Category: First Amendment


Expunged? What Happens When A Blogger Decides To Remove Posts?

Kneaded_eraser.jpgFollowers of Boing Boing and Web flaps may know about a decision by one of BB’s writers, Xeni Jardin. Apparently, Ms. Jardin had previously posted material about Violet Blue’s (another blogger/Web writer/journalist) work. Then, at some point, Ms. Jardin decided that she did not wish to have that material on BB anymore. So she removed the posts (by the way the removal occurred more than a year ago but has only recently gained attention). And there is the issue. According to the New York Times, BB readers were most upset. Some saw the act as hypocritical. Ms. Blue found the practice “horrifying.” The practice has been given the name “unpublished” as in “being unpublished.” (This term is a misnomer as is discussed later.)

Possibly the most important factor is that BB patrons saw the act as breaking an unspoken understanding and failing to communicate with them. Some including Ms. Blue argue that the practice violates some norms of the Web. Maybe it does. But that alleged norm is probably not so real. And it seems difficult to really claim that one wants BB or others to detail every move or thought they make. Still the sense of outrage is more than palpable. For the law folks, the event raises questions about norms and perhaps who owns the posts.

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Public Service — Cool Job Opening at Creative Commons

ccl-title-d.JPG Looking to work at a place with smart people who encourage you to use your legal skills to support and really grow a long-term project? Well, if you love education and have a law degree, your time may be now. Creative Commons, one of the coolest non-profits out there, has project called ccLearn. ccLearn has a mission:

ccLearn is a division of Creative Commons which is dedicated to realizing the full potential of the Internet to support open learning and open educational resources (OER). Our mission is to minimize barriers to sharing and reuse of educational materials — legal barriers, technical barriers, and social barriers.

They are looking for someone to be ccLearn Counsel and Assistant Director.

NOW there have been several posts about how to think about a law job. So before you flood the contact below, I urge you to read the job description, write a targeted letter, and polish that resume to show how you fit. As with many of these jobs, the candidate may not have all the desired experience. But often you can show that you excel in a couple core areas and have aptitude in others with some chance of getting the job. Also make sure you know as much as you cna about CC–its history, mission, and how you think ccLearn fits CC in general. Someone who says this job looks cool but has no idea about the work and overall nature of the place will not be likely to get the job.

Here is how to apply:

“If interested, please submit:

Cover Letter explaining your relevant interest in ccLearn and in the position.


Three References; please include email and phone number.

Applications and questions can be sent to:

Jennifer Yip

Operations Manager

jennifer [at]

fax: 415.278.9419″

NOTE; I am not the contact in any way, shape, or form. This post is truly a public service announcement.

Hat tip: Mike Carroll (If you like law, technology, music, and copyright, read Mike’s blog. It is excellent, and Mike has always been someone worth listening to and engaging with.)


The New TSA Identification Requirement

passport2.jpgThe TSA, in its never-ending quest to inconvenience us without keeping us safe, has once again changed its rules on identification. According to the old rule, if you didn’t provide ID at the airport, you would be subjected to secondary screening. Now, you may be denied the right to fly entirely. According to the TSA:

Beginning Saturday, June 21, 2008 passengers that willfully refuse to provide identification at security checkpoint will be denied access to the secure area of airports. This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity.

This new procedure will not affect passengers that may have misplaced, lost or otherwise do not have ID but are cooperative with officers. Cooperative passengers without ID may be subjected to additional screening protocols, including enhanced physical screening, enhanced carry-on and/or checked baggage screening, interviews with behavior detection or law enforcement officers and other measures.

What this rule basically seems to be doing is trying to prevent people who have a conscientious objection to presenting ID from being able to fly. For example, John Gilmore refused to present his ID and challenged the TSA identification requirement in federal court. He lost in the 9th Circuit, which held that he could have undergone secondary screening or walked away — he wasn’t forced to present his ID.

I’m one who routinely presents my ID to the TSA officials at the airport. I think that the ID requirement is stupid, but I just want to get to my plane and not be hassled. But others, for reasons of conscience or protest, do not want to present their ID at the airport. This new TSA rule strikes me as problematic from a First Amendment standpoint, since it seems to be designed to target those who don’t present ID for expressive reasons. As such, this new TSA requirement might be a form of viewpoint discrimination.

Although the First Amendment doesn’t restrict the TSA from requiring IDs in order to board an airplane, it does restrict using the ID requirement to penalize people who engage in expressive conduct. Because the TSA requirement seems to be targeted to this kind of expressive conduct (hence the exception for lost or stolen IDs), it may run afoul of the First Amendment.

