Category: First Amendment

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NSA, Its Seal, and the First Amendment

Speech, Citizenry, and the Market in real life. It seems the NSA has invoked a public law to prevent someone from making parody NSA T-shirts. The shirt displayed the seal and the words “THE NSA, The only part of the government that actually listens.” The NSA was not amused. The first site to offer the shirts stopped offering the shirts after a letter from the NSA (apparently they were able to talk about that one for now). The NSA wrote to one online outlet, “The NSA seal is protected by Public Law 86-36, which states that it is not permitted for “…any person to use the initials ‘NSA,’ the words ‘National Security Agency’ and the NSA seal without first acquiring written permission from the Director of NSA.” The company, Liberty Maniacs, has sued under the First Amendment. That case may be near settlement.

In the Liberty Maniacs case, the obvious parody should suffice. If not, I suggest that the NSA is public figure entity and so mocking it by using its name and logo (just like we use a person’s name and face) should be protected under that reasoning as well. That said, I would think that under Alvarez, most special laws regarding seals, the Olympics, and so on will need some extra explanation to stay in place.

The video below is from Cafe Press which also offers the shirts and mugs.

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Exciting news for the Center on Democracy & Technology: Nuala O’Connor Appointed President and CEO

Brilliant news: CDT’s Board of Directors just announced that Nuala O’Connor has been named President & CEO, effective January 21, 2014. O’Connor will succeed Leslie Harris, who is stepping down after leading CDT for nearly nine years. As the privacy community knows well, Harris provided extraordinary leadership: vision, enthusiasm, and commitment. O’Connor will build on that tradition in spades. She is the perfect leader for CDT.

From CDT’s announcement:

“Nuala drove an ambitious civil liberties agenda as the first Chief Privacy Officer at the Department of Homeland Security in a post 9-11 world. She fought for and implemented policies to protect the human rights of U.S. and global citizens in a climate of overreaching surveillance efforts. The Board is thrilled to have Nuala at the helm as CDT expands on 20 years of Internet policy work advancing civil liberties and human rights across the globe,” said Deirdre Mulligan, CDT Board Chair.

O’Connor is an internationally recognized expert in technology policy, particularly in the areas of privacy and information governance. O’Connor comes to CDT from Amazon.com, where she served both as Vice President of Compliance & Customer Trust and as Associate General Counsel for Privacy & Data Protection. Previously she served as the first Chief Privacy Officer at the U.S. Department of Homeland Security (DHS). At DHS, O’Connor was responsible for groundbreaking policy creation and implementation on the use of personal information in national security and law enforcement.

“I am honored to join the superb team at the Center for Democracy & Technology. CDT is at the forefront of advocating for civil liberties in the digital world,” said O’Connor. “There has never been a more important time in the fight to keep the Internet open, innovative and free. From government surveillance to data-driven algorithms to the Internet of things, challenges abound. I am committed to continuing to grow CDT’s global influence and impact as a voice for the open Internet and for the rights of its users.”

“Nuala is a brilliant choice to lead CDT. She is a passionate advocate for civil liberties, highly expert about the emerging global challenges and fully committed to CDT’s mission. She is a bold leader who will guide CDT into its next chapter. I have had the honor of working with CDT’s talented and thoughtful team for almost nine years. I am confident that they will thrive with Nuala at the helm,” said Leslie Harris.

Beyond her experience at Amazon and DHS, O’Connor has also worked in consumer privacy at General Electric, and as Chief Counsel for Technology at the U.S. Department of Commerce. She also created the privacy compliance department at DoubleClick and practiced law at Sidley Austin, Venable, and Hudson Cook.

O’Connor, who is originally from Belfast, Northern Ireland, holds an A.B. from Princeton University, an M.Ed. from Harvard University, and a J.D. from Georgetown University Law Center. She currently serves on numerous nonprofit boards, and is the recipient of a number of national awards, including the IAPP Vanguard Award, the Executive Women’s Forum’s Woman of Influence award, and was named to the Federal 100, but is most proud of having been named “Geek of the Week” by the Minority Media & Telecom Council in May 2013. She lives in the Washington, D.C. area with her three school-aged children.

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Photographic License to Discriminate?

The loosening of restrictions on same-sex marriage over the last decade has been accompanied by the refusal of persons opposed to such unions to participate in them in any way. Naturally, the law requires no one to show up and cheer at a same-sex wedding or commitment ceremony, but what if a county clerk did not want to issue marriage licenses to same-sex couples or a health care worker refused to perform the necessary blood tests? Obviously, some objections to marriage will intrude on a couple’s ability to marry more than others.

800px-Photographer

The key to understanding which objections are legal and which are not does not only lie in guarantees of religious freedom. Everyone is free to harbor religious or philosophical opposition to same-gender couples and to shout that message from the rooftops, as long as they do not create a nuisance in doing so. It is in jurisdictions that have enacted prohibitions on sexual orientation discrimination in public accommodations where those who peddle their wares in the public marketplace are not allowed to reject customers for being gay. In such jurisdictions, religious opponents to same-sex unions have every right to voice their objections in church and to teach their children that it is wrong to be gay. If these opponents open up shop in the local marketplace, however, they are required to leave their biases at home.

New Mexico has such a law. Elaine Huguenin is a talented photographer who makes a good living recording important moments in the lives of the people of Albuquerque. In 2006 she decided to refuse the request of a lesbian couple that she be the photographer at their commitment ceremony. When sued, Huguenin, obviously aware that her religious freedom argument would have no traction under decades-old Supreme Court precedent, came up with the novel argument that if she were required to photograph the ceremony, she would be forced to celebrate it and to express that she is accepting of same-sex marriage. This is a story that Huguenin did not want to tell.

Huguenin’s argument sounds as if it was lifted from the Supreme Court’s Boy Scouts of America v. Dale decision. But since her “expressive policy” is merely to make money with her camera, she gave the argument a twist. She insisted that artists, since they create protected speech, must be free to choose what customers they will serve and will not.

While I have no reason to doubt that Huguenin is an artist of the highest caliber with a special flair for photographic storytelling, I fail to see how her status elevates her above someone who merely hires herself out to record an event. I am certain there have been many occasions when the contract between Huguenin and her customers has constrained her to adhere to provisions about how and when, to what degree and in what format they want their stories told. But the question here is not whether Huguenin can refuse to sign a contract whose provisions offend her artistic sensibilities. The question is whether she can refuse her services because the customers are gay. In Huguenin’s case, at least, an argument for carving out an exception in the law for artists is not likely to carry the day.

Furthermore, the law in this case simply does not force Huguenin to make art in a way not of her choosing or to utter a statement that is against her religion. First, it is a given that Huguenin will tell the story of an event in her own way. She is, after all, the one behind the camera. Second, as someone hired to take pictures at the event, she participates primarily as an observer who has some interaction with the major players when she stages certain photographs. More important than the fact that she is not truly there to celebrate is the fact that her hired presence in no way implies an expression that she believes in the goodness of the proceedings.

If Huguenin wants to turn a profit in the economic environment the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.

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BOOK REVIEW: Collins’s Nuanced Absolutism: Floyd Abrams and the First Amendment

floyd abrams book ron collinsCollins, Ronald K.L.  Nuanced Absolutism: Floyd Abrams & the First Amendment.  Durham, N.C.: Carolina Academic Press, 2013.

U.S. First Amendment attorney Floyd Abrams has influenced the evolution of American free speech jurisprudence over the past 40-plus years.  Arguably more than any others.  Despite his prominence, there have been few book-length publications about Abrams and his approach to First Amendment law, while he has been the subject of numerous news and trade journal articles as “Mr. First Amendment.”

Nuanced Absolutism: Floyd Abrams & the First Amendment is filling the gap in the literature on Abrams. This 12-chapter book is an intellectual biography of Abrams by Ronald Collins, the Harold S. Shefelman scholar at the University of Washington School of Law and a fellow at the First Amendment Center.  The book looks at Abrams’s thinking and speaking about the First Amendment.

Collins focuses on Abrams’s views on freedom of speech and the press as a First Amendment right.  So, freedom of religion, freedom of assembly, or the right to petition to the government is not discussed.  Noting that lawmakers and judges are not necessarily the only key players in law, Collins emphasizes the oft-overlooked role of lawyers in shaping the law.

