Category: First Amendment


More on Naming and Orwell (and Pigs)

napoleon pig.jpgTim’s interesting recent post on naming made me think about other strange naming laws, and I was reminded more of some of the intricacies of the French system, in which there is an approved government registry of names (no calling your sons Anakin, Monsieur!). In this vein, the Times recently reported on a peculiar extension of this rule to pig-naming: In France, it is apparently illegal to call your pig Napoleon. Such a law would be a very easy case under American free speech jurisprudence, as it is not only a content-based restriction on political speech, but also arguably viewpoint-based. I wonder whether it would also apply to George Orwell’s Animal Farm, in which the principal villain is a Berkshire Boar named Napoleon. Curiously, in the French translation of the novel, he is named Cesar instead, which was apparently a concession to the political controversy that calling a pig “Napoleon” in France would have created, even in a novel.


A Rush To Condemn

Well, they’re at it again. Twenty House Democrats recently introduced a Resolution that “condemns in the strongest possible terms the personal attacks made by the broadcaster Rush Limbaugh impugning the integrity and professionalism of Americans serving in the Armed Forces who have expressed opinions regarding military actions in Iraq.” The resolution was prompted by Limbaugh’s apparent insinuation that soldiers who oppose the Iraq war are “phony soldiers” (the transcript of Limbaugh’s remarks is here). Republicans have prepared their own Resolution “Honoring all Americans serving in the Armed Forces of the United States and commending broadcaster Rush Limbaugh for his relentless efforts to build and maintain troop morale through worldwide radio broadcasts and personal visits to conflict regions.” Democrats apparently see this as their “General Betray Us” moment. Republicans now have yet another opportunity to discuss and debate something other than the war policies of the nation. The House is, it seems, happily pre-occupied. It is little wonder that Congress’s approval rating hovers below 30%.

As I said in an earlier post concerning the controversy sparked by the “General Betray Us” ad placed in the New York Times by, official condemnation of political expression conveyed by private citizens and organizations is simply not an appropriate function of the Congress. (For a similar perspective, see Geoff Stone’s comments regarding the Senate’s condemnation of the ad). In addition to being a waste of legislative resources, these condemnatory resolutions are an unwarranted interference with what ought to be a “robust” and “wide open” marketplace in political expression. In a new mangling of the First Amendment, the Democrats’ resolution purports not only to condemn Limbaugh’s expression but also to “defend” the First Amendment rights of soldiers who criticize the Iraq war. When the dust from this latest pseudo-controversy settles, perhaps Congress ought to spend some time reviewing the text of the First Amendment. It expressly condemns governmental laws abridging freedom of expression; and it offers no “protection” whatever to soldiers (or anyone else) against “personal attacks” by private citizens like Mr. Limbaugh or private organizations like

The real point of this rather silly exercise is to fire up base constituents and score (very) cheap political points. Sure, Congress is a political body — and yes, it can and does weigh in on matters of public concern. Still, I hope that a principled member of Congress will propose a “Joint Resolution Condemning All Condemnatory Resolutions of Political Expression.”


Roberson for the Social Networking Generation?

Picture (Flour of the Family).JPGThe New York Times has reported on an interesting case involving the alteration of a photograph for advertising purposes. According to the article, a girl was photographed by a friend at a church car wash, who uploaded the photograph onto photo-sharing site Flickr. The photo was then downloaded and altered by an Australian mobile phone company, and used for billboard advertising. The girl was portrayed in the ads as an example of the kind of “loser” pen pal that cell phone subscribers could finally “dump.” The girl has sought legal action against the Australian company under a number of theories.

This is a complex case involving a number of legal issues, including creative commons licenses and copyright law, and the application of U.S. law overseas, but I’m most interested in it as a privacy case, because the facts are strikingly similar to the seminal case of Roberson v. Rochester Folding Box Co., 64 N.E. 442 (NY 1902). In Roberson, a company used the photograph of another young woman to advertise its flour under the terrible slogan “flour of the family.” Although the New York Court of Appeals rejected the young woman’s claim that her right to privacy had been violated, the controversy that the case created resulted in the New York legislature creating a statutory right to privacy shortly thereafter. The privacy tort advocated by Samuel Warren and Louis Brandeis in their influential 1890 Harvard Law Review article “The Right to Privacy” was adopted in a variety of related contexts, but this dimension of privacy — the appropriation of likeness for commercial purposes — has been the most numerous and the least controversial. Dan Solove and I talk more about these cases (including Roberson) here, in an article that is about to go to press.

