First Amendment

Welcome to Singapore -- I mean the United States Supreme Court -- which this week allowed the Federal Communications Commission to fine television and radio stations for fleeting expletives, where such allegedly indecent words as those from George Carlin's list of seven can get a broadcaster severely fined even if the broadcaster has no reason to know the speaker is going to utter those words on a live program. FCC v. Fox Television Stations, _ U.S. _ (May 4, 2009).

Of course, the Supreme Court's Fox New ruling is not limited to words, as witnessed by the court's telling the Third Circuit on the same day, Mary 4, to reconsider its reversal of the $500,000 fine against CBS for Janet Jackson's Super Bowl split-second exposed nipple.

Praised be the four Fox Television  dissenters: Justices Stevens, Souter, Ginsburg and Breyer.

President Obama: In picking Justice Souter's replacement, please focus heavily on preventing such abominations to the Constitution as Fox Television Stations.

Imagine entering the military, risking your life in the line of duty, being treated at a Veterans Administration Hospital, complaining voluntarily about the VA hospital treatment to a reporter after speaking up at a town hall gathering there, and then having VA security stop the interview and strongarm the tape from the reporter. It happened this week at a Washington, D.C.-area Veterans hospital.

Here are links to the story:

WTOP radio reports that the VA is still holding WAMU reporter David Schultz's tape: http://wtop.com/?sid=1647088&nid=25

David Schultz reports: http://wamu.org/audio/nw/09/04/n17090408-25952.asx

WTOP radio's Mark Segraves calls the actions against the reporter and VA patient a crime: http://www.wtopnews.com/?nid=695&sid=latest

The federal Reporters Privacy Act: http://www4.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00002000--aa000-.html

EPIC on the Reporters Privacy Act: http://epic.org/privacy/ppa

Carlos Miller calls for the figurative head of the WAMU newsperson who told the onsite reporter to give up the tape to the cops adn leave: http://carlosmiller.com/2009/04/10/va-officials-seize-reporters-equipment-during-interview-with-veteran

The reporter’s friend speaks: http://blogs.govexec.com/fedblog/2009/04/solidarity_with_david_schultz.php

The Huffington Post speaks out: http://www.huffingtonpost.com/2009/04/10/reporter-david-schultz-ha_n_185654.html

Mark Segraves reports by audio: http://wtop.com/?sid=1647109&nid=93

Reporters Committee for Free Press speaks out: http://www.rcfp.org/newsitems/index.php?i=10702

Reason speaks out: http://reason.com/blog/show/132823.html

President Obama, immediate rectifying action needs to be taken on this urination on the First Amendment.

ADDENDUM: After I posted the foregoing blog entry, WTOP online reported that on the same day, the Department of Veterans Affairs had agreed to return the reporter's tape without conditions for doing so. The tape's return was crucial not only for the interview tha led to its seizure, but because it contained previously-recorded interviews that had no connection to any veterans hospitals. However, this move by the Veterans' Affairs Department is too little too late after the seizure three days beforehand on April 7, 2009, and does nothing to show that any real effort will be made to avoid the repeat of such travesties of justice.

The Department of Veterans Affairs had an opportunity to address this seizure matter on its website, but did not do so.

The world economy is in crisis. Warfare continues, including in Iraq and Afghanistan. Too many children die daily from malnutrition and insufficient healthcare. Government funding is tight in the United States, particularly until government legalizes marijuana, heavily decriminalizes all other drugs, eliminates mandatory minimum sentencing, and eliminates capital punishment.

What does Cook County, Illinois' sheriff do the same day I posted on the protection enjoyed by such online bulletin board operators as Craigslist from liability for the postings of third parties? He files a federal civil lawsuit (thanks to Popehat for posting the complaint, and to my brother lawyer Larry Walters for alerting me to the story) seeking to enjoin Craigslist from enabling the posting and continued public availability of ads that might be for prostitution.

