First Amendment – Page 26

Fighting for our online freedom of speech

As I’m sure you already know, Wikipedia’s English-language site is the most prominent to go dark today in protest of two bills being considered by Congress to crack down on copyright infringement.

The bills, the Stop Online Piracy Act (SOPA), in the House, and the Protect IP Act (PIPA), in the Senate, are being pushed by major media corporations. Copyright infringement is a real problem, of course, but these bills would place the interests of copyright-holders above all other considerations. Save the Internet puts it this way:

If they are passed, corporations (with the help of the courts) will become the arbiters of what is and isn’t lawful online activity, with millions of Internet users swept in their nets as collateral damage.

Earlier item here. Note that the Big Brother poster I used to illustrate the item is missing. I wonder if that has anything to do with the protest.

And be sure to have a look at Google.

Appeal filed in bloggers-aren’t-journalists case

Lawyer-blogger Eugene Volokh has filed an appeal in the matter of the Montana blogger who lost a $2.5 million libel case after a federal judge ruled she was not entitled to the legal protections enjoyed by journalists.

“The motion for new trial,” Volokh writes, “argues that the First Amendment applies equally to all who speak to the public, whether or not they belong to the institutional media.”

I wrote about the case last month for the Huffington Post. In a nutshell, U.S. District Judge Marco Hernandez ruled that Crystal Cox, a self-described “investigative blogger,” could not be considered a journalist under Oregon law, where she was sued. Hernandez wrote that he reached that conclusion because Cox did not work for a newspaper or broadcast outlet, and because she lacked training and failed to demonstrate professional standards.

Hernandez’s ruling had two effects. First, Cox could not invoke Oregon’s shield law to protect her source or sources, whose identity was sought by the plaintiffs, a financial-services company and one of its executives. That ruling was actually of little account, since even established media organizations can’t invoke shield laws to defend themselves against libel suits.

Of far more importance was Hernandez’s ruling that the plaintiffs would not have to prove Cox had acted negligently — only that what she had published was false and defamatory. In the 1974 case of Gertz v. Robert Welch, the U.S. Supreme Court ruled that libel plaintiffs must prove the defendant acted with some degree of fault, with negligence as the lowest standard the states could require. But, seizing on an ambiguity in the wording, Hernandez claimed the Gertz protection only applies to professional journalists.

Volokh, by contrast, argues that the U.S. Supreme Court has made it clear for many decades that journalists do not enjoy any special protections under the First Amendment — meaning that any rulings the court has made about the press apply to everyone, not just to those carrying a press pass from a newspaper or television station. (Which was the main thrust of my Huffington Post commentary.) According to the brief, filed by Volokh and Benjamin Souede:

[W]hile the Oregon Supreme Court’s decision establishes what Oregon state libel law is, it is the judgments of the United States Supreme Court that are controlling on the First Amendment question. The United States Supreme Court has never held that the institutional press enjoys such extra rights. All the federal courts of appeals that have considered this question have specifically held that the institutional press lacks any such extra rights.

As several people who’ve looked at this case have reported, most notably David Carr of the New York Times, there is ample evidence that Crystal Cox’s conduct was reprehensible, and that the plaintiffs — Obsidian Financial Group and one of its executives, Kevin Padrick — might easily have won their libel case even if they had been required to meet the Gertz negligence standard.

What makes this case important is not Cox, but rather the principle that all of us — not just professional journalists — should be able to speak and write freely without inadvertently running afoul of libel laws.

Mehanna verdict: Speech, actions or both?

Was Tarek Mehanna of Sudbury found guilty because of his loathsome but constitutionally protected free-speech activities on behalf of Al Qaeda? Or did the jury believe he actually engaged in terrorism, especially during a trip to Yemen, where prosecutors say he sought training?

I hope reporters covering the case will seek to interview every juror, because the answer is vitally important. Right now it’s hard to know whether the verdict was an outrage against the First Amendment or something quite a bit less than that. In following coverage of the trial, it was clear that prosecutors tried to conflate the two — using Mehanna’s expression of pro-terrorism views to prove he was an actual terrorist.

Boston Globe reporter Milton Valencia tweeted a little while ago, “Judging by verdict, this was more than 1st Amendment decision. Was also centered on Yemen trip. Found guilty of conspiracy to kill.”

Mapping the arrest of journalists at Occupy events

[googlemaps https://maps.google.com/maps/ms?msid=206048931241702581094.0004b3ac9ff0c9c0da722&msa=0&ie=UTF8&t=m&vpsrc=6&ll=38.410558,-96.679687&spn=47.614427,87.890625&z=3&output=embed&w=500&h=350]
Josh Stearns of Free Press has been tracking the arrest of journalists at Occupy events for the past several months. Now he’s put together a Google map with names, places and, where available, video. An interesting project and a valuable resource.

