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 James F. Tierney

In the August 15, 2007 Boston Phoenix, Harvey described the criminal case against Powers Fasteners as a likely form of extortion, in which Attorney General Martha Coakley's motive in pursuing the company was to extort civil settlements from it and, more importantly, other companies -- such as contractor Bechtel -- with enough money to buy their way out. The Boston Globe reports this morning that lawyers for Powers Fasteners are asking the judge to dismiss the Powers indictment on the grounds that the Commonwealth's Attorney General cannot be an impartial prosecutor in a criminal case while she is simultaneously seeking money damages in a related civil lawsuit or negotiation. (Yesterday, the Globe reported that the private lawyer whom Coakley appointed to prosecute the case has "run[] up a tab that has already reached nearly $1 million," despite the fact that "even if convicted, the Powers Fasteners glue company faces a maximum penalty of a $1,000 fine.") Is Coakley's zealous pursuit of a conviction against Powers Fasteners solely meant to hasten a multi-million dollar windfall accompanying a civil settlement? We'll be watching the case.

It is all too true that when it comes to questions of constitutional rights, the devil (or the angel, as the case may be) can be in the details. This seems the case with the new Boston Police Department initiative that would allow police officers to visit homes where they receive a tip that a minor might have hidden a gun, or where the parent suspects such and is willing to ask for police intervention. The police would ask the parent to sign a waiver granting them permission to search the home and take the gun away. At first glance the program struck me as laudable in its creativity and fully constitutional because of its voluntary nature, and because of the assurances by the police that no one would be prosecuted for possession of the gun. But upon closer inspection, there are too many unanswered questions about how this program would work in practice, and the ACLU of Massachusetts should be commended for taking the lead in raising these complex questions.

Perhaps the single greatest flaw with the BPD program is that it does not offer unconditional amnesty for firearms found, although the Boston Globe article on the program seems to suggest otherwise. Instead, as Boston NOW has more clearly articulated, the department reserves the right to prosecute if a ballistics test on any gun found indicates that the weapon was used in an unsolved crime.  One can only imagine the grief and regret a parent would feel if his or her child is prosecuted and sent to jail because, in the hopes of protecting the child, the parent encourages police to enter the home and seize a firearm. Similarly, police officials have not done an adequate job of reassuring homeowners that they will turn a blind eye to evidence of any other illegal activity they may discover during their search, such as the presence of illegal drugs. It is absolutely essential that parents understand that prosecution can indeed follow for anything and everything except the actual possession of a gun and that they have a constitutional right to deny police entrance. If parents are being asked to waive their constitutional protection against search and seizure, then that waiver has to be both knowing and voluntary.

Long experience causes me to lack sufficient confidence in Boston Police to make clear that homeowners have a right to deny a search request and to avoid intimidation when arriving on a doorstep. I’m skeptical that parents who do waive the privacy rights attaching to the home will have done so knowing the full implications of such a waiver. This sort of program, which gives police an end run around the age-old search warrant mandate, could become frequently abused because it is so much more convenient and expedient than obtaining a warrant. After all, an anonymous tip is not a sufficient basis for obtaining a search warrant, and so the police should be willing, for the public safety, to grant unconditional assurances that whatever is found in the house will not be used as the basis of a prosecution.

And so, while at first glance this “voluntary” search program has a certain allure to it, Harvard Law Prof Charles J. Ogletree, Jr. is probably correct when he noted in the Globe that “this is a decision that, if approved, the community will come to regret it.”

By James F. Tierney

Two weeks ago, Harvey Silverglate blogged about a federal Magistrate Judge, Wayne Brazil, who overturned a “civility code” at San Francisco State University on the grounds that it targeted speech and expression that falls under the protection of the First Amendment. (The case was brought by the officers of SFSU's College Republicans, who were investigated under the civility code when students complained they had insulted Muslims by stepping on the Hamas and Hezbollah flags -- which contain the word “Allah” in Arabic script -- during an anti-terrorism rally.) The opinion is available here.

