Tuesday, April 30, 2013

Former "Storage Wars" Star Tries to Put Show's Producers in Storage

Photo Courtesy of therealityjunkies.com
Since December 2012, A&E network and former “Storage Wars” member Dave Hester has
 been in a legal entanglement based on his firing from the show for complaining that producers put valuable items in certain garages to make the show more interesting.

Hester, with the help of his legal team, filed the lawsuit on the grounds of the Unfair Business Practices, which, in California, states:

        “As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code” (Business and Professions Code, Section 17200).

While some of the issues brought to the courts have not been ruled upon yet, the Los Angeles Superior Court has sided with the network on the charges made by of the Unfair Business Practices. According to a March 13th report on Yahoo.com, Hester did not provide enough information and evidence to stake a claim that the First Amendment does not protect the network’s rights. Judge Michael Johnson, who oversaw the case, said that Hester did not provide “any citation to a particular policy within the Act” (Kenneally, 2013).

Even though one of the charges has been thrown out by the L.A. Superior Court, Hester and his legal team has argued that the network had violated the Communications Act of 1934, which states:

  “It shall be unlawful for any person, with intent to deceive the listening or viewing public--(1) To supply to any contestant in a purportedly bona fide contest of intellectual knowledge or intellectual skill any special and secret assistance whereby the outcome of such contest will be in whole or in part prearranged or predetermined” (Communications Act of 1934, Section 508 [47 U.S.C. 508], page 246).

Johnson, however, did not agree with Hester’s legal team, saying that, once again, Hester and his legal team’s argument was unpersuasive.

This sort of lawsuit is unprecedented, as the only other reality show to ever hit the courts was due to a claim that a blogger was trying to induce contestants of The Bachelor to give him spoilers, a clear breach of contract for the participants. The ruling that comes down from the Storage Wars case may ultimately clarify later whether or not producers can claim that their show is truly reality, when in actuality that is not the case. 

Monday, April 29, 2013

Is California's Proposition 35 a Hidden Attempt to Limit the Rights of Sex Offenders?

Photo courtesy of Prop35.tumblr.com

With the recent Election in November 2012, the state of California passed a controversial ballot initiative known as Proposition 35 or the Californians Against Sexual Exploitation Act, which stated that sex offenders would be monitored in the digital realm. Under the new law, sex offenders in California must inform authorities of their e-mail addresses, user names, and screen names. Sex offenders must inform authorities of any changes made to Internet handles within 24 hours (The New York Times). Proposition 35 also deals with prison terms for human trafficking.

Despite the fact that the information provided by the sex offenders will not be included in the public registry that lists names and addresses of sex offenders, the American Civil Liberties Union brought about a lawsuit against the new law arguing that the new requirements violate the First Amendment because they infringe on the right to free, anonymous speech on the Internet. Additionally, the Electronic Frontier Foundation sued to block portions of the law. Both groups claimed that the new law restriction regulations concerning online speech are very broad. Originally, two registered sex offenders and a group called California Reform Sex Offender Laws filed the actual lawsuit on November 7, 2012. In contrast, California’s Attorney General Kamala Harris defended the ballot measure, which was voter-approved. Attorney General Harris denied any claims that the law was unconstitutional.

The issue here is whether or not California’s Proposition 35 violates the First Amendment rights of free speech and free association. In California, there are currently 75,000 registered sex offenders that would be required to turn over all of their online login information. One question that needs to be answered is whether or not the new law is narrowly tailored to California’s government’s specific interest in fighting online sex offenses. Plaintiffs stated that the new law is so broadly written that sex offenders could be required to turn over their bank account login information (The Huffington Post). Other people argue that Proposition 35 severely limits the Internet freedom of sex offenders whose crimes were completely separate from the online realm. No one is denying that stopping human trafficking is an important goal of Proposition 35, but the part of the proposition that limits Internet freedom of all sex offenders is not essential in limiting human trafficking. The law is basically further punishing all sex offenders, including those who have already completed their probation or parole terms, by not granting them full protection of the First Amendment.

Photo courtesy of againstthecaseact.com
Recently, a federal judge in San Francisco issued an injunction on January 11 to stall the implementation of California’s Proposition 35 that was approved by 81 percent of California voters. Federal Judge Thelton Henderson wrote, “it is undisputed that speech by sex offenders who have completed their terms of probation or parole enjoys the full protection of the First Amendment” (The Huffington Post). Additionally, Henderson stated that he is not convinced that limiting the anonymous speech rights of all sex offenders in California is narrowly tailored to the interest of the government in fighting online sex offenses. The American Civil Liberties Union in California believes that halting Proposition 35 is a key step in making sure that the First Amendment is not ignored. Henderson’s injunction prevents Proposition 35 from being enforced until the case is concluded. One of the main supporters of Proposition 35 is Chris Kelly, a one-time chief privacy officer for Facebook. Kelly believes that the law would simply add “an extra field in the database of what sex offenders have to register” (The New York Times).

