Results tagged “First Amendment”

July 10, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Associate Clinical Professor Jessica Levinson

[This op-ed originally appeared on The Huffington Post.]

Hello, my name is Jessica. I will be stealing your valor. Well, I may not actually pilfer your valor, but thanks to the Supreme Court, I can if I so chose.

Much, if not all of the recent news coverage of the Supreme Court has understandably focused on the court's decision to uphold President Obama's landmark healthcare law. Reporters and commentators have largely failed to cover another decision that came out on the last day of the 2011-12 term.

In a 6-3 decision, the court told us to say goodbye to the 2005 Stolen Valor Act. That Act made it a crime to falsely claim military awards or decorations. The court ruled that the Act is unconstitutional because it contravenes the First Amendment. Thanks to the Supreme Court disreputable men everywhere will have to search for a new pickup line when barhopping by military bases.

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February 22, 2012

Caplan2.jpgBy Associate Professor Aaron Caplan

When can the government punish liars? The question is being debated today in the Supreme Court, as it hears oral arguments in United States v. Alvarez. In this case from Southern California, the defendant said during a public meeting that he had received the Congressional Medal of Honor. He hadn't. The government prosecuted under the Stolen Valor Act of 2005, which makes it a federal crime for any person to "falsely represent himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal" -- even if no medals or related documents are counterfeited, and even if no one is financially harmed or suffers other personal injuries as a result of the false statement. It would be constitutionally acceptable for the government to prosecute someone who told this or any other lie as part of a scheme to defraud others. But in this case, the defendant's bogus boasts were not used to cheat anyone, but only to scratch some inner itch within his own personality. As it happens, his lies were quickly and publicly exposed, and he was ostracized by his community. Alvarez's behavior was certainly undesirable, but may he be sent to prison simply because society considers his lies morally objectionable?

I previously wrote about Alvarez for the American Constitution Society blog in 2010 when the Court of Appeals for the Ninth Circuit ruled 2-1 that the law was unconstitutional. Last fall, I asked nine students in my First Amendment class to sit as their own Supreme Court, applying existing free speech precedents to this novel situation. As a teacher, I was hoping that the class would be evenly divided to allow a lively classroom debate. There was plenty of debate, but in the end my justices reached a strong majority position -- by an 8 to 1 margin -- that the law was unconstitutional. They reasoned that the Stolen Valor Act punishes speech that does not fall into any of the narrowly defined categories of less-protected speech where the government is allowed to punish based on content. False statements that are part of a scheme to defraud are one proscribable category. False statements that damage another person's reputation (defamatory speech) are another. But my students overwhelmingly rejected the idea that these and similar categories were merely examples of a broader category of false statements in general. These students saw a great danger in allowing the government to decide what counts as the truth, unless such a judgment is required to redress an identifiable harm to others that the speech caused. Governmental action against speech is not justified merely because the speech is offensive to many (or most) people. They noted the historically-proven risk that such laws could be used against the government's political opponents, and argued that the truthfulness of Alvarez's speech should be judged in the marketplace of ideas -- which it was -- and not in a criminal courtroom.

A few months after our in-class exercise, the Court of Appeals for the Tenth Circuit issued a 3-0 decision in United States v. Strandlof that disagreed with the Ninth Circuit decision in Alvarez. My dissenting student was elated that his position was now supported by four out of the six federal appeals court judges who had considered the case. We will learn later this year whether the U.S. Supreme Court will dare to disagree with the collective judgment of a majority of my Loyola students.

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April 25, 2011

Caplan2.jpgBy Associate Professor Aaron Caplan

This is the second in a two-part series originally published in the April 21, 2011 edition of the Los Angeles Daily Journal.

Anonymous sources: One piece of information journalists often wish to keep secret is the identity of their anonymous sources. This is not a new phenomenon. In the early 1970s, Branzburg v. Hayes held that journalists have no constitutional privilege to keep sources confidential from a criminal investigation (although later cases have found a partial privilege in civil cases). Some states reacted to Branzburg with journalist shield statutes, and proposals for a federal counterpart arise in Congress with some regularity.

The current architecture of the Internet is not designed for anonymous communication. For every exchange of data over the Internet, be it via e-mail or by viewing a website, a trail of metadata is automatically logged that includes among other things the IP (Internet Protocol) addresses of the computers involved. In many ways, it is easier to be an anonymous tipster using older media, such as oral communication, an unmarked envelope, or a phone call on a landline. The Internet makes it far easier than before for law enforcement to attribute communications to particular speakers and listeners - including communications between sources and journalists.

