Category: First Amendment

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Indecency and the Supreme Court

In FCC v. Fox, the Supreme Court once again took a pass on the first amendment questions raised by the regulation of indecent images or speech on broadcast television. It is a good thing that the justices want to take their time to get it right on the constitutional issues, but ten  years have passed since the case was first triggered by Cher’s use of the F-word at the Billboard Music Awards. And the Court’s decision today suggests it hopes the matter will just go away. As Justice Kennedy concluded for the majority, “this opinion leaves the [FCC] free to modify its current indecency policy.”

The Court’s discomfort with indecency is not surprising. The justices’ discomfort reflects that of much of society. Indeed, they could not bring themselves to actually say the F-word at oral argument.

But once again, it leaves us to wonder why our society seems to worry more about exposing children to even brief uses of profanity or depictions of nudity than it does about exposing kids to prolonged violence. The FCC does not restrict violence the way it does indecency on television, movie ratings are tougher on indecency than on violence, and the Court has a lower threshold for government regulation of violence than of indecency. Recall, for example, that last year, the Court invoked the first amendment to override California’s ban on the sale of violent video games to minors, and two years ago, the Court rejected on first amendment grounds a federal statute that outlawed “crush” videos depicting the torture and killing of animals.

It may be correct to be as careful as we are about the harms to children from the media’s use of nudity and vulgar language. But we also should take more seriously the harm from the media’s depictions of violence.

Amazon’s Pawns

I sometimes speculate at the end of my copyright class that, years hence, we’ll stop using a statutory supplement and just refer to the Amazon, YouTube, Facebook, etc. service agreements to find sources of legal authority. The cultural power of Google & Facebook gets a lot of media attention, and now Amazon is under renewed scrutiny. Wired highlights the business acumen of Jeff Bezos; Mac McClelland has told the story of the sweat it’s based on. Now The Nation is featuring an intriguing series on the company, with pieces by Robert Darnton, Michael Naumann, and Steve Wasserman (along with the slide show on 10 reasons to avoid Amazon). A few reflections on the series below:

1) Wasserman compiles an array of stats: according to the revised 2012 edition of Merchants of Culture, “in 2011 e-book sales for most publishers were “between 18 and 22 percent.” “Two decades ago, there were about 4,000 independent bookstores in the United States; only about 1,900 remain.” Publishers stand to be disintermediated, since too many have been “complacent, allergic to new ideas, even incompetent.” Amazon stands triumphant:

[By 2011], it had $48 billion in revenue, more than all six of the major American publishing conglomerates combined, with a cash reserve of $5 billion. The company is valued at nearly $100 billion and employs more than 65,000 workers (all nonunion); Bezos, according to Forbes, is the thirtieth wealthiest man in America

The aggregator has triumphed over the aggregated, and its own workers. As exposes revealed, “in one of Amazon’s main fulfillment warehouses in Allentown, Pennsylvania . . . employees risked stroke and heat exhaustion while running themselves ragged [and] [a]mbulances were routinely stationed in the facility’s giant parking lot to rush stricken workers to nearby hospitals.”
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Search as Speech: Two Scenarios

Several privacy and antitrust complaints are now menacing Google. After gamely parrying these challenges, the search giant has now wheeled out its nuclear option: a First Amendment argument against any regulation of what appears in unpaid (aka “organic”) search results. A recent Google white paper by Eugene Volokh and Donald Falk has buttressed Eric Goldman‘s and Christopher Yoo‘s rationales for unfettered discretion in the exercise of search engines’ editorial judgment.

Volokh/Falk is the latest in a long string of Google filings describing search results as speech. It’s significant well beyond the search engine industry. If Google succeeds here, just about any information age company will start to make its selection and coordination of offerings “searchy” and thus “speechy” enough to avoid regulation.

Leading articles on the proper limits of the First Amendment include Fred Schauer’s The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience and Robert Post’s Recuperating First Amendment Doctrine. In Federal Search Commission?, Oren Bracha and I applied their arguments (among others) in the new technological contexts created by search engines (pages 1188-1201). I have also examined expressive dimensions of search in other work, in 2006, 2007, and 2008.

