Category: First Amendment


Contracts, Confidentiality, and Speech: Connecticut Supreme Court Upholds Agreement Not To Speak

I am sure that free speech, First Amendment gurus/junkies will have more to say about this one, but a recent case out of the Connecticut Supreme Court, Perricone v. Perricone, seems to merit a mention here. As the title of the case indicates, it is a divorce case. Apparently the husband runs a skin care company and millions of dollars are at stake. According to The Connecticut Law Tribune, the New York Post covered the divorce. Nonetheless, during the case Ms. Perricone “signed a confidentiality agreement to prevent pretrial discovery documents from being publicized. In it, she agreed that Perricone’s lucrative skin care business ‘may be severely harmed’ if she made disparaging or defamatory statements about him.” When she wanted to talk to 20/20 about the case, however, Mr. Perricone obtained an injunction by arguing that the confidentiality agreement controlled and that an integration clause in the final settlement did not supersede that agreement. In short, Ms. Perricone was still prevented from talking about the divorce. The court agreed with Mr. Perricone.

As First Amendment matter, the Connecticut Supreme Court held that the agreement was not a prior restraint on speech. I am sure that there are articles about the problem of what is state action in this context and whether one can waive First Amendment rights via contract. The court in this case relied on Cohen v Cowles Media Co. and held: “that a party’s contractual waiver of the first amendment’s prohibition on prior restraints on speech constitutionally may be enforced by the courts even if the contract is not narrowly tailored to advance a compelling state interest.”

As I am not a First Amendment guru and/or junkie, all I can say here is that it seems that there are some continuing problems here. The idea “that a judicial restraining order that enforces an agreement restricting speech between private parties [does not] constitute[] a per se violation of the first amendment’s prohibition on prior restraints on speech” appears correct if non-disclosure agreements and other confidentiality agreements are to work. Indeed, as our own Dan Solove and Neil Richards discuss in Rethinking Speech and Civil Liability:

Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules limit speech. Both of these rules are widely-accepted. However, there is a major problem – in a large range of situations, the rules collide.

Although I am not sure I agree with the paper’s solution, I recommend the paper as a way to think not only about the Perricone case but the problems encountered when free speech and private law intersect.


Responsibility and Duty Meet Social Networking

In light of the events in Iran, many may laud the power of tools such as Twitter and Facebook as they allow information to reach the world. Here in the United States, however, a few stories highlight how social networking tools and blogs run into ideas of fairness, honesty, and even justice. First, the FTC is planning on investigating bloggers who are paid for their posts but who do not disclose their affiliation. The article claims “The common practice of posting a graphical ad or a link to an online retailer — and getting commissions for any sales from it — would be enough to trigger oversight.” Second, the Ninth Circuit has just ruled that a woman’s blog posts about her co-workers and job environment were not protected speech. As such, her demotion was lawful. Third, a recent article makes a strong argument that tweeting while on a jury should not be allowed and jeopardizes the fairness of a trial.

The FTC action seems too aggressive, yet it shows that the idea of blogs having some sort of purity is not always the case. But if it prompts bloggers to be more forthcoming about their affiliations and to develop some best practices (as the article suggests), that could be a good outcome. It also seems to embrace the idea of more information is better which may keep many online happy. Those who think tweeting is some sort of anointed right err. The trial context shows that rather well. As for the blog and speech case, I need to find the decision. The article claims that the court “concluded that [the plaintiff’s] speech was not a ‘public concern’ but rather was ‘racist, sexist, and bordered on vulgar,’ and it characterized her behavior, in part, as ‘salacious’ and ‘mean spirited.'” I leave it to the First Amendment folks to unravel that one, but I wonder whether this case will be appealed to the Supreme Court.

In any event, these three events show that while we can say that tools that enhance free speech are wonderful in the extreme cases such as the situation in Iran, the more subtle cases raise on-going questions about the contours of speech. As always the issues are familiar. Now, however, simply saying keep your hands off the Internet or keep it free is an insufficient guideline. Too many people are online and too much online behavior tracks offline experiences and problems. In other words, although the technologies seem to make the questions different and requiring special treatment, they may only make the old questions and responses more salient.


