Archive for the ‘censorship’ Category

“Diabetes Warrior” Challenges North Carolina Licensing Board’s Attempt to Restrict his Blogging

Monday, April 22nd, 2013
Steve Cooksey's before-and-after photos.

Steve Cooksey's before-and-after photos. (From his blog.)

A North Carolina diabetic blogger’s lawsuit may help answer the question of when occupational licensing laws can be used to restrict speech.

The blogger, Steve Cooksey, runs Diabetes Warrior, which answers questions sent in my readers about how to manage their disease.

It’s not surprising that Cooksey has raised eyebrows. His advice is decidedly anti-establishment.

“[Y]ou know that we have been lied to by Big Food, Big Pharma and the medical industry,” he tells his readers, “including doctors, diabetes educators, dietitians and nutritionists.”

Cooksey’s slogan is, “Diabetes Management from a Paleolithic Perspective.” Instead of insulin treatment, Cooksey advocates a “primal” diet – one patterned after what humans from the Stone Age would have eaten. His chief claim to expertise on the matter is his own experience as a diabetic. He blogs, “I have not taken a drug since March 2009. I have weaned off drugs and insulin completely… and I have normal blood sugar.”

A month after starting his blog in 2011, the North Carolina Board of Dietetics/Nutrition informed him he was engaging in the unlicensed practice of dietetics. As his public-interest law firm, The Institute for Justice, explains it:

[T]he State Board informed Steve that he could not give readers advice on diet, whether for free or for compensation, because doing so constituted the unlicensed, and thus criminal, practice of dietetics. The State Board also told Steve that his private emails and telephone calls with readers and friends were illegal, as was his paid life-coaching service. The State Board went through Steve’s writings with a red pen, indicating what he may and may not say without a government-issued license.

So Cooksey sued to vindicate a free-speech right to blog as he sees fit.

He was dealt an early blow when a federal district court dismissed his case for lack of an injury. But the case is now on appeal to the U.S. Court of Appeals for the Fourth Circuit. Cooksey quotes his attorney, Jeff Rowes, as saying:

Under the First Amendment, a citizen is injured by the mere existence of a statute that regulates speech. And there are literally dozens of Supreme Court and federal appellate cases saying that you have standing when the government actually tells you that your speech is illegal. The courts have a very relaxed standard for bringing a First Amendment case because the right to free speech is considered to be so important.

Once the court of appeals recognizes that this is a First Amendment case, we expect it to rule that we have standing and send the case back to the district court to be litigated as a free-speech case.

I think occupational licensing, in general, is okay. It is sometimes badly needed to protect consumers from rank incompetence. But such statutes can conflict with free speech. And in this case, it seems to me that the North Carolina licensing authority has indeed gone beyond regulating a profession and has entered into the business of censorship.

(Another case along the same lines is that of Horace Hunter, an attorney in Virginia.)

Apple’s Victory Over Samsung is Bad for Bloggers and Blog Freedom

Friday, August 24th, 2012

Apple won huge today in its patent battle with Samsung over smartphones (Wired).

It’s a pretty dark day for the net.

While most of the chatter at this point seems to be about how this is likely to raise the price of your smartphone (it is) or make it less good (true also), there are even more important stakes: This is about free expression in the United States.

Here’s the problem: Apple doesn’t just make great phones and tablets that are expensive, Apple makes phones and tablets that censor content.

Apple has shown consistent willingness to use its power as the holder of the keys to the hardware and the operating system to lock out content creators it doesn’t approve of. Now that Apple is able to use the patent law to snuff out competition, and now that phones are one of the most important ways in which we communicate today, Apple has become a real threat to free speech.

Assuming we have a strong open-source ecosystem, as we did with Android up to this point, if you didn’t like Apple’s censorship, then you could always just walk away. Depending on what flows from this verdict, that ability to walk away may no longer be a practical alternative.

If Apple becomes essentially the only game in town for decent smartphones, then when you are away from a computer and alone with your phone, you’ll get to see and say what Apple says you can see and say. That would be a tragedy.

