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. 

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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.