Category: First Amendment

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The Ministerial Exception, Amicus Brief

Caroline Mala Corbin, our terrific guest blogger, and Leslie C. Griffin are drafting an amicus brief on behalf of law professors in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case up for argument before the Supreme Court.  It concerns the ministerial exception, a judicially created doctrine which grants religious organization immunity from anti-discrimination suits brought by their “ministerial” employees.  (Corbin has an excellent series of posts on the exception at CoOp).  They are seeking law professors to join them on the brief.  After the jump is a general summary of the facts and their argument. Read More

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Off-Campus Cyberbullying and the First Amendment

The U.S. Court of Appeals for the Fourth Circuit recently upheld a school’s discipline of a student for engaging in off-campus cyberbullying of another student.  In Kowalski v. Berkeley County Schools, — F.3d — (4th Cir. July 27, 2011), a student (Kara Kowalski) created a MySpace profile called “S.A.S.H.,” which she said was short for “Students Against Sluts Herpes.” Another student, however, claimed it really stood for “Students Against Shay’s Herpes,” referring to a student named Shay N.  Kowalski invited about 100 people to join the page, and about 24 people joined. Students posted comments and images making fun of Shay N.  One student posted a picture of Shay N. and put “red red dots on Shay N.’s face to simulate herpes and added a sign near her pelvic region, that read, ‘Warning: Enter at your own risk.’ In the second photograph, he captioned Shay N.’s face with a sign that read, ‘portrait of a whore.'”

After a complaint by Shay N. and an investigation, school officials determined that Kowalski created a “hate website” that violated school policy.  Kowalski was suspended for 5 days and received a “socail suspension” for 90 days, unable to participate in various social events at the school.

Kowalski sued, claiming that the discipline violated her free speech rights under the First Amendment to the U.S. Constitution.

Under the “substantial disruption” test, as defined by the U.S. Supreme Court in Tinker v. Des Moines School District, 393 U.S. 503 (1969), the school must demonstrate “facts which might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities.”

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When We Say “Stop Cyberbullying,” What Are Our Goals?

Being laid up for a week with a nasty tonsil infection gave me the opportunity to catch up on some Sunday NY Times crosswords (Side Note: I refuse to accept that we’re now spelling the word “epilogue” as “epilog,” Mr. Will Shortz), some nerdy SciFi television and some law review articles on cyberharassment. Many esteemed colleagues, not to mention countless law students, are writing about this or related topics in some way. There is indeed much to talk about. But, what does not get as much play are the assumptions upon which much of the results-oriented scholarship is based.

The face-to-face and online harassment of young people, of any sexual orientation, of any gender, of any race, of any socio-economic status, is a bad thing. For the moment, let us put aside those who cling to the antiquated “this is all part of growing up” meme and assume that we all think harassing, attacking and emotionally abusing young people is bad. But, when we are asked to evaluate potential ameliorative responses — harsh punishments, tolerance education, increasing the role of government and a host of other possibilities — it is not enough to simply assume that a problem exists. In order to compare one response against another, we must first engage in a discussion about the values we’re trying to protect over and above solving the problem.

For example, let us assume for the moment that cyberharassment raises only two issues: the speech rights of harassers and the speech rights of victims. If we have to factor into any solution concerns about these stakeholders’ free speech, must we weigh them equally? No. But, then how do we weigh them? Does it matter whose rights? Sure. Those mean harassing kids don’t deserve their rights, only victims do. But, we all know what that kind of reasoning implies. Does it matter that in our example both the perpetrators and victims are students? Do minors even have speech rights (ask Justice Thomas for a resounding “Pfft. Surely you jest!“).

Do we have an adequate basis for finding an answer other than our own personal prejudices? I think we do, but our Internet speech law misses the mark. The legislative history of Section 230 of the Communications Decency Act (the immunity clause) and judicial opinions in cases like Reno v. ACLU, Ashcroft v. ACLU and Zeran v. AmericaOnline suggest that we determine what to value based on our vision of the Internet user as a modern day “pamphleteer” who can reach out “to a world-wide audience,” and do so “anonymous[ly].” A person like that in an environment like that would value individual autonomy and autonomy-based free speech values more than anything else, devaluing other First Amendment values. That vision of the Internet user and his online experience, however, is simply incorrect. Anonymity as a technical matter does not really exist and social networking platforms like Facebook are making anonymity a thing of the past. And, being a pamphleteer that can reach anyone is a little difficult when all content goes through and can be arranged and censored by intermediaries. This Internet user with this online experience would not only be concerned with individual autonomy above all other things. He would be concerned with his reputation, which can be irreparably damaged by online defamation and misbehavior. And, he would be concerned with getting his voice out there, especially since he is completely dependent upon third parties for access.

