee for Freedom of the Press.

Pretty profit

2008-03-16T13:01:00.000-07:00

When news media used photos of Ashley/”Kristen” following the Spitzer bust, did they do anything wrong?
Ashley’s lawyer claims her likeness was appropriated for profit, but was it? Even though she will probably have her 15 minutes of fame, and make more from books, movie rights, etc. (see linked story) than she ever dreamed of as a high-priced hooker, Ashley was not a famous person when the story of her tango with Gov. Spitzer broke. Of course there’s exploitation for a profit—in the sense that all news media exploit subjects that they profile or otherwise name in news articles. But that’s not the kind of commercial appropriation that the appropriation tort contemplates.
OK, how about publication of private facts? Doubt that she can prove that publication of photos of her, from her MySpace page, was either highly offensive to a reasonable person or that it was not newsworthy. Especially the latter, in one of the biggest news stories of the year.
False light? Was there some mis-characterization or embellishment of her story such that publication of the photos put her in a false light? If anything, the photos and the story that emerged with them tended to humanize her, so no.
What about intrusion? We don’t know this for sure, but it doesn’t seem that the NewYork Times used any special, or intrusive means, to gain access to Ashley’s MySpace page. Probably, she had the settings on public, meaning they were fair game.
Sorry, Ashley, you lose (but we all know you’ll be raking it in so we don’t really feel sorry for you, moneywise anyway).
And speaking of Spitzer, Russel passes on this rather disturbing story about the coincidental timing of his arrest.

Free speech on the rez

2008-03-13T08:49:00.000-07:00

Great Falls Tribune reports that Rocky Boy's tribal dissidents are fighting a slander ordinance passed by the tribal council after anonymous allegations that council members were buying personal vehicles with tribal funds. The law requires that anyone found guilty of slander will forfeit all real property within tribal boundaries and be banished from the reservation for five years; a second offense leads to loss of tribal membership. Extent of First Amendment protections on reservations is muddy, at best.

Shedding light on false light

2008-03-07T20:37:00.000-08:00

Twenty years ago, Florida paving contractor Joe Anderson Jr. accidentally shot and killed his wife while hunting. Now he’s arguing to the Florida supreme court that a newspaper article that said he shot and killed his wife put him in a false light and cost him big bucks--I mean dollars.

Anderson says the Pensacola News Journal article in 1998 falsely implied that he murdered his wife because of the way the facts were strung together. The statement that he shot and killed her was followed by the fact that this occurred two days after he filed for divorce. The explanation that it was determined to be an accidental shooting came two paragraphs later. Anderson won his case at trial and was awarded more than $18 million, but an appellate court reversed the holding.

The Florida Supreme Court has never considered a false light invasion of privacy case before. The newspaper’s lawyer says the press would be “paralyzed” if it can be punished for stating the truth. Anderson’s lawyer says, in effect, it wasn’t the whole truth.

A Poynter Institute ethics column on the case is worth reading.

Bad blood in the 'hood
Although the Florida court is not bound by other state courts, its justices will undoubtedly be reading the Ohio supreme court’s opinion last year, which recognized the false light tort for the first time. That ruling came in a wacky neighborhood feud case in which neighbor A, who suspected neighbor B’s son of breaking a window on her property, distributed a handbill offering a reward for whoever turned in the malefactor. By distributing the handbill at the place where the boy’s father worked, neighbor A supposedly put neighbor B in a false light. I don’t get it, but an Ohio jury will get to decide whether there actually was false light invasion of privacy. Neighbor B will have to show that neighbor A’s handbill and distribution was “highly offensive to a reasonable person” and that she acted with actual malice.