Many places in the world permit prostitution or do not enforce against it. It is legal in at least two Nevada counties, Canada, Mexico, France, England, Germany, Israel, Denmark, Sweden, and the Netherlands. Sex sells and sells big, in the realm of visual items, sexual aids, advertising, strip clubs, and erotic services for hire. The sky has not fallen where prostitution is legal, and it should be legalized in the United States, to end the silly and unnecessary overstretching of law enforcement budgets for prostitution prosecutions, and to stop making consensual sex among adults a criminal act. Jon Katz

 Bill of Rights. (From the public domain.)

The libel laws belong in the trash heap. The First Amendment is damaged far more by having libel laws than any benefit of such laws.

Fortunately, the federal Communications Decency Act ("CDA") provides broad protection against libel liability to bloggers and listserv operators for comments and emails posted by third parties to their webpages. Following are the authorities supporting such immunity and hopefully giving bloggers, listserv operators, and online bulletin board operators all the more courage to allow robust third-party discussion on their webpages.

- Operators of email listservs, online bulletin boards and blogs are not legally liable for what automatically gets posted to to their webpages by third parties. 47 USC §  230(c) (Communications Decency Act); Zeran v. Am. Online, Inc., 129 F.3d 327 (4^th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (dismissing libel suit against AOL for allegedly libelous statements posted by a third party on an online bulletin board operated by AOL). See also Batzel v. Smith, 333 F.3d 1018 (9^th Cir. 2003), cert. denied,  541 U.S. 1085 (2004) (permitting dismissal of a lawsuit against an email listerv operator should the facts reveal that the operator merely acted as a passthrough to the listserv for the third party who emailed an allegedly libelous comment to the listserv operator).

- The Third Circuit provides similar protections: Dimeo v. Max, 433 F. Supp. 2d 523, (E.D. Pa. 2006), aff'd.248 Fed. Appx. 280, 2007 U.S. App. LEXIS 22467 (3d Cir. 2007, unpublished) (dismissing lawsuit against an online bulletin board operator for third party postings of allegedly libelous comments).

- The Seventh Circuit confirms protection beyond libel suits to listserv operators, online bulletin board operators, and bloggers for third-party postings that are legally actionable against the commenters. Chi. Lawyers' Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, (7th Cir. 2008). "What [47 USC] § 230(c)(1) says is that an online information system must not 'be treated as the publisher or speaker of any information provided by' someone else. Yet only in a capacity as publisher could craigslist be liable under [42 USC] § 3604. It is not the author of the ads and could not be treated as the 'speaker"' of the posters' words, given § 230(c)(1). The Lawyers' Committee responds that 'nothing in §  230's text or history suggests that Congress meant to immunize an ISP from liability under the Fair Housing Act. In fact, Congress did not even remotely contemplate discriminatory housing advertisements when it passed § 230.' That's true enough, but the reason a legislature writes a general statute is to avoid any need to traipse through the United States Code and consider all potential sources of liability, one at a time. The question is not whether Congress gave any thought to the Fair Housing Act, but whether it excluded §  3604(c) from the reach of §  230(c)(1).  Cf. Regional Rail Reorganization Act Cases, 419 U.S. 102, 126-27, 95 S. Ct. 335, 42 L. Ed. 2d 320 (1974) (Congress need not think about a subject for a law to affect it; effect of general rules continues unless limited by superseding enactments)." Chi. Lawyers' Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d at 671.

- After outlining today's blog entry, I came upon the following law review tome on today's blog topic by Anthony Ciolli (who blogs at First Movers), himself a recent later-dismissed defendant in a lawsuit for alleged libel and related counts arising from messages posted to an online bulletin board that his company maintained: Anthony Ciolli, "Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas," 63 U. Miami L. Rev. 137 (Jan. 14, 2008). The article is too long to have read yet, but expands upon the topic in more detail than today's brief blog entry. One of Ciolli's particularly good points is that bloggers and listserv operators of limited financial means might cave into frivolous lawsuits over third party postings, due to the absence of statutory provisions enabling such defendants to recover attorney's fees when they prevail in court. 