Power, Knowledge, and Big Pharma: Preliminary Reflections on the Sorrell Vacuum

I have previously commented on Sorrell v. IMS Health, as a co-author of an amicus brief, a Pharma FaceOff panelist, and a blogger. I’m disappointed by today’s ruling, for reasons largely elaborated in Justice Breyer’s dissent. As he observes, the majority opinion “reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision-making where ordinary economic regulation is at issue.” But I’m not surprised at the Lochner revival, given the First Amendment maximalism of the Citizens United Court. For this Court, “free expression” will have to do in the information age what “freedom of contract” did for the early decades of the 20th century: erase even small and incremental steps toward a fairer social order.

Bill McGeveran has characterized Kennedy’s majority opinion in the case as relatively limited, a surgical strike against an overreaching and incompetent state legislature. I want to respond to his interpretation in a future post, after I’ve digested the opinion a bit more. But for now, I’d like to focus a bit of attention on the types of problems Vermont was addressing, to give the case more of a human face. For behind all the familiar Kennedy rhetoric about sacred speech, deeply disturbing industry practices motivated Vermont’s law.
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When Can Public Schools Discipline Students for Off-Campus Speech?

I’ve been spending a lot of time lately focusing on privacy issues at schools.  I find these issues fascinating, and I have been working on them in the trenches, as I created a company last year to provide tools and resources to schools to help them better address privacy problems and to develop a comprehensive privacy program (or enhance their existing privacy program).  The company is called TeachPrivacy.  If you’re a school official (K-12, higher ed), a teacher/professor, or a concerned parent, please contact me if you’re interested in my project.

My immersion in this project is one of the reasons I haven’t been blogging as frequently of late.  But today, there was a great convergence between blogging and my company, and I worked up a lengthy analysis of two new federal appellate cases involving the First Amendment and off-campus speech.  The issue has important ramifications for how public schools deal with cyberbullying and other harmful speech online.

The U.S. Court of Appeals for the Third Circuit just issued two important decisions regarding a public school’s power to discipline students for off-campus speech.  Both cases were previously decided by Third Circuit panels (three judges from the court).  The Third Circuit, acting en banc (the full court) vacated these decisions, reheard the cases, and has now issued new opinions in both.

Layshock v. Hermitage School District

On a computer outside school grounds, a high school student (Justin Layshock) made a fake MySpace profile in his principal’s name.  Using a photo of the principal, the student impersonated the principal and answered a series of questions.  He wrote:

Birthday: too drunk to remember
Are you a health freak: big steroid freak
In the past month have you smoked: big blunt3
In the past month have you been on pills: big pills
In the past month have you gone Skinny Dipping: big lake, not big dick
In the past month have you Stolen Anything: big keg . . . .

Later on, at school, the student used a computer to access the profile and he showed it to other students.  Some students were looking at the profile in a computer lab class and giggling.  School officials eventually limited computer use for a period of 5 days and cancelled computer programming classes.

The student later admitted to writing the profile and apologized to the principal.  Later on, the district punished the student with a 10-day suspension, banned him from extracurricular activities, and did not allow him to participate in graduation ceremonies.  The student challenged the discipline as a violation of his First Amendment right to free speech.  In Layshock v. Hermitage School District (3rd Cir. June 13, 2011) (en banc), the court sided with the student.

The prevailing standard for when schools can impose discipline for off-campus speech was developed from the U.S. Supreme Court’s decision Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).  When off-campus speech causes a material and substantial disruption of the school environment, the school can impose discipline.  Otherwise, off-campus speech would receive full First Amendment free speech protections (unless it were a threat). This is known as the “substantial disruption” standard.

