Archive for the ‘chilling’ Category

Court treats degrading online postings as protected free-speech opinions

Friday, October 19th, 2012

From contributing blogger John S. Merculief II –

A California appellate court has affirmed a lower court’s ruling granting a woman’s anti-SLAPP motion against her daughter’s ex-husband regarding online postings the woman made about him.

The genesis of Darren Chaker’s lawsuit against Nicole Mateo and her mother, Wendy, was apparently a contentious custody battle in Texas courts regarding the former couple’s child. This battle appears to have helped prompt Wendy Mateo’s online comments, which in turn led to Chaker’s defamation suit.

In granting Wendy Mateo’s anti-SLAPP (“Strategic Lawsuit Against Public Participation”) motion to strike the defamation suit, the appellate court affirmed that she was merely exercising her First Amendment right to free speech in the matter.

Principally at issue in the case of Chaker v. Mateo, No. D058753, 2012 WL4711885 (Cal. Ct. App. Oct. 4, 2012) were the online postings of Wendy Mateo regarding ex-son-in-law Chaker’s business practices and moral character. Examples:
  • “This guy is … a deadbeat dad.”
  • “He may be taking steroids so who knows what could happen.”
  • “He uses people, is into illegal activities, etc.”
  • Varied accusations of fraud, deceit, picking up street walkers, and homeless drug addicts
The court found that the postings, while not on sites that were truly interactive, were at least on the internet, which functions as a worldwide bulletin board (read: public forum):
  • Something called “Ripoff Report,” which describes itself as “a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals.”
  • A social networking site into which Chaker had inserted himself by posting a professional profile (the opinion styles him as working in “forensics”).
As such, the court found that the comments Wendy Mateo posted were of public interest, regarding each forum.
But the court went on to conclude that the statements were nonactionable opinions (or, in other words, free speech) rather than actionable statements of fact by considering the statements’ contexts – internet forums – as likely places for opinions rather than facts, and not so much their content: “In determining statements are nonactionable opinions, a number of recent cases have relied heavily on the fact that statements were made in Internet forums.”
In fact, in analogizing to a prior case it handled in which a defendant had posted nine claims against a bank and its CEO in an expletive-laced rant, the court said:
In finding the defendant’s statements were nonactionable opinions, the [prior] court relied in part on the fact they were posted on the Internet Craigslist “Rants and Raves” Web site and lacked “ ‘the formality and polish typically found in documents in which a reader would expect to find facts.’” Summit Bank v. Rogers, 206 Cal.App.4th 669, 696–701, 142 Cal.Rptr.3d 40 (2012).
Here’s a review of California’s anti-SLAPP statute (Cal Civ. Proc. Code § 425.16). According to the court’s opinion:
The statute, as subsequently amended, provides in part:
  • (b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. …
  • “ ‘(e) As used in this section, “act in furtherance of a person’s right of petition or free speech … in connection with a public issue” includes: … (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest. …
Note that the statute sets up a two-part test. In plain terms, first, the defendant must show that the statement that the plaintiff complains of qualifies as free speech in connection with a public issue.
If the defendant succeeds with Step One, the case is not necessarily resolved: The plaintiff must then show that he at least has a reasonable chance of prevailing if the case goes to trial, in order for the case to proceed from there.
Here, the court found that Wendy Mateo’s online postings fit the criteria for California’s anti-SLAPP statute.
Further, the court found that the postings were in online forums where people do not expect to read factual information.
As such, the court foreclosed on Chaker’s defamation suit by concluding that Wendy Mateo’s online postings are nonactionable opinions, i.e. free speech.
Left unanswered, though, is the question of what to do about the reality that many people treat online forums as sources of fact. More on this in a follow-up post, coming soon.

Facebook Posts Get Former Marine Held for Month in Psych Ward

Thursday, August 23rd, 2012

A former Marine, Brandon Raub, was recently detained because of posts made on his Facebook account referencing a coming “civil war,” saying he was “done waiting,” and quoting a rap lyric, “Sharpen up my axe, I’m here to sever heads.”

Raub was taken into custody in this week in Virginia after being questioned by FBI and Secret Service agents. The latest is that after a hearing, Raub had been ordered held for an additional 30 days in a psychiatric ward.

For background, you can read the news story on HuffPo and find the essential facts and Mike Masnick’s commentary on TechDirt.

I actually have some experience with the legal procedures involved in detaining persons for psychiatric reasons. One summer in law school, I had a short externship with the Mental Hygiene Legal Service in the basement of the Manhattan Psychiatric Center on Wards Island in New York. (And let me say that it was an incredible experience, and I found that the attorneys down there providing legal services to patients were some of the quickest, smartest, and most impressive attorneys I have every worked with.)

So let me offer something from a mental-health-law perspective.

The Raub case has people concerned that online posts espousing conspiracy theories and radical leanings can cause a person to be locked up. And, in a sense, that’s what happened here. But once a person gets into the mental health system, it generally becomes a matter for physicians. Physicians aren’t legally able to deprive someone of their freedom, at least not beyond emergency circumstances on a short-term basis. Persons suspected of being mentally incompetent and dangerous are entitled to due process.

The due process that patients get is usually get that in the form of a hearing in which a judge listens to testimony of one or more physicians opining as to the psychiatric state of the patient. You might be surprised how smoothly this goes for the state. This is not like a trial. There is no jury, and the evidentiary standards are very relaxed. The state can use hearsay evidence to commit someone involuntarily, since they get it in as the basis for the psychiatrist’s expert opinion.

The whole field of mental health commitment is a fascinating one legally, and it raise a host of due process concerns that should make just about everyone uncomfortable. That’s not to say that the system is bad – like so much under our system of law, it reflects a balance between the need to uphold rights and freedoms and the need to prevent violence. It’s just to say that, like much else in law, it ought to make one uncomfortable.

So, with that background, I’m guessing that the Raub case is more about physicians deciding Raub needs to be held rather than it is about the government taking action against anti-government speech. Now, I should note that the story of physicians have tremendous power, mediated through court process, to deprive people of their freedom is not a new story – but it is a compelling one.