Here's to robust online communications, and to eliminating government censorship online and everywhere else. Jon Katz

One thing I did not like about my years before eighteen-years-old was all the added restrictions on my liberty, including things as simple as going to a music club or dance club just because I had not yet reached the drinking age (which was eighteen in my native Connecticut at the time) even if I did not give a damn about drinking there.

Praised be federal trial judge Ronald M. Whyte (a Republican appointee, no less, in the form of George H.W. Bush) and the Ninth Circuit three-judge panel (two of three are Bush I and Bush II appointees) for invalidating on First Amendment grounds, a California law limiting minors' access to so-called "violent video games." VSDA v. Scharzenneger, et al., __ F.3d _ (9th Cir., Feb. 20 2009).  

I am no fan of violence, but remain strongly convinced that my free expression zealotry is on firm ground, and that it is important to err on the side of allowing too much speech rather than too little. Those opposing violent imagery and other violent material have the same First Amendment rights to rail against such material, but not to have government censor it, nor to require ratings of such material (e.g., PG, R and X) .

Of course, when courts allow a ban on free speech, censors will try to take the ban further. In VSDA , at least, the Ninth Circuit refused to extend to non-sexual material the Supreme Court's previous permission in Ginsberg v. New York, 390 U.S. 629 (1968). for governments to limit minors' access to sexually explicit material.

ADDENDUM: Thanks to the WSJ Law Blog for covering this item.

 Bill of Rights. (From the public domain.)

Recently, a fellow lawyer asked me my motivation for representing libel defendants "who destroy another person's reputation and peace of mind with malice." I turned my answer into the following blog entry:

- I strongly believe that libel suits violate and are incompatible with the First Amendment. Protectiing the First Amendment always comes at a price, including the real harm caused to those who are victims of intentional lies about them. The public loses out when the First Amendment has no more teeth than toilet paper.

- Too many newspapers are lands of bland, knowing that even if a libel suit is groundless, the financial exposure is too great a business risk and the cost of libel insurance is too high to cover against exposure to paying out of pocket for a substantial part of a huge libel verdict. The reading public suffers for this.

- Too many activists get silenced and muted by groundless and oppressive SLAPP/libel suits, where the suing corporations know that the suit helps neutralize the defendants both through litigation costs and keeping the defendants in court and depositions when they might otherwise be picketing an allegedly rogue corporation. The public loses out when activists who would otherwise serve social justice stay silent for fear of libel suits.

- The beef industry sued Oprah Winfrey for libel for dismissing the safety of eating beef before her television audience, and dragged her through a court battle that she survived and won because she had the money to do so, but which easily could have cowed less well-heeled defendants to settle the case for a huge sum together with an agreement for the defendant to remain silent on the topic of the defendant's protest forevermore. Oprah's message needed to get out to the widespread audience that she commands.

- Some states have criminal libel laws, which enable a person's liberty to be restrained starting pretrial on nothing but probable cause found by the judge. This is another example of the severe injustices caused by libel suits.

- The logic of your asking my motivation to defend even the most heartless libel defendants sounds no less flawed than that of a person who rails against a lawyer for defending a person prosecuted for murder, whether or not the lawyer believes or knows the person to be guilty. Moreover, just as the lawyer who defends a clearly guilty murder defendant can help keep the criminal justice system more just and honest, and can honorably fight the unjust capital punishment system, a libel defense lawyer can help thaw the chill that libel laws present to too many people in exercising their First Amendment rights, and can help rein in the passions of a misguided and vindictive jury that is otherwise inclined to hammer a defendant with an excessive verdict for reasons beyond the jury instructions.

- Sometimes reputation and peace of mind are even destroyed by opinions that contain no mis-statement of facts. Opinions clearly should not be actionable in a libel lawsuit.

Consequently, I will be honored to defend any libel defendant who pays my fee. Jon Katz

United States Constitution (From public domain.)

Not long after I started law school in 1986, numerous people encouraged the resume benefits of working at the Justice Department. I had trouble jibing that with Ed Meese's control of the Justice Department at the time. However, after Dick Thornburgh took over from Meese and through today, I recognized that I had deep systemic issues with the Justice Department that went far beyond any named attorney general, particularly with the policing and prosecutorial arms of that agency.

