Archive for the ‘press freedom’ Category

Famed Media Lawyer James C. Goodale Calls Out Obama on Press Freedom

Thursday, May 16th, 2013

Daily Beast logoFamous media lawyer James C. Goodale (who I was lucky enough to meet when I was a summer associate at his law firm in New York in 1999), has written a provocative piece for the Daily Beast that I think is worth a read: Is Obama Worse For Press Freedom Than Nixon?

Goodale argues that Barack Obama’s campaign to stamp out leaks is trampling on the freedom of the press. He notes that the Obama administration has obtained more indictments of leakers – a total of six – than any other American president. (That’s a factoid I found somewhat surprising.)

To avoid making bad history, Goodale urges the Obama administration to drop any effort to prosecute Wikileaks founder Julian Assange under a theory that the conspired with the Army’s Bradley Manning to violate the Espionage Act. Doing so would breathe life into a legal theory that Goodale calls “extremely dangerous to freedom of the press.”

Such a prosecution, Goodale explains, “would only require that Manning agreed with Assange to leak information. This would be far easier to prove than trying to prove Assange, in fact, violated the Espionage Act.” Going there would “put in jeopardy the gathering of national security information by any reporter and so criminalize the newsgathering process.”

Snowed Over by a Driving Ban?

Sunday, February 10th, 2013

Snow piled up along Somerville Street in Somerville, Mass. on February 9, 2013, the day after a massive snowstorm prompted state officials to issue a state-wide driving ban. (Photo by Darcy, via Flickr)

The blizzard travel ban in Massachusetts I blogged about was lifted yesterday after 24 hours, according to announcement on the front page state’s emergency management agency.

If you are a blogger or citizen journalist who was cited, arrested or hassled by police in Massachusetts or elsewhere during the big blizzard this weekend, please let me know – I’d love to blog about what happened to you.

If you are an attorney representing a citizen journalist or blogger who is facing a fine or jail time for having driven during a weather-induced travel ban which had an exception for news media, I’d love to talk to you as well.

There was no official press release from the governor’s office providing official notice of the lifting of the ban, nor, apparently, is there a superseding executive order.

About the photo: “Somerville Street in Blizzard Nemo” by MoreLife81 / Darcy, licensed under Creative Commons Attribution 2.0 Generic (CC BY 2.0) license.

Blizzard of Blog Law

Friday, February 8th, 2013

As the 2012 superblizzard hits New England, Massachusetts Governor Deval Patrick has issued an executive order banning motor vehicle traffic in the state.

But among the exceptions – along with the police, firefighters, healthcare workers – is the “news media.”

So, does that mean bloggers and citizen journalists can drive right now in Massachusetts? Are they news media?

The executive order – No. 543 [pdf with signature] – does not define “news media.” So should we interpret that to include only newspaper, television, and radio, or bloggers and independent journalists as well? The stakes are high. The Milford Daily News reports that violations of the ban can be punished with a year in jail.

By the way, the order raises a general constitutional question regarding the unenumerated, but court-recognized, right to travel. I am sure that the Commonwealth of Massachusetts would argue that preventing accidents during Snowmaggedon is a compelling government interest and the travel ban is narrowly tailored to serve those ends, so the order would survive whatever constitutional scrutiny put to it.

But I am not so sure. If the travel ban were held to require strict-scrutiny analysis, then a state-wide ban of indefinite duration seems to me not to be narrowly tailored.

When you scrutinize the details, the order seems not to make a lot of sense. Here is the full list of exemptions under the order. Notice anything odd?

  • public safety vehicles and public safety workers, including contract personnel
  • public works vehicles and public works workers, including contract personnel; government officials conducting official business
  • utility company vehicles and utility workers
  • healthcare workers who must travel to and from work in order to provide essential health services
  • news media
  • travel necessary to maintain and deliver critical private sector services such as energy, fuel supplies and delivery, financial systems and the delivery of critical commodities
  • travel to support business operations that provide critical services to the public, including gasoline stations, food stores and hardware stores

Why is travel allowed for gas-station workers if almost no one will need gas since nearly all vehicles are banned?

And the hardware store thing is strange as well. So, hardware stores will be able to have the employees they need to stay open – but no one can drive to the hardware stores. Granted, a few people might be within walking distance of one. But then, what kind of hardware do you need in the middle of a blizzard? I get that there’s a need for plywood before a hurricane hits, but what do you need with hardware during a blizzard?

