Category: First Amendment


BRIGHT IDEAS: Nunziato on Virtual Freedom: Net Neutrality and Free Speech in the Internet Age

My colleague at George Washington University Law School, Professor Dawn Nunziato, has recently published a provocative book about the First Amendment and the Internet — Virtual Freedom: Net Neutrality and Free Speech in the Internet Age (Stanford University Press 2009).

Her book explains that, contrary to the prevailing understanding of the Internet as a haven for free speech, our communications on the Internet today are subject to censorship and control by a host of private gatekeepers – most notably, by broadband providers.  Under the prevailing negative conception of the First Amendment, these powerful private gatekeepers are not subject to the First Amendment’s mandate prohibiting censorship.  Unlike real space conduits for communication – like telecommunications providers and the postal service – broadband providers are unregulated in their power to censor speech on the Internet.  Dawn argues for an affirmative conception of the First Amendment, under which public and powerful private gatekeepers of Internet communications are subject to the First Amendment’s mandate to ensure the free flow of communications in the digital age.

I had a chance to ask Dawn a few questions about her new book.

SOLOVE: You point out many compelling examples of how ISPs, search engines, and news aggregators are censoring speech.  Can you briefly describe one or two of the most troublesome of your many examples of speech censorship?

NUNZIATO: The examples of censorship that are most troublesome to me involve content or viewpoint discrimination by broadband providers and wireless carriers.  In my view, broadband providers and wireless carriers should be required to serve as neutral conduits for our expression and should not be permitted to censor or block communications.  In one troubling incident, Verizon Wireless initially refused to allow NARAL Pro-Choice America to send text messages to Verizon customers who had signed up to receive such messages.  Verizon relied on its authority to block messages that “may be seen as controversial or unsavory to any of our users.”  In another incident, Comcast refused to deliver politically-charged, time-sensitive emails from an organization that was critical of President Bush’s handling of the War with Iraq.  Examples like these led me to argue that broadband providers and wireless carriers should be prohibited from discriminating against speech on the basis of viewpoint or content.  Just as telecommunications providers and the postal service have long been regulated as “common carriers” and prohibited from engaging in content discrimination, so too should broadband providers be prohibited from discriminating against content in serving as communications conduits.

SOLOVE: You propose what you call “an affirmative conception of the First Amendment.”  What do you mean by that?

NUNZIATO: Let’s contrast two conceptions of the First Amendment.  Under the negative conception, individuals do not enjoy any affirmative right to speak; rather, they only enjoy the right to prevent the government (and only the government) from censoring their speech.  Censorship by other powerful conduits for expression – like broadband or wireless providers – is permissible under this negative conception – even if it means that individuals actually have no meaningful avenues for expressing themselves.  In contrast, under the affirmative conception of the First Amendment, individuals enjoy an affirmative right to speak, free from content and viewpoint discrimination — regardless of whether such discrimination occurs at the hands of the government or other powerful regulators of speech.  The Supreme Court has recognized such an affirmative conception of the First Amendment in several areas, including in the public forum and company town contexts and must carry regulations governing cable TV providers.  But so far, the affirmative conception has not taken root in the Internet context.  This is problematic because virtually all of our speech on the Internet is subject to control by powerful private entities – by broadband providers, email providers, search engines, etc. – and if these gatekeepers of Internet speech are not subject to the First Amendment’s mandate prohibiting censorship, then there is no guarantee that our communication will be free.

SOLOVE: There are some who argue for “net neutrality” – that all ISPs be prohibited from censoring or discriminating against content or applications in any way.   How is what you’re arguing different?

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Introducing Symposium on Deborah Hellman’s “Money Talks, But It Isn’t Speech”

moneyshirt.jpgIt’s an honor to introduce Deborah Hellman and the participants in this cyber-symposium. In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article “Money Talks, But It Isn’t Speech.” Justice Kennedy based the majority opinion in Citizens United on the assumption that spending and speech are interchangeable. But what if this equivalence does not hold? Might a future Court declare Citizens United “not well reasoned” because it “puts us on a course that is sure error” (to borrow Kennedy’s characterizations of the precedents that Citizens United overruled)?

A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to some provisions in the recently passed health reform legislation. But Citizens’ United has proven far less popular than health reform; “the court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats,” and by 80% of the nation as a whole. Though I was ready to give up on campaign finance regulation three years ago, numbers like these convince me that the Court needs to listen to scholarship like Hellman’s now more than ever.

At least some justices have shown remorse for deregulatory dogmatism. Might the Court back down from its current war on campaign regulation? If it is so inclined, will arguments like Hellman’s help it “see the light” and reclaim the egalitarian roots of democratic governance? To consider these and other issues raised by Hellman’s rigorous and illuminating paper, we’ve invited an all-star cast of legal thinkers:

Erwin Chemerinsky
Louis Michael Seidman
Lawrence Solum
Zephyr Teachout

Some of our regular crew of perma-bloggers & guests will likely have some contributions, as well. Whatever you think of campaign finance reform, I’m confident you’ll find both Hellman’s article and our guests’ commentaries to be bold and invigorating contributions to legal theory.

Photo Credit: Rob Lee/Flickr, Money Shirt.


US v. Stevens: The Dog That Didn’t Bark

Danielle asked me to post a few thoughts about yesterday’s Supreme Court decision in U.S. v. Stevens, in which the Court struck down the 1999 federal Depiction of Animal Cruelty Act.  Apologies for the terrible pun in the title, but I think that Stevens is a significant case precisely because it is the proverbial “dog that didn’t bark.”  The case involved the conviction of Robert J. Stevens for 37 months for selling videos of pit bulls fighting each other and hunting wild boar, which was squarely prohibited by the Act.  In its opinion yesterday, the Court held that the Act violated the First Amendment.  In so doing, it reaffirmed that unpleasant, even offensive speech is protected by the First Amendment, and it rejected three seductive, but seductively wrong doctrinal ways that it could have upheld the Act.

First, the Court could have declared that offensive depictions of violent cruelty were unprotected by the First Amendment.  In so doing, it would have created a new category of unprotected speech like libel, obscenity, or child pornography.  Justice Roberts’ opinion makes clear that First Amendment law disfavors the creation of new categories of unprotected speech, and that the Supreme Court essentially lacks the power to freely create new ones.  The Court explained that while it balances the social costs and benefits of speech to determine what is and is not protected (a technique called “categorical balancing”), this process is not a “free-wheeling” power to declare lots of new categories outside the protection of the First Amendment.  This is an important holding – although the Court declared child pornography to be outside the First Amendment in 1982, Stevens makes clear that the child pornography cases are probably an isolated (and limited) special and exceptional case.  The court then struck down the statute on overbreadth grounds because a substantial number of its applications (e.g., videos of hunting) would restrict protected speech.

The second seductively wrong path the court could have taken would have been to expand obscenity law to include a kind of violent obscenity.  This idea would go something like “because we ban obscene depictions of sex that are offensive and valueless, why shouldn’t we also ban offensive and valueless depictions of graphic true violence?”  If you accept the rationale for obscenty being unprotected, this is a serious argument – after all, most people would find depictions of dismemberment more shocking and offensive than depictions of sex.  The Act in Stevens actually suggested such a reading (in a nod to the governing obscenity case of Miller v. California) by excluding  from punishment depictions of animal cruelty that had a “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”  The 1999 Act even had a sexual element, as much of the impetus for banning depictions of animal cruelty seems to have been to prohibit the circulation of “crush films”: sexual fetish videos depicting women in high heels squashing small animals.  But the court rejected the obscenity analogy, again on the grounds that it did not want to expand existing categories of unprotected speech without good reason.  Implicitly, the Court seems to be saying that existing categories of unprotected speech might remain as matters of stare decisis, but the weight of the First Amendment tradition of the past 75 years (Roberts says since 1791, which is a bit of poetic license) means that speech is protected robustly and broadly from government criminal punishment, even if it is offensive.

A third seductively wrong way that the Court might have upheld the Act was by analogy not to obscenity, but child pornography.  Child pornography is not protected by the First Amendment on the ground that the harm to children in the creation of child porn is severe and inextricably linked to its distribution.  Accordingly, criminal punishment of the possession of depictions of child abuse is necessary to “dry up the market” for their creation.  If we take animal cruelty seriously, an almost identical argument would justify the Act in Stevens: animal cruelty is so bad and so often prompted by the demand for crush films or pit bull fighting videos that we should ban possession to dry up the market and stop the creation harm.  But the Court rejected this argument also, suggesting not only that child pornography is a special (and strictly defined) category of First Amendment law, but also that even gratuitous harm to animals is a less important legal interest than harm to human children.