In Layshock, the court noted that the school district was not claiming there was a “substantial disruption.”  Instead, the school wanted the court to recognize that there was a “sufficient nexus” between the profile and the school to allow the school to regulate it.  Layshock took a picture of the principal from the school’s website, the speech was “aimed at the School District community and the Principal and was accessed by Justin [Layshock].”  The court held:

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You Know It’s Me

An important part of my current (and, to me, really exciting) project is the concept of anonymity on the Internet, or lack thereof. Co-Op’s own, Daniel Solove, whose amazing work I have devoured poured over and over read and analyzed many times, has written about this at length, coining the term “traceable anonymity” to refer to this one element of privacy vis-a-vis our Internet selves — I could call myself “youwillneverknowitsme” on my Wikipedia account, but Jimmy Wales could know it’s me by following my IP address.

Traceable anonymity seems to me the baseline for Web 2.0, with the Internet only getting less anonymous as we progress to newer and even more exciting technologies. Social media, for example, already despises anonymity: Facebook has more than 500 million users; 1 in 5 relationships begin through online dating sites, none of which are anonymous; an increasing number of media websites are requiring their users to log in and provide a valid email address in order to comment on posted news stories; and even interactions that might start out anonymous can end in picture and email exchanges, both of which link your online self to your physical self.

The most basic debate is whether this is a good thing. That fascinating discussion is probably more about our individual values than anything else. But, there are at least two more interesting questions (at least to me):

First, is no anonymity the same as no expectation/right of privacy? I don’t think so, though this is a topic I have just started thinking about and reserve the right to change my mind when I learn more and smarter people teach me more. Sometimes privacy means anonymity — John and Jane Doe filings for domestic abuse victims, for example, a topic that Co-Op’s own, the fantastic Danielle Citron, has worked on. But, privacy is not always synonymous with anonymity, as such. We have privacy rights in our person, but the existence of those rights does not depend on us being cloaked from the law entirely.

Second, what are the costs of less (or no) anonymity? One of the frustrating things about online hate and harassment is that it is cheap — there are no transaction costs to hate and little personal and contingent costs after harassing. In other words, it is safer to harass online than in person. The less anonymity, then, the higher the costs of harassing, and that might be a good thing. I could also argue that less anonymity raises the costs of online speech, in general, by snuffing out robust online conversations about politics. But, what exactly would be snuffed out? Things you would never say in person? Again, maybe that’s a good thing.

Of course, I am playing a little bit of the devil’s advocate here, but the conversation is worth having.

Another tid bit I find worth discussing.

When I discuss this lack of anonymity on the Internet with others, I notice a pattern. Older interlocutors, say over 40 (though let me be clear: I do not consider 40 to be “old”) generally agree, but never really thought the Internet was anonymous to begin with. My peers, say 26-40, are the most agreeable. We remember when American Online had chat rooms that you could enter anonymously after creating a pseudonym (thanks to Co-Op reader and hopefully future prof AG for reminding me about that) and have seen the Internet change over the years. But, kids today, say under 25, do not have any conception of anonymity on the Internet. Even if they have a pseudonym here or there, they nonchalantly say something like this: “oh, yeah, ive given people my email or shown them my pictures, im sure they could find me if they wanted.” I am no English major, but that’s hardly what Walt Whitman thought of when he referred to “perfect nonchalance.” At a minimum, that cavalier behavior is something we as parents/aunts/uncles/grandparents have to deal with when our young charges start spending time online.

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Insight From San Franciscans

Greetings from San Francisco. I am here delivering a paper and chairing a panel at the Law & Society Conference (both are about technology, but more about that in a future post) in a fortuitous bit of travel that makes posting about the circumcision ban apropos. Alas, my amazing colleagues on this site have spoken so well on this topic that I was content to offer my thoughts to my regular Towleroad readers yesterday. The post was mostly about the federal constitutional arguments should the ban pass, but the topic elicited high pitched emotions from the small sampling of the gay community that has the time and inclination to post comments online.

Admittedly, I was shocked at my commentators’ near-unanimity in support of the ban, and that’s not even including those who simply attacked the motives of their opponents and used the kind of rhetoric that Dave Hoffman advised against here. Circumcision may have special cultural significance in the gay community, but if so, that’s news to me. So, I decided to test the theory.

When the post reached near 100 comments, I took a friend to the Castro district, a historic gay enclave, put on a nice shirt and my best smile and asked random passers-by about their opinions on the ban. In a few hours, I spoke to nearly 85 people, 80 of whom identified as gay, lesbian, bisexual or transgender. My friend spoke to 53 people, all of whom identified as LGBT. (By the way, that shocked me, as well. Does no one else visit the Castro? Or did we subconsciously self-select? Or were gay people drawn to a gay guy?). I asked very simple questions:

1. Do you support the proposed ban on circumcision of males under the age of 18?

2. Why? What’s your reasoning in one or two sentences?

This sample is also small and I could not very well ask Likert questions and do a regression analysis in time, so we must take the results with a healthy dose of salt.

Of the 133 LGBT respondents, only 19 supported the ban. The quantitative and qualitative results conformed to my expectations.

The 19 in support used words and phrases like “male genital mutilation,” “like the horrors of rape,” “Jews need to modernize,” “trauma,” “I will never forgive my parents,” “dehumanizing,” and so on. A few also decided to register their personal sexual preferences.

The 114 opposed to the ban used words and phrases like “parents should decide,” “parents make decisions for their children all the time,” “its not a big deal,” “why do we have to keep banning [bleep],” “live and let live,” “if someone wants to do it, who am I to say no,” “why should I get involved in how you raise your children.” More than a few also registered their personal sexual preferences, but there was little correlation between those who volunteered that they were circumcised, or preferred circumcised partners, and those who opposed the ban.

I expected this libertarian streak, if only because I see it in my students when I teach gay rights. Students who support marriage equality, for example, offer libertarian legal and policy arguments as to why marriage equality is constitutional and why it is a good idea. They decry conservatives’ interest in what they, or their gay friends, do in their bedrooms. They wonder how marriage equality can really affect anyone else. These views and questions make sense, and while I have some sympathy for the perspective, I always push back for pedagogical purposes, to make them offer constitutional and precedential arguments rather than just giving me their policy preferences and because it is hardly the best argument for marriage rights.

Libertarianism is like a Monet: it seems awesome from afar, but the devil is in the details. I find myself fighting against its implications in my scholarship and in conversations with students.

In your teaching experiences in any subject area, do you see increasing libertarianism in your students? For those who teach classes about minority and gender rights, are your students libertarians?

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Putting Circumcision on the Ballot

By now, most major media outlets have mentioned that some California municipalities will have proposed bans on male circumcision appearing on their November ballots.  The measures have gotten play on the legal blogs as well, where most of the focus is on whether they could survive a First Amendment challenge.  (The bans would prohibit circumcisions except for those with a “clear, compelling, and immediate medical need with no less-destructive alternative treatment available.”  They further state that in enforcing the measures “no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual.”)  Just last week, Dave wrote on this blog about how male circumcision reflects value-laden judgments.  What most interests me about the proposed bans is the extent to which they provide an example of the dangers of allowing passion to trump pragmatism.

Let’s start with the First Amendment issue that has attracted so much attention on the legal blogs.  Why not altogether avoid the legal issue and allow an exception for religious circumcisions? I think the primary sponsors of the ballot measures would answer that male circumcision is mutilation and torture.  You don’t partially ban mutilation and torture; instead, you entirely prohibit it.  Without a religious exception, however, the sponsors have (1) lost the votes of those who may prefer that people not circumcise but stop short of the words “mutilation” and “torture” and further believe that religion is a private matter; and (2) ensured that even if the ban is adopted, it will be tied up for years in litigation.

The mistake the sponsors made was to assume that a ban without a religious exception would be ineffectual in reducing the number of religious circumcisions.  As I’ve blogged and written about before, the male circumcision rate is declining because of incremental changes that chip away at the pro-circumcision norm.  Assume for a moment that a series of municipal bans with religious exceptions became law, caused a meaningful drop in the number of circumcisions and sparked reductions in other parts of the country as well, so that eventually no boys were circumcised unless during a religious ceremony.  My bet is that these secular bans would eventually result in fewer and fewer religious circumcisions. 

Many people who consider themselves to be “good” (fill in the blank with any religion you like) deviate from their Church’s teachings, even fundamental ones, in at least some respects.  If male circumcision was decidedly not the norm—because people believed that cutting off part of the penis was cruel or unnecessary or whatever—religious  parents might be influenced by the attitudes of their non-religious neighbors and choose not to circumcise their sons.  There is already some evidence, for example, that the non-circumcision movement is beginning to make inroads in the Jewish faith.  Already a small number of Jewish parents are opting for a brit Shalom, an alternative to the traditional bris that does not involve any cutting. 

