Leakers and the First Amendment

There has always been an active debate about whether the First Amendment affords government outsiders (like the media) any protection when they disseminate classified national security information without authorization.  As I mentioned in my last blog post, however, critics of the most recent round of high-profile leaks have targeted their attacks almost exclusively on the leakers themselves and not on the news outlets that published the leaks.  So the question is, do leakers have any First Amendment right to disclose national security information to government outsiders without authorization?

At the outset, let me just say leakers have a variety of statutory arguments they might make if prosecuted under the Espionage Act and related statutes.   Charlie Savage recently outlined a few of these arguments here. In addition, one of the obstacles the government might face is that in order to prove that the disclosure was harmful to national security, they might have to reveal even more national security secrets (often called “graymail”).  This is one reason why the Drake prosecution fell apart.   read more »

Falsity and the First Amendment: The U.S. Supreme Court Rules on the Stolen Valor Act

In the fourteen years that I practiced as a media defense lawyer before joining the Berkman Center, there was one sentence from one Supreme Court opinion that I learned to loathe above all others. It appears in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), and reads as follows: "But there is no constitutional value in false statements of fact." Id. at 340. The court goes on to explain:

Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v. Sullivan, 376 U. S., at 270. They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942).

Id. The primary reason that I hate this particular sentence is that it is quoted out of context by plaintiffs' attorneys at one point or another in virtually every defamation action. Although the Court held that falsity itself does not advance society or the debate on public issues, it nevertheless went on - at the bottom of the very same page, mind you - to hold that there is nevertheless significant constitutional value in protecting certain falsehoods to ensure that publication of the truth is not chilled:   read more »

From Accident Photos to the White House: Contesting Photo Use in Newspaper Merchandise Sales

Take a moment to explore your daily newspaper's webpage. You'll likely find recent articles and archives, video materials, job postings, classifieds, sidebars with advertisements, various forms of social media integration, and, most surprisingly (or perhaps not, considering the financial challenges journalism faces), a store. Newspapers including The Los Angeles Times, The New York Times, The Seattle Times, and The Hartford Courant have opened online storefronts that sell page and photo reprints, mugs, t-shirts, and more. One such newspaper used to be the North Adams Transcript, a daily paper in North Adams, Massachusetts that is owned by New England Newspapers. Because of this storefront, they are now defending a lawsuit that raises questions about how to evaluate the newsworthiness defense in privacy cases. In the context of such storefronts, what really matters - content or context?   read more »

DMLP Amicus Update: Narrow Victory in Massachusetts Anti-Counterfeiting Case

The DMLP recently appeared as an amicus curiae in Commonwealth v. Busa, a case brought in Boston Municipal Court under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147"). Yesterday morning the BMC gave us a narrow victory by granting the defendant's motion to dismiss, but without resolving the underlying question of Section 147's constitutional validity.

The case arose after defendant Matthew Busa sold anti-Vancouver Canucks shirts outside of the Boston Garden during last year's Stanley Cup Finals. The shirts had the Canucks logo with a circle and line through it (approximated in the image at right), and on the back read "Boston Fights, Vancouver Bites," a reference to an incident from game 1 of the finals. The Commonwealth arrested Busa and seized these shirts under Section 147, claiming that they were an unauthorized reproduction of the Canucks's trademark. Busa filed a motion to dismiss the indictment on a variety of grounds, including unconstitutional overbreadth and copyright preemption. At yesterday's hearing Busa also moved to report the question of Section 147's constitutional validity to the Massachusetts Appeals Court under Massachusetts Criminal Procedure Rule 34.   read more »

ANNOUNCEMENT: Staff Attorney Andy Sellars named the Berkman Center's Corydon B. Dunham First Amendment Fellow

We are delighted to announce that, with the generous support of the Corydon B. Dunham Fellowship Fund of the Harvard Law School, the Berkman Center has named our own staff attorney, Andy Sellars, as the inaugural Dunham First Amendment Fellow.

Andy received his J.D. with high honors from the George Washington University Law School, where he was awarded the Peter D. Rosenberg Award for Patent and Intellectual Property Law, and the American Intellectual Property Law Association’s Jan Jancin Award, honoring the nation’s top intellectual property law student. He joined the Berkman Center as a Employee Fellow in July 2011, after having served as a summer intern at Berkman's Cyberlaw Clinic in 2009 and 2010.   read more »


Much Ado About a DMCA Takedown Notice

Here is a story that would be an excellent fact pattern for a media law exam. Copyright! DMCA! Libel! Oh my…. Well, at least I hope it will be a topic of interest for the readers of this blog.


Consider the following fact pattern, drawn from a series of blog posts by the parties to this dispute. (Each party has since made an effort to delete their respective posts, so this analysis will not refer to the parties by name.)

Photographer took a picture of downtown Houston, and then posted the photograph on his blog. He later discovered that several sites had used the photograph without his permission, and he proceeded to send them all DMCA takedown notices. Some of the sites took down the pictures, and others asked to be granted a license. Fourteen of the sites which received a DMCA notice from Photographer were owned by the same person, Blogger. These fourteen sites were all hosted by GoDaddy, whose policy is, upon receipt of a complaint, to remove or disable access to sites which are allegedly infringing copyright. Accordingly, access to all of Blogger's sites was disabled.