By James F. Tierney

Despite having questioned Governor Deval Patrick's fidelity to freedom earlier today, we applaud his recent decision to appoint Francis Fecteau, a Massachusetts Superior Court judge in Worcester, to the state Appeals Court. Fecteau was the judge who, in July 2006, granted a new trial for Bernard Baran, whom Harvey Silverglate is representing as part of Baran's post-conviction defense team. (Harvey and I wrote an article for last week's Massachusetts Lawyers Weekly about an unjust gag order in the Baran case, which had been imposed by the judge who took over the case from Fecteau.) We hope that Fecteau is promptly confirmed.

By Harvey Silverglate

            H. L. Mencken, late in life, allowed himself to be interviewed by a young reporter from his hometown newspaper. The interviewer asked the grand old curmudgeon, "why, if you find so much that is unworthy of reverence in the United States, do you continue to live here?" Mencken answered the query with another question: “Why do people visit zoos?” Well, living right smack in the middle of the zoo that Harvard has become in its dotage, I now understand Mencken’s reasoning perfectly.

            The latest head-shaking Harvard story is that anthropology professor J. Lorand Matory introduced a one-sentence resolution at a faculty meeting stating that “this Faculty commits itself to fostering civil dialogue in which people with a broad range of perspectives feel safe and are encouraged to express their reasoned and evidence-based ideas.” Professor Matory, according to the Harvard Crimson, “has claimed that critics of Israel, like himself, ‘tremble in fear’ of repercussions for their views.”

            As a pretty close student of the goings-on at Harvard (I’m a graduate of the Law School, a long-time affiliate at one of the Harvard undergraduate houses, and I lecture at least a couple of times each semester at one or another Harvard Law School class), I have to say that the only faculty member I know who actually did suffer for his views on Israel was Lawrence Summers, who happened to be the university president at the time he gave a speech positing a possible link between animosity toward Israel and anti-Semitism or the appearance of anti-Semitism. That speech, plus another unpopular speech supporting the ROTC program, which Harvard's faculty stripped of university funding in 1995, capped off by Summers’ infamous musing on women’s suitability for careers in science made Summers sufficiently vulnerable so that a no-confidence resolution introduced by none other than Professor Matory caused Harvard’s governing body to vote “no confidence” in Summers, resulting in his resignation in February 2006. And so it was a bit ironic to have Matory, a leader of the faculty rebellion that forced Summers out for his unpopular and politically incorrect views on hot-button topics, claim that he felt “unsafe” for espousing his views on the campus. Presumably, had Harvard truly dedicated itself to a culture that fostered “civil dialogue in which people with a broad range of perspectives feel safe and are encouraged to express their reasoned and evidence-based ideas,” Summers would still be Harvard’s president.

            But I suppose that my disgust over the Harvard faculty’s intolerance for views with which it disagrees -- and Matory surely is not in the camp that has to worry about being “unsafe” – is matched by my amusement over the notion that tenured faculty members, especially those adhering to the politically correct fashions of the day, are somehow “unsafe.” That faculty, as Summers learned the hard way, is perhaps the most pampered tenured faculty in the nation. Harvard has become infamous, for example, for the paucity of full professors who actually teach undergraduates. They are so pampered, in fact, that it is notoriously difficult to get them even to attend faculty meetings, unless, of course, they are about to vote no-confidence in a president who expresses his views too bluntly. Indeed, the reason the Matory resolution was not brought to a vote was that it takes one-sixth of the faculty present to conduct an official vote, and attendance at the meeting fell just short of that very modest quorum.

By Harvey Silverglate

When Massachusetts residents elected Deval Patrick governor just over a year ago, it was a sign that this state had finally become fed up with sixteen years of Republican pols who treated the office as part plaything, part stepping stone to higher electoral office. For some of us, a liberal administration in the State House – who had previously been an Assistant Attorney General for civil rights in the Clinton administration – was a sign that Patrick would act as a “freedom governor” as well as a “compassionate liberal.”