Abrams’s approach to freedom of expression under the First Amendment is what Collins calls “nuanced absolutism.”  Nuanced absolutism is qualified absolutism in the categorical balancing: “[O]ur law of free speech can and ought to be absolute in certain circumstances” (30).

One example of Abrams’s nuanced absolutism is showcased when he argues: “[T]ruthful speech about public officials in the course of their public duties should never give rise to criminal liability” (22).  Nuanced absolutism is also exemplified by the First Amendment ban on prior restraints on news media, on compelled speech, and in “significantly limit[ing]” the government sanctions against unprotected speech (91).

Applying Abrams’s nuanced absolutism, Collins examines a number of earlier U.S. Supreme Court cases, including Schenck v. United States (1919), Whitney v. California (Brandeis, J., concurring, 1927); Brandenburg v. Ohio (1969), and New York Times v. United States (1971).  Not surprisingly, Abrams rejects the clear-and-present-danger test of Schenck as incompatible with nuanced absolutism because it is “loose and unpredictable.”  More recent Supreme Court cases, such as United States v. Stevens (2010), Snyder v. Phelps (2010), Citizens United v. Federal Elections Commission (2010), and United States v. Alvarez (2012), are thoughtfully analyzed against Abrams’s theory.

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Big Brother’s Lawyers

Free speech zone – It is shorthand for holding two contradictory opinions while believing in both of them. Incongruous logic, to be sure. And yet, that is the mindset that too many public college administrators impose on students in an attempt to make them believe that the best way to honor the First Amendment is by abridging it. They do so by restricting student speech to tiny “free speech zones” and by strictly controlling access thereto.

Such Orwellian doublethink is dystopian in principle and destructive in practice. Worse still, though many such policies are patently unconstitutional, an unfortunate number of university lawyers defend them until legally contested or fought out in court, whereupon taxpayers flip a hefty bill for their unconstitutional actions. Nonetheless, no one holds these public servants to account for their transgressions.

Cases in point: As late as 2012, the University of Cincinnati’s policy limited all “demonstrations, pickets, and rallies” to a “Free Speech Area” comprising just 0.1% of the university’s 137-acre West Campus. Much the same logic informed a Texas Tech University rule that once confined First Amendment activities to a single 20 foot-diameter gazebo – this for a campus of 28,000 students! Both policies were unconstitutional, but they were abandoned only after lawyers representing students took action.

Such examples are hardly past tense. Take Southeastern Louisiana University’s policy. It limits student speech to two hours every seven days and designates three areas of campus for assembly. The policy likewise requires a full week’s advance notice for assemblies and obliges all applicants to provide their birth date and Social Security number. Finally, consider the free speech policy of Modesto Junior College (MJC) in California. It limits speakers to one “little cement area.”

Against that backdrop, MJC’s Orwellian rules are being tested in a federal court. The case involves Robert Van Tuinen, a MJC student. Mr. Van Tuinen started to distribute copies of the Constitution on Constitution Day. But his non-obstructive civic-minded acts were deemed unlawful. Why? Because they were outside the ordained little portion of the school’s East Campus. Moreover, he had not complied with the school’s strict five-day prior application policy. As stated in the complaint contesting the rule, the MJC policy also “limits all individuals and student groups to using the free speech zone for no more than eight hours each semester. Given the size of the student body, the free speech ‘allowance’ amounts to scarcely more than two-and-half minutes per student, per semester.” Mind you, these rules were designed or approved or enforced and/or defended by lawyers acting on behalf of the College.

Though the College may regulate the “time, place, and manner” of campus speech, its policies are well beyond the pale of that tenet of law. The MJC policy unduly abridges student rights by confining them to tiny areas; it likewise constitutes an impermissible prior restraint; as applied, the policy is also unconstitutionally overbroad in regulating time, place, and manner; and finally, the rule is unduly vague insofar as it has no meaningful criteria to determine whose “free speech zone” applications are granted or denied.