Assuming that some version of the appropriation tort is applicable to the Australian company (and that’s a fairly big assumption, I think), this case looks to be a straightforward application of the appropriation tort. The basic theory of the tort is that it is unreasonable to allow businesses to use photographs of unwilling subjects for advertising or other commercial purposes. The injury remedied is an emotional one – the hurt feelings stemming from the unwanted exposure of one’s likeness to the public, especially where (as here) it is an unflattering likeness. There are two points worth noting, though.

First, the theory of the appropriation tort contains a good helping of gendered notions of separate spheres. I think it’s no coincidence that most of the early successful privacy litigants were female, as courts recognized the cause of action to preserve Victorian and Edwardian notions of women as delicate beings whose sensibilities could be hurt by too much publicity. I think that even if we put archaic notions of separate gender spheres to one side, the appropriation tort is justifiable, but under a theory about what sorts of commercial activities are reasonable and unreasonable.

The second point is the lurking spectre of the First Amendment in all of this. Courts in 1902 (indeed for most of the twentieth century) rejected any idea that there was a First Amendment interest in commercial activity or even advertising. But with the rise of commercial speech doctrine since the 1970s (ironically first as an offshoot from the constitutional right of privacy to protect abortion services advertising), the commercial world of advertising has become enmeshed with the First Amendment. Although there are First Amendment issues raised by the other privacy torts, the appropriation tort in its core case does not threaten First Amendment values. The right of commercial advertising is founded not on notions of individual expression but on the need of consumers to receive potentially valuable information about new products. Misappropriation of pictures does not threaten that interest at all. If we take First Amendment arguments seriously in this context, it will become difficult to see how there is not a First Amendment right to engage in other kinds of commerce – we will have created (as I argued here) a kind of First Amendment Lochner.

In any event, the Flickr photo case shows that there seem to be legs in the old appropriation tort yet, and it will be interesting to watch this case as it develops.


The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

Cover-new.jpgI‘m very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on and Barnes & Noble’s website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.

For quite some time, I’ve been thinking about the issue of how to balance the privacy and free speech issues involved with blogging and social networking sites. In the book, I do my best to propose some solutions, but my primary goal is to spark debate and discussion. I’m aiming to reach as broad an audience as possible and to make the book lively yet educational. I hope I’ve achieved these goals.

I welcome any feedback. Please let me know what you think of the book, as I’d be very interested in your thoughts.


The First Amendment As/And Harassment

My book, The People Out of Doors, chronicles a variety of legal contests arising from restrictions on public expression. These contests raise fundamenal First Amendment issues relating to, among other things, access to public places, the value of public expression, and the policing of public expressive activity. As the case of the tasered Florida student recently demonstrated, the Internet has opened a new window on public protest. Today, both protesters and authorities come to public protests and demonstrations armed with camcorders and other recording devices. In this video, “Reverend Billy” (a/k/a William Talen) is arrested in Union Square Park in Manhattan for conveying (through a megaphone) the words of the First Amendment. Reverend Billy and other protesters shown in the video had gathered in the park to protest proposed legal restrictions on the “Critical Mass” bike rides in Manhattan and other proposed public assembly regulations. As is typical at Critical Mass events, the police were out in force. As shown in the video, police ultimately arrested Reverend Billy. He was charged with two counts of second degree harassment — for allegedly shouting the words of the First Amendment within close range of officers and refusing to cease that activity when ordered. The video is likely to play a central role at the trial, should there ultimately be one.