Memo to the appellate lawyers for Samsung: Consider briefing a First Amendment angle here.

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.

More:

Google’s Latest Transparency Report See “Troubling” Uptick in Government Requests

Tuesday, June 19th, 2012

Google's logo in bright, primary colorsGoogle’s latest biannual Transparency Report discloses an increase in government requests for user data and take downs. In the last half of 2011, government agencies requested the removal of 6,192 items posted on Google sites and asked for information from 12,243 Google user accounts.

Google senior policy analyst Dorothy Chou blogged some analysis of the data in the report:

Unfortunately, what we’ve seen over the past couple years has been troubling, and today is no different. When we started releasing this data in 2010, we also added annotations with some of the more interesting stories behind the numbers. We noticed that government agencies from different countries would sometimes ask us to remove political content that our users had posted on our services. We hoped this was an aberration. But now we know it’s not.

Chou noted that it’s not just the countries you would expect asking for the takedowns.

Spanish regulators asked us to remove 270 search results that linked to blogs and articles in newspapers referencing individuals and public figures, including mayors and public prosecutors. In Poland, we received a request from a public institution to remove links to a site that criticized it. We didn’t comply with either of these requests.

Google did, however, comply partially or fully with 42 percent of the “requests,” which includes court orders as well as more informal asks. The majority of requests related to criminal investigations.

Kudos to Google for publishing these reports and a wealth of well-organized underlying data (including lists, maps, raw data).

More:

Amanda Simmons at the Reporters Committee for Freedom of the Press: Google report: Government agency requests for content removal and user data rise globally and in U.S.

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.

Down Against SOPA

Wednesday, January 18th, 2012

Today, Congress is considering passage of SOPA – the Stop Online Piracy Act – legislation that would destroy the free architecture of the internet and initiate censorship.

I’m blacking out Blog Law Blog for the day to join with many others in showing symbolically what the internet could look like if this bill becomes law.

If you are in the U.S., please take a moment to contact your representative to register your opposition.

Blackouts Tomorrow for SOPA and PIPA

Tuesday, January 17th, 2012

Wikipedia is planning to blackout its whole site tomorrow as a protest to SOPA and PIPA – those internet censorship-in-the-name-of-fighting-intellectual-property-piracy bills on Capitol Hill. I know other websites are planning or contemplating the same.

I think I’ll do the same here on Blog Law Blog. I just have to figure out how to do it in terms of the code on the back end. If you are planning to join in, read up on how to do it the right way so you stay friendly to search engines.

Dutch Conference on Internet Freedom Highlights Plight of Bloggers Under Oppressive Regimes

Monday, December 26th, 2011

Logo for Freedom Online 8 & 9 December 2011 Joint Action for Free Expression on the InternetEarlier this month the Netherlands’ Ministry of Foreign Affairs hosted a conference called Freedom Online: Joint Action for Free Expression on the Internet. The conference was attended by more than 20 countries and NGOs, including the United States, which sent Secretary of State Hilary Clinton.

One particular subject of discussion was the need to help bloggers in countries ruled by oppressive regimes. There’s a good write up by Toby Sterling of the Associated Press: EU official: Protect bloggers from repressive governments.

Secretary Clinton, who opened the conference, issuing a call for companies to refuse to sell surveillance technologies to repressive governments. It’s wonderful to see the U.S. take a leadership stance on internet freedom, but there’s some irony as well.

Syrian blogger Amjad Baiazy, who was arrested and tortured earlier this year because of his online writing, noted that Western companies surveillance system that Syria’s been using to ferret out internet dissidents.

And Dutch member of parliament Marietje Schaake, while dittoing Clinton’s call for restraint among tech companies, took the U.S. to task for Congressional consideration of SOPA (the proposed Stop Online Piracy Act,” which, she said, “give great incentives to governments like China to do the same,” blocking access to expression they find inappropriate.

Important points, all around.