Finally, I have to say I find it a bit funny that the web-version of the order refers to Governor Patrick as “His Excellency.” I didn’t know anyone in the U.S. used that title. To be fair, Massachusetts has a constitution older than the U.S. Constitution. But still, “His Excellency” seems a little needlessly eccentric.

Twitter Deserves Continuing Credit for Defending Privacy in Harris v. N.Y.

Saturday, September 15th, 2012

gavel coming down on twitter birdFrom what I see, Twitter is doing a strong job of standing up for user privacy in the case of the criminal prosecution of Malcolm Harris. In that case (CMLP summary) New York prosecutors are trying to get Twitter to hand over information about Harris, who has been charged with disorderly conduct relating to an October 2011 Occupy Wall Street protest on the Brooklyn Bridge.

Yesterday, Twitter handed over the requested information pursuant to a court order.

There has been a lot of traffic suggesting that Twitter gave up rather than continue to fight (e.g., Betabeat: “Twitter Caves”). But that’s unfair. Twitter is trying to get review from a higher court. And the records they turned over are sealed until September 21, when another hearing is set.

Twitter has done the right thing. It is right for Twitter to resist. But it is also right for Twitter to comply with the court order to turn over the information. (Even though the court was plainly wrong to issue the order.)

What Twitter should do – and what it is doing in this case – is use all available legal process to protect user privacy. Twitter should not, however, violate the law in order to thwart the courts and prosecutors.

Many reporting on the case have said something to the effect that Twitter decided to turn over the information rather than face expensive fine for being held in contempt of court. (EFF said something similar in an otherwise great post on the case.) Saying that makes it sound like Twitter cheaped out. But, as I see, and as I would see it if I were advising Twitter, the problem is not the expense, it’s that refusing to comply with the court order means Twitter itself is violating the law.

It’s true that reporters will often take a contempt citation and go to jail to protect an anonymous source. When they do, it’s civil disobedience, and it’s often heroic. I hate to say it, but the stake are simply lower here. Anonymous-source-based journalism outed Watergate. It’s cultural and societal importance looms very large. Journalists have tried to get shield laws passed to prevent contempt being used to compel the identification of anonymous sources. And shield laws have been passed in many states. For the remaining gaps, brave reporters have often acted in defiance of the courts and the law to uphold free-press values.

The battle Twitter is fighting is different. It’s more of a general internet privacy issue, and while important, it’s a different ball of wax. It’s worth fighting for the cause in the courts, in the legislatures, and on the international level. But I’m not convinced there are fundamental rights here which necessitate disobeying court process.

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.

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:

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.

Free Webinar from RCFP on Covering Protests

Saturday, May 5th, 2012

Reporters Committee for Freedom of the Press logoThe good folks at the Reporters Committee for the Freedom of the Press are putting on a free webinar for reporters and photographers who are covering events, such as protests, where they could be blocked from reporting or detained by the police. Examples include the Occupy protests as well as the upcoming political conventions in Charlotte and Tampa. Or, you know, if you are in Los Angeles, your local elementary school science fair.

The one-hour webinar will be held May 9, 2012 from 1:00 p.m. EDT. (That’s 12 noon Central, which is my time zone and the time zone where the next big opportunity for reporter-police interaction will be: Chicago, May 20-21, for the NATO Summit.)

The webinar will be lead by Lucy Dalglish, RCFP Exec Director and Gregg Leslie, Legal Defense Director. It looks like they will be giving both a theoretical perspective on where your journalist rights come from as well as practical advice on what to do when confronted or detained by the police.

Excellent stuff! I am signed up and looking forward to it.

To reserve your own place:

https://www4.gotomeeting.com/register/941031095

Cameras in the U.S. Supreme Court Closer to Reality

Thursday, February 16th, 2012

Front of U.S. Supreme Court building with dramatic lightingPhoto by me.

Arthur Bright has a nice post at Citizen Media Law Blog on the good news that the Senate Judiciary Committee voted 11 to 7 to require the U.S. Supreme Court to allow television cameras into hearings.

The bill that has been approved in committee, S.B. 1945, provides:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

We’ll see if the bill becomes law. And if it does, the U.S. Supreme Court could always, of course, strike it down (making for a fun new case for your Federal Courts textbook). But it’s a great step in the right direction for open government and media freedom.

