Critiquing Free Speech

In the past couple of weeks, I have been busy reading and critiquing the book "Critiquing Free Speech: First Amendment Theory and the Challenge of Interdisciplinary," by Matthew D. Bunker. The book was an interesting read, and brought up numerous theories and interpretations throughout the chapters within. I realize that there is too much information for me to comment on every theory or theorist in the book, so I have decided to focus on the concept of the individual vs. the community in relation to the many theories in the book. I noticed that most of the book tends to relate back to this concept.

The first chapter is a nice overview of many of the standard first amendment theories, such as the marketplace of ideas, or the individual autonomy theory. Even within these theories we begin to see a divide on the individual v. the community. The marketplace of ideas theory focuses on the community, allowing ideas and opinions to flow freely throughout society, allowing all viewpoints to be heard. On the other hand, the individual autonomy theory places primary focus on the individual. This theory claims the freedom of speech and expression are imperative to individual liberty, regardless of the products produced. An individual cannot truly be free or independent or even truly human without the liberty of free speech. As we will see, this beginning chapter has set the stage for more eclectic or obscure theories and their battles between the individual v. the community.

Now I will mostly skip around the book, discussing some of the more interesting theories I discovered and how they relate to the concept of the individual v. the community. The first unique concept I discovered was a theory focusing on society and the community: Judge Richard A. Posner's First Amendment Formula. In short, Judge Posner uses economics and mathematics in order to create and actual mathematic formula for regulating speech. His formula states that government can only regulate speech if "V + E < l =" social" e =" the">
find this totally ridiculous. How can one formulate the social value of speech? I think Posner's focus on society is his formula's downfall, as he assumes that all of these values mean the same thing to everyone, as if there was one commonly held value by society of certain kinds of speech. However, every individual has their own interpretation of what the social cost (L) or the value (V) of speech may be. This is why I feel this theory is somewhat useless to be perfectly honest.

However, Posner's theory actually uses another first amendment theory in its construction: reductionism. Reductionism is about reducing law to the domain of other disciplines. Posner reduced law to the disciplines of mathematics and economics. Some think law is just politics in disguise. More and more laws are being reduced down to lay person's terms. Opponents of reductionism feel that law deserves its own "autonomous domain of knowledge." It was hard at first for me to understand and choose a side on this theory, so I equated it to something I was more familiar with. As a future music educator, it's important for me to acknowledge unique musical content in my classroom. Only in music class can a student learn about "crescendos" and what clefs there are. However, it's also necessary for me to connect things learned in my music classroom to other subjects, so that students see how all kinds knowledge work together to achieve proper learning. In law, I think it's necessary that law retains some of its own vocabulary and content. However, it is impossible NOT to reduce law in some ways, as law is dependent upon many other things. As the book quotes, "law is just a reflection of truth," so whatever is necessary to achieve this truth, that too must be reflected in law. However, in that case "truth" is dependent upon the individual, so this reductionist claim puts priority on the individual and their interpretations.

Finally, I want to discuss the most interesting theorist I read about in this book, Stanley Fish. Fish has very unique views on first amendment theory. Above all, Fish is a staunch believer of the community over the individual. He believes individuals belong to "interpretive communities." This means that there is no one community that encompasses all of mankind. Instead, people associate themselves with groups of people who share common beliefs and values. Fish believes everyone makes decisions based on their interpretive communities. This also means judges. Fish believes that judges and juries don't use judicial theory (there's no such thing according to him) but instead base all of their decisions based on predispositions based on their interpretive community. This is why, he argues, judges come up with different rationales with different decisions. Even the theories and texts that judges read and quote in their decisions are just text being interpreted in a specific way by the individual. Fish also believes there is no such things as absolute free speech, for the community will always draw a line. Such as with obscenity or fighting words. There is also no free speech as all speech has a political agenda according to Fish.

