Monday, May 2, 2011

Free Speech?

Twitter and Facebook Absent in Signing
of Universal Fr
ee Speech Pact

A code of conduct to protect online free speech and privacy in restrictive countries was signed by major technology companies such as Google, Yahoo, and Microsoft. The involvement of these three power playing internet companies dates back to 2008, and they hoped that other companies would follow in their lead of a rallying moment for a core cause. Noticeably absent from the free speech pact are social media platforms such as Facebook and Twitter. All of the participating companies that signed the free speech pact are American companies; There is a void in the global initiative of advocating the protection of free speech. Although Facebook and Twitter are widely used by large audiences and activists in other countries in the Middle East and all over the world, they are not involved in this protection of free speech pact. Because free speech laws and the First Amendment only applies to the United States and are not global laws, there is a controversy on whether or not companies who have signed the free speech pact (Google, Yahoo, and Microsoft) have the adequate power and policies to even address the privacy and free speech issues. It is up to independent auditors to examine and interpret whether or not the companies adhere to government demands for user information and to decide whether they store users’ data in countries where free speech is protected. Susan Morgan, the executive director of the Global Network initiative, said that, “Recent events really show that the issues of freedom of expression and privacy are relevant to companies across the board in the technology sector, things really seem to be accelerating.” Facebook and Twitter have made a positive impact on freedom by highlighting the crucial role technology can play in the world’s most closed societies, which leaders of the initiative say makes their efforts even more important.

The code of conduct states that companies must try “to avoid or minimize the impact of government restrictions on freedom of expression” and protect user privacy when demands by government “compromise privacy in a manner inconsistent with internationally recognized laws and standards.” Although it sounds like companies must hold fast to these requirements, there is some wiggle room. Companies that abide by a country’s censorship requirements are able to remain in compliance with the code of conduct as long as they disclose it. The main idea of the free speech pact was to include as many internet companies as possible in order to create a greater influence and have more credibility. The companies who decided to refrain from signing the code of conduct have done so for reasons such as fearing the auditing process and not seeing any financial benefit from doing so.

A spokesman for Facebook, Andrew Noyes, did not comment directly on the topic of the free speech pact but says that, “As Facebook grows, we’ll continue to expand our outreach and participation, but it’s important to remember that our global operations are still small, with offices in only a handful of countries.” Social media sites such as Facebook and Twitter have had a huge affect on freedom of speech around the world, but the issues of privacy and free speech are still not black and white, especially when it comes to crossing country borders.

In order to be more influential, more companies will have to be added to the free speech pact. The initiative is modeled on previous voluntary efforts aimed at self-regulation and this one is no different as it came to life at a time when Internet companies were seeking to polish their image and potentially ward off legislation. The idea of the pact is to help companies do the right thing instead of having to play catch up after they mess up.

The Internet provides a forum for various outputs of information and communication services. In America, we take advantage of all the services that free speech can offer us. Despite what people assume, the internet is regulated and American citizens are not completely oblivious to the dangers that then internet creates. By signing the code of conduct, countries will be able to learn how to work collectively and to allow them to integrate and communicate freely with those outside of their countries. The key for this code of conduct to protect privacy and free speech is to get technological companies outside of the U.S. to sign it. If Facebook and Twitter were to sign the pact, the benefits of free speech would be easier to spread because of the audiences that the social networking sites attract.

- Jordan E. Strohl

Calvert, Mary F. 6 March 2011. The New York Times.

The Citizen Lab. 7 March 2011.

Kopytoff, Verne G. 15 March 2011. KOM105.

Image Source:

Appropriation in Video Games

The argument about whether college students athletes should be paid is long standing, and fierce debates have been going on from both sides for decades. However, in the case of Sam Keller v. Electronic Arts and the National Collegiate Athletic Association, there is a relatively new issue at hand -- and it may have implications far beyond athletics.

The class action lawsuit was first filed in May of 2009 in U.S. District Court in San Francisco. Keller, a former quarterback for the Arizona State Sun Devils and the Nebraska Cornhuskers, sued Electronic Arts, a video game company, the Collegiate Licensing Company and the NCAA over the use of players likenesses in its video games. Keller claims that Electronic Arts knowingly uses the likeness of former and current collegiate athletes to increase profits.

Student athletes are not paid, they are given scholarships to attend schools which cover room and board as well as tuition costs and university fees. Depending on the type of scholarship, textbook costs may be covered as well. They are prohibited from participating in any commercial activity.

The district court ruled that Keller and other former college players were owed by Electronic Arts for being used in the video game series of NCAA Football.

Electronic Arts filed an appeal, in the 9th Circuit Court of Appeals, where the case is sitting at currently and many expect it will indeed reach the Supreme Court.

