As part of a new weekly feature on our blog, I’ll post the highlights from the Center’s and my Twitter feeds.
Here is what had my attention on Twitter this week:
Ads on Wheels: More First Amendment Problems in the Triangle
Nearly a year after an advertisement on Chapel Hill city buses sparked controversy, the City of Raleigh is experiencing its own public outcry over transit advertising. The Humane Society of the United States has filed suit against the Raleigh Transit Authority over the agency’s rejection of an advertisement featuring pigs in confined gestation crates used on factory farms.
The proposed ad would have wrapped around the exterior of buses and said, “How would you like to spend the rest of your life in a space as small as a bus seat? It’s what Big Pork wants for pigs. But together we can change that.” The Raleigh Transit Authority rejected the ad because it was “too negative.”
The complaint, filed in the U.S. District Court for the Eastern District of North Carolina, alleges that the Raleigh Transit Authority’s rejection of the ad is a violation of the Humane Society’s First and 14th Amendment rights. Under the RTA advertising policy, some ads are prohibited, including those for illegal products or services, alcohol or tobacco, or advertisements that are false or misleading. Additionally, advertisements that deal with political issues, causes, or candidates, or that advocate or oppose a particular religion, belief, or creed, are not permitted.
But what about advertisements that are simply “too negative”? There is nothing in the RTA policy about the agency’s authority to reject advertisements based on their negative messages. Emails between the RTA and the Humane Society show that the rejection took place because the ad was “too negative,” not because it was a political issue or cause. That puts the RTA in a pinch, because its decision to reject the ad was not in line with its own policy. However, one question that will need to be addressed is whether the Humane Society’s advertisement could fit into the political issues/causes category of prohibited advertisements. If the better treatment of pigs is an example of a political cause, then the RTA could refuse to accept the advertisement, and doing so would be in line with RTA policy. But that’s not what happened. The RTA refused the ad because the agency was uncomfortable with the negative tone of the Humane Society’s message.
The Supreme Court has dealt with the issue of transit advertising and the First Amendment only once, in Lehman v. City of Shaker Heights (1974). In that case the Court held that a public forum had not been created in Shaker Heights, Ohio, buses, and that the city’s refusal to permit a political candidate advertisement was constitutional. However, the Supreme Court also has been clear that governments may not discriminate against speech based on viewpoint.
Controversial transit advertisements have been popping up across the nation over the past few years, with several cases going before federal courts in Washington, D.C., California, and Pennsylvania. The subjects of these ads have ranged from Israel to Islam to inmate voting rights. Two recent federal district court opinions explored viewpoint discrimination as it applies to transit advertising, concluding that the refusal to permit ads calling for support of Israel was unconstitutional viewpoint discrimination.
The ad in question in Raleigh already has been featured on buses in Des Moines, Iowa, and Washington, D.C. “without controversy,” according to the Humane Society. The ads’ impact in North Carolina could be significant, however, since N.C. is second in the nation in pork production.
To read more about the contentious transit ads in Chapel Hill last year, see this blog post on the issue.
Liz Woolery is a third-year Ph.D. student studying legal and regulatory issues in mass communication at the UNC School of Journalism and Mass Communication.
Call for Papers: New York Times v. Sullivan, A Fifty Year Retrospective
On October 12, 2013, we will be partnering with the First Amendment Law Review to help host their annual symposium, which will be focused on the 50th anniversary of the Supreme Court’s landmark ruling in New York Times v. Sullivan. We’ll post more information about the symposium in the next few weeks, but if you are a scholar who writes in this area, you may be interested in submitting a paper to the First Amendment Law Review (note: the deadline is October 1). Here is their call for papers:
The First Amendment Law Review is hosting its annual symposium in Chapel Hill, NC, on October 12, where scholars from across the country will participate in a discussion focusing on the 50th anniversary of the Supreme Court’s landmark ruling in New York Times v. Sullivan. In conjunction with our event, the First Amendment Law Review will also publish a symposium edition featuring articles related to Sullivan’s direct impact on the media, and articles that analyze Sullivan’s effect on a broader scale.
We are seeking articles that will be published in Volume Twelve of the First Amendment Law Review alongside work by some of our symposium panelists, which include Bruce Brown, Vincent Blasi, Ronald Cass, Stuart Benjamin, George Wright, and Ashley Messenger. As the only legal journal in the country dedicated solely to the First Amendment, the First Amendment Law Review is an ideal platform for those looking to contribute to First Amendment scholarship, and we have a tradition of hosting excellent symposia with impressive keynote speakers such as Erwin Chemerinsky and Floyd Abrams. This year, we are pleased to announce that Geoffrey Stone, Distinguished Service Professor of Law at the University of Chicago, will give our keynote address.
If you would like to be considered for publication in our symposium edition, please submit an article of at least twenty pages, including footnotes, by October 1 to falr@unc.edu. Those selected for publication will be invited, but not required, to attend our symposium on October 12, and will be recognized at the event.
EFF Weeks 8-9: How the NSA’s mass data collection violates the First Amendment
EFF filed a lawsuit last Tuesday against the National Security Agency for its mass collection of Verizon customers’ phone records. First Unitarian Church of Los Angeles v. National Security Agency was filed on behalf of a diverse group of 19 organizations and focuses on an important First Amendment right: the right of association. Protecting associational freedom is increasingly important in the context of the government’s collection of metadata — pieces of information, such as the numbers a person calls, which, when put together, reveal information about that person’s associations, including organizations he or she belongs to.
Background: The First Amendment Freedom of Association
The First Amendment right of association is based on the freedom to assemble without government interference. In a landmark 1958 case, NAACP v. Alabama, the Supreme Court recognized that government access to people’s associations creates a “chilling effect” — it makes people less likely to associate with certain organizations. In NAACP v. Alabama, the Court held that it would violate NAACP members’ First Amendment rights for the state to force the organization to turn over its membership lists. The right to organize and assemble without government interference is so fundamental because these associations are forums for political expression and the advancement of ideas — the type of speech the First Amendment was designed to protect.
While discussions about data privacy tend to focus on the Fourth Amendment, First Amendment rights are equally implicated in electronic surveillance. The ability to keep one’s associations private is critical to preserving the right to freely associate.
The case against the NSA
EFF’s case argues that when the NSA collects data about the numbers a person calls and how often, that data can reveal a person’s protected associations, and the surveillance constitutes an interference with the right of association. To illustrate that point, EFF joined with 19 different organizations from across the political spectrum that focus on a range of issues, many of which conflict with one another. These organizations include churches, marijuana legalization advocates, and gun owners’ groups, to name a few. Many members of these organizations hold controversial views and depend on the ability to express those views as a group, but fear individual exposure.
What do the plaintiffs have to hide?
The potential chilling effects and the need for privacy are perhaps best expressed by Gene Hoffman, Chairman of Calguns Foundation, a gun ownership rights group. The group runs a hotline for gun owners who have questions about California gun laws. “California is a difficult place to live if you’re a gun owner,” Hoffman said in a press conference on EFF’s new case. “People are turning to our hotline specifically because they didn’t want to have a record created.” He mentioned that the people who have the most at stake might be those who belong to multiple organizations with potentially conflicting views: “If you are a supporter of marijuana legalization…and you were known to have phoned both [our hotline] and NORML [a marijuana legalization advocacy group], it could cause people to ask questions you didn’t want to have asked.”
New developments: Congress rejects legislation to curtail NSA surveillance
In a close vote yesterday, the U.S. House of Representatives voted against an amendment that would have cut funding for the NSA’s mass surveillance of call records. By striking funding for bulk data collection, the bipartisan amendment would have required Foreign Intelligence Surveillance Court orders to pertain to a person already under investigation. The current legal authority doesn’t require the FISA court to make a showing of suspicion that a person has engaged in terrorism or any illegal activity before it collects data. This lack of standards has allowed the NSA to engage in the mass collection of all Americans’ phone call records. The amendment failed in an extremely close vote of 205 to 217 and garnered both Democratic and Republican support.
Off-topic: Cute pictures of ducks
It’s not uncommon to have three dogs in the office on any given day, but last week one of EFF’s technologists brought these ducklings to work.
EFF weeks 6-7: States attempt to censor adult advertising online
Ever since “adult” advertising moved from the back page of The Village Voice to the Internet, some government officials have been trying to censor it. A recent attempt by the New Jersey legislature was blocked by a federal judge on June 28. Chief Judge Dennis Cavanaugh of the U.S. District Court for the District of New Jersey signed a temporary restraining order preventing New Jersey from enforcing a law that would have taken effect July 1. The New Jersey law addressed a serious problem — human trafficking and the exploitation of minors — but it did so in a way that unnecessarily and impermissibly burdened a large amount of lawful speech.
The statute would impose severe criminal penalties on any party that “directly or indirectly” caused to be disseminated sex ads containing images of minors. The Act’s broad language would make Internet service providers (ISPs) such as Backpage.com, Craigslist, and the Internet Archive criminally liable for such ads posted by third parties, even if the ISPs didn’t know the person pictured in the ad was a minor.
In 2010, Craigslist removed its “adult services” category after it was pressured to do so by a group of state attorneys general. Those ads moved to Backpage.com, which has since resisted similar pressure to remove adult ads. EFF is representing another plaintiff, the Internet Archive, which acts as a library for the Internet by archiving and displaying as much content as possible from other websites.
Laws that chill a significant amount of speech, even if they address important problems, are unconstitutional under the First Amendment if they are not narrowly tailored. To be narrowly tailored, a law must burden as little lawful speech as possible while still achieving its goals. The New Jersey statute is not narrowly tailored to combat child sex trafficking. On one hand, it punishes people who “knowingly” purchase or author sex ads depicting minors. This part of the law goes after the bad actor, and backpage.com has said that it supports such measures. However, another part of the law punishes parties who “indirectly” cause such ads to be disseminated, which would include any website on which third parties can post ads. It is not a defense under this law that the ISP did not know that the ad depicted a minor.
The law also conflicts with Section 230 of the Communications Decency Act, a federal law which shields ISPs from liability for content posted by third parties. Under Section 230, for example, Youtube is not liable for videos posted by users that infringe copyrights or otherwise break the law.
To comply with the New Jersey statute, an ISP would have to manually inspect every item posted on its website and obtain identification for every person pictured who could potentially be a minor. This is an impossible task for websites like Craigslist and Backpage.com, where millions of users post content daily, and for the Internet Archive, which attempts to house every webpage that ever existed. It would likely force advertising services to ban adult or sexual ads altogether, which is probably what the legislature was aiming for.
Now that New Jersey is temporarily restrained from enforcing its statute, I’m writing a brief explaining why the judge should issue a permanent injunction.
San Francisco’s Rally to Restore the Fourth Amendment
Last week I marched in the Fourth of July Rally to Restore the Fourth. Hundreds of people walked down Market Street from U.N. Plaza to the Ferry Building protesting warrantless, secret surveillance by the National Security Administration.