Arthur Bright's blog

How Do You Say 'Public Forum Doctrine' in Hawaiian?

It is ridiculously easy to create an online forum.

Even just a few years ago, you had to have a fairly high level of technical savvy to put together such a thing - maybe some php or other coding skills, certainly a solid grip on html at the very least.   But now, thanks to the likes of Facebook, Google, and plenty of other online megacorporations, all it takes is a few mouse clicks.  And as a result, more government entities than ever are getting in on the action and creating forums -- in a technological sense -- for public debate.

But are they also creating public forums in a legal sense? In the physical world, when the government sets aside space as free for public use, it is not allowed to discriminate based on the viewpoints that members of the public might express in such spaces. But does that principle extend by analogy to virtual spaces hosted by government agencies?

That's the issue highlighted by a case filed just last week in federal court in Hawaii, in which Christopher Baker and Derek Scammon, as well as the Hawaii Defense Foundation (a pro-gun organization), are suing the Honolulu Police Department for constitutional violations after the HPD apparently removed the individual plaintiffs' comments from the Department's Facebook "fan" page.   read more »

Introducing Guest Blogger Marie-Andrée Weiss

I am excited to welcome Marie-Andrée Weiss as a guest blogger!

Marie-Andrée Weiss is a solo attorney admitted in New York, and her admission is pending in France. Her practice focuses on intellectual property, privacy, and social media law. She frequently writes on these topics and on European Union law. Her article, "The use of social media site data by business organizations in their relationship with employees," was published in 2011 by the Journal of Internet Law. She graduated from the University of Strasbourg in France with a J.D. in business law, an LL.M. in criminal law, and an LL.M. in multimedia law. She also graduated from the Benjamin N. Cardozo School of Law in New York City with an LL.M. in Intellectual Property Law. Before becoming an attorney, she worked for several years in the fashion and cosmetics industry in New York City, as a buyer and a director of sales and marketing. She is the chair of an ABA subcommittee on European Union Data Protection Reform. Marie-Andrée also blogs at Information Security Privacy and the Law and on the ABA Secure Times blog.

Please join me in welcoming Marie-Andrée to the CMLP blogroll!

Another Brick in the Great Firewall: Sina Weibo's 'Truth' Credits

Censorship in China is nothing new.  Heck, it's practically to be expected these days. Witness last week's censoring of the Shanghai stock exchange's 64.89 point drop on June 4.  See, that number is already on the Great Firewall of China's blacklist because it happens to coincide with the date of the Tiananmen Square massacre, 6/4/89.  That the drop happened to occur on June 4, the 23rd anniversary of the massacre, well, that's just one of life's rich little ironies.  And it caused havoc, as the censors felt compelled to crack down on any mention of the perfectly legitimate stock market results.  And any mention of the stock market, in fact.  It'd be funny if it weren't so sad.

Now, China's Twitter-like microblog Sina Weibo is threatening to up the censorship ante with a new policy that cracks down on "untrue" content, reports the International Business Times.  This new system comes in the guise of a new point system.  Upon creating a Sina Weibo account, users are given 80 points (or 100 points if they set up their account using their government-assigned ID number).  Subsequently, each "falsehood" that the user communicates to the larger community results in a point loss, with broader communication leading to greater losses.   read more »

Britain's New Libel Bill: Better on Libel Tourism, But Worse on Anonymous Online Speech

Britain's effort to reform its defamation laws and shed London's title of "libel capital of the world" has been chugging along for several years, but now it looks like it's in sight of the last stop: The government unveiled its proposed new defamation bill in early May.  So what has all this time and effort wrought?

(Before I get into it, note that I use "Britain" and "British" in this piece to as shorthand for England and Wales.  The Scots and Northern Irish have their own legislative bodies and will not be beholden to this bill.)

One Step Forward...

First, the good news: The bill does make noteworthy progress on the problem of libel tourism. 

If you are unfamiliar with the phenomenon, libel tourism is the practice of bringing libel lawsuits in Britain, where defamation laws are very plaintiff-friendly, even in situations where the case has limited connection to the jurisdiction. 