Yet because it brings mental-health law to bear on blogging, the Raub case remains one worth watching. There is no doubt that there is power here that could be abused. Maybe Raub is a radical whose speech is being shut down in violation of principles of free expression. Maybe he needs medical treatment. Of course, it’s very possible both are true at the same time.

Practical Advice for Protest Reporting from Web Chat with Law and Journalism Experts

Friday, August 17th, 2012

I attended yesterday’s web chat about reporting at political convention protests. The chat,
sponsored by Harvard’s Citizen Media Law Project, the International News Safety Institute, and the Free Press organization, was chock full of practical advice served up with a generous helping of what-it’s-like personal accounts.

Natasha Lennard, who has worked for the New York Times and now writes for Salon.com, described how she was among 700 people kettled and arrested in the Occupy Wall Street protests. She said that for the NYPD, if you are in the wrong place, it doesn’t matter if you are press.

“If you stick with the crowd which is what you feel you should do to get the story, you end up in a very precarious situation yourself,” Lennard said.

Andy Sellars, an attorney with Harvard Law School’s Berkman Center, made the point that when the police are ordering people to move, it helps in many cases to self-identify as a member of the press, but it might make reporting more difficult as you may wind up getting moved far away from the action.

For unaffiliated citizen journalists, Sellars said that it may be a good idea to use a homemade credential. But he warned not to copy anyone else’s credentials. Using credentials intended to look like they were issued by the police, for instance, may be unlawful in itself and, at any rate, is likely to make you a special target of for officers.

John Knefel, an independent journalist who has a radio show with his sister on Radio Dispatch, described his arrest at Occupy Wall Street. After being thrown to the ground, he was arrested and held for about 37 hours.

It was an ordeal, and Knefel singled out New York’s jail food for special scorn. While the arrest didn’t deter Knefel from attending and reporting from events, he said, it make him less likely to rush to a specific location where arrests were happening.

“Clearly it’s meant to have a chilling effect,” Knefel said. “That’s the goal here. It’s to make activists want to stay home. It’s to make journalists want to not cover things or to not cover them as directly or as intimately as they may want to.”

With a view toward the upcoming major-party political conventions in Charlotte, N.C. and Tampa, Fla., Sellars noted that local laws prohibit certain items. In Florida, prohibited items include tripods and bipods. There are also prohibitions on glass, ropes, and masks.

Natasha Lennard’s practical advice included going the site early to give yourself an internalized map of the relevant portions of the city. Knowing what side street you can duck into could help you avoid getting stuck, she said. She also rattled off a list of items to bring with you. She recommended packing milk of magnesia for cleaning away pepper spray, a bike helmet to wear if the batons come out, a bandana to pull out in the case of tear gas, and a lawyer’s phone number – inked on your forearm.

Lennard noted that you should not expect your cell phone to work if things get heated. Cell sites could get overloaded precisely when you most want to make a call or get information out.

Another web chat on the same topic is scheduled for Thursday, August 23 at 8 p.m. Eastern. To attend, go to the Free Press website. You don’t need to sign up in advance.

L.A. Times’ Dan Turner Defends Anonymous Commenters and Dares the Fourth Wall

Monday, July 16th, 2012

Dan Turner has written an interesting piece in the Los Angeles Times about a lawsuit brought by a local Idaho political figure against an anonymous blog commenter.

Tina Jacobson, Chair of the Republican Central Committee of Kootenai County is pursuing the defamation suit against “Almostinnocentbystander,” who posted to the Huckleberries Online blog of Coeur d’Alene’s Spokesman-Review. The comment implied that Jacobson embezzled $10,000 from the Republican Party by stuffing it in her blouse.

Turner, a traditional journalist who has been with the L.A. Times editorial team since 2004, argues the case for non-traditional media participants. His argument implies that since anonymous web commenters ought to be taken less seriously than establishment journalists, they correspondingly ought to be deserving of more free-expression deference, not less:

“[O]ther cases seem to have clarified that Web readers don’t have the same 1st Amendment protections as journalists or the anonymous sources who provide information to journalists in the course of reporting. Yet if readers don’t have the same protections as news writers or sources, they also don’t have the same impact. Is it reasonable to claim you suffered damages because of something some nameless crank wrote about you on a blog, especially if you’re a public figure? Does the community at large take Web comments seriously enough that they could really damage a person’s reputation?”

To punctuate his argument, he dares the fourth wall.

“Readers: If you disagree, and want to inform me where I can stow my opinions, that’s OK. I promise not to sue.”

Hmmm. No one bit. Just four comments, all of them tré civil.

Weibo.com Debuts “Truth” Point System

Wednesday, June 20th, 2012

Weibo.com logoSina Weibo – China’s Twitter-like microblogging site – has created a new point system to extend Chinese government influence over what is and is not deemed “true.” New guidelines forbid communicating content considered “untrue,” or which is deemed to “harm national unity,” or “destroy societal stability.”

This sort of speech has long been illegal in China. But with Sina Weibo’s burgeoning 300 million users, website policy may have more reach than the criminal law.

When creating an account on the site, which is also known as Weibo.com, a user gets 80 points of credibility, or 100 points if the user plugs in a government-assigned ID number to create the account and links to a cellphone. Then, whenever the Sina Weibo user communicates something deemed “untrue,” points are deducted. The more people to whom the “falsehood” is communicated, the more points are deducted. For instance, spreading a “falsehood” to more than a thousand other users results in a deduction of 10 points and a 15-day account suspension. Users can gain points by staying in compliance with government censorship policies. Once the points fall below 60, the user is deemed “low credit.” Once the points get to zero, the account is closed.

Sina Weibo has been a key means of the dissemination of information about disasters and government scandals that the Chinese government has tried to play down, deny, or bury. This new point system will presumably cause Weibo users to self-censor to avoid account closure, helping to allow the Chinese government to bring social media to heel.

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Likes, Takedowns, and Server Seizures – Great Posts from Goldman’s Blog

Monday, May 7th, 2012

Eric Goldman

Here’s just some of the required reading coming off of Eric Goldman’s Technology and Law Marketing Blog:

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts

This is a case where a sheriff fired sheriff’s department workers after they Facebook-liked the sheriff’s opponent in an upcoming bid for re-election. Venkat Balasubramani and Eric G. explain why the court’s wrong that liking someone on FB isn’t protected First Amendment speech. I agree, of course. It’s a baffling decision.

