Category: First Amendment


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.


Rethinking Free Speech and Civil Liability

freespeech3.jpgWhen does civil liability for speech trigger First Amendment protections?

Recently, Professor Neil Richards and I posted on SSRN our new article exploring this question: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).

Surprising, the issue of when civil liability for speech triggers First Amendment scrutiny is governed by two totally contradictory rules. Since New York Times v. Sullivan, the First Amendment applies to tort liability for speech, including defamation and invasion of privacy.

But in other contexts, the First Amendment does not apply to liability for speech. 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 restrict speech.

In a large range of situations, however, these rules collide. Tort, contract, and property law overlap to a substantial degree, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability.

This conflict is vividly illustrated by the law of confidentiality. We pose the following hypothetical in the article:

Suppose an attorney representing a client in a highly-publicized case discloses the client’s confidential information. The client sues under the breach of confidentiality tort. The attorney claims that she was engaging in free speech and that the First Amendment protects her right of expression. Does the Sullivan or Cohen rule apply? One could argue that the Sullivan rule applies because breach of confidentiality is a tort. On the other hand, breach of confidentiality remedies a contract-like harm. Even if never expressed orally or in writing, an implicit agreement exists between the attorney and client that the attorney will maintain the confidentiality of the client’s information. Perhaps this situation should fall under the Cohen rule because the breach of confidentiality claim more closely resembles an action for promissory estoppel rather than an action for public disclosure of private facts. If this were the case, then the First Amendment would not apply.

In our article, we explore how this problem can be resolved. We survey the way that existing doctrine and theories attempt to address the conflict between the Sullivan and Cohen rules, and we demonstrate why such approaches are lacking. We aim to develop a coherent approach for resolving when the First Amendment applies to civil liability for speech. To find out our solution, take a look at our article and let us know what you think.


Trivializing Women’s Harms: The Story of Cyber Gender Harassment

On March 3, 2009, National Public Radio host Tom Ashbrook hosted a conversation about cyber harassment with David Margolick, Marc Randazza, Anthony Ciolli, and myself. Our discussion focused on the attacks on female law students at AutoAdmit in 2007. Here is a little background: anonymous individuals posted hundreds of sexually explicit, threatening, economically-harming, and allegedly defamatory statements about named female students. For instance, “[female student’s name] is a dumbass slut with huge fake t****s who I want to rape in the ass”; “I will force myself on her and sodomize her repeatedly”; “She deserves to be raped so that her little fantasy world can be shattered by real life.” Posters suggested that they had access to the named women, noting what they wore at the law school gym, providing updates on their whereabouts, and encouraging others to take pictures of the named women and post them on the site. Posters accused named women of having sexually transmitted diseases (e.g., “[Named female student] is a slut but don’t f***k her she has herpes”). They sent emails to former and prospective employers urging the law firms not to hire named women due to their low character. A poster told the community there that he sent an email to a named student’s faculty members with embarassing information about her. Posters hailed the sender as a hero who should be awarded a Congressional medal. Others engaged in a google bombing campaign to ensure the prominence of the offensive threads in searches of the women’s names: “We’re not going to let that bitch have her own blog be the first result from googling her name!”

During the program, former New York Times At the Bar columnist and current editor at Portfolio magazine David Margolick characterized the AutoAdmit attacks as mostly “juvenile, immature, and obnoxious, but that is all they are.” He called them “frivolous frat boy rants.” Margolick said that because the female law students who graduated from the most prestigious law school in the country now have good jobs, they suffered no harm. Mark Randazza agreed with this characterization of the harassment: “these are digital natives; it is their juvenile shtick.”

As my article “Law’s Expressive Value in Combating Cyber Gender Harassment” (forthcoming Michigan Law Review) argues in great detail, far too many people like Margolick and Randazza trivialize the serious harms that women uniquely suffer as a result of such cyber harassment in much the same way that society downplayed or ignored workplace sexual harassment until 1970s. In the face of threats of sexual violence, women not only feel afraid, but also chilled to act on their own desires. Women withdraw from online discussion groups, shut down their blogs, and alter their physical activities to avoid offline harassment connected to the online harassment. For instance, AutoAdmit victims stopped going to the gym to ensure that the anonymous posters could not take a picture of her and post it online. The cyber harassment also harms women’s dignity and sense of equal worth. Online assaults objectify women by reducing them to their body parts. Harassers further humiliate women by reducing them to diseased body parts. This treats women as moral subordinates and undermines their self-respect just as workplace sexual harassment makes women feel like sex objects, not competent workers. Women suffer a performative harm: they may assume male pseudonyms online to avoid cyber harassment. And cyber harassment inflicts distinct harms to women’s emotional and physical well-being. Women fear that online threats of sexual violence will be realized: anonymous threats are all the more frightening as they are shorn of any cues that might alleviate that fear.

