David Ardia's blog

Missouri Town Makes Online Harassment a Crime After Megan Meier's Suicide

City officials in Dardenne Prairie, Missouri unanimously passed a measure on November 21 making online harassment a crime, punishable by up to a $500 fine and 90 days in jail. The city's six-member Board of Aldermen passed the ordinance in response to 13-year-old Megan Meier's suicide.

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A Nation of Infringers?

John Tehranian, a law professor at the University of Utah, has an article coming out in the Utah Law Review in which he concludes that the dichotomy between copyright law and social norms "is so profound that on any given day even the most law-abiding American engages in thousands of actions that likely constitute copyright infringement."

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Florida Governor Announces New Initiatives For Open Government

Florida Governor Charlie Crist recently announced two new open government initiatives that will go a long way in improving public access to government documents and meetings in Florida.

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1.8 Million Steps Forward in the Direction of a Comprehensive Public Case Law Archive

Public.Resource.Org and Fastcase, Inc. announced this week that they will make 1.8 million pages of federal case law, including all Courts of Appeals decisions from 1950 to the present and all Supreme Court decisions since 1754, available in a free public archive. The entire archive will be in the public domain and usable by anyone for any purpose.

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Assessment of California's Open Government Reform Initiatives for 2007

Last week, the California First Amendment Coalition published an assessment of several open government reform bills in California's 2007 legislative session. The report shows that while there were some victories, several important reform proposals failed in the legislature or died on the Governor's desk.

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Anthony Ciolli, Former Director of AutoAdmit, Dropped From Lawsuit

Yesterday, lawyers for two female Yale Law School students, captioned as Does I & II, filed an amended complaint dropping Anthony Ciolli as a defendant from the lawsuit they filed against a host of pseudonymous users of the popular law school admissions forum, AutoAdmit.

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Leveraging FOIA: Websites Shine a Bright Light on Government Records

Two new websites recently launched that give the public unprecedented access to government documents acquired through the federal Freedom of Information Act (FOIA) and other public disclosure, or "sunshine," laws: GovernmentDocs.org and GovernmentAttic.org.

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Citizen Media Law Project Launches Legal Threats Database

We've finally finished building the interface for our Legal Threats Database, and I am excited to announce its public launch. If you would like to read our news release, you can find it here.

The database, which is funded by the John S. and James L. Knight Foundation, contains legal threats from 35 states and 9 countries, and it is growing daily. These threats range from copyright infringement lawsuits filed against bloggers to cease and desist letters claiming defamation sent to MySpace users.

Users of the interactive database can input new threat entries, comment on existing threats, and search the database in a number of ways, including by location, legal claim, publication medium, and content type. We've already been receiving a lot of interest in the database and expect that it will be useful to a wide range of people. As Sam Bayard noted yesterday, the database already contains a fascinating array of lawsuits, as well as more informal threats like cease-and-desist letters and emails.

We can't create this database alone, however, so we need your help to keep the information accurate and up to date. If you've been threatened with legal action as a result of your online activities or know of someone who has, please let us know by using our contact form or by entering the information directly into the database through our easy to use threat entry form.

The database is the product of a tremendous amount of work by CMLP staff and students, especially Sam Bayard, Jillian Button, Daniel Ostrach, David Russcol, Matt Sanchez, Daniel Ungar, and Stefani Wittenauer. Our website designer, Chris Wells from Redfin Solutions, has worked tirelessly on getting all of the functionality operating properly. A big public thank you to everyone who helped!

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Musharraf Uses Press Licensing Laws to Clampdown on News Media in Pakistan

Reports are emerging from Pakistan that President Pervez Musharraf has shutdown independent news media within Pakistan and limited access to the Internet. Musharraf appears to be using, at least in part, Pakistan's press licensing laws to effectuate this clampdown.

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Report Recommends Fair Use Principles for User Generated Video Content

Yesterday, the Electronic Frontier Foundation and a group of public interest groups dedicated to protecting free speech, including the Center for Social Media at American University and the Berkman Center for Internet & Society, published a report entitled "Fair Use Principles for User Generated Video

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Opposition News Sites Blocked in Kazakhstan

The OpenNet Initiative is reporting that four opposition news sites in Kazakhstan have been recently blocked, including www.kub.kz, www.zonakz.net, www.geo.kz, and www.inkar.info.

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CMLP Launching Weekly Podcast Series

Tomorrow, we will be launching a new podcast series discussing a range of issues related to citizen media, journalism, and law. We'll continue the series on a weekly basis each Friday. The podcast series is being produced by Colin Rhinesmith, the CMLP's new digital media producer.

Tomorrow's podcast will cover the new federal shield bill, co-blogging and cease-and-desist letters, and the Phoenix New Times arrests.

Center for Citizen Media Examines Business Aspects of Citizen Media

The Center for Citizen Media is in the midst of a series of posts exploring possible business models for citizen journalism and the processes surrounding the creation of a website. The series is primarily the work of Ryan McGrady, a new media graduate student at Emerson College, who was an intern here at the CMLP this past summer.

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Nevada Enacts New Open Records Law

Nevada has enacted a new public records law requiring government agencies to respond to written public records requests within five days. The law, which was signed by the Governor on June 13, went into effect on October 1, 2007.

According to the Reporters Committee for Freedom of the Press:

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U.S. House Overwhelmingly Passes Federal Shield Bill, Changes Definition of Who is Covered

Yesterday, the U.S. House of Representatives overwhelmingly passed -- for the first time ever -- a federal shield bill by a vote of 398 to 21. This follows on the heels of the Senate Judiciary Committee's passage of a similar bill on October 4. The House version, however, makes a critical change in the language regarding who is entitled to the bill's qualified protections by excluding those who do not receive "substantial financial gain" for their activities.

Under the House version, H.R. 2102, a "covered person" is defined as

a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain and includes a supervisor, employer, parent, subsidiary, or affiliate of such covered person.

I've highlighted the new language in the quote above, which came about as the result of a last minute amendment by Representatives Boucher and Pence, two cosponsors of the original bill that did not include this ill-conceived requirement. In contrast, the original version of the House bill extended its coverage to any person "engaged in journalism," including "a supervisor, employer, parent, subsidiary, or affiliate of such covered person."

This change significantly narrows the bill's coverage and is plainly aimed to exclude non-traditional journalists. But it doesn't just exclude those whom some in Congress derisively call "bloggers." The new definition would likely exclude many freelance journalists who must rely on other work to supplement their incomes. Do we really want judges to be deciding whether a journalist is earning enough money to qualify for protection?

More to the point, is financial remuneration the criterion we want to be using when we draw the line between those who are entitled to engage in journalism under the protection of a federal shield law and those who must venture forth unprotected? It seems to me the answer is no. To limit the privilege only to journalists who receive "substantial financial gain" misses the point of how media and journalism are evolving. Most crucially, it misses the growing -- and essential -- role of citizen media creators. They are the closest analog since the nation's founding to the Tom Paine-style pamphleteers the First Amendment was designed, in part, to encourage.

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Weeks and Months Ahead for the CMLP

We formally launched the Citizen Media Law Project's website back in April, so it's about time that I provided an update on what we have been up to and where we are headed in the next few weeks and months.

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Justice Thomas's Myopic View of the Internet

Timed to coincide with the release of Justice Clarence Thomas’s autobiography, the First Amendment Center today published an online symposium concerning Justice Thomas’s First Amendment jurisprudence. Erwin Chemerinsky of Duke Law School, Geoffrey Stone of the University of Chicago Law School, and Supreme Court practitioner Tom Goldstein are among the scholars and practitioners who scrutinized Justice Thomas’s thoughts on a variety of free speech issues, from commercial speech to campaign finance.

One scholar, Mary-Rose Papandrea, who teaches constitutional law at Boston College Law School and is an occasional contributor to this blog, examined Justice Thomas’s jurisprudence concerning the electronic media. Mary-Rose concludes that Thomas is rigidly committed to applying established First Amendment doctrine to electronic media regardless of the technological and economic complications. She points out that in Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), Justice Thomas rejected arguments that the Child Online Protection Act was unconstitutionally overbroad because it applied community standards to determine what sexual expression was harmful to minors.

The challengers in that case had argued that applying such a standard would give the most puritanical community in the United States a heckler’s veto over sexual expression on the Internet nationally because the Internet did not permit geographic targeting. Remarkably, Justice Thomas responded that that those who were worried about this problem should simply stop using the Internet and instead use an expressive medium that permitted targeting.

This myopic view is consistent with Justice Thomas’s approach in other electronic media cases where he has insisted upon applying traditional First Amendment doctrine even when technological differences would seem to warrant otherwise. See, e.g., Denver Area Educ. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996) and United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000).

You can read all of the essays in the symposium on the First Amendment Center's website.

(Note: Mary-Rose Papandrea is my wife.)

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Senate Judiciary Committee Endorses Federal Shield Bill

The United States Senate Judiciary Committee voted today to endorse a bill that would give journalists a qualified privilege from having to testify in court about their confidential sources and to disclose their news gathering materials. In a 15-2 vote, the committee sent the legislation, S. 2035, to the full Senate, where it is expected to face stiff opposition from Republican senators and the Bush administration. Presiding over the committee session, Chairman Patrick Leahy (D-Vt.) remarked:

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