Free Speech

South Carolina Attorney General Agrees to Temporary Restraining Order in Craigslist Suit

Today, a federal district court in South Carolina issued a consent order temporarily restraining South Carolina Attorney General Henry McMaster from "initiating or pursuing any prosecution against craigslist or its officers and employees in relation to content posted by third parties on craigslist's website." The order specifies that it is issued "by agreement of the parties.&qu

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Craigslist Sues South Carolina AG Over Threats of Criminal Prosecution

Tired of being bullied by South Carolina Attorney General Henry McMaster, craigslist is going on the offensive.  CEO Jim Buckmaster announced on the craigslist blog today that that craigslist is suing McMaster in South Carolina federal court, seeking "declaratory relief and a restraining order with respect to criminal charges he has repeatedly thre

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FCC v. Fox: Rethinking the Regulation of Indecent Speech in a Time of Pervasive Media

Earlier this week the Supreme Court handed down its eagerly awaited decision in FCC v. Fox.  In a 5-4 vote, the Court rejected Fox's argument that the Federal Communication Commission had violated the Administrative Procedure Act (APA) by failing to give sufficient justification for its new policy banning "fleeting expletives" on broadcast radio and television.

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What We Often Take For Granted: Robust Protections for Speech

Over the past few weeks everyone at the CMLP and Harvard's Cyberlaw Clinic (with whom we share an office) has been focused on the question of what legal protections courts should apply to anonymous speech (see this post about our amicus participation in the Maxon v. Ottawa Publishing case).  When you are immersed in an issue like this, it is easy to forget how lucky we are to live in a country that has robust protections for speech.

In a post earlier this week, University of Ottawa law professor Michael Geist reminds us that our neighbor to the north is grappling with this same issue, but has come up with a very different answer.  In his post, Geist reports that an Ontario court has ordered the operators of the right-wing Canadian forum site, FreeDominion.ca, to turn over personally identifying information for eight anonymous posters to the site.

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Another Reminder to Choose Your Hosting Service Carefully

My colleague Ethan Zuckerman just put up a disturbing post about Kubatana, a prominent Zimbabwean NGO, which saw its site taken down because its hosting provider, Bluehost, got cold feet after it discovered the site contained content from (gasp!) Zimbabwe.

Kubatana, among other things, hosts websites for prominent activist organizations like Women of Zimbabwe Arise.  For the past two years, Kubatana has hosted a joint blog for a wide range of Zimbabwean citizens that has, according to Ethan, "been one of the key sources of information and perspective for people around the world who follow Zimbabwe, and a critical outlet for Zimbabweans who have few other ways to communicate."

Ethan reports:

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Juicy Campus Dies - Holmes' Posse Rejoices

Juicy Campus -- often the target of anti-free-speech types in higher education has died. And I am glad.

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Roe v. McClellan

Threat Type: 

Lawsuit

Date: 

07/31/2007

Party Receiving Legal Threat: 

Jack Justin McClellan

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court of California, Los Angeles County; Court of Appeal, Second District, Division 3, California

Case Number: 

PS010050 (trial court); B203651 (appeal)

Legal Counsel: 

Jack Justin McClellan (pro se, trial court hearing); Richard Mario Procida - Law Office of Richard Mario Procida (on appeal)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Pending

Disposition: 

Injunction Issued
Material Removed

Description: 

In summer 2007, parents in Santa Clarita, California sought an injunction against Jack McClellan, a self-proclaimed pedophile who maintained websites promoting his belief that "girl-love" is positive and healthy. 

According to the MLRC, McClellan's website stated that its purpose was "to promote association, friendship; and legal, nonsexual, consensual touch[ing] (hugging, cuddling, etc) between men and prepubescent girls."  In 2007, McClellan visited a number of events and places where children congregate in California and the Pacific Northwest in order to photograph children in attendance and to provide commentary on his websites, according to an appellate decision in the case.  His website included photographs of fully clothed children taken at these public events and places.

