This Wednesday I’ll be moderating a conversation on “Legal Liability in the Age of Wikileaks,” starring two terrific First Amendment lawyers — Rob Bertsche of Prince Lobel and Jon Albano of Bingham McCutcheon.
The program is being sponsored by Hacks/Hackers of Boston, which brings together journalists and technology folks. We’ll schmooze from 6 to 7 p.m. and get down to business from 7 to 8. I hope you’ll join us.
The session will be held in the student lounge at Boston University’s College of Communication, 640 Commonwealth Ave. For more information, just click here.
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 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.
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.
I’ve got a piece up at the Guardian on Tuesday’s federal appeals court decision overturning an FCC rule regulating indecent content. And I argue that it may be a major First Amendment test for the U.S. Supreme Court and its soon-to-be newest member, Elena Kagan.
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.
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.
The campaign for freedom of speech in Kazakhstan continues.
Yevgenia Plakhina
In April 2009 I met a remarkable young journalist, Yevgeniya Plakhina, during the Eurasian Media Forum in Almaty, Kazakhstan. Using techniques generally associated with the West, such as flash-mobbing, she and her fellow free-speech activists protested restrictions on the Internet then being considered by the Kazakh parliament. Several were arrested, though they were quickly released. (I wrote about the activists for the Guardian and for Media Nation.)
In early April, Plakhina, now 25, came to Washington to participate in a forum organized by the Open Society Institute in order to talk about freedom of the press in Kazakhstan. She traveled with two colleagues: Vyacheslav Abramov, executive director of the MediaNet International Center for Journalism, and Anastassiya Knauss, who’s with the Kazakhstan International Bureau for Human Rights.
Plakhina works for the newspaper Golos Respubliki, which is Russian for “Voice of the Republic.” The paper is the successor to Respublika, where she was working when we met in Almaty. Respublika, she says, was closed following a court order to pay a $400,000 libel judgment to BTA Bank. According to Plakhina, the court found that the offending article caused a deposit outflow of more than $40 billion. “The trial was held with many violations of Kazakh law,” Plakhina says.
She adds that no one in Kazakhstan is willing to print Golos Respubliki because of its opposition to the government. The paper is printed using risograph technology, and is also published on the Web. It has a Facebook and Twitter presence as well. The paper also offers a free e-mail service.
What follows is a transcript of a recent interview I conducted with Plakhina by e-mail. She answered my questions in English; I have have edited her answers slightly for syntax.
Q: You recently visited Washington as part of your campaign against Kazakhstan’s increasingly restrictive laws on Internet use. Could you please explain the current situation in Kazakhstan and what you hoped to accomplish by coming to the United States?
The restrictive Internet law which our campaign, For Free Internet, fought against was signed in July of last year. This law equates all Internet resources, including chats and blogs, with mass media, and allows Kazakh authorities to block certain Web sources upon a court ruling. However, even having legal mechanisms to block the websites, Kazakh authorities do not bother to use them. They just block certain resources containing criticism of the government and President Nazarbayev without filing any lawsuits.
For about a year and a half, the popular blog platform LiveJournal has been blocked within the territory of Kazakhstan. For about half a year, Google’s Blogger.com was also unavailable (today, surprisingly, I opened it). These blogging platforms contain personal pages of opponents of President Nazarbayev. For example, on LiveJournal there is a page maintained by President Nazarbayev’s former son-in-law, Rakhat Aliyev, who publishes mudslinging information about Kazakh officials and exposes corruption cases. Since the end of April the Respublika Web portal (a joint project of the Kazakh newspaper Golos Respubliki and Russian journalists) and the Golos Respubliki newspaper website are also unavailable. Kazakh authorities are blocking websites to filter important political information.
The law was promised to eliminate pornography and interethnic hatred in the virtual space. But none of this was done. Kazakh authorities created the Center for Computer Incidents, which is supposed to undertake the responsibility of implementing the restrictive law on the Internet. But still there are no visible results of the work of the center. I suppose the law on the Internet can be used in case of presidential or parliamentary elections or during mass demonstrations in Kazakhstan if they take place.
