Thanks to Scotus blog + Wall St. Journal law blog

June 27, 2008

News:  I wanted to thank Tom Goldstein at Scotus blog (the premier site for Supreme Court action) and Dan Slater at Wall Street Journal’s law blog for referencing my last post that suggests how the Supreme Court’s decision in the gun case (DC v. Heller) is helpful to speech technologies + the freedom of the press.

The basic pivot point that connects the 2nd Amendment and the Free Press Clause in the 1st Amendment is that they are the only 2 provisions in the Constitution in which the Framers sought to protect a right to a technology — the right to “keep and bear arms” in the 2nd amendment and the right to the freedom “of the press” (meaning the printing press).  I’ve outlined the history of the Free Press clause in an article you can download here.  My article shows that the Framers clearly intended the Free Press clause to be a limit on the Copyright Clause, specifically to prevent the government from directly regulating or restricting the technology of the printing press.  Indeed, the history behind the Free Press clause is strikingly similar to the history behind the 2nd Amendment in terms of both the English abuses in restricting a technology (guns or the printing press) and the Framers’ subsequent ratification debate between Antifederalists and Federalists. 

If the Supreme Court follows the same approach in interpreting the history and text of the Free Press Clause as it employed in the gun case, then the result is likely to be that Congress’s efforts to restrict speech technologies under copyright law would be unconstitutional. 

The Supreme Court rules 2nd Amendment right to “keep + bear arms” — why should Free Speech supporters and technology companies be happy?

June 26, 2008

News: The Supreme Court announced its 5-4 decision today in the gun-control case in District of Columbia v. Heller, declaring the DC gun control law banning handguns unconstitutional. You can download the opinion here. Justice Scalia wrote the majority opinion and applied a close textual analysis of the Second Amendment, along with a review of the history of various uses of the words “keep,” “bear” and “arms” in England, state constitutions, and contemporaneous writings.

Analysis: Here are my initial reactions. First, it is amazing that this is the first time in 217 years that the Supreme Court has definitively ruled on the Second Amendment right. That’s a very long time of silence. Second, I’m not an expert in gun control, so I can’t speak to those issues. But for technology companies dealing with speech-related technologies, the Court’s precedent on guns may actually be very good for speech technologies.

As I’ve said in the past, there are only 2 provisions of the Constitution that deal with technologies: (1) the Second Amendment’s “arms” and (2) the First Amendment’s “press,” referring to the printing press. If the Court interprets the Free Press clause in a parallel manner to the way it has interpreted the Second Amendment, it is very possible that Congress’s present or future attempts to regulate speech technologies under copyright law could be unconstitutional.

My theory is laid out in detail in my article “Freedom of the Press 2.0,” an early draft of which you can find online.

UPDATE: A number of people have read this post and may be skeptical about the connection. I’ve written a few more words about the historical connection between guns + the printing press, between the 2nd Amendment and the 1st, on a subsequent post you can find here. Although the Framers were dealing with two very different technologies (guns + press), the origin of and debate over both clauses followed a strikingly similar path.

And I should add Justice Scalia himself cites (p. 29) to a Massachusetts supreme judical court opinion and a 1868 con law treatise (p. 46) that make the direct analogy to the freedom of the printing press and the right to bear arms:

The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”

The [2nd Amendment] clause is analogous to the one securing the freedom of speech and of the press.”

And then Justice Scalia himself draws the analogy to the First Amendment, although only the free speech clause (free press is often overlooked):

The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different.” (p. 63)

UPDATE: I’ve just written an Essay on this topic. Click here to download a copy.

FOX News v. John McCain, Mitt Romney

February 6, 2008

News: This is a little bit late (happened last year), but I’ve been researching the copyright dispute FOX News had with John McCain and Mitt Romney.

What was the problem?  Well, FOX demanded that McCain and Romney each stop using, in their campaign videos, any footage from their Republican debate sponsored by FOX News.  Both candidates invoked fair use, but FOX said it wasn’t fair use.

Analysis:  I have not read if FOX has changed its view.  It should.  FOX’s argument is downright absurd, a misuse of its copyright.