The poster child for libel tourism in London is Rachel Ehrenfeld, a US author who in one of her books laid out an argument accusing Saudi banker Khalid bin Mahfouz of financing terrorism.  The book in question was published and sold primarily in the US; a scant 23 copies were sold in Britain.  Nonetheless, bin Mahfouz sued for libel in London, winning a default judgment of $225,000 against Ehrenfeld.   read more »

U.S. Marine Faces Uphill Battle in First Amendment Challenge

What happens when the First Amendment collides with military decorum and respect for chain of command?  

It looks like we'll get to find out as the matter of Sgt. Gary Stein, the Marine who on a Tea Party Facebook page slammed President Obama and threatened to disobey his orders, rolls ahead. 

Stein got drummed out of the Corps with an other-than-honorable discharge late last month, and his lawyer promised to pursue all his options in administrative proceedings and federal court.  But does Stein really have a case?

Well, he's already in trouble when it comes to one of the preeminent government-employer/free-speech cases, Pickering v. Board of Education.  In Pickering, a teacher was fired by his public school employer after he wrote a letter to the local newspaper complaining about the school board regarding a particular matter of public importance. The Supreme Court ruled the firing a violation of the teacher's First Amendment rights, saying that the teacher's speech rights outweighed the school's interests as an employer, given that the teacher's complaint had little to do with the fact of the teacher's employment.    read more »

Legal Guide Expanded to Include Arizona

We are pleased to announce the expansion of the CMLP Legal Guide to cover the state of Arizona! You may have noticed our Arizona section growing over the past several months.  Our legal guide now includes several sections on Arizona defamation law, intrusion law, open meetings and public records law, and more.

This new portion of the CMLP Legal Guide would not be possible without the help of Caitlin Vogus, who graciously offered her time and effort to help us.  Caitlin is a Harvard Law School graduate and a clerk on the Virginia Court of Appeals.  We are very appreciative of her help, and look forward to her continued assistance!

Please note that our Arizona section is still a work in progress, as we are still adding to it so as to parallel the coverage of our other state sections.  But we hope that you find the new sections useful now.  As always, if you have suggested updates or additions for our Legal Guide, please contact us.

(Image of vintage Arizona billboard used courtesy of flickr user Roadsidepictures under a CC BY-NC 2.0 license.)


Is 'Liking' on Facebook Protected Speech?

Venkat Balasubramani and Eric Goldman, over on Eric's blog, have highlighted a rather interesting if fundamentally flawed decision from the Eastern District of Virginia. 

The case is Bland v. Roberts, and involves six plaintiffs who were civilian employees of the defendant, a sheriff in Hampton, Virginia.  Apparently the plaintiffs were in favor of someone new sitting in the sheriff's seat, and when the election came around, they expressed public support for the sheriff's opponent through a variety of means including "liking" the opponent's Facebook page.  Unfortunately for the employees, the sheriff won reelection, and soon after he fired the six of them.

What's interesting about the case, and what caught Venkat and Eric's eyes, is that in granting summary judgment for the defendant sheriff, the court ruled that "liking" something on Facebook is not constitutionally protected speech.  

Let me repeat that to drive the point home.  The court ruled that clicking Facebook's "Like" button – which thereby expresses one's opinion to at least one's friends if not the whole world – is, as Judge Raymond Jackson writes, "insufficient speech to merit constitutional protection."

I'm sure Judge Jackson is a wise man, but I think he whiffed on this one.     read more »

The Wasted Effort of Connecticut's Feeble Cop-Recording Bill

Connecticut, like most states these days it seems, has been having a problem with cops interfering with people photographing or filming them. Members of the Connecticut legislature are concerned about citizens being harassed for filming cops, and are working on passing a bill, No. 245, aka "An Act Concerning the Recording of Police Activity by the Public," to address the issue.  This is a good thing.

Unfortunately, the whole thing falls apart when you read the bill and discover it has almost no teeth.

To be fair to the bill's sponsors, their hearts are in the right place.   According to a press release from Sen. Majority Leader Martin M. Looney (D) of New Haven, the event that inspired the bill was the false arrest of Father James Manship, a New Haven pastor, after he recorded several East Haven cops who apparently were harassing Latino business owners.  The FBI subsequently arrested four East Haven cops on charges of false arrest and obstruction, among others. So the sponsors seem to have been trying to crack down on abusive cops – a commendable goal. 

