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By Justin Silverman

Justice Alito

Suffolk University Law School will host its 5th annual Masterman Institute on March 6, featuring a discussion on U.S. Supreme Court Justice Samuel Alito and his approach to the First Amendment. The event is free and open to the public. Anyone interested in attending must RSVP. More information can be found here (.pdf).

According to event organizers,

“Justice Samuel Alito is now in his seventh year on the Supreme Court. He has participated in approximately twenty decisions involving the meaning and application of the First Amendment’s guarantee of ‘the freedom of speech.’ These decisions have involved such matters as campaign finance regulation, hate speech, government speech, offensive ideas and images, student speech, and speech that benefits terrorists. How, if at all, is his First Amendment jurisprudence similar to, or different from, his fellow Justices? What, in short, does the First Amendment mean to Justice Alito, and what does this tell us more generally about his overall approach to constitutional interpretation?”

To answer those questions, will be the following:

The discussion will be moderated by Suffolk Law’s Jessica Silbey, and will be followed by a networking reception.

By Justin Silverman

102847051_d035620755_qEight days after a gunman entered Sandy Hook Elementary School, shooting and killing 20 young students, 6 staff members and fueling a national discussion on gun controlThe Journal News in Lower Hudson, New York, published an interactive map of all residents in its community who possessed a firearms permit. The data — initially including the names and addresses of permit holders — had been obtained through the state’s Freedom of Information Law and could have been accessed by anyone upon request. Still, the decision to publish the data in its aggregate appeared to many as an unacceptable and needless invasion of the privacy of gun owners, and sparked a fierce debate over the ethics of such disclosure.

The Journal News ultimately decided to remove much of the personal data from the map, and the ethical debate over whether that data should have been published in the first place has for the most part died down. What remains, however, is a concerning unintended consequence: At least several states are considering to pass or have already passed legislation hindering access to gun registries or banning the publication of the data altogether.

Pat McDonough, a state delegate in Maryland, is proposing the latter. “The bill is going to prohibit publications from printing private information of gun owners,” said McDonough, who as of last week had not released a copy of the bill. “This is really a response to the paper in New York which claimed what they were doing was for the public good, but what [the gun map] really is is a massive editorial taking up two pages of the newspaper reflecting their position of the newspaper.”

When asked by a Baltimore City Paper reporter if he intended to “limit the First Amendment in order to protect the second,” McDonough responded: “That’s a good way to put it.”

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By Justin Silverman

Do computers have a First Amendment right to free speech?

Tim Wu, author and law professor at Columbia University, posed and attempted to answer this question in a June op-ed in The New York Times. (Admittedly, I’m a bit late to come across the piece, but I think it’s still very relevant and well-worth revisiting.) On its face, the question seems absurd — the constitution protects individuals, not machines! — but the issue has been debated since at least 2003 when Google argued in a civil suit that its search results were protected speech. The court ruled in Google’s favor.

Explained Wu:

“In today’s world, we have delegated many of our daily decisions to computers. On the drive to work, a GPS device suggests the best route; at your desk, Microsoft Word guesses at your misspellings, and Facebook recommends new friends. In the past few years, the suggestion has been made that when computers make such choices they are ‘speaking,’ and enjoy the protections of the First Amendment. This is a bad idea that threatens the government’s ability to oversee companies and protect consumers.”

In arguing that the output of a computer is too attenuated from the individual to warrant full First Amendment protection, Wu criticized professor Eugene Volokh of the University of California, Los Angeles School of Law. Volokh declared in a paper that “Google, Microsoft’s Bing, Yahoo! Search, and other search engines are speakers.”

Volokh defended his position in a thorough rebuke to Wu, resulting in a great exchange between the two highly regarded academics on a controversy that could potentially redefine the limits of the First Amendment. Do yourself a favor and read both pieces in their entirety. The depth of the arguments, particularly those of Volokh, is beyond the means of this brief blog post.

In short, Volokh explained that:

“…the computer algorithms that produce search engine output are written by humans. Humans are the ones who decide how the algorithm should predict the likely usefulness of a Web page to the user. These human editorial judgments are responsible for producing the speech displayed by a search engine. For instance, Google’s use of the volume of links from other sites as a criterion for ranking search results was itself the result of Google engineers’ editorial judgment that inbound links provided a sound and quantifiable measure of a site’s value. Search engine results are thus the speech of the corporation, much as the speech created or selected by corporate newspaper employees is the speech of the newspaper corporation.”

To many, this debate has real consequences. Since I wrote about the prevalence of mugshot websites, for example, I’ve had many conversations with readers who question why their mugshot is the first search result when there are many other websites that portray them in a more flattering light. It’s unfair, they argue. Google’s decision to rank these mugshot sites higher than others is making their professional growth difficult and tarnishing their image sometimes decades after an arrest. Can’t this type of “speech” be regulated?

Well, it seems, it depends on who you ask.

Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently an attorney based in Westborough, Mass. In addition to Suffolk Media Law, he blogs for the Citizen Media Law Project and the New England First Amendment Center, for which he serves as a board member. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @justinsilverman.

(Image of “Computer Parts Thingy” courtesy Flickr user kokopelli1330 and published under a Creative Commons BY-NC license.) 

By Justin Silverman

When Tim Donnelly, a 26-year-old job seeker, Googled his name recently he found that the first link provided was that to a mugshot of him taken seven years ago. He got into a fight as a teenager and was arrested for criminal trespass and assault. According to Donnelly, the trespass charge was dismissed and the assault charge was downgraded to disorderly conduct. “I have since learned better,” he said.

What bothered Donnelly wasn’t the publication of his mugshot per se, but instead the companies working together to solicit payment for its removal. “I am all for having a completely open government,” he said, “but something needs to make this online shaming device stop.” Donnelly believes he has a solution.

Since I wrote about the prevalence of mugshot websites last October, many readers weighed in with their own take on what David Kravets described in Wired as a “racket.” According to Kravets’s article, self-described “reputation companies” are part of an emerging industry of websites publishing mugshots and then charging those pictured to remove the photos to spare them further embarrassment.

“This is not a ‘mugshot business’ or ‘mugshot industry’,” wrote one reader. “This is extortion… The demand: Pay up or it stays up.” Another reader noted that many of these sites defend their right to publish mugshots — which are public records in many states — by claiming they are news organizations: “They’re not a ‘news organization’ by any stretch of the imagination,” that reader wrote. “They have zero/zilch bona fide news media credentials… [They] break every accountable, professional, bona fide news media/news-reporting ‘code of ethics’ out there.”

Donnelly contacted me shortly after my blog post ran to comment on the mugshot phenomenon. He immediately began outlining his plan to deactivate this mugshot minefield. His solution is to legislate a public records exemption for those who would be using the records for “commercial purposes.” Donnelly, a Fort Worth, Texas, resident, is currently lobbying his representatives to enact such a clause in his home state’s FOI law. Presumably, such an exemption would prevent companies from exploiting public record laws while allowing news organizations to continue with their business.

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By Justin Silverman

Shortly after the Obama Administration authorized the killing of U.S.-born cleric Anwar al-Awalki in early 2010, a debate erupted over the legality of assassinating American citizens abroad. Noticeably missing from the conversation, however, was the Department of Justice and its Office of Legal Counsel (OLC). Though multiple news sources reported the existence of secret legal memoranda that backed a “targeted killing” policy, the administration prevented the release of those memos.

According to two lawsuits recently filed by The New York Times and American Civil Liberties Union to access those memoranda, the DOJ is denying requests for the documents using various Freedom of Information Act exemptions and delay tactics. Regardless of one’s political stance on targeted killings, the legality of such a policy is at the very least debatable. Given that such constitutional cornerstones such as due process are at play, these lawsuits are particularly emblematic of the need for open government.

But beyond the obvious arguments for transparency, these lawsuits also provoke questions about whose interest is protected by government attorneys, and how their legal analysis can – secretly, and perhaps erroneously – shape policy decisions by both current and future administrations.

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By Justin Silverman

Perhaps it’s the nightly lobster tails and whoopie pies. Or maybe it’s the Pumpkinhead Ale. Whatever it is that graces his dinner table, Maine Gov. Paul LePage believes it’s none of the public’s business. When it comes to his meals, what’s eaten in the governor’s mansion stays in the governor’s mansion — the state’s Freedom of Access Act be damned.

“We have received requests for all grocery receipts from the Blaine House,” LePage wrote earlier this year. “I understand that taxpayers have a legitimate right to know the amount of money being spent in their house, but the intimate details of our diet goes far beyond funds and into the private details of my family’s life.”

In a July letter to Maine’s right-to-know advisory committee, LePage expressed concern over a prying public interested in matters beyond government business and political foes making “incredibly broad requests” merely to overwork his staff. The committee responded earlier this month by approving a plan to exempt all the governor’s “working papers” from the state’s Freedom of Access Act. As critics of the proposal lament, it’s not clear what documents are considered “working papers” or how the exemption addresses the governor’s initial concerns over grocery receipts. Still, the proposal makes Maine the latest of several states to have recently considered narrowing their respective FOI laws.

According to the Sunshine Review, 12 states this year proposed a total of 39 bills that, if made law, would at least partially narrow their FOI statutes. Some of these bills died before passage, though many remain active and are just a governor’s signature away from becoming law.

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By Justin Silverman

In response to local Occupy protests, Tennessee Safety Commissioner Bill Gibbons said in October that “we don’t have the resources to go out and, in effect, babysit protesters.” But as the Nashville Scene recently reported, that’s exactly what police officers did — and they did so while undercover.

According to the Scene, which received the officers’ correspondence from the Tennessee Department of Safety and Homeland Security, state troopers covertly infiltrated the Occupy Nashville encampment for about a month and emailed their observations to superiors.

The Scene’s Jonathan Meador wrote that while the emails show “troopers repeatedly comment[ed] on the peaceful and friendly nature of the protesters” at the start, by Oct. 25 the state government was far more focused on, shall we say, bodily functions. Wrote State Capitol Facility Administrator David Carpenter, quoting an unnamed legislative staff member:

“There is an orgy going on out on the plaza. Celeste just saw a girl give a guy a ——job [sic] right in front of her window. She banged on the window and they just looked at her and kept going. The smokers are saying the smell of urine is so strong out on the WMB plaza that it’s unbearable. These people have been smoking pot, defecating and urinating all over the place and from what we understand out security has it’s [sic] hands tied….”

The reconnaissance mission turned into a daily log of citations for public urination, sanitation offenses, and what Connie Ridley, director for the Office of Legislative Administration, called one couple’s “inappropriate relations behind the magnolia trees.”

Such intelligence gathering is a far cry from that of communist-era Red Squads and the methods of these troopers appear to be on the right side of the law. Still, with the proliferation of Occupy protests, covert government surveillance of political assemblies may be spreading. It’s happening in NashvilleNew YorkOakland and presumably other major cities. It’s taking the form of undercover agents, unmarked police cars and attempts to access secure chat rooms.

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When web developer Andy Boyle overheard a couple discussing their marital woes in a Burger King in Boston on Nov. 7, he immediately recognized the entertainment value and began tweeting a play-by-play.

“I’m listening to a marriage disintegrate at a table next to me in this restaurant,” he wrote. “Aaron Sorkin couldn’t write this better.” He then proceeded to quote the unwitting actors at length, concluding with an exterior photo of the now very public stage, or as he called it, “the restaurant of broken dreams.”

While tweeting the anonymous conversations of others is not uncommon (read yesterday’s account of an irate plane passenger, courtesy of comedian and fellow traveler Patton Oswalt), Boyle added to his narrative a photo of the couple and instantly sparked a much-needed conversation on privacy, ethics, and online etiquette, now known as#BurgerKingBreakup. In the words of @HuffingtonPost, the Twitterverse exploded.

@dcborn61 Even if a private discussion of that nature is taking place in public, don’t think it is right to tweet the conversation.

@flutefemme When you kill your marriage in such public place, why, then, are you surprised it got tweeted all over the internet?

@NewsEnthusiast Tweeting abt the breakup would have been ok if pic were not involved

@Dre86inSD It’s one thing to tweet, “I saw a couple arguin inside BK!”, it’s another thing to play-by-play. Mind ya bidness.

This is just a small sampling of the conversation, a dialogue on privacy among those who typically set their social default to “public.” Though I find this debate the most interesting part of the story, let me briefly address the legal issues involved in Boyle’s broadcast of the breakup.

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By Justin Silverman

Give the Obama Administration credit for trying. The President promised the country transparency and open government, so rather than just let FOIA requesters assume they are being lied to, the Department of Justice recently proposed coming clean and making such lies official policy. Freedom of information advocates could rejoice knowing that their government is transparent about not being transparent.

In actuality, the intent behind the now-abandoned proposal was much more manipulative, if no less ironic.

Here’s how it’s supposed to work: The Freedom of Information Act allows access to records of all departments, agencies, and offices of the Executive Branch of the federal government, including the Executive Office of the President, unless those records fall under one of several exemptions. When asked to produce certain documents pertaining to law enforcement or national security, the federal government can withhold those documents under one of the exemptions, or it could issue a “Glomar” response “neither conforming nor denying the existence” of those records.

But as the ACLU’s Michael German explained, the government felt there was a need:

. . .to protect ongoing investigations from people who were misusing FOIA, these criminals who are trying to uncover criminal investigations or find informants or, perhaps a hostile nation trying to find out if there is a classified program in existence. If you got an ambiguous answer, like a Glomar response, and you felt that the documents might actually exist, you’d go into court and try to assert your rights to access those records. But if you got a ‘no records’ response, you would tend to believe that the government was telling the truth and, therefore, not challenge them in court.

So that’s what the Department of Justice proposed, a regulation that would allow it to lie under the FOIA statute — which, German said, the government has been doing anyway. This proposal would only make it official. “Basically they want to ex post facto create a rule that allows them to do what they’ve already been doing in violation of the rule” – that is, lie – German said on NPR’s On the Media.

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By Justin Silverman

A French court last month stomped on what we in the United States consider a “basic, vital, and well-established liberty” – the right to record and publish the public activity of police.

It is the latest attempt by the country to regulate the speech of its citizens online, prevent access to information deemed harmful to state interests, and create, in the words of President Nicolas Sarkozy, a “civilized” Internet. This particular decision is especially concerning given that it comes just two years after a scathing report by Amnesty International on the country’s ineffective methods of investigating police misconduct.

According to the Jurist, the Tribunal de Grande Instance de Paris, a civil trial court, ordered all French ISPs on Oct. 14 to block access to Copwatch Nord Paris I-D-F, a website that allows citizens to post videos of alleged police misconduct. The police union, Alliance Police Nationale, applauded the decision because it believed the site incited violence against officers. Said the union’s secretary general, the “judges have analyzed the situation perfectly — this site being a threat to the integrity of the police — and made the right decision.”

From a police accountability perspective, the decision leaves those in France without a much needed resource. A 2009 report by Amnesty International found that “allegations of unlawful killings, beatings, racial abuse and excessive use of force by France’s police officers are rarely investigated effectively.” If police will not effectively investigate their own misconduct, the task of exposing that misconduct and calling for accountability falls upon the public. Copwatch is a tool to help citizens achieve that end. What the police union doesn’t seem willing to acknowledge is this: Officers either have integrity or they don’t. Reporting misconduct online only shows a lack of integrity; it does not threaten what isn’t there to begin with.

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