I haven’t fully analyzed this argument, so I’m just throwing it out there. Do you think that there is a First Amendment problem with the new TSA rule?

Hat tip: Bruce Schneier, who writes: “I don’t think any further proof is needed that the ID requirement has nothing to do with security, and everything to do with control.” Indeed, this rule will allow TSA officials who don’t like you to have even greater power. If you lose your ID, you better hope that the TSA officials believe you, take pity on you, and otherwise think you’re being cooperative. It’s entirely up to them!

Wolin and Greenwald on the Media

The recent Scott McLellan book on his time as a wind-up mechanical press secretary has generated a lot of commentary; perhaps the NYT’s sardonic categorization of Washington tell-alls puts it best:

There are several kinds of Washington memoirs: “I Reveal the Honest Truth,” a kiss-up-and-tell designed to settle scores (nod to honesty optional). “I Was There at the Start,” designed to make the author appear to be the linchpin of history. And, most tedious: “I Knew It Was a Terrible Mistake, but I Didn’t Mention It Until I Got a Book Contract.”

Nevertheless, amidst the choreographed effort to discredit the new McLellan as a zombie, it’s useful to step back and think about the press corps we now have. As many have already noted, the McClatchy newspapers managed to report truths about the buildup to war in Iraq long before more popular and established outfits did. Why was this?

Noted political theorist Sheldon Wolin has recently published Democracy Incorporated at Princeton University Press; he suggests the following:

In an earlier time it was common to liken the free circulation of ideas to competition in a free marketplace: the best ideas, like the superior product, would prevail over inferior competitors. In the highly structured marketplace of ideas managed by media conglomerates, however, sellers rule and buyers adapt to what the same media has pronounced to be “mainstream.” Free circulation of ideas has been replaced by their managed circularity. The self-anointed keepers of the First Amendment flame encourage exegesis and reasonable criticism. Critics who do not wish to be considered as “off-the-wall” attract buyers by internalizing co-optation. Accepting the conventions of criticism entails accepting the context created and enforced by the “house” voices. The result is an essentially monochromatic media. In-house commentators identify the problem and its parameters, creating a box that dissenters struggle vainly to elude. The critic who insists on changing the context is dismissed as irrelevant, extremist, “the Left”—or ignored altogether.

But one question that immediately comes to mind in light of Wolin’s critique is whether voters have the background necessary to assimilate the types of commentary he’d like to see. Consider the latest attack on common assumptions about democracy from George Mason, by Rick Shenkman:

[I]n Just How Stupid Are We? [Mason Prof.] Shenkman cuts through the Gordian knot of contemporary politics with a shatteringly simple claim: the problem lies not in the machinations of elite business leaders and policy-makers, but in the gross ignorance and irrationality of millions of ordinary voters. . . . Only 2 out of 5 voters can name the three branches of the federal government. Only 1 in 7 can find Iraq on a map. . . A Washington Post poll in September 2003 found that 70% of Americans believed Saddam Hussein was responsible for 9/11. A majority continued to believe this even after the 9/11 Commission reported that the claim was groundless.

Though I’ve found much to commend in Bryan Caplan‘s and Ilya Somin’s worries about voter competence, I ultimately feel the George Mason revival of Walter Lippmann’s classic complaints about democracy goes too far. There simply is too much self-serving media refusal to acknowledge basic facts–whether irrefutable facets of science or history, or the types of biases that drive media coverage.

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More Misguided Responses to the Megan Meier Incident

Last week brought the unfortunate news that Lori Drew was indicted for a violation of the Computer Fraud and Abuse Act for her ill-conceived hoax on Megan Meier. According to an MSNBC article:

Andrew DeVore, a former federal prosecutor who co-founded a regional computer crime unit in New York, said Friday the interpretation raises constitutional issues related to speech and due process — in the latter case, because it doesn’t allow for adequate notice of when using an alias online is criminal.

Because corporations would end up setting criminal standards, a completely legal act at one site could be illegal at another, said DeVore, who has no direct involvement in the case.

Now, the Missouri legislature has just passed a law in response to the incident. According to the bill summary:

Currently, the crime of harassment includes communications meant to frighten or disturb another person. Under this act, communications conducted to knowingly frighten, intimidate, or cause emotional distress to another person are included. Harassment includes communications by any means.