The Superior Court of California, Los Angeles County, granted a temporary restraining order and preliminary injunction against McClellan and his websites on August 3, 2007.  McClellan was arrested for violating the order and served 10 days in jail.

After a hearing on August 24, 2007, in which McClellan represented himself, the Superior Court issued a permanent injunction barring McClellan from:

(1) harassing, attacking, threatening, assaulting (sexually or otherwise), hitting, following, stalking, keeping under surveillance, blocking the movement, loitering, with or around Jane Roe, Jane Roe 2 [the anonymous plaintiffs], or any minor child; (2) contacting (directly or indirectly), telephoning, sending messages, mailing, e-mailing, photographing, videotaping, and otherwise recording or publishing any image of Jane Roe, Jane Roe 2, or any minor child without the parent or guardian's written consent; (3) taking any action, directly or through others, to obtain the addresses or locations of Jane Roe, Jane Roe 2, or any minor child; (4) being within 10 yards of any place where children congregate, including schools, playgrounds, and child care centers; and (5) loitering where minor children congregate, including, but not limited to schools, parks, and playgrounds.

McClellan appealed, arguing that the injunction violated his First Amendment rights because it was based on the content of his speech that promotes sexual relations with children as being healthy, and because it constituted a prior restraint on his publishing activities. 

The California Court of Appeal, Second District, affirmed the lower court, reasoning that the injunction did not bar McClellan from expressing his views, but rather from voyeuristic and stalking activity that is "offensive, frightening, menacing, and not protected by McClellan's free speech or assembly rights." Although the decision is not entirely clear, it also suggests that McClellan invaded the privacy of those children whose photographs appeared on his website, both by appropriating their likenesses for an exploitative purpose and casting them in a false light.

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CMLP Notes: 

to-do: check for appeal to Cal Supreme

Threat Source: 

MLRC

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You Aren't as Free as You Think - Your Private Emails Can Land You in Jail

In the latest case involving the absurd and unconstitutional obscenity statutes, the Fourth Circuit has upheld a conviction of a man for mere private possession of allegedly obscene material. See United States v. Whorley, __F.3d__ (4th Cir. 2008). While the facts may not fit any conduct in which you might engage, the logic could very well ensnare you one day.

Read on. You should be outraged.

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Patriot Act’s National Security Letter Gag Provisions Choke on First Amendment Grounds

The Second Circuit Court of Appeals struck down one of the most constitutionally repugnant provisions of the PATRIOT Act -- the portions of the Act that place recipients of so-called "national security letters" (NSLs) under a permanent, unreviewed, lifetime gag order. See Doe v. Mukasey, __ F.3d __ (2d. Cir. 2008).

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N.H. Supreme Court Rules that Porn is not Prostitution

The Supreme Court in the state where "Live Free or Die" adorns the license plates has answered the question "why can't producers of adult films be charged with prostitution?" The short answer -- because it would violate the First Amendment (or at least the New Hampshire Constitution's equivalent thereof). See New Hampshire v. Theriault, No. 2007-601 (N.H. Sup. Ct. Dec. 4, 2008). 

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News Links

I usually send this out to the CMLP's team of intrepid bloggers to pique their interest, but with the Thanksgiving holiday upon us, I figured I'd avoid the middleman. 

Things that caught my eye this week...

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Nude Bike Riding Protected by the First Amendment

Michael "Bobby" Hammond, 21, inspired by his recent participation in the annual World Naked Bike Ride -- an event that protests against car culture, decided to take his vintage 10-speed bicycle for a spin through the streets of Portland, Oregon while wearing nothing but a bicycle helmet.