Fish's thoughts are radical. Fish believes that people have no unique thoughts, but base all decisions based on their interpretive communities. Part of me has to agree with Fish. Hardly ever do I hear someone with a truly unique perspective. Often. we use quotes, research, or the theories of someone else in order to establish our thoughts and beliefs. I believe the United States of America is the greatest country on Earth. But couldn't that be based on my family's beliefs, knowledge of United States history, or patriotism learned from my interpretive community? Even searching my own thoughts, I can't think of a belief or morale that hasn't been instilled by, or aligns itself with, someone else in my surrounding community. Even fads are the result of influence on an individual by their interpretive communities. I was told I needed to buy a tamogotchi in 2nd grade if I was to be cool, I grew up a Cubs fan because that's what my family told me was best, and doctors tell us to eat or veggies or we'll be sorry one day. It's scary, but sometimes I feel that everything we do or say in life isn't unique. I realize that there is room for uniqueness in our lives, but as a norm I feel we are led through life. Benjamin Franklin proved lightening was electricity and Stephen Hawking discovered Hawking Radiation in a black hole. Both are individual accomplishments. But aren't both of their discoveries based on the work done in their communities before them? It's interesting to consider...

Overall, I thought this was an interesting book. It gave overviews and critiques of numerous theories. The first chapter overview was nice, and the other chapters introduced me to some unique thoughts and viewpoints that I would have never considered otherwise. It was a bit wordy however, and sometimes I found myself lost or confused while reading all this law talk. Maybe a bit more reduction would have helped me.

F*ck I'm a Felon!

Today while online, I discovered an interesting news article concerning profanity in South Carolina. Senator Robert Ford (D) of South Carolina, introduced a bill to outlaw profanity and lewd language in public, as well as making it illegal to disseminate to minors. Here are a few excerpts from the proposed bill

"Section 16-15-370. (A) It is unlawful for a person in a public forum or place of public accommodation willfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions or profance, vulgar, lewd, lascivious, or indecent nature."

"Section 16-15-439. (A) It is unlawful for a person to disseminate previous profanity next to a minor if he willfully and knowingly publishes orally or in writing, exhibits, or otherwise makes available material containing words, language, or actions of profane, vulgar, lewd, lascivious, or indecent nature."

It's interesting to note that this bill makes these crimes a FELONY, which can land you in jail for up to five years with a maximum fine of $5000. A felony, as defined from the dictionary at law.com, is defined as:

1. A crime sufficiently serious to be punishable by death or a term in a state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail/or a fine.
AND
2. A crime carrying a minimum term of one year or more in state prison, since a year or less can be served in county jail.


So is swearing in public worth being labeled a felon for the rest of your life? First, we have to look at whether this law is even legal and in line with the first amendment. To be honest, my first reaction, as well as many of yours, will presumably be "NO!" To begin with, as discussed in Cohen v California, there are three kinds of speech that are not protected:

1. Appealing to the prurient interest: "a shameful or morbid interest in nudity, sex, or excretion."
2. Fighting words directed at a particular person
3. Thrust upon an unwilling audience, especially in the private realm.

Profanity is not in that list. In fact, in Harlan's opinion, he makes it clear that when it came to the public sphere, the burden was on the receiver to deal with the speech, presumably by "averting their gaze," either literally or figuratively. This is a very libertarian approach. So far, it seems that profanity should be protected in public.

But not so fast. The first amendment is not absolute as we know: you can't always just say whatever you want, whenever, and to whomever. There are limits. Should profanity in public or in front of a minor be one of those limits is the question. In Chaplinsky v New Hampshire, (I couldn't find it on lexis-nexis, but the link is to the opinion) the court made it clear that even if some did find a benefit to vulgar or profane statements, it was "clearly outweighed by the social interest in order and morality." So, as a country, do we have a moral obligation to not curse in front of our children? Even in the Cohen opinion there are doubts and confusions. As the article "A look back at Cohen v California" in the UCLA Law Review states:

"Cohen v California has settled the proposition that a criminal statute is unconstitutional if it punishes all public use of profanity without reference to details such as the nature of the location and audience. The opinion, however, left much to be decided about government controls on the use of profanity based on considerations of time, place, and manner. To what extent can profanity be punished because of the nature of the audience, the nature of the occasion on which it is uttered or displayed, or the manner of its utterance or display? Part of the difficulty, of course, stems from the nearly infinite number of imaginable factual situations. The ambiguity of the Harlan opinion adds to these difficulties."