One of Blogger’s disabled sites was a blog she uses as a platform to express her support for a local candidate in a race for Sheriff. Another of these sites was a site designed to inform the public about a non-profit organization whose goal is to promote awareness for the education needs of special needs children (Nonprofit Organization). Blogger is Nonprofit Organization’s President.   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!

(Don't) Blame the Messenger: What to Do about National Security Leaks

Lately I have been following the discussion about the most recent series of national security leaks, including those that detailed the White House's terrorist "kill lists," the foiling of a terrorist plot by a double agent in Yemen, and cyberattacks against Iran.  Outrage about leaks is hardly new.  Neither are leaks.  (See my prior article detailing the long history of leaks in this country.)  What is new is that the outrage this time around seems to be directed at the leakers and not at the media outlets that published the leaked information.   read more »

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 »

Sixth Circuit's 'Dirty' Decision Sends a Chill

Let's start with the following premise: is a tasteless website. In addition to a bit of celebrity gossip and paparazzi-type pictures, the site also invites anyone to post pictures – often revealing, embarrassing, or insulting – of others for comment by users and, sometimes, the site's proprietor.

The site has been sued a number of times for postings making scurrilous allegations. One of these lawsuits was brought by Sarah Jones, a former Cincinnati Bengals cheerleader and high school teacher, who sued over postings (now removed) on which accused her of having a sexual disease and claimed that she "has slept with every ... Cincinnati Bengal football player." (Jones now has bigger problems: she was arrested in March on charges of sleeping with one of her students. She has pleaded not guilty.)

Jones originally filed the suit anonymously. She mistakenly named – rather than – as the defendant, leading to a default $11 million verdict.    read more »

The IRS and User-Generated Content

As we have reported previously, the Digital (nee Citizen) Media Law Project has been following a trend in delays at the Internal Revenue Service relating to Section 501(c)(3) tax exemptions for nonprofit journalism organizations. Although there has recently been movement in the IRS, with a number of organizations obtaining their tax exemptions over the past several months, others continue to wait for decisions delayed two years or more.

One possible reason for these delays is an increase in the numbers of journalism organizations seeking to operate on a nonprofit basis, at the same time that the IRS is likely reviewing its existing precedential decisions relating to news and publishing ventures. As our guide to the IRS's decision-making process discusses, many of the key precedents that the IRS relies upon in these cases date back as far as the 1960s, 1970s, and 1980s. Given that not only the news business, but the very nature of communication, has changed dramatically in the last fifty years, it would be reasonable for the IRS to take another look at these decisions when faced with a new wave of online journalism projects.

That being said, we have recently learned of a somewhat disturbing development in this regard. At least one applicant for 501(c)(3) status has been questioned by the IRS relating to user-generated content posted to the applicant's site as follows:

Will you allow individuals to post content directly to your website? If so, will you hold the content in queue until you review it to determine whether it would constitute intervention in a political campaign?   read more »

The Right of Publicity and Free Speech: DMLP Joins Amicus Brief in Hart v. Electronic Arts

Last week the Digital (nee Citizen) Media Law Project joined an amicus curiae brief filed in Hart v. Electronic Arts, Inc., currently before the United States Court of Appeals for the Third Circuit. [FN] Hart is yet another case concerning the ever-uncomfortable balance between free speech and intellectual property, this time in the context of "right of publicity" laws.

This case involves the NCAA Football series developed by Electronic Arts ("EA"), which allows players to play for and manage real-world collegiate football teams. EA licenses the right to use the team and league names, but not the names or likenesses of individual players. In fact, according to Wikipedia, EA does not claim that the players in the game are based on their real-world counterparts. That said, users are quick to point out that the jersey numbers, personal stats, and player hometowns of the virtual players frequently align with the real athletes.

Ryan Hart, a former quarterback for Rutgers University, claims that he appears in the NCAA Football games from 2004-06 both as a virtual player (that is, there is a character in the game who shares Hart's team, position, basic player stats, and jersey number) and in the 2009 edition of the game in a brief video clip showing the real-world Hart throwing a pass, which appears when a player selects Rutgers as a favorite team. Hart objects to his appearance in the game without his permission as a violation of his right of publicity.   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 »

DMLP files Amicus Brief Against Massachusetts's 'Anti-Counterfeiting' Law

Earlier this week the CMLP (under its new name, the Digital Media Law Project) sought leave to file an amicus brief in Boston Municipal Court in the case of Commonwealth v. Busa, which concerns a prosecution under Massachusetts's anti-counterfeiting law, M.G.L. ch. 266 § 147 ("Section 147"). I wanted to share a little bit about the statute, and why we decided to take the unusual step of appearing at the trial court level to urge the court to void the statute.

Section 147, at a quick glance, may look like a traditional trademark regulation. The statute punishes whoever willfully "manufactures, uses, displays, advertises, distributes, offers for sale, sells or possesses with intent to sell or distribute any item or services bearing or identified by a counterfeit mark." So far, highly unremarkable.

