Tagged: free speech

6

Better Stories, Better Laws, Better Culture

I first happened across Julie Cohen’s work around two years ago, when I started researching privacy concerns related to Amazon.com’s e-reading device, Kindle.  Law professor Jessica Littman and free software doyen Richard Stallman had both talked about a “right to read,” but never was this concept placed on so sure a legal footing as it was in Cohen’s essay from 1996, “A Right to Read Anonymously.”  Her piece helped me to understand the illiberal tendencies of Kindle and other leading commercial e-readers, which are (and I’m pleased more people are coming to understand this) data gatherers as much as they are appliances for delivering and consuming texts of various kinds.

Truth be told, while my engagement with Cohen’s “Right to Read Anonymously” essay proved productive for this particular project, it also provoked a broader philosophical crisis in my work.  The move into rights discourse was a major departure — a ticket, if you will, into the world of liberal political and legal theory.  Many there welcomed me with open arms, despite the awkwardness with which I shouldered an unfamiliar brand of baggage trademarked under the name, “Possessive Individualism.”  One good soul did manage to ask about the implications of my venturing forth into a notion of selfhood vested in the concept of private property.  I couldn’t muster much of an answer beyond suggesting, sheepishly, that it was something I needed to work through.

It’s difficult and even problematic to divine back-story based on a single text.  Still, having read Cohen’s latest, Configuring the Networked Self, I suspect that she may have undergone a crisis not unlike my own.  The sixteen years spanning “A Right to Read Anonymously” and Configuring the Networked Self are enormous.  I mean that less in terms of the time frame (during which Cohen was highly productive, let’s be clear) than in terms of the refinement in the thinking.  Between 1996 and 2012 you see the emergence of a confident, postliberal thinker.  This is someone who, confronted with the complexities of everyday life in highly technologized societies, now sees possessive individualism for what it is: a reductive management strategy, one whose conception of society seems more appropriate to describing life on a preschool playground than it does to forms of interaction mediated by the likes of Facebook, Google, Twitter, Apple, and Amazon.

In this Configuring the Networked Self is an extraordinary work of synthesis, drawing together a diverse array of fields and literatures: legal studies in its many guises, especially its critical variants; science and technology studies; human and computer interaction; phenomenology; post-structuralist philosophy; anthropology; American studies; and surely more.  More to the point it’s an unusually generous example of scholarly work, given Cohen’s ability to see in and draw out of this material its very best contributions.

I’m tempted to characterize the book as a work of cultural studies given the central role the categories culture and everyday life play in the text, although I’m not sure Cohen would have chosen that identification herself.  I say this not only because of the book’s serious challenges to liberalism, but also because of the sophisticated way in which Cohen situates the cultural realm.

This is more than just a way of saying she takes culture seriously.  Many legal scholars have taken culture seriously, especially those interested in questions of privacy and intellectual property, which are two of Cohen’s foremost concerns.  What sets Configuring the Networked Self apart from the vast majority of culturally inflected legal scholarship is her unwillingness to take for granted the definition — you might even say, “being” — of the category, culture.  Consider this passage, for example, where she discusses Lawrence Lessig’s pathbreaking book Code and Other Laws of Cyberspace:

The four-part Code framework…cannot take us where we need to go.  An account of regulation emerging from the Newtonian interaction of code, law, market, and norms [i.e., culture] is far too simple regarding both instrumentalities and effects.  The architectures of control now coalescing around issues of copyright and security signal systemic realignments in the ordering of vast sectors of activity both inside and outside markets, in response to asserted needs that are both economic and societal.  (chap. 7, p. 24)

What Cohen is asking us to do here is to see culture not as a domain distinct from the legal, or the technological, or the economic, which is to say, something to be acted upon (regulated) by one or more of these adjacent spheres.  This liberal-instrumental (“Netwonian”) view may have been appropriate in an earlier historical moment, but not today.  Instead, she is urging us to see how these categories are increasingly embedded in one another and how, then, the boundaries separating the one from the other have grown increasingly diffuse and therefore difficult to manage.