512(f) Plaintiff Can’t Get Discovery to Back Up His Allegations of Bogus Takedowns–Ouellette v. Viacom

This is exactly the kind of thing your civil procedure professor was talking about when they said “procedure is substance.” Big Hollywood is free to machine-gun takedown notices out there, and despite a substantive legal right to get redress for such bogus takedowns, the procedural requirements make the right nearly worthless, turning §512 of the Digital Millennium Copyright Act into something quite different than what you would think it is just by reading it.

As Eric G. notes, “unless the 512(f) plaintiff has smoking-gun evidence of the copyright owner’s bad intent before filing the complaint, the plaintiff has virtually no chance of getting a 512(f) claim into discovery.”

Comments on the Megaupload Prosecution (a Long-Delayed Linkwrap)

The Megaupload case is one of those things that is extremely troubling, but it can be hard to explain exactly why it’s troubling in a pithy way. But here’s a quote from Eric G. that does a pretty good job:

The government is using its enforcement powers to accomplish what most copyright owners haven’t been willing to do in civil court (i.e., sue Megaupload for infringement); and the government is doing so by using its incredibly powerful discovery and enforcement tools that vastly exceed the tools available in civil enforcement; and the government’s bringing the prosecution in part because of the revolving door between government and the content industry (where some of the decision-makers green-lighting the enforcement action probably worked shoulder-to-shoulder with the copyright owners making the request) plus the Obama administration’s desire to curry continued favor and campaign contributions from well-heeled sources.

The resulting prosecution is a depressing display of abuse of government authority. It’s hard to comprehensively catalog all of the lawless aspects of the US government’s prosecution of Megaupload …

Megaupload’s website is analogous to a printing press that constantly published new content. Under our Constitution, the government can’t simply shut down a printing press, but that’s basically what our government did when it turned Megaupload off and seized all of the assets. Not surprisingly, shutting down a printing press suppresses countless legitimate content publications by legitimate users of Megaupload. Surprisingly (shockingly, even), the government apparently doesn’t care about this “collateral,” entirely foreseeable and deeply unconstitutional effect.

What do these three recent developments all have in common? Big guys win, little guys lose. Sometimes law is very dispiriting.

Citizen Media Org Workers Facing Prosecution in Egypt

Monday, February 6th, 2012

ICFJ logoUSA Today reports that two Americans and two Egyptians, who are employees of the International Center for Journalists, have been referred to Egypt’s Justice Ministry for prosecution.

ICFJ is a DC-based non-profit org that “promotes quality journalism worldwide in the belief that independent, vigorous media are crucial in improving the human condition.”

The president of ICFJ said that the organization was in Egypt to help improve citizen journalism by teaching fair, responsible, and in-context news coverage.

The American staffers are currently stateside – and presumably they won’t be headed back. The two Egyptian staffers have been questioned by Egyptian authorities, but they have not been arrested at this point, and only learned about the prosecutorial referral via reports in the media.

Conviction for Insulting Islam in Austria

Monday, January 30th, 2012

daylight exterior

Pallas Athena fountain in front of the Parliament Building in Vienna, Austria (Photo: CIA)

An Austrian appeals court has upheld the conviction of Elisabeth Sabaditsch-Wolff for insulting Islam.

This is a case that came down just before the New Year. I think it’s worth discussing here because blogs, of course, cross borders. American bloggers are likely to think that American concepts of free expression are likely to be shared with other industrialized Western countries. But that’s not true at all.

Eugene Volokh on the Volokh Conspiracy explains the legal angle with a post that provides a quick look at recent blasphemy prosecutions around Europe, as well as a discussion of America’s history of criminalizing blasphemy back in the early 1800s.

As far as the prosecution of Sabaditsch-Wolff, the defendant herself explains what happened in an interview:

What was the reason for this conviction, you may ask. Well, during the course of my seminars, I mentioned the choking EU directive “Framework decision on combating racism and xenophobia,” and in order to illustrate my point I told the audience about a conversation I had with my sister and how she believed that one should find a different word for Mohammed’s actions with Aisha. I said, “How does one name what he did if not call it pedophilia?” And this sentence got me convicted, for I am allowed by law to say that Mohammed had sex with a young girl, but I may not qualify this behavior as this is deemed “excessive” and thus denigrating.

It would be unthinkable for anyone in the United States to get in legal trouble for something like this. But, as Commenter Parker said in the thread after Volokh’s post, “This is Europe we are speaking of. Europe has a different idea of human rights and especially a different idea of the freedom of speech.”

True that. With the similarity in the media, press, and arts between the U.S. and Europe, you could easily assume that what’s sacrosanct as a matter of American expressive freedom would be protected in Europe. Just about anyone could guess that there’s no right to bear arms across Europe. But with free speech, you would be forgiven for thinking they are basically the same. And it’s probably true that 99% of what is protected in America is protected in EU countries. But once you get toward the fringes, you’ll realize that freedom of expression in Europe is actually very different. Free speech is at the apex of American freedoms and values. In the European scheme of values, there is the idea that free speech must often be subservient in the hierarchy of human rights. The Sabaditsch-Wolff case illustrates, I think, the European impulse that the right to be free from religious insult is considered as or more important than the right to be free to say whatever you want.

Please Call Right Now to Stop SOPA

Thursday, December 15th, 2011

CALL NOW - Capitol HillThis is it. This is the time to make your voice heard on Capitol Hill before the disastrous Stop Online Piracy Act is passed by the U.S. House of Representatives.

Go to EFF’s action page on SOPA and type in your zip code to instantly get the phone number of your rep. And you can bet I’ve called.

SOPA is a threat to blog freedom and internet freedom in American and abroad.

Make the call, and blog on!

Please Help Stop SOPA

Saturday, November 26th, 2011

STOP SOPA

Something very bad may be about to happen to the internet.