Harassment includes knowingly using unwanted expressions that put the person in reasonable apprehension of offensive physical contact or harm or knowingly making unwanted communications with a person.

A person also commits harassment:

1) By knowingly communicating with another person who is, or who purports to be, seventeen years of age or younger and in so doing, and without good cause, recklessly frightens, intimidates, or causes emotional distress to such other person; or

2) By engaging, without good cause, in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person’s response to the act is one of a person of average sensibilities considering the person’s age.

This law is incredibly dumb, and I hope that the governor is wise enough not to sign this uniformed and very poorly crafted piece of legislation. It is yet another misguided response to the Megan Meier incident. As I discussed in my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (Yale 2007), we must be careful not to adopt responses to problematic online communication that are too authoritarian and too chilling of free speech.

Under this law, a person could be guilty of a crime for recklessly frightening, intimidating or causing emotional distress to a person they know is 17 or younger. That’s incredibly broad — most likely overbroad under the First Amendment. It sweeps in a potentially broad range of protected expression under the First Amendment.

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Sartorial Exclusion

April is the criminalest month here at Co-op. Thanks to the regular bloggers for the invitation to visit; I’m pleased to join other criminal law professors as a guest. With so many criminal law specialists on board, perhaps no one will mind if I stray from the criminal law and say something about top hats, ascots, and immigration policy.

Top hat1.JPGSunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

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More than a Metaphor: Frischmann on the Economics of Speech and the First Amendment

First_amendment_area_Muir_Woods.jpgBrett Frischmann has just posted an essay, A Note on the Economics of the First Amendment: Sustaining a Spillover Rich Networked Environment, to SSRN. The essay is part of the University of Chicago Legal Forum in 2008. In the essay, Brett “explores how the First Amendment may operate to sustain a spillover rich networked environment.” In other words, the First Amendment seems to “promote[] externalities and sustain[] an externality-rich environment.” The ideas in the paper touch on whether all externalities must be internalized. It argues that in some cases, such as speech, externalities are desired and that the First Amendment may thus be understood as fostering externalities. So for those interested in a concise presentation of externalities and how to understand them, the piece is more than helpful. In addition, the essay takes that understanding and offers a stimulating idea regarding how speech externalities seem to be the types of externalities that should be internalized, yet are not. The description of why they are not is well worth the time as it points to understanding “the nature of tradeoffs made in the law—in the First Amendment area, but also, in copyright, communications, and other areas that look like broad exceptions to the First Amendment.”

Image: This is sign at one of my favorite places, Muir Woods which is just north of San Francisco. It was taken by Brandt Luke Zorn and may be found at Wikicommons. Creative Commons Attribution ShareAlike 2.0 license


On Standing Up to the RIAA and the First Amendment

music1.jpgThe Recording Industry Association of America (RIAA) has been on a litigation rampage, attempting to identify people it believes are sharing music online, slapping them with a frightening lawsuit, and extracting steep settlements out of them. Universities are frequently being subpoenaed by the RIAA to provide information about students. Whether this strategy of acting like a lunch money bully is working remains to be seen, but finally a university is fighting back. According to Adam Liptak’s essay in the New York Times:

The record industry got a surprise when it subpoenaed the University of Oregon in September, asking it to identify 17 students who had made available songs from Journey, the Cars, Dire Straits, Sting and Madonna on a file-sharing network.

The surprise was not that 20-year-olds listen to Sting. It was that the university fought back.

Represented by the state’s attorney general, Hardy Myers, the university filed a blistering motion to quash the subpoena, accusing the industry of misleading the judge, violating student privacy laws and engaging in questionable investigative practices. . . .

“Certainly it is appropriate for victims of copyright infringement to lawfully pursue statutory remedies,” Mr. Myers wrote last month. “However, that pursuit must be tempered by basic notions of privacy and due process.”

“The larger issue,” Mr. Myers said, “is whether plaintiffs’ investigative and litigation strategies are appropriate.”

Mr. Myers questioned the tactics of MediaSentry, an investigative company hired by the recording industry. He said the company seemed to use data mining techniques to obtain “private, confidential information unrelated to copyright infringement.” He added that it may have violated an Oregon criminal law requiring investigators to be licensed.

I am pleased that the university is fighting back. Liptak seems skeptical about whether the university will be successful in its challenge to the subpoena, but at least it is defending its students rights rather than quickly giving in. Universities should not be so quick to accede to RIAA subpoenas.