I got varied reactions from Justice Department lawyers who worked there during Meese's tenure. Two career people from the department -- who are able to stay no matter the party in control of the presidency -- just shook their heads and referred to "Old Ed", appreciating when he would keep his nose out of their areas of work (environmental and wildlife). One of my law professors who worked in the Solicitor General's Office during the Meese years suggested that his work for the SG's office was hardly similar to working more directly with Meese and his influence. At a campus Passover seder, a tablemate was interested that I was a law student, but became upset when I told him I would never work at the Justice Department under Meese; he countered that Meese's position there did not discount the importance of this lawyer's work going after Nazis. The summer before my second year of law school, at a roundtable presentation to law students about career opportunities on Capitol Hill, I walked up to a Justice Department lawyer involved in putting together the presentation, and asked if lawyers there ever complained amongst themselves about Meese. His face contorted into a sourpuss, and insisted that such a question is not appropriate to be asked; I retorted that such a question is completely appropriate in a society claiming to be so democratic.

In any event, for decades the Justice Department has consistently attracted law school graduates with the same high grades, law review membership and high-ranking law schools that most large law firms highly value for first-year associates. When they leave, they are among the most marketable lawyers.

Recently, I learned that Barack Obama's picks for three top Justice Department posts not only have the sparkling resumes that big law firms seek -- and all. like Obama, are Harvard law school graduates -- but they also have significant experience dealing with the First Amendment, with at least two of them including experience working opposite the side of the angels. All are former Clinton Administration officials, and are close in age to Obama, with none of them more than seven years apart from him. Here is a brief rundown of the three:

- Obama nominated David W. Ogden to be Deputy Attorney General, which is the department's second highest post. In the First Amendment arena, on the one hand, Mr. Ogden has litigated against the unconstitutional 18 U.S.C. § 2257 regulations to maintain records of the ages of models in sexually explicit videos, films, and photographs. He also obtained an injunction against a state law limiting Internet speech. Among his Bill Clinton Administration posts, Ogden was the Assistant Attorney General for the Civil Division, which probably would have included cases aimed at restricting First Amendment rights. A question becomes whether First Amendment advocates prefer a First Amendment supporter doing such work, versus a lawyer who only pays lip service to this cherished amendment.

- Obama nominated Thomas J. Perrelli to be Associate Attorney General, in charge of the department's Civil, Antitrust, and Civil Rights divisions. Repeatedly litigating for the Recording Industry, by default Mr. Perrelli has repeatedly worked to contract free expression rights rather than to expand them. CNET News's Declan McCullagh finds the Perrelli pick unsurprising: "Campaign rhetoric aside, this should be no surprise. Obama's selection of Joe Biden as vice president showed that the presidential hopeful was comfortable with someone with firmly pro-RIAA views. Biden urged the criminal prosecutions of copyright-infringing peer-to-peer users and tried to create a new federal felony involving playing unauthorized music." Perrelli's confirmation hearing may not go smoothly, considering the upset of social conservatives over his advocacy work to remove Terri Schiavo's feeding tube.

- Reaching to Harvard's deanship, Obama has named Elena Kagan to be Solicitor General. The Solicitor General argues on behalf of the United States government for most major Supreme Court oral arguments. She apparently has never presented appellate oral argument anywhere. Ms. Kagan has repeatedly written on free speech. Kagan scores points with me for having attacked  the disingenuous secondary effects doctrine.

Fortunately, Kagan and Ogden understand the pro-free speech side. Perrelli concerns me for having a resume showing much experience trying to limit speech, without my having found any information to counterbalance that. Jon Katz

 The First Amendment and the rest of the Bill of Rights. (From the public domain.)

On December 2, I blogged that updated 18 U.S.C. § 2257 recordkeeping regulations aimed against child pornography were coming around the corner. The aim is overbroad, censorious, and not precise. In any event, the regulations were issued yesterday by the Justice Department and are here. Thanks to some listserv members for posting on the new regulations. My uploaded link to these regulations comes straight from the online Federal Register. I discussed the proposed regulation update here.