More on the journalists-aren’t-bloggers ruling

The redoubtable David Carr has an interesting column in today’s New York Times in which he reports that “investigative blogger” Crystal Cox’s conduct was considerably beyond the pale of what anyone would consider journalism. (My Huffington Post commentary on the case is here.)

But if her behavior was that egregious, then the plaintiffs should have had no problem convincing a jury that she acted negligently (or worse). The negligence standard is a vital constitutional protection regardless of whether those benefitting from it are sympathetic figures.

In order to prove libel, a plaintiff must show that information published or broadcast about him was false and defamatory. Starting with the 1964 case of New York Times v. Sullivan, the U.S. Supreme Court began to require a third element as well: fault. The regime that’s in effect today was solidified by the 1974 case of Gertz v. Robert Welch. Here’s what the courts mean by “fault”:

A public official or public figure must show that what was published or broadcast about him was done so with knowing falsity, or with “reckless disregard” of whether it was true or false.
A private figure must show that the defendant acted negligently when it published or broadcast false, defamatory information about the plaintiff.

U.S. District Judge Marco Hernandez, in his pretrial ruling, obliterated the fault requirement for any defendant except those he deems to be journalists, ignoring the Supreme Court’s longstanding position that the First Amendment applies equally to all of us — for the “lonely pamphleteer” as much as for major newspaper publishers, as Justice Byron White put it in Branzburg v. Hayes (1972).

Hernandez’s contention that journalists enjoy greater free-speech protections than non-journalists is an outrage, and should not be allowed to stand.

Making sense of that journalists-aren’t-bloggers ruling

In my latest for the Huffington Post, I take a look at that bloggers-aren’t-journalists ruling in Oregon. And I argue that the case has nothing to do with the shield law, and everything to do with the dangerous cultural schism between journalists and the rest of society — and a judge who wants to widen it.

A new threat to online freedom of speech

Congress is coming after your Internet. Two proposals wafting their way through the House and the Senate would destroy the Internet as we know it, forcing some websites to shut down and others never to launch in order to avoid onerous penalties for copyright infringement.

As Dan Gillmor explains in the Guardian, the bills — known in the Senate as the Protect IP Act and in the House as the Stop Online Piracy Act — would end what is known as the “safe harbor” law. That law holds an Internet service harmless for hosting infringing material posted by a third party as long as it removes that material as soon as it receives notice from the copyright-holder.

Gillmor observes that YouTube never could have gotten off the ground if such a regime had been in effect at the time of its launching. “Congress is making common cause with a corporate cartel that wants to turn the Internet into little more than an enhanced form of cable television,” he writes.

According to Rebecca MacKinnon, writing in the New York Times, the proposals would set up blacklists to be administered by the U.S. attorney general, so that if a site were found to have infringed on copyright, it would essentially become invisible to anyone trying to find it. She compares the effect of the proposed law to the online censorship system that China uses, except that this one would be designed to protect the corporate interests of media companies rather than a government. MacKinnon argues that skittish businesses are already too eager to comply with takedown notices, and writes that the bills, if passed, could be used to suppress political debate:

Abuses under existing American law serve as troubling predictors for the kinds of abuse by private actors that the House bill would make possible. Take, for example, the cease-and-desist letters that Diebold, a maker of voting machines, sent in 2003, demanding that Internet service providers shut down Web sites that had published internal company e-mails about problems with the company’s voting machines. The letter cited copyright violations, and most of the service providers took down the content without question, despite the strong case to be made that the material was speech protected under the First Amendment.

Yesterday was American Censorship Day (sorry! I missed it!), and a number of sites blocked themselves to dramatize the effect of the proposals, according to the media-reform group Free Press.

Fortunately, David Kravets reports for Wired.com that a chief sponsor of the House bill, Rep. Lamar Smith, R-Texas, seemed to be having second thoughts during a three-and-a-half-hour hearing on Wednesday. But even a compromise could endanger the right to free speech if it empowers the government to act against individuals on behalf of corporations.

And let’s hear a shoutout for U.S. Rep. Ron Paul, R-Texas, a Republican presidential candidate who, as Gillmor notes, has come out against the House bill. I don’t believe the Obama administration has said a word. Sad to say, it doesn’t sound like the sort of thing this president would veto.

