This is partially a free speech blog, so we’d be remiss in failing to note the passing of George Carlin. He failed to convince the Supreme Court of the absurdity of the Federal Communications Commission’s “broadcast indecency” rules that scrubbed the airwaves during the day and evening (when, presumably, the kiddies are awake) of those naughty words that we all hear and (if the truth be told) many of us use quite regularly. The real outrage of the high court’s idiocy in that case was that Carlin had clearly used the “seven dirty words” in the context of a parody of broadcast censorship. The FCC has no self-recognition, apparently, and the Supreme Court justices have no sense of humor. 

            But, of course, Carlin had the last laugh. In addition to bringing his biting wit and jokes into his audiences’ lives, he also was a hero to those who take the First Amendment seriously, as well as to those who try hard to understand some of the less proud legacies of Puritan America. As H. L. Mencken has noted, a Puritan is someone who has the nagging feeling that somewhere, somehow, someone is enjoying himself. Well, Carlin has proven Mencken correct, and that’s no small service for him to have performed before dying, all too soon, of heart failure.

             Even in his death, the ironies of his anti-censorship message continue to resonate. Today’s Boston Globe’s Opinion Page, in the VoxOp feature, excerpts blogger Jill at Brilliant at Breakfast, lamenting Carlin’s passing: “I suppose one can’t have as finely honed a [garbage] detector as he had, and use it so expertly for so many years, and have much of it left after the last eight years of the Bush administration. But no one cut through … modern life the way Carlin did…” Phoenix readers may recall my gripes with the Boston Globe’s censorship policy (which I wrote about here and here), so I was curious as to whether “[garbage]” was in Jill’s original text, or whether it was the word Carlin would have used – bullshit. Turns out that the Globe censored not one, but two bits from the post: garbage replacing “shit,” and the “cut through … modern life” replacing “cut through the bullshit of modern life.” Carlin was a lone pop culture voice for free speech, but sadly he died before his work was finished. 

            George Carlin – Rest in Peace. What are we going to do without you??

The Chicago Tribune is reporting that the owners of the Chicago Cubs  are considering enacting a de facto "civility code" at Wrigley field, in response to some Cubs fans who have taken to booing the underperforming left fielder Alfonso Soriano. As Sports Law Blog notes, Wrigley and the Cubbies are privately-owned, so fans don't have First Amendment rights to express their disappointment at their team's defensive performance. At the same time, though, do the owners really think that by ejecting fans who boo the home team, or who make "profane or inappropriate comments" -- as objective a criterion as I've ever heard -- they will eliminate problems of fan disgruntlement? Thought reform through censorship doesn't work in educational contexts -- in fact, it even backfires -- so there's every reason to believe that if Cubs fans are muzzled, their booing will get even louder, and may even get directed toward the Cubbies' owners.

I have two articles in the March 13, 2008 issue of the Boston Phoenix. In the first, Jan Wolfe and I criticize the ill-advised arrest of performance artist Milan Kohout and follow up on his case, which was dismissed in Massachusetts court. In the second article, I report on newspapers' annoying tendency to censor swear words even when those words are at the core of the story being reported.

I also published an op-ed in the March 15, 2008 issue of the Boston Globe, in which I describe how vague and easily pliable federal statutes have created a situation in which the Department of Justice can concoct a novella-length federal indictment out of disgraced ex-New York Governor Eliot Spitzer's meeting a prostitute in a Washington, D.C. hotel room. Spitzer's vulnerability to federal prosecution, I argue, is part of a larger trend in federal law enforcement that has surprised defendants who have landed in trouble for acts, unlike the act of prostitution in Spitzer’s case, that they reasonably did not believe were intuitively criminal.

If you doubt that Alice in Wonderland is the best primer available for understanding the legal system, you might read Tony Mauro's latest piece in the Legal Times. The Supreme Court just denied certiorari in the case challenging the government's warrantless wiretapping program, meaning that though it didn't make a decision as to the merits of the case, it couldn't muster four judges who wanted to consider the legal questions. As a result, according to the federal Ninth Circuit Court of Appeals, you cannot bring a lawsuit to redress unconstitutional government eavesdropping on your phone conversations if you cannot prove that they listened in on you. But of course, you cannot prove they listened in because the evidence that would support your case is secret! It's a complete circle!