The implications of this view are compelling, especially where law and culture are concerned.  The psychologist Abraham Maslow once said, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”  In the old, liberal view, one wielded the law in precisely this way — as a blunt instrument.  Cohen, for her part, still appreciates how the law’s “resolute pragmatism” offers an antidote to despair (chap. 1, p. 20), but her analysis of the “ordinary routines and rhythms of everyday practice” in an around networked culture leads her to a subtler conclusion (chap. 1, p. 21).  She writes: “practice does not need to wait for an official version of culture to lead the way….We need stories that remind people how meaning emerges from the uncontrolled and unexpected — stories that highlight the importance of cultural play and of spaces and contexts within which play occurs” (chap. 10, p. 1).

It’s not enough, then, to regulate with a delicate hand and then “punt to culture,” as one attorney memorably put it an anthropological study of the free software movement.  Instead, Cohen seems to be suggesting that we treat legal discourse itself as a form of storytelling, one akin to poetry, prose, or any number of other types of everyday cultural practice.  Important though they may be, law and jurisprudence are but one means for narrating a society, or for arriving at its self-understandings and range of acceptable behaviors.

Indeed, we’re only as good as the stories we tell ourselves.  This much Jaron Lanier, one of the participants in this week’s symposium, suggested in his recent book, You Are Not a Gadget.  There he showed how the metaphorics of desktops and filing, generative though they may be, have nonetheless limited the imaginativeness of computer interface design.  We deserve computers that are both functionally richer and experientially more robust, he insists, and to achieve that we need to start telling more sophisticated stories about the relationship of digital technologies and the human body.  Lousy stories, in short, make for lousy technologies.

Cohen arrives at an analogous conclusion.  Liberalism, generative though it may be, has nonetheless limited our ability to conceive of the relationships among law, culture, technology, and markets.  They are all in one another and of one another.  And until we can figure out how to narrate that complexity, we’ll be at a loss to know how to live ethically, or at the very least mindfully, in an a densely interconnected and information rich world.  Lousy stories make for lousy laws and ultimately, then, for lousy understandings of culture.

The purposes of Configuring the Networked Self are many, no doubt.  For those of us working in the twilight zone of law, culture, and technology, it is a touchstone for how to navigate postliberal life with greater grasp — intellectually, experientially, and argumentatively.  It is, in other words, an important first chapter in a better story about ordinary life in a high-tech world.

1

One more principle: Nondiscrimination

There is one principle that I would add to the five that Marvin examines in the article:  nondiscrimination.  It seems to me that across public and private, physical and virtual “space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).

This sixth principle is implicit is the other five that Marvin discusses.  It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely.  Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.”  Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content).  There are other examples that Marvin explores in the paper.  In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.

Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment;  I explored those ideas in an essay and I expand on them in the book.   It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.

0

Thoughts on Ammori’s Free Speech Architecture and the Golan decision

Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startlingly fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

0

Ward Churchill and the Future of Public Employee Speech Retaliation Litigation

The Colorado Court of Appeals released its decision in Ward Churchill’s appeal in his First Amendment retaliation case against the University of Colorado last Wednesday (which must be one of the slowest news days of the year). A few years ago, the University terminated Churchill, a tenured professor in the University’s Department of Ethnic Studies, after concluding that he had engaged in several incidents of research misconduct, including evidentiary fabrication, plagiarism, and falsification. These conclusions were reached after several years of internal investigative and adjudicative proceedings to examine allegations of Churchill’s research misconduct. As most everyone is aware, the University did not launch its investigation until after a public outcry arose from controversial statements in an essay that Churchill wrote comparing the victims of the 9/11 terrorist attacks to “little Eichmanns,” in reference to the notorious Nazi war criminal. The perhaps forgotten larger point of the essay was an argument that the 9/11 attacks were provoked by American foreign policy actions.

Churchill sued the University, arguing that both the investigation and the termination violated his free speech rights under the First Amendment because they were undertaken in retaliation for his protected expression on matters of public concern. At trial, after the evidence was submitted, the University moved for a directed verdict on the claim that the investigation (as distinguished from the termination) was an adverse employment action that constituted unconstitutional retaliation, and the trial court agreed. The termination claim went to the jury, which held for Churchill, concluding that the University’s decision to fire him was substantially motivated by his protected speech. The jury also rejected the University’s defense under Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), finding that the University had not shown by a preponderance of the evidence that it would have fired Churchill for reasons other than his speech. The jury then awarded Churchill only $1 for his economic loss.