My concern going forward, if cameras are allowed into SCOTUS, is that everyone will have equal access to the footage. If the networks put their own cameras in and produce copyrighted footage, that won’t be a boon to bloggers and citizen journalists. The best implementation would be for the court to do its own television feed, which, as a federal government work, would be copyright-free.

And, of course, there’d be fewer cords to trip over …

Volokh Steps In to Help Blogger Crystal Cox Challenge $2.5 Million Defamation Judgment

Tuesday, January 10th, 2012


Eugene Volokh (Photo: Jeff Barnett-Winsby / UCLA)

Arthur Bright at Citizen Media Law Project blog has the latest on Obsidian Finance v. Cox in Oregon: Professor Eugene Volokh of UCLA Law has stepped in to work on an appeal of the $2.5 million libel judgment against blogger Crystal Cox, which was rendered by a federal court last month.

Critical is whether First Amendment protections established by the U.S. Supreme Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) will apply to Cox, or whether, as a blogger, she’s not a member of the “media.”

A post last month by Eric P. Robinson explores both the Gertz issue and the court’s ruling on the application of the Oregon shield law.

Review of a Review of 2011

Monday, January 9th, 2012

2011As Blog Law Blog continues it’s look back at 2011, I’d like to note a very good wrap-up article over at PBS’s MediaShift:

The article covers the principal stories in media law over the past year, and it does a nice job of hitting the important topics, but the legal analysis isn’t always right on. I’ll just look at one example – what the article lists as the number-one topic in media law over 2011: “‘Wiretapping’ the Police.”

“Wiretapping” sounds like it should involve a man in a headset sitting in a van listening in on your telephone calls. But the legal definition is often far broader — as many journalists and ordinary citizens found out after being charged with a felony for simply filming a few seconds of police activity in public.

It’s true that laws against making surreptitious audio recordings do go well beyond classic “wiretapping,” but I’m aware of no law that purports to make criminal “filming” police activity taking place in public. The an Illinois statute mentioned in the article prohibits recording audio of any conversation without the consent of all persons speaking. That was used against someone with a video camera that was also capturing sound, but the case was ultimately dropped, and it’s not clear that any recent prosecutions have happened under similar circumstances.

In general, however, the problem is not laws themselves – the problem is police arresting people for conduct that does not violate any law.

For instance, when attorney Simon Glik used his cell phone to record Boston Police officers arresting a homeless man in a public park, the officers arrested Glik under a law (Mass. Gen. Laws ch. 272, § 99) that prohibits “secretly” recording wire or oral communications. Glik wasn’t being secret. He was recording openly. His conduct didn’t violate the law. The problem there was that police were arresting Glik for doing something that wasn’t against the law. Indeed, the charges were soon dismissed. (Post-dismissal, Glik filed a lawsuit that successfully established constitutional rights to make such recordings as well.)

Another instance of this coming up – not mentioned in the PBS article – was the Baltimore Police’s action against Christopher Sharp, who recorded the arrest and apparent abuse of a woman at the Preakness Stakes. The problem there was not that Maryland law prohibited Sharp’s conduct – it didn’t. The problem was that the police seized Sharp’s cellphone on the spot and deleted a bunch of videos (including personal ones as well as the one of the police). At the time, one police officer made the completely absurd claim that it is “illegal to record anybody’s voice or anything else in the state of Maryland.” But, as I explained, that’s not the law.

That’s why the article kind of misses the point when it says:

The importance of the wiretapping cases cannot be overstated. If the government is permitted to prosecute citizens for collecting and disseminating accurate information about acts of official misconduct, specifically when those acts occur in a public place, both citizen and professional journalism — and by extension the public at large — will suffer greatly.

The problem is not the prosecutions. The prosecutions almost never happen. The problem is the police acting lawlessly on the scene.

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.

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.

My Citizen Journalism Rights Respected Just Now

Friday, November 18th, 2011

On my drive home here in Grand Forks, North Dakota I came across the scene of a bad car accident. Oldsmobile sedan vs. GMC Jimmy, and everybody lost. I didn’t witness the accident, but I imagine that speeding, ice, and inattentive driving were factors.

I decided to take my citizen-journalist rights for a try-out with my Canon SLR camera with a big 70-200mm telephoto lens. These pictures were taken about 35 minutes ago at about 4:40 p.m. CST. I am very happy to report that police and fire officials treated me courteously.