Putting aside the rather ironic nature of the charges themselves — recitation of the First Amendment itself as harassment — the arrest of Reverend Billy highlights some fundamental First Amendment principles. I have no doubt that this expression was annoying to the officers on the scene. Of course, the fact that the expression was deemed “annoying” or, as the prosecutor described it at a recent hearing, “obnoxious,” is not a valid reason for prohibiting or punishing it. As the Supreme Court said in Terminiello v. Chicago, speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” The speaker was not charged with violating any noice ordinance, or disturbing the peace, or impeding the flow of pedestrian or vehicle traffic, or “improper assembly” (one of the subjects he was in fact protesting); or uttering fighting words, or interfering with police operations. He was charged with “harassment,” which under New York Law requires that the person follow another with intent to annoy, harass, or alarm, or engage in conduct with no legitimate purpose other than to threaten, intimidate, or coerce another. The harassment law seems a very odd fit; among other things, uttering the First Amendment does serve a legitimate purpose — particularly at a protest rally.

There is, however, something more troubling about this arrest than the substance of the charge. I find the comments sections following videos like these edifying, in part because they provide some barometer (however selective) of the public’s tolerance for this sort of expression. Most of the commenters seemed to find Reverend Billy’s expression extremely annoying. Some invoked the general public’s “right” not to hear it. Others commented that regulating such speakers is a waste of scarce police resources. One citizen even opined that Reverend Billy deserved some “jailhouse justice.” On the other hand, a smaller number of commenters supported Reverend Billy’s expressive activity and criticized his arrest. (I would welcome reactions from this site’s readers.) The comments seem to suggest a lack of knowledge of, and respect for, principles such as the one above from Terminiello. My own research (at least anecdotally) suggests little and indeed waning public tolerance for unconventional and “annoying” expression — at least when conveyed in public places. One of the more striking things about this episode, aside from the content of expression, is that the speaker stands accused of harassing not his fellow citizens but law enforcement officers. Should we require that officers at the scene of a protest rally have a thicker skin than, say, the ordinary citizen? Put differently, is the state, as the object of protest, entitled to the same protection from “harassment” as the general public?


The Right to Bear Ar–, Or Is It Access the Internet?

scissors2.JPG CNET reports that the government of Burma a.k.a. Myanmar has apparently cut-off Internet and cell phone access as a way to suppress information about the protests occurring there right now. The claim is that an undersea cable is damaged but given the convenience of such a coincidence that claim is being viewed with suspicion. As many know the information that has come through has been via cell phones, blogs, and text messages. Apparently some have even used FaceBook or e-cards to get messages out.

All of these events make we wonder whether the Bill of Rights would explicitly state that there is a right to free access and distribution of information over the Internet had the American Revolution occurred today. Now before everyone gets into a dither about the nature of the free press and what the First Amendment encompasses, I am suggesting that the situation described above shows the precarious nature of sharing information given the choke-points in place today. In other words, it seems that the benefits of technology also offer a much easier way to clamp down on society. Many have made this observation in the privacy context. Neil Richards’s post about the First Amendment gets to this point as well. We must consider what is at stake in today’s context. Put differently, could it be that the individual’s ability to access and use the Internet is now one of the key ways individuals serve to balance the power of the state?

Cross posted at Madisonian


The ACLU’s “Declaration of First Amendment Rights and Grievances”

ACLU.jpgLast week, at a symposium held at American University, the ACLU unveiled a new report, entitled “Reclaiming Our Rights: Declaration of First Amendment Rights and Grievances.” I’m proud to be able to note that one of my First Amendment students, Wash. U. 3L Sophie Alcorn, was one of the two principal authors of the report. The report lists a series of First Amendment grievances against the current government, and argue that we need to pay particular attention to First Amendment liberties, especially those related to the processes of self-government. The specific grievances, taken from the declaration, are as follows:

To prove this, let facts be submitted to a candid world that the United States


• Ignores its representative mandate by governing in the shadows.

• Maintains a surveillance society through warrantless wiretapping, opening mail, and spying.

• Secretly uses private parties to spy and seeks immunity to cover their illegalities.

• Silences dissent.

• Prevents citizens from petitioning their elected offi cials.

• Profiles individuals and denies freedom of movement based on association.

• Falsifies information to deny liberty.

• Overclassifies, reclassifi es, and impedes the lawful declassifi cation of documents.

• Prevents soldiers from communicating with their families and prosecutes their lawful speech.

• Silences whistle blowers.

• Censors the press, broadcast media, and Internet based on content.

• Prosecutes the press for revealing illegal programs.

• Obstructs oversight by elected officials.