But the bill rather neatly establishes the right of the public to film cops before punching that right full of so many holes as to be unable to hold any water. Consider the bill's section 1(b):   read more »

Introducing Guest Blogger Bryce Newell

I am excited to welcome Bryce Newell as a guest blogger!

Bryce Newell is currently a Ph.D. student at the University of Washington's Information School and a Graduate Fellow of the Comparative Law & Society Studies (CLASS) Center. He is also a graduate of the University of California, Davis School of Law and is a member of the California State Bar (inactive). Bryce is engaged in conducting both doctrinal and socio-legal research that investigates the role of intellectual property, privacy, and information technology law and policy in society, both domestically and globally. Years as a photographer, videographer, and filmmaker have instilled in him a soft spot for photographer rights and an interest in citizen journalism. Prior to obtaining his J.D., Bryce worked in television, film, and video production as a producer, cinematographer, editor, and motion graphics artist. He is currently producing, directing, and editing a documentary film about humanitarian response to migrant deaths along the U.S.-Mexico border. In his spare time, he enjoys the occasional round of disc golf or a game of Ultimate Frisbee.

Please join me in welcoming Bryce to the CMLP blogroll!

Mexico Takes a Big Step Forward in Protecting Professional and Citizen Journalists

Thanks to its ongoing war against the drug cartels, Mexico is one of the most dangerous places in the world for a journalist to work. 

Reporters are routinely threatened, attacked, and killed if they report on crime.  Local law enforcement is often in the cartels' pockets, leaving journalists with little protection.  Over the past three years, Mexico has climbed to number 8 on the Committee to Protect Journalists' 2011 "Impunity Index," which tallies the unsolved murders of journalists around the world.  And that's to say nothing of those who are murdered after commenting on crime via social media – an alarming trend in recent years.  Is it any surprise that the local press often ignores crime reporting entirely, for fear of reprisal from the cartels?

Thus, last week saw some excellent news: The Mexican Senate on Tuesday approved a constitutional amendment that would federalize criminal attacks on journalists.  McClatchy reports that under the amendment, journalists would no longer be at the mercy of quite possibly corrupt local cops, but could instead turn to the federal authorities, who have a much better reputation re: corruption, for law enforcement.     read more »

Righthaven is no more! It has ceased to be! It's expired and gone to meet its maker!

If there is a polar opposite to organizations like ours, it is the intellectual property troll.  And in the IP troll heirarchy, one of the trolliest has long been Righthaven, the self-described "pre-eminent copyright enforcer" that sued hundreds of bloggers and other Internet denizens apparently as part of its business model.  If the DMLP, the EFF, Public Citizen, and the like are the Justice League, Righthaven would be in the Secret Society of Supervillians.

So it is with no small amount of glee I pass along the news that Righthaven appears to have finally run down the curtain and joined the choir invisible.

On Tuesday, Judge Phillip Pro of the U.S. District Court for the District of Nevada signed an order transferring all of Righthaven's intellectual property – some 278 copyright registrations – to a court-appointed receiver, who will auction them off to pay the fees that Righthaven owes its creditors, including defendants who defeated Righthaven in court.  Righthaven owes $186,680 in debts, reports the Las Vegas Sun, but it claims it has no cash to repay them.   read more »

Ron Paul Campaign Gets a Lesson on Civil Liberties

Ron Paul's presidential campaign has been having a rough go of it: He has yet to win a Republican state primary or caucus.  But now his campaign's also-ran streak extends into the courtroom too, in a victory for the right to anonymous free speech.

A California federal magistrate denied the Paul campaign's effort to unmask "NHLiberty4Paul," the anonymous poster of a YouTube video that purported to be a pro-Paul advertisement but, according to the Paul campaign, was actually an effort to smear him.  In a somewhat narrower ruling than free speech advocates would desire, Chief Magistrate Judge Maria-Elena James of the U.S. District Court for the Northern District of California ruled that the Paul campaign had failed to establish a valid complaint under the Lanham Act, as it had been attempting, and thus was ineligible for the expedited discovery it sought to determine NHLiberty4Paul's identity.

