Category: First Amendment


Stanford Law Review Online: Don’t Break the Internet

Stanford Law Review

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

Complexity, Opacity, and Permanent Crisis

Finance crises have baffled recently. Jon Corzine says he has no idea where hundreds of millions of dollars in MF Global money went. Judge Rakoff says the proposed SEC-Citi settlement would whitewash the megabank’s wrongdoing:

An application of judicial power that does not rest on facts is worse than mindless, it is inherently dangerous . . . . In any case like this that touches on the transparency of financial markets whose gyrations have so depressed our economy and debilitated our lives, there is an overriding public interest in knowing the truth.

And Sheila Bair suggests that we are still in the dark about critical aspects of the financial system:

Credit exposure reports are essential to make sure regulators understand crucial inter-relationships between distress at one institution and its potential to cause major losses at other institutions. This type of information was missing during the crisis. I know that many members of [Congress] heard the same arguments that I heard during the crisis — that bailouts were necessary or the “entire system” would come down.

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Nondisclosure, Non-disparagement, and Contract Law

In light of some of my previous posts on nondisclosure clauses and their enforceability, I thought readers might enjoy the following story:

“Robert Lee visited a dentist, Stacy Makhnevich, because he was suffering from a severe toothache, caused by a painful infected cavity.  She refused to treat him until he signed a so-called “privacy” contract, which included a clause preventing him from posting negative reviews of her online.  [The clause read: “Patient will not denigrate, defame, disparage, or cast aspersions upon the Physician; and (ii) will use all reasonable efforts to prevent any member of their immediate family or acquaintance from engaging in any such activity.”]

More specifically, the contract stated that Lee would not publish adverse comments about Makhnevich’s performance online, and that he would assign the copyright of any online commentary that he did make to her (presumably so that she could have such commentary quickly and directly taken down if she found it objectionable).

Lee signed the contract.  But later—after receiving a hefty bill for service that he viewed as problematic—he posted negative reviews of the dentist on and, despite the contract’s ban on such postings.

The review said:  “Avoid at all cost! Scamming their customers!”  The review was similar.

Lee claims that Makhnevich then– in an attempt to enforce the contract—tried to get Lee’s negative reviews taken down from the review sites.  He alleges that she also started billing him $100, as a fine, for every day the reviews remained on the Internet.  Moreover, Lee alleges, she refused to send copies of his billing records to him so that he could seek reimbursement from his insurer.  Makhnevich also sent Lee a notice threatening a lawsuit.  In response, Lee filed a lawsuit of his own.

Lee’s lawsuit calls the contract he signed invalid under state law as an unconscionable contract.  The lawsuit also alleges that posting one’s own commentary on a website such as or constitutes “fair use” under the copyright laws.

In the suit, Lee asks that the agreement that he and other patients signed with his dentist be declared void and unenforceable, and that she be barred from requiring assent to these agreements by future patients.”

So many great issues here — the penalty/liquidated clause damage term; the privacy/nondisclosure nexus; the unenforceability argument coupled with a lurking first amendment claim.  The story claims there’s even a consideration defense, though I can’t see how that’s really present on these facts.

As I’ve expressed before, I think these kinds of nondisclosure agreements are more difficult to enforce and obtain damages from than most conventional accounts would have it, and that they often function, like liquidated damages in general, to compel parties to engage in behavior that a court would not actually order.  This case seems like a good test of my theory.  I’m very glad that the Center for Democracy and Technology has taken up the battle.


(H/T: Reader T.G.)

Understanding Wealth Defense: Direct Action from the 0.1%

The OWS protests have provoked reflection on the morality of direct action and civil disobedience. How far should the police go to spy on, disrupt, or punish peaceful protesters? Is pepper spray a dangerous chemical agent or “a food product, essentially?” Does current American inequality merit a direct action follow-up to the Civil Rights Movement, whose mass-arrestees and water-cannoned marchers are now viewed as heroes?

It’s difficult to answer these questions without understanding the past and present tactics of the groups OWS is protesting. We can learn something about those tactics from Jeffrey A. Winters’ book Oligarchy and his recent articles. In Winters’ treatment of America’s politics of wealth defense, we can discern a transition from high-stakes defiance of government tax authority to an established position “inside the system.”

Winters recounts how Congress passed a tax on the top 0.1% in 1894, only to be slapped down by a Supreme Court “which struck it down in a 5-4 decision.” After the 16th Amendment effectively repealed that Supreme Court decision, Congress had the novel idea of actually helping pay for a war (WWI) with revenue from those best able to fund it. As Winters notes, “the highest rate [leapt] from 7 percent in 1915 to 77 percent in 1918,” and “the number of brackets went from seven to 56 over the same period.” This provoked direct action from the wealthiest “through tax avoidance and outright evasion.” At this point, Winters writes,
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J.K Rowling, Defamation and Privacy Law, and the Chilling of the Media

A common argument made to justify First Amendment restrictions on privacy torts and defamation law is that legal liability will chill the media.  I am generally sympathetic to these arguments, though only to a point.  I think these arguments are often overblown.  An interesting point of comparison is the UK, where there is a much weaker protection of free speech and much stronger defamation law.  Although the UK has not embraced all of the privacy torts recognized in the United States, it has come close, recognizing a robust tort of breach of confidence.  Despite the lack of a First Amendment equivalent, and the stronger legal liability for gossip and libel, the press in the UK seems anything but chilled or cowed.  Consider J.K. Rowling’s recent testimony:

Rowling said a “wholly untrue” Daily Express story, which claimed she had based an unpleasant character on her ex-husband, had meant she had to have a “horrible” conversation with their young daughter to explain that it was not the case.

“This episode caused real emotional hurt,” she said, because her daughter had to cope with other children believing that about her father.

Rowling added: “It portrayed me as a vindictive person who would use a book to vilify anyone against whom I had a grudge.”

Rowling also pointed to a story published in the Sunday Mirror, which claimed her husband had given up his job as a doctor “to be at the beck and call of his obscenely rich wife,” she said.

This was “damaging misinformation” about her husband, who is not a celebrity, she said, because it led colleagues to believe he had abandoned his medical career. The paper subsequently apologized.

Defamatory articles spread like fire and are difficult to contain, she told the inquiry, but she had no “magical answer” to the problem of abuses by the press.

Rowling’s testimony, and that of others, reveals a rabid and fervent media in the UK — in spite of the stronger laws.  This makes me ponder whether the claim that strong privacy and defamation law will chill the media is false — or at least is overblown as I believe.  But another conclusion may be drawn from this — perhaps the law doesn’t do much work at all.  It appears that the media’s behavior is not dramatically affected by the law, and thus the law really fails to shape norms or impact behavior.  I’m not sure I agree with this claim, but it is one that should be pondered.

The situation calls for further thought.  How can it be that the tabloid press is so robust in the UK which appears to have much weaker free speech protections than the US?   I only have guesses, not answers, and this question has always struck me as one worth investigating.


Ciara Torres-Spelliscy: American Corporate Political Transparency Is 44 Years Behind the UK

Ciara Torres-Spelliscy is an Assistant Professor at Stetson University College of Law and the co-author along with economist Dr. Kathy Fogel of Shareholder-Authorized Corporate Political Spending in the United Kingdom.  I am posting her views on American corporate political transparency below [FP]: 

by Ciara Torres-Spelliscy

As I told my law students in a recent class, when I was in law school, no one cared a fig about corporate political spending.  I did not hear about it in Constitutional Law, Corporate Law or Fed. Tax.  It was a non-issue because for the most part, it was banned.  It made sense that back then, the SEC would not have a corporate political spending reporting requirement.  That would have been tantamount to the agency’s asking, “have you committed any federal election crimes?”  Now that such political spending is legal, the SEC should respond to the growing calls for a new disclosure rule.

Much has changed in the years since I was on the business end of a Con Law exam.  In particular, in 2010, the Supreme Court did away with corporate source limits on election ads altogether in the infamous Citizens United case.  The upshot of this case changed not just federal law going back to 1947, but also state laws, some of which dated back to the turn of the twentieth century.

The new normal is corporations can spend an unlimited amount of their treasury funds on independent political expenditures in local, state and federal elections.  This brings us back to the SEC and its utter lack of political disclosure rules.  Because of this gap, publicly-traded corporations can spend in elections without ‘fessing up.  This seems odd given how passionate shareholders are about transparency.

In the summer of 2011, ten corporate law professors petitioned the SEC for a new disclosure rule to rectify this situation.  These professors are both conservative and progressive, yet they all agree transparency of corporate political spending is a must.

Economists have already written in support of the professors’ petition.  Economist Dr. Michael Hadani of Long Island University noted that one of the reasons why shareholders should want more reporting on corporate political spending is that it can backfire.  His regression analysis of over 1,100 companies over an 11 year period found political spending had a negative impact of firms’ market value.

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Ackerman and Benkler on the Occupied First Amendment

Slate writer Raymond Vasvari recently observed that, “for every uplifting paragraph” of precedent vindicating rights to protest, there are a “thousand cases bending an abstract right to the prosaic realities of protest.” We may never learn the extent to which Occupy Wall Street protesters were classified “enemies within,” and subject to coordinated intergovernmental suppression. But we can observe, with professors Ackerman and Benkler, that the “irony of free speech” is reaching a breaking point:

Whatever else it accomplishes, Occupy Wall Street is revealing distortions in our current understanding of the First Amendment. In recent decisions, the Supreme Court has protected Wall Street’s constitutional right to pour millions into political campaigns. But as presently construed, the First Amendment isn’t an obstacle when it comes to silencing the Occupiers. . . .

Instead of hiding behind obsolete court decisions, big city mayors must recognize that they are on the constitutional front-line. Michael Bloomberg is failing this test when he keeps Occupiers out of New York’s public parks and tolerates the arrests of dozens of protesters, providing an example for similar actions in Boston, Denver, and San Diego. In contrast, Antonio Villaraigoso is showing that leadership on behalf of the First Amendment is well within the realm of the politically possible. Los Angeles has not only avoided arrests, but seems to be expanding available public space as the protest swells. Similarly, the U.S. Parks police are on the right track in giving the demonstrators a four month extension on Freedom Plaza.

How to explain Mayor Bloomberg’s deviance from constitutional ideals? Maybe he’s one of the worried wealthy, realizing that he can only afford another 170 of his trademark $100 million dollar political campaigns with his fortune of $17 billion. Ensconced in an alternate reality of privilege, Bloomberg retails stories of struggling and put-upon banks. It is his very plutocratic disconnection from the daily life of his subjects that makes an extraordinary protest like OWS necessary.
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Censoring the Internet

There are reports that WikiLeaks may have to shut down owing to financial difficulties.  That will please many, like Vice President Biden, who think Julian Assange is nothing more than a high-tech terrorist.  If Assange’s explanation is to be credited (and I recognize this is a big “if” for some), the website’s financial difficulties stem from a concerted effort by U.S. officials to pressure financial intermediaries (i.e., PayPal, Master Card, Visa) not to permit donors to utilize their sites to make donations.  Some may recall that when WikiLeaks first began publishing confidential information about U.S. war operations and diplomacy, some government officials publicly called on these intermediaries to block donations.  This, in turn, led to denial-of-service reprisals by hackers against the cooperating intermediaries.

In a very interesting recent article entitled Orwell’s Armchair, Derek Bambauer (Brooklyn Law) argues that governments have turned to persuasion of intermediaries and other indirect forms of “soft censorship” to control Internet content.  Bambauer argues that through these indirect methods, government officials are engaging in a form of Internet censorship that is often as or more effective than “hard” forms of legal censorship.  Focusing on issues of transparency, breadth, and accountability, Bambauer argues that, in general, soft censorship is less legitimate than hard censorship.  He urges, perhaps counter-intuitively, that the government ought to proceed by way of statute if it intends to censor or regulate content on the Internet.