Electronic Arts defense in this case is that its games are creative works of art, and using a players likeness in this case is protected under the First Amendment. They never actually name the players in the games, instead opting for generic names like “QB #10” or “WR #88,” referring to the players position and jersey number. However, Keller’s side argues that these games are not creative, they are intended to be realistic representations of the real life sport and have no true “creative” imaginative side to them. Looking at the picture above, courtesy of the Los Angeles Times, it's clear this was intended to be a realistic representation of Keller. The image on the right, Keller in NCAA Football 07, mimics what Keller looks like in real life to the left, down to the wrist bands on the arms.

District Court Judge Claudia Wilken sided with Keller on this issue. She said that the game did not do enough to "transform" the images of the players to qualify for First Amendment protection.

Since Electronic Arts is based in Rosewood, California, Keller filed his claim in California. In California, the right of publicity is protected by both common law and statute. Keller had to show, under common law, three steps. First, he had to show that Electronic Arts used his and other players identities, whether that be his name, voice or likeness. Second, he had to show that using his identity resulted in profitable and commercial gain for Electronic Arts. Finally, Keller also has to prove that all of this resulted in any type of injury to himself.

Keller asserts that while his name may not have been used in the video games, his likeness certainly was. His height, weight, age, position, jersey number and hometown were all accurately depicted, the only thing stopping it from fully representing Keller was that there was a “QB #9” on the back of his jersey in the game rather than his real last name. Keller also argues that in recent years, with new technology, Electronic Arts has been skirting the no-name issue by allowing a feature in their game called the “EA Locker.” This allows those who purchase of the video game to re-name and create rosters and upload them for anyone who has the game to download. In mere seconds, a person sitting down to play the game could have every college athletes name in the game.

Another issue that Keller brings up to prove the first point is about the audio commentary in these games. Just like in real life, there are play-by-play announcers and color commentators who provide a backdrop into what is going on during the game. In the NCAA football video games, the commentators will announce a player as their jersey number rather than their name. However, if anyone edited a players name to their real life counterpart, or downloaded a roster from the “EA Locker” feature, the announcers would say that players last name instead. Keller argues that Electronic Arts knowingly had their announcers read off last names of players in the recording studio, so that when edited, their names would be announced in the game. Keller says this feature is also adding to the realism, which in turn is helping in sales of the game. Not every player has his name recorded, but rather star players and those with common last names.

If the Court ultimately rules in favor of Keller, this would be a severe blow to Electronic Arts. They would either have to stop producing their annual college sports games, which have sales numbers in the millions, or continue producing them but be forced to use very generic players which would result in a major sales decrease. This is how Keller would prove that his and others likenesses are beneficial financially for Electronic Arts.

As mentioned earlier, there are implications in this legal battle that stretch beyond games and sports. Major corporations and organizations are taking sides on this issue, as many foresee this issue going all the way to the Supreme Court. The Motion Picture Association of America, ESPN, Viacom, Gannet publishers and Hollywood Studios are just some of the companies who are backing Electronic Arts in this case. These organizations argue that this will severely stifle artistic expression, and use examples with movies such as "Forrest Gump," which uses celebrity images. They argue that under the First Amendment, they have the right, for creative purposes, to use the images of public figures.

The Screen Actors Guild, A.F.L.-C.I.O, the unions of Major League Baseball, the National Hockey League, and the National Football League, the American Federation of Television and Radio Artists and other athletes are backing Keller, claiming they have a right to control their public image they worked hard to create.

A previous case dealing with image likeness in the same Court of Appeals was WHITE v. SAMSUNG ELECTRONICS AMERICA, INC, 989 F.2d 1512 (1993). The 9th District Court of Appeals ruled in favor of the plaintiff, Vanna White from Wheel of Fortune, who sued Samsung over an ad that featured a robot wearing a wig and a gown who turned letters over on a board resembling that used in Wheel of Fortune. The court stated that if viewed individually, there was no real harm, but if viewed collectively, there was little doubt that it was Vanna White that was being portrayed in the ad.

Another case, this one more closely connected to the Keller case, was BROWN v. ELECTRONIC ARTS, INC, 722 F.Supp.2d 1148 (2010). James "Jim" Brown, a Hall of Fame running back in the NFL that played on the Cleveland Browns, sued Electronic Arts over using his image and likeness in their Madden football video game series. They again, in this instance, used retired players like Brown as part of a "throwback" selection of teams to choose among. Browns career statistics and likeness were used, and just like in the NCAA games, his last name was not used.

Ultimately, I think the district court ruling will be upheld in the appellate courts hearing. This would then propel the case to the Supreme Court, who, due to the extenuating circumstances surrounding the case and all of the far reaching implications it has, would have to hear the case. In the end, whatever the Supreme Court decides will be a landmark decision in this ongoing legal battle, and it will have an affect on all forms of media.

