Archive | First Amendment

A UNC Student’s Summer Experience at the Chilling Effects Clearinghouse, a Project of the Berkman Center for Internet and Society

Berkman Center LogoLet me start by saying that I really like information. Numbers, lists, facts, data, trivia. I like them all. I’m an information junkie. I also happen to love the First Amendment. Given this, it’s not surprising that I was so excited to spend this past summer interning with the Chilling Effects Clearinghouse at the Berkman Center for Internet & Society. Chilling Effects collects threats to free expression online, mostly in the form of DMCA take-down notices and similar intellectual property infringement claims, although Chilling Effects receives notices of other threats to free speech as well. All of that information is compiled into a searchable database. Being able to work with Chilling Effects, to explore this database, and to see “under the hood” was a great way to combine my interest in data with my passion for the First Amendment.

The summer was jumpstarted with a joint project involving myself and the two other Chilling Effects interns. Our task was to track down questionable trademark infringement claims in the database. We sorted through hundreds of these claims, looking to see if the people who filed them had concerns beyond trademark infringement — for example, someone whose real issue might be closer to a defamation claim than a trademark claim, but the latter might more quickly and effectively take down the content in question, since defamation claims can be costly to pursue and difficult to win. In other words, we scoured the database looking at potentially fraudulent trademark infringement claims that were being used to stifle free expression online. Once we wrapped up our search we worked with Jeff Hermes at the Digital Media Law Project to turn our findings into content for a presentation he was giving. One of the best parts of summer at the Berkman Center was a project like this one because I got to work with the other interns, all of whom were passionate, curious, and eager to spend the summer researching and working on a variety of Berkman projects.

On top of working with these great people, interns attended weekly presentations by leaders in the technology and policy fields. One week we got to hear from NYU privacy scholar Helen Nissenbaum, who spoke about transparency and privacy issues in accessing online court records. Earlier in the summer many of us attended a book launch for ReWire: Digital Cosmopolitans in the Age of Connection by Ethan Zuckerman of the MIT Center for Civic Media. But perhaps the most fun “intern hour” was an interactive demonstration of Google Glass. We might have looked ridiculous, but we loved being among the first to check out this new wearable computing technology.

The summer flew by. When news broke about the NSA’s PRISM program, I started reading everything I could about the issue and turned my research into a blog post featuring a timeline of Edward Snowden’s leaks and related news about the program. The best part about the blogging for Chilling Effects was that I got to use the Chilling Effects database to add color, facts, and figures to the stories that were already out there. For example, when Twitter released it’s annual Transparency Report in July, I combined their reported data with information stored in the Chilling Effects database. By layering the Chilling Effects’ data on top of Twitter’s, it was easy to start to see the bigger picture for how Twitter handles attempts by countries to censor tweets or account holders.

My summer internship at the Berkman Center gave me the opportunity to work with an area of the law that I am passionate about and introduced me to dozens of new friends and peers who are equally excited about the future of technology, law, and policy. It was by far the most exciting and memorable summer I’ve had and it was an honor to work with some of the world’s leading tech and policy thinkers. Summer 2014 Berkman Center internship applications just opened up and are being accepted until February 16.  If you’re interested applying you can find more information on the Center’s Internship page here.

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Free Speech Assumptions and the Case of Netflix

From left to right: Haben Girma, Harvard Law graduate; Elizabeth Ekstrand, daughter of the author; Victoria Ekstrand, UNC asst. professor; and Katie Savage, president of Advocates for Carolina.

From left to right: Haben Girma, Harvard Law graduate; Elizabeth Ekstrand, daughter of the author; Victoria Ekstrand, UNC asst. professor; and Katie Savage, president of Advocates for Carolina.

There are two (among many) huge assumptions we make when we speak of a right to free speech or free expression.

The first assumption is that such speech can actually be formed.

The second is that such speech will be heard.

For the disabled, neither assumption is a given.  The disabled who can speak are often not heard. Their voices are either lost in a crowded marketplace focused on elite influencers or their speech is lacking or misunderstood because of the nature of their disability.

How then do we conceptualize a right of free speech for the disabled? Can we think about the Americans with Disabilities Act (ADA) in connection with a right of free expression? Do we have any case law that might lead us to consider such a connection? (The short answer to this last question, I think, is “yes.” More on that below.)

Haben Girma, the first deaf/blind student to graduate from Harvard Law School, had me reflecting on these questions during her visit last month to UNC. Haben, who was invited by Advocates for Carolina, a student group formed to reflect on life for the disabled on the UNC campus, spoke about her disability and her story to WUNC and to more than 100 students gathered in the Student Union. She now spends her days as a Skadden Fellow at Disability Rights Advocates in San Francisco, where she works to increase the accessibility of digital instructional materials at colleges and universities.

Like others who have struggled to make a life for themselves amidst an able-bodied culture, Haben refused to allow society to shut her out. She has spent her young life problem-solving around a profound inability to engage in the marketplace of ideas as seamlessly as the rest of us do. While certainly no law has directly infringed Haben’s right to free speech, it is very clear that her speech experience has been profoundly different than the experiences of most U.S. citizens.

That raises the question of government responsibility: What is the state’s role, if any, in assuring access to the marketplace of ideas for those whose access is impaired by a physical and/or mental limitation? And how can digital and online media technologies contribute to that access?

It’s a question I’m interested in thinking more about after Haben’s visit and in the wake of a settlement last year between Netflix and the National Association of the Deaf. The Netflix case revolved around the movie service’s “Watch Instantly” on-demand service, which failed to provide closed captioning on all content. The case ended with a consent decree that mandated Netflix provide captions on all streamed programming by 2014.

Federal District Court Judge Michael Ponsor rejected Netflix’s argument that the American with Disabilities Act (ADA) did not require Internet Service Providers and other digital media providers to make accommodations:

“In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.”

In other words, the Internet’s marketplace of ideas must and should be accessible to the disabled. This expanded view of the ADA bears watching for its First Amendment implications going forward. In the meantime, I’ll be sending the link to this post to Haben, hoping that she will post a response below.

 

 

 

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New York AG wants Airbnb to turn over user information

airbnb

Short-term rental website Airbnb provides an alternative to hotels and makes it easier for people to sublet their homes while they’re out of town, but its New York users could be in legal trouble.

The state of New York has subpoenaed Airbnb in an attempt to prove that some users renting out rooms on the site have violated state rental and tax laws. The site, which allows users to rent or sublet their homes on a short-term basis, is fighting the state’s request for the names, email addresses, physical addresses, gross revenue, and tax-related communications of its New York users.

The state of New York is attempting to prove that Airbnb users have violated occupancy tax laws and a state law against subletting a dwelling for fewer than 30 days. Its subpoena applies to all “hosts” who rent New York accommodations on Airbnb and do not stay in the accommodations during the rental period.

Airbnb has filed a motion to quash the subpoena, calling it an overly broad “fishing expedition.”

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@NatSecWonk: Free Speech and the Twitter Account that Sank a National Security Adviser

Jofi-JosephWhen a White House insider takes to Twitter, he loses his job – but not his First Amendment rights.

For two years, Jofi Joseph, the director of nuclear nonproliferation issues on the White House National Security Council staff, tweeted snarky remarks about politicians, reporters and colleagues using the anonymous Twitter handle @NatSecWonk. Last Tuesday evening, The Daily Beast reported that the White House, having learned of Joseph’s activities, relieved him of his duties.

Within an hour of the article’s publication, Twitter users flocked online to question the White House’s response. Many were critical, questioning whether Joseph’s firing was a violation of his First Amendment rights.

As a former government employee and mass communication graduate, my immediate reaction was that the accusations in these tweets were unfounded and incorrect. A knowledgeable government employee knows that he or she can’t speak negatively and publicly about his or her employer without repercussions. But taking a step back, it’s clear that the ramifications of punishing government employee speech are significant and that firing a government employee is not a simple solution to the problems an outspoken employee creates. What about whistleblowers? What about the importance of political speech? Did Joseph give up his right to voice his opinions on important public topics when he joined the Obama Administration? And how does Joseph’s situation compare to the existing landscape of government employee speech cases?

Modern government employee speech law in the United States traces its roots to Pickering v. Board of Education of Township High School District 205, Will County, Illinois (1968). At issue in Pickering was the firing of an Illinois school teacher whose comments criticizing the Township Board of Education were published in a letter to the editor of a local newspaper. Marvin L. Pickering criticized the board’s management of bond funds and accused the board of silencing teachers’ opinions about a bond proposal. In a board of education hearing, the board found that many of Pickering’s accusations were false and damaged board members’ reputations. Pickering was fired. He appealed the board’s decision to the Circuit Court of Will County, Illinois, which supported the school district. This case was appealed to the U.S. Supreme Court, where the Court held that while public employees do have rights as citizens to speak about issues of public concern, this right must be balanced against the interest of the State, as an employer, in efficiently providing public services. Further, regarding the falseness of his claims, the Court held that Pickering’s comments would have to have been knowingly or recklessly false in order for him to be punished, under the then-recently decided New York Times v. Sullivan (1964) case, which established the actual malice standard for public officials in defamation cases. For these reasons, the Court ruled in Pickering’s favor and overturned the lower court’s ruling.

In two subsequent cases, Connick v. Myers (1983) and San Diego v. Roe (2004), the Court clarified that a public employee’s speech about private issues was less protected than speech about public issues. As such, the Court held that the balancing outlined in Pickering need only be applied after establishing that the speech in question was about issues of public concern. Most recently, in Garcetti v. Caballos (2006)the Court held that statements made as part of an employee’s official duties, such as in memos, meetings, or public briefings, do not receive First Amendment protection against disciplinary action. Rather, the Court held that the First Amendment protects only speech that the employee makes as a private citizen.

In applying these decisions to Joseph’s situation, it is first necessary to see if his tweets were about matters of public concern, as established under the Court’s decisions in Connick and San Diego. If so, the Pickering balancing test, in which the government interest in restricting or punishing speech is weighed against the employee’s right to speak, is applied.

Though Joseph’s Twitter account is no longer active, copies of his tweets are still available online. The tweets largely fall into two categories.

1) Comments or criticisms about public officials or policy

@NatSecWonk 14 Sep Peeps, we need more backstory on who was with Kerry during these three long days of negotiations. “Arms control experts” doesn’t cut it. 

@NatSecWonk 15 Sep @ EricDKoch Look, Issa is an ass, but he’s on to something here with the @ HillaryClinton whitewash of accountability for Benghazi.

2) Snarky remarks about journalists, White House staffers and policy makers

@NatSecWonk 18 Jul 12 Was Huma Abedin wearing beer goggles the night she met Anthony Wiener? Almost as bad a pairing as Samantha Powers and Cass Sunstein ….

@NatSecWonk 25 Jan 12 If Gingrich wins the nomination, all those GOP foreign policy weenies who jumped on Romney’s bandwagon, er policy teams, will be so screwed!

In the first examples above, Joseph implies that the Obama administration should release more information about John Kerry’s negotiations around the elimination of Syria’s chemical weapons program. Joseph also states that Hillary Clinton deserves some blame for the State Department’s handling of the 2012 crisis in Benghazi, in which U.S. ambassador Christopher Stevens was killed. These issues are issues of public concern and subject to the balancing outlined in Pickering. However, the tweets in the latter group do not appear to relate directly to issues of public concern and, in the case of public employees, can result in disciplinary action.

Writing for the majority in Pickering, Justice Marshall stated that the speech of teachers, informed by their expertise in the field, allows them to contribute a unique and important perspective to debate over public school funding. Did Joseph’s knowledge of national security issues provide him a similarly unique perspective? Tweets from the @NatSecWonk account don’t suggest that. For example, his statement about Benghazi echoes what many politicians and members of the media already were saying. Did Joseph knowingly or recklessly make false statements? It’s not clear that he made false statements at all. It is immediately clear that his statements were rude and in bad taste, but they are, for the most part, statements of opinion and not provable as fact. Notably, it also has been reported that Joseph did not use the account to disseminate classified information.

It is also important to note that Garcetti is not relevant here. No one would argue that Joseph’s tweets as @NatSecWonk were made as part of his job duties.

Other commentators have suggested that the content of Joseph’s speech doesn’t matter because he was an “at-will employee” and can be fired for any reason. Thankfully, this issue is not complicated. Yes, many government employees, including most in state governments such as North Carolina, are “at-will,” meaning they are not protected by the termination processes or requirements for a showing of just cause that often are included in collective bargaining agreements. At-will employees can be dismissed at any time for legal reasons, but still cannot be dismissed for illegal reasons, such as exercising their right to free speech. The UNC School of Government offers an explanation of “At-Will Employment” including a list of federal protections for government employees. These protections make it illegal to dismiss at-will employees based on factors such as race, religion and the results of unreasonable searches.

Because Joseph’s status as an at-will employee does not diminish his constitutional protections, we can return to the content of his speech. Do the issues raised by Joseph outweigh the needs of the White House to do its business? I would argue that they do not. After reading many of the @NatSecWonk tweets, it is clear that Joseph has palpable disrespect for his coworkers, which would likely impede any working relationship. His comments on issues of public concern did not add much to the existing conversations on issues of interest to the White House. There might be an occasional tweet about his opinion on the administration’s handling of the Benghazi crisis that would outweigh the needs of the White House, but these are few and far between.

So where does that leave us? And what does that mean for Joseph and the future of government employee speech? In my analysis, most of Joseph’s tweets contain content for which he can clearly be punished. There are a few things that are protected by the First Amendment. Does that small amount of speech outweigh the mass of insubordinate content? Probably not, but as David Ardia, co-director of the UNC Center for Media Law and Policy, recently observed, “public employee speech doctrine is very murky.”

John Remensperger is a digital strategist at the UNC Center for Media Law and Policy. Before moving to North Carolina from California, John spent five years managing municipal arts and recreation programs. John’s research interests include the use of new media in government and political communication, and in the promotion of civic participation.

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Symposium will contemplate 50 years of press freedom

Almost 50 years ago, Justice William J. Brennan Jr., writing for the Supreme Court, expressed “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Tomorrow, the UNC First Amendment Law Review will bring together media law experts to reflect on and debate just how free the press has been to cover and criticize public officials since the landmark ruling in New York Times Co. v. Sullivan, which established the “actual malice” test. Under the test, a public official suing for libel must prove that defamatory content was published with “knowledge of falsity” or “reckless disregard for the truth.”

As a result of “New York Times Actual Malice,” the press and the public are free to criticize government officials’ and public figures’ job performance, scrutinize their personal lives, and even attack their character.

Some think the Court went too far when it held that falsity was not enough to make a speaker liable for defaming a public official. Others say it hasn’t gone far enough and should protect the publication of any false content when reporting on matters of public controversy.

The First Amendment Law Review Symposium will consist of two panels of First Amendment and media law scholars including:

  • Vincent Blasi, Corliss Lamont Professor of Civil Liberties at Columbia Law School
  • Bruce Brown, Executive Director of the Reporters Committee for Freedom of the Press
  • Ronald Cass, Dean Emeritus of Boston University School of Law
  • Stuart Benjamin, Douglas B. Maggs Chair in Law at Duke Law
  • George Wright, Michael McCormick Professor of Law at Indiana University
  • Ashley Messenger, Associate General Counsel for National Public Radio

The event will begin with a keynote address from Ken Paulson, President and CEO of the First Amendment Law Center, followed by a 30 minute Q&A.  The morning panel will then examine the impact of the Sullivan decision on the media, while the afternoon panel will discuss its broader implications on First Amendment jurisprudence.

Visit the event page for more information.

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