Car accident scene with firefighters and police officer standing nearby

Blue GMC Jimmy SUV with hood open and severe damage to front driver side

Rights of Photojournalists to Take Photos in Public

Thursday, November 10th, 2011

People who like to take random photos in public places (like these unfortunate ACLU plaintiffs) are subject to harassment by law enforcement. They shouldn’t be. But they are.

While there is a fair amount of material providing general legal guidance focused on the writing side of blogging (such as at CMLP and EFF), there is a paucity of material advising you on what you can and can’t get away with using a camera.

The best resource I’ve found – although about six years old – is this legal memorandum [pdf] from Kurt Wimmer and John Blevins at the law firm of Covington & Burling, done for the National Press Photographers Association. From the memo:

In summary, we find that there is no federal law that justifies the broad prohibitions that are being imposed on photography in public areas. There is no new federal law, including the Patriot Act, that restricts photography of public buildings and installations on the basis of concerns over terrorism. Restrictions of photojournalism that proceed on this basis may constitute violations of journalists’ First Amendment right to gather news.

I’ll think I’ll print out a copy and put it in my camera bag.

More:

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:

UK Anti-Terrorism Law Invoked Against Dad Who FB’d Photo of Daughter Eating Ice Cream in Mall

Tuesday, October 11th, 2011

Four-year-old girl eating ice cream on a seat fashioned like a pink Vespa scooter

The face of terrorism? (Photo: Chris White)

Chris White used his cell phone to take the adorable photo at right of his 4-year-old daughter eating ice cream in the Braehead Shopping Centre in Glasgow, Scotland. And with that, Mr. White took his fateful step toward becoming a terrorist – or so it would seem in the view of authorities who then swooped down on him.

To be entirely frank, I would understand authorities accusing me of terrorism for bringing my 3- and 6-year-old boys into a shopping mall. They go berserk in public spaces. Generally, you can’t capture a non-blurry photo of my boys with a cell phone – they move too fast. Often they are moving fast in a way that constitutes an immediate threat to property and person. But this photo of Chris White’s daughter seems to me to have nothing-to-do-with-terrorism written all over it.

I will let Mr. White explain what happened in his own words:

Walking down the shopping mall a man approached me from behind as I was carrying my daughter in my arms. He came from behind me, cutting in front of me and told me to stop. That was quite a shock as I am wary of people with crew cuts and white shirts suddenly appearing in front of me [Me too. –EEJ], but then realised he was a security guard. He then said I had been spotted taking photos in the shopping centre which was ‘illegal’ and not allowed and then asked me to delete any photos I had taken. I explained I had taken 2 photos of my daughter eating ice cream and that she was the only person in the photo so didn’t see any problem. i also said that I wasn’t that willing to delete the photo’s and there seemed little point as I had actually uploaded them to facebook. He then said i would have to stay right where I was while he called the police …

The older police officer … said that there had been a complaint about me taking photos and that there were clear signs in Braehead shopping centre saying that no photographs were allowed. I tried to explain that I hadn’t seen any clearly displayed signs and that I had taken 2 photos of my daughter. … He then said that under the Prevention of Terrorism Act he was quite within in his rights to confiscate my mobile phone without any explanation for taking photos within a public shopping centre[.] … He then said on this occasion he would allow me to keep the photos, but he wanted to take my full details. Name, place of birth, age, employment status, address. … The police officer also said that the security guard was within his rights to now ask me to leave Braehead Shopping Centre and bar me from the premises which I was happy to oblige.

The UK Prevention of Terrorism Act apparently allows the UK’s Home Secretary or a court to issue a “control order” that can restrict a terrorist suspect’s liberty in various ways, including prohibiting the person from possessing a mobile phone. I don’t see in the act where it allows a police officer to exercise that power on the spot when confronting a person the officer believes to be a suspect. But maybe someone who understands UK law better can chime in on that.

Well, after Mr. White started a Facebook page called Boycott Braehead, the story was picked up by the BBC, and within hours the management of Braehead was apologizing and announcing a change in policy so that people will be able to take photos of friends and family. They are also saying they will implement the change at all 11 centers owned by the same company.

Meanwhile, the Boycott Braehead page has 22,381 likes. Check that: 22,475. (It’s going up as I write this.) Now it’s 22,498.

More:

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.”

