Category: First Amendment

Copyright, fair use and the limits of political speech

Over at Blue Mass. Group, there’s an interesting debate taking place over copyright and fair use in reaction to a new ad put together by the Massachusetts Republican Party. The ad is nothing special — it shows President Obama and Gov. Deval Patrick amid various bad-news headlines about the weak economy. What’s notable is the soundtrack: a 57-second excerpt from “You’ve Got a Friend,” written by Carole King (potential plaintiff #1) and performed by James Taylor (potential plaintiff #2).

BMG co-editor David Kravitz has done yeoman work in showing that use of the song probably adds up to copyright infringement. Under the fair-use doctrine, you can use someone’s copyrighted material without permission for certain purposes, including parody. But according to a case Kravitz found, the parody must be directed at the copyright-holder in order for it to pass muster, not at some third party or parties.

Kravitz is probably right, but I still think there’s an argument to be made (I make it here) that the ad should be considered fair use: it’s political speech, which traditionally receives the highest level of First Amendment protection; it’s not taking a penny out of either King’s or Taylor’s pockets, the most important element in the four-part fair-use balancing test; and if media corporations like Disney hadn’t lobbied Congress to extend the copyright period from the traditional 28 years (originally 14) to the absurdly long terms that prevail today, then the ad wouldn’t even be an issue.

What I find interesting in the comment thread is the degree to which even progressives have internalized talking points put forth by the media conglomerates in arguing that the Republicans are in the wrong. Frankly, there’s someone wrong with a copyright regime if it’s illegal to grab barely a fifth of a 39-year-old song in order to make a political point.

But as we know, even as technology has made it ever easier to engage in copyright, the copyright protections that media corporations demand have grown ever more draconian.

The Phoebe Prince case and the right to speak

Phoebe Prince

The tragic South Hadley bullying case has led to a federal lawsuit charging that a town official denied a local resident his First Amendment right to speak at a public meeting. Luke Gelinas, the father of two kids in the school system, was tossed out of an emotional South Hadley School Committee meeting on April 14. He has now filed a civil-rights lawsuit in U.S. District Court. The Republican of Springfield reports on the suit here, and the Boston Globe here.

Then-School Committee chairman Edward Boisselle reportedly ordered Gelinas to leave after Gelinas invoked the name of 15-year-old suicide victim Phoebe Prince, violating a ground rule Boisselle had set. Gelinas was escorted out of the meeting room by two police officers.

The offending statement (pdf) that Gelinas delivered that night is a model of respectful decorum. In it, he called for the removal, resignation or censure of Boisselle, school superintendent Gus Sayer and high school principal Daniel Smith.

According to The Republican, at the April 28 School Committee meeting Gelinas was back, and apparently none too happy about his treatment two weeks earlier. He compared Boisselle — no longer the chairman — to Joseph Goebbels and Joseph Stalin. Shortly thereafter the ACLU sent a letter to the committee complaining Gelinas’ First Amendment rights had been violated at the April 14 meeting.

In June, Luke and Lorraine Gelinas and a third parent, Darby O’Brien sued the School Committee in Hampshire Superior Court, claiming the committee broke the state’s open-meeting law by approving a two-year contract extension for superintendent Sayer in executive session on Feb. 24.

The newly filed federal suit names Boisselle and the two police officers as defendants, but not the School Committee itself.

It’s hard to pass judgment on this without knowing the personalities involved and what, if any, attempts were made to settle this beforehand. But if Boisselle and company could have made this go away with a public apology, then they missed an opportunity that may not come around again.

And if Gelinas had simply been allowed to read his statement on April 14, it may never have occurred to him to compare Boisselle to a couple of genocidal monsters.

Photo via Wikimedia Commons.

In New Hampshire, criminalizing political speech

Kelly Ayotte

New Hampshire Republicans have hit upon a novel idea to help U.S. Senate candidate Kelly Ayotte: lock up a pollster hired by one of her opponents for the crime of engaging in political speech.

According to the New Hampshire Union Leader, the state GOP, chaired by Gov. John Sununu, has asked Attorney General Michael Delaney to investigate an allegation of push-polling by a pollster hired on behalf of Democratic congressional candidate Paul Hodes.

Push-polling is the practice of asking leading, negative questions of a rival candidate’s likely supporters. According to the Union Leader, respondents who identified themselves as leaning toward Ayotte were asked about her alleged inaction regarding a mortgage scandal that unfolded when she was New Hampshire’s attorney general and her deletion of e-mails when she stepped down from that office.