In an unusual move, the parties had agreed prior to trial that the University would waive its sovereign immunity defense in exchange for Churchill’s agreement that the University could assert any defenses that its officials or employees could have raised and that those defenses could be presented after the jury’s verdict. Pursuant to this agreement, the University submitted post-verdict motions asserting that despite the jury’s ruling, the University was entitled to quasi-judicial immunity for its officials’ actions. Churchill filed a motion asking that he be reinstated to his faculty position based on the jury’s finding of unconstitutional termination. The trial court ruled in favor of the University on both claims and entered judgment for the defense, from which Churchill appealed. Read More

0

On the Colloquy: The Credit Crisis, Refusal-to-Deal, Procreation & the Constitution, and Open Records vs. Death-Related Privacy Rights

NW-Colloquy-Logo.jpg

This summer started off with a three part series from Professor Olufunmilayo B. Arewa looking at the credit crisis and possible changes that would focus on averting future market failures, rather than continuing to create regulations that only address past ones.  Part I of Prof. Arewa’s looks at the failure of risk management within the financial industry.  Part II analyzes the regulatory failures that contributed to the credit crisis as well as potential reforms.  Part III concludes by addressing recent legislation and whether it will actually help solve these very real problems.

Next, Professors Alan Devlin and Michael Jacobs take on an issue at the “heart of a highly divisive, international debate over the proper application of antitrust laws” – what should be done when a dominant firm refuses to share its intellectual property, even at monopoly prices.

Professor Carter Dillard then discussed the circumstances in which it may be morally permissible, and possibly even legally permissible, for a state to intervene and prohibit procreation.

Rounding out the summer was Professor Clay Calvert’s article looking at journalists’ use of open record laws and death-related privacy rights.  Calvert questions whether journalists have a responsibility beyond simply reporting dying words and graphic images.  He concludes that, at the very least, journalists should listen to the impact their reporting has on surviving family members.

1

Austin Police Department Wrestles with Anonymous Critics: Remembering New York Times v. Sullivan

Austin Police Chief Art Acevedo, like Howard Beale in Network, is “mad as hell and is not going to take it anymore.”  Why?  Anonymous online commentators have accused him and other officers of engaging in sexual impropriety and other quid pro quo behavior. According to the Austin American-Statesman, a poster masqueraded as a police commander in making some of the comments.  The department suspects that some of the posters could be department employees.  Acevedo asserted that because such posts erode public trust in the department and wrongly malign it, the department is considering seeking “search warrants or subpoenas from judges to learn the identities of the authors.”  The Texas legislature recently criminalized impersonating another on social network sites without their permission and with the intent to harm, defraud, intimidate, or threaten.

The Police Chief’s discussion moves us into New York Times v. Sullivan territory: the right to criticize government and the conduct of public officials.  Sullivan provides immunity for speech related to the business of governing for all but knowing or reckless falsehoods.  It also teaches us that the freedom to criticize government is “the central meaning of the First Amendment.”  Justice Brennan’s opinion explained that the idea of seditious libel is inconsistent with the First Amendment, echoing Alexander Meklejohn’s notion that the Constitution made the people their own governors.  It underscored that because “erroneous statements” are “inevitable in free debate,” it must be protected if the freedom of expression is to have the “breathing space” it “needs to survive.”

Eroding the public’s trust in the police department, if deserved, is precisely what New York Times v. Sullivan would say citizen-critics of government must do to govern themselves.  We can make meaningful choices about public officials only if whistle blowers and others reveal their “quid pro quo” behavior and other forms of sexual impropriety on the job.  Yet, as the Sullivan Court held, deliberate falsehoods about public officials can be “used as a tool for political ends” and can interfere with the “orderly manner in which economic, social, or political change is to be effected.”  Hence, for the Court, calculated falsehoods “are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  Further complicating matters is the question of how much government can limit its employees’ speech, something that First Amendment scholar Helen Norton has tackled thoughtfully in this Duke Law Journal piece.  Interestingly, civil libertarian groups applauded the hiring of Police Chief Art Acevedo in 2007.  I wonder what the Austin ACLU thinks now.

H/T Slashdot for the story

0

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.

0

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 Law.com 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.