Under this slow and steady approach, with the passage of enough time a government could even adopt a ban with no religious exception without fear of a First Amendment challenge.  Instead, the ban would be received much like the current federal law that prohibits all female circumcision, including ritual nicks that are much less altering than male circumcision.  This legislation does not spark any chatter of First Amendment challenges because everyone agrees about the compelling nature of the governmental interest.

Of course, the First Amendment issues are only relevant if the proposed bans are actually adopted by the relevant voters.  Indeed, if the measures were voted into law, there would be lots of interesting questions, such as whether people would just circumvent them by getting circumcisions done elsewhere, and whether officials would enforce the bans.  I haven’t, however, seen a single prediction that the proposed bans will be voted into law. 

With the risk of failure so high, one has to ask about the potential consequences of failure.  Will a parent who is on the fence about whether to circumcise perceive failure of a measure as evidence that circumcision is an appropriate and socially-endorsed choice?  What about the American Academy of Pediatrics (AAP), which is expected to release a new policy statement on male circumcision?  Will a resounding defeat of the proposed ban weaken the hand of people within the AAP who argue that it should at least remain neutral about the procedure?  These are all very real risks that threaten to undermine or reverse the gains that the non-circumcision movement has made.  Passion has its place, but in this instance it threatens to undermine some very hard-earned gains.

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Cyberharassment’s Waterloo

I begin my Co-Op blogging stint with deep appreciation for Danielle Citron’s invitation and for the entire Co-Op community’s indulgence. I am honored to be a small part of a wonderful online community that brings out the best in us and, for that matter, Web 2.0. My name is Ari, I am a Legal Scholar Teaching Fellow (just like a VAP) at California Western School of Law and I am a student of the interplay among the First Amendment, the Internet and other modern technologies and their effects on minority populations, like gays and lesbians. I go on the professor job market this Fall. I have a weekly blog (every Wednesday) over at the country’s most popular gay news site, Towleroad, for those interested in perspectives on LGBT legal issues for a mass audience. I also have a healthy relationship with physical fitness and an unhealthy relationship with the store Jack Spade. If there’s counseling for the latter, I’d appreciate a reference. Kidding…

For my month of blogging, I hope to engage with you in a few conversations, mostly about cyberharassment and the First Amendment, and hopefully with a healthy dose of humor.

My current project is the third in a series of projects about cyberharassment. The previous articles, available here, address the effects of cyberharassment on LGBT youth, argue for the use of affirmative “soft power” rather than after-the-fact criminalization to solve the problem and create a new analytical framework for adjudicating student free speech defenses to a school’s authority to punish cyberaggressors. Now I am considering the effect that cyberharassment, particularly harassment of a minority group, has on civic participation and the realization of democratic values. I argue that Internet intermediaries self-regulation of their sites and services to filter out hate, sexual harassment and other aggression conforms with long-standing First Amendment values.

Like President Obama likes to say, let me be clear. I do not mean to suggest that the First Amendment applies as a limit on the activities of private actors like Facebook or MySpace or Google; rather, I think that contrary to libertarian First Amendment scholars, we can expect these online intermediaries to regulate content and say that doing so reflects the democratic interests that underly the First Amendment.

Here’s the draft argument in brief that I am currently working out: The view of the Internet as an unencumbered and unfettered town square deserving the same Rawlsian liberal approach to free speech is wrong. Every online interaction is governed by intermediaries of varying kinds, all of which are the filters through which our online speech makes it through to our online communities. Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society. We see this more Aristotelian/communitarian approach to First Amendment values in intermediary jurisprudence — from publishers to book stores, and from schools to workplaces. And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook.

This project is in the early stages, and I always welcome comments/suggestions/evisceration of the argument. More to come…

I look forward to continuing this and other discussions with this splendid community.

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UCLA Law Review Vol. 58, Issue 4 (April 2011)

Volume 58, Issue 4 (April 2011)


Articles

Digital Exhaustion Aaron Perzanowski & Jason Schultz 889
Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law Craig Robert Senn 947
Awakening the Press Clause Sonja R. West 1025


Comments

Still Fair After All These Years? How Claim Preclusion and Issue Preclusion Should Be Modified in Cases of Copyright’s Fair Use Doctrine Karen L. Jones 1071
Patenting Everything Under the Sun: Invoking the First Amendment to Limit the Use of Gene Patents Krysta Kauble 1123