The Union Leader found that the calls were made on Hodes’ behalf by Mountain West Research, an Idaho-based polling firm hired, in turn, by Anzalone Liszt Research, a national outfit whose clients include Hodes. The Hodes campaign hasn’t exactly denied the allegation.

Now, as it happens, negative push-polling is illegal in New Hampshire unless the pollster identifies the candidate on whose behalf the call is being made and provides some other information as well. That means someone — an executive of one of the polling firms, or perhaps even Hodes himself — could be found to have broken the law.

It’s not clear what the maximum punishment could be. The Union Leader reports that the top penalty is a $1,000 civil fine. But an Associated Press story that appears in today’s Boston Globe reports that Associate Attorney General Richard Head says a violation could also carry with it a one-year prison term.

The law itself is an affront to freedom of speech, and so is the Republican Party’s attempt to use it to silence the opposition. Push-polling is a sleazy, underhanded campaign tactic — which means that it’s exactly the sort of political speech the First Amendment was designed to protect.

We await Boston Herald columnist Howie Carr’s take on all this.

Photo (cc) by Travis Warren and republished here under a Creative Commons license. Some rights reserved.

Margaret Marshall’s legacy

Margaret Marshall

The big local news of the day is that Margaret Marshall, chief justice of the state’s Supreme Judicial Court, is retiring in order to take care of her ailing husband, retired New York Times columnist Anthony Lewis.

But before Marshall joined the SJC, she was general counsel for Harvard University, using hardball tactics to make accusations of racial discrimination go away. I wrote about her Harvard days for the Boston Phoenix in 1999.

My take back then was that Marshall was not the liberal firebrand her supporters were hoping she’d be. Yet she will forever be known as the author of the Goodridge (pdf) decision, which paved the way for same-sex marriage in Massachusetts. It is a magnificent legacy, and Media Nation sends her best wishes upon her retirement.

And speaking of Lewis, I’ve read two of his books on the First Amendment, and they are both first-rate: “Make No Law: The Sullivan Case and the First Amendment” and “Freedom for the Thought We Hate: A Biography of the First Amendment.” Highly recommended.

In Cambridge, a dubious balancing act

I have not yet read the report of the Cambridge Review Committee, which investigated last July’s arrest of Harvard University scholar Henry Louis Gates Jr. But unless someone tells me otherwise, I’m not sure I need to — the bottom line is enough.

According to news accounts, the committee found that both Gates and Sgt. James Crowley, the arresting officer, were to blame, and that each man missed opportunities to “de-escalate” the situation, which ended when Gates was arrested on disorderly-conduct charges. Those charges were quickly dismissed.

The only thing that strikes me as worth saying — again — is that Gates clearly lost it that day. But he was standing in his own home, believing (probably falsely) that he was the victim of racial profiling. Crowley had a badge, a gun and the certain knowledge that Gates was the resident, not an intruder.

Both men are not to blame. Crowley should have left.

Martin Finucane of the Boston Globe covers the story here, and Laura Crimaldi of the Boston Herald catches up with Gates’ lawyer, Harvard Law school professor Charles Ogletree.

Earlier coverage.

“Contempt of cop” and the Gates case

When Harvard scholar Henry Louis Gates was arrested and charged with disorderly conduct inside his own home in Cambridge last July, the incident struck many of us as being less about race than about the right of someone who had done nothing wrong to mouth off to a police officer.

Now comes the New England Center for Investigative Reporting, which has a story in today’s Boston Globe showing that what happened to Gates was part of a pattern in Cambridge. Though the center found no evidence of racial profiling, it did find that the majority of people charged with disorderly conduct from 2004 to ’09 were arrested because of something they said. A key excerpt:

The most striking conclusion of the review of Cambridge police data is that the majority of those arrested for disorderly conduct were allegedly yelling, often screaming obscenities, in front of police before the handcuffs snapped shut. More than 60 percent of the disorderly arrests reviewed by center involved some sort of allegedly inflammatory speech, such as talking back to the police, more commonly known as “contempt of cop.’’

Gates, as you recall, was arrested by Sgt. James Crowley, who had been dispatched to Gates’ home following a report that two men had been seen trying to force their way in. (Gates and his taxi driver had forced open a stuck door.) Gates, apparently believing he’d been racially profiled, exchanged words with Crowley, though the two disagree over exactly what was said.

We’re still waiting to hear why Crowley wrote in his report that a witness told him at the scene that two black men were observed trying to get in. The woman later said she made no mention of race when she called the police station, and that she never spoke directly with Crowley, as he claimed. Perhaps that will be explained in a report by a city task force, which, according to the Cambridge Chronicle, could be released any day now.

