Category: First Amendment


The Tort of Privacy’s Racist Past

As New York Times v. Sullivan made clear, defamation has a bigoted past.  There, Montgomery, Alabama’s police commissioner brought a defamation suit against The New York Times after it published an advertisement, “Heed Their Rising Voices,” which suggested law enforcement’s interference with civil rights protests.  Sullivan based his defamation suit on this premise: accusations of racism hurt my reputation in Montgomery, Alabama.  At the time, it was a truly laughable proposition given the racial hatred so prevalent in the white community there.  No matter, Sullivan and others after him tried to use the law of defamation to silence mostly Northern papers writing about Southern bigotry and officially sanctioned violence against civil rights leaders and others.

In writing a piece entitled Mainstreaming the Tort of Privacy (forthcoming Cal. L. Rev.), I stumbled across  Afro-American Publishing v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966), a case that told a Sullivan-esque story but with a privacy twist.  A white drug store owner sued the Washington Afro-American (the “Afro”), a D.C.-based, bi-weekly paper, for invasion of privacy and libel.  The plaintiff sold the Afro in his drugstore, and canceled it because the paper “spread racial hatred and distrust.”  In the October 14, 1961 edition of the Afro, the paper covered plaintiff’s cancellation of the Afro, noting that plaintiff had told Afro’s editor that his black customers had a “low level of intelligence” and were ignorant.  Plaintiff prevailed at trial on the privacy and libel claims.

The D.C. Circuit, writing en banc, recognized the common law right to privacy in the District of Columbia based on the Warren and Brandeis formulation of a person’s “right of private personality,” the “right to be let alone.”  The court noted that much like in 1890 when Warren and Brandeis wrote The Right to Privacy, the “communications explosion” and “mechanical and electronic devices for snooping” of the 1960s imperiled privacy.  Although the D.C. Circuit noted that the right of privacy stands on “high ground, cognate to the values and concerns protected by constitutional guarantees,” it is not absolute and must permit the press to publish discussions vital to democracy.  As the court held, “[w]hen a proprietor of a news vending outlet in a predominantly Negro neighborhood discontinues the handling of a newspaper oriented to Negro readers, the matter is appropriate for newspaper discussion . . . without fear of an overhanging action for invasion of privacy.”

This case reminds us that just as batterers invoked the mantle of privacy to hide domestic violence, some used the tort of privacy to silence media attention to bigotry.  (There are no doubt better cases for the point, but I use this one just because I found it seredipitiously).  This case brings to mind Lior Strahelivitz’s important work in Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Northwestern L. Rev. 1667 (2008), where he explores how information privacy protections can undermine antidiscrimination law and how government can in certain circumstances reduce the prevalence of unlawful discrimination by publicizing previously private information about individuals.  A fascinating read on the promise of sunlight.


The Perils of Courts’ Defining the News for Journalists

In researching and writing a new piece, I had the great fortune of re-reading a superb article written by Amy Gajda entitled Judging Journalism: The Turn Toward Privacy and Judicial Regulation of the Press,  97 Cal. L. Rev. 1039 (2009).  In it, Gajda explores courts’ growing willingness to recognize privacy claims against the media for unwanted publicity.  As Gajda explains, this has been accomplished in part due to courts’ increasing lack of deference to journalists’ news judgment and willingness to assert their own determinations of the legitimate scope of news coverage.  The Article addresses the nascent resurgence of the publication of private fact torts in the courts and the perils involved in shifting the power to define the news from working journalists and the consuming public to judges and juries.  It is a truly terrific read.


Facebook: Taking Out the Free in Free Expression

As so many warn (and warn to no avail), self-expression on social network sites can be costly.  CBC News recently reported that an employer’s insurance company cut a Quebec employee’s long-term sick leave benefits after seeing photographs on the employee’s Facebook page.  The employee had been on leave from her job at IBM for a year and a half after being diag1211887_on_the_beach_2nosed with major depression.  The employee posted pictures of herself having a good time at a bar on her birthday and enjoying the beach while on vacation.  The insurance company investigated the woman’s Facebook page after she told her insurer about her trip.  The employee explained that her doctor advised her to have fun to combat the depression.  But that apparently did little to convince the insurer that the employee still struggled with depression.  This case demonstrates the problem of de-contextualization in our digital lives.  A strong argument exists that the insurer took pictures out of context when terminating the woman’s benefits.  This is just the kind of privacy problem that Dan Solove so astutely tackles in Understanding Privacy and urges a contextual, pragmatic approach to address it.

Not only do insurers (and employers) hold our Facebook musings against us, but government employers can as well.  As Helen Norton‘s superb article Constraining Public Employee Speech: Government’s Control of its Workers’ Speech to Protect its Own Expression (59 Duke L.J. 1 (2009)) explores, government employees can be fired for off-duty online speech on the grounds that the public would associate the employee’s off-duty expression with the government entity that employed him.  For instance, the Ninth Circuit rejected a First Amendment challenge by a police officer who had been fired for maintaining a sexually explicit website featuring his wife even though the website never referred to law enforcement generally or the plaintiff’s employment specifically.  The court explained: “it can be seriously asked whether a police officer can ever disassociate himself from his powerful public position sufficiently to make his speech (and other activities) entirely unrelated to that position in the eyes of the public and his superiors. . .  . the sleazy activities [of plaintiff and his wife] could not help but undermine [the public’s] respect” for the police department.  Given the current state of First Amendment doctrine, it seems possible that government employers could fire employees for participating in Facebook groups with unpopular viewpoints on the grounds that such support would undermines the public’s respect for the particular government employer (the Facebook groups supporting Nazi ideology and Holocaust denial come to mind).  Norton elegantly addresses the value of government speech and that of its employees and, like Solove, prefers a contextual approach that honors First Amendment values and employees’ expressive autonomy.

Hat tip: Raymond Cha


Scientology and the Media

450px-Founding_Church_of_Scientology_signMuch like everything else in our debt-ridden economy, the media has hit hard times.  Papers have folded, fired staff, or been sold.  This leaves news markets with fewer papers and less investigative reporting.  Amidst this glum report comes another trend worth discussing.  As the mainstream media centralizes its overall presence in a few organizations, some papers left standing have been acquired by organizations with strong religious affiliations.

Consider the Times Publishing Company’s sale of Governing magazine, which reports on state and local governments, to e.Republic, whose founder and top executives are Scientologists.  e.Republic’s founder Dennis McKenna has practiced Scientology for over 30 years and was identified as a church spokesman in 1979.  The Times Publishing Company still owns The St. Petersburg Times, which has long investigated and criticized the Church of Scientology.  In the last several months, The St. Petersburg Times has run a series of scathing articles on the Church of Scientology under the title “The Truth Rundown.”  (In 1980, that newspaper won a Pulitzer Prize for an investigation of the church’s inner workings).

Governing staffers worry that their new management’s religious practices may affect their jobs.  According to The New York Times, their anxiety stems from  2001 article in the Sacramento News and Review reporting that e.Republic’s staff members were required to read a book on management called “Speaking from Experience,” written by L. Ron Hubbard, the founder of Scientology.  e.Republic’s Chief Operating Officer has said, however, that in his 13 years at the company, he had never read Mr. Hubbard’s book.  Some of the staffers’ concerns might be alleviated by the fact that e.Republic has long published Government Technology (GT) magazine, one of my favorite sources for my work on government’s use of information technologies, with no sign that the owner’s religion has had an impact on the stories that GT publishes.  But no matter, this trend is worth watching as newspapers continue their downward spiral.

Wikimedia Commons Image


FTC and Blogger Disclosure Rules

As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.

From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)

There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.

Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.

Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.


Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan

Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.”  Why?  Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments.  The department suspects that some of the posters could be department employees.  Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.”  The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.

The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials.  Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods.  It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.”  Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors.  It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”

Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves.  We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job.  Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.”  Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece.  Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007.  I wonder what the Austin ACLU thinks now.

H/T Slashdot for the story


Watch What You Say

Excellent article by Olivia Judson in the NYT about how British libel law impacts science journalism.  A British science journalist is being sued by the British Chiropractic Association for writing that the association “happily promotes bogus treatments.”  A judge has ruled that the author’s use of the word “bogus” implied that the members of the BCA were not only promoting ineffective treatments, but treatments that they know are ineffective.  And that’s a statement of fact that might be libelous.

The case illustrates a clash between important principles.  On the one hand, it’s important to get the word out to the gullible public that they are being taken in by ineffective products, including — indeed, especially including — medical products.  I am frequently amazed at how people (including otherwise intelligent people) can fall for things such as those “homeopathic” products in which the allegedly effective ingredient has been diluted to the point where there is not likely to be even a single molecule of it left in the medicine the patient is supposed to take.  It’s important to educate the public about such things.  (Magician James Randi has dedicated decades to this effort.)

On the other hand, even a thief can complain if he is wrongly charged as a burglar. (Jackson v. Virginia, 443 U.S. 307 (1979).)  If people are promoting products that they honestly, but mistakenly, believe to be effective, it does seem libelous (although I’m not expert in libel law) to assert that they are deliberately engaging in fraud.

My snap judgment on this case is that the problem lies not so much in the rule as in its application.  I would say the judge erred in determining that the word “bogus” necessarily implies that the author is accusing chiropractors of deliberate fraud.  To me, the word “bogus” implies only that the treatments in question (and the article wasn’t a blanket condemnation of all chiropractic treatment, but only of claims that such treatment can cure certain, specified conditions) were in fact ineffective, whether or not the doctors performing them thought so.  Indeed, in the context of the full paragraph, it seems that the word “bogus” might have meant even less — only that the value of the treatments was unsupported by evidence.

According to the OED, “bogus” means “Counterfeit, spurious, fictitious, sham.”  I don’t see the necessary implication that people promoting bogus things know that they are bogus.  So without reaching the question of whether free speech trumps libel law in this kind of situation I think I would have determined that the critical sentence wasn’t as fraught with meaning as the judge thought.


More Python, Fair Use, and Attribution

So I had my iTunes open and on shuffle yesterday when Monty Python’s “Finland” came on. That was what prompted me to check YouTube for Python offerings. Now the Python chaps have offered their own channel. This video has the usual Python cheek as they talk about YouTube, being ripped off, and the open plea that viewers buy the products after they enjoy them. The clip also touts the troop’s interest in showing the clips as they wanted them to be shown and in high quality.

Fun stuff but here is the problem. The Monty Python Channel has nowhere near the quantity of Python material one can find elsewhere on YouTube. I wonder whether the Python folks chose to leave the other posters alone and offer what they see as the best or most in demand clips in a branded area. Then again, they may have decided to go after the other posters too. And to think this train of thought all started in Finland. Finland? Yes, because I could take a CD, put into MP3 format, and listen to “Finland” as a shuffle tune. But wait. There’s more! The devil you say. No, really.

Check out the clip for Finland below. It is a good quality stream of the music. It is funny and adds a fair amount of creativity. It attributes the visual work and the software to make the work. It also acknowledges Python as the source of the music. In addition, it has embedded ads to allow a viewer to buy the song from iTunes or Amazon. Now given all the new works, Python’s failure to offer a similar video (even if they did the video is a new work albeit one needing the song to make much sense), AND the ads is it fair use? After all YouTube and the poster probably take a cut, as would the seller, but as the Python folks acknowledge they too are giving access to and enjoyment of their clips away for free with the plea that people buy their work. As my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System argues these facts present confusing situations for intellectual property. Sharing, attribution, some control, encouraging purchases, remixing, and more can all be seen in my encounter with Finland which may be my new personal metaphor for IP. Watch the video and tell me what you think, fair use, attribution, new work, infringement, all of the above?


More on Campaign Finance Reform

As Gerard noted earlier, the Court today is hearing arguments in Citizens United v. FEC, the well-publicized case featuring “Hillary: The Movie.” The case is receiving a great deal of public attention, not only because many commentators suspect the Court will overrule Austin v. Michigan Chamber of Commerce, but because the case represents a number of notable firsts—it will be the first case of the 2009 Term, the first oral argument by Elena Kagan as solicitor general, and the first case on the Court for Justice Sonia Sotomayor. Rick Hasen has collected previews of Citizens United here.

I’m not sure that the Court will outright overrule Austin, but I understand why many smart people are predicting that it will.

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Twits, As In The NFL Management Folks and Twitter

Although I despise those who twitter as a general matter (and will thus likely embrace the odd medium any day now), it has moments where it is useful. Short bursts of information updates for natural disasters, airport shut downs, and possible revolutionary mayhem come to mind. Today a less major (depending on how you look at it) issue, gmail going down, has shown that Twitter is again useful but barely. As TechCrunch notes, Twitter may have come close to crashing but held up well as thousands upon thousands of folks expressed frustration and ore about the great Google in the sky going down. And yes some Google folks used the medium to communicate bland statements about how Google was addressing the problem (probably asking some extraordinarily smart people about some obscure math issue and then finding that such knowledge may not help them figure out email service).

Now the NFL has come along and has regulated the use of Twitter as CNET describes:

[The NFL has] modified its social-media policy to limit Twitter and social-networking use by players, coaches, league officials, and even the media. The NFL said that it will let players, coaches, and other team personnel engage in social networking during the season. However, they will be prohibited from using Twitter and from updating profiles on Facebook and other social-networking sites during games. In addition, they will not be allowed to tweet or update social-networking profiles 90 minutes before a game and until post-game interviews are completed. The rules even extend to people “representing” a player or coach on their personal accounts. The NFL didn’t just stop with the league itself, though. The organization also said that media attending games will be prohibited from providing game updates through social networks.

I love the NFL’s reason and think that it is trying to assert that even fans ought not be able to share play-by-play:

“Longstanding policies prohibiting play-by-play descriptions of NFL games in progress apply fully to Twitter and other social media platforms,” the National Football League said in its statement. “Internet sites may not post detailed information that approximates play-by-play during a game. “While a game is in progress, any forms of accounts of the game must be sufficiently time-delayed and limited in amount (e.g., score updates with detail given only in quarterly game updates) so that the accredited organization’s game coverage cannot be used as a substitute for, or otherwise approximate, authorized play-by-play accounts.”

This position seems to suggest that one, players, etc. twittering has something to do with approximating play-by-play when most likely the NFL wants to regulate the way in which all those connected with a team communicate and represent themselves around a game. One might agree that being in the NFL requires following its odd ethics. How those goals havve anything to do with play-by-play recounting is beyond me. If fans start to share exuberant moments in almost real time, as I did via text in the glorious game to of the NBA finals this past season, but instead of using text, fans used Twitter, the NFL might assert that such sharing is not allowed. At least the quoted logic above seems to point to such nonsense. As CNET notes enforcement even at the team level will be quite difficult as the nFL won’t know who posted what. Of course the NFL could require some sort of disclosure of Twitter and other social networking aliases which raises a host of standard objections that readers here can easily figure out while the NFL may not. All of which makes me wonder, should the twits who came up with these positions love Twitter?