WikiLeaks claims to have developed methods for truly anonymous uploading of source documents by leakers. If this is true, it creates a practical means of evading the Branzburg rule - journalists cannot be compelled to reveal identities of sources they don't know. It is open to question how effective this anonymous sourcing is, given the widely reported allegations of prosecutors that Pfc. Bradley Manning was the source of the leaked State Department cables. It appears he was identified in part by the paper trail he left on his work computer, and in part by oral testimony of an acquaintance, and not from evidence from the WikiLeaks dropbox itself. Regardless, the story shows the continuing difficulty of accomplishing truly anonymous speech.

If perfected, an anonymous electronic drop box would have enormous practical implications for journalists hoping to shield their sources. But the technology has no impact on their legal ability to do so. Reporters may still be compelled to testify to their knowledge of sources to a federal grand jury; it's simply that the extent of their knowledge has changed. In the same way, Internet technology should not alter the existing First Amendment rules that provide legal protection to journalists who republish material supplied by anonymous sources, even if the source obtained it unlawfully. That principle was most recently announced in Bartnicki v. Vopper, a case involving not the Internet, but radio broadcasts of recorded cell phone conversations.

Powerful intermediaries: A lone leafleter could in theory communicate with an audience without anyone else's help, but it is literally impossible for a writer to communicate with a reader via Internet without the assistance of intermediaries. These include ISPs (Internet service providers), web-hosting services and other keepers of infrastructure, both public and private, along the way. As a practical matter, this dependence on intermediaries for Internet speech has two major effects. First, it gives the intermediary the power to disrupt communication. This has already happened at least once to WikiLeaks. Due to unilateral action by its domain name server provider, WikiLeaks was temporarily removed from the Internet, and only returned after changing its domain name away from the familiar ".org" designation. Second, investigations of speakers can proceed by questioning the intermediaries, who may well disclose information in their control without the knowledge or consent of the communicating parties.

The Internet gives far more power to intermediaries than some other technologies, but the concept of speech mediated by others is not new to the law. Traditional authors relied on publishers and bricks-and-mortar booksellers to transmit their ideas to readers. Publishers and booksellers could freely choose not to participate. The First Amendment regulates this choice only insofar as it limits the government's power to pressure intermediaries not to distribute officially disfavored works. Some channels of communication - particularly the telephone and telegraph - have been declared by statute to be common carriers that must be open to all communications, but this was a political decision rather than a legal one. The "net neutrality" battle is the latest variation of the ongoing debate over which media should be treated like common carriers.

The question of searches of speech intermediaries has arisen under Fourth Amendment law years before the rise of the Internet, with results that have dismayed privacy advocates. Decisions from the 1970s, most prominently United States v. Miller, held that a person has no reasonable expectation of privacy in information shared with even one non-privileged third party. For example, the government does not require a warrant to gather a suspect's financial deposit records, because after all, the suspect shared that information with those strangers down at the bank. The [Miller] logic has arisen with regard to the requests by the government to obtain information from Twitter about tweets exchanged among the founders of WikiLeaks. A court recently ruled, in effect, that the founders must not have cared about privacy if they shared their metadata with those strangers running the computers at Twitter.

The ubiquity of intermediaries on the Internet brings the shortcomings of the [Miller] principle to the forefront. But once again, the existence of the Internet does not change the underlying legal principle. If Miller is wrong with regard to the Internet, as many believe, it was equally wrong as applied to old-fashioned bank ledgers.

Should we be alarmed, or instead pleased, that the law seems generally oblivious to the hugely consequential fact that a service like WikiLeaks exists on the Internet? Our legal system should of course be alert to the possibility that speech through one medium may be so qualitatively different than another as to require different rules or different frames of reference. I suspect those situations will be rare, and WikiLeaks does not seem to be one of them.

Our most important sources of law - including, of course, our constitutional law - deal with persistent questions of human relations that can transcend media. The First Amendment protects the exchange of information generally, not just information memorialized in familiar ways. The Fourth Amendment protects privacy against overly intrusive government searching, even when that searching takes new forms. Because events can change faster than law can, we are fortunate to have a set of first principles that are sufficiently broad to allow meaningful application in novel circumstances.

This op-ed is adapted from remarks delivered on March 24 as part of the William O. Douglas lecture series at Gonzaga University School of Law.

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April 21, 2011

Caplan2.jpgBy Associate Professor Aaron Caplan

This is the first in a two-part series originally published in the April 20, 2011 edition of the Los Angeles Daily Journal.

