Sorrell Means Business

Courtesy of The Rutherford Institute

Last week’s Supreme Court decision in Sorrell v. IMS Health Inc.  signified a subtle yet important shift in commercial speech interpretation that may precede increased corporate strength in the legal arena.  The opinion, by Justice Kennedy, argues that Vermont did not have grounds to ban pharmaceutical data-mining as it is a form of non-deceptive commercial information-sharing that is protected by the First Amendment.  Certain to affect similar cases in Maine and New Hampshire, the decision holds that states will now need to broaden such claims in order to effectively challenge corporations. Within the dynamics of the court, however, the 6-3 ruling, with Justice Sotomayer’s surprising vote, means the fading legal distinction between commercial and noncommercial free speech is losing its political connotation.

The first mentions of commercial speech surfaced when a man named Chrestenson was denied the ability to advertise tours of his boat in New York through the use of handbills even after making a political statement on the reverse side.  That was 1942.  Since then and gaining frequency in the 70s, the Court chipped away at the ability of states to regulate corporations’ methods of communication. Proving invaluable in the Sorrell opinion, the 1980 four-prong “Central Hudson test” is the key mechanism to distinguish a case of commercial speech that warrants protection. However, the application of the “heightened scrutiny” afforded First Amendment debates to the Sorrell case provides grounds that the Test is losing significance.

The most recent Court strengthening of commercial speech protection fits into yet another trend: a pro-business Court.  Led by Chief Justice Roberts, the decisions emerging at the end of the term increasingly yield to the interests of large corporations.  For example, both decisions in Wal-Mart v. Dukes and AT&T v. Concepcion will make it harder for individuals to challenge such giant companies through class-action lawsuits.  While the expanding First Amendment protection of commercial free speech is a definite victory, I am wary of its manipulation to blast big business out of reach of public accountability when examined in the context of other Court decisions.

The Sorrell opinion, wedged between two important trends dominating the current legal climate, is likely to lead to corporations fighting further government regulations.  For example, online advertisers will fight privacy complaints using the same argument that accessing individuals’ information for marketing is protected commercial speech.  Even tobacco companies may find grounds to protest new FDA half-box-sized warning labels that restrict brand communication.

Affording commercial speech protection allows these corporations to defend their marketing. With this promotion of commercial speech, however, I argue it is important to maintain the avenues of free speech afforded to noncommercial interests. Only in this way will these two types of free speech be able to merge and exist in harmony.

 

Security For Whistleblowers

Courtesy of Google Images

In the wake of the Wikileaks controversy, the Obama administration has increased its efforts to punish government officials accused of leaking classified information to the news media. While the Justice Department has the right to hold FBI, NSA and CIA employees to the confidentiality agreements in their contracts and keep certain information classified, these initiatives are undermining First Amendment principles by prosecuting whistle blowers – individuals who are exercising their right to free speech to report government abuses and/or mismanagement.

The New York Times recently announced that the Justice Department would continue to pursue other cases in its crackdown on national security leaks after Thomas Drake, a former National Security Agency (NSA) officer, pled guilty to a minor misdemeanor charge three weeks ago. Journalists for the New York Times, Politico.com and the Washington Post (as well as other publications that have been following the story) believe that this decision undermined government efforts to make an example of Drake to discourage further leaks. Stephen Kim, an arms expert for the FBI, will still be tried for communicating with Fox News reporter James Rosen in 2009 and lying about it to the FBI. Thomas Drake and Stephen Kim are two of five government employees who have been accused of violating the Espionage Act since Obama has taken office, compared to the three total under all previous presidents. If convicted, Mr. Kim will serve up to 15 years in prison.

The government’s approach to these national security leaks is questionable, particularly its use of the Espionage Act, which has been used in the past to prosecute government officials that sold secrets to the Soviet Union (and was first used to prosecute Daniel Ellsberg in 1971, who published the Pentagon Papers).