• To preserve secrecy, places secret holds on bipartisan open government legislation.

• Funds religious programs.

• Furthers its ideological agenda by censoring the scientific community.

These are serious and wide-ranging allegations, and I have not studied all of them in detail. Moreover, the report is intended as a political advocacy document rather than a work of scholarship. But as I have argued elsewhere, I think the second and third allegations, that current law permits the government to “[m]aintain a surveillance society through warrantless wiretapping, opening mail, and spying” and “[s]ecretly use private parties to spy” are correct. Surveillance of our intellectual activities, either directly by the government or with the assistance of private sector intermediaries like ISPs and search engine companies is deeply corrosive to the intellectual liberty upon which a free and self-governing society must rest.

More generally, this is a very important document that is worth reading even if one disagrees with its allegations or conclusions. (If you do agree with the allegations, it might make for very depressing reading). In a time when the mantra of security is raised as a justification for surveillance and other inroads into intellectual and political liberties, it’s essential that we talk about what those liberties are, why they are important, and to what extent (if at all) the needs of security justify their abridgement or restriction.

Cell Phone Gag Rule

gag.jpgThere is big news on the net neutrality front today: Verizon Wireless has decided to block one group’s political speech from its text-message program:

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:

With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.

This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless’s new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.

Read More


Freedom to Teach?

academe.jpgThe American Association of University Professors recently issued a white paper on academic freedom in the classroom. The report is a statement of principles by its Committee A on Academic Freedom and Tenure, which includes law professors Matthew Finkin (Illinois) and Robert Post (Yale), in response to a series of calls (including legislative proposals) for “balance” and neutrality of viewpoint in the classroom:

[C]ontemporary critics of higher education argue that instructors must refrain from stating strong opinions, for doing so would both lack balance and constitute indoctrination; that instructors must not advance propositions germane to a subject if some students with deeply held religious or political beliefs might be offended, for

doing so would create a hostile learning environment;and that instructors must abjure allusions to persons or

events that advance discussion but that some students might fail to perceive to be clearly connected to a course

description, for doing so would inject irrelevant material into the classroom. Such restrictions would excise “freedom

in the classroom” from the 1940 Statement; they would conduce not to learning but to intellectual sterility.

The response of the AAUP can be summed up in their own words as follows:

Close analysis of recent charges of classroom abuse demonstrates that these criticisms

do not seek to vindicate professional standards, because they proceed on premises that are inconsistent with

the mission and practice of higher education. Calls for the regulation of higher education are

almost invariably appeals to the coercive power of the state. In recent attempts to pass legislation to monitor

and constrain faculty in the classroom lies a deep menace, which the architects of the American concept

of academic freedom properly conceived as a potential “tyranny of public opinion.” American universities

have been subject to this tyranny in the past. Walter Gellhorn observed in 1952 that the drive to root out

communists was based on the assumption that “they will abuse their academic privileges by seeking to

indoctrinate students.” Gellhorn noted that when the New York legislature declared in 1949 that communists

ought not be permitted to teach because they disseminate propaganda, the legislature added that the

propaganda “was frequently ‘sufficiently subtle to escape detection in the classroom.’” Modern critics of the university seek to impose on university classrooms mandatory and ill-conceived

standards of “balance,” “diversity,” and “respect.” We ought to learn from history that the vitality of

institutions of higher learning has been damaged far more by efforts to correct abuses of freedom than by

those alleged abuses. We ought to learn from history that education cannot possibly thrive in an

atmosphere of state-encouraged suspicion and surveillance.

The report (which is available in the latest issue of Academe) makes fascinating reading for anyone interested in ideas of academic freedom in the classroom and teaching more generally. In my free speech and privacy classes at Wash. U., we inevitably encounter controversial issues, both about the jurisprudence and the political struggles that guide it, including terrorism, obscenity, criticism of the government, and older issues that once convulsed the nation like Vietnam and the Red Scares. I rarely take stands (at least intentionally) on these questions, but mostly because I believe that the nature of the subject demands a certain agnosticism from me given the commitments to the free exchange of ideas that is at issue in the jurisprudence. In this regard, recognizing my own ability as instructor to affect the marketplace of ideas in my classroom, I take the invitation that Tim has just given to the Senate. Sometimes I will take positions (whether I agree with them or not) in order to advance the discussion, but I try not to get too ideological, even though I have strong personal and scholarly views that are inevitable given the amount of time I spend thinking about questions of free speech and privacy in a democratic society.

