Free Speech

Global Voices Summit 2008

Tuna Chatterjee — Tue, 01 Jul 2008 16:44:41 -0400

Last week, Global Voices held a summit in Budapest, Hungary for its members and the wider community of bloggers, activists, technologists, journalists and others from around the world. Called the Global Voices Citizen Media Summit 2008, the two day event focused on the topic of "Citizen Media & Citizenhood."

As David Sasaki notes, the summit was held to address questions such as:

Is social media actually changing the electoral landscape in emerging democracies like Armenia, Kenya, and Venezuela? Has the promise of an international, barrier-free, multilingual conversation finally become reality? Most importantly, where do we go from here? How do we encourage dialog in times of heated international debate? How do we bring new voices from new communities into the universe of web 2.0? And how do we protect their rights to free speech once they begin participating?

Attendees came from all over the world: Mauritania, Colombia, Bangladesh and Tajikistan, to name a few. Initial reports have been glowing. Check out Evgeny Morozov's insightful article on how the summit showcased "the radical democratisation of the global flow of ideas," as well as Joi Ito's blog about the importance of the summit as a response the "systemic bias against reporting international news in most developed nations."

Not surprisingly, the rise in popularity of blogs and citizen media more generally has also resulted in the legal actions and other threats, including physical harm, levied against bloggers. We have some examples of such threats and actions in our legal threats database (such as Singapore v. Nair, Mitchell v. Noel, and Egypt v. Abdul Kareem Nabeel Suliman), and our blog (see Saudi Blogger Fouad Ahmad Al-Farhan Released and Opposition News Sites Blocked in Kazakhstan).

By all accounts, the Global Voices Summit was a rousing success. To me, the summit also highlights the need to remain vigilant in protecting the legal rights of those engaged in online speech so that citizen media throughout the world can continue to succeed and flourish.

(Note: Global Voices is a nonprofit founded at Harvard Law School's Berkman Center for Internet and Society, which also hosts the Citizen Media Law Project. Ethan Zuckerman, the founder of Global Voices, is on the CMLP's Board Of Advisors.)

The (Proposed) Megan Meier Cyberbullying Prevention Act Is Crazy

Sam Bayard — Fri, 06 Jun 2008 10:34:03 -0400

In a twist on the old adage "hard cases make bad law," Representatives Linda Sanchez (D-CA) and Kenny Hulshof (R-MO) introduced a bill (H.R. 6123) in the House on May 22 which, if passed, would be known as the Megan Meier Cyberbullying Prevention Act. If anyone is not already familiar with the Megan Meier tragedy, you can consult our previous posts (here, here, here). The bill would make it a federal crime to

transmit[] in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.

Eugene Volokh has some razor-sharp analysis laying out why this well-intentioned bill is unconstitutional. Check it out. (For more information on the bill, see OpenCongress.)

How Trademark Law Casts A Dark Cloud Over Free Speech

Sam Bayard — Thu, 24 Apr 2008 14:09:36 -0400

Bill McGeveran, a University of Minnesota law professor and friend of the CMLP, has published his article, "Four Free Speech Goals for Trademark Law" in the Media & Entertainment Law Journal, volume 18 (available at SSRN). The article makes a compelling case that, while courts in trademark cases ultimately tend to reach results that protect free speech against trademark overreaching, they do so in a muddled way that makes it hard to resolve cases quickly and cheaply and leaves speakers vulnerable to bullying through cease-and-desist letters.

We've had a copy of this article for a while, and I've been using it to get my head around how trademark law might affect the speech activities of bloggers, citizen media creators, and other online publishers. We are launching the intellectual property sections of our legal guide at the end of this month, and a number of the new sections take up the intersection between trademark law and freedom of speech. Professor McGeveran's article has been extremely useful, but also -- um -- slightly disheartening:

If you have ever tried to counsel a client who wishes to use a trademark for expression then you have confronted the deeply muddled state of the law governing such uses. There are many routes to final adjudication, but none is clear and it is difficult to know in advance which ones a court might employ. I'd even speculate that the tangled nature of the doctrine may discourage attorneys from offering pro bono help that might otherwise be available to some of the artists and parodists who most need advice.