The United States Congress, which is currently slightly more popular than the rabies virus, may be on the brink of passing the Stop Online Piracy Act, an outrage that attempts to placate big Hollywood content industries by selling out freedom on the internet.

I’ll be writing about SOPA (and PIPA, as it’s known in the Senate) in upcoming posts. Please take the time to educate yourself and call your representatives.

Also, consider adding a STOP SOPA badge to your website. Feel free to swipe them off of this blog – I handmade these (entirely independently), so I can and hereby do license them to you. And then link them to one of the many explanations out there for why SOPA presents such extreme peril.

ACLU Sues to Stop Sheriff Harassment of Photographers

Wednesday, November 9th, 2011

Mosaic of photographs of random thingsSome of the thousands of photographs I’ve taken which, I am sure, the LASD would consider to be without aesthetic value. (More where those came from on Flickr.)

I’m always taking photos of random things. I think it’s fun. And photos are valuable for illustrating blog posts, among other things.

But a lot of law enforcement agencies consider photography to be a “suspicious activity.” You can be seriously harassed for street photography.

Happily, the ACLU is stepping in to do something about it. The ACLU is now suing to challenge a policy of the Los Angeles Sheriff’s Department that considers as “terrorism-related” the activity of taking “pictures or video footage with no apparent esthetic value, i.e., camera angles, security equipment, security personnel, traffic lights, building entrances, etc.”

If I had a buck for every photo I’ve taken of “security equipment, security personnel, traffic lights, building entrances, etc.,” then I would have a huge wad of cash. Enough to buy a full-frame digital SLR and maybe even get a sweet L-series 400mm telephoto lens.

And I’d run out and use it to take pictures of traffic lights, building entrances, and other stuff like that. And then I’d probably have to call the ACLU for help, because I could get into trouble like their latest plaintiffs Shane Quentin and Shawn Nee.

Quentin was targeted when he was taking photographs of refineries at night in south Los Angeles at night. (I’ve been meaning to do this myself the next time have some extra time down there. The refineries at night are stunning – fortresses of light, flame, fog, and exhaust. Highly photogenic in my book.) Well for his efforts, Quentin was frisked and placed in the back of squad car. He was kept there for about 45 minutes before he was let go.

It could have been me.

Nee’s misadventures are even harder to fathom. LASD deputies detained and searched plaintiff Shawn Nee when he was taking pictures turnstiles at an L.A. Metro station. This gives you an idea of where they were at: They asked Nee if he was planning to sell the photos to al-Qaeda.

Really. I’m not making that up. I mean, not only are they imply that he was in league with al-Qaeda, but that he was doing it for the money.

Then the LASD officers threatened to stick Nee on an FBI “hit list.” Okay, that’s absurd. Everyone who watches USA network knows that the CIA is in charge of assassinating terrorists on U.S. soil. But I digress.

On a separate occasion, sheriff’s deputies ordered Nee to refrain from taking photos along the Hollywood Walk of Fame at the intersection of Hollywood and Vine, outside the W Hotel. I mean, holy heck. If you aren’t safe taking pictures there – smack-dab in the middle of freaking Hollywood – where are you?

You can tell I’m upset. I’m using far too much italics.

The ACLU’s complaint [pdf], unlike this blog post, is a model of legal writing. For one, it’s written with a literary flair, yet it refrains from crossing the line into floweriness. Like this:

Photography is not a crime; it is a means of artistic expression. In public spaces, on public streets and from public sidewalks, no law bars Los Angeles residents and visitors from photographing the world around them, from documenting their own lives or using their lenses to find the sublime in the commonplace.

Nicely said. The complaint also is filled with footnoted references to essays, art reviews, and books. It’s very well-researched. A model pleading. Kudos to the ACLU. What’s more, this is a lawsuit that is badly needed to push back against an unhealthy trend. As the complaint says:

Over the past several years, law enforcement agencies across the country have implemented “suspicious activity reporting” programs, under which officers are trained to report certain categories of behavior believed to be potential indicators of terrorism. Many departments include photography as one such ‘suspicious activity’ that should be reported.

Mickey H. Osterreicher said in a letter to L.A. Sheriff Lee Baca that the aim is to get “at least” the L.A. Sheriff’s Department to revise departmental policy and instruct deputies correspondingly.

“Safety and security concerns should not be used as a pretext to chill free speech and expression or to impede the ability to gather news,” Osterreicher said.

More:

It’s Over in Aurora: Ex-Mayor in Ontario Gives Up on Lawsuit Against Blog

Wednesday, October 26th, 2011


Ex-Aurora Mayor Phyllis Morris. (Image: Phyllis Morris Campaign, used without permission.)

Back in January, I blogged about the taxpayer-funded litigation campaign waged by the mayor of Aurora, Ontario. She got the town council to pony up funds to go after the Aurora Citizen blog and anonymous critics voicing opposition to Morris via the blog’s comments. As it turns out, the lawsuit didn’t help Morris’s political fortunes. Morris suffered a landslide loss in her bid for re-election. And then, the town council voted to de-fund her lawsuit – something that probably never should have been funded on the taxpayer dime in the first place. This summer, a judge rebuffed Morris’s attempt to get a court order to unmask the three anonymous contributors who were, apparently, the authors of the content Morris found most objectionable.

After that string of setbacks, Morris has now voluntarily discontinued her suit – meaning that she’s given up entirely on the litigation.

Thanks to Blog Law Blog reader Chris for sending me a note about this one.

The discontinuance is functionally a vindication for the defendants, who are blog proprietor-moderators William Hogg and Elizabeth Bishenden, contributor Richard Johnson, three anonymous commenters, and host WordPress.com.

It’s hard to tell what all exactly the material was that Morris contended was defamatory. Her suit claimed that material on the Aurora Citizen subject her to “ridicule, hatred and contempt.” But the what and why is not clear. A post from September 16, 2010 reprints a letter received from the town attorney demanding the removal of certain comments from the Aurora Citizen – a request the blog complied with, so we can’t see exactly what those comments were, and they seem to be about a different town official. Another post suggests that some material posted over the course of August 24, 2010 through October 2, 2010 was the basis of a defamation allegation at some point. So I’m guessing this and this might have annoyed her. But I can’t tell with any particularity what the offending language was.