*Image courtesy of the Los Angeles Times


Wednesday, April 27, 2011

Civil Liberties Trump Religious Beliefs

CLS v. Martinez

561 U.S. 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010)

Decided: June 28, 2010

In a landmark Supreme Court decision in which the University of California’s Hastings Law School ruled [5–4] in favor of the public law school’s decision not to grant recognition to a Christian student organization. The Christian Legal Society (CLS), a religious student organization at Hastings, filed suit for injunctive and declaratory relief against the university in a California federal district court for violating its First Amendment rights (free speech and free exercise of religion).

Hastings College of Law is a public law school in California that has a policy prohibiting discrimination on the premises of “race, color, religion, national origin, disabilities, ancestry, age, sex or sexual orientation. Leo Martinez is the Dean and Acting Chancellor, Hastings College of the Law.

CLS applied to become a “recognized student organization” but was denied by Hastings. CLS was denied because their “Statement of Faith,” a requirement that every member of the student organization must follow states that “Christians should not engage in sexual conduct outside of a marriage between a man and a woman,” conflicted with Hastings nondiscrimination policy. Clearly, CLS’s Statement of Faith excludes gays and lesbians; hence the student organization does not accept anyone who engages in “sexual conduct outside of a marriage between a man and a woman.”

CLS allows students to become voting members and to assume leadership positions only if they affirm what the group calls orthodox Christian beliefs and disavow “unrepentant participation in or advocacy of a sexually immoral lifestyle.” Such a lifestyle, the group says, includes sexual conduct outside of marriage between a man and a woman.

CLS sued Hastings, asking for no different treatment than is given to any registered student group, thus violating its 1st Amendment rights. The district court granted Hastings summary judgment and the Ninth Circuit affirmed. The Supreme Court granted certiorari to determine whether Hasting’s refusal to grant CLS access to student organization benefits amounted to viewpoint discrimination, which is impermissible under the First Amendment. (CATO Institute, CLS v. Martinez, Feb. 3,2010 Legal Briefs)

In 1993, CLS student chapters started frequently being denied access to meeting space and campus communications because it requires its voting members and leaders to share its Statement of Faith.

The two sides disputed the legal principles involved but also what had happened at Hastings College of the Law in San Francisco, the defendant in the case. The school merely applied a neutral “all comers” policy to every group that sought official recognition. Recognized groups were entitled to modest financial assistance, use of the school’s communications channels and meeting space as well as the use of the school’s name and logo, as long as all students were allowed to participate in their activities.

Involving a conflict between religious freedom and anti-discrimination principles, Justice Anthony M. Kennedy is in the majority. Justice Ruth Bader Ginsburg, writing for the majority, said for public institutions of higher education, that it was “constitutionally permissible” to require recognized student groups to accept all students who wished to participate in them. (NY Times,


CLS allows students to become voting members and to assume leadership positions only if they affirm what the group calls orthodox Christian beliefs and disavow “unrepentant participation in or advocacy of a sexually immoral lifestyle.” Such a lifestyle, the group says, includes “sexual conduct outside of marriage between a man and a woman.”

The ACLU illustrates the long history of discrimination on university campuses arguing that Hastings has a compelling interest to ensure any recognized and university funded student program is open to all students enrolled at the school. (Christian Legal Society v. Martinez, June 28, 2010, American Civil Liberties Union)

Justice Alito admitted the decision made was a “serious setback for freedom of expression in this country.” The Supreme Court’s 5-4 decision in favor of Hastings set the precedent for challenging freedom of expression under the First Amendment specifically within the context of student organizations’ rights at universities.

Future cases may or may not see as close of decisions as the search for the middle ground continues to be a daunting task in our country and obviously in our world.

By: Joshua Willgruber




2. NY Times,

3. martinez

Additional Sources


Thursday, April 21, 2011

Is the First Amendment Too Protective of Controversial Speech?

Matt Yost

Snyder v. Phelps, 130 S. Ct. 1737 - 2010

Over the past twenty years or so, the members of the Westboro Baptist Church have been making headlines across the country with their radical beliefs and protests. Often carrying signs containing such messages as “Priests Rape Boys,” and “God Hates Fags,” the members of this church represent an example of the extent of the power of the First Amendment.

In March of 2006, U.S. Marine Lance Corporal Matthew Snyder was killed in action in Iraq. His funeral was held in Westminister, Maryland, where Snyder was born. The congregants of the Westboro Baptist Church worked with local authorities to plan their picket. The church members protested approximately 1,000 feet from the church in a public space. The protestors did not disrupt the funeral, and Snyder’s father conceded that he could not read the signs and only discovered what they said later that night when he watched the news on TV.

Snyder filed suit in the District Court of Maryland and was awarded nearly $11 million in damages for compensatory damages, emotional distress, and punitive damages. The leader of the WBC, Fred Phelps, filed an appeal and also sought a mistrial based on a statement the judge made to the jury. Judge Richard D. Bennet informed the jurors that the First Amendment protection of free speech has limits, including vulgar, offensive and shocking statements, and that the jury must decide "whether the defendant's actions would be highly offensive to a reasonable person, whether they were extreme and outrageous and whether these actions were so offensive and shocking as to not be entitled to First Amendment protection."

Bennet reduced the total damages to five million dollars in 2008, causing Phelps to file another appeal in the Fourth Circuit Court of Appeals. Phelps won the case on the grounds that the case was decided as a matter of law instead of as a matter of fact. The court dropped all damages against Phelps and ordered Snyder to pay about $16,000 to Phelps to pay his court fees.

In March of 2010, Snyder filed a writ of certiorari with the Supreme Court of the United States. The case was heard October 6, 2010 and decided March 2, 2011. Eight judges sided with the majority, one judge concurred, and one judge dissented.

The Justices of the Supreme Court decided to choose the case because of its First Amendment implications. The controversial issue here was to decide if First Amendment protection was forfeited if the speech concerned was particularly disgusting and distasteful. The Court also wished to determine several other things which are spelled out in the case abstract and opinions published by the justices. One such question they wished to answer was whether the prohibition of awarding damages to public figures to compensate for the intentional infliction of emotional distress, under the Supreme Court’s First Amendment precedents, applies to a case involving two private persons regarding a private matter. Another was whether the freedom of speech guaranteed by the First Amendment trumps its freedom of religion and peaceful assembly. Lastly they wanted to determine whether an individual attending a family member’s funeral constitutes a "captive audience" who is entitled to state protection from unwanted communication.

Fred Phelps, leader and founder of the church based his argument on his First Amendment rights. He and his followers claimed that they were not specifically targeting Snyder, they were just using the funeral as a backdrop for their message to reach a larger audience. The Church followed local police guidance, and did not break any laws or “invade” the funeral. They kept their distance from those attending the funeral, and limited their message to opinions concerning public issues.

Snyder argued on the basis of emotional injuries. He claims to have become physically ill at the thought of the Church picketing at his innocent son’s funeral. Snyder’s diabetes became more severe as a result of the funeral protest. He now also suffers from depression. Snyder also added a “captive audience” element to his lawsuit, claiming that he was forced to listen to the protestors and could not escape their messages.

The Supreme Court ruled in favor of Pastor Phelps, in an 8-1 majority decision. The lone dissenting opinion was that of Justice Samuel Alito. There was one concurring opinion which was delivered by Stephen Breyer.

Justice Roberts delivered the majority opinion of the Court. He explains a plaintiff [in this case, Snyder,] may be successful in a suit for intentional infliction of emotional distress if “the defendant intentionally or recklessly engaged in extreme and outrageous conduct that caused the plaintiff to suffer severe emotional distress.” However, he also makes sure to point out that speech that is of public concern cannot be censored because it is at the core of the meaning of the First Amendment.

But how does the Court determine what speech is of public concern and what isn’t? Roberts reveals that in Connick v. Meyers (461 U.S. 138103 S. Ct. 1684,75 L. Ed. 2d 708,1983 U.S.) the court ruled that speech that is of public concern is speech which can be “fairly considered as relating to any matter of political, social or any other concern to the community;” or which is “a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Similarly, in Rankin v McPherson (483 U.S. 378 (1987). 483 U.S. 378,) the court ruled that the controversial or polarizing nature of statements is irrelevant in determining if a statement is of public concern. The fact that the protest coincided with the funeral do not escalate the statements to private concern since they were made on public lands and regarded U.S. military policy. Roberts writes: “Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt.”

In regards to the “intrusion upon seclusion” aspect of the lawsuit, the Court ruled in favor of Westboro. This was due to a lack of evidence that the protestors disrupted the funeral proceedings in any way, and also due in part to Snyder’s admission that he could only see the tops of the signs and that he hadn’t known the reason of the protest until later that night. The same reasoning also was used to dismiss “captive audience” tort as well.

In his dissenting opinion, Justice Alito argues in favor of Snyder, claiming that the protestors viciously attacked both Matthew Snyder and his father in ways so egregious as to bypass the public concern issue and jump straight to defamation and intentional infliction of emotion distress. Alito writes that the Church’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Alito also argues that the speech goes beyond “public concern” because a reasonable person who viewed signs reading “God hates fags” at a funeral would logically assume that the signs refer to the deceased. This essentially personally attacks Matthew Snyder, and becomes personal and defamatory. This also meets the “fighting words” standard established in Chaplinsky v. New Hampshire (315 U.S. 568 (1942).)

The Court’s ruling in this case allow for a liberal interpretation of freedom of speech. Free speech advocates have won a large victory since the court has now decided that speech cannot be outlawed simply because it hurts another person’s feelings. To value one person’s feelings in higher regard than the speech of another would undermine the entire First Amendment.

Forty two senators, including Majority leader, Harry Reid, and Minority leader, Mitch McConnell, filed briefs on behalf of Albert Snyder. Their basis relied on state laws in forty six states which regulate protests at military funerals. These laws have been declared constitutional in the past because they advance a legitimate government objective, and still allow for the message to be spread in forums other than protests.

Political commentator, Bill O’Reilly, offered to help Snyder pay his legal fees. O’Reilly has been outspoken with his disagreement in the ruling in this case.

Wednesday, April 20, 2011

Privacy, Wire Tapping & Journalist's


On 9/11 the world as we know it changed in ways we were aware of, and in other ways that citizens had no inkling about.


Soon after the attacks in an attempt to track suspected terrorist activity, President Bush issued an executive order authorizing the National Security Agency (NSA) to conduct surveillance of phone calls without obtaining a warrant from the without obtaining authorization from the Foreign Intelligence Surveillance Court (FISA) as called for as directed by the 1978 Foreign Intelligence Security Act (FISA).

First Light

The New York Times first reported the existence of the program on December 16 2005"Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials."

The president at the time and the administration claimed it had the right to secretly observe citizens without a warrant.

A Case Study

Lawrence Wright, was one person the NSA had “warrant less taps” on.
The problem in this particular case is Wright is a journalist, film-maker, and Pulitzer Prize-winning author of "The Looming Tower: Al-Qaeda and the Road to 9/11" which was turned into an HBO Documentary.
Wright told his story to National Public Radio in an interview on February 6 2009.
“...they (Federal Agents) began asking if the person on our end of the call, my end, was named Caroline. And that’s my daughter’s name. And they asked, you know, is her name Caroline Brown? And I said, no, she’s, you know, a student at Brown. But I said, her name’s not on any of our phones. How do you know this information? Are you listening to my calls?"

Wright the journalist about everything on Al-Qaeda at the time had his privacy invaded seemingly "working a story."

Can this be done? What are the rights of journalist's in such an instance? Can our government gathers, analyze, and disseminate information furtively from the member of the press?

A Brief History of Protections for Journalists

The Privacy Protection Act (PPA) of 1980 is a piece of legislation which goes to the heart of the matter. Coming to fruition as a Congressional response to Zurcher v. Stanford Daily, 436 U.S. 547 (1978). That case arose when police conducted a warranted search of the Stanford Daily's newsroom seeking photos of a demonstration at which officers were injured. Staff of the paper attended the reported violent demonstration, photographed it and ran the story the following day.

The publication challenged the search in federal district court, which concluded the search unlawful saying “"[i]t should be apparent that means less drastic than a search warrant do exist for obtaining materials in possession of a third party." Therefore, in most cases, "a subpoena duces tecum is the proper -- and required -- method of obtaining material from a third party."

Subsequently, The Court of Appeals affirmed per curiam the District Court's finding that the search was illegal. However, the Supreme Court of the United States held that neither the First nor Fourth Amendment prohibited this search. The Court stated: "Under existing law, valid warrants may be issued to search any property, whether or not occupied by a third party, at which there is probable cause to believe that fruits, instrumentalities, or evidence of a crime will be found. Nothing on the face of the Amendment suggests that a third-party search warrant should not normally issue."

The Aftermath

Two years after the Zurcher ruling Congress passed the Federal PPA to overrule the position of the Supreme Court. The principle being journalists have a need to gather information and disseminate it without the shadow of governmental interference looming over them.

In furtherance of that idea, and more importantly for citizens of the United States on March 31 2010 Federal Judge Vaughn R. Walker chief Judge of the Federal District Court in San Francisco ruled the eavesdropping program illegal, concluding "it violated 1978 Federal Statute requiring court approval for domestic surveillance... "and ."..would enable government officials to flout the warrant law, even though Congress had enacted it “specifically to rein in and create a judicial check for executive-branch abuses of surveillance authority.”

In light of this recent decision, and prior to it, Justice Department Spokeswoman Tracy Schamler said, "The Obama administration, had overhauled the department’s procedures for invoking the state-secrets privilege, requiring senior officials to personally approve any assertion before lawyers could make it in court. She said that approach would ensure that the privilege was invoked only when “absolutely necessary to protect national security.”

Conclusion & Notes

Justice Black said it best in the "Pentagon Papers" case, “Paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell.”

The right of the press to perform its essential function as an "Unofficial Fourth Branch of Government" (Columbia Journalism Review, 2010) and report information need always be free of a governmental ghost is paramount to the freedoms guaranteed in The First Amendment.

If those freedoms are curtailed interfered with, or abridged in any way, we need only look at the recent events in the Middle East as a reference point in what can happened to journalists on the wrong side of the globe.

It is said "The Duty of Government, is to Protect the Powerless, Against the Powerful." In the case of Lawrence Wright, who's supposed to be protecting him?

Answer: The Privacy Protection Act (PPA)

Note: Wright wrote the Screen Play for the movie "The Seige" (1998) before the events of 9/11.

If you never saw it-The Movie starring Denzell Washington and Bruce Willis tells the story New York being bombed by terrorists, Marshall Law being implemented, and US Troops roaming the streets of New York City.

You can find Wrights HBO Special on YouTube at this link

His Interview with National Public Radio

Its Beyond the surreal.

Jeff Bohen

Journalism & Law

WHIP Student Run Radio

Host "Run Down"

Publish Post

Save as Draft

Tuesday, April 19, 2011

Wikileaks Twitter Case

On March 11, the U.S. District Court for the Eastern District of Virginia ruled on the United States v. Appelbaum, upholding a previous order which instructed Twitter to turn in Twitter records related to the government’s investigation in the Wikileaks case.

On Dec. 14, 2010, as part of its ongoing investigation concerning Wikileaks, the U.S. government subpoenaed Twitter to hold over its records, not the content of the actual Tweets which was already public, concerning certain people involved in the case.

The order demanded the: (1) Subscriber names, user names, screen names, or other identities. (2) The mailing address, residential addresses, business addresses, email addresses and other contact information. (3) Connection records or records of session times and durations. (4) The length of service, start date and types of service utilized. (5) Telephone or instrument number of other subscriber number or identity, including any temporarily assigned network addresses. (6) Means and source of payment for such service, which would include credit card or bank account numbers, and billing records. (7) Non-content information associated with the contents of any communication or file stored by the accounts, such as the source and destination email address, and IP addresses.

In line with the Stored Communications Act of 1986, the court issued an order requiring Twitter to turn over the above information regarding the following individuals and accounts: Julian Assange, Bradley Manning, Rop Gonggrijp, Birgitta Jondottir and Jacob Appelbaum. Appelbaum, Gonggrijp and Jonsdottir, moved to fight the order, which the courts upheld in March.

Law that has been discussed in the case is the Stored Communication Act of 1986, part of the Electronic Communications Privacy Act, which explains that in handing information over to a third party, you’re relinquishing the reasonable right to privacy in most cases.

When Forbes’ Law and Technology Ben Kerschberg considered the case, he wrote that the district court considered four legal issues: (1) Did the petitioners have a legal standing under the Stored Communications Act to bring a motion to vacate? (2) Was the court’s original order properly issued? (3) Did the original order violate the petitioner’s First Amendment and Fourth Amendment rights? (4) Should the order be vacated?

Kerschberg added that the principles at stake in technology-focused cases are extremely important and judges “are expounding upon them.” In this case, the court found that the subpoena may be challenged when a costumer of the third-party, in this case Twitter, if the person’s “contents of electric communications are requested.” The court reasoned that in this case, on the records were requested.


Monday, April 18, 2011

Limitless Corporate and Union Spending for Political Candidates

By: Abby Rosier

The 2010 United States Supreme Court case, Citizens United v. Federal Election Commissions 08-205, held that corporations of independent political broadcasts are permitted to spend and use unlimited amounts of money to support or oppose political candidates. The Supreme Court found banning corporation’s political spending in candidate elections violated two important precedents of corporation’s First Amendments rights. In a 5 – 4 decision in favor of Citizens United, the Supreme Court ruled that Government does not have the right to ban free political speech for corporations and unions.

The Court’s decision resulted from a dispute with Citizens United, a non-profit organization, in January 2008. Appellant Citizens United released a film showing a critical image of Hillary Clinton in a documentary called Hillary: The Movie. During this time, Hillary Clinton was Senator and candidate for the Democratic Party’s Presidential nomination. Advertisements for the documentary were shown on cable and broadcast stations and were to be released within 30 days of the Democratic Presidential primaries in 2008. The film was shown in theaters in six cities. Court documents show the organization also made plans to make it available on an on-demand service and broadcast ads for it.

This action directly violated that of case McConnell v. Federal Election Commission 540 U.S. 93 (2003), which upheld part of the Bipartisan Campaign Reform Act of 2002 – §319(a). The Bipartisan Campaign Reform Act (BCRA) restricted corporation and union spending on campaign elections. Also known as McCain-Feingold, the law restricted broadcasting, cable, or satellite transmission of “electioneering communications” by corporations or labor unions within 30 days of the presidential primary elections and 60 days of general elections. Citizens United also violated that of case Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990), which restricted corporate spending for or against political candidates.

Citizens United was concerned that its film Hillary: the Movie would violate the BCRA for civil and criminal penalties (Liptak 2010). In January of 2008, Citizens United sued the Federal Election Commission in the District Court for the District Court of Columbia (Citizens United v. Federal Election Commission 552 U.S. 1240). Citizens United claimed that banning “corporate independent expenditures for electioneering communications” is unconstitutional under 2. U.S.C.S. §441b and that the “disclaimer and disclosure requirements” are unconstitutional under 2 U.S.C.S. §§ 434 and 441d. The Court denied the plaintiff’s request for a preliminary injunction.

However, in January 2010, the case was appealed from the United States District Court of Columbia with appellant Citizens United again suing the Federal Elections Commission and claiming the ban on corporate independent expenditures and the disclaimer and disclosure requirements unconstitutional.

In addition, Citizens United argued that the film was not an “electioneering communication” under §441b because it was to be shown on cable television through an on-demand service. The organization also argued that the speech did not “express advocacy or its function equivalent” to vote for or against a candidate under §441b.

The Court found that Hillary: The Movie offered no interpretation other than to vote against Senator Clinton and expresses advocacy, which was used in the McConnell case.

The U.S. Supreme Court on appeal from the January 2008 decision overruled portions of the McConnell v. Federal Election Commission (2003) that allowed restrictions on corporate independent expenditures. The decision also overruled Austin v. Michigan Chamber of Commerce (1990) ruling that the government is not allowed to limit political speech because of the speaker’s “corporate identity,” according to court documents.

Although the First Amendment states “Congress shall make no law…abridging the freedom of speech,” The Courts found that §441b restricts corporations First Amendment rights to freedom of speech. Justice Kennedy affirmed that “Political speech does not lose First Amendment protection simply because its source is a corporation… The United States Supreme Court has thus rejected the argument that political speech of corporations or other associations should be treated differently under the First Amendment simply because such associations are not "natural persons" (Citizens United v. Federal Election Commissions 2010).

The majority of Congress did agree that Corporations have to disclose their spending and to run disclaimers with their advertisements, court documents show. The Court found that the disclosure and disclaimer provisions under §§ 434 and 441d were Constitutional, given the Government’s interest in providing information to the electorate.

The final 5 – 4 Supreme Court decision was divided with the majority opinion delivered by Justice Kennedy, and with concurrences from Chief Justice Roberts and Justice Alito. Citizens United v. Federal Elections Commission also upheld reactions from politicians. President Obama commented stating, “a major victory for big oil, Wall Street banks, health insurance companies and other powerful interests that marshal their power every day in Washington to drown out the voice of everyday Americans” (Liptak 2010). Further, Retiring Justice John Paul Stevens wrote that this type of limitless spending given to corporations, and the decision made by the Supreme Court, was a “grave mistake treating corporate speech the same as that from individuals” (Communication and the Law 2011, 39).

However, the legal distinction between corporate speech and individual speech is notwithstanding the fact that a corporation can still speak. As Justice Kennedy and others found, prohibiting independent expenditures by corporation and union spending violated their First Amendment rights to freedom of speech. The court documents explain that a critical documentary of a political candidate is political speech protected by the First Amendment, whether given by a corporation or individual.


Austin v. Michigan Chamber of Commerce 494 U.S. 652 (1990).

Citizens United v. Federal Election Commissions 130 S. Ct. 876 No. 08-205 (2010).

Communication and the Law, 2011 Edition. W. Wat Communication and the Law, ed. Northport, AL Vision Press.

Liptak, Adam. “Justices, 5 – 4, Reject Corporate Spending Limit.” NY Times. 2010.

McConnell v. Federal Election Commissions 540 U.S. 93 (2003).

Does Homeland Security Go Too Far?

Kevin Acevedo

Department of Homeland Security: And How They Abuse Their Power

The American Civil Liberties Union (ACLU) filed a lawsuit on behalf of Pascal Adibor, against the Department of Homeland Security (DHS) after Adibor was detained by DHS. In Adibor vs. Naplitano 10-4059, Adibor was traveling home to New York from Canada and a Border Protections Agent took Adibor’s laptop and found a picture of the Hamas militant group, which had been downloaded from the Internet for schoolwork. It should be noted that Adibor is an Islamic Studies Ph. D. student. Adibor was handcuffed and taken into a holding cell for several hours before being let go with no charges. However, his laptop was detained for 11 days and he received an invoice saying that the contents would be copied and forwarded to any government agency that needed them. Two weeks later, he visited his girlfriend in Britain and upon his arrival; he was questioned at Newark airport.

Adibor is suing the DHS, saying that his First Amendment and Fourth Amendment rights were violated. His freedom of speech and association were violated and the DHS committed unreasonable search and seizure against Adibor. He feels as if the government will always have an eye on him. “I have no control over who I am anymore”, said Adibor. Adibor is challenging the DHS policy that, “authorizes the suspicionless search of the contents of Americans’ laptops, cell phones, cameras and other electronic devices at the international border.” The policy permits border agents to search and copy electronic devices without reasonable suspicion. “The policies also do not place any time limits on how long DHS can keep travelers’ devices, nor do they limit the scope of private information that may be searched, copied, or detained.”

Considering that Adibor is a Islamic Studies student, there is a good reason as to why he had pictures of a militant group on his computer. According to court documents, “the agents told Mr. Adibor that he had lots of “symbolic materials” in his possession and that he needed to explain the meaning of the materials and why he possessed them. They also asked him about his parents, travel history, and his perspective on the Middle East.” It seems as if these are unnecessary actions by the DHS seeing that they can pull up the information on whether or not he majors in Islamic Studies and look at his files through their database. The ACLU also filed a suit on behalf of the National Press Photographers Association, who travel with laptops and media storage devices to cover global stories. The ACLU claims that the, “search policies interfere with NPPA members ability to communicate confidentially with sources.” If I knew my source was revealed to the government, it would be an uneasy feeling that I would be dealing with because you don’t know what the government would do to someone that is speaking out against their policies or has a crime history.


Defamation and the Internet, can they coexist?

The internet has completely changed the face of human interaction. It has given people from all over the world the ability to engage in unrestricted dialogue on just about any subject matter of their choice. All this sounds very clean cut, informative and revolutionary. It can indeed be all those things but sometimes freedom of speech on the web can go in different direction. In some cases, speech that is published on the internet is done by an anonymous person. Today almost everyone has a blog or at least reads one but what happens when an anonymous blogger makes defamatory statements about a public figure? Can that public figure force the website operator to reveal the identity of the anonymous blogger? And the answer is yes, according to the Nissenbaum Law Group, “under certain circumstances people who defame others anonymously on the Internet may lose their anonymity.”

In Talley v. California, 362 U.S.Supreme Court 60 (1960) , Talley was charged with violating an ordinance that was passed in Los Angeles in 1935. The ordinance stated that citizens were forbidden to distribute any handbill that did not have the printed name and address of the person who prepared, distributed or sponsored it. Talley handed out handbills that read: "National Consumers Mobilization, Box 6533, Los. Angeles 55 Calif. Pleasant 9-1576." The handbills urged citizens to participate in a boycott of businesses that carried products of “manufacturers who will not offer equal employment opportunities to Negroes, Mexicans and Orientals.” A municipal court stated that the handbills did not contain enough identifying information to satisfy the ordinance and Talley was fined $10. A California Appeals Court affirmed the decision. Talley choose not to pay the $10 and appealed to the Supreme Court of California. He received six votes from the Supreme Court and 3 against him. Talley won his case.

In the of case, Doe v. Cahill, 884 A. 2d 451 - Del: Supreme Court (2005), Patrick Cahill was a City Councilman in Smyrna, Delaware. Cahill and his wife Julia filed a lawsuit against four John Doe’s for making defamatory statements about him on an internet blog. The doe used the alias “Proud Citizen.” Two statements were made on an internet website sponsored by the Delaware State News called the “Smyrna/Clayton Issues Blog.” The statements criticized Cahill’s ability to make constructive decisions for the community he served and the “Proud Citizen” went on to call Cahill paranoid. The anonymous blogger said that Cahill was suffering from “mental deterioration” and that he had failed as a leader. Cahill went to the court seeking to prove that he was defamed by the anonymous blogger and to find out the identity of the blogger. A Superior Court Judge applied a good faith law standard and ordered that the third Party, the website operator, reveal Doe’s identity. With this Cahill learned that Comcast owned the Doe’s IP address. Cahill acquired the court order that required that Comcast disclose the identities of the Doe.

In response to Cahill’s court order, Doe sought out to get an emergency protective order to prevent Comcast from turning over his identity. The trial court quickly denied Doe’s request for a protective order, and stood by Cahill's request for a court order to obtain Doe’s identity from Comcast. Doe filed an appeal to the Delaware Supreme Court and it was granted on June 28, 2005. The Delaware Supreme Court disagreed with the good faith standard. The judge stated that the plaintiff must first “present evidence creating a genuine issue of material fact for each element of the defamation claim.” The case basically came down to “one person’s right to speak anonymously against another person’s right to protect his reputation.” People are allowed to state their opinions on blogs and chat rooms and it is difficult to win a case of defamation involving these venues. The First Amendment protects speech on the internet and the right to speak anonymously but it doesn’t protect defamatory speech. Cahill was unable to prove that he was defamed by the anonymous blogger’s opinion. The case was dismissed on October 5, 2005.

In the article, "Why a New York Court Unmasked the Blogger Who Wrote Harshly About a Model," in 2009 a New York court decided that model, Liskula Cohen, had the right to know the identity of the anonymous blogger who was defaming her on the internet. Cohen was written about on a blog titled “Skanks in NYC.” The court asked Cohen to prove that “strong showing that a cause of action exists, and that the cause of action is meritorious before the anonymous defendant will be unmasked.” Cohen lawyer managed to prove all of the above based on the fact that calling someone a “skank” or a “ho” makes the person appear promiscuous which is a defamatory statement. As a model, Cohen, cleanliness and hygiene are a vital point in the job requirements and having those factors being questionable was damaging to her career. The court sided in her favor.

Sources:, Court Orders That the Identities of Anonymous Internet Posters be Disclosed, Why a New York Court Unmasked the Blogger Who Wrote Harshly About a Model by Julie Hilden. 2009.