Actually, Alice in Wonderland isn't the only piece of fiction that sheds light on the legal system. Charles Dickens likewise hit the nail on the head in Oliver Twist: "The law is a ass, a idiot." But there's reason behind this judicial and executive branch madness -- to keep We the People ignorant of what's being done to us in the name of "protecting" us. With more protection like this, our democracy will be undone.

"If the rap song is bad enough to cause [teenaged rapper Christopher] Holder's arrest, why is it not bad enough to cause the arrest of the guy who made the recording? ... I say ... Book 'em, Dano. Book 'em all."

It sounds like Gibson supports the underlying law that got Holder in trouble (and would be used against other rappers in his professed ideal universe), though he doesn't explain why. Maybe it's simple syllogistic logic: Gibson thinks the speech was offensive, and offensive speech should be banned. But some people evidently find John Gibson offensive, as when he mocked actor Heath Ledger's death with homophobic jokes on the air. Under Gibson's framework, shouldn't Dano book him, too?

By Harvey Silverglate

I was reminded of the convoluted mish-mash that First Amendment law has become (thanks, in large measure, to courts not taking seriously the First Amendment's admonition that the legislature "shall make no law ... abridging the freedom of speech, or of the press") after I read Geoff Edgers' article in yesterday's Boston Globe.

Edgers reports that painter Kurt Kauper's paintings of iconic athletes in the nude – including Boston Bruins hockey players Bobby Orr and Derek Sanderson, among others – have been featured at important art institutions and in prestigious galleries. Edgers is careful to report that these paintings derived solely from the artist's imagination; neither Orr nor Sanderson, nor Kauper's other "subjects," actually posed for the painter, whether nude or clothed. One theme running through Edgers' profile of Kauper and his work is whether the subject of such an imaginary portrait has any legal claims or rights against the artist.

Boston entertainment and copyright lawyer George Tobia, Jr., told Edgers that "there's a First Amendment right to artistic expression," and that as a result Kauper (and other artists with similar subjects in mind – or on canvas) might realistically encounter a legal problem were he to try to exploit the athlete's image for commercial purposes, such as by reprinting the image on t-shirts or post-cards and then selling them. But merely to paint the image of a public figure – and presumably to sell the painting, though Tobia does not address this – is constitutionally protected.

While Tobia correctly notes the First Amendment's protection of art, the answer isn't as simple as the Globe's summary of his explanation makes it seem. Imagine an artist who paints a portrait of a clergyman in his birthday, where the artist has extrapolated, from the clergyman's clothed image, what he might look like nude. Would the painter be liable for defamation if he did not make it sufficiently clear, in some way, that the clergyman subject did not actually appear in the flesh for a nude portrait? It's reasonable to think that a professional athlete might not have as strong a defamation claim as a clergyman; after all, some athletes would proudly display their various physical endowments to their adoring fans – more so, one assumes, than clergymen. This factor is especially strong in today's media- and publicity-heavy society, in which the image of the athlete's body is indelibly linked to his or her performance. But it's possible to consider counterexamples – Red Sox pitcher Curt Schilling might be one – who cultivate a "family values" image more than a "virile jock" image. For Schilling, his reputational interest against nude images of himself could conceivably make a stronger case in a defamation lawsuit than the reputational interest of, for example, Olympic swimmer Michael Phelps.

For Phelps, whose work attire consists of goggles and a Speedo, any reputational interest in avoiding (fictional) "revealing" images of his (imagined) body would likely be undermined by the fact that a Speedo doesn't leave much to the imagination. He would be hard-pressed to argue that a nude portrait, even where the artist failed to note that the subject did not pose in the buff, would alter any "family values" aspect of his image or reputation (as it presumably would in the Schilling example) substantially more than a Sports Illustrated portrait of him in a Speedo would. Of course, this is an extreme example, as Orr and Sanderson wore pads and jerseys, not performance swimwear. But it's easy to picture how similar scenarios might play out.