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BRIGHT IDEAS: Timothy Zick on Speech Out of Doors

zick-timothy.jpgspeech-out-of-doors.jpgProfessor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.

SOLOVE: What motivated you to write about the issues in your book?

ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.

SOLOVE: What’s the central idea in your book?

ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.

SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?

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When is Reality TV Journalism? The Realhousewives Lawyer Up

winchell.jpgI’m a tremendous fan of no good television. Indeed, I’ve been known to watch Bravo’s The Real Housewives of New York City, to fill the long hours waiting for the new episodes of Top Chef. As it turns out, the show provides an (arguable) hook for an odd legal issue: when does a reality t.v. look like journalism?

Briefly, the show follows several “housewives” as they purport to go about their daily business in New York City. (The “housewives” often have jobs outside the home. And they aren’t all married. And parts of the show are obviously scripted. And everyone is wealthy. Please don’t let the details get in the way of the feel-good trash.) One, Bethenny Frankel, a chef, was dating Jason Colodne, President of Patriarch Partners LLC, a private equity firm specializing in distressed company turnarounds.

Colodne appeared briefly in the show, where he did little except for appear very, very uncomfortable with the idea of being on T.V., and watch his girlfriend emote. The day the show aired, he was fired from his job at Patriarch, which claimed that his appearances violated the firm’s extremely low-profile ethos.

Colodne sued Patriarch, alleging breach of his employment agreement, and sought $55,000,000 in damages. According to the complaint, although Patriach fired Colodne for cause, that cause was pretextual, i.e., unrelated to the television show. The litigation remains mired in discovery in the Southern District.

The interesting aspect, for fans of reality t.v., is a side-suit in California, in which Patriarch sued to enforce a Rule 45 subpoena against Ricochet Television, the producers of the Real Housewives franchise. In the memorandum in support of its subpoena, Patriarch asserted that it needed access to unaired video footage of Colondne, as well as any correspondence in which the producers set out the boundaries of his involvement. It asserted that under New York’s journalist shield law (which it argued applied under California choice-of-law principles) Ricochet had to turn over the information requested.

Ricochet, by contrast, argued that it was entitled to the protection of California’s journalist shield law, which it argued applied, as reality t.v. deals with matter of public concern, and is more like the nightly news than you might think.

Unfortunately for fans of the law of reality t.v., the parties settled before a judge ruled on their motions. But it seemed like a fun hypothetical to share with you anyway.

(Image Source: Gossip hound and reporter Walter Winchell, courtesy of Wikipedia)

“Not a cough in a carload:” Images from the Tobacco Industry’s Campaign to Hide the Hazards of Smoking

camelsdoctors.jpgIn 2005, Stanford’s Humanities Center hosted the conference called “Agnotology: The Cultural Production of Ignorance, which included papers like “Manufacturing Uncertainty: Contested Science and the Protection of the Public’s Health & Environment” and “Deny, Deny, Deny: How to Sow Confusion over Climate Change.” Now Stanford Medical School is hosting a fascinating collection of ignorance-generating advertising entitled “Not a cough in a carload:” Images from the Tobacco Industry’s Campiaign to Hide the Hazards of Smoking.

The collaboration of doctors in the ad campaigns is one of the most surprising aspects of the exhibit:

One technique used by the tobacco industry to reassure a worried public was to incorporate images of physicians in their ads. . . . The images were always of an idealized physician, wise, noble, and caring, who enthusiastically partakes of the smoking habit. Little protest was heard from the medical community . . . perhaps because the images showed the profession in a highly favorable light . . . . This genre of ads regularly appeared in medical journals such as JAMA, an organization which for decades collaborated closely with the industry.