The introduction to the updated § 2257 rules says: "This rule finalizes two proposed rules and amends the record-keeping, labeling, and inspection requirements to account for changes in the underlying statute made by Congress in enacting the Adam Walsh Child Protection and Safety Act of 2006." The rule takes effect on Inauguration Day 2009. The introduction to the rules further states: "Compliance date: The requirements of this rule apply to producers of visual depictions of the lascivious exhibition of the genitals or pubic area of a person and producers of simulated sexually explicit conduct as of March 18, 2009."

The Supreme Court's most key recent ruling on child pornography prosecutions is Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). In 2001, I became the founding president of the Free Speech Coalition affiliate for the District of Columbia, Maryland and Virginia, and for many years have defended the First Amendment rights and sometimes criminal defense rights of adult video stores, strip clubs, online providers, and individuals in the field. The FSC is the main trade association for the adult entertainment industry, particularly for the recorded and print image side of the business. However, I have made my disagreement clear from the beginning that I disagree with and refuse to participate with the Free Speech Coalition's support of child pornography prosecutions, considering that the First Amendment applies even to the possession and distribution (as opposed to creation) of child pornography, even while I acknowledge that this area includes some of the most upsetting violations and images imaginable and beyond imagination. The FSC's child pornography policy might make good business sense, but the First Amendment must come first.

I plan to review and comment on the updated § 2257 regulations in the near future. Jon Katz

18 U.S. Code § 2257 generally requires producers of sexually explicit material to prove the actors are not minors. Coming around the corner apparently will soon be updated § 2257 regulations from the Justice Department. More about this matter is here.

Thanks to fellow listserv members for forwarding the above-displayed information.  Jon Katz.

If Virginia's Virtus can bare a breast on the state seal, why cannot Janet Jackson do the same, penalty-free, during the Super Bowl hafltime? See more here.

Friends, opponents, and Obama, lend me some justice. On the beaches of France, Italy and beyond, countless women exercise the same right that men have to bare their breasts. If women have to cover their breasts in public, then men should have the same obligation.

Why does such an obsession remain among so many Americans to suppress breasts? Perhaps there would be fewer people having sexual hangups and committing sexual assault if America's rampant official prudery were thrown out the window, including removal of anti-breast laws, obscenity laws, anti-prostitution laws, and laws suffocating the ability of strip clubs and adult video stores to operate.

As to a recent development in this arena, do not let the Federal Communications Commission get away with wasting our tax dollars, justice, and common sense to seek Supreme Court review of the Third Circuit's magnificent July 2008 reversal of a half million dollar FCC fine against CBS for Janet Jackson's exposure of her right breast for nine-sixteenths of a second during the Super Bowl until CBS cut the image. (Had she exposed both breasts, would the fine have been doubled?)

Barack Obama did not seem to speak much, if at all, about First Amendment protection during the campaign. However, he did talk repeatedly about change. Mr. Obama, it is time to change the decades long tradition of FCCensorship and prudery. Alternatively, if women were polled about the laws mandating covering their breasts in public and fining broadcasters for their exposure during times that children are awake, how would they vote?

Barack Obama's transition team is reviewing which executive orders from the Bush Administration (and from administrations previous to that, too?) to scrap. While the transition team is at it, time is beyond ripe for Obama to completely overhaul FCC censorship and to push to change statutes that enable such censorship in the first place. Now also is the time for Obama's team to push to eliminate the obscenity laws while they are at it.

Barack Obama: Let us see such good change. Jon Katz

ADDENDUM: Thanks to SCOTUS for blogging on the FCC's cert. petition in the Janet Jackson fine case. Thanks to Herman Hupfeld for inspiring the title of today's blog entry .  

Why listen to government/FCC-censored broadcast radio and television when we have the choice to listen to satellite and online radio and to watch cable television?

Why listen to broadcast radio and television when the FCC might still get upheld in court for heavily fining a station for broadcasting Allen Ginsberg's Howl masterpiece during prime time, or even a fleeting expletive by a winner at an awards ceremony or a successful player in a sporting event?