One issue involves students’ First Amendment rights. Although the Supreme Court has held that copyright infringement isn’t protected under the First Amendment, Harper & Row, Publs. Inc. v. Nation Enters., 471 U.S. 539 (1985), protected speech may be involved in some cases. According to the Court, copyright has “built-in First Amendment accommodations” via the fair use doctrine. Eldred v. Ashcroft, 537 U.S. 186 (2003). Copyright protection is thus compatible with the First Amendment because of the existence of fair use. What this means is that it is possible that in any given case, some of the uses of the music may be fair use, and that is protected by the First Amendment. Moreover, a person may have made statements online along with engaging in piracy. So, for example, an anonymous person might maintain a website where he posts music files for trading along with the statement that “the RIAA is a big bad bully.” That statement is protected speech, and identifying an anonymous speaker triggers heightened First Amendment standards for the subpoena.

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Who Is Frank Pasquale?

pasquale-frank2.jpgYou know him as Frank Pasquale, as he blogs here occasionally regularly frequently like a madman on steroids, but who is he really?

You might not know that Frank Pasquale recently won a victory in a court case in Texas, In re Does 1-10, — S.W.3d –, 2007 WL 4328204 (Tex. Ct. App., Dec. 12, 2007):

Essent PRMC, L.P. (Hospital) filed suit against ten John Does alleging they had defamed the Hospital and violated other laws by posting comments on an Internet site. The trial court ordered that anonymous contributer John Doe number one be identified by his Internet service provider (ISP). Anonymous John Doe number one (identified in his blog as fac-p and Frank Pasquale) has filed a petition for writ of mandamus asking this Court to order the district court to withdraw its order directing a third party ISP to reveal his identity to the Hospital.

As Frank mentioned earlier, this other Frank Pasquale is his “purloined persona.” Several others commented on the fake Frank and the lawsuit in question. For example, Professor Bill McGeveran wrote:

A Blogger page called “The Paris Site” (cute pun) is a detailed gripe site about the local hospital in Paris, Texas and its parent company, Essent Healthcare. According to this news story in the local Paris paper, Essent has sued the anonymous bloggers behind the site for defamation, alleging that the site suggests the hospital is culpable for Medicare fraud and other wrongdoing. The blogger(s) use various pseudonyms, including, at one point, “Frank Pasquale.” The state court judge in the case has ordered a local ISP to provide the real name and address of the site’s proprietor.

This sort of thing occurs fairly frequently online. On political blogs you often see commenters signing the name of elected officials, usually to parody them by making sarcastic or ridiculous remarks in their name. You also see it all the time on sites like AutoAdmit/XOXOHTH, where part of the style of so-called joke is to use other people’s names (or screen names) and turn them into sock puppets. If obvious enough as humor, those may or may not be misleading, but I have little doubt that this sort of impersonation also happens in many contexts that are outright deceptive.

See also this post by Ruchira Paul.

In the lawsuit, John Doe aka “Frank Pasquale” prevailed, with the court declaring the importance of protecting the First Amendment rights of anonymous speakers. The court adopted the approach in Doe v. Cahill,, 884 A.2d 451 (Del.2005), an approach that I believe is the best. I blogged about Cahill here. According to the court:

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Why the FEC Deadlock?

The WaPo warns that the FEC is about to “shut down.” Though “375 auditors, lawyers and investigators at the FEC will continue to process work already before them, a variety of matters that fall to the commissioners will be placed on hold indefinitely” because of gridlock over President Bush’s effort to appoint Hans Von Spakofsky to a six year term on the commission. Here’s Dahlia Lithwick on Von Spakofsky:

Von Spakovsky’s Senate confirmation hearing last June was noteworthy for many oddities, not the least of which was a letter sent to the rules committee by six former career professionals in the voting rights section of the Justice Department; folks who had worked under both Republican and Democratic administrations for a period that spanned 36 years. The letter urged the committee to reject von Spakovsky on the grounds that while at DoJ, he was one of the architects of a transformation in the voting rights section from its “historic mission to enforce the nation’s civil rights laws without regard to politics, to pursuing an agenda which placed the highest priority on the partisan political goals of the political appointees who supervised the Section.” The authors named him as the “point person for undermining the Civil Rights Division’s mandate to protect voting rights.”

The Lithwick article is worth reading in full, as is the context provided by election law scholar Richard Hasen in Slate stories here and here.

My question is: isn’t there some less controversial nominee than Von Spakofsky? Washington must have a good number of Republican election lawyers who share the president’s priorities and would prove excellent leaders of the Commission.

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