Here’s what the Aurora Citizen had to say:

It was manifestly unfair that the defendants were put to the time and expense of legal fees at the hands of Ms. Morris, most especially in light of the fact that Ms. Morris used tax dollars to pursue them in what appeared to be a politically motivated attack intended to silence their efforts to hold her government accountable.

It is equally telling that Ms. Morris discontinued the litigation when she was called upon to fund it out of her own pocket rather than use taxpayer funds as initially intended. She was fully prepared to use town resources to support her private lawsuit, at the towns’ sole risk and expense to her sole potential gain, despite the fact that the Town’s Code of Conduct states clearly that “public office is not to be used for personal gain”.

While the defendants, Hogg and Johnson defended their principles with their own funds — Phyllis Morris did not.

Hopefully, there has been a lesson learned from this experience. Freedom of expression is a fundamental democratic right of all Canadians — but it is a right that will be attacked, and will need protection.

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Judge Posner Worried By Mic-Wielding Bloggers

Tuesday, September 27th, 2011

Hon. Richard A. Posner (Photo: U. Chicago)

Illinois has an eavesdropping and wiretapping statute that prohibits making an audio recording of any conversation without the consent of all persons involved. This applies not only over the phone or in a private place, but even in a public place. And even when the conversation is with public officials concerning a matter of public concern. Violations can be prosecuted as felonies, and civil suits are authorized as well.

If you don’t think that sounds constitutional, I’m inclined to agree. And so is the ACLU, who is suing on behalf of several people arrested for secretly recording on-duty police officers. The civil liberties group is challenging the law in ACLU v. Alvarez.

On appeal to the federal Seventh Circuit, the ACLU faced questioning by a panel that included America’s most famous federal circuit judge, the Hon. Richard A. Posner. His questioning was alarming. Just 14 words into his argument, ACLU lawyer Richard O’Brien was interrupted with this:

“Yeah, I know … But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police.”

Huh? Really? Ferreting out public corruption, abuse of power, obstruction of justice by those charged to guard it – all that sounds interesting to me.

Posner proceeded to worry about how striking down the law could aid snooping bloggers:

“Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.”

“Is that a bad thing, your honor?”

“Yes, it is a bad thing. There is such a thing as privacy.”

Such a thing as privacy for on-duty police officers? Even when they are in public or interacting with civilians? Gosh, I can’t get behind that.

Justin Silverman at CMLP has an extremely thoughtful post on the matter. He writes, “Posner’s apparent belief that there should be an expectation of privacy for those in public areas discussing matters of public concern is alarming given that it is squarely at odds with the First Amendment. Worse, Posner’s comments smack of condescension for journalists.”

Jonathan Turley also is taken aback. He writes on his blog, “What astonishes me is that government officials are pushing this effort to block this basic right of citizens and perhaps the single most important form of evidence against police abuse. … As someone who admires Posner’s contributions to the law, it is disappointing to read such biased and dismissive comments in a free speech case. For police wondering ‘who will rid us of these meddling citizens?,’ they appear to have one jurist in Illinois not just ready but eager to step forward.”

Unfortunately, the facts of the case show that Turley’s comment is not the hyperbole you wish it were. The story told by one of the plaintiffs in the suit, Tiawanda Moore, is terrifying: She was groped in her home by a Chicago police officer who had responded to a domestic disturbance call. Moore was brave enough to take the issue to internal affairs. But they tried to deflect her complaint and sought to dissuade her from pursuing the matter. In the interests of protecting herself, she began to secretly record her conversations with investigators on her Blackberry.

When the recordings came to light, Moore was arrested and charged with violation of Illinois’s eavesdropping statute. Sadly, prosecutors took the case to trial. But in a strong affirmation of the role of civilian jurors, the jury acquitted her of the charge.

Just a few weeks ago, the First Circuit ruled that there is a constitutional right to record police actions in public places. Hopefully the Seventh Circuit will follow the lead and clear the way for snooping bloggers and sexually harassed citizens alike to be free to record the police in the City of Big Shoulders.

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Imprisoned Bloggers Around the World

Thursday, September 22nd, 2011

According to Reporters Without Borders there are currently 121 netizens imprisoned, along with 157 journalists and 9 media assistants behind bars.

They include:

  • Blogger Henghameh Shahidi of Iran, in prison since February 25, 2009
  • Blogger Sakhi Righi of Iran, in prison since June 18, 2009
  • Blogger Wu Baoquan of China, in prison since a date unknown

The leading countries in jailing the persons RWB classifies as netizens are China (70), Iran (17), and Vietnam (17).

Big Federal Appeals Court Victory for Filming Police in Public

Tuesday, August 30th, 2011

Seal of the First Circuit Court of AppealsThe Citizen Media Law Project at Harvard Law School’s Berkman Center reports that the federal First Circuit Court of Appeals has “issued a resounding and unanimous opinion” in support of the constitutional right to record police actions in public places. As I noted in March, this case has big implications for bloggers.

With his cellphone, attorney Simon Glik videoed Boston Police officers arresting a homeless man in Boston Common, a public park downtown. The charge? Criminal violation of Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99), which was total nonsense in this situation. The law prohibits “secretly” recording wire or oral communications. The police sought to contort it beyond recognition as a pretext for arresting someone documenting possible police abuse. Cooler heads prevailed when the charges were quickly dismissed. But happily, Glik worked to vindicate the rights of citizen reporters everywhere by filing a federal lawsuit after the fact. And now, he’s won big, establishing that he had both a First Amendment right and a Fourth Amendment right to record.

The opinion is available as a pdf. If you don’t have time to plow through it all, Jeffrey P. Hermes on CMLP’s blog offers these delightful pullquotes:

  • “Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and … his clearly-established Fourth Amendment rights were violated by his arrest without probable cause.”
  • “[I]s there a constitutionally protected right to videotape police carrying out their duties in public? Basic First Amendment principles, along with case law from this and other circuits, answer that question unambiguously in the affirmative.”
  • “Glik filmed the defendant police officers in the Boston Common, the oldest city park in the United States and the apotheosis of a public forum. In such traditional public spaces, the rights of the state to limit the exercise of First Amendment activity are ‘sharply circumscribed.’”
  • “[A] citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment.”
  • “Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting ‘the free discussion of governmental affairs.’”