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Global Legal Pluralism

I remember back in 2003, Anupam Chander and I both took part in a cyberlaw retreat on Cape Cod sponsored by Harvard Law School’s Berkman Center for Internet and Society.  Most of the professors assembled at the retreat were concerned with how to “solve” the problems that local regulation of internet activity might pose.  In contrast, Anupam Chander and I repeatedly made the case that this was not a problem to be solved, but an inevitable expression of cultural diversity.  Further, we argued that there might even be some benefits that could accrue from such legal pluralism, properly managed.

We have been fellow travellers ever since, and I am very pleased to see Anupam’s project finally come to fruition in this lively and agile book.  As befits a broadly synthetic work about the electronic silk road, Anupam stiches together an impressive array of examples that convincingly demonstrate the importance of the global trade in services.  In addition, turning from the descriptive to the normative, he lays out principles that might undergird a governance regime for this cross-border activity that leaves open the possibility for multiple competing normative voices.

Anupam’s approach is one that is consonant with the conception of global legal pluralism I have been pursuing for over a decade, and so I have few objections to his account.  Quite rightly, Anupam steers a useful middle ground on issues of so-called extraterritorial regulation.  He neither says that local regulation should always trump all other possible normative authorities (as sovereigntist territorialists often do), nor does he call for a full universal harmonization scheme.  Instead, he adopts a pithy aphorism: “harmonize where possible and glocalize where necessary.”  The key here is that a decisionmaker in a cross-border dispute should always ask whether it is possible to defer to another legal regime in the interests of a harmonious interlocking transnational legal system.  Even asking such a question can, over time, inculcate habits of mind that cause decision-makers to be restrained about reflexively applying their own law in all circumstances.  At the same time, Anupam recognizes that there will be instances when such deference is impossible and local populations will feel the need to impose local norms on cross-border activity.  In such cases, he asks global services companies to “glocalize”: customize their global services product to conform to the law of various localities.

My guess is that such an approach will be workable in many cases, and so Anupam’s argument is an advance.  It is also usefully pluralist in that it leaves space for multiple communities—local international, and transnational—to assert normative authority.  This is in marked contrast to an approach that seeks to elide normative difference and tries to impose a single authoritative set of norms.  Thus, I fully embrace his project.

I do have two quibbles, however.

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Opportunities and Roadblocks Along the Electronic Silk Road

977574_288606077943048_524618202_oLast week, Foreign Affairs posted a note about my book, The Electronic Silk Road, on its Facebook page. In the comments, some clever wag asked, “Didn’t the FBI shut this down a few weeks ago?” In other venues as well, as I have shared portions of my book across the web, individuals across the world have written back, sometimes applauding and at other times challenging my claims. My writing itself has journed across the world–when I adapted part of a chapter as “How Censorship Hurts Chinese Internet Companies” for The Atlantic, the China Daily republished it. The Financial Times published its review of the book in both English and Chinese.

International trade was involved in even these posts. Much of this activity involved websites—from Facebook, to The Atlantic, and the Financial Times, each of them earning revenue in part from cross-border advertising (even the government-owned China Daily is apparently under pressure to increase advertising) . In the second quarter of 2013, for example, Facebook earned the majority of its revenues outside the United States–$995 million out of a total of $1,813 million, or 55 percent of revenues.

But this trade also brought communication—with ideas and critiques circulated around the world.  The old silk roads similarly were passages not only for goods, but knowledge. They helped shape our world, not only materially, but spiritually, just as the mix of commerce and communication on the Electronic Silk Road will reshape the world to come.

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New Jersey Crosses the Finish Line to Marriage Equality – Maybe

Same-sex marriage became legal in New Jersey at 12:01 am on Monday, October 21. Wedding ceremonies are everywhere. The process may not be over, however; there are tactical decisions yet to be made as to how best to solidify and clarify the win.

It was a roundabout victory, achieved via a Superior Court decision last month, in which Judge Mary Jacobson held that civil union did not satisfy a state constitutional mandate of equal protection established in Lewis v. Harris (N.J. 2006). There followed, on Friday, October 18, a unanimous state Supreme Court ruling denying a motion for stay of Judge Jacobson’s order. So it’s legal for same-sex couples to marry here, but there is no a ruling on the merits by the state Supreme Court. That’s the problem. Read More

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IRBs and Mission Creep?