Your very own Digital Media Law Project (we'll be switching the website over from our CMLP branding in the coming months) had a personal stake in this one, as we participated as an amicus along with The Public Citizen Litigation Group, the American Civil Liberties Union, and the Electronic Frontier Foundation.     read more »

Fashion Faux Pas: Louis Vuitton Clashes With UPenn

So, have you heard about the little legal scuffle between Louis Vuitton and the UPenn Law School?

The Penn Intellectual Property Group (PIPG), a student organization at UPenn Law, decided to put together a symposium on fashion and IP law, including discussion of the Innovative Design Protection and Piracy Prohibition Act (IDPPPA) that's currently wending its way through Congress.  To promote the event, PIPG put together fliers with a parody of Louis Vuitton's signature pattern that inserted copyright and trademark logos into the pattern: the sort of cheeky tweaking that's common at graduate schools in any field.

Louis Vuitton, however, apparently lacks both a sense of humor and a sense of context.  LV's "director of civil enforcement, North America" responded to the fliers with a cease-and-desist letter accusing PIPG of misappropriation and dilution of LV trademarks and demanding PIPG cease use of the fliers immediately.

I know that LV has a litigious history (see this post by Law of Fashion's Charles Colman for a summary of some of the more egregious episodes), but oy vey.   read more »

We're Live, So Could Someone Please Wake Justice Ginsberg?

A bit of good news for those of us keen on open government: The Senate Judiciary Committee today voted 11 to 7 to allow television cameras into the Supreme Court.

The text of Senate Bill 1945 is short and sweet. It would insert into the U.S. Code the following line:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

Simple, and it could solve the gross misbalance in the importance-to-access ratio of the court. The Supreme Court is all but actively hostile to permanent fixations of its proceedings: no cameras, no television.  Audio only became readily available in 2010.  But it's also the court with the largest pool of potentially interested citizens - its rulings can affect every man, woman, and child in the country.  So why is it easier to film a minor civil trial of no account in the Midwest than it is to record an earthshaking case in the Supreme Court of the United States?   read more »

Why Twitter's New Censorship Tool Isn't As Bad As It Seems

Last Thursday, Twitter announced that it would start censoring tweets by denying access to specific tweets in countries where those tweets would be illegal.  Naturally, this has caused a lot of concern online

Some see the announcement as a first step towards expanding into China in Twitter by complying with Beijing's compulsory, rigorous state censorship.  (Twitter's general counsel has denied this, saying the announcement “has nothing to do with China.”)

Others fear that it is somehow tied to the recent $300 million investment in Twitter by Saudi Prince Al-Waleed, and that he was flexing his capital muscle to quiet Twitter, which helped facilitate the Arab Spring and continues to threaten the stability of the region's authoritarian governments. (But take this theory with a grain of salt: Waleed owns less than four percent of Twitter, hardly enough to wield the kind of influence needed to implement censorship.)   read more »

SOPA/PIPA Protest Day is Over, But the Battle is Not

The day of protest against the now (hopefully) infamous "Stop Online Piracy Act" (SOPA) and "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011" (PROTECT IP Act, or PIPA) has ended.  Baffled students can once again access Wikipedia to do their homework; the Google doodle is no longer blacked out; and Jon Stewart can return to lampooning Republican presidential candidates rather than obtuse copyright bills.

Mission accomplished, right?

Actually, no.  It's only just begun.

To be sure, the protest was incredibly successful at drawing attention to the threat that SOPA and PIPA pose to online speech. Google News tracked nearly ten thousand stories on the bills – a number far, far above average for a single news event. Wikipedia's users were shocked into awareness of SOPA and PIPA, thanks to the site's 24-hour blackout. And the tallies on ProPublica's snazzy SOPA Opera page, which tracks Congressional support and opposition for the bills, literally reversed overnight, as members of Congress stampeded from the pro-SOPA/PIPA camp to the anti- side.   read more »

A New Heavyweight Steps in the Ring as Round 2 Begins in Obsidian v. Cox

Given the hoopla it caused a few weeks ago, you may already be aware of the somewhat notorious ruling in the Obsidian Finance Group v. Cox case.  That's the case where an Oregon federal judge rejected blogger Crystal Cox's contention that she was a member of the media, thus clearing the way for a $2.5 million verdict against her for defaming the plaintiffs. 