Murder and Spies

2008-03-06T13:55:00.000-08:00

Two interesting items in Thursday's WaPo. First on the flourishing trade in "murderabilia," from the mass murderers we seem to love so dearly, and how this market has flourished under the radar because it isn't covered by "Son of Sam" laws. Should it be? Should some sick S.O.B. rotting in a cell be allowed to sell memorabilia of his or her crimes? Is that a form of expression or can it be?
Second item concerns privacy, invasions thereof, in the limitless cause of the limitless war on terror. Specifically, it details a wide-ranging computer network that ties together law enforcement evidence and counterterrorism intelligence. Sophisticated data analysis programs find patterns among seemingly random bits of evidence. To give a simple example from the story, a police report of a man fixing a flat tire outside a nuclear power plant means little, but sorted and tied to similar incidents, it might mean something's afoot. OK, so what's wrong with that?
As usual, the mischief is in the potential for misuse and abuse, and we have to look back no further than the glory days of J. Edgar Hoover, when local polic helped the head of the FBI build files on people who were political activists but entirely law-abiding. The surveillance state that Hoover was the godfather of has only gotten bigger. In response to the public backlash against Hoover's misdeeds, Congress passed laws to strictly limit domestic intelligence and the flow of information between local law enforcement and national security agencies for the sake of surveillance. But in the wake of 9/11, that "Chinese wall" has been coming down, brick by brick, and the newest network, called the National Data Exchange, would pretty much do away with it.
How does this affect your work as a journalist?

Wikileaks is free!

2008-02-29T16:17:00.000-08:00

The judge in San Francisco who ordered Wikileak's front door slammed shut lifted his prior restraint on Friday afternoon and will issue a written opinion soon. The judge had been coming under increasing pressure to reverse the clearly unconstitutional order.

Corruption pays

2008-02-24T17:21:00.000-08:00

In the news we read about the horrific flare-up of tribal violence in Kenya’s Rift Valley last month and note that it was touched off by a rigged presidential election—and then we yawn and turn the page. What relevance does it have for us? The big honey pot for many politicians in Africa—and around the world—is the accumulation of wealth that comes with power. Some politicians have taken corruption to new heights, like Daniel arap Moi, Kenya’s former president. Its current president, Mwai Kibaki, has been accused of rigging his re-election to keep the goodies flowing, thus perpetuating the culture of corruption that, ironically, he had vowed to end. And it’s that same culture of corruption that led to the founding of Wikileaks, which posted a lengthy report documenting Moi's corruption. Its founders wrote: “The power of principled leaking to embarrass governments, corporations and institutions is amply demonstrated through recent history."

Public scrutiny of otherwise unaccountable and secretive institutions pressures them to act ethically. What official will chance a secret, corrupt transaction when the public is likely to find out? What repressive plan will be carried out when it is revealed to the citizenry, not just of its own country, but the world?

When the risks of embarrassment through openness and honesty increase, the tables are turned against conspiracy, corruption, exploitation and oppression.

Open government answers injustice rather than causing it. Open government exposes and undoes corruption. Open governance is the most cost effective method of promoting good governance.”

So when the front door to this little website nobody ever heard of is illegally shut by a U.S. judge (a U.S. judge!), it makes you wonder who’s being served. Seems like secretive Swiss banks, money launderers and corrupt kleptocrats like Moi are just sitting their smiling and counting their stacks of money.

Wednesday update: A bunch of media groups and the ACLU are coming to Wikileaks defense

The sun shines in California--sorta

2008-02-22T13:45:00.000-08:00

California’s climate is not only hospitable to surfers but also to student journalists. But maybe not so understanding of T-shirt slogans.

On Tuesday, the U.S. Supreme Court let stand a state appellate court ruling in favor of Andrew Smith, whose controversial opinion piece favoring a crackdown on illegal immigration had been censored by his high school principal in 2001.

The trial court had upheld the principal, saying Smith’s piece promoted disruption at Novato High School, but the state court of appeals reversed, pointing to a state law that says students in public schools have freedom of expression, except when it is "obscene, libelous or slanderous," or "material which so incites students as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school."

That law was in existence prior to the 1988 Hazelwood v. Kuhlmeier decision by the U.S. Supreme Court, which restricted high school students’ speech rights. Hazelwood is superceded in California by the state's more protective law. A subsequent California law extended similar protection to private high schools.

Ironically, the newspaper for which Smith wrote went out of existence in 2002 because not enough students signed up for the journalism class.

