First Amendment – Page 3 – Attorney Evan Brown

May 22, 2012 Anonymity, Defamation, First Amendment

Does the constitution protect anonymity?

Yes, the constitution protects one’s right to speak anonymously, but only to a certain extent. The question of one’s First Amendment right to speak anonymously comes up pretty often in situations where a plaintiff seeks to unmask the identity of someone who is alleged to have committed an illegal act against the plaintiff online. Most often it is a plaintiff seeking to unmask an online critic in a defamation lawsuit.

internet anonymity

In 1995, the U.S. Supreme Court held in McIntyre v. Ohio Elections Commission that a state statute prohibiting the distribution of anonymous campaign literature was unconstitutional. The court said that “an author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment.” 514 U.S., at 342.

One would be hard pressed to overstate the importance of anonymous speech. Three and a half decades before the McIntyre decision, the Supreme Court observed that “[p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all.” Talley v. California, 362 U.S. 60, 64 (1960). And “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).

But free speech protection has its limits. A person does not have a First Amendment right to defame another. So when one party seeks to “de-anonymize” another using the court system, the judge must strike a balance between the plaintiff’s right to seek redress and the defendant’s interest (if any) in remaining anonymous.

Courts have come up with a variety of balancing tests. Though different courts have come up with different ways of conducting the analysis, the test always involves looking at the strength of the facts the plaintiff puts in his or her initial filing. The more likely it appears there is real defamation, for example, the less likely the anonymous speech will be protected. If the strength of those allegations gets beyond a certain tipping point, the risk of an anonymous free speech violation becomes outweighed by the need for the plaintiff to get relief for the unprotected, unlawful speech.

Evan Brown is a Chicago technology and intellectual property attorney, representing businesses and individuals in a variety of situations, including matters dealing with online anonymity and anonymous speech.

Photo credit: petter palinder under this license.

February 27, 2012 First Amendment

School district has to stop filtering web content

PFLAG v. Camdenton R–III School Dist., 2012 WL 510877 (W.D.Mo. Feb. 16, 2012)

Several website publishers that provide supportive resources directed at lesbian, gay, bisexual, and transgender (LGBT) youth filed a First Amendment lawsuit against a school district over the district’s use of internet filtering software. Plaintiffs asked the court for an injunction against the district’s alleged practice of preventing students’ access to websites that expressed a positive viewpoint toward LGBT individuals.

The court granted a preliminary injunction. It found that by using URL Blacklist software, the district (despite its assertions to the contrary) engaged in intentional viewpoint discrimination, in violation of the website publishers’ First Amendment rights. The URL Blacklist software — which relied in large part on dmoz.org — classified positive materials about LGBT issues within the software’s “sexuality” filter, and it put LGBT-negative materials under “religion,” which were not blocked.

It found that the plaintiffs had a fair chance of success on the merits of their First Amendment claims. The school district had claimed it was simply trying to comply with a federal law that required the blocking of content harmful to minors. But the court found that the chosen method of filtering was not narrowly tailored to meet that interest.

One may wonder whether Section 230 of the Communications Decency Act could have protected the school district in this lawsuit. After all, 47 U.S.C. 230(c)(2)(A) provides that:

No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected. . . . (Emphasis added.)

Section 230 would probably not have been much help, because the plaintiffs were seeking injunctive relief, not money damages. An old case called Mainstream Loudoun v. Bd. of Trustees of Loudoun, 24 F. Supp. 2d 552 (E.D. Va. 1998) tells us that:

[Section] 230 provides immunity from actions for damages; it does not, however, immunize [a] defendant from an action for declaratory and injunctive relief. . . . If Congress had intended the statute to insulate Internet providers from both liability and declaratory and injunctive relief, it would have said so.

One could understand the undesirability of applying Section 230 to protect filtering of this sort even without the Mainstream Loudoun holding. If Section 230 completely immunized government-operated interactive computer service providers, allowing them to engage freely in viewpoint-based filtering, free speech would suffer in obvious ways. And it would be unfortunate to subject Section 230 to this kind of analysis, whereby it would face the severe risk of being unconstitutional as applied.

February 25, 2012 Computer Crime, First Amendment, Privacy

Video: This Week in Law Episode 150

Had a great time hosting This Week in Law Episode 150, which we recorded on February 24. (Thanks to Denise Howell for handing over the hosting reins while she was off for the week.) It was a really fun conversation with three very smart panelists — Mike Godwin, Greg Sergienko and Jonathan Frieden. We talked about copyright and free speech, encryption and the Fifth Amendment, and the state of internet privacy.

If you’re not a regular listener or viewer of This Week in Law, I hope you’ll add it to your media diet. I’m on just about every week (sometimes I’m even referred to as a co-host of the show). We record Fridays at 1pm Central (that’s 11am Pacific, 2pm Eastern). The live stream is at http://live.twit.tv and the page with all the past episodes and various subscription options is http://twit.tv/twil.

December 4, 2011 Defamation, First Amendment

Oregon media shield law did not protect blogger from having to reveal her sources

Obsidian Finance Group, LLC v. Cox, 2011 WL 5999334 (D.Or. November 30, 2011)

Plaintiff filed a defamation lawsuit against defendant, who self-identified as an “investigative blogger” and a member of the “media.” Defendant asked the court to protect her from having to turn over the identity of the sources she spoke with in connection with drafting the allegedly defamatory content. She claimed that she was covered under Oregon’s media shield law, which provides in relevant part that:

No person connected with, employed by or engaged in any medium of communication to the public shall be required by … a judicial officer … to disclose, by subpoena or otherwise … [t]he source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public[.]

The court gave two reasons for finding that defendant was not covered by the shield law. First, although defendant thought of herself as the “media,” the record failed to show that she was affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, according to the court, she was not entitled to the protections of the law in the first instance.

Second, even if defendant were otherwise entitled to those protections, another part of the statute specifically provides that “[t]he provisions of [the shield law] do not apply with respect to the content or source of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.” Because this case was a civil action for defamation, defendant could not rely on the media shield law.

November 9, 2011 First Amendment

Employee’s Facebook status update was protected by the First Amendment

Mattingly v. Milligan, 2011 WL 5184283 (E.D.Ark. November 1, 2011)

Plaintiff worked in the county clerk’s office. Her old boss, whom she had supported in the election, lost. Her new boss (the newly-elected county clerk) began cleaning house and laid off some of the staff. Plaintiff survived that round of cuts, but lamented those terminations in a Facebook status update. Empathetic comments from county residents ensued.

The new boss found out about the status update and the comments. So he fired plaintiff. She sued, alleging that the termination violated her right to free speech. The boss moved for summary judgment, but the court denied the motion, sending the case to trial.

Here is some of the relevant Facebook content:

Plaintiff’s status update: So this week not going so good bad stuff all around.

Friend’s comment: Will be praying. Speak over those bad things positively.

Plaintiff’s comment: I am trying my heart goes out to the ladies in my office that were told by letter they were no longer needed…. It’s sad.

* * *

Friend’s comment: He’s making a mistake, but I knew he would, too bad….

* * *

Friend’s comment: I can’t believe a letter would be the manner of delivering such a message! I’m with the others…they will find some thing better and tell them this is an opportunity and not a closed door. Prayers for you and friends.

* * *

Friend’s comment: How could you expect anything else from [defendant], he was an…well nevermind.

Courts addressing claims by public employees who contend that they have been discharged for exercising their right to free speech must employ a two-step inquiry: First, the court must determine whether the speech may be described as “speech on a matter of public concern.” If so, the second step involves balancing the employee’s right to free speech against the interests of the public employer.

In this case, the court found the speech to be on a matter of public concern because:

the statements were made in a “public domain”
those who saw the statements (many of whom were residents of the county) understood them to be about terminations in the clerk’s office
some of the comments contained criticism of the termination decision
six constituents of the new clerk called his office to complain
the press and media had covered the situation

As for the second step in the analysis, namely, balancing the employee’s right to free speech against the interests of the public employer, the court did not even undertake a balancing test, as there simply was no evidence that the status update and the comments disrupted the operations of the clerk’s office.

September 27, 2011 First Amendment

Online threats made by blogger were not protected by the First Amendment

State v. Turner, 2011 WL 4424754 (Conn. Super. September 6, 2011)

A Connecticut state court held that prosecuting a blogger for posting content online encouraging others to use violence did not violate the blogger’s First Amendment right to free speech.

Defendant was charged under a Connecticut statute prohibiting individuals from “inciting injury to persons or property.” Angry about a bill in the state General Assembly that would have removed financial oversight of Catholic parishes from priests and bishops, defendant posted the following statements to his blog:

[T]he Founding Fathers gave us the tools necessary to resolve [this] tyranny: The Second Amendment
[My organization] advocates Catholics in Connecticut take up arms and put down this tyranny by force. To that end, THIS WEDNESDAY NIGHT ON [my radio show], we will be releasing the home addresses of the Senator and Assemblyman who introduced bill 1098 as well as the home address of [a state ethics officer].
These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die.
If any state attorney, police department or court thinks they’re going to get uppity with us about this, I suspect we have enough bullets to put them down too

Defendant challenged the application of the state statute as unconstitutional. The court disagreed, finding there to be “little dispute that the defendant’s message explicitly advocate[ed] using violence.” Moreover, the court found the threatened violence to be “imminent and likely.” The blog content said that the home address of the legislators and government officials would be released the following day.

Though the court did not find that a substantial number of persons would actually take up arms, it did note, in a nod to 9/11, “the devastation that religious fanaticism can produce in this country.” As such, there was a sufficient basis to say that defendant’s vitriolic language had a substantial capacity to propel action to kill or injure a person.

September 13, 2011 First Amendment, Right of Publicity

Video game maker scores First Amendment win in right of publicity case

Hart v. Electronic Arts, Inc. — F.Supp.2d —, 2011 WL 4005350 (D.N.J. September 9, 2011)

Former Rutgers quarterback Ryan Hart sued Electronic Arts (“EA”), the maker of the very popular video game NCAA Football, alleging misappropriation of his right of publicity under New Jersey law.

EA moved to dismiss. Treating the filing as one for summary judgment, the court granted the motion. It held that EA’s right to free expression under the First Amendment outweighed Hart’s right of publicity.

The court recognized the tension between Hart’s right of publicity and EA’s free speech interest in seeking to incorporate Hart’s characteristics and other information about him into the game. The resolution of this tension is an unsettled area of the law — and the court no doubt recognized this. So in what appears to be an effort to reduce the likelihood that the appellate court will reverse, the judge applied two different tests, finding that EA’s First Amendment interests prevailed under both of them.

Hart’s claims

Hart claimed that the game misappropriated his right of publicity by, among other things, giving a virtual player of the game Hart’s physical attributes (including appearance, height and weight), the same jersey number, the same home state, and with wearing a helmet visor and left wrist band. Hart claimed the virtual player shared other features with him as well, such as speed and agility rating, and passing accuracy and arm strength.

Transformative test

The court first applied the “transformative test” to balance the right of publicity and First Amendment interests. This test borrows heavily from copyright law’s fair use analysis, and looks to the extra elements in the subsequent work. A court will look at:

whether the celebrity likeness is one of the “raw materials” from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question

In this case, the game included numerous creative elements apart from Hart’s image, such as virtual stadiums, athletes, coaches, fans, sound effects, music and commentary. Moreover, and perhaps more importantly, the court emphasized that EA created a mechanism in the game “by which the virual player may be altered, as well as the multiple permutations available for each virtual player image.”

The Rogers test

The Rogers test borrows from the trademark context to aid a court in determining whether First Amendment interests will trump a right of publicity claim. In applying this test, a court will make two queries: (a) whether the challenged work is wholly unrelated to the underlying work (or person asserting the claim), and (b) whether the use of the plaintiff’s name is a disguised commercial advertisement. In this case, the court found that one could not reasonably argue that Hart’s image was wholly unrelated to the game (it was college football, after all). But the use of Hart’s image was not a “disguised commercial advertisement.” Instead, the use of his image was part of an expressive act by EA that might draw upon public familiarity with Hart’s college football career but did not explicitly state that he endorsed or contributed to the creation of the game.

June 12, 2011 Anonymity, First Amendment

District judge stays magistrate’s order requiring identification of anonymous defendants

This is a post by Jonathan Rogers. Jon is a licensed attorney in California, with a focus on technology and entertainment law. You can reach him by email at jon@jonarogers.com or follow him on Twitter at @jonarogers.

Faconnable USA Corp. v. Doe, Slip Copy, 2011 WL 2173736 (D.Colo., Jun 2, 2011)

Faconnable issued a subpoena duces tecum to Skybeam, an Internet Service Provider, requesting identifying information about the users associated with two different IP addresses. A magistrate judge denied Skybeam’s motion for protective order, and required Skybeam to provide the requested information. Skybeam sought review of the denial of the protective order with the district court, asking for a stay of the magistrate’s order requiring the disclosure of the information. The court granted the motion to stay.

The court looked at four factors to determine whether it was appropriate to issue a stay against providing the information.

the likelihood of success on appeal (to the district judge)
the threat of irreparable harm if the stay or injunction is not granted
the absence of harm to opposing parties if the stay or injunction is granted
any risk of harm to the public interest

The court noted that if the last three factors are in a moving party’s favor, the first factor of likelihood of success is given less importance.

The court determined that if the stay were denied, the ISP would have to disclose the Does’ identities, which could impact their First Amendment interests to speak anonymously. However, if the stay were allowed, the ISP could preserve the information for production later, the only harm being a possible delay for Faconnable’s suit.

The court found that, on balance, the risk of losing First Amendment freedoms was a greater harm than delayed litigation.

November 2, 2010 Contracts, First Amendment, Fraud/Misrepresentation

Facebook victorious in lawsuit brought by kicked-off user

Young v. Facebook, 2010 WL 4269304 (N.D. Cal. October 25, 2010)

Plaintiff took offense to a certain Facebook page critical of Barack Obama and spoke out on Facebook in opposition. In response, many other Facebook users allegedly poked fun at plaintiff, sometimes using offensive Photoshopped versions of her profile picture. She felt harassed.

But maybe that harassment went both ways. Plaintiff eventually got kicked off of Facebook because she allegedly harassed other users, doing things like sending friend requests to people she did not know.

When Facebook refused to reactivate plaintiff’s account (even after she drove from her home in Maryland to Facebook’s California offices twice), she sued.

Facebook moved to dismiss the lawsuit. The court granted the motion.

Constitutional claims

Plaintiff claimed that Facebook violated her First and Fourteenth Amendment rights. The court dismissed this claim because plaintiff failed to demonstrate that the complained-of conduct on Facebook’s part (kicking her off) “was fairly attributable to the government.” Plaintiff attempted to get around the problem of Facebook-as-private-actor by pointing to the various federal agencies that have Facebook pages. But the court was unmoved, finding that the termination of her account had nothing to do with these government-created pages.

Breach of contract

Plaintiff’s breach of contract claim was based on other users harassing her when she voiced her disapproval of the Facebook page critical of the president. She claimed that in failing to take action against this harassment, Facebook violated its own Statement of Rights and Responsibilities.

The court rejected this argument, finding that although the Statement of Rights and Responsibilities may place restrictions on users’ behavior, it does not create affirmative obligations on the part of Facebook. Moreover, Facebook expressly disclaims any responsibility in the Statement of Rights and Responsibilities for policing the safety of the network.

Good faith and fair dealing

Every contract (under California law and under the laws of most other states) has an implied duty of good faith and fair dealing, which means that there is an implied “covenant by each party not to do anything which will deprive the other parties . . . of the benefits of the contract.” Plaintiff claimed Facebook violated this implied duty in two ways: by failing to provide the safety services it advertised and violating the spirit of the terms of service by terminating her account.

Neither of these arguments worked. As for failing to provide the safety services, the court looked again to how Facebook disclaimed responsibility for such actions.

The court gave more intriguing treatment to plaintiff’s claim that Facebook violated the spirit of its terms of service. It looked to the contractual nature of the terms of service, and Facebook’s assertions that users’ accounts should not be terminated other than for reasons described in the Statement of Rights and Responsibilities. The court found that “it is at least conceivable that arbitrary or bad faith termination of user accounts, or even termination . . . with no explanation at all, could implicate the implied covenant of good faith and fair dealing.”

But plaintiff’s claim failed anyway, because of the way she had articulated her claim. She asserted that Facebook violated the implied duty by treating her coldly in the termination process, namely, by depriving her of human interaction. The court said that termination process was okay, given that the Statement of Rights and Responsibilities said that it would simply notify users by email in the event their accounts are terminated. There was no implied obligation to provide a more touchy-feely way to terminate.

Negligence

Among other things, to be successful in a negligence claim, a plaintiff has to allege a duty on the part of the defendant. Plaintiff’s negligence claim failed in this case because she failed to establish that Facebook had any duty to “condemn all acts or statements that inspire, imply, incite, or directly threaten violence against anyone.” Finding that plaintiff provided no basis for such a broad duty, the court also looked to the policy behind Section 230 of the Communications Decency Act (47 U.S.C. 230) which immunizes website providers from content provided by third parties that may be lewd or harassing.

Fraud

The court dismissed plaintiff’s fraud claim, essentially finding that plaintiff’s allegations that Facebook’s “terms of agreement [were] deceptive in the sense of misrepresentation and false representation of company standards,” simply were not specific enough to give Facebook notice of the claim alleged.