The controversy over publication of leaked State Department documents by the WikiLeaks website seems to have "Internet" written all over it. It is treated as a major technology story by publications like Wired magazine and Internet advocacy organizations like the Electronic Frontier Foundation. How could I ask whether it has anything to do with the Internet? The online nature of the WikiLeaks enterprise has immense practical effects, but despite this, any legal action likely to arise from the State Department leaks will be resolved through principles that do not concern themselves with the Internet as a specific medium. By and large this is a good thing.

Unauthorized leaks of government documents, including diplomatic cables, were part of life long before the Internet. Public revelations about the Zimmerman telegram helped propel the United States into World War I. Publication of the Pentagon Papers fueled public debate over the Vietnam War. The statutes governing wrongful disclosure of documents by government employees are decades old, the Espionage Act was passed in 1917, and the constitutional limits on investigation and prosecution of any alleged crimes date back to the Bill of Rights from 1791. With remarkably little adaptation, these preexisting legal concepts will be applied to leaks distributed by Internet.

Let's consider five ways in which the fact that WikiLeaks exists on the Internet has profound practical impact, but remarkably little legal impact.

Wide, cheap distribution: Posting documents on the Internet allows far more people to read it at less marginal cost than ever before. The Pentagon Papers, by contrast, were first revealed in printed articles in the New York Times and Washington Post, summarizing and selectively quoting their contents. These disclosures were reprinted in other newspapers and magazines, discussed in the broadcast news, and the documents themselves were ultimately published as a paperback book. Taken together, these means of distribution cost far more than posting the documents on WikiLeaks, which can potentially reach an audience as large or larger.

As a constitutional matter, the size of a speaker's audience makes little difference. A small town newspaper has the same freedom of the press as the New York Times or Fox News. Freedom of speech and the press also apply to a solo leafleter standing on a street corner, although most speakers desire a larger audience. The First Amendment facilitates their freedom to reach as large an audience as desired to change as many minds as desired. As Justice Abe Fortas wrote in Tinker v. Des Moines Independent School District, we do not limit First Amendment rights to a manageably small zone of expression "that a benevolent government has provided as a safe haven for crackpots."

Access to source document: The Wikileaks site serves primarily as a repository for source documents, and it has relatively little authored content summarizing and analyzing those documents. The huge capacity and relatively low cost of computer storage makes this possible. It would have been prohibitively bulky and expensive to widely distribute hundreds of thousands of State Department documents using earlier media. Public access to source documents adds to the ability of the public to form their own opinions about the events described in them, without relying on the interpretations of gatekeepers. At the same time, the sheer volume of documents available means that most readers will rely on third parties (be they traditional journalists, scholars or bloggers) who have the time or incentive to read and interpret them.

Legally, the choice of publishing a copy of an original document or a summary of it makes no difference. In the Pentagon Papers case, the government unsuccessfully sought to enjoin publication of articles by journalists that summarized and selectively quoted from the documents. After all threat of injunction ended as a result of the U.S. Supreme Court's decision, the documents were later published in the form of a best-selling paperback book that continues to turn up at garage sales decades later. Both forms of dissemination enjoyed equal constitutional protection.

Easy duplication: Computer files on networked systems are made to be copied. Although the WikiLeaks computers store one copy, a viewer surfing the site is actually reading a different copy of the file that has been transferred to her own computer, through a pathway of partial or complete copies housed temporarily or permanently on other computers in the chain of distribution. Once downloaded by an end user, the documents can be duplicated further, perhaps in a mirror site. Even if a government were able to shut down the WikiLeaks web site and jail all of its operators, others can make (and already have made) the information available through other copies. Such fast and easy duplication makes it essentially impossible to keep secrets on the Internet, if a critical mass of decentralized copiers are determined to make them available. This is a truly new practical development.

Yet none of this affects the legality of WikiLeaks posting the documents initially. It was either lawful or unlawful at the outset, even if no further copies were made. As it happens, existing law gives greater legal protection to republication than to initial publication. Under the Espionage Act, for example, it has long been presumed that journalists repeating a secret already publicly revealed by others lack the requisite intent to cause injury to the United States. WikiLeaks' computerized format allows for easier republication by others, but does not alter the legal relationship of publishers and republishers.

This op-ed is adapted from remarks delivered on March 24 as part of the William O. Douglas lecture series at Gonzaga University School of Law.

