Free Speech

FBI v. Wolf

Date: 

02/06/2006

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Joshua Wolf

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the North District of California

Case Number: 

3:06-xr-90064

Legal Counsel: 

Daniel Mark Siegel; Jose Luis Fuentes; Martin Garbus; David A Greene

Publication Medium: 

Broadcast
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

The Federal Bureau of Investigations subpoenaed video blogger and freelance journalist Josh Wolf for information regarding a political demonstration that resulted in harm to a police officer. The FBI sought the identities of protestors who appeared in Wolf's video recording of the protest, which Wolf claimed was an attempt by the government to use a journalist (himself) as an investigative tool.

On July 8, 2005, Wolf filmed a San Francisco demonstration against the G8 summit in Scotland. During the course of the protest, a San Francisco police officer was injured, and protestors allegedly damaged a police car. Wolf published an edited version of the video on independant news site Indybay and also sold footage to local TV station KRON.

As part of an investigation into the officer's injury, the FBI subpoenaed Wolf to appear in front of a federal grand jury. The subpoena asked Wolf to produce the full video and any other documentation regarding the protest. The subpoena also sought information regarding the identities of individuals who appeared in the video.

Wolf filed a motion to quash the subpoena, claiming protection under the First Amendment of the U.S. Constitution and California's journalist shield law. The North District of California denied Wolf's motion to quash. The court focused on federal journalist protections and held that Wolf was required to comply with the subpoena because he had not demonstrated that the grand jury investigation was conducted in bad faith.

After Wolf again refused to comply with the subpoena, the court ordered him to show cause as to why he should not be held in contempt of court. Wolf again asserted his First Amendment rights, as well as his Fifth Amendment right against self-incrimination. Wolf's arguments were supported by amicus briefs by the American Civil Liberties Union and the Reporters Committee for Freedom of the Press.

The court rejected Wolf's and the amici's arguments on grounds similar to those in its denial of Wolf's motion to quash. It held Wolf in contempt and ordered that he be confined until he complied with the subpoena. Wolf and his lawyers appealed the order to the U.S. Court of Appeals for the 9th Circuit.

On appeal, the 9th Circuit granted a motion allowing Wolf to leave prison on bail. However, the court soon after revoked bail persuant to a motion by the FBI. The court then affirmed the district court's contempt ruling and ordered Wolf to testify and reveal the unpubished portions fo the tape. The 9th Circuit's decision agreed with the district court's holding that Wolf could not legitimately refuse to comply with the subpoena without demonstrating that the grand jury was conducted in bad faith.

The FBI and Wolf ultimately settled the case. Wolf published the full version of the video online and filed a DVD copy with the court. In return, he was released from prison and did not have to testify in front of the grand jury. Wolf had served 226 days in prison, the longest term ever served by a journalist for refusing to disclose unpublished source material.

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Congressman Wears Two Hats: Legislator and Citizen Journalist

Even elected officials can be citizen journalists.  The New York Times has an interesting report about Representative John Culberson (R) of Texas, who took on a role normally filled by CSPAN after the House had officially adjourned for its summer recess last Friday.

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Appeals Court Strikes Down the Child Online Protection Act (Again)

Yesterday, the Third Circuit Court of Appeals affirmed a lower court decision ruling that the Child Online Protection Act (COPA) violates the First Amendment.  COPA makes it a crime to knowingly post sexually explicit material that is "harmful to minors” on the web  “for commercial purposes.” Although Congress apparently intended that COPA app

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New York v. Tsabar

Date: 

01/23/2008

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Gur Tsabar; Ben Smith; Room Eight LLC; "Republican Dissident," "Dissident Hunter," Does

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Supreme Court of the State of New York, Bronx County

Case Number: 

Grand Jury No. 45278/2007

Legal Counsel: 

Paul Alan Levy and Allison M. Zieve (of Public Citizen Litigation Group); Deepa Rajan; Charles Spada

Publication Medium: 

Blog

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Bronx District Attorney Robert T. Johnson issued a grand jury subpoena to New York political blog Room Eight seeking identifying information for several anonymous bloggers and commentors. The subpoena ordered Room Eight operators Gur Tsabar and Ben Smith not to disclose the subpoena's existence -- not even to the anonymous posters -- because doing so could "impede the investigation" and "interfere with law enforcement."

In the disputed posts, Room Eight posters using the pseudonyms "Republican Dissident" (RD), "Dissident Hunter," and "Anonymous" criticized local politicians and Bronx Republican Party officials. According to copies of posts attached to the subpoena, a poster accused Bronx Board of Elections Commissioner J.C. Polanco and board employee Dawn Sandow of having an extramarital affair and other posters accused them of committing misdeeds. Many of the posts focused on Sandow, including one that included a graphic of a witch flying on a broom and told her to "HAVE A NICE FLIGHT" (caps in the original). Other postings attached to the subpoena alleged that Bronx Republican Party official Jay Savino and other local politicians and officials had engaged in fraudulent and illegal activities.