So basically, the South Carolinian government has decided to control the "time, place, and manner" of profanity by completely banning it in public and in front of a minor. However, I feel like they are taking their power too far. I believe this bill seems to fall under the category of punishing all public use of profanity, which we've seen is illegal as stated in Cohen. The concept of protecting minors, especially very young children, from vulgar language is applaudable, but the bill is much too broad. Under this law, many artistic outlets would be smothered. Here are some examples, the first three being taken from a blog I found that also speaks of this bill:

- Giving or lending a book or movie to a minor with profanity in it.
- Not letting a minor read the King James Version Bible, as it contains the excretory word "piss."
- Not being able to swear in front of your own child, regardless of age. (They could be 16, and you're still a felon!)
- Minors could not watch movies with swear words in it, or check out books from the library with profanity in them.
- Letting your child listen to music with swear words, such as "shit" in them would make you a felon.
- Teens could not swear in school without being a felon. (would any teen NOT be a felon?)
- What about the internet? Is that not public? How do you stop minors from reading profanity online wihout extreme content regulation?

I believe this law is too vague. The government should not interfere with the morals and values we teach our children. Who decides what profanities are ok or not anyways? 50 year ago, hardly anyone said "fuck." Now it is extremely prevalent. Times change. What if parents feel ok letting their child hear or even say "shit" or "damn?" That should be a parental decision. It is not up to the government to decide what words are appropriate or morale for one's own child. Besides, speech in public would become "fit for children" (literally!) and I believe that the burden is on the receiver. If you don't want your child watching an R rated movie at 16 years old, then that's your perrogative. But the government shouldn't be able to FORBID a parent from letting them, as a parent knows best if their child is mature enough. The government needs to leave parenting to the parents...

FUN FACT! (Taken from the Volokh blog I found!)
"Two 16 year olds can be sexually involved in South Carolina (as can an adult and a 16 year old), but under this new law they'd be felons if they talked lewdly to each other." (Section 16-15-140 of the bill)

Wow, talk about hypocrisy!

Good thing I'm photogenic...

A couple of days ago, I stumbled upon a website run by one Carlos Miller. Mr. Miller runs a website specializing in photography and the first amendment. Here's the blurb on his homepage about his background and history on this topic:

"My name is Carlos Miller and I am a multimedia journalist who was arrested by Miami police after taking photos of them against their wishes, a clear violation of my First Amendment rights. Since that arrest on Feb. 20th, 2007, I've been fighting a lengthy battle against the State of Florida to prove my innocence."

However, more interesting than his case are the dozens of cases he blogs about concerning photography and the first amendment. One that caught my attention was "NYPD Officer Orders Photographer to Hand Over His Film."

Basically, a photographer was taking pictures of the rides at Coney Island, when "an irate mother complained to police that he had photographed her child." So, "a New York City police officer ordered Lund to either destroy his film or hand it over to the child’s mother." He claims "he was photographing the rides, something he does on a regular basis, and was not aware if he had photographed the woman’s child." Pressured and bullied by the officer, he gave the film over to the woman. Now, he plans on filing a complaint with the Civilian Complaint Review Board, and the New York Civil Liberties Union is looking into the matter.

It is clear that there is a war here between privacy, and a public's right to knowledge, or in this case, artistic expression. One most decide if the woman's right to protect her child from prying eyes (or camera lenses), even in a public place, is greater than the photographer's right to photograph what he wishes.