As for my visit to the United States, of course, we are trying to attract the attention of the international community to the violation of human-rights issues in Kazakhstan, especially in the light of Kazakhstan’s chairmanship of the OSCE. Of course, we would like the United States to raise human-rights issues, including problems with freedom of speech, during meetings at all levels with Kazakh authorities. But at the same time we understand that the international community will not solve our problems. Only civil activity, the civil initiative of Kazakhstani citizens, can make a difference. That’s why our campaign, For Free Internet, continues our work. To fight with website blocking, our activists have filed more than 120 lawsuits against the Ministry of Information and Communication for its criminal failure to act while the right of Kazakhstani citizens to obtain and disseminate information is being violated.
Q: How has the Nazarbayev government reacted to your campaign? Have you or your colleagues been arrested? Are you afraid of being arrested?
A: Basically, there is no reaction from the president himself. The biggest attention we get is from the police and the prosecutor’s office, who regularly come to our flash mobs. Our activists were arrested, as you remember, for intending to organize a flash mob. At the end of April 2010,we organized a flash mob in front of the national Internet provider Kazakhtelecom. None of the seven activists was arrested, but two of our activists, Zhanna Baytelova and Irina Mednikova (co-founder of the campaign), were brought to court and accused of participation in an unsanctioned demonstration. Zhanna Baytelova has to pay a $200 fine. Irina Mednikova received only a warning. This is a method which authorities use to prevent people from participating in any civil activity.
We are not afraid of being arrested. We are not doing anything illegal.
Q: Has the political upheaval in Kyrgyzstan led to greater repression in Kazakhstan?
A: Of course. Law-enforcement bodies are trying to prevent any massive gathering of the regime opponents (for example, as happened on May 1). The lower and upper houses of the Kazakh parliament passed a bill that grants Nazarbayev the status of “Leader of the Nation” and exempts him from any liability in accordance with Kazakh law, including criminal liability. After the Kyrgyz events, Kazakh authorities first blocked the forum of Respublika, where Kazakh citizens shared their support with their neighbors. Then they blocked Respublika itself.
Q: Is the military relationship between Kazakhstan and the United States, recently solidified by Presidents Obama and Nazarbayev, popular or unpopular among the Kazakh people? Should the United States change its approach toward Kazakhstan? If so, how?
A: There are rumors that President Obama agreed to carry out the OSCE summit in Astana [the capital of Kazakhstan] in exchange for constructing the U.S. military base in Kazakhstan. But these are only rumors. Kazakh civil society wrote President Obama a letter asking him not to support the idea of holding the summit in Astana because human rights are violated in Kazakhstan.
Of course, the U.S. often criticizes the Kazakh government for violating human rights. After the Kyrgyz events there was lots of criticism of the United States for keeping its military base at Manas, Kyrgyzstan, and of the White House for ignoring human-rights violations in Kyrgyzstan. In future, this may be the case with Kazakhstan.
Q: What are your hopes for Kazakhstan? How would you like to see your country change over the next five to 10 years?
A: Fair elections, a fair judicial system, respect for freedom of speech. These are the principles we want our country to follow not only in five to 10 years but NOW. Unfortunately, we have little hope for that – especially taking into consideration the bill “On Leader of the Nation,” which president is about to sign. Kazakhstan is slowly turning into a monarchy. Our authorities should look at neighboring Kyrgyzstan and avoid their mistakes.
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.
Apple’s attempt to ban a Pulitzer-winning cartoonist from its iTunes Store is an extension of the same mindset that led it to keep Adobe’s Flash software off its new generation of closed devices — the iPhone, the iPod touch and the iPad. And it shows that Steve Jobs and company are poorly cast in their role as a savior of the struggling news business. Or so I write in the Guardian.