Barnes v. Yahoo!, CDA Immunity, and Promissory Estoppel

yahooThe Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel.  I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

Barnes contacted Yahoo to get the profiles taken down:

Read More


IP Law and the Presidential Sneakers…

President Obama is likely the first true “celebrity president”, at least the first in our time, in the sense that people see opportunities for making money from his persona and likeness.  Early on in the presidency, his office made some remarks to the extent that they were working on a policy asking people to be respectful of the president and his family in restraining some of these commercial impulses.  Of course, all of this raises the fine line between free speech and personality rights – a topic much debated on the cyberprof listserve in the early days of this presidency.

In this vein, I couldn’t resist posting an ad I came across last night that squarely raises these legal issues.  A company that appears to be in Michigan (although they do not give their postal address, but do require Michigan residents to pay sales tax on purchases from their website) has set up an “Obama shoes” website.  On this website, you can purchase Obama sneakers, backpacks, and basketballs.

The website uses video clips from one of Obama’s speeches and refers to itself as selling merchandise that is inspirational to young folks and that is intended to commemorate Obama’s inauguration. Thus, it obviously intends to juxtapose free speech interests in the inauguration against the commercial use of Obama’s name and likeness.

There are some other interesting little sidenotes about this business venture that suggest the people who set it up sought at least some legal advice before doing so.

1. They used the domain name “” presumably either because they couldn’t get a “better” domain name or because they wanted to avoid claims under the Uniform Domain Name Dispute Resolution Policy. They could argue that even if Obama’s name operates as a TM, they have not used his actual name in the domain name, but have added “shoes” to the end of it so no one will think it’s an authorized Obama website.

2. They include a disclaimer on their webpage to the effect that: “ is a private entity and makes no claim of affiliation or endorsement by President Barack Obama or his campaign for office.”

3. Interestingly, there is also a disclaimer on their FAQ page about the design of the sneakers themselves. “Q. Why does [sic] the shoes look like Nike Air Force Ones (AF1) and the Jordan Brand?
A. These design is [sic] been proven to be commonly preferred by most Adults & Children (black or white).” Now, I personally don’t know anything about sneaker designs, but I assume this is intended as a preemptive strike to ward of claims in trademark, trade dress, and/or design patent with respect to the actual design of the shoes.

So, interesting business model…
Legitimate free speech? Or intellectual property law infringement as far as they eye can see?


The Free Speech Implications of Gene Patents

61px-dna-splitLast week, the ACLU and Cardozo Law School’s Public Patent Foundation (PPF) filed a lawsuit in the S.D.N.Y., challenging the constitutionality and validity of Myriad Genetics’ patents for BRCA1 and BRCA2 gene mutations, which are linked to an increase risk of breast and ovarian cancer.  Plaintiffs, a collective of breast cancer and women’s health groups, individual breast cancer patients, and scientific associations, sued the U.S. Patent and Trademark Office, patent owner Myriad Genetics, and directors of the University of Utah Research Foundation.  The lawsuit asserts that the USPTO granted a patent on the association between mutations conferring an increased risk of cancer and, in turn, patented “an idea, a scientific fact, or a piece of knowledge.”  According to the complaint, patenting genetic sequences violates the First Amendment because it hinders the free flow of information.

Although the controversy over BRCA genes isn’t new, the case is groundbreaking.  As PPF’s Daniel Ravicher explained in this month’s The Cancer Letter, no court case in the U.S. has “ever questioned whether genes can be patented.”   The lawsuit calls into question the constitutionality of “thousands of patents covering human genes.”  Although plaintiffs could have challenged other patents, they chose the BRCA ones because, as Ravicher notes, “these are offensive patents, and they have a large impact.”  ACLU’s science advisor Tania Simoncelli explains that Myriad’s control over the BCRA genes hampers clinical research given its exclusive right to prevent anybody from looking at the genes in research.  The patent also impairs patient access to the tests, which can cost over $3,000.