First, it should be known that, "The general rule in the United States is that anyone may take photographs of whatever they want when they are in a public place or places where they have permission to take photographs. Absent a specific legal prohibition such as a statute or ordinance, you are legally entitled to take photographs. Examples of places that are traditionally considered public are streets, sidewalks, and public parks." That is according to lawyer Bert P Krages II, who specializes in photography in the law, and his pamphlet "The Photographer's Right." So it is clear that the photographer was not against the law, as Coney Island is a public place.

However, there is a strong argument in favor of the woman and her child. While I am not a mother myself quite yet, I can't imagine what it would be like to have someone come up, unannounced, and begin to take my child's photograph. You would have no idea what the photograph will be used for. It could be for commercial reasons, or even for something more foul,
such as child pornography, and both of those are highly illegal. (A commercial photgraph would require consent). The photographer could be a convicted sex offender for all anyone could know. And as the child is too young to stand up for himself, the mother has every right as his guardian to protect him.

However, this is a public place. I believe that the mother assumed risk in coming out into a public place. Especially a place like Coney Island, where picture taking is quite common. If the mother wanted privacy, she could have stayed in her home. As the Photographer's Guide to Privacy states, "If the subject of the photograph has no reasonable expectation of privacy, then no invasion of privacy is possible. Photographs taken in public places generally are not actionable." This is a clear defense against invasion of privacy and the privacy torts. (It should be noted that public places such as toilets, dressing rooms, etc. are exempt from the public realm - however this has no applicability to this case)

In the case Nussenzweig v diCorcia, the New York Supreme Court clearly states "This Court has observed that New York's privacy statute 'was mainly designed to operate in connection with the sale of goods and services,' and that its application to works involving literary and artistic expression protected by the First Amendment 'was remote from the Legislature's contemplation.'" Basically, unless the photograph is slapped on a mug or tshirt and sold in bulk, then taking photographs in public without consent is legal. Although we can't be sure that the photographer in this case wouldn't have ended up using it commercially, he had not at the time of the confrontation, so we must give him the benefit of the doubt and not merely assume he would have committed a crime.

Also in this same case is an affadavit from one Peter Galassi, Chief Curator of Photography of The Museum of Modern Art. He goes on to talk about how important street photography is in the artistic world. Here are some excerpts from the case:

"[Peter Galassi] describes street photography as 'one of photography's most important creative traditions.' As to seeking permission to photograph a subject and to exhibit, publish and sell images captured by the photographer, he states, 'It would be highly impractical--indeed, in the overwhelming majority of cases simply impossible--for the photographer to obtain such permission.'"

"Galassi asserts that had the genre been burdened by the kind of restrictions now sought to be imposed by plaintiff, the public would have been deprived 'of one of the most valuable traditions of our cultural inheritance, including many of the most admired works of artistic photography of the past century.'"

As we can clearly see, there are strong reasons against stifling one's artisitc expression and first amendment rights. The public has a right to view new and exciting works of art that help expand upon our cultural heritage. And, in order for artisitic expression to bloom, the public must be willing to risk a bit of their privacy. That is the price we must pay.

And if you're curious, here's the link to view some of his photos from the day. I also encourage you to browse Mr. Miller's website. Some of the cases are quite ridiculous! I learned that the NYPD has a strong history of imposing upon photographers' first amendment rights. Even more interesting the outcome of Mr. Miller's case. Apparently, his judge was upset that he blogged about his case and imposed more probation than the prosecutors were even asking for in retaliation...

I'm going to forward this to 391 of my professors! Oh wait...

After the heated discussion in class on Monday concerning the Hamidi v Intel case, I searched the web looking for answers concerning spam and private property. What I found only raised more questions in my mind.

On September 15th, 2008, Kara Spencer, a senior and associated students director at Michigan State University, sent out a mass email to 391 professors regarding a proposal announced by the Provost. The proposal was to shorten the fall semester, creating less time for new students to become acclimated and a new final exam schedule, which overlapped into the weekend. For various reasons, Spencer and many others on campus did not agree with this proposal. She emailed professors from her private gmail account, explaining the proposal and encouraging them to contact the Office of the Provost if they had questions or concerns. You can find a copy of her email here.

Here's where the story gets interesting. One professor on campus became upset, worried that Spencer had accessed a private listserv (which she had NOT). So Spencer had a Disciplinary Allegation Form filed against her, was accused of breaking 3 school policies regarding bulk email, and was to be seen before a hearing for not complying with policies. A copy of the charges can be seen here.

First, there is no question she broke University policy. The policy states that a student can only send email to a "small set of recipients". And I quote: “'Small set of recipients' means the size of individual-recipient address lists (To, CC, BCC fields) typical of most e-mails in common use, ranging from 1, to a few, to as many as may be involved in a large committee or work group (~20-30)." Basically, emailing over 30 people without use of a listserv or University approval is against school policy.

Very well, she broke school policy. But my question is, is that policy even legal? I'd like to look closely at the online policy, as well as the allegations on her disciplinary allegations form that deal with the school policy.

First, I'd like to look at the sentence in the school policy that states:

"Although the user sent the email from a gmail account, the emails were distributed to the recipients through the MSU network and were relayed using MSU email servers to MSU email accounts."

One only needs to remember the decision in Hamidi v. Intel. Even though Intel's servers were private property, Hamidi was able to send mass emails through them due to the very nature of the servers and the fact that his emails were not commercial. Intel was the "post master general" in this situation. So by precedent, anyone sending emails through MSU servers is legal as long as it is not spam.

But what is spam? According to the University's "Guidelines," spam is any "undesired email." A very broad definition. I receive emails daily from the University that I consider undesirable. According to the law review "Invasion of Privacy v Commercial Speech," spam is defined clearly by the Congressional "Can-Spam Act" of 2003. It states, "The Can-Spam Act defines spam e-mail as a 'commercial electronic mail message,' which means 'any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose)'" Very different definitions.

So in the interest of the case of Spencer, were her emails spam? In the law review "Hi-Tech in the Law Office: The basics of spam and strategies for defense," they list the 8 requirements and prohibitions an email must meet to not be considered spam, as laid down by the "Can-Spam" Act of 2003.
1) Cannot falsify or disguise the sender's true identity.

• Spencer's email address was clearly displayed, and her name and contact information was given at the bottom.

2) Cannot have misleading subject lines.

• The subject line was "Changes to Academic Calendar," a perfectly accurate subject.

3) Cannot harvest email addresses automatically through a system...etc...

• Spencer did not have a spam server randomly generating email addresses for her. They were specifically chosen by her.

4) A business cannot knowingly promote themselves falsely or with misleading information.

• Spencer was not promoting a business so this is not applicable.

5) Must include a legitimate return address for the sender.

• Spencer's email address was clearly visible at the top and she actually provides a contact address for herself at the end.

6) Must have an opt-out mechanism for receivers to opt-out of receiving future emails.

• This is a tricky circumstance, since Spencer did not use automated machines like typical spam. However, receivers are able to block her address, create a filter, or request to not receive more emails.
  

7) Must be clearly identified as containing sexually oriented material if applicable.

• This scenario is not applicable to this situation.

It seems Spencer's email passes the spam test! Not only that, but her speech can also be considered political speech, as it concerns a public school proposal that was proposed by school administration. And as the "Can Spam" Act states, "The Act does not apply to political or charitable spam."

But not so fast. As MSU's policy states:
"1. Prohibited uses: Bulk emailing may NOT be used for personal purposes, advertising or solicitations, or political statements or purposes."

Now hold on a second. A student at a public University cannot send an email to over 30 people concerning politics? I don't even feel the need to say much on that other than it seems completely illegal. Protection of political speech is perhaps the most important reason we have the First Amendment at all.

I must be fair to the University however. Apparently, it's okay to send bulk email, including political speech, as long as it is approved first by the University. As Spencer's allegation document states:
"The student used MSU computing resources in a way contrary to the guidelines which clearly state that proper authorization is needed to send bulk emails."

Is it right for the University to have to approve speech? Including political speech? I feel no. I have a feeling that if Spencer had sent a pro-administration email, she would not have been silenced. The University claims in a news article that

"It is clear that this policy is content neutral and is a set of procedural requirements that apply to all bulk use of the e-mail system, as opposed to a policy that makes distinctions based on the content of particular e-mails. It is our belief that such a policy does not impose unlawful restrictions on free speech."

But what criteria must a bulk email meet before it is approved? Must it be desirable? (since that is their definition of non-spam). That seems very subjective to me, and would absolutely result in content discrimination in my opinion.

To wrap up my thoughts, I do believe it is clear the Spencer violated a school policy. However, I feel this policy is not legal. It clearly goes against our First Amendment rights. It goes against court precedent, against legislative terminology (what spam is), against freedom of political speech, and against non-discrimination of content.

Doninger v "Douchebags"

This past weekend, I found an interesting article linked from a website I frequent. The article concerned Avery Doninger, a student at a public high school, and the fight for protection of her freedom of speech against her school administrators. Avery, a junior and Secretary on the student senate, was frustrated with her school's principal and superintendent for continuously postponing a "Battle of the Bands" the school was to host. In her anger, she wrote a blog on "Livejournal" one night from her home computer calling the administrators "douchebags" and encouraging other students to write, email, or call in with their complaints to the school. As punishment, the school would not allows Avery to run for student senate her senior year, citing the blog entry as proof she does not have the respect and responsibility they felt was required to represent her class on student senate. You can read the article here.

The question this case boils down to is when does a student actually leave the school's jurisdiction? While this question was addressed in Morse v Frederick, the question takes on a while new meaning in regards to the Internet. The Internet is public is it not? How then can a school cite a sphere as public as the Internet in punishing students? Well, as Judge Newman warns us in the case Thomas v Board of Education, "territoriality is not necessarily a useful weapon in determining the limit of school administrator's authority." Basically, as long as the school finds "substantial disruption," as determined by the Tinker v Des Moines case, it does not matter what medium or territory the disruption was fostered in. This includes a medium as public as the Internet.

So, could administrators truly "reasonably forecast" "substantial disruption" from her comments? While there is no test for what can be "reasonably forecast" as set down by Tinker, I feel, as did the US Supreme Court, that there could be "substantial disruption." While the blog was written from a home computer, the blogs are still accessible via the school's computers. Also, as cited in the original Doninger v Niehoff and Schwartz (the principal and superintendent respectively) her blog "was purposely designed by Avery to come onto school property." She had hoped students would read and respond to it, even encouraging students to plan a sit-in, which would greatly disrupt student learning.

However, I am not ready to side with the courts just yet. I find it difficult to readily accept any regulation when it comes in the Internet, even by schools. Unlike broadcast, the Internet is a 24/7 medium. Broadcast, such as television and radio, has the ability to be regulated without a complete ban due to the "safe harbor" from 10pm until 6am as cited in the Action for Children's Television v FCC case. However, you cannot regulate only SOME of the internet. There would be no end to the regulation once we begin, resulting in bans. Not to mention, you make all speech on the Internet merely "fit for children," and speech appropriate for adults is lost from the marketplace of ideas. If Avery can't write her feelings in a personal blog, from a home computer, then where and when can she? Also, as stated in Reno v ACLU, there is no "captive audience" on the Internet; people can choose to browse where they please. Avery did not email a link to her blog to all students nor force anyone to read it. Students who wished to read it had to actively seek it out and read it. Even the courts realize the danger of regulating the internet. As the opinion in Reno states, there is "no basis for qualifying the level of the first amendment scrutiny that should be applied to this medium."

Even as a future educator, I feel it unnecessary to regulate students on the Internet. Name calling, while immature, is not means for disciplining inside the school when written on a medium as free as the Internet.