From the beginning of his administraion, there were inklings that Patrick might not harken to the civil libertarian mold, and that his background in civil rights might lead him to embrace a role as a benevolent (liberal) dictator of sorts, fostering the so-called “nanny state” without any compensating benefits counterbalancing the loss of freedom. Within the last week, three news stories have reinforced such questions about how committed Patrick is to protecting liberty.

As we blogged about Tuesday, Patrick has supported establishing three casinos in Massachusetts. (Note also that The Phoenix has offered its support for the casinos.) Setting aside my personal concerns about the onerous effects of casino gambling on the most vulnerable populations in society – a concern that might be assuaged by certain restrictions on the locations and rules under which the casinos are required to operate – I found it difficult to oppose Patrick’s casino proposal precisely because it’s a fundamentally libertarian position. Liberty should be the default position, deviation from which is justified only for compelling reasons.

But after the recent news that Patrick has sought to ban online gambling – it’s unclear how this would even be enforced in practice – I’ve found it necessary to revise this initial assessment of his support for organized casino gambling. Far from taking a pro-liberty position, it appears that Patrick’s support for casino development in this state is premised entirely on the real or imagined economic benefits – and specifically the taxes and other revenue the state would be pocketing, at least at the start, from introducing casinos. Thus the attempt to punish online gamblers – against whom the federal government, let alone the state, would have a hard time collecting taxes – is really just an attempt to shore up the windfall that supposedly would accompany brick-and-mortar casinos.

This kind of unprincipled pragmatism – which rejects the necessity of certain liberties, like the liberty to engage in private gambling even in the shadow of glitzy, state-sponsored public gambling – gives the committed civil libertarian pause about how extensive Governor Patrick’s commitment to freedom is.

The November 14th Boston Globe also details Patrick’s support for a new bill that expands the “buffer zone” around the entrances to abortion clinics – the minimum distance that anti-abortion protesters must maintain from the entrance to the clinic. After citing how the bill “strikes an appropriate balance between the freedom of choice and the freedom of expression,” Patrick essentially undercut that platitude by privileging “freedom of choice” over “the reasonable right to express themselves of people who have a different view.” As I explained to the Globe’s reporter, this is a poor rationale for increasing the “buffer zone” to 35 feet. Freedom of speech is a right guaranteed to all citizens – including those dissenters “who have a different view” about reproductive freedoms. Moreover, it protects all kinds of speech, from the popular speech of The Daily Show to the unpopular (in this state), offensive, and often visually gory anti-abortion advocacy of groups like Operation Rescue. If we want to create an atmosphere where the liberty of a woman to control her own body is elevated, then we well should maintain the attendant liberty of those who find the procedure to be murder to make their point. Can it be that we have not yet learned, as a society, that liberty is seamless?

Finally, in an issue not heavily covered in the Boston or other local media, State Representative Ruth Balser (D-Newton) has spearheaded an initiative to decriminalize marijuana. In response to the hearings (see video of the hearings here) her legislative committee has held on decriminalization measures, an editorial syndicated in local newspapers such as the Milford Daily News and the Daily News Tribune reports that “a spokeswoman for Gov. Deval Patrick reiterated his campaign pledge to veto any decriminalization measure.” While this is not strictly an issue of Massachusetts civil libertarians being misled by a man who we thought would be a “freedom governor” – as his opposition to decriminalization appears to have been known from the start – it does support the broader argument that Patrick is uninterested in increasing Bay Staters’ personal freedoms. It will be interesting to see what position Patrick takes on medicinal marijuana, if such an initiative gains prominence locally. Meanwhile, this purportedly “liberal” and “progressive” governor blinds himself to the enormous social, legal, economic, and spiritual damage that the War on Drugs has caused the commonwealth and the nation.