FCC fines ABC for airing Charlotte Ross’s naked butt in 2003

January 29, 2008

News: On Friday of last week, the Federal Communications Commission issued a $1.43 million “indecency” fine against ABC for airing the naked butt of actress Charlotte Ross on an episode of NYPD Blue in 2003. The fine is based on $27,500 per ABC affiliate stations that aired the show in Central time at 9 p.m. — 1 hour before broadcasters apparently can air naked rear ends on TV. (more from Wash Post)

Analysis: The FCC “indecency” rules need to be overturned. They are outdated in the age of the Internet and they seem nothing short of censorship masquerading as a legal rule. Although the Supreme Court in 1978 did uphold (in a plurality opinion) the FCC’s power to regulate “indecent” material broadcast on the airwaves (see Pacifica), in 2008 the basis for that decision is more and more suspect. Pacifica was based on the Court’s view (i) that TV has a “pervasive presence” in American homes and (2) is available to children. The Court upheld the FCC’s sanction against a radio for broadcast of George Carlin’s “filthy words” routine at 2 p.m. in the afternoon.

First things first: 9 p.m. is different from 2 p.m. in the afternoon.

Second, why is the FCC worried about something that happened in 2003? NYPD Blue no longer exists as a show.

Third, the Internet has, for many Americans, an equally pervasive presence that is available also to children in the same way as TV. Indeed, the lines between TV and the Internet have become increasingly blurred. Yet the thought of the U.S. government issuing fines for “indecent” content on the Internet would probably scare most Americans into thinking that the government was following the censorship policy of China.

Also, I wonder whether the FCC has been engaging in arbitrary enforcement of its “rule.” As I seem to recall, NYPD Blue used to routinely show naked butts on their show. The joke was that every actor would eventually have to show off their naked behind, including even Dennis Franz as Andy Sipowicz. I’m not sure if the FCC ever challenged ABC’s nudity in all those other shows. (Maybe it did, but I don’t think so.)

In the last day, clips of the “indecent” episode of NYPD Blue have been posted on YouTube.   Within 1 day, one clip received over 1 million views on YouTube–thanks to the FCC’s action in trying to regulate “indecency.”  You can judge for yourself what you think about the nudity in the clip and whether a $1.43 million fine is what you want the government to be handing down for such content. Of course, viewer discretion is advised.

Here’s a link to the NYPD Blue “indecent” nudity involving a naked butt.

Turkey and Thailand look to censor YouTube

September 23, 2007

News:  Turkey just ordered YouTube blocked in its country in response to a video insulting Turkey’s founder, Mustafa Kemal Ataturk, and Prime Minister Recep Tayyip Erdogan.  (More)   Not to be outdone, after banning YouTube for 5 months, Thailand wants YouTube to remove two videos that narrated “accuse General Prem Tinsulanonda, 87-year-old adviser to the widely respected King Bhumibol Adulyadej, of masterminding the coup in September 2006.” (More)

Florida student tasered for disturbance at Kerry speech–video on YouTube

September 18, 2007

News: This video provided by The Gainesville Sun. A longer version is below. The University of Florida student appeared to be disruptive and at the very least, rude. It’s hard to imagine why he got so worked up about John Kerry, of all people. Apparently, Andrew Meyer has his own websites and makes prank videos, so maybe he wanted all the publicity. More from Washington Post.

Here are two more videos:

“Censorship” on and by YouTube

August 31, 2007

News:  There are several interesting blog posts today about censorship on and by YouTube, as to the controversial videos mocking the Thai King, the German Nazi videos, Al Qaeda recruitment videos, and even videos suspected of copyright infringement.  NYT writer Patrick Lyons has one post, which refers to another thoughtful post by Jason Lee Miller.

Miller writes at one point: “If speech on the Internet is determined by terms of service agreements set forth by private companies not only beholden to advertisers, partners and shareholders, but also to international pressures, then there will be no real freedom of speech on the Internet.”

Analysis:  Under the U.S. Constitution, there’s really no problem (legally speaking) for YouTube to remove content it deems objectionable.  YouTube is not a state actor, so YouTube’s “censorship” of material doesn’t come within the scope of the First Amendment.  Private actors can censor, the government can’t.  YouTube has every right to decide for itself — or let its community decide — to take down objectionable content, including hate speech videos, pornography, and copyright infringing videos.

The interesting wrinkle comes in when YouTube starts censoring based on compliance with foreign laws or requests by foreign governments, especially foreign laws that would violate our First Amendment if enacted here.  At least as a PR matter, it certainly presents YouTube something to think about.      

Thailand lifts ban on YouTube

August 31, 2007

News:  After 5 months, Thailand has finally lifted its ban of YouTube in its country.  The ban came after videos mocking the Thai King surfaced and resurfaced on YouTube — in violation of Thai law.  To reach a solution, YouTube apparently agreed to deploy filtering of the videos in Thailand (although it’s still not clear to me whether that means complete removal of all offending videos from YouTube, something YT had earlier resisted for some reason).  (More)

Analysis:  I’m surprised it took YouTube this long to get the ban lifted.  Maybe there’s not many users of YouTube in Thailand. 

