Archive: 2013

Open Elections, Closed Polls: The First Amendment and Reporting from Polling Places

By Wills H. Citty, Staff Member (Vol. 11)
January 20, 2013

President Obama’s inauguration to a second term of office earlier this week officially marked the end of what many considered to be the most contentious, extended, and even exhausting campaign season in recent memory. When asked who is to blame for the particularly frustrating character of the 2012 elections, more than a few Americans would probably point their finger squarely at the media. The rise of 24-hour cable news, and perhaps more importantly, the ready accessibility of news on the Internetcertainly has the potential to leave consumers feeling oversaturated by content and commentary.

But however you feel about the state of the news industry today, it must be admitted that media has an important role to play in maintaining a healthy democratic system of government. This role is of the highest importance every four years, when voters head to the polls to decide the political future of the country. News coverage of elections helps maintain an informed electorate, and monitors the integrity of the voting the process. In deciding the appropriate privileges to grant media members pursuing these goals, there are, as in most First Amendment cases, questions of scope.

For instance, do reporters and photographers have a First Amendment right to access polling places as part of the news gathering process? According to one United States appellate court, they do not. As reported by Politico, last week the Third Circuit of the U.S Court of Appeals found a Pennsylvania statute which prohibited anyone not in the course of voting or serving in an official function directly connected with the voting process from coming within 10 feet of a polling place did not violate the First Amendment rights of local reporters.

Though it recognized that the First Amendment does contain some independent protections for news-gathering activities, the court in PG Publishing Co. v. Aichele (PDF), noted that these privileges are “qualified and subject to limitations.” In determining whether access to polling places fell within narrowly tailored First Amendment news-gathering rights, the court looked to a trio of Supreme Court cases (The Richmond Newspapers,Globe, and Press-Enterprises cases, respectively). These cases delineate a balancing test for determining when the press should have a positive right of access to government bodies, processes and decisions. The “experience and logic” test, as it is commonly known, asks “whether the place and process have historically been open to the press”, and “whether public access plays a significant positive role in the functioning of the particular process in question.” If both prongs are satisfied, reporters enjoy a qualified privilege to monitor the activity in question. Thus, the test “balances the interests of the People in observing and monitoring the functions of their government against the government’s interest and/or long-standing historical practice of keeping certain information from public scrutiny.”

In applying the first prong test, the court looked to the American historical tradition of a closed voting process. Though public debate leading up to election day should be allowed to be robust and open, the court found the act of voting itself has been almost exclusively secret since the 1800s. Despite the fact that failure to satisfy the first prong alone prevents media members from claiming First Amendment news-gathering rights at polling places, the court continued its discussion to find that the plaintiffs also did not meet the second prong of the experience and logic test. Though it recognized that there might be some benefit to allowing reporters to gather news from inside polling locations, the court found several dispositive drawbacks from this extension of the First Amendment. Initially, the court noted that it had even been provided satisfactory evidence that there was a significant difference in the news-gathering ability of a reporter inside a polling location and one just outside the door. The judges also voiced concern that extension of the privilege to the press members in question would necessarily extend a similar privilege to all members of the media. Even beyond concerns surrounding how to define who is a member of the media and who is not, the court found that the presence of reporters at sign-in tables where voters exchanged personal information had the potential to “concern, intimidate or even turn away voters.”

The decision in PG Publishing Co. v. Aichele is perhaps best understood when viewed through the hierarchical lens which helps illuminates all free speech questions. This framework recognizes that certain types of speech is inherently more important than others, and when superior classes of speech come into conflict with those deemed inferior, the more valuable speech should be favored. Political speech has long been considered the most valuable class of speech, with voting at its core. It is unsurprising then, that the media was prevented from asserting First Amendment privilege when carrying out that privilege has the potential to conflict with voting, the end to which political speech is the means. Further, if coverage inside polling places did indeed discourage voter participation or hinder an effective and fair voting process, it would commit the dark irony of perpetrating the evil it was purported to help prevent.

How Far Should Protection for Photoshop Images Extend?

By Minisha B. Patel, Articles & Notes Editor (Vol. 12)
January 27, 2013

The concept of altering and retouching images on magazine covers, advertisements, and television, is not a recent phenomenon. In fact, it is over a century old. However, with technological advancements and digitization of photographs, it has become so prevalent that there seldom is an image in the media that has not been retouched. As a result, what ends up in the media is a completely exaggerated version of reality where the end result depicts a woman’s head to be bigger than her waist size. Though the desire to imitate the look of such models is not limited to women, the issue affects women the most and has caused them to develop many psychological problems as a result. After looking at these manipulated images, women and young girls feel worse about their own body images and decide to try to achieve the “model look” they see, and develop eating disorders as a result.

While the concept of photoshopping is not evil in itself, the extent to which it has been taken can be proven to be dangerous. For example, in Yanowitz v. L’Oreal USA, Inc, a woman was fired by her male boss because he did not deem her to be “sexually attractive.” Society’s concept of beauty not only impacts individuals in the work place, but also in schools, in relationships, and in their general lives.

Although advertisements and photoshopped images are protected under commercial speech under the First Amendment, laws can be made in order to ensure that there are warning labels on the images to warn the public that what they are seeing is a distorted version of reality. Commercial speech has been given protection, but misleading or false speech has not, and according to the Federal Trade Commission Act, photoshopped images can be considered false and misleading. Though the definition of what is considered a deceptive image has yet to be carved out, there is a necessity for it, especially now that the ages of models has become as young as ten years old. While there is a strong argument for the First Amendment protections of these photoshopped images, there is also a strong government interest in instilling some regulation for the sake of protecting the healthy body images of women and especially young girls.

Advertisers could argue that it is a well-known fact that almost every image is photoshopped. However, there is an argument on the side of regulation that everyday consumers do not understand the implications of how extensive the photoshopped images are, and as a result, they try to emulate what they see in the image. As with any regulation of First Amendment rights, this one must be viewed with strict scrutiny. However, photoshopped images seem to fall within the exception of false and misleading commercial speech. The line between what image is considered false and how much photoshopping is too much, is extremely blurred but there is a severe need for the line to be clarified and defined.

Libel per se: The First Amendment and Limited Recourse for Public Officials

By Gina C. LeBlanc, Articles & Notes Editor (Vol. 12)
February 3, 2013

Scholars have long recognized the marketplace of ideas rationale for the immunity that citizens of the United States enjoy from liability for expressive speech. This theory was addressed by Justice Holmes in his dissent in Abrams v. United States in which he stated: “when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas . . .”. The introduction of the doctrine of seditious libel, however, undercut this foundational First Amendment theory and buttressed a controversial First Amendment limitation: that is, the extent to which opinion speech, political or otherwise, can be suppressed when it fallaciously brings a public official into disrepute. When an opinion contributes little value to advancing public debate or transaction of ideas, the expression itself arguably becomes subordinate to the substantial interest a public official has in being insulated from reputational harm.

This tension is particularly applicable to state-elected judges as highlighted in a recent North Carolina Court of Appeals decision. On April 9, 2010, the defendant, Edward Lee Rapp – media strategist for North Carolina State Senate candidate Bettie Fennell – posted a blog entry on Facebook titled “Dirty Politics by The Good Ol’ Boys.” The post criticized the platform of Fennell’s opponent, William Rabon. More significantly, the post alleged that Ola M. Lewis, Senior Resident Superior Court Judge of Judicial District 13B in North Carolina, was “in clear violation of the seventh canon of the North Carolina Code of Judicial Conduct” (hereinafter “the Code”) for her vocal support of Rabon’s candidacy for a State Senate seat. Shortly thereafter, Rapp received a letter from Lewis’ attorney which refuted this assertion and cited to Canon 7B(2) of the Code (PDF) which states in pertinent part: “A candidate, including an incumbent judge, for a judicial office that is filled by public election . . . is not prohibited from soliciting public support from anyone.”

Following receipt of this letter, Rapp again took to social media on April 12, 2010 and posted another blog entry titled “Apologies, Corrections, Explanations and Amplifications on my Blogs.” In this post, Rapp apologized for his mistaken comment regarding Lewis’ violation of the Code, but framed his apology by stating that he was simply not the proper authority to make such judgments, that “proper disciplinary proceedings” would have been more appropriate, and that he was merely voicing his opinion in conjunction with a conversation he had with his attorney friend who agreed that there was “probable cause” for action to be taken against Lewis on the basis of her expressive conduct. Lewis subsequently filed a complaint alleging that Rapp’s publications were libelous per se. As to the April 12, 2010 post, the North Carolina Court of Appeals found that a genuine issue of material fact existed for jury determination with regard to actual malice, and remanded the case to trial court for which oral arguments began this past Wednesday.

Given that she was engaged in her own re-election campaign, did Lewis have a constitutional right to endorse the candidacy of Rabon notwithstanding her capacity as a state official? Did Rapp’s statements about Lewis qualify as a constitutionally protected opinion, even if relayed under the cloud of a falsehood? In North Carolina, libel per se exists when a publication alone, among other circumstances, tends to impeach a person in that person’s trade or profession. However, the First Amendment places limits on the extent to which a public figure can recover for defamation. The United States Supreme Court has held that generally, “statements of opinion relating to matters of public concern which do not contain provable false connotations are constitutionally protected.”New York Times v. Sullivan presumably heightened the standard of proof for a public official-plaintiff, and established that in order for a public official to recover in a libel action, s/he must prove that the defamatory statement was made with actual malice, i.e. with knowledge that it was false or with reckless disregard as to whether the statement was false. The policy justification for this limitation is based on the above-mentioned marketplace of ideas theory, and the need for a “robust and wide-open debate of public issues.” Whether Rapp’s commentary constitutes socially useful speech is up for debate. Nevertheless, Lewis will have the difficult task of proving that the connotations in Rapp’s blog post were not only false, but were relayed with actual malice. Since Rapp’s refutation of the knowledge element was accepted by the Court of Appeals, Lewis will have to rely on evidence tending to show that Rapp acted with reckless disregard for this falsehood in order to show actual malice – an enigmatic task to say the very least.

The trial of Lewis v. Rapp will unquestionably be laden with First Amendment arguments on both sides. For instance, while formal legal restraints on expression do exist, a plaintiff in a position similar to Lewis’ might argue that the truth of the libel should be an absolute defense. This perspective is reinforced where reputational harm stemming from the falsehood could be fatal to an individual’s profession, as in the case of Ola M. Lewis who would be re-elected to her judicial post based primarily on her reputation, history of conduct in her official capacity, and personal integrity. On the other hand, Rapp is constitutionally entitled to engage in political speech, which should in turn contribute to the “robust and wide-open debate of public issues” — an imperative to fruitful debate in political campaigns. Furthermore, Rapp argued in his April 12 response that “office holders cannot appear to be private citizens.” A subsidiary First Amendment discussion that may ensue is the vehicle through which the allegedly defamatory statement was made: cyberspace. In the realm of cyberspace, should the standard enumerated in New York Times v. Sullivanapply? Should it matter whether the defendant exercises “editorial” control? Case law in this area is not as well-established as it is in the realm of print media.

This case will provide an opportunity for the court to address important remaining questions: how do courts tend to reconcile actual harm caused to a public official while still affording First Amendment protections to an alleged perpetrator? Does proof of actual harm require the public official to demonstrate pecuniary loss or something more? If the former, would monetary damages be a more appropriate remedy than granting an injunction? Finally, did the falsity of Rapp’s statements alone make his First Amendment argument a moot point? In considering these questions, the deliberations in this case have the potential to be a catalyst for North Carolinians to reconsider First Amendment protections as applied to judicial candidates in the realm of political campaigns.

The First Amendment Threat to Public Health

By Alexandria N. Bryant, Staff Member (Vol. 11)
February 10, 2013

The District II Wisconsin Court of Appeals did not agree with the circuit court’s ruling that Wisconsin Statute §940.32 was a facially overbroad regulation of protected speech in violation of Gary Hemmingway’s First Amendment rights. As reported by the Wisconsin State Bar, Hemmingway was found guilty of stalking his ex-wife, Rebecca, after sending her intimidating text messages, phone calls, and e-mails. Excerpts of the communications between Hemmingway and Rebecca include him telling her “that he would love to see someone holding a gun to her and for her to be begging for her life.” He also told her that “the only way she could feel his pain would be if both her sons died at the same time.” These and other threats, coupled with Hemmingway’s prior charges of aggravated battery and negligent use of a dangerous weapon, caused Rebecca to fear for her and her sons’ lives and suffer serious emotional harm.

Wisconsin’s stalking statute reads in part: “(2) Whoever meets all of the following criteria is guilty of a Class I felony:

  1. The actor intentionally engages in a course of conduct directed at a specific person that would cause a reasonable person under the same circumstances to suffer serious emotional distress or to fear bodily injury to or the death of himself or herself or a member of his or her family or household.
  2. The actor knows or should know that at least one of the acts that constitute the course of conduct will cause the specific person to suffer serious emotional distress or place the specific person in reasonable fear of bodily injury to or the death of himself or herself or a member of his or her family or household.
  3. The actor’s acts cause the specific person to suffer serious emotional distress or induce fear in the specific person of bodily injury to or the death of himself or herself or a member of his or her family or household.”

Therefore, the defendant must intend that his conduct will cause the plaintiff to fear bodily injury or suffer serious emotional distress and the plaintiff must actually endure these harms. Like other criminal offenses that require proof of scienter, the defendant’s words may be used as circumstantial evidence to prove his intent. However, the speech is not what the statute attempts to regulate.

In a First Amendment overbreadth charge, the plaintiff must first show that the statute regulates protected speech and not conduct. If this prong is satisfied, the statute is analyzed under strict or intermediate scrutiny, depending on whether the regulation is content based or content neutral. Here, the court concluded that Wisconsin’s stalking statute criminalizes the intentional course of conduct to inflict harm and not the speech incident to this conduct.

In a similar case, State v. Robins (PDF), dealing with speech incident to a charge of child enticement, the Wisconsin Supreme Court ruled that because “an act . . . is initiated or carried out in part by means of language does not make the . . . statute susceptible of First Amendment scrutiny.” The Court of Appeals agreed. Gary Hemmingway’s crime was intending to cause his ex-wife to fear bodily injury or death. “While the offense of stalking does contain an element of speech, this speech does not fall within the protection of the First Amendment.” People v. Bailey, 657 N.E.2d 953, 961-62 (Ill. 1995).

How Far Are We Willing To Go To Catch a Predator?

By Catherine A. McCormick, Staff Member (Vol. 11)
February 14, 2013

Since the advent of social media ranging from basic chat rooms to websites dedicated solely to making connections with friends and strangers, the American public has been cautioned against predators online. Parents are told to carefully monitor their children’s activity online and be wary of older cyberpredators posing as peers of their children in an attempt to become close to minors, and occasionally even solicit sexual contact. There has even been a television show entitled To Catch A Predator that chronicles undercover sting operations designed to entrap and arrest online predators by using decoys with the help of a watchdog group called Perverted Justice.

Lawmakers in Indiana decided to legislate additional protection for children online and passed a law that aimed to ban registered sex offenders from using social networking sites that can be accessed by children. The law was upheld in June because the district court judge held that the state does have a strong interest in protecting children, and determined that the statute was not overbroad because the rest of the Internet was available to the registered sex offenders affected by the law. Though the law does not explicitly state which websites are prohibited to sex offenders, court filings have indicated that Facebook, Myspace, Twitter, Google Plus, chat rooms, and instant messaging services would be covered.

As the First Amendment Law Center reported, on January 23, 2013, a federal appeals court ruled that that Indiana law was unconstitutional. A unanimous three-judge panel of the 7th Circuit Court of Appeals justified reversing the lower court’s decision to uphold the law because the law went too far by restricting the free speech of the registered sex-offenders. Ultimately, the Court concluded “that the Indiana law is not narrowly tailored to serve the state’s interest. It broadly prohibits substantial protected speech rather than specifically targeting the evil of improper communications to minors.”

The Court cited Cohen v. California to show that the government is forbidden to “prescribe the form or content of individual expression,” and also cited Stanley v. Georgia to show that this statute limited a “right to receive information and ideas.” Because the Indiana law was content neutral, under which the government could impose reasonable “time, place, or manner restrictions.” These reasonable restrictions, however, must be narrowly tailored to serve the significant government interest. The Court determined that the statute was not narrowly tailored. Essentially, though a valid goal, “[t]he goal of deterrence does not license the state to restrict far more speech than necessary to target the prospective harm.”

The ACLU, who had been involved in the case from its inception, applauded the Court of Appeals’ decision. “[T]he Court properly recognized that the State cannot do this with a law so broad that it prevents someone convicted of an offense years [ago] from engaging in a host of innocent communications via social media,” stated Ken Falk, the ACLU attorney involved in the case. He added that, “Indiana already has a law that prohibits inappropriate communication with children, and the law in this case served no purpose but to prohibit communication protected by the First Amendment.”

Similar laws have been stuck down by courts in other states, which have led legislators to pass new, narrower laws in response. It is unclear what legislators in Indiana will do when they take their next steps in figuring out how to make a narrow law that would survive intermediate scrutiny, but it is certainly likely that this is not the end of the attempt to pass laws to protect children from cyber-predators. It will be interesting to see how creative legislators will have to be in order to reconcile their desires to block sex offenders from using social media while still being cognizant of their First Amendment rights.

Lawyers and Advertisements

By Daniel N. Mullins, Articles & Notes Editor (Vol. 12)
February 17, 2013

There are few Americans who would not recognize the advertisement by the class action lawyers involving Mesothelioma. In fact, at this point it is very likely that while reading over the word Mesothelioma, we instinctively pronounce it like the commercial we have all probably seen at least a half dozen times. The Supreme Court in Florida recently reached a decision that loosened the regulations on lawyers’ advertising rules.

One of the primary reasons the court decided to make such changes was motivated by the desire to balance the lawyer’s First Amendment right to freedom of speech with the interest in protecting and maintaining public belief in the judicial system. Another one of the major reasons given for the court’s ruling was designed to make the rules easier for all lawyers to understand while also making the system easier to enforce for the state bar.

Four of the seven Florida Supreme Court justices agreed to permit previously denied legal ads that characterized the quality of legal services being offered as well as information about past legal results. In order to ensure these new rules were as easy as possible to enforce, the court identified that these legal advertisements must be “objectively verifiable.” (PDF)

This concept of objectively verifiable means that a lawyer may use an ad saying something specific, such as they have won eight cases in the past month, but they may not say something as simple as them being an “excellent” or “successful” trial attorney. If the fact can be proven as true, the lawyer may put in their ad but if it is only subjective, the Florida Supreme Court will not permit it.

These rules appear to be providing lawyers in Florida with more wiggle room in which to advertise their legal services. It was very important in the court’s decision to make sure the public trust in the legal system was not jeopardized by the loosening of these rules.

However, there is some issue with these now loosened rules and their application to the Internet. The Internet has become a beacon for many lawyers and law firms alike and many people today go to the Internet to find legal representation. In her dissent, Justice Pariente noted that this objectively verifiable standard may inhibit some communications via the Internet and seemed to be strongly suggesting that each medium be addressed differently by the court.

Regardless, it does appear that the Florida Supreme Court has taken steps to provide an extended First Amendment right to lawyers in how they may communicate with the general public. They must represent the truth, but not the whole truth. It requires lawyers to provide a level of honesty that may in fact be a good thing. If the only ads people are seeing about lawyers are facts and not mere speculation, it may help build a confidence between the legal profession and the general public.

Even though the law does not allow any lawyer to make the bold claim that they are the best lawyer in the state, it gives them the opportunity to fairly communicate with the public through advertisements what qualifications they have that make them a good lawyer. Although this may still act to limit some speech the lawyer may supply in their advertisement, it balances the public’s right to know the truth with the lawyer’s right to draw in clients.

Virginia Prosecutors Refuse to Bar Defendant Blogging

By Candra K. Baizan, Symposium Editor (Vol. 12)
February 24, 2013

Earlier this month a Virginia judge declined to prohibit defendant Linda Cheek’s use of social media to advance her personal, professional beliefs relating to her impending trial. According to The Roanoke Times, prosecutors requested that U.S. District Judge, Glen Conrad, prevent defendant, Dr. Linda Sue Cheek, from blogging and tweeting about her legal proceedings for fear that these Internet postings could improperly influence potential jurors.

Dr. Linda Sue Cheek, whose medical license has been suspended now for a second time, is accused of distributing pain medications—including oxycodone, methadone, morphine and hydrocodone—without a license from the Drug Enforcement Administration. Dr. Cheek, however, seems content to use her legal troubles as a platform to end “government persecution of doctors treating pain” and the practice of treating such physicians as though “they are Colombian drug lords.” In January, Assistant U.S. Attorney Jennie Waering filed a motion arguing that Cheek’s statements are “inflammatory and could reach potential jurors in the case and create bias.”

The debate surrounding injudicious prescribing of pain medication has sparked legal attention over the past decade. While Cheek argues that her prescriptions were directed only at legitimate patients suffering from chronic and debilitating pain, state medical boards impose restrictions on pain medication to minimize cases of prescription drug abuse and diverting pain medication in the state. Many physicians who specialize in pain management argue that overly reactive medical boards cause doctors to under-prescribe to the average patient. Dr. Cheek has continued to advocate her medical position through her personal website, twitter, and other social media outlets. Eventually her Internet presence became so widespread that prosecutors decided to step in.

The Associated Press reported that in response to the prosecutors’ motions to reign in Cheek’s tweets, Judge Conrad opined “[i]t would be wrong for the court to say [Cheek] forfeits her First Amendment rights when she becomes a defendant.” In denying this motion, Judge Conrad indicated that a First Amendment infringement would be appropriate only if Cheek’s comments were “intended to threaten or intimidate a witness or juror.”

In fact, Cheek’s blog reveals very little about the substance of her court proceedings, and she seems concerned about the privacy of the trial: “I’m not going to put anything about the court proceedings here. You have to come and see for yourself. This website is open to the public, so it is inappropriate for me to discuss the proceedings while they are going on.”

While Dr. Cheek’s blogs and tweets seem relatively harmless, the implications of Judge Conrad’s decision could become problematic for both prosecutors and defense attorneys in the future. Where social media communications do prejudice a body of potential jurors, courts could be forced to divert significant funds to ensure an impartial jury pool. Moreover, the potential for social media postings to have a detrimental impact on a defendant’s case raises concerns for defense attorneys representing unruly clients.

Dr. Cheek was convicted on February 22, 2013 of the 172 of the 173 charges she faced.

Celebrity Endorsed Anti–Paparazzi Bill Makes Hawaii More Attractive for High–Profile Homeowners, but Threatens First Amendment Protections

By Satie R. Munn, Communications Editor (Vol. 12)
February 28, 2013

With awards season underway, the paparazzi are out in full force, trying to capture the trophy winning celebrities in their fanciest garb. However, celebrity–friendly states, most recently Hawaii, are fighting back against invasive paparazzi techniques in order to protect their famous residents. The Hawaii Senate Judiciary Committee recently passed the “Steven Tyler Act,” an anti–paparazzi bill. According to the Reporters Committee, the bill has successfully passed its first hurdle to becoming law, and it would take effect on July 1, 2013.

Aerosmith’s lead singer, Steven Tyler, purchased a $4.8 million dollar home on Maui in January, 2012. Tyler, fed up with the paparazzi’s antics, initiated the bill and testifiedbefore the committee saying that, although dealing with the paparazzi in public was “part of the deal-io,” “when I’m in my own home and I’m taking a shower or changing clothes or eating or spending Christmas with my children, and I see paparazzi a mile away, shooting at me with lenses this long . . . you know, it hurts.”

The proposed bill, which, was amended to incorporate language similar to a California statute, prohibits anyone from using images “in a manner that is offensive to a reasonable person” of someone “engaged in a personal or family activity.” The Hawaii legislature found that “sometimes the paparazzi go too far to disturb the peace and tranquility afforded celebrities who escape for a quiet life.” Therefore, the stated purpose of the Steven Tyler Act “is to encourage celebrities to visit and reside in our state by creating a civil cause of action for the constructive invasion of privacy.”

Opponents of the bill criticize its scope and vagueness, and claim that it violates photographers’ First Amendment rights. The National Press Photographers Association, joined by 14 other media organizations, submitted a letter (PDF) to the Hawaii legislature protesting the measure. Their main argument is that the bill “imposes civil penalties of alarming breadth and burdens substantially more speech than necessary to advance a compelling government interest . . . while we recognize the right of privacy, we oppose a broadening of these protections by abridging the clearly established tenents of First Amendment Jurisprudence.”

Josh Blackman, an assistant professor at the South Texas College of Law, and Ilya Shapiro, a Senior Fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, wrote an editorial for USA Today, citing several reasons why the Steven Tyler Act has significant constitutional defects.

One of Blackman and Shapiro’s main concerns is that the statute is intentionally vague, which allows courts to construe the statute broadly, which in turn “limit[s] the ability of the press to report the news.” Furthermore, the bill does not limit punishment to photographers; anyone, including journalists, frenemies, or tourists who pulls out their iPhone to take a celebrity picture, would be liable. Even more, the illegal act is not limited to photography. Someone can be sued for the simple act of planning to take a photo, make a recording, or paint an image in the future. The bill simply states, “it is not a defense that no image, recording, or physical impression was captured or sold.”

Blackman and Shapiro continue to argue that courts would have the authority of “prior constraint” to “not only stop the initial publication of a photograph, but to issue orders against future reproductions of the same photograph.” Historically, prior restraint orders have rarely survived strict scrutiny, even when national security issues are concerned. Blackman and Shapiro use the Pentagon Papers as an example. In 1971, the Supreme Court found that the government could not prevent the New York Times from publishing the Pentagon Papers even when they contained pertinent classified information relating to the Vietnam War. It seems extremely irrational to afford celebrities greater privacy protection than classified government documents.

Other celebrity supports of the Steven Tyler Act, including Brittany Spears and Mick Fleetwood, founder of the band Fleetwood Mac, sent a statement to the Hawaii committee claiming that if the bill were passed, “more celebrities would find Hawaii an attractive destination, which would be a boom to the local economy.”

The paparazzi serve to quench the constant thirst of Americans who desire celebrity news 24/7. The battle of celebrity privacy vs. invasion by the paparazzi is not a new one. However, the Steven Tyler Act, with its vague wording and extreme penalties for not only paparazzi, but also ordinary citizens, crosses the line of reasonableness. It violates the First Amendment freedom of the press by burdening their speech to a degree that is unnecessary to advance any compelling government interest. The Steven Tyler Act affords superfluous protection to celebrities who have willingly put their lives in the public sphere. As Ken Paulson, President of the First Amendment Center, recently wrote, “Celebrities have exactly the same rights as all citizens – and no more.” Paulson goes on to say that “[i]n a free society, news gatherers and fans alike can take photos of public figures and private citizens in public places. They have to do that lawfully and without endangering others.” Hawaii’s stated purpose for the bill, “to encourage celebrities to visit and reside in our state,” is a self-serving and trivial motive that does not justify the wide–scale intrusion of First Amendment rights that would take place as a result of passing the Steven Tyler Act.

Liberals and Conservatives Rally Behind First Amendment Defense against Intimidation Statute

By Howard M. Lintz, Staff Member (Vol. 11)
March 3, 2013

News outlets, media advocates, conservative and liberal groups, and First Amendment scholars have joined in filing an amicus brief (PDF) to the Indiana Supreme Court, claiming that the state’s criminal law barring intimidation violates the First Amendment. The criminal case (PDF) began with the defendant’s divorce proceedings.

When Daniel Brewington’s ex-wife filed for divorce, the court assigned two psychologists to evaluate custody options; they recommended assigning Brewington’s ex-wife sole custody and Brewington visitation rights. The Court of Appeals of Indiana stated that Brewington responded with “a torrent of abusive letters demanding that Dr. Connor release his entire file to him, withdraw the evaluation, and withdraw from the case.” He accused the doctors of “dishonest, malicious, and criminal behavior” and “unethical and criminal practices.” He also began blogging and using established Web sites to communicate messages to the same effect.

Judge James D. Humphrey, finding Brewington to be “irrational, dangerous and in need of significant counseling,” assigned Brewington’s ex sole custody, with Brewington receiving no visitation rights until a court-appointed mental-healthcare provider determined that Brewington posed no danger to himself, his ex, or his children.

Brewington filed a motion for relief from judgment, claiming that Judge Humphrey had conspired to obstruct Brewington’s access to evidence, “conducted himself in a willful, malicious, and premeditated manner,” and “caused irreparable damage to [the children through] Court mandated child abuse.” He also asserted that he would post the pleading on his blog and would distribute it through other outlets, along with a letter urging readers to send comments to “the Ethics & Professionalism Committee Advisor located in Dearborn County,” identifying that official as Judge Humphrey’s wife and including their home address. Mrs. Humphrey’s duties did not include review of judicial conduct. A number of Brewington’s readers followed up on his solicitation.

Following the divorce, Brewington posted fifteen blog or Facebook entries about one of the evaluating psychologists, including a claim that he used custody evaluations “as a means to gain some kind of perverted sexual stimulation.” He posted nine entries about Judge Humphrey, calling him “corrupt,” accusing him of “unethical/illegal behavior,” calling him a child-abuser, and writing, “[T]his is like playing with gas and fire, and anyone who has seen me with gas and fire knows that I am quite the accomplished pyromaniac.”

Brewington was convicted of several misdemeanor and felony offenses: three counts of intimidation and one count each of obstruction of justice, perjury (for falsely stating that he did not know that Mrs. Humphrey was Judge Humphrey’s wife). The Court of Appeals upheld four of the convictions, including one count of intimidation.

The Indiana statute prohibits “communicat[ing] a threat to another person, with the intent . . . that the person be placed in fear of retaliation for a prior lawful act. . . .” Humphrey apparently did feel threatened: He took a training course on using a gun, installed a home-security system, and received police escorts to and from work. Where threats are concerned, this seems largely normal.

UCLA law professor and blogger Eugene Volokh, who gathered the parties to the amicus brief, identifies part of the problem as the statute’s definition of “threat”: Beyond threats of violence, it includes threats to “expose the person threatened to hatred, contempt, disgrace, or ridicule. . . .”

As reported by USA Today, Volokh’s concern is that the statute, and this appellate holding in particular, “endangers the free speech rights of journalists, policy advocates, politicians, and ordinary citizens. . . . If the Court of Appeals decision is allowed to stand, then much criticism of legislators, executive officials, judges, businesspeople, and others — whether by newspapers, advocacy groups, politicians, or other citizens — would be punishable.”

The amicus brief (PDF) identifies a number of acts that we might be alarmed to see a statute criminalize:

  1. a columnist’s writing, “Legislator A’s vote on issue B is ridiculous, and I intend to ridicule him until his constituents view him with contempt”;
  2. an advocacy group’s picketing a store with signs saying, “The store owner’s decision to stock product C is disgraceful, and we hope our speech will expose the owner to disgrace and ostracism”;
  3. a politician’s saying, “The incumbent’s decision D is so foolish that, once I publicize it, the incumbent will be the laughingstock of the state.”
  4. a blogger’s writing, as in this case, “The judge who restricted my visitation rights was in effect abusing my children through the legal process,” with the implied statement, “and I will keep publicly criticizing the judge’s actions.”

The Court of Appeals denied that the conviction violated Brewington’s First Amendment rights (PDF):

“The First Amendment protects the right of citizens to criticize government decisions with which they disagree. . . . However, the conduct that is criminalized here, communicating a threat to a victim to place the victim in fear of retaliation for a prior lawful act, necessarily falls outside the realm of protected criticism of government decisions due to the requirement of criminal intent.”

The ACLU of Indiana has filed a separate brief. The state supreme court has not yet granted certiorari.

The Push for Prayer in Public Schools

By Amanda R. Witzke, Staff Member (Vol. 11)
March 17, 2013

After decades of removing religious influences from the public school forum, the United States has seen a surging political movement in several state legislatures attempting to bring prayer back onto school grounds. Since the landmark Supreme Court decision in Engel v. Vitale in 1962 declaring school-sponsored religious activities such as prayer unconstitutional until the Court’s more recent decision in 2000 in Santa Fe Independent School District v. Doe, it seemed as if religious influence was being definitively pushed out of school activities.

John Green of the Pew Forum on Religion and Public Life stated, “[e]ven in a very modern, secularizing society, religion remains a very powerful source of values, a powerful source of activities and a powerful source of community.” However, while religion can be a strong uniting force, it’s proper role in government and public schools can also be a source of very heated conflict and debate.

Mississippi Governor Phil Bryant took pen to paper March 14, 2013 to sign a bill into law that will permit students to express religious beliefs and messages at school events. The controversial bill will require school districts to adopt policies which would allow students to present their religious beliefs in a “limited public forum” at school sporting events and during school announcements. According to the New York Times, the bill also requires schools to issue some form of disclaimer, such as a statement in the event program, informing the public that the religious speech is not a state sanctioned activity. The bill also notes that students will be able to express their personal religious beliefs in their school assignments and will be allowed to form and participate in organizations supporting those views.

Governor Bryant spoke confidently about the future of the new legislation saying that a lot of research went into its formation and that the senators modeled it after similar Texas laws. Opponents including the American Civil Liberties Union anticipate lawsuits to come once the bill goes into effect on July 1, 2013 if there is any proselytizing taking place in public schools. Opponents are also concerned that the limited funds of the school districts will be spent in the expensive legal battles that may follow once this law goes into effect. However, Governor Bryant has responded to his critics saying that, “[i]f we’ve got to spend taxpayers’ money, I think we would be honored to spend it in defending religious freedoms for the people of the state of Mississippi.”

As reported by the Huffington Post back in January, Indiana State Senator Dennis Kruse introduced a similar bill dealing with school prayer a few months ago. Kruse, who serves as chair of the Indiana senate’s education committee, is pushing to bring the Lord’s Prayer back into schools. Although there is an opt-out provision, all other students would be required to participate in reciting the prayer. However, the Indiana Senate’s legal committee believes that such legislation is unconstitutional.

Voters in Missouri were passionate enough to pass an amendment to the state constitution with over 80% of the popular vote. Commonly known as the “right to pray” amendment, it is described by supporters as an attempt to make the state constitution match the protections outlined in the United States Constitution and protect Christianity in the state which they feel is being threatened.

A year ago, the same thing happened in Florida. State Bill 98 was signed by the governor allowing students to read “inspirational messages of their choosing” at school events such as assemblies and sporting events. School officials are not permitted to interfere with any of the student-chosen messages. Several religious leaders of different faiths rallied together to protest the bill as being a violation of the First Amendment of the Constitution and “disrespectful of the religious diversity that makes our state and our nation great.”

As Noah Fitzgerel, a young high school journalist, wrote in a blog for Huffington Post, “[t]his bill is simply an iteration of an uncomfortable political movement that encourages the marginalization of minority religions in the name of a majority.”

In Santa Fe v. Doe, the Supreme Court declared student led prayer at Texas school events was a violation of the Establishment Clause of the First Amendment. A majority of the Court held that since the students used a loudspeaker system owned by the school it became school-sponsored prayer. It is hard to see how we can reconcile the recent actions of these state legislatures with the opinion of the Supreme Court handed down in Santa Fe v. Doe, but only time will tell what challenges will arise and what their fates will be.

Federal Court Strikes Down National Security Letters on First Amendment Grounds

By Anderson A. Chang, Symposium Editor (Vol. 12)
March 24, 2013

While the potential use of drones on American soil and the disputed authority of the government to indefinitely detain American citizens captured on U.S. soil have dominated the headlines and the attention of civil libertarians in recent months, the Obama administration continues other controversial domestic counter-terrorism measures that go along relatively unnoticed by the public. Last week, a Federal District Court in California gave a respite to civil liberties in the ongoing war on terror as it enjoined on First Amendment grounds the federal government’s further use of National Security Letters.

Since the 1980s, the National Security Letter Statute has allowed the Federal Bureau of Investigation to compel the surrender of subscriber information from communication service providers upon an agency certification that such information was relevant to the investigation of international terrorism or foreign intelligence activities. Along with the power to compel such information, the FBI has the authority to place a gag order on the communication service provider, preventing it from disclosing the release of such information. According to an Inspector General’s report (PDF), nearly 200,000 National Security Letter requests were sent between 2003 and 2006, with U.S. persons increasingly being the target of such requests.

Judge Susan Illston of the Northern District of California enjoined the law based on its nondisclosure requirement, finding it to be both a prior restraint and a content-based restriction on speech. Closely tracking a 2008 Second Circuit ruling (PDF) on National Security Letters, Judge Illston held that while the nondisclosure requirement was not a “classic prior restraint” or a “broad” content-based prohibition on speech that would ordinarily afford the speech restriction the “most rigorous First Amendment scrutiny,” it was “sufficiently analogous” to them to justify a requirement of heightened procedural safeguards under Freedman v. Maryland. The court was particularly concerned with the government’s expansive power and the accompanying authority to silence speech about government conduct:

Under Section 2709(c), the FBI has been given unilateral power to determine, on a case-by-case basis, whether to allow NSL recipients to speak about the NSLs. As a result, the recipients are prevented from speaking about their receipt of NSLs and from disclosing, as part of the public debate on the appropriate use of NSLs or other intelligence devices, their own experiences. In these circumstances, the Court finds that Section 2709(c) does not need to satisfy the extraordinarily rigorous Pentagon Papers test, Section 2709(c) must still meet the heightened justifications for sustaining prior-restraints…and must be narrowly tailored to serve a compelling governmental interest.

Furthermore, the court was especially concerned about the overbreadth of the nondisclosure requirement:

The problem, however, is that the statute does nothing to account for the fact that when no such national security concerns exist, thousands of recipients of NSLs are nonetheless prohibited from speaking about the mere fact of their receipt of an NSL…This is especially problematic in light of the active, continuing public debate over NSLs…Indeed, at oral argument, Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate.

The Second Circuit saved the statute despite its constitutional infirmities by reading into the statute certain procedural safeguards, including timely judicial review and placing of the burden on the government. Judge Illston, however, was not convinced, after the Second Circuit’s opinion, that the FBI had implemented sufficient safeguards, and enjoined the entire law.

Judge Illston’s opinion is no doubt a welcome relief for civil libertarians and those concerned with the government’s increasing use of power to fight the war on terror.

The opinion is strongly supported by existing First Amendment jurisprudence, which has put debate on public issues and public policy at the “highest rung (PDF) of the hierarchy of First Amendment values,” and afforded restrictions on such speech the highest scrutiny. Within the realm of public debate, the Court has been especially cautious towards restrictions on speech regarding the conduct of law enforcement officials because of their unique position of authority, which allows them to restrict the civil liberties of individuals. In a nation based on notions of self-government, the citizens must have the ultimate authority to decide matters of public policy. It is hard to imagine an area of more pressing public concern than the invasion of the constitutional privacy interests of citizens by law enforcement officials, especially when it is done in the name of national security.

ACA’s Contraception Mandate Likely Headed to the Supreme Court

By Melanie A. Stratton Lopez, Staff Member (Vol. 11)
April 7, 2013

In 2010 Congress passed the Patient Protection and Affordable Care Act (ACA). The ACA was passed in order to increase overall heath care access and preventative health care services to millions of Americans. One such preventive health care requirement is that all private employer and group sponsored health insurance plans must include all FDA approved contraception at no cost to the employee or individual.

While the ACA provides for a religious employer exception, religious for-profit employers are not exempted and must provide birth control coverage for their employees. Religious leaders and private business owners argue that the definition of a “religious employer” is too narrow and therefore limits their free exercise of religion.

Over the past year, The Beckett Fund, a nonprofit and public-interest group dedicated to the free expression of all faiths, has filed over 53 lawsuits against the Department of Health and Human Services claiming that the contraception mandate violates their religious freedom under the Religious Free Restoration Act (RFRA) and the First Amendment. The Free Exercise Clause of the First Amendment states that Congress may not make a law “prohibiting the free exercise” of religion. In 1990 the Supreme Court held that free exercise cases should be reviewed under rational basis review and not strict scrutiny. In response to this lower bar, Congress passed RFRA in 1993, prohibiting the government from imposing a substantial burden on the free exercise of religion unless there is a compelling government interest and the government imposes the law in the least restrictive way possible. Different Circuits have come to different conclusions as to whether or not the contraception mandate “substantially burdens” employers and if preventative care is a “compelling governmental interest.”

As the Christian Science Monitor notes, legal scholars believe that the contraception mandate is heading to the Supreme Court because of a recent split among the Circuit Courts as to whether the contraception mandate imposes a substantial burden upon a private employer’s free exercise of religion. Government attorneys for the Department of Justice argue that a private employer cannot exercise religion, and rely heavily on Justice Scalia’s opinion in Lyng v. Northwest Indian Cemetery Protective Association where he stated, “Any society would be courting anarchy,” if people were free to ignore a “valid and neutral law … on the ground that [it] prescribes conduct that his religion proscribes.”

Additionally, women’s health advocates believe (PDF) that the Beckett Fund cases are unlikely to succeed, as the health care law is a facially neutral law that is generally applicable. Health care advocates also contend that RFRA should not control because “neither providing health insurance, nor engaging in sexual intercourse without contraception, constitute religious exercise.” Ultimately, this issue is likely to be hashed out in the Supreme Court. In the meantime, female employees at Dominoes, Hobby Lobby and religious universities are unable to receive free contraception through their insurance plans.

Occupational Speech: The New Hazard?

By Kathryn H. Van Wie, Staff Member (Vol. 11)
April 14, 2013

Since 2002 Texas-licensed veterinarian and Ph.D. Microbiologist, Dr. Ron Hines, has been helping pets and pet owners by giving online advice. Hines offered his advice for a $58 flat fee— or for free to those who could not pay— to pet owners around the world, often helping those who otherwise are without access to veterinary advice. After suffering from a debilitating injury that left him unable to practice, Hines began posting pet-care advice online. Pet owners responded by seeking advice from Hines, where he estimates he has helped more than 700 pet owners.

Although no client ever complained about Hines’ advice, in March 2013 his online practice was shut down and the Texas Board of Veterinary Medical Examiners suspended his license and imposed fines against him. Unknowingly, Hines had been committing a crime for 10 years under a Texas statute, which prevents a veterinarian from giving advice solely over the Internet. Veterinarians must physically examine the animal before administering professional advice. The law does not, however, limit its applicability to Texas or to those who otherwise have access to veterinary care. Rather, the law precludes Hines’ clients from around the globe from relying on his advice, although they have no alternative to help their pet.

Advocates for Hines, including the Institute for Justice, argue that the First Amendment protects the right to seek advice from an expert, wherever they may be. This implicated not only the unsettled question regarding regulated Internet speech, but also the government’s power to control direct speech with clients through occupational licensing.

The Supreme Court held in Holder v. Humanitarian Law Project that professional conduct falls outside of the First Amendment’s scope of protection. Nevertheless, the Courthas not addressed directly whether professional speech demands First Amendment protection. Restrictions of commercial speech would affect professionals in legal, financial, and medical fields, whose professions rely on administering advice through speech. In addition, the Court has not agreed on what constitutes commercial conduct versus speech. Hines argues that any advice he gave was “pure speech” because his advice was never followed with any conduct, such as medical procedures or distributing medication.

Although not binding, a three-justice opinion in Lowe v. SEC implied that the First Amendment does not protect advice where a client is seeking an expert opinion. Relying on Lowe, the Eleventh Circuit held a Florida statute regulating an interior designer’s professional speech was not overbroad because it regulated “direct, personalized speech with clients” which has “a merely incidental effect of protected speech.” Again, a lower court applied Lowe, finding a blogger who gave dieting advice on the Internet acted illegally under dietitian-licensing laws. The Supreme Court, however, has not since recognized the language in Lowe.

Up to a third of the U.S. working force is currently affected by licensure requirements, with that number likely to continue to grow. Thus, if the Court were to find under Lowe that advice is not speech, thus not protected under the First Amendment, the implications would extend far beyond Hines and unauthorized practice of veterinary medicine. As more professions are regulated, further speech will be regulated without protection of the First Amendment.