When looking at the likely outcome of this case, it is important to look at Simon & Schuster, Inc. 4 v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105 (1991). In 1991, this ruling shot down a New York law that attempted to interfere with criminals’ profiting from works involving/describing their criminal actions (Simon & Schuster, Inc. V Members of the New York State Crime Victims Board). Although Proposition 35 does not openly ban anonymous online speech, it interferes with California sex offender’s rights to free and anonymous online speech. California lawmakers are attempting to censor online speech rights of sex offenders by monitoring them constantly.

The court will likely use strict scrutiny because the test states that a law must be narrowly tailored to the government’s legitimate interests. Many argue that Proposition 35 is constitutional when concerning the prison terms for human trafficking, but is unconstitutional because limiting the online speech rights of sex offenders is not of important government interest. The speech in Proposition 35 is extremely broad, and could apply to many Internet logins used by sex offenders. Under strict scrutiny, the law must be of the least speech-restrictive means in order to advance the interest of the government. With Proposition 35, the requirements are not narrowly tailored and they restrict the online speech rights that sex offenders are granted under the First Amendment. The state of California will argue that Proposition 35 is not suppressing freedom of expression, but that it is aiding in the fight against sex crimes. Ultimately, the court will have to decide if Proposition 35 is a hidden attempt to prevent Internet speech by a large group of criminals.

Overall, it is unknown if judge Henderson’s injunction will be upheld or if the court will overturn it. It is being heard because an overwhelming majority of voters in California voted to pass the proposition and because sex offenders have a legitimate lawsuit against it.  

Sunday, April 28, 2013

FBI Gag Orders Ruled Unconstitutional

Photo Courtesy of Wikipedia

The Ninth Circuit Court of Appeals ruled in March that the gag orders, which accompany the FBI’s national security letters, are unconstitutionally violating people’s rights to free speech. The case brought to court was from an “unnamed telecommunications company” after it received a letter requesting subscriber information. The letter also stated that alerting those subscribers would be a national threat.

The Electric Frontier Foundation, in May 2011, brought the lawsuit against the National Security Letter statutes--18 U.S.C. § 2709 and parts of 18 U.S.C. § 3511. The “Counterintelligence access to telephone toll and transactional records” statutes state that the FBI may subpoena telecommunication records.

U.S. District Judge Susan Illston on March 19, 2013, in Northern California, granted the EFF’s request and ruled that the gag orders violate both the First and the Fourth Amendments.

According to the EFF:
“The court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional” (“National Security Letters Are Unconstitutional, Federal Judge Rules,” Electronic Frontier Foundation).

The judge ordered the FBI to stop issuing the letters and stop enforcing the gag orders, because the provisions do not overcome the presumption against prior restraint.

The ALCU and the NYLCU argued that the National Security Letters and the accompanying gag orders violated the First, Fourth and Fifth Amendments “by allowing the FBI to obtain private information without any form of judicial review. The plaintiffs further argued that Section 2709’s non-disclosure provision is an unlimited suppression of free speech that indefinitely burdens First Amendment rights,” according to the NYCLU.

2011 brought about a partial lift of the FBI’s gag order on the case, which allowed Nicholas Merrill, of Calyx Internet Access, to reveal himself as ALCU’s main client in this case.

The original National Security Letter statute was passed in 1986, and according to EFF, “the FBI has issued hundreds of thousands of such letters seeking the private telecommunications and financial records of Americans without any prior approval from courts.”

In 2004, a similar case was brought to court by the American Civil Liberties Union on behalf of another unnamed telecommunication company against John Ashcroft, as the Attorney General (American Civil Liberties Union v. Ashcroft, 2004). The judge in this case, Victor Marrero of the United States District Court for the Southern District of New York, struck own the National Security Letters section of the Patriot Act.

The rulings in these cases come for many people as a victory for freedom, or at least a step in the right direction.


“National Security Letters Are Unconstitutional, Federal Judge Rules”

“18 USC § 2709 - Counterintelligence access to telephone toll and transactional records”

“Doe v. Holder (Challenging Patriot Act’s National Security Letter provision and associated gag provision)”

“ACLU & Doe v. Ashcroft - the Good Bits”