The story resulted in much hooting and hollering online, particularly from bloggers outraged that the judge ruled that they were not protected under Oregon's shield law.  Though as CMLP guest blogger Eric Robinson pointed out, the shield law issue was a sideshow to a much bigger problem in the ruling: that Judge Marco A. Hernandez had ruled that the Supreme Court's decision in Gertz v. Robert Welch, Inc. does not apply to Cox because she is not "media." 

Gertz stands for the proposition that plaintiffs in a defamation case cannot recover any damages without proof that the defendant was at least negligent, and may not recovered presumed damages without proof of the defendant's "actual malice." In Cox, the judge ruled that Gertz only applies to media entities, and – using a rather arbitrary list of what defines the media – determined that Cox was not a member of the protected class.  This in spite of several cases (of which the judge took no notice and Cox, acting pro se, did not cite) that state just the opposite.   read more »

Want to be the New Just Three Shopping Days Left!

It's been a few months since we've checked in with everyone's favorite copyright troll, Righthaven. 

When we left them in September, Righthaven was resisting paying the $34,000 in legal fees in attorneys fees that the Nevada district court ruled it owed defendant Wayne Hoehn (who is represented by friend of the CMLP Marc Randazza). Righthaven argued that it was so close to bankruptcy that it would have to sell its assets to make payment, thereby hindering its ability to conduct its trolling business.

It's certainly been eventful since then.

After an aggressive first half, Righthaven has been surrendering goal after goal in the subsequent months: some scored by Randazza and his crew of trollslayers extraordinare, some scored by the Electronic Frontier Foundation, and some own goals Righthaven shot into its own net.  Among the highlights (as well documented by Steve Green of the Las Vegas Sun):

● In early November, the judge in the Hoehn case did indeed order U.S. Marshals to seize Righthaven's assets in order to liquidate them to pay Hoehn's attorneys fees. Among those assets: itself.  And it's being auctioned right now!  Yes, the domain name of the country's self-described "pre-eminent copyright enforcer" can be yours!  (But you needn't be a law firm to pick it up. For example, Righthaven would be an excellent name for a quiet hotel by a woodsy cove.)  But hurry, the bidding closes on Jan. 6, just a few days away!   read more »

Introducing Guest Blogger Victoria Smith Ekstrand

I am excited to welcome Victoria Smith Ekstrand as a guest blogger! 

Victoria Smith Ekstrand is an associate professor at Bowling Green State University, where she teaches media law, public relations, and graduate courses in legal theory and pedagogy. She has an affiliate appointment with BGSU's Department of American Culture Studies. She studies the tensions between intellectual property and First Amendment law and is the author of News Piracy and the Hot News Doctrine: Origins in Law and Implications for the Digital Age (2005).

Before attending the University of North Carolina - Chapel Hill for her doctorate, she was Director of Corporate Communications for The Associated Press in New York City, where she handled media relations and employee and marketing communications for the news service. She worked for the AP for nine years, and before that worked for the Arbitron Company and for radio stations in upstate New York, New York City, and Long Island.

Please join me in welcoming Victoria to the CMLP blogroll! 

Hate Speech v. Freedom of Expression in a 'Pleasantly Authoritarian Country' (aka Canada)

The United States is something of an outlier in the world when it comes to hate speech.  Whereas laws prohibiting hate speech in the U.S. are simply unconstitutional (barring the various unprotected exceptions like obscenity, incitement, etc.), the majority of Western countries ban hate speech outright.  Of course, those same countries also generally protect freedom of speech.  The natural tension between hate speech bans and free speech rights can make for some interesting cases, one of which is now playing out in Canada.

Yesterday, Canada's Supreme Court heard arguments in the case of William Whatcott, an "anti-gay activist" in Saskatchewan, who in 2005 was found guilty of promoting hate by the  Saskatchewan Human Rights Tribunal and ordered to pay the complainants $17,500.  The Saskatchewan Court of Appeal overturned the ruling in 2010, and the Canadian Supreme Court agreed to hear the case.

Now, Whatcott does not appear to be a particularly pleasant fellow.  As he described himself to the Montreal Gazette, he is a reformed drug addict who once traded sexual favors to his (male) drug dealer to feed his addiction.  He notes to the Gazette that "It's a little inaccurate to say I was gay"; rather, he claims, "if you have no moral boundaries, you can try anything."     read more »

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