SOPA Stopped – For Now

Monday, December 19th, 2011

Under a wave of phone calls and social-media attention, Lamar Smith (R-Texas) abruptly called an end to the hearings on SOPA, saying they would be rescheduled for the future. Lamar Smith is a toughie. So getting him to take a step backward is quite an accomplishment!

More:

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.

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.”

UN Report: Internet as Human Rights Issue

Monday, June 27th, 2011

Blue flag of the United NationsThe United Nations Human Rights Council has published a report [pdf] by Special Rapporteur Frank La Rue on the promotion and protection of the right to freedom of opinion and expression. The document is heavy on analysis of online expression, looking at the internet as a human rights issue.

I’ll post various key excerpts on more specific topics in coming days. But first, here are some key excerpts of the report regarding the importance of the internet for free expression. There is a lot of good sense in here. Most importantly, the internet strongly identified as implicating human rights issues. Additionally, we get the counsel that because the internet is special, it deserves freedoms from regulation that traditional forms of media may not enjoy.

These excerpts are from paragraphs 2, 19-23,

The Special Rapporteur believes that the Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies. Indeed, the recent wave of demonstrations in countries across the Middle East and North African region has shown the key role that the Internet can play in mobilizing the population to call for justice, equality, accountability and better respect for human rights. As such, facilitating access to the Internet for all individuals, with as little restriction to online content as possible, should be a priority for all States. …

Very few if any developments in information technologies have had such a revolutionary effect as the creation of the Internet. Unlike any other medium of communication, such as radio, television and printed publications based on one-way transmission of information, the Internet represents a significant leap forward as an interactive medium. Indeed, with the advent of Web 2.0 services, or intermediary platforms that facilitate participatory information sharing and collaboration in the creation of content, individuals are no longer passive recipients, but also active publishers of information. Such platforms are particularly valuable in countries where there is no independent media, as they enable individuals to share critical views and to find objective information.

Indeed, the Internet has become a key means by which individuals can exercise their right to freedom of opinion and expression, as guaranteed by article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. …

… the framework of international human rights law remains relevant today and equally applicable to new communication technologies such as the Internet.

The right to freedom of opinion and expression is as much a fundamental right on its own accord as it is an “enabler” of other rights, including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly. Thus, by acting as a catalyst for individuals to exercise their right to freedom of opinion and expression, the Internet also facilitates the realization of a range of other human rights.

The vast potential and benefits of the Internet are rooted in its unique characteristics, such as its speed, worldwide reach and relative anonymity. At the same time, these distinctive features of the Internet that enable individuals to disseminate information in “real time” and to mobilize people has also created fear amongst Governments and the powerful. This has led to increased restrictions on the Internet through the use of increasingly sophisticated technologies to block content, monitor and identify activists and critics, criminalization of legitimate expression, and adoption of restrictive legislation to justify such measures. In this regard, the Special Rapporteur also emphasizes that the existing international human rights standards, in particular article 19, paragraph 3, of the International Covenant on Civil and Political Rights, remain pertinent in determining the types of restrictions that are in breach of States’ obligations to guarantee the right to freedom of expression.

However, in many instances, States restrict, control, manipulate and censor content disseminated via the Internet without any legal basis, or on the basis of broad and ambiguous laws, without justifying the purpose of such actions; and/or in a manner that is clearly unnecessary and/or disproportionate to achieving the intended aim, as explored in the following sections. Such actions are clearly incompatible with States’ obligations under international human rights law, and often create a broader “chilling effect” on the right to freedom of opinion and expression.

In addition, the Special Rapporteur emphasizes that due to the unique characteristics of the Internet, regulations or restrictions which may be deemed legitimate and proportionate for traditional media are often not so with regard to the Internet. For example, in cases of defamation of individuals’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate.

Similarly, while the protection of children from inappropriate content may constitute a legitimate aim, the availability of software filters that parents and school authorities can use to control access to certain content renders action by the Government such as blocking less necessary, and difficult to justify.12 Furthermore, unlike the broadcasting sector, for which registration or licensing has been necessary to allow States to distribute limited frequencies, such requirements cannot be justified in the case of the Internet, as it can accommodate an unlimited number of points of entry and an essentially unlimited number of users.