Good stuff. Maybe I’ll be assigning this later in the semester in my Media & Entertainment Law class.

ALCU to Sue Baltimore Police Over On-the-Spot Video Seizure and Deletion

Thursday, August 18th, 2011

Badge of the Baltimore Police Department and still from YouTube video of police incident at 2010 Preakness Stakes

The Baltimore Sun reports that the American Civil Liberties Union is threatening to sue Baltimore police for illegally seizing a man’s camera and deleting videos from it at the 2010 Preakness Stakes. This could be an important case for citizen journalists and bloggers.

The man, Christopher Sharp, was taking video with his cell phone of what appears to be the use of excessive force in the arrest of a woman, a friend of Sharp’s, at the prestigious thoroughbred horse race. According to the ACLU press release:

[A]fter Sharp recorded the police beating, he was detained and harangued by police officers, who demanded that he surrender his cellphone as “evidence”. Sharp politely declined, but police continued to demand that he give up his phone. Fearing arrest, he finally handed over the phone to an officer who assured him he would simply download the videos for evidentiary purposes, then return the phone to Sharp. Instead, police destroyed the beating videos and all other videos it contained – about two dozen in all – before returning the phone to Sharp.

Another video of the same event shows the bleeding woman pinned down on the floor of the Pimlico Race Course clubhouse as a crowd watches in a wide circle. One police officer can be heard asking “Why’re they taking pictures?” and saying “Get him,” directing a fellow police officers to the location of a camera-operating onlooker.

Also in that video, you can hear another police officer making false assertions about the law, saying that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” In order for Maryland’s wiretapping law to apply, there would have to be a reasonable expectation of privacy. It would be beyond absurd to argue that the police had a reasonable expectation of privacy while arresting a woman in the middle of huge crowd at one of the biggest sporting events of the year. Even if there had been no crowd, the law should, in my opinion, construe an implied lack of expectation of privacy in all encounters between police, in the course of their duites, and members of the public.

Putting aside the legal, constitutional, and political questions, there is the simple sad fact that Sharp lost a lot of video footage that was tremendously valuable to him.

“I’m heartbroken over the videos I lost of my son and I doing things together,” said Sharp in the press release. “The videos were keepsakes of memories like his soccer and basketball games, times at the beach and the Howard County fair. It kills me that the police acted as if it was okay for them to could just wipe out some of my fondest memories. I used to trust police, but now I don’t anymore, because of how wrongly the police acted here, and because it seemed like this was just routine procedure for them.”

Big Island Blogger Bloodied and Bruised for Photographing Police

Tuesday, August 16th, 2011

Damon Tucker's wife took these pictures of Tucker's injuries which Tucker posted on his blog.

Hawaiian Blogger Damon Tucker has reported he was arrested recently for taking pictures and video of police arresting other people. Tucker wrote that his camera and cell phone were seized and that he was roughed up pretty badly, as evidenced by pictures he posted (example at right). He writes:

 

People are allowed to take pictures and videos of police officers w/out getting roughed up. I’m battered, bruised and bloody from an officer slamming on the sidewalk …

I just want my cell phone back and camera back…. I was rolling video when the officer took me down and they took my cell phone and camera from me for “Evidence”.

Tucker says he has eyewitnesses who will corroborate his story. He plans to sue.

More:

Lawyers Smacked for Knee Slaps

Tuesday, August 9th, 2011

NexGen knees marketed by Cyberdyne Systems, umm, I mean 'Zimmer medical products company of Northern Indiana.' (Photo: Zimmer)

Alex Nussbaum and David Voreacos of Bloomberg report that Zimmer, the world’s largest maker of knee and hip implants, is suing lawyers who sue them. And their offensive against plaintiffs’ lawyers is headed into the blogosphere.

After lawyer/blogger Brett Emison wrote a blog post about failures of Zimmer’s NexGen knees, he got a letter from Zimmer attorneys demanding he stop what they termed “alarmist fear mongering.”

Emison called Zimmer’s conduct “a blatant attempt to try to frighten plaintiffs’ lawyers from pursuing these cases.”

I myself don’t need to get a warning letter to be frightened. Look at that promotional picture of Zimmer’s technologically advanced knees. Don’t tell me those won’t be useful to the machines after Skynet takes over. Everyone knows that the only thing humanity has going for it in a war against robots is that robots are generally slow and lumbering. If you stick knees like those in terminator-series cyborgs, they’ll be able to jog effortlessly all over the post-apocalyptic landscape picking off humans at will.

Well, with Zimmer raking in $1.8 billion in annual artificial-knee revenues, its not surprising they would be somewhat, shall we say, inflexible when it comes to assaults on their safety record. And Zimmer’s legal gambit appears to be working. Bloomberg reports that Zimmer has settled four of its law-firm lawsuits on terms requiring retractions.

Law professor and dean of Roger Williams Law School David Logan says in the story that recent U.S. Supreme Court decisions have given lawyers the freedom to say anything not “provably false or misleading.” That, in turn, has “opened up a new front in the product-liability wars” with corporate defendants suing lawyers as they go searching for clients.

With “blawgs” already constituting a leading means of lawyer rainmaking, we may see Zimmer-type offensives become more and more important in shaping the legal context of law-blogging. Of course, on “Blog Law Blog,” I can only blog so much about the law of law blogging. To provide in-depth commentary in this arena, I will soon be launching my new blog, Law Blog Blog Law Law Blog.

Or, on the other hand, maybe I’ll skip that.

UN Report: Criminalization of Blogging

Wednesday, July 27th, 2011

Blue flag of the United NationsBelow is another excerpt that I think’s worth reading from the recent United Nations Human Rights Council report [pdf] on freedom of opinion and expression.