The Washington Post specifically featured an editorial discussing the Thomas Drake case, stating that Drake was wrongfully tried as a spy, noting different procedures that the Justice Department could use to to hold government employees responsible for breaching confidentiality agreements – such as revoking security clearances until investigations confirm serious violations. In addition, many laud Drake for helping to expose the NSA’s Trailblazer as a program that wasted tax payers’ dollars and enabled unauthorized domestic surveillance as well as for attempting, along with others at the NSA, to file complaints and notify Congress of this fact. The Justice Department has yet to provide a compelling case that proves that the information that these government employees gave to the press seriously endangered U.S. national security or that these individuals exhibited treasonous behavior warranting trial under the Espionage Act.

It is easy to let fear eclipse the protection of our First Amendment rights to free speech and free expression. However, fears for our national security has allowed gross infringement on individual liberties in addition to government corruption and abuse in past administrations. By promoting self-censorship among government employees and not allowing the public access to information, the government’s current crackdown on national security leaks is undermining basic accountability for organizations like the NSA, FBI and CIA. Measures such as greater protections for whistleblowers should be taken to ensure that both government accountability and civil liberties are not sacrificed to the current national security agenda. A nation without government accountability is hardly secure.

Free to Speak or Free to Seize?

Courtesy of Answers.com

A recent surge in vulnerability to search and seizure, despite protection under the Fourth Amendment, is creating a climate of fear of punishment for constitutional free expression.  Multiple stories this week share the theme of government interpretation of the Fourth Amendment infringing on the rights of the public.  If professionals and the public must live in fear of government subpoena, is free expression as unhindered as we’d like to think?

One of the most basic First Amendment freedoms Americans enjoy is the right to openly criticize our government.  This protection is often cited as distinguishing our country from political states such as China.  Yet the recent crescendo in the FBI anti-terrorism probe to target peace activists contradicts the sentiment that the American government permits such criticism.  While many activists will not let the inconvenience of residence raids and subpoenas prevent their advocacy, those in more precarious social circumstances may fall victim to this chilling effect.

The journalist profession utilizes shield laws and the Privacy Protection Act to counteract interpretations of the Fourth Amendment that would limit freedom of the press.  Honest journalism is compromised when confidential interview information or identities, often unpublished, are at risk of government exposure.  A major loophole lies in the lack of a uniform national shield law, but Illinois currently must assess the role of its shield laws in the case of Professor David Protess of Northwestern University.  By over-stepping the provisions of the shield law to further his legal goals, Protess faces a major setback to the Innocence Project’s ability to restore First Amendment rights denied to convicted prisoners. The case of Professor Protess calls into question the comprehensiveness of enhanced Fourth Amendment journalist protection, as is.  If investigative journalism cannot be applied without risk to reporters (or their sources), truths remain hidden and freedom is compromised.

As we move toward the full digitalization of our correspondence and personal documents, the intertwining of the First and Fourth Amendments becomes even more prominent.  The lack of protection of information stored in ‘cloud’ technologies from government snooping is hazardous to businesses and the public alike.  The main problem is Congress’ failure to provide legal support for (or denial of) the constantly changing expectations of privacy developed around new technologies. Due to these discrepancies over Fourth Amendment protection, all cloud users could find themselves in the same boat as the peace activists recently targeted by the FBI.

The clashes between the First and Fourth Amendments highlight an important change we need to enact in our government.  Fourth Amendment protections must be afforded as citizens find more and more arenas to express themselves and exercise their First Amendment rights.  Only by aligning the interpretations of both amendments will our most treasured freedoms be adequately promoted and protected.

Doin’ the Love Game

The Electronic Entertainment Expo (E3) is known for exhibiting a panoply of video game products and innovations, so IGN blogger Michael Tomeson recently quested to find video games dealing with sex. Despite a medium that presents simulated activities ranging from invading Normandy to designing entire civilizations, Tomeson noted the continuing informal ban on sexual content within the mainstream game market.

Two exceptions in this year’s crop are the psychological thriller Catherine and The Sims Social, the latest installment in the massively popular The Sims franchise. The respective pedigree of these games have something to do with their ability to brave the crossing into lusty game narratives.

Catherine is descended from the Eroge (erotic game) subgenre of Gal Games popular in Japan, which also includes dating simulations. The game’s male protagonist confronts puzzles and obstacle-laden dream sequences while negotiating intrigue and memory loss surrounding his torrid love affair with the titular love interest.

The Sims Social is inheritor to one of the best-selling franchises in video game history, renowned for its “crossover” popularity beyond the typical gamer audience. Instead of presenting warriors, sorcerers, or space marines, The Sims aimed to simulate people living, working, and even loving in a glossy suburbia. All Sims can flirt, kiss, “make whoopee” (as the game terms it) and originate as bisexual but develop a preference based on the player’s choices. “Whopee” and relationships make up only a fraction of the original Sims game, but the multiplayer The Sims Online release eventually grew a sizable cyber-sex market utilizing the game’s own currency.

To sum up: Catherine has migrated over from a games culture full of sexual content, and The Sims positioned itself early as an “anti-game” and managed to pull off an innocuous playfulness that makes the saucy moments more palatable.

Why, then, are sex and relationships only dealt with by such outliers within the anglophone gaming market? The first person shooters, role playing games, and sandbox titles that constitute the bulk of releases might use sexualized content for gritty ambiance or marketing purposes, but that’s just window dressing. Their eschewing of sex narratives and mechanics, Tomeson notes, seems pretty arbitrary considering the copious, graphic violence on offer.

But just as the MPAA issues higher viewer discretion ratings for movies depicting sex than for violence, so does the ESRB for video games. When the Hot Coffee mod depicting simulated sex in the ultraviolent title Grand Theft Auto: San Andreas came to light, the title was re-rated from “Mature” to “Adults Only.” Such higher ratings can negatively impact sales, as an NC-17 rating can be a death sentence to any film with mainstream commercial ambitions.

In 2010, Microsoft pre-emptively banned a pornographic game designed to make use of its motion-sensing, Xbox Kinect camera in order to keep their gaming console “family friendly”. Microsoft categorically denies certification for all Adults Only-rated titles.

Video games reflect the bias among decision-makers in American media that war and gang violence are more “family friendly” than sex. I predict that as video game narratives, technologies, and distribution systems evolve we will see more titles featuring sex and relationships outside the ghettoized “adult” market, though early offers will remain gimmicky or arrive as import titles such as Catherine. The Sims remains a fascinating counterexample, especially with the new social networking features exhibited in The Sims Social.

As titles broach an expanded array of themes, expect more controversies as the medium strains expectations that video games are “for kids” — similar to when American animation broke into more mature themes in the 1990s with The Simpsons and South Park.

(Photo from MySimsStories)

Needing the Dark to Find the Light

A recent article by Meghan Cox Gurdon in the Wall Street Journal argues that the grim, gory, and dark shadow cast over the genre of young adult literature is inappropriate for its target readers.  This controversial review exposes the fear of many parents who worry about children’s exposure to realities believed to be too mature. Cox Gurdon suggests that free expression goes too far in allowing these books to “bulldoze coarseness or misery” into young people’s lives.

In the late-60s and early-70s young adult (YA) literature began to address adolescent struggles with drug-use, abuse, rape, and suicide in novels by S.E. Hinton, Judy Blume, and Anonymous (Go Ask Alice).  Since then, contemporary novelists dwell on these subjects to engage readers who are exposed to these topics and profanity in TV programs, video games, and on the Internet. In fact, many of the books assigned in school, such as Shakespearian tragedies or Of Mice and Men, address similar dark themes

This new focus of YA fiction increasingly mirrors the realities facing teens. Recently-popular dystopian YA literature significantly differs from its adult genre counterpart in that it serves to exemplify the present world of teens rather than a future state. For example, Suzanne Collins’ trilogy, The Hunger Games, addresses issues of increased surveillance, social hierarchy, and the arbitrary nature of high school life.  Even the Twilight saga connects supernatural transformation with the seemingly-uncontrollable hormone surges teens face everyday.

