Free Speech

Kavakich v. Chavla (Subpoena)

Date: 

04/20/2004

Threat Type: 

Subpoena

Party Receiving Legal Threat: 

Terri Chavla; Munir Chavla; John Does (1-3)

Type of Party: 

Individual

Type of Party: 

Individual
Government

Court Type: 

Federal

Court Name: 

Western District of Pennsylvania

Case Number: 

2:04CV00594

Legal Counsel: 

Ronald Barber, Catherine Mancing, Witold Walczak

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Terri and Munir Chavla, operators of a community forum called LocalScoop.net, along with three anonymous users of the site sued Mark Kavakich, the local chief of police, after Kavakich sent them a subpoena seeking the identities of users of the site. According to the lawsuit, Kavakich also posted messages on the site threatening to uncover the identities of anonymous users who had criticized him and sent an email to the site's operators threatening civil and criminal action.

On April 20, 2004, the court issued an order granting plaintiffs' motion for a temporary restraining order, enjoining defendant Kavakich from a) making any threats, either generally or specifically, to prosecute or identify people who post messages on the Internet, specifically, at www.localscoop.net; b) enforcing subpoenas, dated 4/12 and 4/14/04, against www.localscoop.net webmaster Russell Stevens; and c) from threatening to use or making use of any compulsory process to prosecute, identify or confront people who post messages on the Internet, specifically at www.localscoop.net, except by leave of court based upon a showing of probable cause.

The case then proceeded through discovery and court ordered mediation. On January 24, 2006, the court approved the parties' consent decree settling the case. The settlement involved the payment of $42,000 to the plaintiffs and the continuation of the limitations outlined in the preliminary injunction.

Plaintiffs received legal asssistance from Witold Walczak, ACLU of Pennsylvania Legal Director.

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Kavakich v. Chavla

Date: 

04/20/2004

Threat Type: 

Correspondence

Party Issuing Legal Threat: 

Mark Kavakich, Chief of Police of North Franklin Township

Party Receiving Legal Threat: 

Terri Chavla; Munir Chavla; John Does (1-3)

Type of Party: 

Individual

Type of Party: 

Individual
Government

Court Type: 

Federal

Court Name: 

Western District of Pennsylvania

Case Number: 

2:04CV00594

Legal Counsel: 

Ronald Barber, Catherine Mancing, Witold Walczak

Publication Medium: 

Forum

Relevant Documents: 

Status: 

Concluded

Disposition: 

Settled (total)

Description: 

Terri and Munir Chavla, operators of a community forum called LocalScoop.net, along with three anonymous users of the site sued Mark Kavakich, the local chief of police. According to the lawsuit, Kavakich posted messages on the site threatening to uncover the identities of anonymous users who had criticized him and sent an email to the site's operators threatening civil and criminal action. Plaintiffs also allege in their complaint that Kavakich sent them a subpoena seeking the identities of users of the site.

On April 20, 2004, the court issued an order granting plaintiffs' motion for a temporary restraining order, enjoining defendant Kavakich from a) making any threats, either generally or specifically, to prosecute or identify people who post messages on the Internet, specifically, at www.localscoop.net; b) enforcing subpoenas, dated 4/12 and 4/14/04, against www.localscoop.net webmaster Russell Stevens; and c) from threatening to use or making use of any compulsory process to prosecute, identify or confront people who post messages on the Internet, specifically at www.localscoop.net, except by leave of court based upon a showing of probable cause.

The case then proceeded through discovery and court ordered mediation. On January 24, 2006, the court approved the parties' consent decree settling the case. The settlement involved the payment of $42,000 to the plaintiffs and the continuation of the limitations outlined in the preliminary injunction.

Plaintiffs received legal asssistance from Witold Walczak, ACLU of Pennsylvania Legal Director.

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Gonzales v. Dunkle

Date: 

08/28/2007

Threat Type: 

Lawsuit

Party Receiving Legal Threat: 

John Dunkle

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

Federal

Court Name: 

United States District Court for the Eastern District of Pennsylvania

Case Number: 

2:2007cv03577

Legal Counsel: 

Pro Se

Publication Medium: 

Blog
Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Injunction Issued

Description: 

On Aug. 28, 2007, the U.S. Justice Department filed a civil lawsuit against John Dunkle, an anti-abortion activist from Reading, Pennsylvania, seeking injunctive relief for alleged violations of the Freedom of Access to Clinic Entrances Act ("FACE"), 18 U.S.C. § 248.