So after Stevens, First Amendment law is pretty much the same as it was before, and the real significance of Stevens seems to be that outside the area of campaign finance law, the Roberts Court sees itself as continuing the tradition of broad protection for speech, even speech that contains offensive or disturbing ideas, images, or information.  I think this is normatively a good development, and one that is well within the mainstream of conventional First Amendment theory.  It also suggests that the Depictions of Animal Cruelty Act was targeted not at animal cruelty per se, but at the niche market of crush films as an offensive idea.  I personally don’t understand why someone would want to watch a crush film (much less find it sexually gratifying), but Congress seems to have been targeting just this weird idea, rather than animal cruelty more generally.  After all, Congress outlawed crush films, but left intensive chicken farming and cattle feedlots legal, which are a much greater source of animal cruelty than crush films or Mr. Stevens’s videos.  And if the Stevens case was about the protection of offensive ideas rather than animal cruelty itself, the Court should be commended for continuing the broad protection of all ideas, even the weird and shocking ones.


The First Amendment Goes to the Prom

In spring a young woman’s fancy turns to love.  Take Constance McMillen for example.  A senior at Itawamba Agricultural High School in north Mississippi, McMillen has been out as a lesbian since the eighth grade. Back in February the high school — for some reason — issued a policy directing that only opposite sex couples could attend the upcoming prom in early April.  McMillen asked for an exception so she could bring her girlfriend, and she also asked permission to wear a tuxedo. The high school and the county school board denied her requests.  McMillen and the girlfriend could attend, but only if each came with a boy as her date, if the girls wore dresses (not a tux, not slacks and a nice top), and if they did not slow dance with each other, which would “push people’s buttons”.  After McMillen got the Mississippi ACLU involved, the school board cancelled the prom altogether, citing  potential “distractions to the educational process”.   The school board expressed the “hope that private citizens [would] organize an event for the juniors and seniors.”

McMillen promptly sued in federal court, seeking an injunction to compel the prom to go forward.  In a decision issued March 23, just one day after the hearing, Senior U.S. District Judge  Glen Davidson (no liberal he — a Reagan appointee) denied her request.    McMillen v. Itawamba County School Dist., 2010 U.S. Dist. LEXIS 27589 (N.D. Miss. 2010).  The opinion contains some interesting holdings.  The judge found that McMillen had a First Amendment interest in attending the  prom with a same-sex partner, and also a First Amendment interest in wearing cross-gender formal attire to the prom.   More on those notions in a moment.  Holding number three — he denied the preliminary injunction, based on his assessment of the familiar fourth factor for injunctive relief, consideration of the public interest. There was no need to reinject the school board into the prom process via court order or to get the court involved in planning and overseeing a prom, he found, because the parents of the high school students represented to him that they were now planning a  “private” prom which all the students in the high school would be invited to attend.  Judge  Davidson’s opinion used the scare quotes  around “private” and the italics for all.  Perhaps he suspected something was up.

With good reason, it turns out.  There were some additional shenanigans.  McMillen couldn’t find out where to buy a ticket to the “private” prom, then when she did, was told she had missed the cutoff time for purchase by a few minutes.   Then the parents announced that the prom they had told the judge about was cancelled altogether.   Eventually, though, McMillen thought that it was finally settled and on April 2 off she went in her tuxedo to her hard-won prom.   Only to find it was a decoy.   McMillen and her date (not the girlfriend, BTW — the girlfriend’s parents wouldn’t let her attend because of the media attention) were just about the only ones there — five other students, two of them with learning disabilities, and the chaperones, who were the high school principal and other school officials.  All the other students had gone to another,  “private”  prom being held at the same time in a location concealed from McMillen.  Some of the high school students later bragged on Facebook about the whole deception, further mocking McMillen.

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The U.S. Supreme Court and Privacy Law

I can’t help but note that there are quite a few cases on the U.S. Supreme Court calendar involving privacy law:

City of Ontario v. Quon

(Fourth Amendment, electronic communications of government employees)

(my thoughts are here)

NASA v. Nelson

(constitutional right to information privacy)

(my thoughts are here and here)

Snyder v. Phelps

(intentional infliction of emotional distress, intrusion upon seclusion)

(my thoughts are here and here)

Sadly, though, only in 1 of the 3 cases above do I think the privacy claim ought to prevail.  Regardless, these are exciting times to be a privacy law scholar.  But it is always an exciting time to be a privacy law scholar — so many interesting things going on.  If you’re not a privacy law scholar, you’re really missing out!

UPDATE: In the comments, Omer Tene points out another privacy case before the Court — Doe v. Reed, the case involving whether the state could compel disclosure of the identities of those supporting Proposition 8 (an anti-gay marriage proposition in California).  I have not studied this case in depth, but from what I know, my preliminary take is that the First Amendment bars the disclosure.


Unmasking a Judge’s Anonymity: Saffold v. Plain Dealer Publishing Co.

In a very interesting case, Saffold v. Plain Dealer Publishing Co., a state court judge (Shirley Strickland Saffold) is suing the Cleveland Plan Dealer for stating that comments posted on the newspaper’s website under the screen name “lawmiss” originated from a computer used by the judge and/or her daughter.  Some of these comments related to cases before Judge Saffold.

As Kashmir Hill writes:

Sydney Saffold, 23, “a one-time law student” claims she made the comments associated with her mom’s account. . . . .

The Cleveland Plain Dealer is putting Saffold on trial. A public records request revealed that some of the articles involved were accessed on Saffold’s court-issued computer at the exact times and dates of three comments posted by Lawmiss.

Judge Saffold denies that she made any of the over 80 comments posted by Lawmiss on the website.

Here’s the Cleveland Plain Dealer story.

In her complaint Judge Saffold raises the following claims: fraud, defamation, tortious interference, breach of contract, promissory estoppel, and invasion of privacy.

Here’s my assessment of some of the claims raised (and not raised) in the complaint.

Invasion of Privacy. Invasion of privacy actually consists of the four Warren and Brandeis privacy torts, and the complaint appears to discuss two of them — public disclosure of private facts and false light.  I don’t know enough about the facts to opine on the false light claim, but the plaintiffs will have a tough time establishing the public disclosure tort since the story is likely to be found newsworthy — of “legitimate concern to the public.”  Whenever a story is newsworthy, plaintiffs cannot sustain an action for public disclosure of private facts.

Breach of Contract. Judge Saffold claims that the newspaper’s disclosure of the identity of “lawmiss” violated its website’s privacy policy which states that “personally identifiable information is protected.”    The difficulty with this claim is that thus far, courts have held that privacy polices don’t constitute contracts — they are mere statements of policy.  See, e.g., Dyer v. Northwest Airlines Corp., 334 F.Supp.2d 1196 (D.N.D. 2004).  The issue, though, hasn’t been widely litigated, so the law here isn’t well-settled.  For an interesting discussion of the issue, see Allyson W. Haynes, Online Privacy Policies: Contracting Away Control Over Personal Information?, 111 Penn. St. L. Rev. 587 (2007).

In this case, there’s more than just a privacy policy — there’s also a user agreement as part of the registration process to create an account on the website.  Courts may see user agreements as more akin to contracts than privacy policies, and the user agreement in this case incorporated the privacy policy.

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Public/Private Divides, Law Clinics, and the Role of Educational Institutions

The New York Times reports that law clinics that take on large corporations are under pressure from private companies. The pressure has resulted in some saying that state dollars should not be used to allow clinics to take on “controversial issues.” Frankly, if educational institutions aren’t supposed to take on controversial issues, they will cease to be places where new ideas from any perspective, left, right, or center, are explored and used to test what our society is doing. Sanitizing schools so that only non-controversial issues are addressed is a mistake.

One proposal before the Maryland legislature would cut state funding to a “clinic if it does not provide details to the legislature about its clients, finances and cases.” I am not certain, but I think that move has some free speech and confidentiality problems. For now I call that question out for others to ponder. The part about the story that I am wondering about is the relationship between funders and schools.

The Times piece indicates that several other state law schools are facing similar scrutiny. If public law schools must cut back on clinics, would private law schools expand their offerings? Private schools might, if there is a demand, is one argument. But what is that demand? Is it the training before entering the profession issue? Given the recent focus on the problems of internships without pay, getting rid of clinics could exacerbate the lack of meaningful ways for students to get some practice experience. If so, then public schools already challenged by lack of funding might face an exodus of students to private schools because those schools simply offer the chance for training. In other words, if public schools have to abandon or reduce their clinic offerings, would certain students who could not afford private schools miss out on an important training opportunity?