Jay Asher’s novel Thirteen Reasons Why tackles a teen suicide and its causes, resonating with many adolescents facing depression with suicidal thoughts.  In an interview, Asher recounts the immense and emotional feedback received after the book’s publication.  The message, “you are not alone” is invaluable. However, perhaps the book’s most important lesson is in empathy and the effect of small actions.

In response to Cox Gurdon, thousands of Twitter users united by young adult novels that have addressed their emotional struggles are using the hashtag #YAsaves. Cox Gurdon’s article continues to meet immense criticism from the target audience of the YA genre as well as YA authors in this cultural battle.

Student Speech Online: Can/Should Schools Punish It?

On Monday, June 13th 2011, the U.S. 3rd Circuit Court of Appeals ruled that two students who both created fake MySpace profiles parodying their school principals had been unfairly disciplined by their respective school districts. In both cases, the Court found that the schools had not shown that the students’ actions were sufficiently disruptive of school activities to justify disciplinary action. It was a victory for these students and potentially others whose off-campus online speech may be objectionable but not “substantially disruptive.“

In Layschock v. Hermitage School District, the ACLU filed suit on behalf of a high school senior suspended for creating an offensive online parody of his principal on his grandmother’s computer. The suit alleged that the school had violated the student’s First Amendment rights.  In addition to a 10-day, out-of-school suspension, the administration placed him in the Alternative Education Program, a program “designed for students who could not function in a classroom,” even though he was in advanced placement classes and had an excellent academic record.  He was also barred from attending graduation.

The plaintiff in J.S. v. Blue Mountain School, was an eighth grade honors student who had no problems at school until she was disciplined for dress code violations.  Shortly thereafter, she and a classmate used her parents’ home computer to create an obviously fake profile on MySpace which depicted the principal as a pedophile and a sex addict.  The school suspended her for 10 days.

In both cases, the Court of Appeals found that school officials had violated the students’ the First Amendment rights.  The Court held that school officials could penalize lewd speech only if it occurred on campus, and that it could penalize other speech only if it “could reasonably [lead] school authorities to forecast substantial disruption of, or material interference with school activities.”

The Court noted that the “precise parameters” of school authority to discipline students for off-campus online speech have yet to be defined, but it has clarified the analysis that courts in that jurisdiction must apply to address the question.  It remains to be seen whether these cases will provide a framework for courts in other jurisdictions facing similar cases, which are sure to follow.

On M.F. Hussain, Free Expression, and Pluralism

Nudity in art appears to be controversial whether exhibited in a public space in the US, or created by India’s most renowned artist. And so is the artistic treatment of religious icons.

India’s greatest contemporary artist, M. F. Hussain, died June 9th, 2011, at 95, still in self-imposed exile caused by the hundreds of legal cases filed against him in his home country over his paintings, some of which represent Hindu goddesses nude. In 1996, when Husain was 81 years old, controversy arose over those paintings (originally created in the 1970s), which were interpreted by some as being anti-Hindu. Hindu nationalist groups mounted a campaign of intimidation and violence against the artist. Proliferating legal cases and death threats in his home country led to his self-imposed exile from 2006.

In 2008 three Delhi High Court judges considered whether Hussain’s painting, Bharat Mata (Mother India), which depicts a nude woman on her knees creating the shape of a map of India, was sacrilegious. The bench rejected the petition seeking prosecution for offending Hindus, saying it was a work of art and citing India’s tradition of graphic sexual iconography.

Justice Sanjay Kishan Kaul’s opinion is worth quoting – it has as much relevance in India as it would have in the US: “Pablo Picasso, a renowned artist said, ‘Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art.”

Running through case laws pertaining to obscenity from the juridical history of the USA, Canada, Australia and the UK, Justice Kaul said, “Art and authority have never had a difficult relationship until recently… Therefore, looking at a piece of art from the painters’ perspective becomes very important especially in the context of nudes. What needs to be seen is that the work is not sensational for the sake of being so and hence needs to be understood before any objections are raised…”

“Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read… “

“It seems the complainants are not the types who would go to art galleries or have an interest in contemporary art, because if they did, they would know that there are many other artists who embrace nudity as part of their contemporary art… It is most unfortunate that India’s new ‘puritanism’ is being carried out in the name of cultural purity and a host of ignorant people are vandalising art and pushing us towards a pre-renaissance era.”

Justice Kaul concludes, “Pluralism is the soul of democracy. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.”

Chilling Effects on Social Media

Social media has reached a level of pervasiveness that cannot be ignored – and corporations are paying very close attention.

Earlier this year, Goldman Sachs received flak for banning Facebook at work while investing $450 million in the company.  Perceived hypocrisy may have played a role, but acknowledging the chilling effect that corporate ‘social media policies’ have on free speech is another likely reason for the criticism.

Social Media Governance is one of the websites dedicated to archiving the policies of major corporations and organizations, ranging from those of Coca-Cola and Ford to the City of New York and the Smithsonian.  Some companies’ policies exclude access to certain websites (Goldman Sachs also prevented its employees from posting on DealBreaker, a popular blog about Wall Street happenings), while others make recommendations employee behavior online.

Policies include provisions preventing the disclosure of private company information. News agencies require employees to choose between disclosing their position at the company on social media accounts or refraining from discussing their work in any capacity, and recommend that their editorial staff remain “politically neutral” online.  On the whole, the policies tend to codify broadly understood best practices – be transparent, be respectful, and be aware that the internet is never really “anonymous.”

Some companies, however, take that a step further.  The Washington Post, for example, disallows employees from:

“writing, tweeting or posting anything—including photographs or video—that could be perceived as reflecting political, racial, sexist, religious or other bias or favoritism… This same caution should be used when joining, following or friending any person or organization online.”

Other corporations mandate certain standards for blogging and Twitter avatars; others preclude employees from discussing co-workers by name.  In each scenario, these policies blur what is already a very fine line between one’s professional and personal life.

There have been cases where behavior on social media has directly led to an employee’s termination – the question has already become how to balance one’s real life with the expectation of one’s employer.

(To this blogger, the answer looks a lot not hiring journalists who  praise terrorists in their tweets or politicians who curse at their fellows, but that’s just me expressing my views, which are in no way necessarily those of the National Coalition Against Censorship)

Protect IP Act Raises First Amendment Concerns

Senator Patrick Leahy (VT) has introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PROTECT IP)  to replace last year’s failed Combating Infringement and Counterfeits Act (COICA). Supposedly a new and improved version of COICA, the PROTECT IP act is aimed at denying access to “pirate” or “rogue” websites “dedicated to infringing activities,” especially those registered outside of the U.S. The Act has been passed by the Senate Judiciary Committee, but is currently placed on hold by Senator Ron Wyden.

The bill gives the Attorney General great discretion in ordering ISPs to blacklist certain domain names and re-direct users elsewhere. While a site is not per se blocked (its IP address remains functional), it could no longer be accessed through its domain name. For instance, you would not be able to access NCAC by typing ncac.org, but only by typing in its numerical IP address. (this was also a provision in COICA). Another provision, regarding “information location tools” (i.e. search engines) complements the DNS filters by ensuring that users cannot use search engines to find the blacklisted domain names.

The act is highly problematic from a free speech perspective as it will likely lead to completely innocent websites being filtered. Non-infringing websites that use “virtual hosting” with an infringing domain can be filtered, as well as websites which use “sub-domains” to identify specific customers. For example: a site like blogspot.com uses sub-domains to support thousands of users. The site may have a stealmusichere.blogspot.com (infringing site) and a poetrybyjanet.blogspot.com (non-infringing site). If the infringing site is the subject of an action under the Act, blogspot.com runs the risk of being filtered as well, leading to innocent sites like poetrybyjanet.blogspot.com, being filtered. Because of the complicated nature of the DNS system, there is no way to to use these filters in such a precise matter that won’t lead to innocent websites being taken down in the process. DNS filtering is thus as effective as bombing a village of 100 people to kill one terrorist.