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State of Ohio v. Ellison

Date: 

10/10/2008

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

Ripley C. Ellison

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Hamilton County Municipal Court; Court of Appeals of Ohio, First Appellate District, Hamilton County

Case Number: 

07CRB-33168 (trial level); C-070875 (appellate level)

Legal Counsel: 

Michael W. Welsh

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Dismissed (total)

Description: 

The state of Ohio brought criminal charges of telecommunications harassment against Ripley Ellison, a high school student, who stated on her MySpace page that her classmate and former friend had molested her (Ripley's) younger brother.

The Hamilton County Municipal Court convicted Ellison under Ohio Rev. Code § 2917.21(b) after a bench trial.  The Ohio Court of Appeals reversed, holding the evidence was not sufficient to support her conviction.  Specifically, the appellate court found that (1) the state had failed to establish that Ellison made a communication with the purpose to harass; (2) Ellison had posted the accusation for the legitimate purpose of warning others of what she believed to be criminal behavior; and (3) Ellison never directed the communication to her classmate, despite the opportunity to do so.  

The majority opinion did not address Ellison's First Amendment challenge to her conviction. But Judge Painter stated in his concurring opinion that "the First Amendment would not allow punishment for making a nonthreatening comment on the Internet, just as it would not for writing a newspaper article, posting a sign, or speaking on the radio."

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Priority: 

1-High

CMLP Notes: 

Might also be a disclipinary action threat in here as well. {MCS}

Source: Volokh Conspiracy, via RSS

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RSS

Rapp v. Jews for Jesus, Rehnquist in Brennan's Robes

In Jews for Jesus v. Rapp, No. SC06-2491, 2008 WL 4659374 (Fla. Oct. 23, 2008), the Florida Supreme Court appears to do the First Amendment a great service by declining to recognize the false light invasion of privacy tort. However, this is a case of the ghost of William Rehnquist haunting Florida after stealing William Brennan's robes.

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Will Your ISP Stand Up for Your Free Speech Rights?

There are a lot of things to consider when making the decision to launch a blog or website, including questions of cost, ease of use, and ownership of content.  Understanding how these considerations impact your legal rights and potential liability can help you make an intelligent choice as to what platform to use and what precautions to take when you speak online (we've got a whole section on these concerns, and others, in our legal guide).  But one area most people tend to overlook is whether their

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Skype Cannot be Trusted, Period

As Salon notes in "Skype sells out to China," the eBay-owned service has collaborated with a Chinese company to enable spying on the allegedly encrypted messages that Skype users send each other to and from, and within, China. This disgusting sellout should surprise no one.

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Florida Bar v. Conway

Threat Type: 

Disciplinary Action

Date: 

04/03/2008

Party Receiving Legal Threat: 

Sean William Conway

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Supreme Court of Florida

Case Number: 

SC08-326

Verdict or Settlement Amount: 

$1,200.00

Legal Counsel: 

Fred Haddad; Michael Wrubel

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Description: 

The Florida Bar took disciplinary action against Florida attorney Sean Conway after he wrote a post on JAABlog criticizing Judge Cheryl Aleman's practice of setting unreasonably short time periods for criminal defendants to prepare for trial.  In the post, Conway referred to Judge Aleman as an "evil, unfair witch" and indicated that she was “seemingly mentally ill." The disciplinary charges focused on alleged violations of five attorney ethics rules, including a rule against impugning a judge’s qualifications or integrity.

Conway agreed to a public reprimand in June 2008, but this settlement was subject to approval by the Florida Supreme Court.  On review, the Florida Supreme Court ordered the parties to brief the issue of whether the First Amendment protects Conway's comments.  Conway submitted a brief arguing that his comments were protected speech, and the ACLU supported his position with an amicus brief. The matter is still pending.

Update:

9/12/09 - The New York Times reported that the Florida Supreme Court ultimately upheld the disciplinary action against Mr. Conway. 

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MLRC

Mitchell v. Trummel

Threat Type: 

Lawsuit

Date: 

03/01/2001

Party Issuing Legal Threat: 

Stephen Mitchell; Council House, Inc.