According to the complaint, Dunkel posted messages on his webpage and blog encouraging readers to kill an abortion provider by shooting her in the head. The postings allegedly targeted a former clinician at the Philadelphia Women's Center and included her name, home address, and photograph, along with instructions about how to kill her and avoid detection.

The complaint alleged that Dunkle's postings constituted a "threat of force to injure, intimidate and interfere with a person providing reproductive heatlh services" in violation of FACE. The government moved for a preliminary injunction, requiring Dunkle to remove the postings in question and prohibiting him from posting the same or similar messages in the future.

Dunkle, acting as his own legal counsel, filed a response to the motion for injunctive relief and a motion to dismiss. He argued that his writings were not "threats" under FACE and also maintained that some of the content was posted by a third party. The government contested Dunkle's claims, including his argument that the postings were not legally cognizable as "threats" under the statute.

On Nov. 8, 2007, after an evidentiary hearing, U.S. District Judge Thomas Golden granted a permanent injunction, ordering Dunkle to remove the postings and barring him from posting similar messages in the future. The injunction contains the following statement: "Nothing in this Order shall prohibit Defendant from picketing, creating, publishing and disseminating anti-abortion information so long as such activities do not constitute illegal threats and elicit violence." The court also denied Dunkle's motion to dismiss as moot.

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CMLP Notes: 

sam reviewing

 

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Snyder v. Phelps: Westboro Verdict Criticized as Unconstitutional

Following up on my earlier post about the $10.9 million jury verdict against Fred Phelps and the Westboro Baptist Church, I wanted to point our readers in the direction of some excellent commentary on the topic by Eugene Volokh at the Volokh Conspiracy.

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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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Update on Phoenix New Times Case

As mentioned in our previous post on the Phoenix New Times arrests, two Phoenix-area news organizations filed a motion on October 19 requesting the Arizona Superior Court to publicly release documents related to the New Times grand jury investigation, presumably including the subpoena that caused all the ruckus.

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Some Thoughts on the Phoenix New Times Arrests

There's been extensive coverage (here, here, here, and here, to start) of the arrest and subsequent dismissal of charges against Michael Lacey and Jim Larkin, the founders of the Phoenix New Times, a print newspaper that also publishes on its website. I'll add my voice to the chorus in order to elaborate on some of the legal issues at stake.

The facts are as follows: Starting in July 2004, the Phoenix New Times published a number of articles critical of Maricopa County Sheriff, Joe Arpaio. In one article published on its website in 2004, the newspaper disclosed Arpaio's home address as part of a story raising questions about his real estate holdings. The address was available in public records on the County Recorder and State Corporation Commission websites.

Authorities in Maricopa County began a criminal investigation of the newspaper for violation of section 13-2401 of the Arizona Revised Statutes, which makes it a felony to

knowingly make available on the world wide web the personal information of a peace officer, justice, judge, commissioner, public defender or prosecutor if the dissemination of the personal information poses an imminent and serious threat to the peace officer's, justice's, judge's, commissioner's, public defender's or prosecutor's safety or the safety of that person's immediate family and the threat is reasonably apparent to the person making the information available on the world wide web to be serious and imminent.
Notice that the statute only applies to publication on the Internet, not to print publications. The New Times filed a lawsuit in federal court in Arizona seeking a declaration that section 13-2401 violates the First Amendment to the U.S. Constitution and an injunction barring Maricopa County law enforcement officials from investigating or prosecuting the newspaper for violation of the statute.

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Subject Area: 

Maricopa County v. Phoenix New Times

Date: 

07/01/2007

Threat Type: 

Criminal Investigation

Party Receiving Legal Threat: 

Phoenix New Times; Michael Lacey; Jim Larkin

Type of Party: 

Government

Type of Party: 

Individual
Organization

Court Type: 

State

Court Name: 

Superior Court of the State of Arizona, County of Maricopa

Case Number: 

No. 430-GJ97

Legal Counsel: 

Michael Meehan, Tom Henze, Janey Henze

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

Starting in 2004, the Phoenix New Times published a number of articles critical of Maricopa County Sheriff, Joe Arpaio. In one article published on its website in 2004, the newspaper disclosed Arpaio's home address as part of a story raising questions about his real estate holdings.

Authorities in Maricopa County began a criminal investigation of the newspaper for violation of section 13-2401 of the Arizona Revised Statutes, which makes it a felony to publish the personal information of a "peace officer" on the Internet, if the dissemination of that information poses a serious and imminent threat to officer's safety.

The New Times filed a lawsuit in federal court in Arizona seeking a declaration that section 13-2401 violates its rights under the First Amendment to the U.S. Constitution. The newspaper also sought an injunction barring Maricopa County law enforcement officials from investigating or prosecuting the newspaper for violation of the statute.

While this litigation was ongoing, in late August 2007, the parent company of the New Times received a grand jury subpoena issued at the request of Dennis Wilenchik, a special prosecutor hired by the Maricopa County Attorney's Office to handle the criminal case against the New Times. The subpoena was extremely broad. It asked for all documents related to any articles published about Sheriff Arpaio from January 1, 2004 to the present. More surprising, it asked for extensive information about all online readers of the New Times from January 1, 2004 to the present, including IP addresses, date and time of visit, type of browser, and websites visited before coming to the New Times site.

The newspaper filed a motion to quash the subpoena in Arizona Superior Court in Maricopa County. On October 18, Michael Lacey and Jim Larkin, the founders of the New Times, published an article on the newspaper's website entitled "Breathtaking Abuse of the Constitution." The article discussed the grand jury subpoeana in detail, criticized its breadth, and detailed what the authors believed were irregularities in the prosecution's handling of the case. Significantly, Lacey and Larkin posted a PDF of the full text of the subpoena on the website along with the article.

The same day the article was published, the Maricopa County police arrested Lacey and Larkin for violating section 13-2812 of the Arizona Revised Statutes, which makes it a misdemeanor criminal offense for anyone to disclose any "matter attending a grand jury proceeding."

The arrest received widespread media attention, and a storm of criticism ensued. On October 19, in the face of public outcry, Maricopa County Attorney Andrew Thomas announced that his office was dropping all criminal charges against the newspaper and that he had removed special prosecutor Wilenchik from the case. (A video of the County Attorney's public statement is available on the Phoenix New Times site.)

On October 19, Phoenix Newspapers Inc. and KPNX-TV filed a motion requesting the Arizona Superior Court to publicly release documents related to the grand jury investigation, presumably including the subpoena. County Attorney Thomas has announced his support for this request. On October 24, the court released the requested documents, indicating that release was appropriate in part because the New Times had reported the existence of subpeonas on October 18, and in part because other documents in the file did not need to be kept secret to protect the grand jury process and the matter was of public concern.

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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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Volkswagen Subpoenas YouTube for Identity of User Who Posted Nazi-Themed Video

In late August, Volkswagen obtained a subpoena from the United States District Court for the Northern District of California (Case No.3:07-MC-80213) requiring YouTube to disclose the identity of an anonymous YouTube user who posted a Nazi-themed parody of a Volkswagen commercial. The video has apparently been removed from YouTube and is no longer available.

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State of Colorado v. Mink

Date: 

12/13/2003

Threat Type: 

Criminal Investigation

Party Issuing Legal Threat: 

State of Colorado

Party Receiving Legal Threat: 

Thomas Mink

Type of Party: 

Government

Type of Party: 

Individual

Court Type: 

State

Court Name: 

Colorado District Court, County of Weld

Legal Counsel: 

A. Bruce Jones, Marcy Glenn, Mark Silverstein (ACLU)

Publication Medium: 

Website

Relevant Documents: 

Status: 

Concluded

Disposition: 

Withdrawn

Description: 

While a student at the University of Northern Colorado, Thomas Mink created a website called the "Howling Pig," which dealt with issues of current interest at the University. Among other things, the website parodied the views of a professor at the University. The professor complained to the local police department, and they commenced an investigation of Mink for violation of Colorado's criminal libel statute.

Colorado law makes it "criminal libel" to knowingly publish any statement tending to "impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule." Colo.Rev.Stat. Sec. 18-13-105.