According to Room Eight's court filings, anonymous poster "Republican Dissident" also criticized the Bronx Republican Party for failing to run candidates against District Attorney Johnson, the D.A. who issued the subpoena to Room Eight. However, the District Attorney did not include these posts when he sent the subpoena requesting the information from Room Eight.

Following receipt of the subpoena, Tsabar and Smith sought permission from the D.A.'s Office to notify the anonymous posters about the subpoena so they could object to the revelation of their identifying information. Negotiations between the parties failed, so the non-disclosure demand remained in force.

On May 22, 2008, Tsabar and Smith moved to quash the subpoena in the Supreme Court of New York for Bronx County. They argued that the subpoena threatened the posters' First Amendment right to speak anonymously, analogizing to numerous civil cases protecting online anonymity rights in the context of subpoenas. According to Public Citizen, counsel for Tsabar and Smith, Room Eight also threatened to file a federal suit on the ground that the threat of criminal prosection violated the posters' right to criticized the District Attorney.

After Room Eight filed its motion to quash, Johnson withdrew the subpoena. Public Citizen advised the D.A. that it still would file suit if he intended that the subpoena's non-disclosure language remain in force. The D.A. then freed the defendants to disclose information regarding the subpoenas.

Priority: 

1-High

CMLP Notes: 

Source: Paul Levy, Public Citizen Litigation Group

MCS editing.

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Threat Source: 

MSM

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Revisiting Foreign Libel Law's Pernicious Impact on First Amendment Speech

Back in April, I blogged about New York's Libel Terrorism Protection Act, which bars the enforcement of foreign defamation judgments unless a New York court has found that the foreign court proceeding provided at least as much protection for freedom of speech and press in that case as would be provided by both the United States and New York Constitutions.

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Global Voices Summit 2008

Last week, Global Voices held a summit in Budapest, Hungary for its members and the wider community of bloggers, activists, technologists, journalists and others from around the world. Called the

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State of Indiana v. A.B.

Date: 

03/02/2006

Threat Type: 

Criminal Charge

Party Receiving Legal Threat: 

A.B. (a minor)

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Putnam Circuit Court; Court of Appeals of Indiana; Indiana Supreme Court

Case Number: 

67A01-0609-JV-372 (circuit court); No. 67A01-0609-JV-372 (appeals court); No. 67S01-0709-JV-373 (supreme court)

Legal Counsel: 

James R. Recker

Publication Medium: 

Social Network

Relevant Documents: 

Status: 

Concluded

Disposition: 

Verdict (defendant)

Description: 

The State of Indiana filed a delinquency petition against a Greencastle Middle School student who had posted derogatory and "vulgar" criticism of the school's anti-body-piercing policy on the social networking site MySpace. The student, referred to in court documents as A.B., critized administrators and created a publicly accessible group entitled "Fuck Mr. Gobert and GC Schools." The state's claims included harassment and identity deception, the latter arising from A.B.'s creation of a fake MySpace account for Gobert, the principal of Greencastle Middle School.

On June 27, 2006, the juvenile court declared A.B. a "delinquent child" and placed her on nine months probation. The court found that A.B.'s MySpace postings, if committed by an adult, would constitute the criminal offense of harassment. A.B. appealed, and the Court of Appeals of Indiana reversed the juvenile court's decision. The appeals court concluded that A.B.'s postings were political speech protected by the Indiana Constitution and that her conviction for harassment thus contravened her right to speak.

On May 13, 2008, the Indiana Supreme Court declined to adopt the appeals court's rationale and instead reversed the juvenile court on another ground. The court ruled that the dilenquency finding could not stand because the state had failed to prove the statutory elements of criminal harasssment. Specifically, the court determined that the state had not shown beyond a reasonable doubt that A.B. posted with the intent "to harass, annoy, or alarm" Gobert with "no intent of legitimate communication." It found that certain comments were not actionable because A.B. had posted them on her personal MySpace page, to which Gobert did not have access. With regard to other comments on the pubicly accessible group page, the court held that she had posted the comments as a legitimate expression of her anger and criticism of Gobert and the school, rather than with an intent to harass, annoy, or alarm.

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The (Proposed) Megan Meier Cyberbullying Prevention Act Is Crazy

In a twist on the old adage "hard cases make bad law," Representatives Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) introduced a bill (H.R. 6123) in the House on May 22 which, if passed, would be known as the Megan Meier Cyberbullying Prevention Act.