The Sorry State of Blog Freedom in Vietnam

Friday, May 13th, 2011

Map and flag of Vietnam

Vietnam continues to be a woeful example of suppression of online speech. From the Reporters Without Borders dossier on the country:

Online media and blogs, mainly those hosted on WordPress, Multiply or Blogspot, thanks to contributions from citizen journalists, have acquired a de facto status equivalent to a sort of independent private press and are having a growing impact on public opinion. … Bloggers are carrying out actual field surveys whose results could not be published in the traditional media. Thanks to the Internet and to the debate and opinion-sharing spaces which it offers, a virtual civil society has emerged. Pro-democratic activists and critics of the government have found refuge there, which worries the authorities.

High Schooler Who Called Admins “Douchebags” Loses Appeal 3-0

Wednesday, April 27th, 2011

The Second Circuit U.S. Court of Appeals has ruled against Avery Doninger, a student who blogged that administrators of her high school were “douchebags” because of their cancellation or forced rescheduling of Jamfest, a student-organized battle of the bands.

Doninger also sent out an e-mail which got the administration deluged with e-mails and phone calls of protest. In response, Lewis S. Mills High School of Burlington, Connecticut banned the Doninger, who was then junior class secretary, for running for senior-class secretary.

The Second Circuit panel ruled 3-0 against Doninger. Writing for the court, Judge Debra Ann Livingston wrote:

… Doninger’s discipline extended only to her role as a student government representative: she was not suspended from classes or punished in any other way. Given that Doninger, in serving in such a position, was to help maintain a “continuous communication channel from students to both faculty and administration,” it was not unreasonable for [Principal Karissa] Niehoff to conclude that Doninger, by posting an incendiary blog post in the midst of an ongoing school controversy, had demonstrated her unwillingness properly to carry out this role.

That’s silly. Let’s face it, student government is bascially useless. The only purpose it has is planning events and serving as a kind of practice democracy. What good is the First Amendment for students if it doesn’t protect you in the course of practice democracy?

Not to mention, the speech concerned a matter of planning an event! In my opinion, Doninger’s speech was at the very core of protected First Amendment student expression. I mean it was involving JAMFEST for crying out loud!!

You should read the facts in the decision. They’re super fun. It’s like a John-Hughes-type movie. I’m not making this up: There as a school assembly where students came in wearing t-shirts with “Team Avery” on the front and “Support LSM Freedom of Speech” on the back. And Principal Niehoff instructed them to remove their shirts! Can you believe it?

Count me as a member of Team Avery!

NPR on Arrested Blogger Maikel Nabil Sanad

Thursday, April 7th, 2011

NPR logoNPR’s All Things Considered has a story about military repression in post-Mubarak Egypt. The story discusses law student and blogger Maikel Nabil Sanad, arrested 11 days ago for posting a blog entry saying the military was not with the people, despite its claims to the contrary. Sanad has been charged with insulting the military and harming state security. Each count carries a potential sentence of three years in prison.

First Circuit Case on Right to Video Police in Public Places

Friday, March 18th, 2011
Boston skyline over the Charles River (Photo: EEJ)

Boston skyline over the Charles River (Photo: EEJ)

The First Circuit Court of Appeals is considering Glik v. Cunniffe, et al (10-1764), a case that has big-time implications for American bloggers and other members of the citizen media with a bent toward gathering news where it happens.

As the Citizen Media Law Project reports on its blog, Harvard Law School’s Cyberlaw Clinic, the CMLP, and a coalition of other organizations, including the Reporters Committee for Freedom of the Press and several big media companies, filed an amicus curiae (“friend of the court”) brief recently in the case. The amici urged the court to uphold a First Amendment right to gather news in public places.

Here’s the brief: [pdf]

An attorney, Simon Glik, used his cellphone to make a video recording of Boston Police officers arresting a homeless man in downtown’s Boston Common, a big public park. Obviously, the police were annoyed. Glik was then arrested. The charge was an interesting one – criminal wiretaping.

Yes, really.

Glik was charged with a violation of the Massachusetts Wiretap Statute (Mass. Gen. Laws ch. 272, § 99). Here’s the most relevant bits of the law:

B. Definitions. As used in this section—

2. The term “oral communication” means speech, except such speech as is transmitted over the public air waves by radio or other similar device.

3. The term “intercepting device” means any device or apparatus which is capable of transmitting, receiving, amplifying, or recording a wire or oral communication other than a hearing aid or similar device which is being used to correct subnormal hearing to normal and other than any telephone or telegraph instrument, equipment, facility, or a component thereof, (a) furnished to a subscriber or user by a communications common carrier in the ordinary course of its business under its tariff and being used by the subscriber or user in the ordinary course of its business; or (b) being used by a communications common carrier in the ordinary course of its business.