In December 2003, the Colorado police obtained a search warrant, searched Mink's house, and seized his computer and written materials.

In January 2004, Mink sued various government officials in the United States District Court for the District of Colorado, challenging the criminal libel statute as a violation of the First Amendment to the United States Constitution. The district court granted Mink a temporary restraining order prohibiting his prosecution under the criminal libel statute and requiring the district attorney to return Mink's computer and all of its contents.

Later, the district court dismissed Mink's suit when the district attorney's office disavowed an intent to prosecute. Mink appealed, and the Tenth Circuit affirmed dismissal of the constitutional challenge on standing and mootness grounds.

Update:

9/10/2009 - Mink petitioned for a rehearing en banc (in front of the entire Tenth Circuit) which was denied.  The State then petitioned the U.S. Supreme Court to review the case.  The Supreme Court declined and sent the remaining claims back to the district court.  The district court dismissed the remaining claims.  Mink is now appealing to the Tenth Circuit.

7/19/2010 - Tenth Circuit reversed, holding that "Because a reasonable person would not take the statements in the editorial column as statements of facts by or about Professor Peake, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of Mr. Mink's property." 

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Chinese Cyber-Dissident Sentenced to 4 Years for "Inciting Government's Overthrow"

Reporters Without Borders is reporting that a Chinese court in the southeastern province of Zhejiang sentenced lawyer and cyber-dissident Chen Shuqing to four years imprisonment for posting articles critical of the government on the Internet:

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N.Y. City Backs Down on New Photography and Filming Rules

In June we reported that the New York Mayor's Office of Film, Theater and Broadcasting was considering new rules that would require any group of 2 or more people who want to use a camera on city property -- including sidewalks -- for more than a half hour to get a city permit and $1 million in liability insurance.

Not surprisingly, the new rules were roundly criticized from the start. The New York Civil Liberties Union, which said the rules encroached on First Amendment rights, threatened to file a lawsuit to invalidate them. One of the more interesting approaches was taken by Olde English, a comedy group based in New York City that created a rap video lampooning the new rules and directing viewers to contact the Office of Film to express their dissent. (Don't miss the video, it's great.)

The city has now backed down, following a strong public outcry by photographers and independent filmmakers. NY1 News reports:

The Mayor's Office of Film, Television, Theater and Broadcasting said Friday that it will re-evaluate its set of proposed rules that would have required permits and as much as a million dollars in insurance for small, independent productions. The announcement comes at the end of a 60-day public comment period on the policies. The organization Picture New York gathered a petition with 31,000 signatures opposing the rules.

According to NY1 News, the Office of Film says it will take the public's comments into account in the next draft of the rules.

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Olympic Athletes May Be Allowed to Blog Again (with Conditions)

The Australian is reporting that the International Olympic Committee (IOC) will likely rescind its requirement that Olympic athletes refrain from blogging during the Olympics:

The IOC Press Commission, chaired by Australian Kevan Gosper, is set to recommend that the IOC's powerful executive board drop its opposition to athletes writing blogs during the Games when it meets in November. Competing athletes are specifically prevented from working as journalists during the Games and have so far been strictly denied rights to continue writing internet columns during the event. But Olympic sources said yesterday that the IOC was set to make the shift as it realised it had to recognise the dramatic expansion of the internet in the daily lives of athletes. The IOC is also keen to expand the appeal of the Olympics to the youth market.

This seems like a complete no-brainer. Who better to provide first-person perspectives on the Olympics than the athletes themselves. The fact that they can't currently write about their experiences is lamentable, but not surprising given the IOC's strict control of everything related to the Olympics.

Of course the IOC's change, assuming it is approved, wouldn't just open the blogging floodgates. According to The Australian, the head of the IOC Press Commission said athletes "would have to comply with some strict conditions on their blogging, including not benefiting financially and not criticising coaches or other athletes."

Not criticising coaches or other athletes?! I guess that is free speech IOC style.

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A Reminder of Free Speech's Value

BBC: Malaysia cracks down on bloggers. The Malaysian government has warned it could use tough anti-terrorism laws against bloggers who insult Islam or the country's king.
I remember visiting Malaysia in late 2001, and being assured by people in business and government that the Internet was going to truly remain a free-speech zone (unlike the highly regulated traditional media).