Keeping public records public

In 1989, Justice John Paul Stevens, writing for a unanimous Supreme Court, ruled that public records can cease to be public once they’ve been compiled into a computerized, easy-to-access database.

Now the Court is hearing a case with some eerie similarities involving the names of people who sign petitions to place public-policy questions on the ballot. In the Guardian this week, I compare the two cases — and hope that Stevens, as one of his final acts before retiring this summer, will help keep public records public.

ACLU attorney Wunsch on the anti-SLAPP ruling

Sarah Wunsch, staff attorney for the ACLU of Massachusetts, e-mailed her thoughts on the state Supreme Judicial Court’s ruling that journalists are not protected by a state law prohibiting “strategic lawsuits against public participation” — also known as the anti-SLAPP statute. The Associated Press covers the ruling here. Background here. Below is Wunsch’s e-mail, presented in its entirety.

Despite our amicus brief urging otherwise, the SJC has affirmed Judge Hines’s Superior Court denial of the special motion to dismiss under the anti-SLAPP statute that had been filed by the journalist, Hollander, after she was sued by the developer, Fustolo. The unanimous opinion is written by Justice Botsford. Her opinion focuses on the fact that Hollander was not seeking to redress a grievance or to petition for relief of her own. She says, “As in Kobrin, the defendant’s conduct was not an attempt to redress a wrong he suffered, nor was he petitioning on his own behalf.”

Although the opinion says that a person is protected only if personally seeking redress of a grievance of his or her own, Justice Botsford distinguishes a case in which an attorney was given protection under the anti-SLAPP statute for his statements on behalf of his clients, and not for himself. To do that, she asserts that reporters occupy a different position with respect to a petitioning party than does the party’s attorney.

“There is nothing about the role or function of a staff reporter of an independent newspaper that by its nature renders the reporter a representative or agent of every, or indeed any, community organization that the reporter may cover,” particularly where the reporter denies representing a particular viewpoint. She contrasts this with Baker v. Parsons, where a biologist employed by an organization testified about her views and was protected by the SLAPP statute. (This reasoning seems to leave out of the equation whether the media outlet itself is the “petitioning party.” She seems to assume that it is only the community-based advocacy groups whose views the journalist is promoting.)

Thus, one of our concerns, that employees of advocacy organizations would not be protected by the anti-SLAPP statute, appears alleviated. Even if you are working for someone else as an advocate, as long as it is clear you are advocating for something, you should be protected.

Justice Botsford does reject the concept in Judge Hines’ opinion that because Hollander was paid, she had a private reason for her reporting, and was not sued for her petitioning alone. Being paid does not take a person out of the SLAPP protection.

Finally, Justice Botsford disagrees that this ruling will chill journalists. She cites New York Times v. Sullivan and the protection for reporters under that and under the fair-report doctrine.

As I read the opinion, a reporter writing news stories that are supposedly “objective” will not be protected by the SLAPP statute, despite the very broad definition of petitioning activity. If an editor or publisher wants to stir up the public to get them to support government action by focusing a series of news articles on the subject, too bad. No anti-SLAPP statute protection seemingly for the journalist despite the fact that the definition of petitioning includes this. I do not think this result is correct.

Under the Botsford decision, an opinion columnist is likely going to be protected by the anti-SLAPP statute, as is an employee of an advocacy organization. It seems that the concept of objective fair news reporting operates here to deprive news reporters of anti-SLAPP statute protection. One question is whether the newspaper publisher will be protected. The Botsford opinion talks about advocacy organizations but doesn’t seem to recognize that news media organizations can be advocacy organizations or be the “petitioning party” itself, engaged in activity that meets the definition of petitioning under the statute.

SJC rules against journalist-activist

Adam Gaffin has already posted some details on the state Supreme Judicial Court’s ruling earlier today against Fredda Holland, a journalist who claimed that a libel suit filed against her should be dismissed on the grounds that it was aimed at putting a halt to her community activism. Gaffin has posted the full decision as well.

Hollander, a former reporter for the Regional Review, had been active in a neighborhood association along with her husband, Bill Lee. She had used her platform at the Review to oppose plans by a North End developer named Steven Fustolo. When Fustolo sued her for libel, Hollander’s lawyer, Harvey Shapiro, argued that she should be protected by the state’s anti-SLAPP law, an acronym that means “strategic lawsuit against public participation.”

For background, click here. Disclosure: I was paid to write an affidavit (pdf) on Hollander’s behalf at an earlier stage of the case.