My point here is not to assess the merits of Bambauer’s proposal.  I’m more interested in his descriptive claim — namely, that despite all the talk in the U.S. of a free and unfettered Internet, the U.S. government is indeed “censoring” content in this space.  I think the WikiLeaks case highlights one of the most pressing concerns in what I refer to in a forthcoming article as the “emerging global theater.”  Faced with diminished power to control the flow of information on the Internet, officials in the U.S. are naturally seeking other means by which to regulate certain types of harmful content (i.e., IP infringement, terrorist advocacy, disclosure of government secrets).  Many of these means are, as Bambauer claims, less transparent than legislation or administrative regulation.  We can debate whether certain forms of “soft” censorship constitute state action, or even “censorship.”  However, there is little question that what Bambauer refers to as the government’s “toolkit” for influencing the content Americans and others have access to on the Internet contains a set of “soft” components; these will become increasingly important in terms of online content control in the years to come.  Methods of “soft censorship” will not likely result in absolute suppression of content.   One of the things the government is learning is that content does not simply disappear from the Internet, even when the speaker is jailed or executed.  However, both soft and hard forms of regulation can still have a signficant effect on the free flow of online information.  Bambauer’s article is important insofar as it nudges us to think more carefully about different forms of content control in cyberspace.


The Occupation — Place, Balance, and Proximity

Today is the one-month anniversary of the Occupy Wall Street demonstration.  It is fair to say that the media, a decent portion of the American public, and many people abroad are now paying attention.  There is still, of course, no guarantee of long-term success or longevity.  However, to  sustain something like the occupation for more than a few days, much less several weeks, is nothing short of remarkable. 

Mayor Bloomberg has publicly stated that he wants  to protect protesters’ speech and assembly rights.  But he recently suggested that “the Constitution does not protect tents . . . It protects speech and assembly.”  That’s right.  But the tents in Zuccotti Park are not on public property.  Whether they knew it or not, the protesters may have chosen their contested place very wisely — the private owners of Zuccotti Park have been slower to move against the protesters than the City might likely would have been.  In at least one locality, officials reportedly closed a public park in response to an “occupation” protest.  Judging from the police response to the occupiers, and from other limits imposed by the Bloomberg Administration on public assemblies and demonstrations, it seems clear that the City would have intervened if it owned Zuccotti Park.  Unless and until the trespass laws are enforced against the protesters, the City is not likely to seek to remove them.  It’s property law, not the First Amendment, that has thus far determined whether the protesters have a right to be in Zuccotti Park. 

Hizzoner made another interesting statement about the occupation recently.  He expressed concern that the occupation had adversely affected other citizens’ “right to be silent.”  Elaborating, Mayor Bloomberg said: “We can’t have a place where only one point of view is allowed. There are places where I think it’s appropriate to express yourself, and there are other places that are appropriate to set up Tent City. They don’t necessarily have to be one and the same.”  How exactly is this public demonstration affecting those who want to remain silent?  Are the 1% somehow being silenced by the nature and scope of the occupation?  Are those who disagree with the protesters unable to mount a counter-protest?  A recent poll indicates that 72% of NYC voters support the occupation so long as it remains peaceful.  Are the viewpoints of the other 28% not being heard?   

If the Mayor is suggesting displacement of the occupation, he’s missing the point of proximity.  The occupiers are making powerful symbolic use of a location near Wall Street.  They are contesting place to reclaim something they feel has been taken from them.  Relocating the occupation would not “balance” viewpoints.  Rather, it would deprive the ocupiers of the principal means of conveying their message.            



The Power of Place

Michael Kimmelman, the architecture critic for The New York Times, has an interesting piece in this morning’s Sunday Review about the manner in which the Wall Street protesters are using and creating public space.  The piece picks up many of the themes examined in Speech Out of Doors — the connection between medium and message; the human and social connections people have to actual places; the role of technology in mass public demonstrations; the solidarity and communicative values associated with public places; and the manner in which public places are inscribed with messages and memories.