Professor McGeveran is refering here to the tangled state of the law regarding what, for lack of a better name, might be called free-expression-related defenses to trademark claims. These include exceptions to liability for "descriptive fair use," "nominative fair use," "noncommercial use" (at least two distinct types), and "news reporting and commentary" (dilution claims only), as well as, in McGeveran's words, "[s]everal different flavors of 'First Amendment' defenses." Not to be discouraged, we are trying to hash all this out for our readers on a page called "Using the Trademarks of Others," which is, alas, still very much forthcoming.

Hat tip to Media Law Prof Blog.

(Note: Bill McGeveran is a former fellow of the Berkman Center for the Internet & Society, which hosts the CMLP.)

Court Rejects Wal-Mart's Bid to Silence Criticism Through Trademark Law

Sam Bayard — Mon, 24 Mar 2008 14:39:39 -0400

Last Thursday, a federal court in Georgia handed down a big win for free speech when it ruled that Wal-Mart could not use trademark law to stop a critic from disseminating his virulently anti-Wal-Mart views over the Internet. From Public Citizen's press release:

In rejecting the company’s claim of trademark infringement, the U.S. District Court for the Northern District of Georgia in Atlanta found that Charles Smith’s parody Web sites (www.walocaust.com and www.walqaeda.com) and related novelty merchandise were protected speech and that a reasonable person would not confuse their use with Wal-Mart’s legitimate trademarks. The court also rejected Wal-Mart’s claim that it has trademark rights in the “smiley-face” that Smith used in one of his parodies.
Public Citizen and the American Civil Liberties Union of Georgia Foundation defended Smith after Wal-Mart sued the Conyers, Ga. man in 2006, claiming he infringed on its trademark by creating parody logos and Web sites built around the “Walocaust” and “Wal-Qaeda” concepts,including the image of an eagle clutching a yellow smiley face, similar to the one Wal-Mart uses in advertising. Smith also put the design on T-shirts, bumper stickers and other items that he sold on CafePress.com.

Smith has quite a colorful way of expressing himself. Some of the examples discussed in the district court's opinion include gems like "WAL*OCAUST: Come for the LOW prices, stay for the KNIFE fights" and two graphics, one naming Hillary Clinton the "Wal-Qaeada Employee of the Year 1986-1992" and the second bestowing on Chairman Mao Zedong the "Wal-Qaeda Human Resource Achievment Award."

Seriously, though, the court reached the right decision in this case, regardless of what you think of the merits of Smith's work. His parodies obviously represent acts of critical commentary and present no risk whatsoever of confusing consumers as to the source of goods or services, which, after all, is what trademark law is meant to protect against. It would seriously undercut freedom of speech if trademark law allowed companies to stop core political/social speech of this kind. Moreover, in rejecting Wal-Mart's trademark dilution claim, the court rightly held that Smith's critical speech was "noncommercial" even though he placed his designs on T-shirts and other goods sold to the public.

Marc Randazza and Ron Coleman have additional analysis on the case. If you're looking for a scholarly point of view on trademark law and freedom of speech, Bill McGeveran has some recent work on the topic. For additional details and court documents, see Wal-Mart v. Smith (Letters) and Wal-Mart v. Smith (Counterclaims).

Savage v. CAIR: The Council on American-Islamic Relations Asks Court to Dismiss Michael Savage's Lawsuit

Sam Bayard — Thu, 31 Jan 2008 11:11:14 -0500

I've blogged before about the Savage v. CAIR lawsuit, in which the conservative talk show host claims that CAIR violated his copyright (and the Racketeer Influenced and Corrupt Organizations Act!) by posting and commenting critically on an audio clip from one of his shows, in which Savage makes all sorts of hateful and inaccurate claims about Muslims and the Islamic faith. To put it mildly, I disagree with Savage's position in the lawsuit -- it is a blatant attempt to misuse copyright law in order to squelch criticism.

Great news! The Electronic Frontier Foundation and Davis Wright Tremaine LLP are representing CAIR, and they have filed an answer and moved for "judgment on the pleadings," asking the court to dismiss the lawsuit because it is "simply a camouflaged defamation or disparagement claim dressed as bogus copyright and RICO claims . . . Savage's legal broadside specifically targets CAIR as a civil rights organization and its core political speech responding to and criticizing Savage's inflammatory political rhetoric." (from the EFF). The brief arguing in favor of dismissal is excellent. Its introductory argument on the copyright claim is worth reproducing here:

CAIR's use of limited audio excerpts from Savage's radio program is, without question, speech protected not only by the First Amendment but explicitly by the Copyright Act. 17 U.S.C. § 107; see Hustler Magazine Inc. v. Moral Majority, Inc., 796 F.2d 1148, 1153-55 (9th Cir. 1986). The fair use doctrine exists precisely to prevent copyright holders from doing what Savage attempts here -- abusing a limited monopoly granted to encourage creativity to punish dissenters and to chill speech aimed at criticizing copyrighted works. For all his ironic appeals to the First Amendment, Savage asks this Court to punish CAIR for publicly criticizing the offensive content of his radio program. That CAIR's criticism might result in Savage losing popularity (and advertisers) is of no moment to either a free speech or copyright infringement analysis and indeed, should be expected in the marketplace of ideas that the First Amendment and Copyright Act strongly protect. As a matter of law, Savage's copyright infringement claim must be dismissed.

Brilliant argument. CAIR's lawyers have also chosen the right procedural mechanism for raising the affirmative defenses of fair use and the First Amendment. In a motion under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, unlike a motion to dismiss under Rule 12(b)(6), a court may consider affirmative defenses.

Thus, unless the court goes completely off track, CAIR should not run into the sort of shallow reasoning found in the 43SB.com case (all the buzz this week), in which the court refused to look beyond the plaintiff's ownership of copyright in its cease-and-desist letter and completely ignored the obvious fair use and First Amendment concerns. This kind of shallow legal analysis leads to a distorted picture of copyright law and, worse, it stacks the deck against speech, giving the benefit of the doubt to frivolous claims and making Internet speakers bear the burden of extended litigation. I look forward to the CAIR court's decision with anticipation -- Internet speakers certainly could use a clear, recent case to help fight back against copyright overreaching.

Ban 'Hate Speech' at Your Own Peril

Dan Gillmor — Tue, 15 Jan 2008 15:33:46 -0500

Glenn Greenwald accurately explains the grotesque result of laws that seek to curb that amorphous problem of “hate speech” — a concept that turns free speech on its head. And unlike many of his colleagues on the political left, Greenwald explains why he’s defending people whose speech frequently deserves contempt:

People like Mark Steyn and Ezra Levant are some of the most pernicious commentators around. But equally pernicious, at least, are those who advocate laws that would proscribe and punish political expression, and those who exploit those laws to try use the power of the State to impose penalties on those expressing “offensive” or “insulting” or “wrong” political ideas. The mere existence of the “investigation,” interrogation, and proceeding itself is a grotesque affront to every basic liberty.

How many times can we say this? If you care about your own free speech rights, you must defend the rights of people whose speech makes your blood boil.

(Cross-posted from the Center for Citizen Media Blog.)

British Blogger Threatened with Arrest for Inciting Racial Hatred

David Ardia — Mon, 07 Jan 2008 09:43:01 -0500

Glenn Reynolds over at Instapundit.com reports that a British blogger was recently threatened with arrest for inciting racial hatred. The blogger, who runs a controversial Christian blog and goes by the pseudonym Lionheart, stated on his blog that British police are threatening to arrest him for "stirring up racial hatred by displaying written material" contrary to sections 18(1) and 27(3) of the Public Order Act 1986.

Reynolds recommends that if you're interested in supporting free speech rights -- and you should be if you are reading this blog -- you can contact the British Embassy to let them know that people shouldn't be arrested merely for writing things that the powers-that-be find distasteful.

(Note: Glenn Reynolds is on the CMLP's Board of Advisors.)

Town of Manalapan, New Jersey, Versus Free Speech

Dan Gillmor — Wed, 05 Dec 2007 17:20:34 -0500

Follow the links from Electronic Frontier Foundation page on the bizarre Manalapan v. Moskovitz lawsuit to see a local government running wild against free speech. The town is suing to get the identity of -- and all kinds of other information about -- a critical anonymous blogger.

Anonymous speech should generally be taken less seriously than speech where the speaker stands behind his own words, and I think this is such a case. But anonymous speech is part of a long and vital tradition in America, and this is also such an example.

Someone should show these officials the Bill of Rights. Kudos to the EFF for pursuing this case.

Snyder v. Phelps: Westboro Verdict Criticized as Unconstitutional

Sam Bayard — Tue, 13 Nov 2007 18:01:32 -0500

Following up on my earlier post about the $10.9 million jury verdict against Fred Phelps and the Westboro Baptist Church, I wanted to point our readers in the direction of some excellent commentary on the topic by Eugene Volokh at the Volokh Conspiracy. In a series of posts collected in a single thread, Volokh argues that the intentional infliction of emotional distress and intrusion torts, which are the claims that the jury found liability on, are unconstitutionally overbroad and vague when applied to speech. (More precisely, he argues that these torts, as applied to speech, are unconstitutional unless narrowed by courts to cover only constitutionally unprotected speech like "fighting words," incitement to imminent lawless action, or statements of fact made with the requisite degree of fault, which did not happen in the Phelps case.)