As a journalist, I rarely sign petitions. But I’m signing this as soon as I’m done writing, and I urge you to do so as well. The First Amendment is not a partisan cause.

Big Brother poster via Wikimedia Commons.

Talking up terrorism and the right to free speech

It was Peter Gelzinis’ column in today’s Boston Herald that got me thinking about the case of Tarek Mehanna, the Sudbury man on trial for terrorism-related charges in U.S. District Court in Boston.

Mehanna’s lawyer, J.W. Carney, argues that Mehanna’s activities have been limited to advocacy on behalf of Al Qaeda, which is protected by the First Amendment. But prosecutors, as Milton Valencia reports in today’s Boston Globe, have been suggesting that Mehanna is guilty of actual terrorist activities, including traveling to Yemen to receive training.

So I sat up and took notice when I saw this quote in Gelzinis’ column, in which federal prosecutor Aloke Chakravarty tells the jury that Mehanna had translated documents such as “39 Ways to Serve and Participate in Jihad” into English. “Simply agreeing to do that is a crime in this country,” Chakravarty said.

Well, it may be a crime, but if it is, the law under which Mehanna has been charged is almost certainly unconstitutional. Essentially, Mehanna is being charged with incitement to violence, a category of speech that is not protected by the First Amendment, and can thus be prosecuted. But the U.S. Supreme Court has made it clear that speech cannot be considered incitement unless it presents a genuine threat of immediate harm — a right-here, right-now standard that does not apply to general calls for violence.

In 1969, the court ruled that a Ku Klux Klan leader named Clarence Brandenburg could not be prosecuted for calling for “revengeance” (no, not a word, but Klan leaders tend not to be too brite) against Jews and African-Americans, ruling in Brandenburg v. Ohio:

Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Eight years later, the courts overturned efforts by officials in Skokie, Ill., aimed at preventing a neo-Nazi group from marching through the streets of their community. The Supreme Court, having spoken in the Brandenburg case, declined to get involved.

To the extent that Mehanna’s alleged crimes amount to pure advocacy, even of violence against the government and of terrorism, his speech is protected by the First Amendment. As Carney says, “We can hold onto these views, and we can speak them, even if it’s what upsets the United States government. It’s what makes the United States so great, so strong, and so free.”

I find it shocking that Chakravarty read to the jury an ode Mehanna allegedly wrote to commemorate the terrorist attacks of 9/11. If that isn’t protected speech, well, I don’t know what is. It’s the speech we find most loathsome that is in the greatest need of protection. Keep that in mind as this case moves forward.

First Amendment rights and wrongs

In an effort to respect the First Amendment‘s guarantee of freedom of religion, the Upton selectmen have given short shrift to another provision of the First Amendment: “the right of the people peaceably to assemble.”

According to Jessica Heslam of the Boston Herald, the selectmen recently voted to reject a request by local Catholics to hold a “rosary rally” on the town common, citing the separation of church and state.

But as noted civil-liberties lawyer and Friend of Media Nation Harvey Silverglate tells Heslam, there is no constitutional problem with allowing a prayer rally on public property as long as other groups are accorded the same right of access. Another civil-liberties lawyer, Chester Darling, goes further, saying, “Those selectmen belong in federal court.”

Prediction: The selectmen are going to change their minds.

Update, Oct. 28: Well, that was fast.

Globe warns Occupy Boston on trademark

The Boston Globe is trying to stop the Occupy Boston demonstrators from using the paper’s name in its own publication, according to Metro Boston reporter Steve Annear. The protesters are planning to start a paper called the Occupy Boston Globe, similar to the Occupied Wall Street Journal in New York. (David Carr of the New York Times wrote about that last week.)

“We do not condone the use of our trademark-protected name and logo by any organization,” Globe spokesman Bob Powers is quoted as telling Annear.

Surely, though, the Globe’s lawyers know the Occupy Boston folks are within their legal rights. The Globe’s trademark prevents a would-be competitor from coming in and starting a newspaper called the Boston Globe. By contrast, the name “Occupy Boston Globe” is a parody of and a commentary on the Globe and on the media in general, expression that is protected by the First Amendment. A major consideration in trademark cases is whether readers might confuse the parody with the original. There doesn’t seem to be much chance of that.

Writing at BostInnovation, Lisa DeCanio reports that Occupy Boston Globe is trying to raise $8,000 to launch a daily and a full-color weekly, the latter of which would be published in English and Spanish. There’s already an online version of the paper, which in turn makes reference to a print edition. So maybe the presses have started to roll.

(Thanks to Greg Reibman, whose tweet alerted me to the Metro Boston story.)