Freedom House Report on Censorship-Circumvention Tools

Thursday, May 26th, 2011

Report coverFreedom House has released a report called Leaping Over the Firewall: A Review of Censorship Circumvention Tools. China, Iran, Burma, and Azerbaijan are particular focuses.

The EFF Deeplinks blog gave the report a somewhat lukewarm review.

Of course, we can all agree that anything that helps people living under oppressive regimes to obtain a measure of free exchange of ideas is a good thing.

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.”

Guide Released by Access Organization

Tuesday, April 5th, 2011

The Access organization has released a “A Practical Guide to Protecting Your Identity and Security Online and When Using Mobile Phones” for people in the Middle East and North Africa. It offers “tips and tools for reducing surveillance and monitoring, protecting privacy, and dealing with censorship.”

Ha’p @cshirky, @bahrainiac

Hazelwood and the Impetus for Anti-Hazelwood Laws

Monday, February 14th, 2011

The point of a law like this is to tie the hands of school adminisrators so that they cannot use the power given to them by the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)

In Hazelwood, a principal, reviewing page proofs of an upcoming issue of the school newspaper, yanked pages that contained a story about students dealing with pregnancy and a story about the impact of parents’ divorce on students. The stories were written and edited by students in journalism course at the school. The principal thought that references to birth control and sex were inappropriate for younger high school students. He also thought a divorced father, even if not named in the story, should be asked for consent before remarks concerning him were published. And the principal came up with other reasons as well: privacy, yadda yadda. Basically, discussion of divorce and pregnancy in the school newspaper made him uncomfortable. Let’s just say he’s not looking to train the next Woodward and Bernstein. He’s the kind of administrator who likes to unfold his school newspaper to see a front-page puff piece about how Friday Pizza Day is such a big hit in the school cafeteria.

The U.S. Supreme Court said that the school had not violated the students’ rights under the First Amendment. Why? In part, it was because the school owned this particular press. They created and funded the newspaper, so they could do what they wanted with it.

But the Supreme Court also went further to hold that the First Amendment rights of students in public schools are not the equal of First Amendment rights of adults in other settings. The court said that a school doesn’t have to tolerate student speech that is inconsistent with the school’s basic educational mission. So even if the government can’t censor similar speech outside the school, they can, according to the court, inside the school.

With this being how the First Amendment is interpreted with respect to schools, state legislatures have drafted so-called anti-Hazelwood statutes aimed to give students an extra measure of free-speech protection beyond that which First Amendment requires.

At first, this may seem strange, especially if you’ve never had to take a course constitutional law in law school. After all, a state legislature can’t overrule the U.S. Supreme Court. Right?

To keep track of how this works, you have to keep in mind that the First Amendment is not binding on the people. It doesn’t force the people or prohibit the people from doing anything. The First Amendment is binding on the government (including the public schools). By restraining the actions of government, the First Amendment carves out a freedom for the people. State legislatures are always free to add more restrictions on state government. Thus, state legislatures can carve out a progressively larger swath of freedom of the people in their state.

So, in essence, the anti-Hazelwood statute says, “Okay, U.S. Supreme Court, if you won’t interpret the First Amendment to tie the hands of meddling principals, we, the state legislature, will.”

Nebraska Legislature Mulls School Free Speech Statute

Friday, February 11th, 2011
Capitol tower in Lincoln, Nebraska in daytime

Nebraska Capitol in Lincoln
(Photo: EEJ)

Representative Ken Haar in Nebraska has introduced Legislative Bill 582, the “Student Expression Act.”

Now, if you are up on your state-civics trivia, you’ll know it’s called a “Legislative Bill” instead of a “Senate Bill” or “Assembly Bill” because Nebraska has just one legislative house. It’s the only state with a unicameral legislature.

The Student Expression Act would offer some protections for student bloggers.