Party Receiving Legal Threat: 

Paul Trummel

Type of Party: 

Individual
Organization

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Superior Court, King County, Washington

Case Number: 

01-2-04698-5 (trial court); No. 486624 (appeals court); No. 75977-4 (supreme court)

Legal Counsel: 

Richard Dubey; Beth Gordie; Paul Dayton; Leslie Clark; Pro Se (sporadically)

Publication Medium: 

Print
Verbal
Website

Status: 

Concluded

Disposition: 

Injunction Denied
Injunction Issued
Material Removed

Description: 

Stephen Mitchell, the administrator of Council House, Inc., a nonprofit housing complex for low-income senior citizens in Seattle, sought a restraining order against Council House resident Paul Trummel in 2001 after Trummel allegedly verbally accosted staff and residents, disrupted meetings, posted his newsletter on resident doors without permission, spied on residents at night by listening outside their apartment doors, and threatened to report residents to criminal authorities if they failed to meet with him, among other things.  The trial court granted a restraining order that prohibited Trummel from making any attempt to contact Mitchell or to keep Mitchell "under surveillance," and from going within 1,000 feet of Mitchell's residence or workplace, from entering or coming within 500 feet of Council House, and from "contacting in person, by email, electronically, by telephone, by writing, or through any third person, any resident of Council House and any board member, staff or employee of Council House at any location." 

Five months later, Mitchell moved for a finding of civil contempt for violation of the antiharassment, claiming that Trummel violated the "surveillance" provision of the anti-harassment order by posting stories on the Internet about events at the Council House.  He alleged that staff and residents felt endangered by Trummel's posting of their private information, including their home addresses, on the website and that they "felt under contiued surveillance by Trummel." Trummel argued that Mitchell's definition of "surveillance" was too broad and that he was exercising his First Amendment rights when posting about events at Council House, occurring both before and after the anti-harassment order was issued.

The trial court found Trummel in civil contempt and ordered him to edit his website "to assure that is in compliance with the . . . anti-harassment order" by, at a minimum, deleting the "names, addresses and any other personal information regarding past and present Council House staff, residents, employees, board members, or agents including legal council." The court determined in a later hearing that Trummel continued to be in contempt and modified the original harassment order, adding language restraining Trummel from "attempting to keep under suveillance" any current or former resident of Council House.  At this point, Trummel deleted identifying information about residents from his website.

Trummel then began using an off-shore website to post information about staff and residents of Council House.  At a subsequent hearing, at which Trummel was not represented by council, the court found him in contempt again and ordered him jailed.  He remained in jail for almost four months.  

Trummel appealed the contempt findings and anti-harassment orders. The Washington Court of Appeals affirmed the trial court in all respects.  On further appeal, the Washington Supreme Court vactated the contempt findings on grounds that posting information about events and people at Council House did not constitute "surveillance." The court vacated those portions of the anti-harassment orders that restrained Trummel from attempting to keep residents and staff  under surveillance, from contacting current or former residents and staff, and from going within 100 feet of any past, current, or future Council House Board member, resident, or employee. The court did not reach Trummel's arguments that the anti-harassment and contempt orders violated the First Amendment. See generally Trummel v. Mitchell, 131 P.3d 305 (Wash. 2006).

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Priority: 

2-Normal

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Threat Source: 

MLRC

Virginia Supreme Court: State Anti-Spam Law is Unconstitutional

It looks like Jeremy Jaynes, the first person in the United States to be convicted of a felony for spamming, is going to get a free pass, thanks to a decision handed down by the Virginia Supreme Court last week striking down Virginia's anti-spam law, Va. Code Ann. § 18.2-152.3:1, on First Amendment grounds. 

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Libel Tourism: A First Amendment Holiday

Over the past few months, I've blogged several times (see here and here) about the proposed federal Free Speech Protection Act of 2008, which would allow a federal court to enjoin the enforcement in the United States of a foreign libel judgment if the speech at issue would not constitute defamati

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