Columbus police officer reassigned after making racist videos on YouTube

August 29, 2007

News:  The Columbus Police Department reassigned patrol officer Susan Purtee (60) to a desk job after she made several racist videos (along with her sister, Barbara Gordon-Bell), railing against Jews and blacks. (More here)  The Police Department is considering whether further action should be taken against the officer.  The two sisters posted the racist videos on their personal website,  They were also posted on YouTube under the name “subie sisters.”  You can view the YouTube videos here.

Below is one of their anti-Semitic videos, which they describe as follows:  “The Subie Sisters explore the thinking of the present day Jew and why that might contribute to the destruction of American society.”

Warning: the video contains racist, hate speech.  I debated whether to include this video, but I think readers need to know what kind of content it contains.

Analysis:   I was interviewed yesterday by a local radio station about whether the officer can be disciplined or whether her speech is protected by the First Amendment.  The short answer is:  Under Supreme Court case law, I believe the Columbus Police Department can discipline Officer Purtee — even fire her — without any First Amendment problem.  (I can’t speak to the City’s internal employee regulations or code of conduct.) 

The test under the First Amendment for speech by a public employee is twofold: (1) “Whether the employee spoke as a citizen on a matter of public concern,” and (2) if so, “whether the government entity had an adequate justification for treating the employee differently from any other member of the general public,” such as restricting “speech that has some potential to affect the entity’s operations.”  Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006).

In this case, it’s at least debatable whether the speech in the videos involve a “matter of public concern.”  If they don’t, then there’s no First Amendment claim for the public employee.  But even if they do involve matters of public concern, the government has discretion to restrict speech that has some potential to affect the entity’s operations.  In this case, the Columbus Police Department would have a very strong basis to conclude that racially incendiary videos disseminated by a police officer — even while off-duty — can undermine the public’s trust and confidence in the police department, and in the fair and equal administration of law enforcement.  Courts would give a lot of leeway to the police department in this kind of case.   

Thailand to restore access to YouTube

June 26, 2007

News:  After weeks of a ban for objectionable content (clips making fun of the Thai King) (see here), Thailand said it will restore access to YouTube this week.  More.

Is YouTube really “killing our culture,” as Andrew Keen says?

June 20, 2007

Book review: Andrew Keen has a book just out, provocatively titled, “The Cult of the Amateur: How Today’s Internet Is Killing Our Culture.” In the book, Keen launches into a tirade against YouTube, Wikipedia, the entire blogosphere, and all other user-generated or “amateur” content in our Web 2.0 world. Keen’s basic thesis is this: “[D]emocratization [on the Internet], despite its lofty idealization, is undermining truth, souring civic discourse, and belittling expertise, experience, and talent. … [I]t is threatening the very future of our cultural institutions” (15). Yes, according to Keen, YouTube is a big part of the problem.

Over the next few days, I’ll be reviewing this book. Today, let me begin with two points.

1. The rhetoric in the book. It’s filled with punchy writing and clever turns of phrase. The rhetoric is often fun to read, in part because it’s so over-the-top. But I think the rhetoric ultimately undermines Keen’s own message. Keen says he wants more detailed, reasoned professional analysis. But his own book sensationalizes stories and speaks with the same kind of overgeneralizations and rantings that Keen criticizes on amateur blogs. Keen is taking a contrarian view on Web 2.0, and because his book is being mass-marketed, he’s more likely to sell books if his position is more sensationalized or extreme.

2. Is Keen himself an amateur?: Keen decries the amateur and hails the professional expert as the source of “truth” (more on truth in a later post). But what kind of expert is Keen? From his own bio, he’s a Silicon Valley entrepreneur who once was a CEO of a dot com and who now is CEO of “afterTV LLC, a firm that helps marketers optimize their brand desirability in the post-TV consumer landscape.” Oh, and, of course, Keen has his own blog.

OK, so does that make Keen an expert in democracy, freedom of the press, journalism, the entertainment industry, the music industry, intellectual property, libel law, click fraud, identity theft, and child predators–topics all covered in his book? My point is not to attack Keen’s credentials, but to question his overall argument in his book–that “amateur” productions should be kept in check because they are ruining “our culture” (more on “our culture” later). If that were the rule, his book shouldn’t have been published at all.  The people at Doubleday should have edited out any bit of material for which Keen had no expertise.

Banned Venezuelan TV network airs on YouTube

June 2, 2007

News:  Venezuelan President Hugo Chavez shut down Radio Caracas Television (RCTV), a Venezuelan opposition TV network.  So now, RCTV is posting on YouTube.  (More)  It’s the most subscribed channel this week.