Surely it is possible to be a liberal, supporting a society that does not allow its most vulnerable members to sink into an abyss, while advocating at the same time the maximum individual liberty consistent with what the Supreme Court has called “an ordered society.” Thus far it does not appear that Deval Patrick is that kind of liberal. But maybe it’s still too early to give up hope on this score.

(Special thanks and a tip of the hat to James Tierney on this one.)

By James F. Tierney

In the bill intended to authorize three casinos in Massachusetts, Deval Patrick has quietly slipped in a provision that would ban online gambling – and subject players to “jail terms of up to two years and $25,000 fines”. Over at his blog Media Nation, Dan Kennedy explains Patrick’s cynical ploy to protect future state tax revenue – and why Connecticut’s casinos will implement their own anti-competition measures. (In July, Wendy noted her ambivalence about bringing casinos to Massachusetts.) It will be interesting to see whether this unprincipled (and fundamentally anti-freedom) provision remains in Patrick’s bill. See Reason's Hit and Run for more.

            One of the craftiest semantic tricks adopted by campus censors since the mid-1980s used to suppress unpopular viewpoints and supposedly offensive speech on campus has been the “civility code,” a close relative of the “harassment code.” The latter has received more attention by commentators as well as courts. But free speech advocates have been slow to recognize the dangers posed by codes that insist that students be civil to one another – or else. It is the “or else” that makes these codes mandatory, and hence a form of censorship.

            On November 7^th, U.S. Magistrate-Judge Wayne Brazil, sitting in federal court in San Francisco, made one of the clearest statements I’ve yet seen as to why forced civility, innocuous as the term may sound, can all too easily be turned into a speech code and lead to unconstitutional censorship. Ruling in a lawsuit brought by the Alliance Defense Fund, a Christian public interest organization, and supported by the non-partisan and wholly-secular Foundation for Individual Rights in Education (disclosure: I co-founded FIRE and currently serve as Board of Directors chairman), Brazil issued a preliminary injunction against San Francisco State University’s so-called civility code. The jurist said that the school could enforce the portion of the code that prohibited true intimidation and harassment but it could not conflate those concepts with the act of merely telling someone something he or she did not want to hear. This ruling sends the clear message that before a public college or university – which, being a governmental institution, is bound by the constitution’s free speech provision – may shut a student up, it must actually show that the speech or conduct can reasonably be seen “to threaten or endanger the health or safety of any other person,” not just make him or her uncomfortable.

            Of course, there’s nothing wrong with civility, but, like much that is virtuous, it must be the product of voluntary self-restraint, not orders barked by an intrusive (and unconstitutional) campus feel-good bureaucracy. Magistrate-Judge Brazil said he would issue a written opinion, which we’ll be looking for. Meanwhile, let us each do a good deed and find someone today to whom to be voluntarily civil.

By James F. Tierney

Last week the family of a U.S. marine who died in Iraq won a $10.9 million award against members of the Westboro Baptist Church for picketing outside the soldier’s funeral, bearing signs reading “God Hates Fags.” (They “argue” that U.S. servicemen and women are dying in Iraq because God is punishing the U.S. for its tolerance of gay people.) Law professor Eugene Volokh makes a convincing argument that the verdict is unconstitutional. The case is now expected to go to the Fourth Circuit, which will consider whether the award will be overturned. We’ll keep an eye on this one.

(Update, Nov. 12, 2007: this post has been edited from the original.)

By James F. Tierney

We wanted to post a brief follow-up on Harvey's argument about Michael Mukasey and whether waterboarding is torture (it is). MSNBC host Keith Olbermann explains that Mukasey's dissembling equivocation is a result of Bush's desire to cover his own legacy. Olbermann is right, and it does this while also serving the purpose noted by Harvey -- protecting an "advice of legal counsel" defense in the event of future prosecutions.

(Update, Nov. 12, 2007: this post has been edited from the original.)