The industry made some health claims for cigarettes; they were deemed better than sweets, and therefore “dentist recommended.” Camel claimed that “you can smoke as many Camels as you want, their costlier tobaccos never jangle your nerves.” And a calmed Rock Hudson appears in an ad claiming that, without Camels, “you may yip like a terrier” with anxiety. It’s fun to compare the 1930s to 1950s ads with the sleek corporate style depicted in the documentary Helvetica.


Drug Cartels And Propaganda

PropagandaNaziJapaneseMonster.JPGWhat if major crime groups started to post banners, drop leaflets, use noise campaigns (cars with speakers broadcasting a message), run Internet videos with gruesome scenes, and other propaganda techniques to question the government? What if the messages stated that a public official, a police officer, a special agent, a whole department, and so on are corrupt? If you think that it could never happen, know that it is happening in Mexico.

As the Dallas Morning News reports the drug war in Mexico is taking on conventional war tactics including propaganda.

Hanging from the church fence in Monterrey was a banner more than a dozen feet high addressed to President Felipe Calderón, accusing the government of favoring some cartel groups over others – a charge the government denies – and appealing for a more balanced approach.

“We urge you to put neutral commanders in these jobs and not allow the narco police to stay,” it read in neat black block letters.

At least two dozen similar banners in 14 cities and six states appeared Monday in public places. The Monterrey church is in front of City Hall.

The article notes that these moves are tactics to counter the government’s message regarding drugs and Mexico’s war on drugs. And although the tactics are being called a disinformation campaign, it seems some of the messages may have truth in them. As the News reported in one case a cartel used propaganda to allege that an official was corrupt and possibly working for another cartel. Shortly after the banners went up, the official was arrested for corruption and protecting a cartel.

Who knows? Perhaps the tactic will catch on here in the U.S. If so, I wonder whether those who favor more information will want to protect the acts or not.

Image: “STOP THIS MONSTER THAT STOPS AT NOTHING. PRODUCE TO THE LIMIT. THIS IS YOUR WAR., 1941 – 1945″ Creator: Office for Emergency Management. Office of War Information. Domestic Operations Branch. Bureau of Special Services. (03/09/1943 – 08/31/1945). Propaganda

Source: WikiCommons


Privacy and the Media

Cover 1 PAM (small).jpgShameless self-plug alert: I’m pleased to announce the publication of my new casebook with co-author Professor Paul M. Schwartz (Berkeley Law School) — PRIVACY AND THE MEDIA. [Amazon page here.]

This short paperback contains key cases and materials focusing on privacy issues related to the media. Topics covered include the privacy torts, free speech, First Amendment, paparazzi, defamation, online gossip and social network websites.

This book is designed for use as a supplemental text in the following courses and seminars: journalism, entertainment law, media law, Torts II (or advanced torts), cyberlaw, First Amendment, free speech, law and technology, privacy law, and information law.

More information about the book is available here. I posted the table of contents online.

To obtain a review copy, please email Diane Warren at Aspen.

I’m also pleased to announce that the new editions of my other casebooks are now in print — INFORMATION PRIVACY LAW (3rd edition) and PRIVACY, INFORMATION, AND TECHNOLOGY (2nd edition). Click here for more information.

An Obscenity Crisis?

Jeffrey Rosen has written thoughtfully about indecency and the rise in foul and degrading language and images. I’m broadly sympathetic with his approach, and this blast from the past suggests the difficulty of doing much after the horse of coarseness is out of the barn:

Before they won the rights to use Spider-Man, the PBS educational show The Electric Company introduced a new hero called Letterman in 1971, in a series of animated cartoons. Letterman – “faster than a rolling O, more powerful than a silent E, able to leap a capital T” – would fly to the scene of a problem a fix it by plucking letters from his sweatshirt, changing bad words into good words. He would change “gun” to “bun”, or “tickle” to “pickle” (revealing, presumably, that “tickle” is a bad word). If he had enough letters, no doubt he could change “superhero” into “what a ridiculous superpower.”

As Chris Fairman notes, the regulation of social meaning can be a very difficult task; a “process of silenc[ing can] enable[] small segments of the population to manipulate our rights under the guise of reflecting a greater community.”