Intrusion is a tort that we've paid particular attention to because of its implication in the newsgathering process. Volokh captures well the constitutional infirmity looming in application of the intrusion tort to Westboro's picketing activities:

The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses (the Restatement of Torts illustrations are entering a patient's hospital room to take a photograph over the patient's objection, photographing through someone's bedroom window through a telescope, tapping someone's phone, getting someone's bank records using a court order, and calling someone every day for a month at inconvenient times). The tort is constitutional precisely because it's content-neutral. Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral -- there must have been a good deal of speech within 1000 feet of the church at which the funeral service was being conducted, and surely one wouldn't call all of it "highly offensive intrusion upon seclusion" -- but also from the message of the picketing.

Indeed, I would say that the intrusion tort normally does not apply to the conveyance of a message at all. It bars physical incursion into a place where a plaintiff has a reasonable expectation of privacy, if that invasion would be "highly offensive to a reasonable person." Restatement (Second) of Torts § 652B. It also commonly applies to non-physical intrusion in the form of a defendant using his/her senses, with or without the aid of mechanical devices such as a telephoto lens or recording equipment, to oversee or overhear a plaintiff's private affairs. See id. cmt. b.

For someone accustomed to thinking of the intrusion tort in the context of newsgathering, it is jarring to see it applied to speech activity like protesting or picketing. Volokh is plainly right that imposing liability on speech based on a "highly offensive to a reasonable person" standard coupled with a tenuous proximity requirement (remember, 1000 feet!) potentially penalizes protected speech and thus violates the First Amendment.

Musharraf Uses Press Licensing Laws to Clampdown on News Media in Pakistan

David Ardia — Mon, 05 Nov 2007 22:54:23 -0500

Reports are emerging from Pakistan that President Pervez Musharraf has shutdown independent news media within Pakistan and limited access to the Internet. Musharraf appears to be using, at least in part, Pakistan's press licensing laws to effectuate this clampdown.

Pakistan has a well developed set of laws governing its print, broadcast, and electronic media. Not surprisingly, Musharraf is using these laws to lend an air of legitimacy to his actions. According to the Hindustan Times:

Musharraf promulgated two separate ordinances imposing curbs on the print and the electronic media. Under the ordinances that amend the Press, Newspapers, News Agencies and Books Registration Ordinance, 2002, and the Pakistan Electronic Media Regulatory Authority, 2002, the print and electronic media have been barred from printing and broadcasting "anything which defames or brings into ridicule the head of state, or members of the armed forces, or executive, legislative or judicial organ of the state."

The extent of Musharraf's curtailment of Internet access is unclear, however, with conflicting reports circulating today. The Associated Press reported that:

Authorities have blacked out TV networks and threatened broadcasters with jail time, but so far have spared the Internet and most newspapers.

Other reports from within Pakistan paint a grimmer picture. The Hindustan Times reports that:

Several Internet service providers were also asked to stop their service until further orders. "We were told at 6.30 p.m. yesterday (Saturday) to stop our service. We did stop it but started at around midnight and are still providing Internet access to our clients," a spokesman for a leading service provider said, speaking on condition of anonymity.

GlobalVoices Online, which provides a useful summary of commentary within the Pakistani blogosphere, advises that

it's time for the Society Against Internet Censorship in Pakistan to be active again. Dr Awab Alvi [a well known Pakistani blogger] sets the ball rolling by suggesting that international bloggers be given the right to blog on their behalf.

One of the first things oppressive governments do is take control of information. The Internet is a great leveler in this regard, but Burma -- and now Pakistan -- show us that even the mighty Internet has its limitations.

UPDATE: For background on Pakistan's Press Council of Pakistan Ordinance of 2002, Press, Newspapers, News Agencies and Books Registration Ordinance of 2002, and Defamation Ordinance of 2002, see Article 19 Global Campaign for Free Expression's memorandum analyzing the ordinances. The text of Musharraf's November 3 amendments to Pakistan's Electronic Media Regulatory Authority Ordinance can be found here.