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Phillips v. BoroughVENT.com

Date: 

04/08/2008

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

www.BoroughVENT.com aka Deborah Golden

Type of Party: 

Individual

Type of Party: 

Individual

Court Type: 

Administrative

Court Name: 

Pennsylvania Human Relations Commission

Case Number: 

200705059

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Pending

Description: 

BoroughVENT.com, an online forum to discuss the Borough of Gettysburg, PA and surrounding region, and one of its adminstrators, Debra Golden, were the recipients of a complaint filed with the Pennsylvania Human Relations Commission. The complaint, brought by two Maryland residents, alleges that the administrators and users of the site posted comments that berated, insulted, demeaned, and intimidated them in violation of the Pennsylvania Human Relations Act (PHRA).

More specifically, the complaint alleges that "Respondent used unreasonable profanity in verbal assaults against Complainants" and that "Respondent referred to Complainant Phillips in sexual, scatological, sexist and disability-bigoted language" in violation of sections 5(d) and (e) of the PHRA.

Statements quoted in the complaint include the following: "She and her husband are no more than extortionists and terrorists"; "Beware shop owners, the Bitch on Wheels ... who sues people to have handicap ramps, has hit three stores today... This woman's extortion ends NOW!"; "I think we should have posters in all of the business downtown with her photo explaining what she is doing"; and "Speaking of head-hunting, that's what I want from this couple: their head (figuratively, of course)."

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CMLP Notes: 

came in via email

Content Type: 

Threat Source: 

User Feedback

Subject Area: 

How Trademark Law Casts A Dark Cloud Over Free Speech

Bill McGeveran, a University of Minnesota law professor and friend of the CMLP, has published his article, "Four Free Speech Goals for Trademark Law" in the Media & Entertainment Law Journal, volume 18 (available at SSRN).

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United States v. Givemeliberty.org

Date: 

04/02/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

Robert L. Schulz; We The People Foundation for Constitutional Education, Inc.; and We The People Congress, Inc.

Type of Party: 

Government

Type of Party: 

Individual
Organization

Court Type: 

Federal

Court Name: 

United States District Court for the Northern District of New York

Case Number: 

1:07-cv-00352

Legal Counsel: 

Mark Lane (for defendant We The People Foundation); Robert L. Schulz pro se

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued

Description: 

The United States government sought an injunction requiring Robert Schulz and his nonprofit organizations dedicated to "'institutionalizing' citizen vigilance and governmental accountability" to remove information promoting the non-payment of income taxes from the organizations' websites www.givemeliberty.org, www.wethepeoplecongress.org, and www.wethepeoplefoundation.org.

The websites provided information suggesting that the federal income tax is voluntary, that the Sixteenth Amendment was not properly ratified, and that citizens should choose not to pay taxes. The websites provided, among other things, a set of materials called a "Tax Termination Package" (offered for free but with a suggested donation) that provided step-by-step instructions on how to avoid paying taxes.

The United States sued Schulz and the organizations, alleging that their behavior breached the Internal Revenue Code (IRC). Specifically, the U.S. alleged that defendants made false or fraudulent statements regarding tax benefits in connection with the sale of a plan or arrangement in violation of 26 USC § 6700, and knowingly prepared a document which would result in understatement of another person's tax liability in violation of IRC § 6701. The U.S. relied on the court's power to grant an injunction under IRC § 7408 to restrain behavior that breaches the above provisions.

Defendants claimed that the publication was protected by the First Amendment. They also claimed that the government had failed to show how the publications breached the tests set out in the cited provisions of the IRC.

On August 9, 2007, the U.S. District Court for the Northern District of New York granted the government's motion for summary judgment, accepting that information helping people to evade income tax did not merit First Amendment protection. The court issued an injunction ordering defendants to remove "all tax-fraud scheme promotional materials, false commercial speech concerning the internal revenue laws, and speech likely to incite others imminently to violate the internal revenue laws” from their websites. The judge did not call for the websites to be taken off the Internet.

The injunction also required defendants to reveal the names, e-mail addresses, social security numbers, and other personal information of people who obtained their information packs to the Internal Revenue Service . On the defendants' motion, the court later stayed this part of the injunction pending appeal to the Second Circuit Court of Appeals.

On February 22, 2008, the Second Circuit affirmed the District Court's decision and ordered defendants to provide the requested information about the individuals who received the tax packets.

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Jill Button editing

DA editing

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Court Rejects Wal-Mart's Bid to Silence Criticism Through Trademark Law

Last Thursday, a federal court in Georgia handed down a big win for free speech when it ruled that Wal-Mart could not use trademark law to stop a critic from disseminating his virulently anti-Wal-Mart views over the Internet. From Public Citizen's press release:

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City of West Bend v. Buss

Date: 

11/29/2007

Threat Type: 

Criminal Investigation

Party Receiving Legal Threat: 

James Buss

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Legal Counsel: 

Dennis Coffey

Publication Medium: 

Blog

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

James Buss, a high school teacher in Wisconsin, anonymously posted a comment on the Boots and Sabers blog under the name "Observer." In the comment, Buss stated that high teacher salaries made him sick and appeared to praise the Columbine High School shooters, stating, "They knew how to deal with the overpaid teacher union thugs. One shot at a time!" Because Buss is a former president of the teacher's union, in hindsight there is good reason to believe that the comment was tongue-in-cheek and intended to ridicule the conservative point of view on teacher salaries.