And while Attorney Tobia is correct in noting that the painter could be in trouble if he were to put the athlete's picture on a post-card and capitalize on the subject's fame – assuming there is a market niche for nude portraits of famous athletes, even when the specific contours arise from out of the painter's imagination – there are more subtle questions that could arise. What if the painting were featured in a museum exhibition, and the athlete's nude image were on the cover of the show's catalogue, which was then reproduced thousands of times and even sold commercially, as some museum show catalogues are?

The fact is that intellectual property, as well as defamation law, poses real headaches to artists seeking to exercise their artistic freedom – which is protected, in theory, by the First Amendment. Photographers have long experienced this problem – taking a photograph of a street scene and then receiving a letter from the lawyer of some subject standing on the street, captured in the photograph, seeking either compensation or a cease-and-desist order against circulation of the photograph. But these threats to artistic freedom, arising in particular out of street scenes, are frequently without merit. Photographers may find solace in a recent New York court decision, Nussenzweig v. DiCorcia, in which the court threw out a privacy lawsuit and agreed that street photographs, which clearly identify a man walking down a street and were taken without the subject's permission, are protected by the First Amendment even when they are later sold – so long as they were taken as art, and not intended to advertise a product or sell something other than the image itself. To that end, the court noted that "first amendment protection of art is not limited to only starving artists."

Some states provide more onerous restrictions on artists than others, usually under the guise of protecting the subjects who are claiming a property right in their own image or likeness. California, for example, has a robust "right of publicity", which people can invoke in order to control how their image is used. (This is no surprise, given the number of movie stars in that state who vote and make campaign contributions.) However, other courts around the country have limited the right to control one's image as a means of controlling publicity, given the obvious tension with the First Amendment's protection of free artistic expression. In 2003, a California court rejected rock guitarists Edgar and Johnny Winter’s lawsuit against D.C. Comics for publishing a comic book that depicted their bodies as being half-man, half-worm. The court explained that the comic book contained "not just conventional depictions of [the Winter brothers] but contain significant expressive content other than plaintiffs’ mere likenesses."

The defamation problem, coupled with the "right of publicity," are legal issues that could give legitimate artists like Kauper headaches. Life might be easier if the courts interpreted the First Amendment's admonition that "Congress shall make no law ... abridging the freedom of speech" as meaning, literally, none at all. But it's simply not that easy. After all, the Constitution's copyright clause provides for laws granting the creators of intellectual property a legal ownership interest in that property. The occasional conflict between First Amendment rights, copyright interests, and an individual's private property right to his or her own image has caused many a judge to scratch his head, and many a lawyer to offer advice hedged with qualifications.

By Harvey Silverglate

The act of censorship is usually seen as a direct affront to the First Amendment, buts it’s not always that clear and simple. The reason, of course, is that the amendment has several clauses, and at times some of them are in tension with one another, if not in seeming conflict.

Consider today’s curious report in The Boston Globe that the pastor of St. Joseph’s School in Wakefield, Rev. Ron Barker, ordered the removal of the Harry Potter series of books from the school library’s shelves. At first, it seems to be a slam-dunk case of unconstitutional censorship. Once a book is selected by the relevant school authorities for placement in a school library, the Supreme Court has ruled, there has to be a pretty good reason for administrators to remove it. The First Amendment, after all, protects the freedom of speech and press.

However, the First Amendment also protects the “free exercise” of religion, and if an administrator at private parochial school decides, as Rev. Barker reportedly has, that the witchcraft and sorcery themes of J. K. Rowling’s now-classic series are inimical to Catholic religious teachings, and that, as one parent reported, “he said it’s his job to protect the weak and the strong” from undue literary influences, then the First Amendment actually protects that act of censorship. Besides, the First Amendment arguments are moot in this case anyway, because the constitution protects only against censorship by public officials, and that doesn’t cover any private school, whether religious or not.

And so, in this instance, the First Amendment, if it were even applicable, actually protects the power of Rev. Barker to keep the students from reading the Potter books in school. Of course, having the power to censor does not mean that it is wise, or even effective, to do so. Indeed, Rev. Barker could have saved himself the trouble, since it’s obvious that the students will read the books elsewhere if that’s what they want to do. There’s one surefire way to deal with official censorship – by unofficial reading outside of school.