Do gene patents restrict the exchange of ideas in practice?  Harry Ostrer, NYU School of Medicine’s Director of the Human Genetics Program, explained to The New York Times that his laboratory, and others like it, would focus on unsolved mysteries in BRCA gene variants if they did not face the risk of a patent lawsuit from Myriad.  A 2006 report from the National Research Council, however, found that patented biomedical research “rarely imposes a significant burden” for researchers.  Europe’s experience may be instructive: European law precludes patent holders from exercising patents when their IP is being used for research.  Whatever the European example may teach us about gene patentability’s impact on research, this is surely a case to watch.


Flu and Censorship

It is often said that a famine cannot occur in a country with a free press.  In other words, natural disasters become severe catastrophes only when corrective measures are not taken due to a lack of awareness.  This point was driven home during the recent swine flu outbreak, which was often compared to the dreaded 1918 influenza pandemic.

While people often condemn the modern media for sensationalizing issues such as swine flu, consider the alternative.  In John M. Barry’s excellent book on The Great Influenza, he points out that a major factor in the spread of the 1918 virus was wartime censorship.  Newspapers did not report on the virus until long after it was in the population, and when they did the information was scanty and unhelpful.  Likewise, public officials were slow to inform the public and were reluctant to admit that there was a problem.  Why?  Largely because people were worried about hurting wartime “morale” by talking about bad news.  Some of this involved official censorship and some involved a culture of conformity created by Woodrow Wilson’s Administration.  The result, one could say, was even more harmful to morale — hundreds of thousands of deaths.

While there are costs to media hype, muzzling the press directly or indirectly is usually more costly.


Alexander Meiklejohn, Blog Comment Policies, and Free Speech

I read with interest a couple of weeks ago the discussion on this and other law professor blogs about comments policies – whether to allow comments, whether to moderate them, and when and whether to edit and/or delete them.  The discussion reminded me of Alexander Meiklejohn’s famous conception of free speech as a moderated town meeting, where the diversity and quality of discussion was more important than any individual right to speak.  Meiklejohn argued that “the First Amendment … is not the guardian of unregulated talkativeness” and that the free speech guarantee was “not that everyone shall speak, but that everything worth saying shall be said.”

I think something similar applies to the moderation of blog comments – moderation in the pursuit of good discussion is a healthy thing.   Of course, there is always the danger that thin-skinned or intellectually dishonest moderators might edit in order to come out better in an argument, but this risk is lessened by the fact that there are lots of blogs, and (at least in the case of law blogs) there is a fairly robust set of professional norms and reputational consequences operating in the background.  So I think blog comment policies (like the one on this blog) are perfectly fine (even though I there us some irony in that the blog comment policy having comments turned off!).  But like Meiklejohn’s moderator, as long as the discussion is being moderated constructively, there are real gains from numerous moderated discussions.  In fact, since different discussions can operate under different conditions of moderation, some discussions can be tightly moderated (ie, books and newspapers), others can have little or no moderation, and at the opposite extreme there is the wiki model, where even the statements of others are subject to revision and alteration.  A wide variety of discussions and forms of discussion is, I think, the key to a robust and healthy discourse.

One natural objection to this line of argument is that we’re not really talking about the First Amendment here, since all of the blogs and fora of discussion are private actors.  I’ve increasingly come to believe that the values of free discussion and debate are too important to be left to the First Amendment.  (I make a mild form of this argument here in a recent article).  Newspapers, blogs, email, water-cooler chats and other forms of relatively public and relatively private discussion are the building blocks of a vibrant expressive culture, and if we only think about free expression from the perspective of avoiding government anti-censorship, we are missing (at least) half of the world.  For this reason, I think discussions about issues like blog comment policies are centrally the concern of free expression, and such discussions can benefit immensely from a little First Amendment theory.

Blog comments are turned off from this post (just kidding!)

Are There Special TARP Appropriations for Silencing Bloggers?

The Paulson-Geithner-Summers regime has been remarkably adept at stonewalling people like Elizabeth Warren and otherwise avoiding transparency in the bailout. Now one of its main beneficiaries, Goldman Sachs, appears to be targeting mere commentators. They’ve hired a prestigious law firm to menace a writer who collects facts & commentary about the company at this site. As the Daily Telegraph reports,

Florida-based [Mike] Morgan began a blog entitled “Facts about Goldman Sachs” – the web address for which is – just a few weeks ago. . . . [M]any of the posts relate to other Wall Street firms and issues. According to Chadbourne & Parke’s letter, dated April 8, [Goldman] is rattled because the site “violates several of Goldman Sachs’ intellectual property rights” and also “implies a relationship” with the bank itself.