Here is the whole text:

Be it enacted by the people of the State of Nebraska,

Sec. 1. This act shall be known and may be cited as the Student Expression Act.

Sec. 2. The Legislature finds that the State of Nebraska has an obligation to protect the First Amendment rights of public school students in order to instill in students the value of democracy and to prepare students for informed and active civic participation. To that end, the right of students to free expression in all public schools in Nebraska shall not be abridged except as provided in the Student Expression Act.

The Legislature encourages school districts to adopt and publish policies on student expression following the guidelines of the Student Expression Act.

Sec. 3. For purposes of the Student Expression Act, student expression includes the rights of a student to: Express his or her thoughts and beliefs through speech and symbols; create, write, publish, perform, and disseminate his or her views; and assemble peaceably with other students on school property for the purpose of expressing opinions.

Sec. 4. The following forms of student expression are prohibited:
(1) Student expression which is obscene; (2) Student expression which is defamatory; and (3) Student expression which creates a clear and present danger of unlawful acts, causes material and substantial disruption of the orderly operation of the school, or invades the privacy of others.

Sec. 5. No student expression made in the exercise of a First Amendment right shall be deemed to be an expression of school policy, and no public school, school district, teacher, administrator, or school board member shall be held responsible or liable in any civil or criminal action for any student expression.


Wendy Seltzer on the DMCA’s Effects on Free Speech

Friday, January 28th, 2011

The Harvard Journal of Law & Technology has published Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment [pdf] by Wendy Seltzer, a fellow with Center for Information Technology Policy at Princeton University.

Here is the abstract, taken from the draft version of the paper posted on SSRN.

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas. Yet under the DMCA’s pressure, the poster’s private incentive to counter-notify and the host’s incentives to support challenged speech are often insufficient to support an optimal communication environment for the public. Instead, this set of incentives produces a blander, but not significantly less copyright infringing, information space.

Copyright claimants assert that the expedited process of the DMCA is critical to suppress infringement in the highly networked digital world. While many instances of infringement are properly targeted for takedown under the DMCA, I argue that the accuracy of some takedowns does not excuse a careful examination of the rate and costs of error. I therefore recommend changes to the law to reduce the error, balancing speech protection and copyright.

Part I surveys the legal, economic, and architectural sources of the DMCA’s chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright’s place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.

WNYC Interview of Previously Censored Tunisian Blogger Lina Ben Mhenni

Tuesday, January 25th, 2011

Lina Ben Mhenni

Lina Ben Mhenni, photo from her blog

WNYC’s On the Media has run an interview of Tunisian blogger Lina Ben Mhenni, whose blog, A Tunisian Girl, was banned under now-deposed dictator Ben Ali’s regime.

Ben Mhenni’s influential blog posted pictures of people injured and killed during the recent Tunisian protests.

In the interview, Ben Mhenni says she is currently being followed everywhere and relentlessly harassed by the police, but that there is nonetheless a burgeoning sense of freedom of speech in the country. Journalists are able to work in the open, and her blog is no longer being censored.

While her blog was banned, only foreign audiences were able to read it. Now, she says, her domestic audience is building.

Texas Court Rejects Ex Parte Request for Restraining Order Against Blogger

Monday, December 27th, 2010

From the websites of dueling Dallas neighbors Lost Society and Barking Dogs

The Reporters Committee for Freedom of the Press reports that a court in Texas has tossed out a request for a restraining order against a blogger.

The plaintiff, Fernando Rosales, sought the injunction to stop blogger Avi Adelman of BarkingDogs.org from writing about Rosales’s Dallas nightclub, Lost Society. [LINK WARNING: excessive levels of décolletage and thumpy music!]

The injunction request was related to a defamation suit against Adelman. Also noteworthy in that suit, Adelman has invoked Texas’s shield law in resisting a subpoena served by Rosales seeking sources relating to a post about a shooting in the vicinity of the bar.

From BarkingDogs.org:

Is the Tyler Clementi Act a Threat to Free Speech?