This excerpt of the report decries the criminalization of blogging:

… any restriction to the right to freedom of expression must meet the strict criteria under international human rights law. A restriction on the right of individuals to express themselves through the Internet can take various forms, from technical measures to prevent access to certain content, such as blocking and filtering, to inadequate guarantees of the right to privacy and protection of personal data, which inhibit the dissemination of opinions and information. The Special Rapporteur is of the view that the arbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right, as it not only creates a “chilling effect”, but also leads to other human rights violations, such as arbitrary detention and torture and other forms of cruel, inhuman or degrading treatment or punishment.

One clear example of criminalizing legitimate expression is the imprisonment of bloggers around the world. According to Reporters without Borders, in 2010, 109 bloggers were in prison on charges related to the content of their online expression. Seventy-two individuals were imprisoned in China alone, followed by Viet Nam and Iran, with 17 and 13 persons respectively.

Imprisoning individuals for seeking, receiving and imparting information and ideas can rarely be justified as a proportionate measure to achieve one of the legitimate aims under article 19, paragraph 3, of the International Covenant on Civil and Political Rights. The Special Rapporteur would like to reiterate that defamation should be decriminalized, and that protection of national security or countering terrorism cannot be used to justify restricting the right to expression unless the Government can demonstrate that: (a) the expression is intended to incite imminent violence; (b) it is likely to incite such violence; and (c) there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

Celine Dion Succeeds in Shutting Down Humorous Fan Blog

Friday, July 22nd, 2011
Ridiculous Pictures of Celine Dion

Well, this is sad. French-Canadian soft-rock diva Celine Dion has silenced a tongue-in-cheek blog keeping track of absurd pictures taken of her.

All it took was a cease-and-desist letter.

The Tumblr-hosted blog, Ridiculous Pictures of Céline Dion, is now down, with only this message remaining:

hey y’all

céline dion found our blog, and she didn’t like it. we just got a letter from céline’s lawyers that the blog has to be shut down.

though this blog is well within the realm of ‘fair use’, i don’t have the money or time to get a lawyer to respond. the dream is over.

thanks for following and being a céline superfan
i’ll always remember u
i’ll never let go

The blogger’s decision is completely rational, of course. But that just makes it worse. It’s a sadly accurate commentary about the lack of justice that results when the well-lawyered find themselves feeling uncomfortable with constitutional rights of the unlawyered masses.

(Ha’p @LawandLit, @kisbell)

Prosecutor Michael C. Green Should Resign

Tuesday, June 28th, 2011

Monroe County District Attorney Michael C. Green (Photo: Monroe County)

Prosecutors have dismissed their case against Emily Good, who was arrested for video recording Rochester, N.Y. police officers during a traffic stop. Good, who was doing the filming while on her own property, was charged with “obstructing government administration.”

The entire affair was a rank abuse of power.

The police involved should be disciplined. Many have chimed in to call for that, and an internal review is pending. But what I have not seen much discussion of is the role of the DA’s office in this.

Good was arrested May 12. It took until yesterday, June 27, for the DA’s office to get rid of this case. That is, they waited until after a media firestorm and protests erupted. The fact is, Good never should have been charged. The DA’s office in Monroe County, N.Y. failed in its obligation to protect the public trust. Instead, the district attorney’s office used its resources to intimidate a citizen obviously exercising constitutionally protected rights.

Monroe County DA Michael C. Green should tender his resignation immediately.

Unless there is something big that I’m missing – such as Green being in a coma for the last month – he bears the responsibility for the lion’s share of this disgrace. The police arrested Good. But it was the DA’s office who pursued the case.

The Monroe County DA’s office is a big place, and I understand that, but there is no way this could have escaped Green’s attention early on. Green should have taken action immediately to dismiss the charges and set this right. Instead, by pursuing the case as far as he did, Green – who is an elected official – sent a clear message that he will use the power of his office to protect local government from citizen scrutiny and intimidate its critics.

And, by keeping this going, he forced Good to hire a lawyer to defend herself from these sham charges. Someone had to pay for that. And no citizen should have to endure it. Absolutely outrageous.

Shame on Mike Green.

More:

Bush White House Allegedly Directed CIA to Spy on American Blogger

Friday, June 17th, 2011
Headshot of Juan Cole

This photo of Cole was publicly available on his blog. Imagine that.

Jonathan H. Adler of The Volokh Conspiracy points to quite an alarming story in the New York Times reporting allegations that the George W. Bush White House directed the CIA to gather damaging information about blogger Juan Cole, a University of Michigan professor whose liberal views on his Informed Comment blog were highly critical of Bush’s foreign policy.

The allegations come from ex-CIA officer Glenn L. Carle. The NYT reports:

According to Mr. Carle, Mr. Low returned from a White House meeting one day and inquired who Juan Cole was, making clear that he wanted Mr. Carle to gather information on him. Mr. Carle recalled his boss saying, “The White House wants to get him.”

“ ‘What do you think we might know about him, or could find out that could discredit him?’ ” Mr. Low continued, according to Mr. Carle.

Mr. Carle said that he warned that it would be illegal to spy on Americans and refused to get involved, but that Mr. Low seemed to ignore him.

“But what might we know about him?” he said Mr. Low asked. “Does he drink? What are his views? Is he married?”

Mr. Carle said that he responded, “We don’t do those sorts of things,” but that Mr. Low appeared undeterred. …

Wow. That sure seems illegal. A former CIA general counsel interviewed for the story agreed, saying, “The statute makes it very clear: you can’t spy on Americans.”

If Carle’s allegations are correct – or even partly right – this is just completely outrageous. But I can’t do a better job of pointing out how absurd it all is than Cole does himself:

… I mean, really. How inept do you have to be to enlist intelligence officials in monitoring bloggers? They put up their thoughts for everyone to see every day! I keep thinking of David Low’s stupid question as to what the CIA could find out about me. Did he mean, aside from the gigabytes of data at my own blog?

As Cole says, maybe the Bush administration should have been trying to use some of those CIA resources to get Osama Bin Laden instead of digging up info on American bloggers.

Forever 21 Threatens to Sue Critical Fashion Blogger Out of Existence

Tuesday, June 7th, 2011

Blue ruffled romperClothing retailer Forever 21 is threatening to sue blogger Rachel Kane if she does not take down her blog WTForever21.com.