How could anyone think Goldman itself would be affiliating with or authorizing a site that links it to devilry? Unfortunately, the strange range of results of UDRP decisions on similarly satiric sites mean that this is not an absurd legal argument. And given the apocalyptic consequences of the former investment bank’s “financial engineering,” perhaps a reasonable person would associate it with the “mark of the beast”–or guess that hellfire was just one more profitmaking angle for its partners.

Activity like this helps us understand why the wall of silence about the exact nature of and conditions (or lack thereof) on TARP/TALF funding are so important to Treasury. Imagine if we were able to track exactly how much more executives were being paid because of these funds than if they’d have been paid absent taxpayers’ subventions. What if we could track who was benefiting politically from donations by employees at the propped up firms? What if the firms in general start using their corporate welfare to silence more critics like Mr. Morgan? At what point does this become state action? And might we start asking whether the resistance to nationalization among policy elites might be due to a need to avoid state responsibility for what is essentially state-funded action by maintaining a fig leaf of “private ownership” over the banking system?

Read More


First Amendment Theory Study Aid: Make No Law

Thanks to Dan and everyone else for inviting me back (and then putting up with me as I delayed accepting the invitation). At this time of the year, as the semester ends and the opportunities for faculty writing time increase, student attention turns understandably towards exams. I’ve been teaching the basic First Amendment course at Wash. U. for six years now, and the more I have taught the course, the more interested I have become in the theory and structure of free speech law at the expense of its often technical doctrinal rules. As my course has evolved to reflect these interests, my students understandably have asked me to suggest a study aid that could supplement some of the things I talk about in class (though “gibberish” may be more accurate). For doctrine, I have always suggested the First Amendment section of Erwin Chemerinsky’s excellent one-volume treatise Constitutional Law. But I always struggled to suggest a good, one-volume, accessible primer on the history and theory of the First Amendment. But in rereading Anthony Lewis’ Make No Law (Vintage 1991) for a paper earlier this semester, I think I might have found the answer. Lewis’ book tells the story of the landmark 1964 case of New York Times v. Sullivan, which applied rigorous First Amendment scrutiny to state defamation law, and held the “core meaning” of the First Amendment to be criticism of public officials. What I had forgotten about the book is the masterful and accessible way that Lewis situates the Times case in the evolution of First Amendment thought more broadly, both in its intellectual origins in the work of Milton, Madison, Holmes, and Brandeis, as well as in its effect on First Amendment law more generally. It’s not perfect; Lewis has a tendency at times to be uncritical of the Court’s opinion in Times and to view the result as foreordained. But although it is a bit of a hagiography of the case, its early chapters are the best basic treatment of elementary First Amendment history and theory that I’ve seen. So I thought I’d pass it on, should any First Amendment teachers or students feel the need to brush up on their free speech theory as we approach the business end of the semester.


Former Autoadmit Administrator’s Lawsuit (Sort of) Survives Motion to Dismiss

Mark Randazza comments here on Judge Legrome Davis’s recent denial of a motion to dismiss in Ciolli v. Iravani. (The case, you may recall, is by Anthony Ciolli against the individuals who named him in the original Autoadmit litigation. He claims that the early suit against him was frivolous and tactically motivated.) The judge dismissed certain abuse of process claims, permitted litigation on a state statutory cause of action (the Dragonetti Act) for a wrongful lawsuit, and for the remaining defendants (including Mark Lemley), permitted Ciolli time to conduct jurisdictional discovery. At the same time, Ciolli will be unable (under FRE 408) to rely on statements made during settlement discussions in a separate lawsuit.

Does it strike anyone else that the Autoadmit case is shaping up to be this generation’s A Civil Action? Lots of underlying interest, but ultimately it will be sucked dry by civ pro professors, and turned into a powerpoint presentation on the meaning of Rule 8(b)(6).

For prior coverage of the Autoadmit litigation(s), check out our archives.