But I do think it’s both inevitable and appropriate that faculty will bring their opinions as well as their knowledge into the classroom (even with the big assumption that we can separate the two). Scholars (especially those in the humanities and law schools) spend much of each day thinking and writing and developing normative or interpretive arguments. These arguments are put before the public in their writing and in the media, and there is no reason that they should not be presented to their students. Indeed, to do otherwise would be to deprive the students of the very thing they are paying a small fortune to receive – to be exposed to intelligent people with (hopefully) original thoughts about important topics. Of course, faculty must be careful not to present their ideas as truth – if they are making an argument, they must provide sufficient opportunities to be disagreed with (especially in law schools, where this exchange can serve valuable goals at the heart of the pedagogical project). Faculty may cross the line here, but I agree with the AAUP report that when this happens, internal mechanisms of professional discipline, not external regulation, is the appropriate response.

In any event, the report is a thoughtful and thought-provoking take on some critical and timely issues, and even if you don’t agree with me (or them), it’s well worth reading and thinking about.


War and the Politics of Free Speech

A few days ago, the United States Senate handily (75-25) passed a “sense of the Senate” resolution condemning a political advertisement placed in the New York Times by the anti-war group Many conservatives, most prominently presidential candidate Rudy Giuliani, complained both about the substance of the ad and the process by which it came to be in the Times — the allegedly “discounted” price and the timing (the ad ran the day of General Petraeus’s congressional testimony). The ad referred to General Patraeus as “General Betray Us” and accused him of “cooking the books” for the White House to justify the much-debated surge in Iraq. After reviewing the General’s credentials, the Senate resolution calls on the Senate to “strongly condemn all personal attacks” against General Petraeus and other members of the armed services and to “specifically repudiate the unwarranted personal attack on General Petraeus by the liberal activist group” (A propsoal sponsored by Senator Barbara Boxer (D-California), which failed (51-46), more broadly called on the Senate “to strongly condemn all attacks on the honor, integrity and patriotism” of those in the armed services.)

As Sandy Levinson has observed, the ad was extraordinarily “dumb politics.” It allowed supporters of the war in Iraq to once again shift the debate from events on the ground in that country to partisan domestic politics in this one. As I noted in an earlier post, there are substantial dangers attending the cozy relationship between many prominent Democrats and anti-war advocacy groups like In the face of what was indeed a sharp attack on General Petraeus, Republicans once again rallied behind the “support the troops” mantra. President Bush himself took the unusual step of condemning the ad, suggesting that members of the Democratic Party were “more afraid of irritating [] than they are of irriating the United States military.” Under the circumstances, many Democrats apparently felt they had no choice but to publicly denounce the ad and vote for the resolution.

It is a pity Senators of both parties did not reject and renounce this politicization of free speech. Although the Senate’s finger-wagging resolution carries no penalties (and thus cannot be challenged as a violation of the First Amendment), it is shamefully antithetical to the spirit and values of the First Amendment. In New York Times v. Sullivan, the Supreme Court emphasized our “profound national commitment to the principle that debate on public issues should be uninhibted, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” In times of war, when lives are literally at stake, one can reasonably expect less inhibition on the part of speakers. Of course, senators possess individual expressive rights. But it is inappropriate for the United States Senate to institutionally condemn expression regarding matters of public concern, or to single out a political advocacy group for special rebuke. In our marketplace of ideas, the people ought to decide for themselves whether the criticism of General Petraeus constituted an unwarranted “personal attack” or a warranted criticism. The Senate’s condemnation distorts the marketplace and threatens to chill others from presenting sharp attacks against favored subjects. Although it focuses on and its advertisement, the Senate resolution seems to suggest that military leaders and members of the armed services are now beyond “sharp” and “caustic” criticism. Is the president, as Commander-in-Chief of the armed forces, entitled to the same protection from “personal attacks”? The business of the Senate is to debate and enact laws for the benefit of the country. Surely that distinguished body has more pressing business than the politicization of expression.