None of those prior efforts satisfied me as definitive. I wanted to write on the topic for years, but I couldn’t formulate a more general theory of search as speech. I now recognize the reason for my writer’s block: I was trying to impose a “one-size-fits-all” approach on multifarious phenomena. As Michael Carroll has shown, there are “uniformity costs” whenever we try to force a vast, sprawling array of human activities into Procrustean legal boxes. Those costs would be very high if courts were to accept the Volokh/Falk approach with respect to all the varied interactions between searchers and search engines. With that in mind, here are a few scenarios (or “test suites,” as Volokh might put it) to test the Volokh/Falk submission.
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Stanford Law Review, 64.4 (2012)

Stanford Law Review

Volume 64 • Issue 4 • April 2012

Articles
The Tragedy of the Carrots:
Economics and Politics in the Choice of Price Instruments

Brian Galle
64 Stan. L. Rev. 797

“They Saw a Protest”:
Cognitive Illiberalism and the Speech-Conduct Distinction

Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans & Jeffrey J. Rachlinski
64 Stan. L. Rev. 851

Constitutional Design in the Ancient World
Adriaan Lanni & Adrian Vermeule
64 Stan. L. Rev. 907

The Copyright-Innovation Tradeoff:
Property Rules, Liability Rules, and Intentional Infliction of Harm

Dotan Oliar
64 Stan. L. Rev. 951

Notes
Testing Three Commonsense Intuitions About Judicial Conduct Commissions
Jonathan Abel
64 Stan. L. Rev. 1021

Derivatives Clearinghouses and Systemic Risk:
A Bankruptcy and Dodd-Frank Analysis

Julia Lees Allen
64 Stan. L. Rev. 1079

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On the Intersection of Speech and Politics

This will be my last post guest blogging on Concurring Opinions; I am so grateful for the experience.

Almost everyone agrees that university campuses should be bastions of free speech. Fervent disagreement, however, exists just below the surface of that statement. Depending on how values are prioritized, individuals may differ on when speech becomes harassment, when speech becomes punishable conduct, and when speech is too controversial, extreme, or offensive to be permitted in the classroom. What are your first (and then your second, and third) thoughts when you hear about a UC Santa Barbara professor who emailed his students graphic photographs comparing Holocaust victims to Palestinians in Gaza? Or, what is your reaction to students in a Yale fraternity, as part of an initiation, chanting “No means yes, yes means anal” while marching around campus. Do your views change when you hear about Georgetown University denying official recognition to a pro-choice student organization because of its Catholic and Jesuit tradition?

Prior to joining Penn State Law as a Visiting Assistant Professor, I worked at the Foundation for Individual Rights in Education, an organization that spoke out against the three universities that sought to punish the UCSB professor and the Yale fraternity, and refused recognition to the H*yas for Choice. (The asterisk is because Georgetown will not permit the group to attach the term Hoyas to its name.) While at FIRE, I, a committed feminist, personally argued that the Yale fraternity’s chants did not constitute actionable harassment. Although Yale, like Georgetown, is a private university, both promise their students free speech rights.

I was constantly disheartened that FIRE was labeled as partisan, because it indicates how many people connect the speech they seek to protect to their own political beliefs and assume that others do the same.  When FIRE staffers write columns on The Huffington Post, the organization is accused of being liberal. In most other circumstances, FIRE is dismissed as a conservative mouthpiece, because much of the speech that is censored on campuses is viewed as more harmonious with conservative causes.

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The Turn to Infrastructure for Internet Governance

Drawing from economic theory, Brett Frischmann’s excellent new book Infrastructure: The Social Value of Shared Resources (Oxford University Press 2012) has crafted an elaborate theory of infrastructure that creates an intellectual foundation for addressing some of the most critical policy issues of our time: transportation, communication, environmental protection and beyond. I wish to take the discussion about Frischmann’s book into a slightly different direction, moving away from the question of how infrastructure shapes our social and economic lives into the question of how infrastructure is increasingly co-opted as a form of governance itself.