A few days earlier, a federal district court in California ruled against a student who, on a gay pride day, wore a T-shirt bearing the words "Homosexuality is shameful. Romans 1:27" on the front and "Be ashamed. Our school has embraced what God has condemned" on the back. There is, the court said, "a legitimate pedagogical concern that allows a school to restrict speech expressing damaging statements about sexual orientation and limiting students to expressing their views in a positive manner."

So, R.A.V. v. St. Paul says you can't punish some kinds of hate speech, but it's OK for California schools to tell students you can only say good things about sexual orientation. Exactly the kind of free speech double standard promoted in Hazelwood. But it's OK to write anything you want about illegal immigrants in the school paper so long as it doesn't result in "substantial disruption" of the school.

Moral of the story: Newspaper messages, OK, T-shirt messages, watch your back.

What a coincidence...

2008-02-19T13:49:00.000-08:00

...just as we were discussing prior restraints that a federal judge in San Francisco shut down a website dedicated to publicizing leaked information. This legal action amounts to a rare but clearly unconstitutional prior restraint.

The website, Wikileaks, was set up in order to "reveal unethical behavior in... governments and corporations" particularly in Asia, the former Soviet bloc, Latin America, Sub-Saharan Africa and the Middle East. The website had posted leaked documents relating to money laundering at a Cayman Islands bank. That bank claimed that a disgruntled employee had leaked the information in violation of a confidentiality agreement and banking laws in the offshore tax haven.

The bank applied for an injunction against the website's domain name registrar, which the federal judge granted, thus shutting off normal access to the website. However, as Wikileaks pointed out, the site is still available through its IP address and through mirror sites in Belgium, Germany and the Christmas Islands (a tiny speck between Australia and Indonesia)

As New York Times reporter Adam Liptak noted, "The feebleness of the action suggests that the bank, and the judge, did not understand how the domain system works or how quickly Web communities will move to counter actions they see as hostile to free speech online."

As feeble as the legal order may be, the order still amounts to government censorship of free expression, in other words prior restraint. Wikileaks compared the order to the 1971 Pentagon Papers case, arguing that “The Wikileaks injunction is the equivalent of forcing The Times’s printers to print blank pages and its power company to turn off press power.”

The front page of the site noted: "When the transparency group Wikileaks was censored in China last year, no-one was too surprised. After all, the Chinese government also censors the Paris based Reporters Sans Frontiers and New York Based Human Rights Watch. And when Wikileaks published the secret censorship lists of Thailand's military Junta, no-one was too surprised when people in that country had to go to extra lengths to read the site. But on Friday the 15th, February 2008, in the home of the free and the land of the brave, and a constitution which states "Congress shall make no law... abridging the freedom of speech, or of the press", the Wikileaks.org press was shutdown."

Additional reaction to this developing story was published Wednesday here, here and here. Christian Science Monitor had a thoughtful piece on this "cat-and-mouse game" on Friday.

Damascus

2008-02-16T09:18:00.000-08:00

A little over a year ago, I was in Damascus, Syria, visiting American friends who lived there. They showed me and my family around this fascinating, old city that few Americans visit. We saw incredible mosques and souks (bazaars), ate great food and were greeted with smiles and welcomes wherever we went. A typical exchange in this “Axis of Evil” country would go: “Where you from?” “America.” “America! Welcome to my country!”
But one of my most amazing experiences was a meeting with about two dozen journalists, arranged through my friend. To say that the press is not free in Syria is a vast understatement. The press—and the people—are severely restricted in what they can say publicly, especially any criticism of the ruling regime. The man who actually invited the journalists had been in prison for many years for speaking out—and it was such a bitter experience that he would not talk about it. Journalists have to be very careful about what they say, so they censor themselves. Any negative observations about the regime are very carefully couched, because if they are too obvious, they know they will be receiving a visit from the state police.
We started off talking about my book, because it offered an example of how state repression had played out in Montana not that long ago. But then the discussion turned, as I hoped it would, to freedom of speech and freedom of the press. It was immediately obvious that these journalists, most of whom had experienced only the repressive regime under which they lived, were curious about how a free press actually works, and they asked many questions. I told them that there are many big and small examples of how a free press enhances democracy in America, how the press exposes flaws in the system and uncovers malfeasance even by our highest leaders. I said these freedoms have been greatly enhanced by the power of the Internet to allow individuals to speak out and be “heard.” But I also said that freedom of speech is taken for granted in this country and that a shockingly high percentage of people think we have too many First Amendment freedoms.
That’s when an older gentleman spoke up. I later learned that he too had been in prison for his writings. In essence, this is what he said: “Freedom of speech is a natural right that we all have. It is not granted to us by a government, it is a freedom that has been taken away from us by force. But it seems that there are other ways to lose that freedom, by not exercising it when you have it, or by not realizing how important it is.”
I think it’s worth remembering that at a time when hundreds of journalists around the world have been killed or injured while trying to do their jobs in countries where the people and the press are repressed and controlled. For recent examples, see the website of the Committee to Protect Journalists. And see the Feb. 16 entry in this blog, written by a 28-year-old man in Damascus.