Yesterday's Supreme Court oral argument in the F.C.C. v. Fox Television broadcast indecency case gives insight into such justices as Chief Justice Roberts and Justice Scalia, who seem to have no problem with heavy F.C.C. fines for the use of the words f_ck and sh_t during primetime on broadcast television. Justice Ginsburg showed skepticism about permitting the F.C.C. to skewer the use of such words in such a blanket fashion, and Justice Stevens underlined how silly it is to be punishing mere words so harshly.

Of course, you need not wait for the Supreme Court to decide this case. You always can insist that your U.S. Congressmembers insert First Amendment teeth to replace the F.C.C.'s constant urination on First Amendment rights by looking for sh_t and f_ck words all over the place on the taxpayers' backs. Will you make such a move? Jon Katz. 

Virginia's state seal has a bared breast.

Virginia's above-displayed seal shows a half bare-breasted Virtus. under current Virginia law, if Virtus walked into a Virginia bar, she would either be required to cover up with pasties or something more modest, or to leave.

A Virginia law that took effect this year provides for the suspension or revocation of a liquor license where one finds "entertainment of an obscene nature, entertainment commonly called stripteasing, topless entertaining, or entertainment that has employees who are not clad both above and below the waist or (ii) [ ] employees who solicit the sale of alcoholic beverages. The provisions of clause (i) shall not apply to persons operating theaters, concert halls, art centers, museums, or similar establishments that are devoted primarily to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value." Va. Code § 4.1-226 (emphasis added).

What was I saying? Perhaps Virtus can avoid being forced into pasties due to her story's serious political value.  Va. Code § 4.1-226(2). Did you hear that, Virginia exotic cabaret owners? Why not try overcoming this general breast ban by starting onstage dressed as Virtus, and then disrobe, to dramatize the very real and human side of Virtus? Reserve your www.eyeoftheVirtus.com domain today.

Unfortunately, a 1991 Fourth Circuit case does not buy the argument that women should be able to bare their breasts as much as men are permitted in public. United States v. Biocic, 928 F.2d 112 (4th Cir. 1991). Fortunately, the concurring judge in Biocic indicated that he only signed onto the opinion because he felt bound by precedent here. Id. at 118.

For a few months this year, numerous Virginia liquor-licensed establishments stopped requiring pasties after a federal court ruling finding Virginia's anti-nutidy statute to be unconstiuttionally vague, in violation of the First Amendment. Norfolk 302, LLC v. Vassar, 524 F. Supp. 2d 728 (E.D. Va. Nov. 21, 2007). However, as if without better things to do, Virginia's legislature passed a new law a few months later (Va. Code § 4.1-226) that better specifies what is meant by topless dancing, so as to intimidate establishment owners to require that pasties be worn. Jon Katz  

ADDENDUM: Thanks to my brother lawyer Marc Randazza, for giving exposure to Virtus's bared breast.

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Both dominant political parties in the United States have too many candidates and officeholders who do not hesitate to promote censorship. Some deny it is censorship, but a stinkbomb remains a stinkbomb even if Madison Avenue calls it a biscuit.

Frank Zappa did an excellent job taking on Tipper Gore and her bipartisan group's push to force ratings on music -- with the silent if not vocal complicity of Al -- and GOP veep candidate Sarah Palin (any relation to Michael Palin from Monty Python?) veered towards library book banning when a smalltown mayor. As Time reports: "[Palin's mayoral opponent] Stein says that as mayor, Palin continued to inject religious beliefs into her policy at times. 'She asked the library how she could go about banning books,' he says, because some voters thought they had inappropriate language in them. 'The librarian was aghast.' That woman, Mary Ellen Baker, couldn't be reached for comment, but news reports from the time show that Palin had threatened to fire Baker for not giving 'full support' to the mayor."

Of course, both sets of presidential and veep candidates carry on the shameful history of remaining silent while convention protestors' get pushed far away from the earshot and eyesight of conventiongoers and whlle police abuse demonstrators and suspected demonstrators left and right, as I have blogged about during the last few days. Jon Katz