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Public Employee Blogs: A Means to Ensure Free Speech Protections?

Paul Secunda of the Workplace Prof Blog has a post up observing that the Supreme Court's decision last term in Garcetti v. Ceballos, "completely eviscerated public employee free speech protection." According to Secunda:

Let the public employee free speech carnage begin. One would think that when a police officer that reports to an assistant district attorney that his police chief is harboring a felon, and is reassigned to street patrol for his trouble, that he would be considered to have engaged in speech on a matter of public concern and potentially protected under the First Amendment.

Not under the madness which is Garcetti. Under the formalist framework set up in Garcetti, you either speak as a citizen or employee and nothing in between. You just can't be both even though most people in reality act as both citizens and employees in the workplace.

In a recent case applying the Garcetti framework, the 7th Circuit was faced with a situation where a police officer had made allegations of misconduct by his police chief to an assistant district attorney and in a civil deposition. In the case, Morales v. Jones, 06-1643 (7th Cir. Jul. 17, 2007), the 7th Circuit held that the officer's statements to the assistant district attorney were not protected under the First Amendment because -- and the court seems to have turned the world on its head to conclude this -- the officer was acting within his official duties when he reported the alleged misconduct.

Interestingly, the Morales court also held that because the officer made the same allegations in a deposition, that speech was protected under the First Amendment:

We recognize the oddity of a constitutional ruling in which speech said to one individual may be protected under the First Amendment, while precisely the same speech said to another individual is not protected. Indeed, this is exactly the concern that Justice Stevens voiced in his dissent in Garcetti. . . . Despite Justice Stevens' admonishment, Garcetti established just such a framework, and we are obliged to apply it.

Because the 7th Circuit was unable to determine which speech was the motivation for retaliation against the officer, the court remanded the case for a new trial.

So what does this have to do with citizen media? This could make public employee blogs even more important as a means to ensure that those who report governmental misconduct are afforded full First Amendment protection. Report the misconduct only to another government employee and you run the risk of losing your job. Report the misconduct on your blog and the First Amendment will likely protect you (there are obviously other issues involved here, including state whistleblower statutes).

Let's hope the district court clarifies this important issue on remand.

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Japan Considering Extending Broadcast Law to Bloggers

Hanako Tokita of Global Voices reports that the Japanese Ministry of Internal Affairs and Communications is considering extending Japan's existing Broadcast Law to regulate bloggers and other website operators:
While nobody was watching, an interim report drafted by a study group under the Japanese Ministry of Internal Affairs and Communications has set down guidelines for regulation of the Internet in Japan which, according to one blogger, would extend as far as personal blogs and homepages. In the report, this Study group on the legal system for communications and broadcasting, headed by Professor Emeritus at Hitotsubashi University Horibe Masao, discusses the possibility of applying the exising Broadcast Law [Ja] to the sphere of the Internet to regulate, under government enforcement, what gets on the web. The report also suggests that public comments be sought on the issue [Ja], in response to which the ministry has opened a space on their webpage for the public to submit comments [Ja], available in the period between June 20th and July 20th.

Despite the obvious significance of the proposed regulation, neither media nor the majority of bloggers are aware of its existence. The most detailed coverage of the issue has been provided by
tokyodo-2005, a former journalist, now a lawyer and prolific blogger on media related issues, who has (at time of writing this) already posted seven entries on the topic. In these blog entries, he warns that this legislation would be applied not only to general websites but also to personal blogs and home pages. The report advises, he cites, that contents found illegal based on the significance of their activity ( would be outside the scope of protections on freedom of expression as specified in the Japanese Constitution; therefore, it is claimed, there would be no constitutional issue with regulating such content.

(Note: Global Voices, like the CMLP, is affiliated with the Berkman Center and Ethan Zuckerman, a founder of Global Voices, is on the board of advisors for the CMLP.)

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New York City May Require Permits and Insurance for Public Photography

The New York Mayor's Office of Film, Theater and Broadcasting is considering new rules that would require any group of 2 or more people who want to use a camera on city property -- including sidewalks -- for more than a half hour to get a city permit and $1 million in liability insurance, the New York Times reports today:

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