Politicians and the FA

2008-02-15T13:33:00.000-08:00

Interested in the First Amendment views and records of the leading candidates for President? See this analysis by the First Amendment Center and see Village Voice columnist Nat Hentoff’s questions about Obama.

Btw, mud-slinging by those same candidates will undoubtedly increase but will probably pale in comparison to past campaigns.

Cartoons can kill

2008-02-13T15:54:00.000-08:00

As you may have heard or read, the controversy over the Danish cartoons portraying the Prophet Muhammed has been revived. The cartoons were first published in 2005, in order to dramatize perceived threats to free speech in Denmark posed by some Islamic fundamentalists and their intolerance for speech. The reaction among some Muslims was outrage stemming from the Islam prohibition against depictions of the Prophet. More than 50 people were killed in riots.
On Tuesday, Danish police arrested three men for allegedly plotting to kill one of the cartoonists, Kurt Westergaard, 73, who drew the big cartoon below. In reaction, and to express solidarity, other newspapers have reprinted the cartoons (top photo below shows the way the cartoons were originally displayed on the pages of the Jyllands-Posten, the Danish paper that first ran the cartoons).
• If you were an editor, would you post or publish these cartoons, in 2005 or in 2008? Why or why not? Would it matter what type of publication or where it was located? How important is it to take this step to make a statement about freedom of speech?

How free is the student press?

2008-02-06T15:37:00.000-08:00

One of the issues we'll be discussing in a couple of weeks revolves around this question. For years, the short answer has been that the high school press is not very free, thanks to a couple of Supreme Court opinions (but it also depends a lot on newspapers' advisors and school principals). For the college press, the conventional wisdom until recently had been that it was pretty free from the constraints set by the Supreme Court. But some troubling clouds have drifted over the horizon. In 2005, the 7th U.S. Circuit Court of Appeals held (Hosty v. Carter) that public college administrators could censor the student press. Even though the ruling was limited by the facts in that case and applies only to that circuit, it has set off alarm bells, and has energized efforts in states to make sure that the student press has full First Amendment rights. Laws to that effect exist in a number of states, but a recent bill to add Washington to the list failed.
For a good argument on why we need a strong student press, see this column by Gene Policinski. One of the arguments he makes is that too heavy a hand on student journalists will simply drive them underground--that is, to the Internet (echoing what happens when dictators the world over try to repress expression).
Of course, that IS what kids are doing already, and the Internet is almost impossible to control, so it'll be very interesting to see how judges ultimately resolve this disconnect between school administrators' need to control (you don't get to be a school administrator unless that impulse is highly developed) and the wonderful anarchy of the World Wide Web. My guess is that the Internet, with all the freedoms it offers for expression, will eventually trump educational administrators and the black-robed old farts who regularly back up their control fantasies. But it won't happen for a good long while. Parents want control. Parents vote. Legislators and courts listen (and so do newspaper editors--a distressing number of whom oppose student press freedom legislation). What do YOU think?

Yo, Canada

2008-02-05T11:57:00.000-08:00

As long as we're on this international kick, let's take a closer look at our neighbor to the north and their struggles with the limits of free speech. While Canada's Charter of Rights and Freedoms guarantees "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication," its Criminal Code punishes hate speech, speech by anyone who issues "statements in any public place, [and] incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace."