While posing serious threats to legitimate speech, the Protect IP Act is unlikely to accomplish its ostensible goal: reduce copyright infringement. It merely sets a trivial hurdle for those seeking to distribute or obtain infringing content. Users can circumvent the DNS filters in several ways, from merely typing the IP address of the site to changing their DNS server settings so that they use an ISP provider that doesn’t use the filter. Search engine blocks can also be easily circumvented, as Internet users can merely use search engines outside of the US’s jurisdiction. Finally, circumvention can be done by the providers: they can merely switch domain names.

There is only one thing that the Attorney General and copyright holders can do in response to this circumvention: escalate the censorship. PROTECT IP could ultimately have a global impact on free speech. The U.S. is often a trend setter when it comes to regulations of privileges, and free speech and Internet regulations are no exceptions. Allowing such egregious censorship, regardless of intentions, sets a poor precedent for other countries. Those that already censor will only be encouraged to restrict more speech. Those that do not may use the US as precedent to do so. And nations which refuse to censor will gain an competitive advantages over the United States in an Internet market that only continues to grow. It is clear that PROTECT IP is a misguided effort at stopping Internet piracy that will result in serious consequences for free speech.

For a more in-depth analysis of DNS Filtering, please click here

See also: CDT Letter so Senator Leahy

More information regarding PROTECT IP can be found at the  EFF Website

More information regarding potential abuses of PROTECT IP by copyright holders can be found here

The Recent Richard Prince Decision Tips the Scales Towards Copyright Owners

Richard Prince, Tales of Brave Ulysses, 2008

While paying lip service to the fact that fair use is the way in which the inherent tensions between the First Amendment and copyright law may be resolved, Judge Batts’s recent decision for the Southern District of New York in Cariou v. Prince preserved fair use protection for only those works that comment on or criticize the original copyrighted work. While Batts states she is not making any value judgments about the works at issue, undergirding the court’s opinion in Cariou is an apparent dislike of Prince’s chosen method of expression, namely using images already in existence to make his art, and an implicit rejection of this common and important artistic practice.

The purpose behind the constitutional grant of copyright is to promote the progress of science and the useful arts (U.S. Const. Art. I. Sec. 8 Cl. 8), not to reward artists and creators for their labor and efforts. Indeed, the “sweat of the brow” doctrine in copyright law was explicitly rejected by the Supreme Court in Feist Publications, Inc., v. Rural Telephone Service Co. (1991). The dangers of the chilling effect of copyright legislation on common artistic practices are particularly evident in a case such as Cariou—the works Prince created will be impounded or destroyed, eliminating the public’s ability to view and appreciate them. And the next time an artist wants to make a collage, or use found imagery to make a new work, the ruling of Cariou will instruct against creating the work at all for fear of infringement.

When one considers the importance of collage and other forms of appropriative activities on criticizing or questioning mainstream cultural norms (John Heartfield’s scathing collages attacking the Nazi regime during WWII or ACT UP’s AIDS awareness campaigns that appropriated common advertising tropes and iconography come immediately to mind) the Cariou decision seems more and more appalling. As copyright owners continue to push for even further expansion of the copyright monopoly (see the current debates about the Protect IP Bill in Congress or extending copyright term limits yet again), and with legislators increasingly willing to comply, the fair use doctrine must be interpreted broadly in order to ensure that the ominous threat of litigation does not stifle avenues for creative expression. Instead of merely acknowledging the role of fair use in the protection of our First Amendment rights, jurists should use their power to ensure that the fair use doctrine actually does function as the valve releasing the tensions inherent in copyright and the First Amendment.

Photograph from Patrick Cariou's "Yes, Rasta" (powerHouse Books, 2000)