The statute deviates from mainstream trademark law, however, in its definition of "counterfeit mark," which includes "any unauthorized reproduction or copy of intellectual property." "Intellectual property," in turn, is defined as "any trademark, service mark, trade name, label, term, device, design or word" that is used by a person and is registered in a state trademark database or the USPTO Principal Register. Notably absent is the central test of trademark infringement: that the use is likely to cause confusion as to the origin or sponsorship of goods or services.   read more »

DOJ's Public Statements Provide a Road Map for Citizens to Sue in Cop Recording Cases

Qualified immunity for police might be a thing of the past

In May 2010, Christopher Sharp used his cell phone to record video of his friend being arrested by the Baltimore Police at the Preakness Stakes. The police demanded that Sharp surrender his phone, stating that the contents might be evidence; when the phone was returned, Sharp discovered that the video he had made, plus a number of other unrelated videos, had been deleted. The ACLU (a leading voice on the First Amendment right to record in public, as reflected in its efforts in Glik v. Cunniffe and ACLU v. Alvarez) helped Sharp file suit against the Baltimore PD for violation of his First Amendment rights in Sharp v. Baltimore City Police Department, a civil rights action filed in the U.S. District Court for the District of Maryland.

In January 2012, the Department of Justice got involved in the case. Contrary to what might be expected, the DOJ was not supporting the police department – instead, it filed a "Statement of Interest" in support of Sharp's position in the case, stating:   read more »

Citizen Counter-Surveillance of the Police? There's an App For That.

Herbert George Ponting and telephoto apparatus, Antarctica, January 1912 Despite the welcome 7th Circuit decision in ACLU v. Alvarez on May 8 that directed a federal district court to enjoin the application of the Illinois eavesdropping statute to an ACLU police accountability program, citizens around the country remain vulnerable to arrest and harassment for recording audio and video of police in public spaces. Cases like Glik v. Cunniffe and Alvarez indicate that the tides are changing in favor of First Amendment protections of police oversight and, in Illinois, at least two county court judges have also found the Illinois eavesdropping statute unconstitutional.  Some, like the ACLU, have launched initiatives to publicly record audio and video of police conduct, and the Alvarez case was pursued by the ACLU specifically to allow ALCU staff to legally record police without fear of reprisal under the eavesdropping statute.  (Interestingly, this decision comes just as Chicago is bracing itself for violent protests during the NATO summit this weekend.)   read more »

The 'Mugshot Racket' II: A Commercial Purpose Exemption?

When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct. "I have since learned better," he said.

What bothered Donnelly wasn't the publication of his mugshot per se, but instead the companies working together to solicit payment for its removal. "I am all for having a completely open government," he said, "but something needs to make this online shaming device stop." Donnelly believes he has a solution.

Since I wrote about the prevalence of mugshot websites last October, many CMLP readers weighed in with their own take on what David Kravets described in Wired as a "racket." According to Kravets's article, self-described "reputation companies" are part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them further embarrassment.   read more »

How Should We Measure Damages for Defamation Over Social Media?

On April 24, 2012, a Texas jury awarded $13.78 million to a married couple in a case based upon an extended campaign of defamation on the website - to be specific, more than 1,700 separate statements accusing the plaintiffs of a wide array of criminal activity and, shall we say, unusual sexual practices, among other misconduct. The husband was awarded $5.1 million from one defendant and $1.7 million each from two others. The wife was separately awarded $3.168 million from the first defendant (the less-than-round number reflecting in part the value of the wife's business, which she allegedly lost as a result of the defamation).

A brief review of the 733-page complaint is enough to make one's skin crawl, and if the allegations are to be believed – as clearly the jury did – the size of the verdict becomes more understandable from a gut perspective. That said, the core of a defamation action is injury to reputation; i.e., the impairment of the plaintiffs' good name in the view of their community or a respectable part thereof. The sheer size this verdict begs the question of whether the jury was actually attempting to compensate for reputational injury, or was simply trying to smack the defendants with as large a number as they could rationalize.

Even when not confronted with conduct as disturbing and provocative as that alleged by the plaintiffs in this case, juries face difficult questions when evaluating damage to reputation caused by false statements on social media. For example:   read more »

The Score in Illinois: First Amendment 2, Eavesdropping Law 1

Once again, the CMLP is pleased to report that the First Amendment has scored an important victory in a case involving the recording of police officers in public. Last summer saw the strong pro-First Amendment decision from the U.S. Court of Appeals for the First Circuit in Glik v. Cunniffe (see our coverage here); the spring of 2012 brings us another sunny (and lengthy) decision for freedom of speech from the U.S. Court of Appeals for the Seventh Circuit in today's opinion in American Civil Liberties Union of Illinois v. Alvarez.

(Full disclosure, and a point of pride: the CMLP, through the remarkable services of our colleagues at Harvard Law School's Cyberlaw Clinic, joined in an amicus brief in Alvarez drafted by the Reporters Committee for Freedom of the Press. We have raised many of these arguments ourselves in prior cases -- see the CMLP's brief in Glik.)   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 »

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