By Harvey Silverglate

The media has been abuzz today with the Senate Judiciary Committee’s discomfort with Attorney General nominee Michael Mukasey – and his refusal to opine whether waterboarding (the interrogation technique widely reported as used by CIA interrogators to wring information out of suspected terrorists) is illegal or unconstitutional. Whether waterboarding works – that is, provides accurate and reliable information – is immaterial to questions about its illegality; nonetheless, it is abundantly clear to everyone outside the administration that waterboarding is, in fact, illegal.

Mukasey has a strong professional interest in not answering the question. Back in the summer of 2004, I wrote in my Boston Phoenix “Freedom Watch” column that the infamous “torture memos” had been drafted to allow interrogators to defend themselves, if they are prosecuted under the statutes that criminalize torture, by claiming they had relied on the good faith advice of counsel. (Such prosecutions would only occur if the immunity Congress has granted to interrogators – in the Military Commissions Act and the Detainee Treatment Act, according to Yale Law professor Jack Balkin – were revoked sometime in the future when the country comes back to its senses and its adherence to the rule of law.) The argument that the memos were written solely to give interrogators the operative cover of an advice of counsel defense was recently given additional credence in the memoir written by Harvard Law Professor and former Department of Justice lawyer Jack Goldsmith, The Terror Presidency.

By not taking a stand on whether waterboarding is torture, Mukasey is trying not to undermine any defense the interrogators might have. While interrogators could still rely on such a defense, a proclamation after the fact by the incoming Attorney General, to the effect that John Yoo’s advice of counsel was incorrect, would raise questions about whether it was made in good faith. An advice of counsel defense is valid only if the advice was given by the lawyer, and received by the client, in good faith.

But Mukasey’s evasions aren’t solely based on concerns over future liability for CIA interrogators. They are more transparent and laughable than the news media portray them, because he actually has effectively conceded – in not so many words – that waterboarding is torture. And he may not even know that he has done so.

He insists that he would define “torture” as conduct that “shocks the conscience.” Presumably he has deployed that vague definition so that the Bush Administration – and Republican Senators who must vote to confirm him – will figure that the legalities pose little threat to CIA torturers. After all, whose conscience are we talking about, anyway? Dick Cheney’s?

But here’s the rub: behavior that “shocks the conscience” is not as open-ended as it might appear. The formulation comes from a 1952 Supreme Court opinion, Rochin v. California, in which Justice Felix Frankfurter declared unconstitutional the harsh treatment lavished by California authorities on a suspect who swallowed his stash of morphine as he was arrested during a raid at his home. The officers took Mr. Rochin to a hospital, where, in the Court’s words,

"at the direction of one of the officers a doctor forced an emetic solution through a tube into Rochin’s stomach against his will. This ‘stomach pumping’ produced vomiting. In the vomited matter were found two capsules which proved to contain morphine."

The court determined that stomach pumping – a medical procedure commonly performed when someone attempts suicide by pills, or when a child accidentally swallows poison – violates the requirement that citizens be accorded “due process of law” as guaranteed by the Fourteenth Amendment to the Constitution. The court found that when done by police in search of evidence rather than doctors acting out of medical necessity, stomach pumping was too invasive to withstand constitutional standards of decency. Certain principles are inherent in the concept of “due process”, and stomach pumping crosses the line:

"We are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience…. this course of proceeding by agents of the government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation."

In Rochin, stomach pumping involved emptying the defendant’s stomach in order to retrieve morphine capsules. Similarly, waterboarding involves strapping the victim to a board – a rack? – and filling the victim’s lungs with water (producing the sensation, and eventually the reality, of drowning) in order to get him to answer questions.

So the Judiciary Committee should be putting this question to Mukasey: if stomach pumping “shocks the conscience,” can waterboarding be far behind? Are you really unable to decide if inducing the sensation of drowning by filling the detainee’s lungs with water shocks the conscience any less than making a prisoner throw up?

(Thanks to James F. Tierney for his assistance in preparing this blog entry.)