Arrangements of technical architecture have always inherently been arrangements of power. This is certainly the case for the technologies of Internet governance designed to keep the Internet operational. This governance is not necessarily about governments but about technical design decisions, the policies of private industry and the decisions of new global institutions. By “Infrastructures of Internet governance,” I mean the technologies and processes beneath the layer of content and inherently designed to keep the Internet operational. Some of these architectures include Internet technical protocols; critical Internet resources like Internet addresses, domain names, and autonomous system numbers; the Internet’s domain name system; and network-layer systems related to access, Internet exchange points (IXPs) and Internet security intermediaries. I have published several books about the inherent politics embedded in the design of this governance infrastructure.  But here I wish to address something different. These same Internet governance infrastructures are increasingly being co-opted for political purposes completely irrelevant to their primary Internet governance function.

The most pressing policy debates in Internet governance increasingly do not involve governance of the Internet’s infrastructure but governance using the Internet’s infrastructure.  Governments and large media companies have lost control over content through laws and policies and are recognizing infrastructure as a mechanism for regaining this control.  This is certainly the case for intellectual property rights enforcement. Copyright enforcement has moved well beyond addressing specific infringing content or individuals into Internet governance-based infrastructural enforcement. The most obvious examples include the graduated response methods that terminate the Internet access of individuals that repeatedly violate copyright laws and the domain name seizures that use the Internet’s domain name system (DNS) to redirect queries away from an entire web site rather than just the infringing content. These techniques are ultimately carried out by Internet registries, Internet registrars, or even by non-authoritative DNS operators such as Internet service providers. Domain name seizures in the United States often originate with the Immigration and Customs Enforcement agency. DNS-based enforcement was also at the heart of controversies and Internet boycotts over the legislative efforts to pass the Protect IP Act (PIPA) and the Stop Online Privacy Act (SOPA).

An even more pronounced connection between infrastructure and governance occurs in so-called “kill-switch” interventions in which governments, via private industry, enact outages of basic telecommunications and Internet infrastructures, whether via protocols, application blocking, or terminating entire cell phone or Internet access services. From Egypt to the Bay Area Rapid Transit service blockages, the collateral damage of these outages to freedom of expression and public safety is of great concern. The role of private industry in enacting governance via infrastructure was also obviously visible during the WikiLeaks CableGate saga during which financial services firms like PayPal, Visa and MasterCard opted to block the financial flow of money to WikiLeaks and Amazon and EveryDNS blocked web hosting and domain name resolution services, respectively.

This turn to governance via infrastructures of Internet governance raises several themes for this online symposium. The first theme relates to the privatization of governance whereby industry is voluntarily or obligatorily playing a heightened role in regulating content and governing expression as well as responding to restrictions on expression. Concerns here involve not only the issue of legitimacy and public accountability but also the possibly undue economic burden placed on private information intermediaries to carry out this governance. The question about private ordering is not just a question of Internet freedom but of economic freedom for the companies providing basic Internet infrastructures. The second theme relates to the future of free expression. Legal lenses into freedom of expression often miss the infrastructure-based governance sinews that already permeate the Internet’s underlying technical architecture. The third important theme involves the question of what this technique of governance via infrastructure will mean for the technical infrastructure itself.  As an engineer as well as a social scientist, my concern is for the effects of these practices on Internet stability and security, particularly the co-opting of the Internet’s domain name system for content mediation functions for which the DNS was never intended. The stability of the Internet’s infrastructure is not a given but something that must be protected from the unintended consequences of these new governance approaches.

I wish to congratulate Brett Frischmann on his new book and thank him for bringing the connection between society and infrastructure to such a broad and interdisciplinary audience.

Dr. Laura DeNardis, American University, Washington, DC.

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Introduction: Symposium on Infrastructure: the Social Value of Shared Resources

I am incredibly grateful to Danielle, Deven, and Frank for putting this symposium together, to Concurring Opinions for hosting, and to all of the participants for their time and engagement. It is an incredible honor to have my book discussed by such an esteemed group of experts. 

The book is described here (OUP site) and here (Amazon). The Introduction and Table of Contents are available here.

Abstract:

Shared infrastructures shape our lives, our relationships with each other, the opportunities we enjoy, and the environment we share. Think for a moment about the basic supporting infrastructures that you rely on daily. Some obvious examples are roads, the Internet, water systems, and the electric power grid, to name just a few. In fact, there are many less obvious examples, such as our shared languages, legal institutions, ideas, and even the atmosphere. We depend heavily on shared infrastructures, yet it is difficult to appreciate how much these resources contribute to our lives because infrastructures are complex and the benefits provided are typically indirect.

The book devotes much-needed attention to understanding how society benefits from infrastructure resources and how management decisions affect a wide variety of private and public interests. It links infrastructure, a particular set of resources defined in terms of the manner in which they create value, with commons, a resource management principle by which a resource is shared within a community.

Infrastructure commons are ubiquitous and essential to our social and economic systems. Yet we take them for granted, and frankly, we are paying the price for our lack of vision and understanding. Our shared infrastructures—the lifeblood of our economy and modern society—are crumbling. We need a more systematic, long-term vision that better accounts for how infrastructure commons contribute to social welfare.

In this book, I try to provide such a vision. The first half of the book is general and not focused on any particular infrastructure resource. It cuts across different resource systems and develops a framework for understanding societal demand for infrastructure resources and the advantages and disadvantages of commons management (by which I mean, managing the infrastructure resource in manner that does not discriminate based on the identity of the user or use). The second half of the book applies the theoretical framework to different types of infrastructure—e.g., transportation, communications, environmental, and intellectual resources—and examines different institutional regimes that implement commons management. It then wades deeply into the contentious “network neutrality” debate and ends with a brief discussion of some other modern debates.

Throughout, I raise a host of ideas and arguments that probably deserve/require more sustained attention, but at 436 pages, I had to exercise some restraint, right? Many of the book’s ideas and arguments are bound to be controversial, and I hope some will inspire others. I look forward to your comments, criticisms, and questions.

4

Why I Don’t Teach the Privacy Torts in My Privacy Law Class

(Partial disclaimer — I do teach the privacy torts for part of one class, just so the students realize how narrow they are.)

I was talking the other day with Chris Hoofnagle, a co-founder of the Privacy Law Scholars Conference and someone I respect very much.  He and I have both recently taught Privacy Law using the text by Dan Solove and Paul Schwartz. After the intro chapter, the text has a humongous chapter 2 about the privacy torts, such as intrusion on seclusion, false light, public revelation of private facts, and so on.  Chris and other profs I have spoken with find that the chapter takes weeks to teach.

I skip that chapter entirely. In talking with Chris, I began to articulate why.  It has to do with my philosophy of what the modern privacy enterprise is about.

For me, the modern project about information privacy is pervasively about IT systems.  There are lots of times we allow personal information to flow.  There are lots of times where it’s a bad idea.  We build our collection and dissemination systems in highly computerized form, trying to gain the advantages while minimizing the risks.  Alan Westin got it right when he called his 1970’s book “Databanks in a Free Society.”  It’s about the data.

Privacy torts aren’t about the data.  They usually are individualized revelations in a one-of-a-kind setting.  Importantly, the reasonableness test in tort is a lousy match for whether an IT system is well designed.  Torts have not done well at building privacy into IT systems, nor have they been of much use in other IT system issues, such as deciding whether an IT system is unreasonably insecure or suing software manufacturers under products liability law.  IT systems are complex and evolve rapidly, and are a terrible match with the common sense of a jury trying to decide if the defendant did some particular thing wrong.

When privacy torts don’t work, we substitute regulatory systems, such as HIPAA or Gramm-Leach-Bliley.  To make up for the failures of the intrusion tort, we create the Do Not Call list and telemarketing sales rules that precisely define how much intrusion the marketer can make into our time at home with the family.

A second reason for skipping the privacy torts is that the First Amendment has rendered unconstitutional a wide range of the practices that the privacy torts might otherwise have evolved to address.  Lots of intrusive publication about an individual is considered “newsworthy” and thus protected speech.  The Europeans have narrower free speech rights, so they have somewhat more room to give legal effect to intrusion and public revelation claims.

It’s about the data.  Torts has almost nothing to say about what data should flow in IT systems.  So I skip the privacy torts.

Other profs might have other goals.  But I expect to keep skipping chapter 2.

 

10

Bloggers v. Bloggers

I’m truly stumped by this one. On the one hand, there is no better test of a free speech enthusiast’s commitment to principle than a case where a self-proclaimed “journalist” harasses bloggers by creating websites to ruin their Internet footprints. On the other hand, when the tactics of an individual are so corrosive to the free exchange of ideas, can they really be called speech?

A $2.5 million judgment was awarded against Crystal Cox for defamation after she allegedly purposely destroyed the reputation of Obsidian Financial Group, LLC and its firm principal Kevin Padrick. She’s also targeted popular blogger Marc Randazza (and his daughter), creating websites to affect their Google footprints, then offering her services to undo the reputational harms that she has perpetrated.

Because most of what Cox wrote was too hyperbolic and subjective to give rise to a defamation suit, Cox was sued only for a blog post with specific statements that Padrick and Obsidian committed fraud. Cox claims to have a source for these statements, but she was not able to prove their veracity. Under Oregon’s libel laws, media persons do not have to reveal their sources, and plaintiffs seeking presumed damages against journalists must prove that statements were made with “actual malice.” However, according to the district court, Cox is not a media person. She has no journalistic credentials, does not engage in fact-checking and other techniques of journalists, and does not contact the “other side” to get multiple perspectives on a story.

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Stanford Law Review Online: The Dead Past

Stanford Law Review

The Stanford Law Review Online has just published Chief Judge Alex Kozinski’s Keynote from our 2012 Symposium, The Dead Past. Chief Judge Kozinski discusses the privacy implications of our increasingly digitized world and our role as a society in shaping the law:

I must start out with a confession: When it comes to technology, I’m what you might call a troglodyte. I don’t own a Kindle or an iPad or an iPhone or a Blackberry. I don’t have an avatar or even voicemail. I don’t text.

I don’t reject technology altogether: I do have a typewriter—an electric one, with a ball. But I do think that technology can be a dangerous thing because it changes the way we do things and the way we think about things; and sometimes it changes our own perception of who we are and what we’re about. And by the time we realize it, we find we’re living in a different world with different assumptions about such fundamental things as property and privacy and dignity. And by then, it’s too late to turn back the clock.

He concludes:

Judges, legislators and law enforcement officials live in the real world. The opinions they write, the legislation they pass, the intrusions they dare engage in—all of these reflect an explicit or implicit judgment about the degree of privacy we can reasonably expect by living in our society. In a world where employers monitor the computer communications of their employees, law enforcement officers find it easy to demand that internet service providers give up information on the web-browsing habits of their subscribers. In a world where people post up-to-the-minute location information through Facebook Places or Foursquare, the police may feel justified in attaching a GPS to your car. In a world where people tweet about their sexual experiences and eager thousands read about them the morning after, it may well be reasonable for law enforcement, in pursuit of terrorists and criminals, to spy with high-powered binoculars through people’s bedroom windows or put concealed cameras in public restrooms. In a world where you can listen to people shouting lurid descriptions of their gall-bladder operations into their cell phones, it may well be reasonable to ask telephone companies or even doctors for access to their customer records. If we the people don’t consider our own privacy terribly valuable, we cannot count on government—with its many legitimate worries about law-breaking and security—to guard it for us.

Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”

Read the full article, The Dead Past by Alex Kozinski, at the Stanford Law Review Online.