So Canada's attitude toward hate speech is much more restrictive than the United States' legal and constitutional position. Therefore, as this blog notes, a militant Canadian Muslim who posted comments on a private online chat room based in Toronto saying that Canadian soldiers in Iraq are "legitimate targets to be killed," and expressing the wish that Canada's defense minister would be killed in Afghanistan, has invited some close scrutiny by the Mounties' counter-terrorism squad. The blog goes on to discuss other interesting confrontations involving Muslims in Canada, where the battle is between free speech and multicultural concerns.

The cheese stands alone...

2008-02-03T13:24:00.000-08:00

...and maybe that's not a bad thing when it comes to free speech standards. The "incitement standard" in American constitutional law is far more generous toward political speech than any other country in the world. Unless speech incites "imminent lawless action," its restriction or punishment violates the First Amendment. Contrast that with post 9/11 restrictions on "dangerous speech" even in countries that share our legal heritage, such as Great Britain, Australia and New Zealand. According to this blog, "the legal trend globally is not only to criminalize direct incitement to terrorist activity, but to criminalize indirect incitement--to prohibit speech perceived as justifying, defending, or 'glorifying' terrorism." Not mentioned are the scores of other countries whose laws have always tended to criminalize "dangerous speech."
American exceptionalism in the Bush administration--refusal to sign the Kyoto Agreement and other international treaties--has been widely condemned, and not without reason. But think what accepting prevailing international legal standards on "dangerous speech" would do to free speech in this country. Anybody want to thumb-wrestle on this issue?

(Added on Feb. 4) If you can get beyond the fear-mongering, bigoted title of this blog, there's an interesting, related discussion on international jurisdiction when it comes to libel. Remember, by pointing you to this site or any other site, I am not endorsing these thoughts but merely enlivening the discussion.

The Supremes on TV

2008-02-02T11:45:00.000-08:00

Will the U.S. Supreme Court ever allow TV in to televise its arguments? With “all deliberate speed,” notes Dahlia Lithwick, and she’s one of the optimists. When I asked Judge Thomas Hogan of the U.S. District Court in Washington, D.C. that question last year, he said “not a chance.” The problem may not be Chief Justice John Roberts, conservative as he is, but the older justices, over whose dead bodies the cameras would roll.

Pushing back on claims of national security

2008-02-02T09:33:00.000-08:00

A bipartisan bill just introduced in the Senate would require this and future administrations to do more to support claims that introduction of certain government documents in criminal cases involving terrorism suspects would endanger the national security. To date, the Bush administration has relied on affidavits by government officials--leading to the criticism that such government claims are pretty flimsy. The bill would require the government to submit the actual documents in question to the judge in the case and let him or her decide.

John Byrne Cooke

2008-02-01T09:57:00.000-08:00

Mr. Cooke was kind enough to send me that great quote about the Constitution that we (and especially our elected leaders) would do well to remember in the 21st Century:

The Constitution of the United States is a law for rulers and people,
equally in war and in peace, and covers with the shield its protection
all classes of men, at all times and under all circumstances. No
doctrine involving more pernicious consequences was ever invented by the
wit of man than that any of its provisions can be suspended during any
of the great exigencies of government. Such a doctrine leads directly to
anarchy or despotism, but the theory of necessity on which it is based
is false, for the government, within the Constitution, has all the
powers granted to it which are necessary to preserve its existence.

Here's the full text of the majority opinion of Ex parte Milligan.

And you can read more about Mr. Cooke's writing and music careers at his website.

Don't question the Prophet Muhammed...

2008-01-31T09:39:00.000-08:00

...at least not in Afghanistan. A 23-year-old reporter, accused by university classmates of mocking the Prophet and questioning his respect for women, was tried in absentia and sentenced to death. The real target, however, may be his brother, also a reporter, who exposed human rights abuses.

Welcome

2008-01-30T18:45:00.000-08:00

Welcome to the media law blog. This will be a forum for discussion of current media law issues, as an adjunct to the class website. I'll keep my eye out for interesting issues and news to post; if you want me to post something, shoot me an email.