Forever 21′s alleged cause of action is trademark infringement. Which is absolutely ridiculous. The test for trademark infringement is “likelihood of confusion.” The question for the court would be, “Are consumers likely to be confused as to the source of WTForever21.com, thinking they are really dealing with Forever 21?”

Of course they wouldn’t be. Especially when Kane deals out criticism like this, referring to the blue romper on the right:

Quick question. Just, super fast. One minute…

Ruffled Romper: $24.80

WTF IS this?

Seriously. Why does this romper exist? Is it the official uniform of some highly unfashionable flight attendants from the 50?s?

I wouldn’t wear this on a DARE, let alone pay $25 for it and be SEEN wearing it up and down the land during my daily life.

It looks like something in the collection of casual wear from “The Running Man.”

Forever 21,

WTF?

Apparently, Forever 21 doesn’t like criticism. (Even though Kane mixes in admiration for her favorite store, such as “pay[ing] earnest tribute to Forever 21′s cunning clothing style.” Most recently, Kane saluted Forever 21′s “flouncy, feminine features made to keep you feeling and looking cool for the fairest months of them all.”)

Forever 21′s thugster stance on intellectual property is especially ironic considering that they are constantly being attacked by whining designers who bristle at Forever 21′s perfectly legal copying of their designs. In fact, Forever 21′s fans are habitually fighting off attempts by elite fashion designers to push new legislation through Congress that would illegalize F21′s business model.

As Kane might say:

Forever 21,

WTF?

UK Soccer Star Ryan Giggs Sues Twitter and Tweeters Over Super-Injunction

Monday, May 23rd, 2011
Ryan Griggs, soccer player, standing on field

UK soccer star and super-injunction taker-outer, Ryan Griggs (Photo: Allison Pasciuto, CC-BY 2.0)

A soccer player who is famous in the United Kingdom, Ryan Giggs, apparently obtained a “super-injunction” to force the press to not reveal his name in connection with ongoing litigation involving an extra-marital affair he allegedly had with UK reality-television star Imogen Thomas. He has now apparently sued Twitter and Twitter users for revealing his identity.

The so-called super-injunction is one that not only gags the press and others with regard to the sensitive subject matter (such as allegations of an extra-marital affair), but also prohibits the press from even reporting about the injunction itself, thus shielding the identity of the person who took out the super-injunciton.

As your author of Blog Law Blog, based in the United States, I am confident that the First Amendment to the U.S. Constitution protects my ability to identify the person. And regardless, free-speech sufficient to discuss the use and potential over-use of judicial power ought to be considered a universal human right.

I actually looked through several news stories looking for the athlete’s name. All the sites I read, all of which were UK-based, were very cheeky, refusing to name Griggs, but dropping lots of hints, implying that the reader must then know who it was.

I’m sorry, but for me, on this side of the pond, if it’s not David Beckham, then I’m not going to know who it is unless you give me a name.

I eventually was able to get Griggs’s name through Google’s auto-complete feature, by typing in “superinjunction footballer …”

And now Griggs is suing Twitter, which was apparently where his identity broke.

Good luck with that, buddy. You’ll need it.

Twitter, based in San Francisco, U.S.A., has not only the First Amendment protecting it, but also the super-safe-harbor of section 230.

And now, here’s my commentary on the law: The super-injunction is a rank abuse of judicial power. It’s especially disappointing, to me, since the United Kingdom is one of the few countries on Earth that places the sort of premium on free speech that the United States does.

Imogen Thomas, Griggs’s ex-squeeze, who has been accused of blackmail in this whole thing, had this to say in the UK’s Daily Mail, which I think shows quite nicely what is wrong with the super-injunction as a legal institution:

“Yet again my name and my reputation are being trashed while the man I had a relationship with is able to hide.

“What’s more, I can’t even defend myself because I have been gagged. Where’s the fairness in that? What about my reputation?

“If this is the way privacy injunctions are supposed to work then there’s something seriously wrong with the law.”

Looking Back: Rankled Local Officials vs. Anonymous Bloggers

Thursday, April 28th, 2011

I’ve been thinking back over the last year, Blog Law Blog’s first year, and trying to figure out what broad lessons there are to be learned about blog law. The most striking thing to me, I think, is the tremendous number of altercations we’ve seen between local officials and bloggers.

In both Canada and the United States, it seems like local government officials are highly intolerant of harsh criticism. They try to unmask anonymous bloggers and commenters. They use town counsel money and subpoenas to get at their tormentors.

Where do local officials get off thinking they should be able to silence online critics? What’s a bit puzzling is that the behavior exhibited by local officials toward the online press is something you would never see either (1) by federal or higher-level state politicians and officials, or (2) by local officials against the traditional media. Well, you might see it very rarely. But not with the frequency and abandon with which town politicos go after laptop-wielding gadflies.

So what accounts for the difference?

I think a big part of it is that local officials aren’t used to the heat. National politicians have always put up with vitriol. For them, the internet has perhaps added to the number of hecklers, but the phenomenon is not utterly new for elite officials.

But on the local level, blogs have propelled brickbats into a void. It’s all new for local officials. And the do not like it.

Much of the blog activity that leads to lawsuits is mean-spirited and nothing to cheer about. Nonetheless, you can’t deny that this is participatory democracy. I can’t help but think that when blogging comes to town hall, it is perhaps the greatest fulfillment of the vision the forefathers had for the First Amendment. This is the core within the core of free speech. I think Jefferson, Madison, and the rest would say this is exactly what democracy and freedom of press are all about.

That said, I get that it hurts. A big part of what drives local officials to get lawyered up is the anonymity blogs allow. People are mean anonymously in a way the would never be with their name attached. There’s no doubt about that.

Another part of the story is that the criticism is in print. No doubt local officials have always been subject to mean-spirited gossip. But gossip uttered on the air is less hurtful than font-rendered invective. It goes back to the traditional legal difference between slander and libel – that is, oral vs. written defamation. The common law’s distinction no doubt grows from an important difference in how we perceive the harmfulness of ephemeral speech versus inky text.

Here are posts from BLB where local officials use the law to attack blogs in 2010: