Fan.5 (First Amendment News) Is sharing a hyperlink protected expression?

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I had hoped to post a piece today on Justice John Paul Stevens and his forthcoming book, Six Amendments: How and Why We Should Change the Constitution (Little, Brown & Co., pp. 170, to be released on April 22). However, since it was impossible to confirm the advanced-copy wording of his proposed amendment to the First Amendment until the final printed version is released, I opted to wait until next month to post the piece and the commentaries accompanying it.

That said, here are some news items that might be of interest to you.

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Is Sharing a Hyperlink Protected Expression? The lawyer for Barrett Brown thinks so and has argued as much in his motion to dismiss criminal charges against his client for sharing a publicly available hyperlink. The matter is pending in a federal district court in Texas. The hyperlink in question was transmitted in a chat-room and pointed to data that was obtained during the hacking of Stratfor Global Intelligence, this in purported violation of 18 U.S.C. § 1028. The motion to dismiss was filed by University of Texas clinical law instructor Ahmed Ghappour and the Law School’s Civil Rights Clinic. Though he argues that the pertinent statutory provisions are inapplicable to his client (thus triggering the doctrine of constitutional avoidance), Professor Ghappour maintains that if they are, the First Amendment nonetheless protects his client. Here is how he put it in his March 3, 2014 motion:

First, the allegations in this case are encompassed by the Supreme Court’s holding in Bartnicki v. Vopper, in that Mr. Brown’s publication of truthful information (by republishing a hyperlink) obtained in a lawful manner cannot be punished absent a showing of a heightened state interest. Second, Mr. Brown was engaged in pure political speech in republishing the hyperlink. Because §1028 as applied imposes a complete prohibition on such speech, and does so based on the speech’s content, Count 1 (and Counts 3-12) must be dismissed absent a showing of a compelling state interest and least restrictive means. Finally, as applied to Mr. Brown, §1028 also fails the O’Brien test for intermediate scrutiny because it is not at parity with any substantial government interest that would be achieved less effectively absent regulation.” (Update: Government Dismisses Bulk of Indictment Against Barrett Brown — hat tip to Ruthann Robson.)

Advertising Pot & the First Amendment: Though it is now legal to enjoy pot in Colorado, the Colorado Department of Revenue, Marijuana Enforcement Division, has promulgated certain rules limiting the advertising of the product. For example, there is this rule:

A Retail Marijuana Establishment shall not utilize television Advertising unless the Retail Marijuana Establishment has reliable evidence that no more than 30 percent of the audience for the program on which the Advertising is to air is reasonably expected to be under the age of 21.

Similar rules exist for radio, print media, and the Internet. Another rule provides: “A Retail Marijuana Establishment shall not engage in Advertising that specifically targets Persons located outside the state of Colorado.” As for outdoor advertising, there is this rule:

Except as otherwise  provided in this rule, it shall be unlawful for any Retail Marijuana Establishment to engage in Advertising that is visible to members of the public from any street, sidewalk, park or other public place, including Advertising utilizing any of the following media: any  billboard or other outdoor general Advertising device; any sign mounted on a vehicle, any hand-held or other portable sign; or any handbill, leaflet or flier directly handed to any person in a public  place, left upon a motor vehicle, or posted upon any public or  private property without the consent of the property owner.

High Times magazine and Westword (an alternative weekly newspaper) have challenged the rules in a suit brought in a federal district court in Colorado. U.S. District Judge Marcia Krieger has been assigned to the case. The plaintiffs seek declaratory and injunctive relief. They argue that such restrictions violate the First Amendment as interpreted by Central Hudson and 44 Liquormart.  David A. Lane of Killmer, Lane, & Newman is representing the two publications. When Jacob Sullum, writing for Forbes, asked UCLA Law Professor Eugene Volokh for his take on the matter, here is how Volokh replied: “I don’t see how marijuana sales are lawful, given the federal prohibition, so I think advertising marijuana is not protected under commercial speech doctrine,” Volokh said. “I realize that here the commercial speech restriction is imposed by the state, and the sales restriction is imposed by the federal government, but I don’t think that would change the First Amendment analysis.” That said, in a Reason magazine piece Mr. Sullum urged that such challenges be brought in state court instead of federal court, and under Article II, section 10 of the Colorado Constitution.

Monitoring Newsrooms? FCC Declines. Late last month the Federal Communications Commission issued a statement that it was nixing a proposal that involved sending government researchers into newsrooms to conduct survey questions related to how news organizations chose which stories to run. In its statement, the FCC noted: “To be clear, media owners and journalists will no longer be asked to participate in the Columbia, S.C. pilot study. The pilot will not be undertaken until a new study design is final. Any subsequent market studies conducted by the FCC, if determined necessary, will not seek participation from or include questions for media owners, news directors or reporters.” The proposal came under attack in a February 10, 2014 Wall St. Journal op.-ed by FCC Commissioner Ajit Pai.  Jay Sekulow, chief counsel of the American Center for Law and Justice, and his group also weighed in by way of a campaign to express public opposition to the proposed study. “This is significant victory for the First Amendment and the freedom of the press,” said Sekulow.  “By shutting down this proposal,” he added, “the FCC took the only action it could. We will now remain vigilant to ensure that the FCC follows through on its pledge to refrain from putting monitors in America’s newsrooms.”

University Settles in Dispute with Pro-Life Student Group: When Oklahoma State University officials barred Cowboys for Life from displaying certain photos near the University’s Student Union building, the Cowboys bucked. The photos they wanted to display depicted aborted fetuses. They were, however, given an alternative: relocate at a less populated site and display a warning. They declined.  The Alliance Defending Freedom came to their First Amendment defense and sued the University. The group’s lawyer, Travis Barham, maintained that “OSU needs to learn that it does not have free reign to censor its students. It can’t exile displays to remote areas of campus, or restrict students from distributing literature just because the hyper-sensitive feelings of a university administrator got ruffled.” Though not admitting guilt, the University agreed to pay $25,000 in legal fees and to amend its student conduct code.

Upcoming Conference on Sullivan:  On April 23, 2014, the University of Minnesota School of Journalism and Mass Communications will host a conference entitled “How Far from Near? 50 Years of New York Times v. Sullivan in Minnesota and Beyond: A Symposium Honoring the Legacy of Silha Professor Emeritus Donald M. Gillmor.”  Robert D. Sack, Senior Judge, United States Court of Appeals for the Second Circuit, will give the keynote address entitled “Thirteen Ways of Looking at New York TImes v. Sullivan.” Twelve participants will discuss the Sullivan case and its legacy. The titles of the panels are:

  • Academic panel: “Beyond First Amendment Exceptionalism: The Multiple Legacies of Near and Sullivan”
  • Practitioners panel: “Time After Times: Defamation Law (and Privacy, Too) in Minnesota”

(Hat tip to Professor Kyu Ho Youm)

Next Scheduled FAN Column: Wednesday, March 12th.

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