Then again, private and public schools in general must continually navigate the tension between pursuing the school’s varied goals and funders’ interests in squashing pursuits that may conflict with funders’ business goals. Any major industry is of course sensitive to any questions about its practices. Public and private schools by now have learned that must try to navigate the receipt of donor funds so that they don’t impede the schools’ research interests. Yet, as I understand it, the smaller the school and/or its endowment, the more difficult it is to avoid strings and pressure from the funder. With all schools struggling to find funding whether because of over-reliance on endowment income or shrinking state money, the ability of funders to exert influence over schools is likely to increase. If so, questions about public interest funding, the role of educational institutions in questioning society’s practices, and the value of having skeptics are more important than ever.


Snyder v. Phelps: Intentional Infliction of Emotional Distress and the First Amendment

In a previous post, I analyzed the intrusion upon seclusion claim in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a case where the Supreme Court recently granted certiorari.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”  A jury found for Snyder, awarding him millions of dollars in damages.  The Fourth Circuit reversed on First Amendment grounds.  Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In this post, I’ll analyze the intentional infliction of emotional distress issues.  The tort provides:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (2nd) of Torts, Sec. 46.

Here are the questions being considered by the Supreme Court:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

I’ll address each in turn.

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

Hustler Magazine, Inc. v. Falwell, 485 U.S. 86 (1988) involved a parody ad consisting of a fake interview between the Reverend Jerry Falwell and his mother, suggesting he had sex with his mother.  He won a jury verdict for intentional infliction of emotional distress.  The Supreme Court held that the First Amendment barred liability unless Falwell (a public figure) proved actual malice:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

In Snyder v. Phelps, the district court had applied the standard in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which provides an exception to the actual malice standard for “private figures.”  But the Fourth Circuit reasoned that Phelps’s speech involved a matter of public concern and wasn’t directed specifically at Snyder.  Whether Snyder was a public or private figure was irrelevant.

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Snyder v. Phelps: Funeral Picketing, the First Amendment, and the Intrusion Upon Seclusion Tort

The Supreme Court had granted certiorari on Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a First Amendment case involving some privacy law issues.   The Supreme Court seems quite interested in privacy law of late, having recently granted cert. in NASA v. Nelson, a case involving the constitutional right to information privacy.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages.  The total damages were reduced by the court to $5 million.

The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”

Snyder prevailed on at least two tort claims of relevance to privacy law: (1) intentional infliction of emotional distress; and (2) intrusion upon seclusion.

The Fourth Circuit reversed on First Amendment grounds.  Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In this post, I’ll focus on the intrusion upon seclusion tort.  I’m not clear on the basis for the intrusion upon seclusion claim. The tort provides:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts 652B.

Generally, intrusion doesn’t involve speech.  It involves invasive actions — snooping, surveillance, trespassing.

Where was the intrusion in this case?

The protest occurred more than 1000 feet away from the funeral and wasn’t seen by the funeral attendees.  It is not clear that there was any disruption of the funeral.

Had the protesters invaded the funeral or disrupted it with noise, then this might constitute an intrusion upon seclusion.  But speaking about an event, even nearby, isn’t an intrusion unless it somehow invades or disrupts privacy.  The facts supplied in Snyder’s cert. petition point out police resources being used to promote safety at the protest and how a nearby school was affected.  But what is notably missing are facts alleging how the protest invaded the funeral itself.

I would like to know precisely what facts establish the intrusion upon seclusion claim.  Without facts to establish an intrusion upon seclusion, this claim should have been dismissed because the elements of the tort weren’t met.  This isn’t a First Amendment issue — it involves whether the requirements of the tort are met.  Based on the facts I’m aware of, I don’t see a cognizable legal claim for intrusion upon seclusion.

Click here for my analysis of the intentional infliction of emotional distress claim.


William Prosser and the Privacy Torts

I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law).  The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010).  It was written as part of a symposium “Prosser’s Privacy at 50.”

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.

For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed.  Here’s the abstract of our paper:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Comments are welcome.