I’ve written several times in the past about the intersection of IRBs and the legal academy. (Blogging; Caselaw Research; Zach Schrag interview) Consider this an update in that series.

My university (Temple) has an interesting set of new IRB guidelines. Essentially, Temple’s IRB (for all subjects) is now requiring department head sign-off for all protocols:

“In addition to the PI, every individual listed on the approval route on an IRB submission is required to approve the submission before it can reach the IRB for review. The electronic approval takes the place of a hard copy signature. Department Heads and all research personnel are required to approval Initial Submissions. Individuals can also be manually added to the approval route. Everyone listed on the approval route must view and approve the submission in order for it to reach the IRB. Please see the instructions for Providing Approval in eRA on the IRB’s website.”

When I inquired as to why this regulation was required, I was told that department heads knew the financial health & needs of the institution, and would therefore be able to tell if particular projects’ execution was financially possible.  Because department heads are best positioned to know if research is too expensive (and consequently that human subjects wouldn’t be cared for), IRB review will be denied if they refuse to sign the application. The IRB acknowledged that the regulation was not required by HHS regulations or the common rule, but was essentially a way to improve the quality of the University’s research.

To me this is a deeply problematic requirement. Academic freedom is a slogan which almost always signifies rent seeking. But here, there are significant risks that the IRB could be used as a way to cloak gamesmanship inside of departments.  Imagine that you are on the outs from your boss. She or he can now simply refuse you the right to do research by stating that the department can’t support it.  The IRB enforces that refusal, with its full array of punitive sanctions. What avenue of relief could you possibly have, apart from an incredibly cumbersome university grievance process, or a First Amendment lawsuit against the University?

Ultimately I dropped my objections to the regulation and got sign-off, in large part because I trust the powers that be.  Also, who wants to poke the bear?  But I thought I’d throw it out there to see whether any of you have seen similar regulations, and whether (or not) they’ve been challenged successfully.

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Ex Officio: Select Conference Notes from the Burger Court Justices’ views on Campaign Finance Laws

McCutcheon v. Federal Election Commission is one of the most important cases to be decided this term. The case involves a constitutional challenge to aggregate limits on contributions to federal candidates and political committees.  This issue was left untouched in Citizens United v. Federal Elections Commission (2010). And as with so many of the cases in campaign finance area, the McCutcheon case brings the Court and bar back to the seminal ruling in this area — Buckley v. Valeo (1976).  The eight-member Burger Court (Justice John Paul Stevens did not participate) produced a per curiam opinion along with five separate opinions (totaling 294 pages) in which the Justices dissented and concurred in part.

Thanks to the fact that several of the Justices who participated in Buckley kept conference notes that have now become public, we have somewhat of an idea of their ex officio views about the matter. The case involved a First Amendment challenge to provisions of the Federal Election Campaign Act of 1971 and its 1974 amendments.

Select portions of the Justices’ conference notes from FEC v. National Conservative Political Action Committee (1985) are likewise available for public scrutiny.  That case also involved a First Amendment challenge, this time to the Presidential Election Campaign Fund Act.  Here again, the Court was badly divided.

In what follows I offer a selection of snippets from the Justices’ conference notes from the two cases. These quotes may well be of some interest to those who are following the McCutcheon case. The conference notes quoted below are from The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions (Oxford University Press, 2001), which was edited by Professor Del Dickson of the University of San Diego Department of Political Science and International Relations.

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The following are selected excerpts from the Justices’ conference notes in Buckley v. Valeo, which was argued on November 10, 1975: 

Chief Justice Warren Burger: “I have serious doubts about whether these limits [$1,000 individual limits on spending “relative to a clearly identified candidate”] are constitutional. . . This is pure speech.”

“The disclosure provisions are the heart of the whole thing for me.  I think these provisions are constitutional and highly desirable.

Justice William Brennan: “I would sustain the contribution limits. . . . I won’t vote on expenditure limitations today.”

Justice Potter Stewart: “On contributions, I was predisposed to say that the statute is constitutional at first, but the more I get into this the more doubtful I became.”

“The expenditure limitations are wholly unconstitutional.”

“I see no First Amendment problems in political committees.”

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