4. The term “interception” means to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication; provided that it shall not constitute an interception for an investigative or law enforcement officer, as defined in this section, to record or transmit a wire or oral communication if the officer is a party to such communication or has been given prior authorization to record or transmit the communication by such a party and if recorded or transmitted in the course of an investigation of a designated offense as defined herein.

C. Offenses.

1. Interception, oral communications prohibited.

Except as otherwise specifically provided in this section any person who—

willfully commits an interception, attempts to commit an interception, or procures any other person to commit an interception or to attempt to commit an interception of any wire or oral communication shall be fined not more than ten thousand dollars, or imprisoned in the state prison for not more than five years, or imprisoned in a jail or house of correction for not more than two and one half years, or both so fined and given one such imprisonment.

Do you think what Glik was doing was really “secret”. I kind of doubt it, since he was arrested on the scene.

Specifically, the police noticed what Glik was doing and then asked him whether the phone had audio recording capability. After Glik confirmed that it did, they arrested him.

Why was Glik recording the arrest of the homeless man, by the way? He thought the police were using excessive force. Now you begin to get a picture of just how annoyed these police officers must have been.

Well, the charges were, as you might imagine, quickly dismissed. After that, Gilk filed suit in federal court to vindicate his rights. The district court denied the defendant’s motion to dismiss, and now we are in the Court of Appeals.

Good luck to Glik and the amici!

More:

Internet Speech Freedom on the Line in Paris

Monday, January 31st, 2011

Professor Joseph H.H. Weiler

Joseph H.H. Weiler, an extremely well-regarded scholar of international law (and my teacher back in law school) has completed his criminal trial for libel in France. The verdict isn’t due back until March 3rd, but Weiler’s account of the trial is up on his journal’s blog, and it’s great reading.

The case stems from an unflattering review of Dr. Karin Calvo-Goller’s book The Trial Proceedings of the International Criminal Court. Weiler didn’t write the review, but he did publish it on Global Law Books, a website of the European Journal of International Law. Weiler is and was editor-in-chief of the EJIL.

Calvo-Goller was offended and demanded that Weiler pull the review down. Weiler offered to publish Calvo-Goller’s response, but he refused to remove the review. After his investigation, Weiler determined the piece contained no factual inaccuracies.

While the case involves a book review, not a blog entry, the stakes for blog law are high. That’s because of what Calvo-Goller did next.

She didn’t sue Weiler where he lived. Instead, Calvo-Goller filed a criminal complaint in Paris.

From Weiler’s post:

Why Paris you might ask? Indeed. The author of the book was an Israeli academic. The book was in English. The publisher was Dutch. The reviewer was a distinguished German professor. The review was published on a New York website.

Beyond doubt, once a text or image go online, they become available worldwide, including France. But should that alone give jurisdiction to French courts in circumstances such as this? Does the fact that the author of the book, it turned out, retained her French nationality before going to live and work in Israel make a difference? …

Paris … is very plaintiff friendly.

In France an attack on one’s honor is taken as seriously as a bodily attack. Substantively, if someone is defamed, the bad faith of the defamer is presumed just as in our system, if someone slaps you in the face, it will be assumed that he intended to do so. Procedurally it is open to anyone who feels defamed, to avoid the costly civil route, and simply lodge a criminal complaint. At this point the machinery of the State swings into action.

The French Republic v. Weiler has been brewing for a while. But this month, it  finally went to trial.

The trial took place in in France’s version of Old Bailey – the hallowed Tribunal de Grande Instance de Paris,
where Émile Zola was tried for libel over the publication of his J’accuse! letter. More than 100 years later, France is still criminally prosecuting alleged libel.

Especially interesting for me was Weiler’s account of the procedural aspects of the quick trial, which he described as “a strange mélange of the criminal and civil virtually unknown in the Common Law world.”

Despite its unfamiliarity, Weiler expressed considerable admiration for a procedure that was steadfastly “aimed at establishing the truth.”

“The trial was impeccable by any standard with which I am familiar,” Weiler wrote in the post. “Due process was definitely served. It was a fair trial.”

Read Weiler’s full account. It’s worth it. The stakes in this case are high. Blog freedom, along with Weiler, is “in the dock.”

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.

Section 230 and Forced Removal of Defamatory Content

Friday, January 14th, 2011

Mike Masnick profiles some Section 230 cases that are important for bloggers: