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:

• Professor Geoffrey R. Stone, the event’s keynote speaker. Stone teaches and writes primarily in the area of constitutional law. His most recent book is Speaking Out! Reflections on Law, Liberty and Justice (2010). Stone’s Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (2004) received the Robert F. Kennedy Book Award for 2005.
• Robert A. Bertsche of Prince Lobel Tye LLP, a nationally known media lawyer. He is a visiting lecturer at Tufts University, where he teaches “Media Law and Ethics in a Digital World.”
• Karlene W. Goller, V. P., Legal and Deputy General Counsel for the Los Angeles Times, and Senior Counsel/West Coast Media for Tribune Co.
• Jim Newton, editor-at-large of the Los Angeles Times. He serves as a member of The Times’ editorial board, advises on editorial matters and writes and edits for the editorial page and Op-Ed, including a weekly column examining the policy and politics of Southern California.
• Professor Mary-Rose Papandrea of Boston College Law School. Papandrea is chairwoman of the AALS National Security Law Section and past chair of the Mass Communication Law Section.

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

Eight 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 control, The 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.”

Reaching for the Shade . . .

Many states already exempt gun registry information from their respective FOI laws, considering such disclosure to be an unwarranted invasion of privacy. See State Survey on Gun Permit Disclosure, Reporters Committee for Freedom of the Press Open Government Guide. The Supreme Court of Michigan, for example, found that gun ownership is “an intimate or, for some persons, potentially embarrassing detail of one’s personal life.” Mager v. Dept. of State Police, 595 N.W.2d 142, 147 (Mich. 1999). Still, there are states that do keep such records public and as a result of The Journal News flap, are now reconsidering their decision to do so.

• New York, home to The Journal News, quickly passed a new law that would, among other gun control measures, allow gun owners to opt out of the public disclosure of their personal information under the state’s FOIL. Further, the legislation created a new set of firearm-related databases that will not be subject to public inspection.
• Mississippi lawmakers are proposing a law (.pdf) that would cut off all public access to state records on people who carry concealed firearms. “It just struck me that simply because the document is in possession of the government does not, in my mind, make it a public document,” the bill’s author Rep. Mark Baker said.
• Under North Carolina FOI law, personal information contained in gun permits is considered public, but that may change if one county commissioner gets his way. Tracy Philbeck is asking his county’s legislators to shield the names, addresses and ages of gun registrants. “In light of recent events, the media has taken advantage of the public records law and abused it,” he said. “This information should not be used to criminalize or defame gun owners.”
• In Ohio, only accredited media representatives can currently access the state’s gun permit list. That limitation, however, isn’t sufficient for state Sen. Joseph Uecker who said he will introduce legislation barring all journalists from viewing the registry data.
• California lawmakers are considering a bill that would shield the address and phone numbers of those with concealed weapon permits. “There’s no compelling public safety reason or any reason at all for criminals to have a shopping list of who does and does not have a firearm,” the bill’s co-author Assemblyman Allan Mansoor said.

Why are these changes concerning? As a general principle, and with all due respect to the privacy interests at play, the disclosure of government documents is often in the public’s interest. That disclosure of information helps the public evaluate policy, makes it easier to monitor elected officials and helps communities discern patterns in their own behavior. What may initially be as mundane as a mailing list can provide context to larger issues and help create knowledge. Questions such as “Are gun permits being granted to law-abiding citizens?” or “Are some neighborhoods protecting themselves with firearms more than others?” can only be answered with the data these proposals would conceal.

This isn’t to say that the personal information of all permit holders is essential to an enterprising story. Insight can be gleaned from registry data sans street addresses, it just becomes more difficult to obtain. Start whittling away at the body of public records and with each chip that falls, knowledge becomes more elusive. Also consider the grief felt post-Newtown, the anger directed at The Journal News and the fear of gun owners that their Second Amendment rights will be diminished. It seems these far-reaching proposals could be an overreaction to emotional circumstances, rather than a clear evaluation of FOI policy and the balance between information and privacy. Most of the new or proposed legislation shields personal information in its entirety, yet there are compromises that could be made instead. If street addresses are concern, than perhaps residential data can be disclosed cumulatively by county. If names are to be shielded, then maybe ages of permit applicants could be released. The effort unfortunately is to shade gun registries from all rays of sunlight, even the most faint.

. . . And Overreaching

There is a more egregious example of this overreaction, however, and it is a reoccurring one. Within this policy debate inevitably comes a push to simply criminalize the publication of gun registry data altogether. This is the tactic McDonough in Maryland is proposing. It is also the basis to a billconsidered by South Dakota this month. South Dakota Rep. Jeff Monroe introduced legislation that would make it a crime to publish any information about a gun owner without his or her consent. Reconsidering its scope, Monroe later limited the bill to apply to “any mass communications outlet.” Said Monroe, “It’s a bill that was originally intended to make it difficult to do what was done on the East Coast.”

Such proposals are not new, explained professor Richard J. Peltz-Steele in his recently published text, The Law of Access to Government. “Gun ownership advocates supported a wave of legislation in the states, especially in 2008 and 2009, to close permit registries,” he wrote. “One version of the pattern legislation criminalized the republication of permit information lawfully obtained, presenting a serious problem in prior restraint under the First Amendment.”

The First Amendment protects the dissemination of protected speech by prohibiting both prior restraints (an act to prevent disclosure before it is published) and subsequent punishment (a sanction levied after publication). By either formulation, the freedom of the press to publish protected speech can only be restrained in rare circumstances, usually involving national security. This doctrine is fundamental to the First Amendment and has solidified during the last 40 years as an essential protection for journalists.

For more on prior restraints and subsequent punishments: New York Times Co. v. United States, 403 U.S. 713 (1971) (refusing to stop the publication of classified documents about U.S. involvement in the Vietnam War);  Florida Star v. BJF, 491 U.S. 524 (1989) (allowing publication of sexual assault victim’s name despite state shield law); Nebraska Press Assoc. v. Stuart, 427 U.S. 539 (1976) (finding unconstitutional a gag order on journalists covering a widely-publicized murder trial); Bartnicki v. Vopper, 532 U.S. 514 (2001) (allowing the publication of material obtained illegally but sent anonymously to innocent recipients). But see Near v. Minnesota, 283 U.S. 697 (1931) (finding prior restraints likely constitutional if publication would reveal troop position in wartime).

In other words,

“if a newspaper lawfully obtains truthful information about a matter of public significance, then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order.” Smith v. Daily Mail Publishing Co., 443 U.S. 97, 104 (1979).

Gun registry data is truthful information that is clearly of public significance. If the Nixon Administration’s claims of national security were not enough to prevent the publication of the Pentagon Papers, the privacy lost by printing names and addresses of permit holders isn’t likely to warrant a prior restraint either. Protecting the privacy of gun owners may further a number of state interests, but those interests do not approach the magnitude required by our constitution.

“I don’t like the idea of infringing on the freedom of the press,” South Dakota Sen. Mike Vehle said. He and his fellow legislators last week voted down the bill proposed by Monroe. “I’m afraid what we’re going to end up (with) here is a long legal suit, and I don’t think were’s going to gain anything.”

Hopefully, McDonough in Maryland is listening.

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., and a contributor to the Digital Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @justinsilverman.

Photo courtesy Flickr user barjack, licensed under a Creative Commons BY-NC-ND 2.0 license.)

Join us for an informative and provocative examination of this topic!

Eventbrite: http://suffolkmedialawevent-eorg.eventbrite.com/#

Image created by flickr user thetaxhaven used via CC BY 2.0 license.

By Sarah Griffis

Patrons’ rights to confidentiality of their library use data have long been upheld by the American Library Association. However, as digital and online resources continue to entice librarians to build finding tools, more and more libraries are utilizing information generated by patrons to enhance their collections and bring efficiency to the pursuit of knowledge. While the goal to connect and describe information is incredibly valuable, there is a palpable fear in the profession of going beyond the intended goal and instead creating pathways that hint at specific users’ library trails.

Librarians’ concern about how emerging digital reliance affects privacy has been considered for over a decade, and librarians tend to be on the cutting edge of these topics. In 2001, cookies were already on the mind of Kim Guenther, who wrote that there is a need for libraries to develop privacy policies regarding digital media use, both to ensure the safety of patrons’ privacy and to inform patrons of what sort of data is collected and maintained by the library.

Different libraries face varying concerns related to the privacy of their patrons. School libraries are frequently confronted with conflicts pitting privacy rights against minors’ rights. Helen R. Adams discusses the efforts of school administrators, parents and teachers to access students’ borrowing records. She further analyzes the situation of state laws on the matter, as of April 2011. Since the Patriot Act was passed, public libraries have been assailed for patron use data by no less a frightening ghoul than the FBI, but in 2006 the ACLU aided a Connecticut library consortium in its battle to prevent having to turn over all of the browsing data and use records linked to a specific computer.

Librarians care deeply about the sanctity of patrons’ uninhibited access to knowledge and information at the same time as they seek to enhance access points to the enormous pile of available information. Last week, Marc Parry at The Chronicle of Higher Education sat down with librarians at Harvard’s Library Innovation Lab to gain their insight on the compatibility of digital media, libraries and user privacy rights. An experiment with Twitter where checked out book titles were tweeted with links to the library catalog page has recently underscored the importance of privacy to patrons. Even when no express identifying information was disseminated and the titles were tweeted in a randomized order, the concern that there was a possibility of connecting the titles to patrons shelved the project. Parry mentions several other software that incorporate user generated reviews or statistics and are currently in use at many types of libraries across the nation. Growth in applicability and popularity of these products increases the urgency of defining what is and is not confidential patron data.

California has taken an active role in legislating on the behalf of its population what sort of privacy is expected in a digital venue. Ariel Bogle of the independent publisher Mellville House celebrates the Reader Privacy Act passed in California in January of this year. The law attempts to extend rights enjoyed by library patrons to e-books, but it is unclear what big teeth the act may have, especially when pitted against the Patriot Act. 

Photo used without permission from flickr user Paul Lowry via CC license BY 2.0. 

By Sarah Griffis

On June 20th, 2012 the police report investigating the source of a heavily intoxicated 18 year old woman was leaked to WPRO, and on June 21st, the Providence Journal attempted to get their own copy by emailing a written request for “all records relating to Caleb Chafee and the investigation which arose from  occurrences at his home on May 28, 2012″ (Complaint, 3). According to the article from this week announcing Providence Journal’s lawsuit against the State Police and DPS Commissioner Colonel Steven G. O’Donnell, Katie Mulvaney at the Providence Journal writes, ” The state police denied three requests, arguing the records were exempt because Caleb Chafee was not arrested and that the case was civil, not criminal”. The complaint filed on October 22nd alleges that Department of Public Safety attorney, Danica Iacoi,  denied their request 2 times, after which on appeal Colonel O’Donnel also denied ProJo’s request for documents concerning the illegal drinking party (3-4).

R.I.G.L. §38-2 covers Access to Public Records, and seeks to strike a balance between facilitating “public access to public records” and preventing “unwarranted invasion of personal privacy” (Purpose). R.I.G.L. § 38-2-2 (5) (D) defines public record as “all documents… made or received pursuant to law”, with some limitations placed on criminal law enforcement records to safeguard due process and privacy concerns. Presumably the denial based on the civil nature of Chafee’s case does not protect the documents unless it is considered an unwarranted invasion of privacy to access the police report of a civil case. Providence Journal argues that the public’s interest in this case is compelling, and therefore documents relating to the May 28 investigation must be turned over.

Under R.I.G.L § 38-2-10, the burden of proof is on the public departments to show that the police report was in fact properly withheld from the news agency. Also, cases adjudicated in RI profess a strong preference for construing restricting language on freedom of information narrowly so as to privilege public access (In re Derderian, In re New England Gas Co.). The DPS and State Police may find their reasoning for turning down the request does not defeat the strong public policy emphasized by APRA. Providence Journal may win this battle to inform the public of underage drinking parties and hosts’ duties when it comes to highly intoxicated minors.

Image taken by flickr user NS Newsflash, licensed via Attribution 2.0 Generic (CC BY 2.0)

By Sarah Griffis

Scheduled for argument on Oct 29, Supap Kirtsaeng, dba Bluechristine99, v. John Wiley & Sons, Inc. will focus on whether the right to resell a legally purchased copy of material attaches to foreign purchased items. Forbes contributor John Villasenor writes that in this case, a student from Thailand was able to profit from reselling textbooks purchased in Thailand on the US market.

The appellate court held Kirtsaeng liable for copyright infringement, its ruling based on the fact that the books were purchased in a foreign country, and therefore the right of first sale did not apply (Keeley). Right of sale, as Lisa Schuchman points out, not only allows the holder to sell the material, it also gives display and lend material without clearing it with the copyright holder. This Clancco post describes the amicus arguments art institutes and museums have filed in preparation for the upcoming argument session.

Libraries also see their stock and trade threatened by the broad scope of the ruling. Allison Frankel writes an in-depth article on the potential impact on library collections. Since many books are published outside of the US, libraries would be required to seek extra licensing permissions to lend books manufactured in foreign countries. Imagine what the French Cultural Center Library holdings would look like after failed attempts to get licensing, either due to lack of response or excessive licensing fee requests.

Image taken by flickr user Jo Jakeman, licensed via Attribution 2.0 Generic (CC BY 2.0)

Gawker recently published an article spotlighting the man behind the infamous Violentacrez Reddit troll persona. Violentacrez is known as champion of the offensive, taking an active role in establishing and moderating such subreddits as /r/jailbait and /r/creepshots. Both of these pages have been taken down by Reddit Admins due to community and public outcry, but not without a heated discussion amongst Reddit users about how far we will protect free speech rights before drawing a line, and whether that line shows hypocrisy on the part of an oppressive majority. Jailbait featured mostly non-sexual pictures of underage females. CreepShots was a page dedicated to posting non-consensual, frequently sexualized photos of women taken in the public sphere. In response to the invasive, yet legal, images, Katie M. Baker of Jezebel writes that one young woman created a Tumblr page, Predditor, posting identifying information, scraped from the web, of the Reddit users who post these sorts of pictures.

The firestorm sparked by the controversy has led to the Predditor page being taken down (then put back up, taken down again, etc), Violentacrez’s profile being removed, and polarized arguments on both sides of the issue. Severe discomfort at having their online persona linked to their “real-life” identity plague the people being outed as Creep Shot posters, while the people digging up identifying information feel little to no sympathy for their pain. The Awl writer, Choire Sicha, points out that when posting on the internet, there is a severely decreased privacy interest, just as when walking on a public street.

Public shaming of creeps has also recently shown up in a more traditional forum. A prostitution ring/Zumba studio in Kennebunk, Maine maintained detailed records of the liaisons before getting busted, including unauthorized videos of the acts. Police in the area plan to release the names of the men involved in the market by publishing lists in the local newspaper, reports The Washington Post.

The questions cut both ways: on the part of Creep Shot takers and/or posters, and Creep outers. Is this legal? Ethical? Desirable in our society?

Image used, licensed without consent via CC BY 2.0. Image taken by flickr user Sister72.

Late last month both houses of Congress introduced the Internet Radio Fairness Act in an effort to reduce the royalty rates internet radio stations pay to copyright holders of sound recordings.  The current fee structure for digital audio transmissions is set by a panel of three judges who make up the Copyright Royalty Board.  This system has been criticized by internet radio stations because it has led to sites like Pandora paying out 50% of its revenues for royalties, while satellite radio stations pay a lower rate of 8% of gross revenues.  Pandora of course applauds the proposed law claiming “A more equitable rate structure would drive investment and innovation, bringing greater choice for consumers, and ultimately greater revenue for performing artists.”

The separate rate structure for satellite radio and internet radio stems from the Digital Millennium Copyright Act that in essence divided up non-interactive digital audio providers into two categories.  Satellite radio providers were allowed to fall under the fee standard in section 801(b) of the Copyright Act, while internet radio companies fell under a willing buyer/willing seller standard.  In the latter, fee decisions are based on the standard of what a willing buyer and a willing seller would agree to in a hypothetical marketplace.  This two tier system may have made sense 15 years ago when the DMCA was introduced, but the resulting gap in rates doesn’t seem to be fair today for entities using copyrighted works in the essentially the same way.

If one rate is now needed to level the playing field, which one should be used: 801(b) or Willing Buyer/Willing Seller?

The Internet Radio Fairness Act would apply the 801(b) standard to internet radio stations.  The standard involves four criteria used to determine a royalty rate:  Maximize the availability of creative works to the public; Insure a fair return for copyright owners and a fair income for copyright users; Reflect relative roles of capital investment, cost, and risk, and; Minimize disruptive impact on the industries involved.

A competing bill in the House, the Interim Fairness in Radio Starts Today Act, would adopt the willing seller/willing buyer standard.   This standard has been criticized for giving the seller (music publishers) too much leverage when acting as a group.  UCLA Professor John Villasenor makes a case for applying 801(b) across the board here.

Brian served as President of Suffolk Media Law from 2011-2012. 

By Sarah Griffis

Recently a clutch of cases tackled discoverability of social media accounts and their contained tweets, comments, posts, and pins. Although this issue has previously been in the courts, two cases decided within a week of each other manage to come to differing conclusions when applying discoverability rules to social media data. Seeing the writing on the wall, attorneys begin to warn their clients about the dangers of sharing too much via social media.

Social media discoverability law is taking some time to solidify in the courts, although cases on the issue have been considered since 2010. EEOC v. Simply Storage Management decided in 2010 that social media content is not “private” enough to avoid discovery. (Lynch , Batchoo)  This past June, Thompson v. Autoliv created a challenge method for parties to dispute the overbreadth of information demands. (Fluhr) However, Robinson v. Jones Lang LaSalle Americas, Inc. relied on Simply Storage logic to demand a large swath of communication because it was relevant to the claim or defense. (Lynch , Batchoo) Prior to these decisions, in 2005 Zubulake v. UBS Warburg foreshadowed many of the concerns surrounding electronic communications when it closely considered the discoverability of emails among other forms of electronic communication. (Krause)

Bob Ambrogi recently wrote an article comparing two cases’ approach to the scope of social media discovery. While the  facts of the cases were comparable, the difference in decisions illuminates the need for more detailed application of the law.

Image used without flickr user birgerking’s permission via CC BY 2.0 Creative Commons license.

On Wednesday, the Dutch  Civil Court in Amsterdam declared copyright infringement may attach to an individual or organisation that links to infringing content. This is a new tendril of law that seeks to delineate the contours of infringing via hyperlinking. Some worry that this law poses a threat to nearly all webpages, and misses the legal mark when determining liability.

The case stems from links in an article GeenStijl.nl, a local (raunchy humor) news website, posted about a recent Playboy photoshoot featuring popular Dutch TV personality Britt Dekkers. The article in question focuses mainly on the leaked nature of the content, and invites the reader to click a link to the file of photos hosted on FileFactory.com. The events unfolded as Playboy issued a letter to FileFactory.com and asked them to remove the material, which they did. In response to the link going dead, GeenStijl.nl found a new source of the photos, and this  slapstick entertainment repeated itself a few more times through various outlets of the photos before Playboy and it’s Dutch publisher, Sanoma Media Netherlands, finally sued GeenStijl.nl itself for infringement.

In court, the judges introduced and discussed a three-prong test for determining whether linking would be considered infringing behavior. The court considered “intervention” “new audience” and “profit” as the factors to be analyzed in  the fact pattern. Loek Essers at PC Advisor writes that the three prong theory in this case was inspired by a recent EU Court of Justice, which ruled that “hyperlinks can infringe on copyrights if their publisher intervened, reached a new public and wanted to profit from their publication.” According to Marjolein van der Heide at Future of Copyright, in GeenStijl.nl’s case, the court applied the test to the facts and determined that the news-page had intervened by facilitating the publicity of the file by providing a direct link, had gained a new audience for the file which did not previously exist, and intended to and did profit from the increased web traffic generated by the article linking to infringing material.

While some groups are celebrating the ruling, Mike Masnick at Techdirt worries that the law has mistakenly put liability on a non-infringing party. GeenStijl.nl rages after its negative verdict that the judges have in fact banned Google with their new rule. However, Dutch law professor Dirk Visser dismisses this as a complete exaggeration of this narrow rule.

Given that here in the US embedding video is not considered infringement– even when the content does infringe, this strikes as a controversial decision. Does the Dutch ruling draw ascertainable lines to prevent abuse of the internet via this precedent?

Image used courtesy of  Flickr user dullhunk without permission via CC BY-NC-SA 2.0 license.