Free Speech

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 black

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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.

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Bold Experiment in Los Angeles Pushes the Boundaries of Irony

In a dramatic, last-minute effort to win the prize for “Most Obnoxious Law Enforcement Tactic of the Year,” the Los Angeles City Attorney’s Office has announced that many arrested Occupy L.A. protesters will, as an alternative to fines or jail, be given the opportunity to attend “free speech” school to learn what rights they don’t have.

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Shawnee Mission East High School v. Sullivan

Date: 

11/21/2011

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

Emma Sullivan

Type of Party: 

Government
School

Type of Party: 

Individual

Publication Medium: 

Micro-blog

Status: 

Concluded

Description: 

The Shawnee Mission East High School in Kansas on Nov. 22, 2011, ordered Emma Sullivan, a student, to write an apology to Kansas Gov. Sam Brownback after Sullivan tweeted criticism of Brownback during a school field trip to the Kansas state capitol.

During a Kansas Youth in Government field trip on Nov. 22, Sullivan tweeted "Just made mean comments at gov brownback and told him he sucked, in person #heblowsalot." as a joke to her friends.  She did not actually speak to Brownback.

The next day, Shawnee Mission East Principal Karl Krawitz, who was notified of the tweet by members of Brownback's staff, called Sullivan into his office.  She told CNN that Krawitz told her that her tweet had embarrassed the school and the school district. He asked her to write an apology to Brownback.  Sullivan refused, citing her right to free speech and her parents' support.

After her situation came to media attention, the Shawnee East School District reviewed the situation.  The district determined that no apology was required and that no further action would be taken against Sullivan.  

On Nov. 28, 2011, Brownback also issued an apology, saying that "My staff overreacted to this tweet, and for that I apologize." The Associated Press reports that he said "Freedom of speech is among our most treasured freedoms."

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2-Normal

Policing Political Speech or Just Sex Under the Magnolia Tree?

In response to local Occupy protests, Tennessee Safety Commissioner Bill Gibbons said in October that “we don’t have the resources to go out and, in effect, babysit protesters.” But as the Nashville Scene recently reported, that’s exactly what pol

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Tarek Mehanna and the Freedom for the Thought That We Hate

Suppose you and I are friends. We've grown up together. We've shared conversation; we've traded ideas. Now suppose that as I've gotten older, I've changed. In fact, I've become a zealot. One day I bring up the topic of suicide bombers. And, to your surprise, I actually sympathize with people who strap explosives to their chests and go looking for crowds of innocents.

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Antioch University v. The Antioch Papers

Date: 

02/29/2008

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Brian Springer, Tim Noble, TheAntiochPapers.org, theantiochpapers@gmail.com

Type of Party: 

School

Type of Party: 

Organization

Legal Counsel: 

Robert J. Fitrakis

Publication Medium: 

Website

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Status: 

Concluded

Description: 

The Antioch Papers, an investigative journalism and media arts website, maintains and "open archive for primary source materials that document the institutional life of Antioch College and by extension Antioch University."  Source materials have been gathered through publicly accessible archives and through submissions by institutional whistle blowers.

On February 29, 2008, Antioch University sent a letter to The Antioch Papers demanding the removal of documents that the University alleged included attorney/client privileged communications and proprietary business and financial planning documents.

The Antioch Papers responded in a letter dated March 12, 2008, asserting a First Amendment right to publish the materials at issue.

No further actions on this dispute have been reported; the operations of Antioch College were suspended in July 2008, apparently rendering this demand moot.

 

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France Continues to Confuse Censorship with Civility

A French court last month stomped on what we in the United States consider a “basic, vital, and well-established liberty” – the right to record and publish the public activity of police.

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Bigfoot Spotted Fighting for Free Speech at the New Hampshire Supreme Court

Back in March, I wrote a snippet about a guy who brought suit against the State of New Hampshire for its burdensome permit requirements for filming in Monadnock State Park. See Plaintiff's motion for summary judgment.

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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.

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'Act' of Valor: Ninth Circuit Decides First Amendment Does Not Protect People Who Sport Phony Medals

David Perelman served in Vietnam for all of three months back in 1971, and returned to the U.S. without a scratch.

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The War on Terror, 'Material Support,' and the First Amendment

The U.S. Department of State maintains a list of organizations it believes engage in terrorist activity, and under federal law it is illegal to provide material support to them.

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Zen and the Constitutionality of Twitter 'Cyberstalking'

If you thought a spat between Buddhists couldn't devolve into a federal cyberstalking case of dubious constitutionality, consider the following.

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Bay Area Rapid Transit v. Protesters

Date: 

08/11/2011

Threat Type: 

Police Activity

Party Receiving Legal Threat: 

No Justice No Bart, Anonymous, other protesters

Type of Party: 

Government

Type of Party: 

Organization

Publication Medium: 

Email
Forum
Social Network
Verbal

Status: 

Pending

Description: 

According to SF Weekly, on July 3, 2011, a homeless man named Charles Hill was shot to death by police officers for the San Francisco Bay Area Rapid Transit District ("BART"). Two and a half years earlier, BART police used lethal force against 22-year old Oscar Grant. Both cases have lead activist groups to stage protests against BART and its police force.