School officials viewed the anonymous comment as a threat and notified the police. The police traced the comment back to Buss and arrested him. He spent an hour in prison and was released on $350 bail. The school district also suspended him from his teaching job. The local district attorney considered charging Buss with disorderly conduct and unlawful use of computerized communications systems under Wisconsin law. The district attorney ultimately determined, however, that Buss's comment was protected speech under the U.S. and Wisconsin constitutions because it did did not incite imminent lawless action.

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Savage v. CAIR: The Council on American-Islamic Relations Asks Court to Dismiss Michael Savage's Lawsuit

I've blogged before about the Savage v. CAIR lawsuit, in which the conservative talk show host claims that CAIR violated his copyright (and the Racketeer Influenced and Corrupt Organizations Act!) by posting and commenting critically on an audio clip from one of his shows, in which Savage makes all sorts of hateful and inaccurate claims about Muslims and the Islamic faith.

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Evaluating Terms of Service

This section discusses and compares the key "terms of use" (or equivalent sections) you are likely to encounter when you are evaluating various online services. We've grouped these services into three general categories: social networking sites, blog-hosting services, and web-hosting services. Of course, some of these categories blend into each other, but you should be able to get a general idea of how the terms of service vary among the various types of sites and between individual sites themselves.

Ban 'Hate Speech' at Your Own Peril

Glenn Greenwald accurately explains the grotesque result of laws that seek to curb that amorphous problem of “hate speech” — a concept that turns free speech on its head. And unlike many of his colleagues on the political left, Greenwald explains why he’s defending people whose speech frequently deserves contempt:

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British Blogger Threatened with Arrest for Inciting Racial Hatred

Glenn Reynolds over at Instapundit.com reports that a British blogger was recently threatened with arrest for inciting racial hatred.

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Town of Manalapan, New Jersey, Versus Free Speech

Follow the links from Electronic Frontier Foundation page on the bizarre Manalapan v. Moskovitz lawsuit to see a local government running wild against free speech. The town is suing to get the identity of -- and all kinds of other information about -- a critical anonymous blogger.

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Massachusetts State Police v. Jean

Date: 

02/14/2006

Threat Type: 

Correspondence

Party Receiving Legal Threat: 

Mary T. Jean

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the District of Massachusetts, Central Division; United States Court of Appeals for the First Circuit

Case Number: 

4:06CV40031 (District); No. 06-1775 (Appeals)

Legal Counsel: 

John Reinstein, Daniel Shea

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Description: 

Mary Jean is the operator of Conte2006.com, which describes itself as being "designed for the sole purpose of stopping the re-election of [Worchester, MA] District Attorney John J. Conte." Jean posted a video to the site that showed state police engaging in a warrantless and possibly unconstitutional search of Paul Pechonis' home. The police depicted in the video allegedly were from a unit that reported to Conte and acted under his supervision. The video was recorded by Pechonis' child-security system (or "nanny cam"), and Pechonis himself gave the video to Jean.

On Feb. 14, 2006, the Massuchetts state police sent a cease-and-desist letter demanding that Jean remove the video within 24 hours or face criminal action. The letter cited a Massachusetts law regarding unauthorized recording and wiretapping as the basis for the takedown request (the police later clarified by stating that only the audio portion of the recording was at issue). Rather than removing the video, Jean filed a lawsuit in federal court requesting an injunction to prevent the Massachusetts police from pursuing legal action. The complaint named the state police, Massachusetts State Police superintendent Thomas G. Robbins, and Massachusetts attorney general Thomas Reilly as defendants.

Jean's complaint sought both an immediate temporary restraining order and a permant injunction that would prevent the police from taking action against her related to the video. The court granted the restraining order on the day the complaint was filed.

The district court ultimately granted the injunction as well. The court assumed for the sake of argument that Jean had reason to know that the recording might have been illegal when she posted it. Finding a public interest in Jean's publication of the information contained in the video, the court decided that the police's duty to restrain illegal recording could not counterbalance Jean's free speech rights. Key to this decision was the fact that Jean did not engage in recording herself, and thus punishing her would not serve the same deterrence goals as would punishing the recorder.

On appeal, the First Circuit upheld the injunction, echoing the lower court's comments regarding the balancing of free speech versus the police's law-enforcing goals.

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CMLP Notes: 

The Conte2006.com site is a good place to check for updates, in case the suit is appealed further. {MCS}

 

sam reviewing

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