Thursday, December 16th, 2010

David French in the National Review Online argues that the Tyler Clementi Higher Education Anti-Harassment Act (H.R. 6425) is a threat to free speech.

As I mentioned previously, the bill specifically targets cyberbullying and includes blogging activity within its coverage. My discussion of the bill is here.

French’s argument is that the bill has First Amendment problems because it lacks a requirement that the harassment be “objectively offensive.”

I see his point, but I think he’s off the mark. The text of the bill requires that the harassment be:

sufficiently severe, persistent, or pervasive so as to limit a student’s ability to participate in or benefit from a program or activity at an institution of higher education, or to create a hostile or abusive educational environment at an institution of higher education

That seems to me to be limiting enough to protect legitimate expressive interests. At the same time it seems specifically tailored to protecting a person’s ability to benefit from a federally funded educational program.

In fact, the bill’s current limitations seem to be more protective of free speech interests than an “objectively offensive” requirement would be by itself.

An objectively offensive requirement would presumably make a jury issue out of how far the content of the speech deviates from community norms. That sounds to me like a device that could marginalize minority viewpoints and cause more First Amendment problems than it solves.

At any rate, I certainly disagree with French’s assertion that the law’s “primary effect will be a greater chill on free expression.” I think the primary effect would be communicating to gay students society’s revulsion at gay-bashing, as well as our commitment to allowing all students, regardless of sexual orientation, to benefit from America’s educational opportunities.

Peter Colwell: If You Are Reading This, You Are Engaged and Aware

Monday, October 11th, 2010

Peter Colwell has written a note in the William Mitchell Law Review titled “If You Are Reading This, You Are Engaged and Aware”: Serving the Diversity of Interests in Blogs Written by Service Members.

Here is an excerpt:

The current regulatory regime governing blogs written by members of the military comes from official policy memoranda, Army Regulation 530-1, Operations Security (OPSEC), and Uniform Code of Military Justice (UCMJ) articles. This regime fails to provide clear guidance to service members on what is required of them as bloggers, exactly what material they may publish on their blogs, and what the process is for review of blogs. The result is a perception of arbitrary punishment and a potential threat of “chilling” blogging by service members. Further, the regulatory scheme is centered on security considerations and fails to balance or adequately consider the other interests in blogs written by service members in combat zones.

This Note proposes that congressional legislation is necessary to regulate blogs written by members of the armed forces in combat zones. This legislation should weigh the concerns for operational and national security as well as the interests of service member authors, the military, the public, and the literary and journalist community to which these blogs contribute. Congress should enact a statute that creates a committee of civilian journalists and military officials to conduct reviews of blogs and only allow blog removal by vote. The journalists would have insight into journalistic concerns and ethics as well as the journalistic value of a particular blog, while the military representatives would be able to halt publication of blogs that present genuine security risks. The statute should establish concise guidelines, informed by First Amendment jurisprudence, for the review of the postings to curb the discretion of the committee, and it should require written reports on decisions to shut down a blog.

The cite is 36 Wm. Mitchell L. Rev. 5249.

New York Times on Blog Freedom in Syria

Thursday, September 30th, 2010

thumbnail image from the New York Times storyAn article in today’s New York Times describes a “slim margin” of freedom for Syria’s bloggers and “an ever present fog of fear and intimidation” that surrounds practitioners in Syria’s online press. Several bloggers have been jailed, and a draft law would mandate registration of those who blog and would require their writing to be submitted for review.

The article, by Robert F. Worth, is “Web Tastes Freedom Inside Syria, and It’s Bitter.”

Guardian: Kamarudin Blogs On About Malaysia From His London Safe Haven

Tuesday, August 24th, 2010

Flag of MalaysiaBen Bland in the UK’s Guardian: Malaysian blogger continues attacks from his UK base

The story concerns blogger Raja Petra Kamarudin, who fled Malaysia after learning that he might face further criminal prosecution for his blogging. The current charges are sedition and defamation.

(Ha’p Media Law Prof Blog)