Chick-Fil-A and the First Amendment

In the recent past the CEO of Chick-Fil-A Restaurants, Dan Cathy, said he and his company oppose gay marriage. This spurred many angry reactions and most importantly it caused some public officials, specifically those in Boston and Chicago, to say that they would not give permits to Chick-Fil-A and that they didn’t want them opening in their city. The question that was raised was whether this was a violation of Cathy’s First Amendment rights. Was the CEO able to declare a viewpoint without punishment from the government? This is a First Amendment issue not because the government was suppressing what Dan Cathy had to say but because they were using his right to free speech to punish his business.
            Right after Dan Cathy made his view publicly known, Boston mayor Thomas M. Menino said he would block any sort of Chick-Fil-A from opening in Boston. Then Chicago followed quickly after. Mayor Rahm Emanuel said that the views of Chick-Fil-A and its CEO were not the views of Chicago and that because of this he would not allow any more Chick-Fil-A establishments to open in Chicago. This would be an illegal censorship because it is the government vs. the business. If the public, not the government, decides to boycott Chick-Fil-A because of its views, that would be an entirely different legal matter.
            While there have been no cases brought to court, it is clear that should Chick-Fil-A litigate government denial of a business license it would find that the First Amendment would favor them in this instance. In Boston, Mayor Menino has stepped back and realized that he could not move forward with his plans to block Chick-Fil-A from opening because of the First Amendment. The Boston mayor is free to express his unhappiness and an attitude of unwelcomness towards Chick-Fil-A and its CEO but he cannot use the government’s power to stop the opening of more restaurants.

Chapman, Steve. "Chick-fil-A and Free Speech." Chicago Tribune. N.p., 25 July 2012. Web. 03 Apr. 2013. <http://articles.chicagotribune.com/2012-07-25/news/chi-chickfila-and-free-speech-20120725_1_chick-fil-a-executives-chick-fil-a-values-speech>.
"Free Speech and Chick-fil-A." Los Angeles Times. Los Angeles Times, 24 July 2012. Web. 03 Apr. 2013. <http://articles.latimes.com/2012/jul/24/opinion/la-ed-chick-fil-a-20120724>.
Randazza, Marc J. "Chick-fil-A and Free Speech." CNN. Cable News Network, 31 July 2012. Web. 03 Apr. 2013. <http://www.cnn.com/2012/07/30/opinion/randazza-first-amendment>.
Turner, Greg. "Mayor Menino on Chick-fil-A: Stuff It." Boston Herald. N.p., 20 July 2012. Web. 03 Apr. 2013. <http://bostonherald.com/business/business_markets/2012/07/mayor_menino_chick_fil_a_stuff_it>.
Zimmerman, Neetzan. "Chicago Joins Boston in Blocking Chick-fil-A Branch Opening." Gawker. N.p., 25 July 2012. Web. 03 Apr. 2013. <http://gawker.com/5928924/chicago-joins-boston-in-blocking-chick fil a-branch-opening>.

Fox News Facing First Amendment Battle

FoxNews’ Jana Winter is facing an uphill battle that many are saying could have enormous implications for the First Amendment and journalists everywhere.

Winter, a reporter for FOXnews.com, was covering the trial of Aurora, CO shooter James Holmes when she broke an exclusive story on a piece of evidence pertaining to the case- a notebook that Holmes sent to his psychiatrist, FOX News says. Winter refused to reveal her source to authorities, prompting outrage from Holmes’ defense and victory cries from First Amendment champions.

Winter, who was questioned by Arapahoe County District Judge Carlos Samour, has been ordered to appear in court again on April 10th for another round of questioning from Samour, who had issued a gag order on material pertaining to the case. Winter has been threatened with jail time if she does not reveal her source, and could be put on the stand in efforts to compel her to reveal the information.

It’s a monumental, but, unfortunately, all too familiar case for journalists who are balancing the fuzzy lines that define confidentiality privilege. You can almost hear the echoes of the Scooter Libby case, when New York Times reporter Judith Miller (who, ironically, is now a contributor at Fox News) nobly refused to reveal her source as officials searched for those responsible for CIA-agent Valerie Plame’s identity leak. Unless FOX legal counsel can substantially prove that Winters’ testimony bears no weight on the case, the seasoned reporter could be asked to sacrifice her journalistic integrity. If she refuses, she’ll almost certainly face jail time, just as Miller spent 85 days incarcerated for maintaining her sources’ confidentiality. 

Despite all the uproar, Colorado has a protective shield law, which was recently amended to offer even more protection for journalists (Read it here). The law states that journalists can be subpoenaed to reveal documents or information only if one of the following three statements applies:
1)    The information sought from the reporter is "directly relevant to a substantial issue involved in the proceeding," 

(2)    The information "cannot be obtained through any other reasonable means,"

(3)    A strong interest of the party issuing the subpoena outweighs the interests under the First Amendment of the reporter and the public.

Despite the incendiary nature of the case, mainstream media has been oddly mum on Winters’ case, especially considering the implications her plight could have for journalists nationwide. Critics have suggested that the journalistic haze that surrounds the FOX network could be to blame. Miller speculated that if her FOX colleague “worked for mainstream newspapers or CNN, I think the case would have been covered. There's a certain reluctance because it's Fox News."