Blawg Review 325.6

So Long Ed

"Ed," the anonymous proprietor of the Blawg Review, passed away this week. Ed herded cats to make the internet a better place. That is, he organized lawbloggers (a prickly and unreliable lot) to write regular surveys of the legal blogosphere. Here's how he described his labor of love:

Blawg Review is the blog carnival for everyone interested in law. A peer-reviewed blog carnival, the host of each Blawg Review decides which of the submissions and recommended posts are suitable for inclusion in the presentation. And the host is encouraged to source another dozen or so interesting posts to fit with any special theme of that issue of Blawg Review. The host's personal selections usually include several that reflect the character and subject interests of the host blawg, recognizing that the regular readership of the blog should find some of the usual content, and new readers of the blog via Blawg Review ought to get some sense of the unique perspective and subject specialties of the host. Thanks to all the law bloggers who collaborate to make Blawg Review one of the very best blog carnivals of any genre.

Blawg Review did all of that and more. Through Ed's guidance, diverse law bloggers wrote about the subjects that moved them and introduced their readers to other law bloggers across the world. The result was a richer and more inclusive discussion of the law online. Patrick and I were privileged to host a Blawg Review back in 2009.

The best way to celebrate what Ed did is to keep doing it. Today lawbloggers are remembering him by writing Blawg Reviews. We're linking in a chain. Brian Tannebaum linked here, and when you're done here, go read Eric Turkewitz. If you want to read the whole chain, it starts here.

Popehat's Blawg Review entry will review — not surprisingly — recent developments in free speech law.

Student Speech: The Student Press Law Center — an important player in protecting student speech rights and educating us about them — has filed an amicus brief in a case concerning student journalism. The SPLC argues that a vague and ambiguous "harassment" code at Cal State Fresno was improperly applied to a student who confronted professors and asked them tough questions about the journalistic bias of a campus publication:

“A student concerned about the risk of discipline — and with no way of knowing whether his speech would lead to no discipline, mild discipline, or severe discipline — would be inclined to avoid not only information gathering but also the expression of viewpoints that some might find as ‘unsettling,’ ‘rude,’ or productive of ‘stress,’” attorneys for the SPLC argued in the brief, filed Tuesday with the Ninth Circuit U.S. Court of Appeals in the case of O’Brien v. Welty.

The Ninth Circuit has recently emphasized the importance of free speech in a broad ruling upholding the First Amendment rights of professors, so the SPLC has cause for optimism.

Campaign Finance: The Supreme Court's 2010 decision in Citizens United v. Federal Election Commission has provoked both vigorous debate about whether campaign contributions are free speech and ongoing litigation over the same. The Constitutional Law Prof Blog discusses a recent decision by the United States Court of Appeals for the Second Circuit halting a New York campaign finance law under the First Amendment pending further litigation:

Balancing the equities, the panel easily concluded that the hardship faced by NYPPP and its donors was significant: "Every sum that a donor is forbidden to contribute to NYPPP beacuse of this statute reduces constitutionally protected polictical speech."

But does more money in politics necessarily mean more freedom to speak? Not necessarily. At Simple Justice, Scott Greenfield discusses how easy money can influence judicial elections, which in turn select the judges that rule upon our free speech rights. Easy access to money for issue ads and attack ads does not produce judges who are more respectful of rights:

It’s really quite easy to see: If a judge rules in a defendant’s favor in a criminal case, he’s a rapist lover. It’s not that the other side may be particularly concerned about rapists, but rather that they use whatever is available in their attack ad. This makes ruling in favor of a defendant a dangerous choice for a judge who is required to run for re-election. The ruling may be legally uncontroversial, and the characterization of the ruling in an attack ad totally disingenuous, but so what? It’s available to be used and abused, so it is.

Online Expression: Courts — often staffed by judges who "don't do Facebook" — continue to struggle to apply well-established free speech norms to Facebook, and twitter, and texts, and every other sort of society-transforming technological application this century has brought. The trend has been to treat technology as transparent — that is, to look at the nature of the speech uttered via technology and not treating technology as fundamentally changing it:

The Wall Street Journal Law Blog explains how the United States Court of Appeals for the Fourth Circuit ruled that liking a post on Facebook is protected as speech:

“Liking” the campaign page, the court said, was the “Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The Richmond-based appeals court reversed a ruling by a federal district judge, Raymond A. Jackson, who threw out the lawsuit last year on the grounds that a Facebook “like” was “insufficient speech to merit constitutional protection.”

At the Technology & Marketing Law Blog Eric Goldman uses a decision from the United States District Court for the Southern District of New York to show how traditional journalistic methods, applied online, makes it easier to defend a defamation case. Goldman notes that the targeted post had linked other posts to "show its work" — that is, to illustrate the factual basis for its allegedly false and defamatory assertions:

Hyperlinks as a defense. Hyperlinks aren’t a “get-out-of-defamation-free” card, but we’ve recently seen a number of online defamation cases reaching a similar conclusion, including Redmond v. Gawker and Sheldon v. Compass Restaurants. A trend is emerging in court: if you support your negative factual assertions with hyperlinked citations, you can reduce the risk of a successful defamation claim.

But complicated questions remain. For instance: is an entry on a Facebook account set to "private" public speech, or not? Also at the Technology & Marketing Law Blog, Venkat Balasubramani discusses an Eleventh Circuit case in which a police officer was fired for criticizing fellow cops on a Facebook account set to private.

A final note is that a person’s possible social media audience has legal effect in often interesting ways. Here, for example, the court noted that Gresham’s audience did not consist of her supervisors and this undermined her argument that she was truly seeking to solve a workplace problem. On the other hand, the court also did not give credit to the fact that her settings were set to private. She probably could not have gotten any traction with the argument that the police department should not have seen her post in the first place. It seems that in the context of a legal dispute, your privacy settings can hurt you, but they rarely help you.

International Approaches To Free Speech: It's useful for Americans to reflect upon how fortunate we are to live in a society where free speech enjoys broad protections. We're a small minority in that.

At the Volokh Conspiracy, Eugene Volokh relates the story of a Kuwaiti man sentenced to ten years imprisonment for "remarks [on Twitter] deemed offensive to Islam’s Prophet Mohammed, his wife and companions." The Religion Clause Blog reports on a Saudi Arabian blogger released from custody after a "series of Tweets he posted expressing conflicting feelings about the Prophet Muhammad." These cases were a bit too late for me to include in my annual review of blasphemy prosecutions (and angry mob murders) across the world.

Of course, our neighbors don't only face persecution for blasphemy. In many places political dissent also yields oppression. Index on Censorship reports on Azerbaijani authorities raiding a government watchdog, the Election Monitoring and Democracy Studies Centre:

The raid on the election watchdog NGO signalled a sharp and very serious escalation of the country’s deepening human rights and political crisis. “It’s a clear message to the government’s critics: ‘Don’t get involved in any issues that question legitimacy of the presidential election”, IRFS CEO and chairman Emin Huseynov said.

Americans enjoy statutory protections for their speech in addition to constitutional ones. One of the most important is Section 230 of the Communications Decency Act, which (to simplify) provides that web sites aren't responsible for defamation based on what commenters and other visitors post there. At the blog of Stanford's Center for Internet and Society, Giancarlo Frosio shows how the European Court of Human Rights reaches a very different conclusion in finding a web portal could be responsible for racist and defamatory comments by anonymous users:

First, the Court examined the context of the comments. In this respect, the Court noted that, although the article itself was a balanced one, Delfi could have realized that the article might have caused negative reactions because readers and commenters had a great deal of interest in the matter, as shown by the above average number of comments posted on the article. In addition, the Court noted that the general negative reputation of comments on the Delfi news portal should have induced Delfi to exercise special caution. The ECHR seems to endorse a principle by which, if there is “a higher-than-average risk that the negative comments could go beyond the boundaries of acceptable criticism and reach the level of gratuitous insult or hate speech,” an Internet news portal is expected to exercise a special degree of caution in order to avoid being held liable for the infringement of other persons’ reputations.

But let's be clear: Section 230 is under attack right here at home. I've discussed how American law enforcement would like to weaken Section 230 — for the children, of course — and at Simple Justice Scott Greenfield examines how some elements of legal academia want to weaken Section 230 in an effort to address things like "revenge porn."

In Ireland, the interests of decency and public order are served by the "Censorship of Publications Board," which the Emerald Isle continues to maintain despite the embarrassment of having a "Censorship of Publications Board."  It's true that the Censorship Board is currently vacant, hopefully because Irish politicians have better things to do than to appoint a new slate of Mrs. O'Grundys to ban the works of Edna O'Brien. Fortunately some are beginning to notice the anachronism. We encourage our Irish friends to petition their government to dissolve this body outright.

Brazil continues to make news with its law allowing the subjects of biographies to pull works from shelves if the biographies are created without consent of the subject. Prominent celebrity biographical subjects Jeffrey MacDonaldDavid Irving, and the ghost of Frank Sinatra have endorsed similar laws in the United States and Europe.

Of course, none of that could happen here, because America is governed by men and women who understand and respect the First Amendment.

The Security State And Free Speech: Government officials continue to surveil us and continue to object to our efforts to criticize their surveillance activities. At Public Citizen, Paul Alan Levy explains his new lawsuit designed to thwart the NSA and DHS, which have employed bogus trademark claims to suppress criticism and parody employing their logos. And as alluded above, Jonathan Turley quotes General Keith Alexander, NSA director, who dreams of legal norms that would allow the government to stop the press from printing leaked documents that show how our own government is spying on us:

“I think it’s wrong that that newspaper reporters have all these documents, the 50,000 – whatever they have and are selling them and giving them out as if these – you know it just doesn’t make sense . . .We ought to come up with a way of stopping it. I don’t know how to do that. That’s more of the courts and the policy-makers but, from my perspective, it’s wrong to allow this to go on.”

Criminal Defense and Free Speech:

Over at Defending People, Mark Bennett savors an astounding appellate victory in Texas in which he convinced a court to overturn a portion of Texas' solicitation-of-a-minor statute which prohibited communicating with a minor in a sexually explicit manner. As Mark pointed out, and the court agreed, Texas' statute swept up conduct protected by the First Amendment:

Sub­sec­tion (b) cov­ers a whole cor­nu­copia of “tit­il­lat­ing talk” or “dirty talk.” but it also includes sex­u­ally explicit lit­er­a­ture such as “Lolita,” “50 Shades of Grey,” “Lady Chatterly’s Lover,” and Shakespeare’s “Troilus and Cres­sida.” It includes sex­u­ally explicit tele­vi­sion shows, movies, and per­for­mances such as “The Tudors,” “Rome,” “Eyes Wide Shut,” “Basic Instinct,” Janet Jackson’s “Wardrobe Mal­func­tion” dur­ing the 2004 Super Bowl, and Miley Cyrus’ “twerk­ing” dur­ing the 2013 MTV Video Music Awards.” It includes sex­u­ally explicit art such as “The Rape of the Sabine Women,” “Venus De Milo,” “the Naked Maja,” or Japan­eses Shunga. Com­mu­ni­ca­tions and mate­ri­als that, in some man­ner, “relate to” sex­ual con­duct com­prise much of the art, lit­er­a­ture and enter­tain­ment of the world from the time of the Greek myths extolling Zeus’s sex­ual prowess, through the rib­ald plays of the Renais­sance, to today’s Hol­ly­wood movies and cable TV shows.

Mark went on to explain how this decision shows that another Texas statute is vulnerable to attack: the statute prohibiting solicitation of a minor. Among the statute's flaws: it covers soliciting someone pretending to be a minor even if the solicitation is pure fantasy and everyone knows no minor is involved:

So if the “minor” is just pre­tend­ing to be a minor, and the defen­dant knows it, and the defen­dant sends a text propos­ing a meet­ing for sex with no intent that it hap­pen, the defen­dant has com­mit­ted a felony. If you and your long­time part­ner have ever engaged in “age play” in which you were both six­teen again, and you text her sug­gest­ing that you meet for sex, boom. Felony.

But it's for the children, of course.

Mark's client in that case was ridiculously lucky to have such an advocate. Many defendants don't get competent counsel, let alone counsel with expertise in complex First Amendment analysis. Despite the guarantees of the Sixth Amendment, the courts have set a lamentably low bar for adequate representation. Think I am exaggerating? Go read Gideon describing the representation that one court found constitutionally sufficient:

By virtue of a reassignment within the Mercer County Office of the Public Defender (OPD), defendant Terrence Miller did not meet his attorney until the morning on which his trial was scheduled to begin.

and then explain further that:

Defendant’s new attorney was a public defender with nineteen years of experience in legal practice, including some experience in criminal cases. On Thursday, December 6, 2007, defendant’s new attorney was informed by his supervisors at the Mercer County OPD that he would be transferred from his current assignment in the Mercer County OPD’s juvenile unit to a trial team responsible for cases overseen by the trial judge in this case. The attorney was told that day that he would serve as defendant’s trial counsel and that defendant’s trial was expected to begin on the following Monday, December 10, 2007. It would be his first adult criminal trial in seven years.

Anti-SLAPP Laws: When a plaintiff attacks speech with a defamation complaint or other speech-targeted cause of action, an anti-SLAPP statute allows the defendant to force the plaintiff to put up or shut up — to present evidence early in the case showing that the defendant's speech is not protected by the First Amendment. I've described how the laws work here.

But not all states have anti-SLAPP statutes, and some statutes are stronger than others. Philly Law Blog has good news about Pennsylvania considering an anti-SLAPP statute. The Digital Medial Law Project blog has even better news of how Nevada adopted one of the strongest anti-SLAPP statutes in America with the encouragement of First Amendment badass Marc Randazza.

And So On . . .

Just so eleventy billion people will stop emailing the story to me, Lowering the Bar has the inspiring story of a defense attorney's awesome response when a prosecutor asked a court to stop the defense from calling the prosecution "the government." And at the Volokh Conspiracy Orin Kerr has the story of how a university stands accused of retaliating against pro-union speech by "in effect" calling certain professors "Satan" — by awarding them raises of $666.

Thanks for reading. Thanks, Ed, for all you did, and for inspiring Law Blawgs.  Readers, please keep reading the next entry over at Eric's place. Thanks to my coblogger Patrick for his contributions to this.

Last 5 posts by Ken White


  1. Steven H. says

    I'm guessing I'm going to sound rather like an idiot for asking this, but what is the First Amendment distinction between "private speech" and "public speech" that the one could be used as a grounds for firing someone and the other could not?

    Is it just that if you have to ask the NSA what he really said, it becomes okay to use as justification?

  2. Matt says

    But complicated questions remain. For instance: is an entry on a Facebook account set to "private" public speech, or not?

    Maybe this is a "no duh" kind of question, but doesn't this perhaps indicate a need to at least re-look at whether technology is transparent vs transformative?

    I dunno. I mean, if the wrong person sees your Facebook post complaining about your boss at work, there's a definite parallel to say, the wrong person overhearing you do the same complaining in person. But… in some ways, our online presence can make it easier for the wrong person to see these things. (And given all that, if I in my private sector job get fired cuz I said something on Facebook about my boss, am I still just SOL because I don't work for the government, work in an at-will state, and am not in a protected class?)

  3. Marc J. Randazza says

    I'm very sad to hear that Ed has passed on. I had many an enjoyable evening, rich with beer and funny stories, with him. One of the most fun things was making sure to never show his face in a photo. I have one somewhere, and I'll never release it.

    You can probably tell that I'm affected by his passing… I'm not even being irreverent. :(

  4. Anonsters says

    and at Simple Justice Scott Greenfield examines how some elements of legal academia want to weaken Section 230 in an effort to address things like "revenge porn."

    Thank God no one listens to legal academics, then.

  5. says

    Hmmm. We also have a censorship board (technically "The Office of Film & Literature Classification") and I'm not convinced that's a bad thing.

    The way it works is, if you've got some pr0n, and you'd kind of like to know whether it's legal or not before you start selling it, you send it to the board, and they'll tell you. In the US, if I understand correctly, all you can do is start selling it and wait and see whether you get prosecuted or not. Whatever happened to "No one may be required, at peril of life, liberty or property, to speculate as to the meaning of penal statutes." ?

    (I'm not sure how to properly reference that quote, but I first came across it here.)