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February 24, 2011

Loyola Law School sealBy Jacqueline Lechtholz-Zey, JD '11 and Gregory Strausberg, JD '09, LLM '11

On Feb. 25, the Loyola of Los Angeles Entertainment Law Review will present a day-long, three panel event entitled "Paparazzi Law in a Flash: Examining California's Past, Present and Future." This symposium aims to educate its law student, media professional, and attorney audiences on the legal discourse surrounding the modern day paparazzi in the context of the recent enactment of AB 2479 ("the anti-stalking law"). This newly enacted law makes it a misdemeanor to tailgate or drive recklessly to capture a photo or tape recording of an individual for commercial purposes. It represents California's most recent attempt at addressing the storied problem of striking the proper Constitutional balance between the First Amendment's protections for newsgatherers and an individual's right to privacy. With the passage of AB 2479, it is clear that states are again starting (as they did with the rise of "yellow journalism" over a hundred years ago) to recognize a growing problem in the way this segment of the media interacts with its subjects. However, the lack of enforcement of past laws aimed at curbing abusive practices--as indicated by the relative absence of lawsuits under California Civil Code § 1708.8--demonstrates the immense power of the First Amendment and the difficulty in crafting laws that do strike this proper balance. More information about the event is available on its website.

The legal dialogue regarding the paparazzi--including its dynamic interplay of state and federal law--is a field that has intrigued scholars (legal and non-legal alike) since the beginnings of America's media and entertainment industry, as exemplified by the axiomatic writings of Louis Brandeis and Samuel Warren in The Right To Privacy at 4 Harvard Law Review 193 (1890). While no point in American history clearly establishes the origin of an aggressive media force in need of legal regulation, many attribute the identification of this problem as coinciding with the rise of "yellow journalism" in the late nineteenth century. Such "journalism" is no better typified than by the infamous publication of an article in the New York Journal in 1898 that exclaimed, "DESTRUCTION OF THE WAR SHIP MAINE WAS THE WORK OF AN ENEMY"--a title that does not seem to sound so far flung from the typical grocery store tabloid reads of 2011. Such dramatic, seemingly simple proclamations had the power of catching the attention of the average nineteenth century reader and were therefore crucial to the fortunes of the rapidly expanding media companies of the time. However, behind such "simple" statements and their accompanying images (which often depicted famous individuals or sensationalized events) laid an extremely complex legal dilemma, which forced legal scholars such as Louis Brandeis and Samuel Warren, along with the American courts, to properly consider the point at which the First Amendment shield ended and where the right to privacy sword began.

Paparazzi Law in a Flash: Examining California's Past, Present and Future will include discussions of the past, present and future legal developments on this topic in a way that is understandable to legal and non-legal professionals. Loyola Law School has assembled leading practitioners, scholars, as well as recently admitted entertainment lawyers who have all played a central role in the on-going debate of what is permissible, constitutionally protected activity versus activity giving rise to criminal and civil liability. Loyola Professor Karl Manheim will speak about parallel efforts and international privacy law. And Professor Jay Dougherty will serve as a moderator. Loyola of Los Angeles Entertainment Law Review is also proud to include the discussions and articles of its own students Patrick Alach JD '09 and Gary Wax JD '09, which should be of use to those who seek to enforce or defend against the instantiation of this new statutory scheme.

This event is open to all who wish to attend. For media relations, please contact Brian Costello, deputy director of commujnications. We thank you for your support of this event and other future Loyola Law School entertainment and media law productions.

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February 17, 2011

Aaron Caplan

By Associate Professor Aaron Caplan

This is another installment of Loyola's "11 on '11" series, in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011.

Two cases on this year's U.S. Supreme Court docket examine informational privacy under the Constitution. Although definitions vary, informational privacy is ordinarily used to mean the ability of individuals to control the gathering, use, and distribution of information about them by others. The first case, NASA v. Nelson, has already been decided. It extends a long-standing stalemate on whether a person has a due process right to keep certain information private from the government. The second case, Sorrell v. IMS Health Inc., will be argued later this year. It asks whether data brokers and drug companies have a constitutional right to buy and sell information about doctors' drug prescription records for commercial purposes.

The prevailing wisdom has been that the Constitution provides little, if any, direct protection for informational privacy. As a result, privacy gets legal protection in the United States primarily through statutes. Among the most common statutes are those protecting information about medical care and prescription drug use. NASA leaves this general system basically intact, not expanding any direct constitutional source for privacy but not restricting the government's ability to enact privacy laws. Sorrell, however, has the potential to call many of our privacy-protecting statutes into question. [DISCLOSURE: I have provided some advice to the Vermont attorney general's office in Sorrell.]


