The Anxiety of Unknown Knowns

I just returned from a three-day-long conference sponsored by the American Bar Association Forum on Communications Law. I am honored to serve on the Forum's governing board and always look forward to getting together with this group of extraordinarily bright, well-informed, hard-working, genial lawyers. The discussions are consistently excellent and thought provoking.

Over the weekend, we pondered numerous questions. What are the cutting edge developments in libel, privacy, newsgathering, Internet law, advertising law, and e-discovery? What actions (if any) can the government take with respect to Wikileaks' sharing of confidential government documents--consistent with the protections of the First Amendment? What lessons can we take from the historic lawsuit that Food Lion brought against ABC over its reporting of questionable food handling practices? How can newspapers like the New York Times survive in a digital news environment?

The pace and significance of technological change shaped and informed every conversation. So, for example, our discussion of FTC enforcement actions with respect to social media privacy policies quickly revealed that conventional notions borrowed from contract law and consumer protection law seemed inadequate. Those policies invite consideration, perhaps even radical reconsideration, of the normative dimensions of privacy, self-definition, and community. For those who study, and hope to influence, the development of the law in these areas the challenges are overwhelming. Indeed, trying to craft legal principles sufficient to the current communications environment is rather like trying to bail water out of Niagara Falls: you can't keep up, and almost feel silly trying.

I opened today's New York Times only to discover another example. In an article published today, Adam Liptak conducted a characteristically thoughtful analysis of the government effort to identify and prosecute those who leak secret information. Over the years, such efforts have given rise to struggles between the media, who wish to protect their confidential sources, and the government, who wants to know who broke confidence. Adam recounts an eerie conversation between Lucy Daglish, of the Reporter's Committee for Freedom of the Press, and an unnamed national security representative. In essence, the representative assured Lucy that she would no longer have to worry about government subpoenas issued to reporters to find out who their sources are.

We already know, he told her.

Citizens Disunited

Late last year, I had the privilege of speaking to an audience of several hundred patient souls who were attending a lecture series offered by the Osher Lifelong Learning Institute. The theme of this particular series: political issues that divide us. My topic: the Supreme Court's decision in the Citizens United case. I love speaking to these Osher audiences, but in light of the fact that so far they've invited me to address such hot-button topics as Bush v. Gore, civil liberties during wartime, and Citizen United, I'm starting to wonder whether they love me back.

All joking aside, it was a characteristically welcoming crowd that remained so even after I told them that I would probably foil their expectations. I told them that I had not come to join all of those pundits who have happily piled on the Supreme Court as if it had just fumbled on its own one yard line. Instead, I told them that I hoped to persuade them that things were more complicated than they might have been led to believe. And, more specifically, I told them that I wanted to try to disabuse them of some of the criticisms of Citizens United that I believe to be unfair--for example, that in Citizen United the Supreme Court broke startling new ground by treating corporations, unions, and other legal entities as "persons" for purposes of First Amendment analysis.

Alas, my insights did not spread across the nation like brushfire and so the debate continues. Just recently, the Wall Street Journal printed an editorial on the subject that I think well done and worth reading (you may need a subscription to access the entire piece). Indeed, a rich--if occasionally misleading--literature has quickly grown up around the case.

In any event, I was reminded of the risks of oversimplified thinking about these issues just this past weekend when I happened to drive by a collection of protesters on a street corner, one of whom was holding a sign that said "Honk if you think corporations are not people." Now, I am enthusiastically supportive of just about anyone who wishes to express their views through such a peaceful, lawful demonstration of their convictions. Indeed, a few years ago I brought hot chocolate to some people who were protesting on a dangerously frigid day.

Still, I couldn't help but wince at the irony. It is far from self-evident that the text of the First Amendment reaches so far as an invitation to honk a horn. To get to such a result, one must read the text of that Amendment expansively--indeed, I would say in all of its expansive glory. It is the same sort of reading that leads one to conclude that the First Amendment also protects expression by legal entities. Indeed, if it does not, then a long and impressive history of expression through mobilization, unification, and incorporation is at peril.

It is a nice point to make to a room full of people whose presence was achieved through the efforts of an organization.

On First Amendment Standards

Garrett Epps, a former Washington Post reporter who teaches constitutional law at the University of Baltimore, has written an interesting comment that is published in today's Atlantic on the persistence of First Amendment principles through the Warren, Rehnquist, and now Roberts courts. You can read the article here.