On July 11, 2011, protesters with No Justice, No BART  and other organizations staged a protest in the Civic Center Station, where Hill was shot. According to SF Gate, approximately 100 protesters attended and some blocked the doors of trains, leading BART to temporarily close the station.

According to a BART press release, BART and San Francisco police officers learned of a further protest planned for August 11, 2011 early in the week of August 8th. They believed that protesters were planning to coordinate protests at the station using cell phones, and in an attempt to disrupt that coordination shut down cellular service to specific stations in the BART system. According to Scientific American, BART did this by disabling power to the cell phone and wireless network base stations it owned in the underground system. According to CBS San Francisco, the August 11th protest never materialized.

According to Mashable, web activist group Anonymous responded to BART's closure of cellular service by shutting down the consumer-relations website mybart.org on August 14, 2011, leading to the website's indefinite suspension. Anonymous also organized further protests on August 15, 2011, leading to additional station closures, though no reported cell phone service disruption.

The Bay Citizen reports that the FCC is investigating BART's decision to disable cell phone service in the stations. On August 29, 2011, a group of public interest organizations led by Public Knowledge filed a petition for declaratory ruling to the FCC, arguing that BART's actions violated the Communications Act of 1934.

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Hannibal Public School District v. D.J.M.

Date: 

10/24/2006

Threat Type: 

Disciplinary Action

Party Receiving Legal Threat: 

D.J.M.

Court Type: 

Federal

Court Name: 

United States District Court, Eastern District of Missouri

Case Number: 

2:08CV63 JCH

Legal Counsel: 

Branson L. Wood III

Publication Medium: 

Email

Relevant Documents: 

Status: 

Pending

Disposition: 

Dismissed (partial)

Description: 

In the fall of 2006, D.J.M. was a 10th grade student in the public school system in Hannibal, Missouri. On October 24 of that year, D.J.M. sent a series of messages to a fellow classmate, C.M., over an instant messaging platform. The messages allude to D.J.M.'s ability to obtain a gun, and during the conversation D.J.M. speculates as to who he would shoot and who he would not amongst his peers. Both D.J.M. and C.M. show amusement and levity during the conversation, frequently adding interjections such as "haha" and "lol."

At some point during the conversation, C.M. became concerned and sent a transcript of the messages to an adult, who in turn contacted the principal of the high school. The principal called the district superintendent, who in turn called the police. The police visited D.J.M. that same evening, and placed him in juvenile detention; D.J.M. was later transferred to a hospital for psychiatric evaluation. He remained under hospital supervision until November 28, 2006.

In the interim, the school district placed D.J.M. under a suspension for the rest of the school year. D.J.M.'s parents appealed the suspension to the Hannibal school board, who affirmed the suspension. D.J.M. returned to high school the following year, and graduated ahead of the rest of his class.

On March 14, 2007, D.J.M. brought suit in Missouri state court, alleging that the suspension of D.J.M. violated his First Amendment right to free speech under 42 U.S.C. 1983, and requesting administrative review of the suspension determination under state law. The case was removed to the Federal District Court for the Eastern District of Missouri in November 2008.

On January 25, 2010, the district court granted summary judgment for the defendant school distrcit on the section 1983 claim, and remanded the state law claim to the Missouri circuit court. The district court found the messages communicated by D.J.M. to be a "true threat" under Watts v. United States, as applied in the school setting by an en banc panel the Eighth Circuit in Doe v. Pulaski County Special School District. In the alternative, the court found authority for the school to punish the student, notwithstanding the First Amendment, under the "substantial interference" test in the student-speech line of cases following Tinker v. Des Moines.

The Eighth Circuit affirmed the district court on August 1, 2011. The court affirmed under both the "true threat" rationale, as examined under Doe, and under the "substantial interference" grounds of Tinker. The court expressly rejected D.J.M.'s claim that the question as to whether the threat was a "true threat" is an issue of material fact. The court also allowed the "substantial interference" test of Tinker to be applied off campus, following the Second Circuit in Wisniewski v. Weedsport Central School District.

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RSS

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BART Phone Blackout: Did the S.F. Transit Agency Violate Free Speech Protections? Part 2

This is the second half of an analysis of the free speech issues implicated by the Bay Area Rapid Transit (BART)'s shutdown of mobile phone service on Aug. 11 in order to prevent scheduled protests.  The first part of the blog is available here.

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BART Phone Blackout: Did the S.F. Transit Agency Violate Free Speech Protections?

When the Bay Area Rapid Transit (BART) shut down cell phone service at various train platforms on Aug.

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