Both of the 2011 cases can trace their roots to Whalen v. Roe, 429 U. S. 589 (1977), which marks the last time the Supreme Court gave extended consideration to what it called the "interest in avoiding disclosure of personal matters." The plaintiffs in Whalen were patients challenging a New York statute that created a computerized database of all persons who had filled prescriptions for certain drugs. A difficulty for the patients was that the Constitution does not in so many words set forth an individual right to keep information away from other private parties or from the government. (It does, however, provide explicit protection against certain types of information-gathering by the government. Most important are the Fourth Amendment limits on government searches of people's "persons, houses, papers and effects," and the Fifth Amendment right against testifying as a witness against oneself in criminal cases.)

In Whalen, the Supreme Court assumed for purposes of discussion that it might in theory be a deprivation of liberty without due process for the government to deny one's ability to keep personal information private. It ultimately concluded that the New York statute did not violate this hypothesized due process right to informational privacy because the state had a valid need for the information and because the statute contained "security provisions" to guard against unauthorized disclosure. The opinion concluded by noting that information-gathering statutes typically include a governmental duty to safeguard the collected personal information against further circulation, and this duty "arguably has its roots in the Constitution." The decision was unanimous, but Justice Stewart filed a concurring opinion in which he doubted the existence of any constitutional right to informational privacy.

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February 15, 2011

Jennifer Rothman

By Professor Jennifer Rothman

Today the Ninth Circuit will consider a First Amendment defense to Electronic Arts' (EA) use of former and current college players' identities in a popular video game. The case once again raises the issue of a conflict between the First Amendment and the right of publicity - a state law that protects the name, likeness and other indicia of identity of a person from being used without consent. Because this right limits what others can say, or put in a comic book, or a commercial or even a news broadcast, it raises a host of First Amendment issues. In particular, the district court held that EA had no First Amendment defense because the use of the players' identities was not transformative. The district court adopted a very narrow reading of transformativeness - one that appears to limit a First Amendment defense to circumstances in which a player's appearance and information is significantly altered, such as turning a player into a "half-human, half-worm," as one comic book did with the identities of two well-known musicians.

It is no surprise that such a narrow reading of transformativeness in the right of publicity context has caused uproar among major newspapers, television networks and movie studios. If courts do not consider the broader context of the use in a transformativeness analysis, then realistic portrayals and references to athletes, celebrities and anyone else may not receive First Amendment protection.

As a First Amendment matter, the transformativeness test seems ill-equipped to handle disputes between free speech and the right of publicity; the narrow gloss that the district court put on transformativeness sets a dangerous precedent that the Ninth Circuit will hopefully strike down. But whatever test the circuit ultimately adopts, it's not clear that EA has a great First Amendment defense. In contrast to the fantasy sports leagues, which are tied to the performance of actual players during a particular season, the EA video games do not need to be linked to particular players' identities. They may be more successful commercially if they are, but the functionality of the games does not depend on their realism.

This case on remand, however, may not ultimately turn on First Amendment protections. Although many of the briefs in the case focus on alternative First Amendment tests that could be used - other than transformativeness - to evaluate free speech limits on publicity rights, there are other significant conflicts in the case that have not yet been litigated. Related cases reveal that the college athletes signed their publicity rights over to the NCAA. Moreover, the NCAA owns the copyrights in the televised games. The NCAA therefore arguably had permission to license the use of the images and names of the college athletes. The legitimacy of the implicit and explicit assignments of publicity rights to the NCAA by college athletes will likely be the next chapter in this on-going and hotly contested dispute.

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November 2, 2010

By Professor F. Jay Dougherty

Jay Dougherty The Supreme Court heard oral argument today in the case of Schwarzenegger v. Entertainment Merchants Ass'n. This case is a facial challenge to California's recent attempt to regulate minors' access to certain "violent videogames".  In U.S. law, certain sexual material--obscenity--is excluded from other "speech" protected from government regulation by the First Amendment. The Supreme Court has, however, permitted laws that limit a minor's access to certain sexual material that would not be "obscene" as to an adult, and that don't unduly restrict an adult's access to such material. But historically, violent material has been viewed as fully protected speech, and "obscenity" has been carefully limited to sexual material. The rare instances where violent speech can be unlawful involve speech that is intended to and likely to cause imminent unlawful behavior. That rationale is not the core justification for the California statute in this case. Rather, the argument is that violent material will cause psychological harm to minors. Hence, in this case, California asked the Court to treat violence for the first time much like obscenity--permit states to limit minors' access to material, even if that material would clearly be protected unregulable speech as to an adult.

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