I agree with much of what Epps has to say, although I puzzle over his observation that this pattern can be explained (at least in part) by the fact that the Court's major free speech decisions are, at their base, "well-crafted and easy to apply."

Enthusiasts of the Court's First Amendment jurisprudence often cite New York Times v. Sullivan or Hustler v. Falwell as models (Epps cites both). While I agree with the results in those cases, I am not alone in believing that the majority opinions are not as coherent and "well-crafted" as we might hope. Nor are these precedents so easily applied. For example, my own view is that in Snyder the Fourth Circuit opinion reflects a misunderstanding and misapplication of some of the First Amendment precedents on which it relied. Indeed, this may explain why the Supreme Court took the case and affirmed the result but adopted precious little of the lower court's reasoning.

I agree with Epps that there is much to admire in the Court's First Amendment jurisprudence. But I would not count among its primary virtues those of craftsmanship and ease of application.

Virtual Jurisprudence

Earlier this week, the United States Supreme Court decided Snyder v. Phelps. The Court's opinion can be found on the excellent SCOTUSblog site here.

In that case, members of the infamous Westboro Baptist Church conducted a protest near the funeral service held for Matthew Snyder, an American serviceman killed in Iraq. His father sued the Church members, claiming that their extreme and outrageous statements had caused him severe emotional distress. A jury found for Mr. Snyder and awarded him more than $10 million in compensatory and punitive damages. The United States Supreme Court held that the First Amendment protected the speech and barred the claim.

In the interest of full disclosure, I should note that I was counsel of record for amicus curiae the Anti-Defamation League in this case. We filed a brief on behalf of neither party, arguing that the case offered "an extremely poor vehicle for rendering the type of expansive ruling the petition for a writ of certiorari and the certified questions appear[ed] to invite." Our brief can be found here as well. The Court apparently agreed, stating "Our holding today is narrow .... [T]he reach of our opinion here is limited by the particular facts before us."

In many respects, the Court's opinion is unremarkable. The result follows logically from existing precedent, including the Court's decision in Hustler Magazine v. Falwell, which can be found here. Justice Roberts' majority opinion has a terse, businesslike, almost surgical quality to it.

Further, it is unremarkable that this unremarkable case has received a remarkable amount of attention. This drama features the kind of players who draw the spotlight: on one hand, we have the suffering and sympathetic father of a slain war hero; on the other, we have the wild-eyed merchants of homophobic hate speech. Of course, the star of the show turns out to be the First Amendment, which, as countless editorials have reiterated in the past few days, protects even speech that outrages us and that we find morally obnoxious.

But one of the most interesting aspects of the case is a player that is waiting in the wings and that the Court hints might change the plot line.

The Church had posted some material regarding the funeral and the Snyders on its Web site (a posting that the parties called the "epic"). Because Mr. Snyder did not raise the epic in his petition for certiorari it was not before the Court. The Court observed that in light of this--and in light of "the fact that an Internet posting may raise distinct legal issues in this context"--it would not consider the epic in deciding the case. In a similar vein, Justice Breyer's concurring opinion emphasized, in its first paragraph, that the Court's ruling does not "say anything about Internet postings."

I find this puzzling and intriguing.

The Court ruled in favor of the Church primarily because (a) the Church's speech related to a matter of public concern and (b) allowing a jury to hold someone liable for engaging in such speech on the basis that the jury finds it "outrageous" does not afford sufficient protection. I am puzzled as to why the Court would think that this analysis might apply any differently to speech that takes place on the Internet. I don't see why it would, but I am open to suggestions.

And I am intrigued because I think these disclaimers reflect the Court's anxiety about new technologies and new media. In this respect, the Roberts Court is like every Supreme Court that has come before it.

In the twentieth century, the Court worried about the broadcast airwaves--the "intruder," as the Court called it once, that follows us through closed doors into our very homes.

But the latest intruder is even more daunting. We will say its name. But we will not talk about it unless and until we absolutely have to do so.

The Persistence of Ideas

Kevin Kelly of Wired Magazine believes that no human invention ever goes extinct. National Public Radio has recently had some fun with this, challenging its listeners to identify an invention that the world has stopped producing. It turns out that Kelly may well be right; finding something that absolutely no one makes any more is a daunting task. You can learn more about the debate here.

I suspect that Kelly's point is just part of a broader one: no idea ever goes extinct. Justice Holmes's familiar metaphor maintains that ideas compete for allegiance in the marketplace of free expression. Yes, but it is important to remember that this process does not cast the losers into exile. It just relegates them to the darker corners, where they can continue to serve the customers who still patronize them.

So do not feign astonishment when obnoxious doctrines, long thought extinct, reappear. No idea ever goes out of production. No idea, no matter how pernicious, ever falls entirely from use.

The Free Market of Ideas

The most recent issue of The Nation published a debate between Floyd Abrams and Burt Neuborne over the Supreme Court decision in Citizens United. The online version of the article can be found here. The exchange is intelligent, lively, and engaging.

Still, I think that the authors miss one of the most interesting aspects of the case: that it serves as a jurisprudential Rorschach test for one's view of political liberty.

Some people believe that the preservation of liberty requires at least some regulation. Advocates for this position believe that the marketplace of ideas cannot survive, let alone flourish, unless it operates within constraints that help foster openness and fair play. This is the view reflected in the campaign restrictions that the Supreme Court held invalid.

Another view holds that regulation is inherently antithetical to the preservation of liberty. Advocates for this position believe that censorship in the cause of freedom is intellectually incoherent. This is the view embraced by those who see Citizens United as a triumph of First Amendment values.

I believe that either position is defensible. But I also believe that consistency matters here. Vacillation between these views suggests a jurisprudence of convenience, where the operative paradigm changes from case to case in order to achieve the outcome desired.

It will be interesting to see whether the Court's future First Amendment decisions are consistent with the expansive free market sensibility reflected in Citizens United. As to that, there can be no debate.

Judges All A-Twitter

Earlier this year, the Communications Lawyer published an article ("Of Tweets and Trials," 27 Communications Lawyer 3, September 2010) where I pointed out that the phenomenon of social media is forcing judges to rethink the measures they take to ensure that the trials over which they preside are conducted in a fair and orderly manner.

In that article, I focused on the impact of social media on the "gag orders" that judges enter against parties, witnesses, and attorneys and on the instructions that judges give to jurors.

My friend Dave Farrell brought to my attention an interesting piece from yesterday's online edition of the Guardian that can be found here. The article praises a British judge's decision to allow tweeting from the courtroom during the Julian Assange extradition hearing. It argues that there is no principled basis on which to distinguish real-time tweeting in the courtroom from the journalist's long-recognized right to take notes on what happens in open court, walk into the hallway, and phone the story in.

The argument has a lot of appeal, although questions obviously remain. Does the character limitation of tweets work against their accuracy? Is the real-time nature of the medium inconsitent with the kind of reflection that provides depth and context to a report? Should judges allow journalists to tweet in their courtrooms, but not members of the general public? If so, then which category do bloggers fall into?

Judges throughout the United States who find themselves presiding over high-profile trials are looking for answers. Are they finding any?

Stay tuned.

From Publicity to Parody, continued

In case you're interested, the New York Times published my thoughts on this issue in a letter to the sports editor, which can be found here.

From Publicity to Parody

An interesting article in today's New York Times addresses the tension between freedom of speech and an individual's desire to control commercial uses of their identity. The article can be found here.

The article focuses on a lawsuit brought by Sam Keller, a former quarterback at Arizona State, who claims that a video game company used images of him and other NCAA athletes without permission or compensation. The games at issue do not include the athlete's name, but allegedly render the player identifiable through characteristics like number, uniform, position, and playing style.

The article notes that the United States Supreme Court has not opined on these issues since 1977, when it ruled that the First Amendment did not bar a suit brought by human cannonball Hugo Zacchini over a television station's broadcast of his entire fifteen second act.

What the article does not address, however, is the role that First Amendment protection for parody might play in resolving the question. In cases like Cardtoons v. Major League Baseball Players Association, courts have recognized that athletes are public figures and that making fun of them is yet another national passtime--one the First Amendment protects.

So, as a practical matter, this issue may disappear if video game manufacturers simply shift strategies. Perhaps Tim Tebow, the devoutly religious Florida Gator who wore number 15, becomes Tim Bowtie, the Satan worshiper who wears number 666.

If a victory in Keller's case drives video game manufacturers in this direction it may be hard to think of it as much of a victory.

The Censorship Mantra

When Amazon was criticized for selling the self-published e-book "The Pedophile's Guide to Love and Pleasure: A Child-Lover's Code of Conduct," the company responded by declaring: "Amazon believes it is censorship not to sell certain books simply because we or others believe their message is objectionable."

In short order, Amazon reversed course and pulled the book from its virtual shelves.

The statement Amazon issued deserves a close look. This is true not only because the statement is deeply confused. It is true because the statement says something, albeit indirectly, that Amazon cannot possibly want to say.

Let's start with the obvious. The First Amendment forbids censorship by the government, not by private parties like Amazon. Indeed, invoking censorship is particularly puzzling in light of Amazon's status as an online bookstore.

The First Amendment empowers bookstores to decide what they will and will not sell. A suggestion that the First Amendment somehow deprives bookstores of that freedom gets it exactly backwards.

But here's the subtler point. In recent years, some legal scholars (I am not among them) have suggested that we should think about these issues differently. They have argued that the law should treat private media entities with overwhelming market power as if they were the state and should regulate them along the same lines that the First Amendment limits the government.

In other words, for Amazon's statement to make any sense we would have to believe that the company has such vast control over the marketplace that we should think of it as the equivalent of a state actor--and restrict it accordingly.

It is an argument. But, surely, it is an argument that Amazon does not want to advance, let alone win.

Shoving Bullying Out of the Conversation

An article in today's Washington Post reports on a program being used in some British elementary schools to address bullying. ("Simple Program Wards Off Bullying in Schools," November 7, 2010)

American schools that have tried to tackle this serious problem have often resorted to aggressive anti-bullying codes that include lists of forbidden words. Such an approach can raise troublesome First Amendment issues because, as the Supreme Court has observed, students do not shed their right to freedom of expression at the schoolhouse gate. Also, these days bullying at school is often precipitated by speech that occurs elsewhere, such as through social media generated at home.

Remarkably, the British experiment hardly ever mentions bullying. Instead, it focuses on placing students into rotating teams of two where they can spend a few minutes each week getting to know each other. The rules are simple: listen, don't interrupt, show respect. The program has yielded remarkable results, including dramatic declines in bullying behaviors. Some American schools, specifically in Texas and in the Midwest, have begun to incorporate this approach into their anti-bullying campaigns.

A familiar First Amendment axiom holds that the best remedy for the speech we hate is more speech. It may be that the most effective way to shove bullying out of our schools is to promote discussion between our students--ironically, discussion about things other than bullying.

More on the California Video Games Statute

In case you're interested, my National Law Journal op-ed piece on the California video games statute can be found here.

The Physics of Censorship

On November 2, the Supreme Court will hear arguments in Schwarzenegger v. Entertainment Merchants Association. The case asks whether a California statute that restricts the sale of violent video games to minors runs afoul of the First Amendment.

It is a case worth watching, not just because it raises interesting questions but because of the quality of the lawyering. Paul Smith of Jenner & Block, one of the most talented Supreme Court advocates of our generation, will be arguing on behalf of EMA.

I also think the case is intriguing because the California statute is a good example of what I like to call "the physics of censorship."

In my view, there is a quasi-Newtonian principle that describes how a large number of decisions are made within our political process: for every action, there is an unequal and opposite overreaction.

Here’s how the principle plays out.

Congress or a state legislature panics about some new development that supposedly threatens the moral fabric of our nation. Because really big problems call for really big laws, a hopelessly vague and overbroad statute follows. The fact that the statute is grossly overreaching simply shows that our elected officials took the matter very, very seriously.

Another quasi-Newtonian principle then helps drive things along: once this process is set in motion, it tends to stay in motion. It grinds relentlessly toward its illogical conclusion. It does not pause for consideration of such fundamental questions as whether the legislation is within the government’s constitutional authority or whether it is even necessary.

These principles have had a profound influence on the jurisprudence of the First Amendment. Indeed, the introduction of any new art form or medium of communication has consistently triggered them. Motion pictures, radio, television, cable, and the Internet all bred alarm and overreaction. It is perhaps particularly embarrassing that, in 1954, Congress decided to devote significant time and energy to holding hearings on the evils of comic books.

These overheated legislators may not have acted with pernicious motives. But good faith does not transform an overreaction into good law or good policy.

Judges and scholars have described the role of the First Amendment in many different ways. It creates a marketplace where ideas can freely compete for our allegiance. It fosters an institutional media capable of checking the power of the government. It enables individuals to express and govern themselves. It embodies our respect for the value of tolerance—even, as the Supreme Court has said—of the speech we hate.

But it turns out that the First Amendment does something else as well. To borrow a phrase from Kipling, it helps us keep our head when all about us are losing theirs. And it enables us to interrupt the otherwise unstoppable momentum of the physics of censorship.