Category: First Amendment

October 17, 2008 First Amendment

No injunction against transferring student over violent YouTube video

O.Z. v. Board of Trustees of Long Beach Unified School Dist., 2008 WL 4396895 (C.D. Cal. Sept. 9, 2008)

While school was out of session for spring break, seventh grader O.Z. collaborated with a classmate to make a slide show video dramatizing the murder of the students’ English teacher. Though O.Z. says she did not intend to share the slide show to anyone outside her home, she posted the video to YouTube. A couple months later, while doing a vanity search on YouTube, the English teacher encountered the video. Naturally distressed by the work, the teacher notified school authorities. Administrators suspended O.Z. and transferred her to a different school for her eighth grade year.

O.Z. filed suit and sought a preliminary injunction requiring the school district to re-enroll her at her former school. She argued that the slide show was protected speech under the First Amendment, and that the school’s discipline for it was unconstitutional. The court denied the motion for preliminary injunction.

In evaluating the likelihood of O.Z.’s success on her First Amendment claim, the court applied the standard set forth in Tinker v. Des Moines Ind. Comm. School Dist., 393 U.S. 503 (1969). The Tinker test provides that discipline over student speech is appropriate if school officials reasonably conclude that the speech will “materially and substantially disrupt the work and discipline of the school.”

O.Z. argued that the slide show was merely a joke and not a true threat. But the court found that the school could reasonably forecast substantial disruption of school activities given the violent language and unusual photos comprising the video slide show. Further, the decision to transfer O.Z. served not only to discipline her, but to protect the safety of the teacher.

The fact that O.Z. created the slide show outside of school was of little import in the circumstances. Comparing the present situation with Wisniewski v. Board of Educ. of Weedsport Cent. School Dist., 494 F.3d 34 (2nd Cir. 2007) and other cases involving off-campus conduct, the court found that the slide show created a foreseeable risk of disruption within the school. Such a finding was no doubt influenced by the ability of social media platforms like YouTube to facilitate wide distribution of content.

June 18, 2008 First Amendment

Kentucky settles banned blogger’s First Amendment challenge to Internet filtering policy

Ed. note: This is a guest post by Greg Beck, an attorney at Public Citizen in Washington, DC. Greg works on a variety of issues at Public Citizen, mostly involving Internet free speech, anonymity, and intellectual property. He was lead counsel for Mark Nickolas in his challenge to Kentucky’s ban on blogs. [More info…]

Political blogger Mark Nickolas yesterday settled his lawsuit against Kentucky, in which he challenged the state’s policy of blocking blogs on state-owned computers. The settlement provides that Kentucky will no longer target websites for restriction just because they are blogs, and will instead treat them in the same way it treats other websites with similar content. In other words, classifying a website as a “blog” is no longer a good enough reason to ban a site on the state’s computers.

Nickolas is the owner and primary author of BluegrassReport.org, a blog focusing on Kentucky news and politics and specializing in criticism of former Governor Ernie Fletcher. In 2006, the New York Times quoted Nickolas and noted the blog in an article about Fletcher’s indictment on charges of political corruption. The next day, without warning, the state reconfigured its Webwasher filtering software to block all access to blogs on state computers.

Nickolas filed suit and, represented by Public Citizen, raised two primary arguments that the policy was unconstitutional under the First Amendment. First, he argued that the policy was adopted specifically to target his blog and therefore constituted viewpoint discrimination, the worst form of government action under the First Amendment. Aside from the suspicious timing of the policy, Nickolas relied on internal state email showing that, despite public claims to the contrary, the governor’s office had ordered the ban on blogs and had specifically requested that the URL of Nickolas’s site be added to the “blacklist.” Moreover, Nickolas obtained the declaration of the former state official charged with administering the state’s computer systems at the time the policy went into place, who was told that the decision to ban blogs came from “high up” and was designed to hide the decision to ban Nickolas’s site in “a bunch of other stuff.”

Second, Nickolas argued that, even if the ban were not aimed specifically at his site, the state nevertheless violated the First Amendment by singling out blogs for special restrictions while ignoring other sorts of websites with comparable content. State records showed that the number of hits to news and political blogs from state computers was a small fraction of the millions of hits received each day by mainstream news sites like the Lexington Herald-Leader, the New York Times, and CNN.com. The state could offer no rational explanation for its decision to focus solely on blogs while ignoring other websites reporting the same information (especially since even blogs on mainstream news sites remained accessible). Moreover, Kentucky continued to allow access to many other categories of websites that served no work-related purpose and that received more traffic than blogs, including webmail, newsgroups and message boards, sports sites, shopping sites, financial and stock-trading sites, and others.

The case was the first to challenge a state’s decision to block access to blogs on state-owned computers. The most analogous case is the Fourth Circuit’s en banc decision in Urofsky v. Gilmore, where several Virginia professors sued over a law prohibiting access on state computers to sexually explicit materials. 216 F.3d 401 (4th Cir. 2000). The professors asserted that they needed access to the materials to fulfill their research, writing, and teaching responsibilities. That assertion, however, ultimately proved fatal to the professors’ claims when the court held that, because the professors were performing these duties in their capacities as state employees rather than as private citizens speaking on issues of public concern, their First Amendment rights were not implicated. Urofsky‘s reasoning suggests that if the professors had instead relied on restrictions to their personal use of state computers, the court would have evaluated the law’s constitutionality under the Supreme Court’s decision in Pickering v. Board of Education, 391 U.S. 563 (1968). Pickering and a line of cases following it established a balancing test for determining the constitutionality of a government’s restrictions on its employees’ speech, weighing the employees’ First Amendment interest in access to the restricted materials against the employer’s interest in maintaining order in the workplace.

Unlike the professors in Urofsky, Nickolas did not challenge the state’s restrictions on what employees could read pursuant to their job-related responsibilities. Kentucky, like many other employers, had long allowed its employees to use state-owned computers for personal as well as work-related purposes as long as that use did not interfere with performance of job responsibilities. Pursuant to Kentucky’s policy, employees could and frequently did read online news sites, including blogs, from workplace computers. The state’s decision to block access to the blogs while still allowing access to other news sites imposed on its employees its own preferences about which sources of news were acceptable and which were not. Nickolas argued that, even if the state had the power to entirely ban personal use of workplace computers (a proposition that Nickolas did not dispute), it did not have the power to selectively allow access to only those news sites it approved as sources of news. It was simply not a proper role for government, Nickolas argued, to decide which websites were legitimate news sites and which were not.

In the settlement finalized yesterday, Kentucky reserved its right to regulate use of computers in the workplace, but agreed to do so in a viewpoint-neutral manner that treats blogs the same as equivalent non-blog websites. Although a decision on the legality of blog-banning policies will be left for another day, the case should at least cause public employers to think twice before cutting their employees off from a large and important piece of the online political discussion.

June 17, 2008 First Amendment

Discipline of student for personal blog post did not violate First Amendment

Post on LiveJournal blog in which student referred to administrators by a derogatory name and was intended to incite anger in administration was justification for disqualifying student from participating in upcoming election of class officers.

Doninger v. Niehoff, — F.3d —-, 2008 WL 2220680 (2nd Cir. May 29, 2008)

Toward the end of Avery Doninger’s junior year in high school in 2007, she became quite involved in planning the upcoming “Jamfest,” a battle of the bands held at her high school. After learning that school administrators were likely to postpone Jamfest, Avery collaborated with some of her classmates to raise attention concerning the postponement and to pressure the school administrators to rethink the schedule.

One of Avery’s pressure tactics was to post an entry to her LiveJournal blog in which she referred to the school administrators as “douchebags” and encouraged others to contact the school principal to “piss her off” more. Eventually, administrators discovered the blog post and decided that Avery should not be permitted to run for Senior Class Secretary.

Lewis Mills High School, where Avery Doninger attended

So her mother as guardian and next friend sued the school district alleging violation of Avery’s first amendment rights. She sought injunctive relief, asking the court to either redo the election or give Avery all the rights and privileges of the student that was duly elected as class secretary. The district court denied the preliminary injunction. Avery’s mother sought review with the U.S. Court of Appeals for the Second Circuit. On appeal, the court affirmed the denial of the preliminary injunction.

The Second Circuit held that the district court did not abuse its discretion in denying the motion for preliminary injunction, though the appellate court’s analysis was a bit different. Applying the standard in the seminal Tinker case (Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)), the court held that keeping Avery out of the election was permissible. The blog post created a reasonably foreseeable risk of substantial disruption within the school.

The case is unique in that it did not deal with content created at school or under the auspices of the classroom, but rather was created on Avery’s personal time, outside of school, on her own computer. But the “off-campus character” of the posting did “not necessarily insulate [Avery] from school discipline.”

The court found it was reasonably foreseeable that Avery’s post would reach school property because the content directly pertained to school events, its intent was to get students to read and respond, and Avery knew school community members were likely to read the post. Moreover, on the point of substantial disruption, the post contained offensive language, was misleading, and did not comport with the standard of conduct expected of a school government participant.

Other coverage:

March 3, 2008 First Amendment

Court lifts injunction off of Wikileaks

Court Lifts Injunction Against Web Site Accused of Posting Confidential Banking Documents

Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F.Supp.2d 980, 2008 WL 554721 (N.D.Cal. February 29, 2008)

Switzerland-based Bank Julius Baer sued the Web site Wikileaks.org and the registrar of the domain name, and sought an injunction against the publication on the site of allegedly forged and confidential records of Bank Julius Baer customers. The court initially entered a permanent injunction agreed to between Julius Baer and the registrar, which called for a lockdown of the domain name’s registration. The court also, at first, entered a temporary restraining order (TRO) against the Web site, restraining the “display, use or dissemination of the property identified by [Bank Julius Baer] as private, personal banking information of its clients.”

In the days following the entry of injunctive relief, numerous parties seeking to be amicus curiae provided the court with additional information concerning the matter. This additional information led the court to reconsider the entry of the permanent injunction and the TRO. In an order dated February 29, 2008, the court dissolved both orders and denied Julius Baer’s motion for entry of a preliminary injunction.

Among the factors guiding the decision were the First Amendment and the efficacy of any injunction concerning the allegedly confidential banking information. The court noted the important free speech issues implicated, including the right to receive information as “a necessary predicate to . . . meaningful exercise” of free speech. It expressed concern that the previous publication of confidential information meant that “the cat is out of the bag,” and thus an injunction would be ineffective in protecting the privacy rights of the bank’s clients.

Further, the court found that the injunction in place was not the least restrictive means to achieve the plaintiff’s goals, and thus should be dissolved. On this point, the court suggested that a constitutionally-permissible injunction would call for limited redaction of information, while permitting the non-confidential parts of the documents to be displayed online.

January 29, 2008 Computer Crime, First Amendment

Court rejects constitutional challenges to obscenity statutes in prosecution of adult website owner

U.S. v. Little, No. 07-170, 2008 WL 151875 (M.D. Fla. January 16, 2008)

The operator of the Max Hardcore website was indicted under 18 U.S.C. §§1462 and 1465 for distributing allegedly obscene video files which agents downloaded in Tampa, Florida. Max Hardcore moved to dismiss the indictment, raising a number of constitutional challenges to the prosecution. The court rejected each of the defendant’s arguments and denied the motion.

Statutes not facially unconstitutional

The court declined to accept the defendant’s argument that because of the evolving nature of substantive due process law, prior Supreme Court decisions upholding the federal obscenity statutes were no longer valid. It also refused the defendant’s argument that the constitutional right to privately posses obscene materials should translate into a corresponding right to distribute such material.

Statutes not unconstitutional as applied

The defendant also launched a couple of challenges to the application of the Miller test, set forth in the Supreme Court’s decision of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973). Under the Miller test, the finder of fact determines whether material is obscene by applying the following test: (a) Whether “the average person, applying contemporary community standards’” would find that the work taken as a whole, appeals to prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Max Hardcore’s challenge to the Miller test dealt with the requirement that the works at issue be “taken as a whole.” The defendants argued that because of the interconnected nature of the Web, it would be impossible to know what the term “taken as a whole” means, and it would similarly be impossible to determine the community standards against which the works should be evaluated. At the very least, the defendant argued, the entire Max Hardcore site should be considered the work “taken as a whole,” and not just the individual video files.

With little analysis, the court sided with the government, holding that the individual files – and not the whole website – should be the works “taken as a whole.” And the court concluded that the absence of a universal community standard was okay. Citing to U.S. v. Bagnell, 679 F.2d 826 (11th Cir. 1982), it held that “[i]t is constitutionally permissible to subject defendants in obscenity prosecutions to varying community standards of the various judicial districts into which they transmit obscene material.”

November 28, 2007 Anonymity, First Amendment, Litigation

Arizona state court adopts three part test for unmasking anonymous online speakers

Test adds an additional “balancing of the competing interests” element to the Cahill test

Mobilisa, Inc. v. Doe, — P.3d —-, 2007 WL 4167007 (Ariz. App. November 27, 2007)

Plaintiff filed suit in Washington state court against an anonymous (“John Doe”) defendant which it accused of violating the Computer Fraud and Abuse Act and the Stored Communications Act. Doe allegedly accessed the plaintiff’s computer system and obtained a copy of an “intimate” email which he forwarded to a number of people.

Plaintiff served a subpoena on Doe’s Arizona-based email provider, seeking to uncover Doe’s true identity. The email provider and Doe individually, through counsel, objected, but the Arizona court ordered that Doe’s identity be revealed. The court looked to the 2005 case of Doe v. Cahill which requires (1) that the anonymous party sought to be unmask be given notice of the proceedings, and (2) that the party seeking the identity of the anonymous party put forth sufficient facts to survive a motion for summary judgment.

Doe appealed the lower court’s order which required he be identified. On appeal, the Arizona Court of Appeals remanded the matter back to the trial court. It held that although the court correctly applied the two Cahill factors, it should have considered a third factor, namely, a balancing of the relative interests of the parties. Consideration of this third factor, the court held, would help ensure that the important First Amendment rights at issue in anonymous speech cases would be adequately protected.

June 25, 2007 First Amendment

Massachusetts can’t prosecute posting of illegal web video

The recent case of Jean v. Massachusetts State Police addressed the question of whether the First Amendment prevents law enforcement officials from interfering with an individual’s Internet posting of an audio and video recording of an arrest and warrantless search of a private residence, when the individual who posted the recording had reason to know at the time she accepted the recording that it was illegally recorded.

Mary T. Jean operated a website critical of her community’s former district attorney. One of the visitors to her site contacted her, and sent a videotape of eight Massachusetts state police officers conducting a warrantless search of the visitor’s home. The video was made by a “nanny cam” in the home.

After Jean was threatened with criminal prosecution under the state’s wiretap law, she sought a temporary restraining order against the police and the attorney general, to prevent her from being arrested. The lower court granted the motion, relying on the Supreme Court case of Bartnicki v. Vopper, 532 U.S. 514, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001).

It held that Jean had demonstrated a likelihood of success on the merits of her First Amendment claim, that irreparable harm would result from the absence of an injunction, and that the balance of burdens and public interests weighed in her favor. The court noted that although the tape may have been recorded in violation of the state law, Jean played no part in the recording of the video, she had “obtained the tape lawfully,” and the videotape related to a “matter of public concern.”

On appeal, the U.S. Court of Appeals for the First Circuit affirmed the entry of the temporary restraining order. It found the case “materially indistinguishable” from Bartnicki, concluding that publication of the video was entitled to First Amendment protection.

Jean v. Massachusetts State Police, — F.3d —-, 2007 WL 1793126 (1st Cir. June 22,2007)

April 11, 2007 First Amendment

Student’s First Amendment rights violated in conviction over MySpace postings

State v. A.B., No. 67A01-0609-JV-372 (Ind. App. April 9, 2007) [Download the opinion.]

A middle school girl in Greencastle, Indiana created a bogus MySpace profile impersonating her school’s principal. She invited one of her classmates, A.B., to be a “friend,” and A.B. posted an obscenity-laced (yet surprisingly grammatically accurate) comment that was critical of the school’s policy against certain types of body piercings. A.B. also created a group on MySpace that was likewise critical of the principal, and posted content there.

The State filed a delinquency petition against A.B., alleging several violations of the state’s harassment statute, Ind. Code § 35-45-2-2(a)(4). The trial court issued an order adjudicating A.B. to be a delinquent child, and gave her nine months of probation.

A.B. sought review, arguing, among other things, that the web content she created was political speech protected by the First Amendment. On appeal, the court agreed and reversed the adjudication of delinquency.

The court applied a two-part test to review the constitutionality of the application of the harassment statute. It determined (1) whether state action had restricted A.B.’s expressive activity, and (2) whether the restriction constituted an abuse of the right to speak. The court answered both of these questions in the affirmative.

In determining that the restriction was an abuse of A.B.’s right to speak, the court did “not engage in speculation as to what the speaker might have meant,” but employed an objective standard to determine that the speech was to be understood as political speech.

This form of speech is to be protected, absent some “particularized harm analogous to tortious injury or readily identifiable private interests.” The court found that the state presented no evidence of this sort of particularized harm, thus the constitutional right to speak had been contravened.

April 4, 2007 First Amendment

Josh Wolf freed from jail

For the past several months the controversy around video blogger Josh Wolf has swirled, as he served time in a federal corrections center for contempt of court. Wolf chose to be incarcerated last year rather than turn over to the feds footage of a San Francisco political demonstration. The story has placed the idea of citizen journalism at front and center. (I mentioned Wolf’s situation in a piece I did for Viral on Veoh which you can view here.)

Yesterday, Wolf and the federal prosecutors worked out a deal where Wolf turned over the footage and was released from custody. Read more about Wolf’s story and release here.

March 22, 2007 First Amendment

COPA held unconstitutional (yet again)

In 1997, the Supreme Court struck down portions of the Communications Decency Act [Reno v. ACLU, 521 US 844 (1997)] which sought to put strict prohibitions on the distribution of pornography on the Intenret. The following year, Congress passed the Children’s Online Protection Act (“COPA”), which was another attempt to cut off Internet pornography at its source.

Shortly after COPA was passed, the ACLU and others challenged it on constitutional grounds. The entry of a preliminary injunction made it all the way up to the Supreme Court, which affirmed. Discovery in the matter before trial led to last year’s privacy maelstrom surrounding the request of the Government for Google to turn over massive amounts of search data. [More on that topic here.]

The case proceeded to trial in November of last year, and earlier today, Judge Reed, at the end of an 84 page opinion, issued a final adjudication, which reads as follows:

AND NOW, this 22nd day of March, 2007, upon consideration of the evidence, testimony of the witnesses and experts, and the arguments of counsel presented during the trial of this matter and the pre and post-trial submissions by the parties … , it is hereby ORDERED, that based upon the Findings of Fact and Conclusions of Law detailed above:

(1) The Child Online Protection Act, 47 U.S.C. § 231, is facially violative of the First and Fifth Amendments of the United States Constitution; and

(2) Defendant Alberto R. Gonzales, in his official capacity as Attorney General of the United States, and his officers, agents, employees, and attorneys, and those persons in active concert or participation with defendant who receive actual notice of this Order are PERMANENTLY ENJOINED from enforcing or prosecuting matters premised upon 47 U.S.C. § 231 at any time for any conduct.

This is a FINAL ORDER and this case is CONCLUDED.

S/ Lowell A. Reed, Jr.
LOWELL A. REED, JR., S.J.

Download the entire opinion here.

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