November 30, 2007
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.
November 28, 2007
By Wendy Kaminer
Conservative advocates of judicial restraint should be praising now beleaguered Judge Kathe Tuttman for doing exactly what they so often exhort judges to do. In releasing Daniel Tavares on his own recognizance (shortly before he absconded to Washington state and allegedly murdered two people) Judge Tuttman was following the law, not making it, engaging in a real-life exercise of judicial restraint. (Superior Court Judge Hiller Zobel’s op ed in the Boston Herald explains the judge’s legal obligations in deciding bail and the legal limits of her discretion.)
Whatever mistakes were made in the Taveres case do not appear to have been made by the judge, as reports in the Boston Globe have suggested. The Corrections Department was slow in charging him for allegedly assaulting prison guards; and, the defense attorney who appeared before the Judge Tuttman raised good questions about the merits of those charges, which the assistant district attorney didn’t answer with any specificity. (The Globe has obligingly posted a transcript of the bail hearing.)
But facts rarely get in the way of political pandering to public and fear and loathing of violent crime, especially during political campaigns. So, naturally, Mitt Romney quickly came under attack for appointing Judge Tuttman, a former prosecutor, and, naturally, he quickly called for her resignation, turning on her about as ruthlessly as he turned on former supporter Idaho Senator Larry “wide stance” Craig. (At least, if Romney ascends to the White House, we won’t have to worry about the president's stubborn loyalty to his appointees.)
We’d have many reasons to worry about the loyalty to crony factor in a Guiliani Administration (although it would be the least of our problems, given the former mayor’s record of thuggish authoritarianism.) The saga of his now indicted former police commissioner, friend, and alleged fellow thug Bernard Kerik exemplifies Guiliani’s penchant for hiring and promoting not necessarily competent or honest acolytes (and implausibly claiming failure to recall hearing about their alleged improprieties.) So it’s bleakly amusing to hear Guiliani attack Romney for appointing Judge Tuttman, whose crime was not breaking the law. In Guiliani-land, obedience to law doesn't seem to be much of a virtue.
November 27, 2007
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.
November 26, 2007
By Wendy Kaminer
Embarrassing publicity seems to have convinced U.S. Bridge Federation officials not to persist in retaliating against members of the U.S. Women’s Bridge Team for holding up sign proclaiming “We did not vote for Bush” at an awards ceremony in Shanghai. (See “No Offense,” below) A settlement was reached with the players just before the team captain was scheduled to appear on CBS’s The Early Show.
New York Times reporter Stephanie Strom broke this story on November 14th; the Times editorial board followed up the next day with a brief opinion piece denouncing the federation’s actions as “un-American, unsporting and counterproductive.” The editorial appeared on a Thursday; by the following Tuesday, the free speech skirmish was over, with federation officials in full retreat.
Obviously, this story illustrates the power of the press, but note that it’s a power exercised indirectly. Bridge federation officials do not appear to have caved because the New York Times disapproved of their actions; they caved because their own constituents -- active bridge players -- disapproved of them, or, at least, feared the effects of a public controversy over speech. The November 14th story helped activate support for the women’s bridge team: People were encouraged to email federation officials with their protests, one elite player told me; as the Times observed, when efforts to punish the women’s team for a moment of political speech were disclosed, “a vocal group of opponents began a campaign to force the federation to drop its demands.”
So this little victory for free speech (a major victory for the people involved, of course,) is not simply a testament to the power of the press; it’s a testament to the power of stakeholders (whether citizens or members of private associations) to keep their governments or associations honest -- if they choose to honor the obligation to do so. If the great majority of bridge players had spoken out in support of the federations’ action, if dissenters had lacked the strength of numbers and been easily marginalized and ignored, this story would probably have ended less happily, as many similar stories do. Inevitably, the rights of minorities often depend on the majority’s willingness to honor them.
November 21, 2007
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.”
November 20, 2007
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.
November 19, 2007
By Wendy Kaminer
Coerced speech is as much an affront to liberty and human dignity as coerced silence. In extreme cases – think of prisoners of war or terrorism reciting “confessions” dictated by their captors – the affront is obvious. But it’s easy to overlook the abuses occasioned by routine impositions of political orthodoxies on people either too disadvantaged or too craven to challenge them.
Consider the recent case of MBTA customer service employee, Jaime Garmendia, (a disadvantaged victim of PC) suspended for wearing a noose to work on Halloween. Garmendia said that he wore the noose as part of a pagan ritual to honor the Day of the Dead, but in order to keep his job he will be required to attend racial sensitivity training (where he will, no doubt, be told what and how to think about race.) And, like a hostage to political correctness, he issued what appears to have been a coerced apology, berating himself for his insensitivity and “lack of forethought.”
Then there’s the case of Brookline, Mass. Superintendent of Schools, William Lupini, a craven perpetrator of PC. Lupini recently issued a cloying, patronizing letter to the Brookline School Community, apologizing for a recent newsletter cover “display(ing) a black boy with a gorilla figure.” Lupini’s concern about the “negative connotations” of this image may seem understandable, at first, until you read on and learn that the boy in the photo chose the gorilla image himself. As Lupini writes, “the cover photo was taken in an elementary art class where the teacher was conducting a lesson on still life and observational drawings. Students were given a variety of objects to choose to observe and draw. The student in this photo chose the gorilla.” (emphasis added)
So when Lupini apologizes for using the photo because it “perpetuates stereotypes that are disrespectful and insulting to African Americans,” he is effectively telling the child who chose the gorilla image that he was guilty of disrespecting himself and other African-Americans and, for the benefit of his “race”, his photo should have been suppressed. (Maybe they’ll send him to self-esteem class.) I doubt that Lupini would have apologized for highlighting the photo of a white child standing next to a gorilla that he had chosen to study or draw, but in the Brookline schools, black children apparently enjoy fewer choices. What’s most fairly called racist – the use of this child’s photo or Lupini’s PC apology for it?
These cases are not anomalous; they’re ordinary and predictable. Political correctness became a subject of mockery well over a decade ago, but its influence and virulence seem only to have increased, at a great cost to free thought and free speech. According to a 2007 survey by the Freedom Forum, a majority of Americans (56%) do not agree that “People should be allowed to say things in public that might be offensive to racial groups.” That is a remarkable finding: While 70% of survey respondents professed support for the First Amendment, a majority of them believe in outlawing or otherwise prohibiting speech that might be considered racist.
It’s always hard to know how many people internalize social mores like this and engage in self-censorship, but we ought to remain alert to cases in which officially sanctioned attitudes and ideas are imposed on people, like Jaime Garmendia. The Supreme Court eloquently addressed the problem of official orthodoxies in the 1943 case West Virginia v Barnette, when it upheld the right of school children to decline to recite the Pledge of Allegiance. “If there is any fixed star in our constitutional constellation,” the Court observed, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
Barnette is a powerful defense of freedom of conscience, partly because it was written during World War 11 and reflects a clear awareness of totalitarianism. Justice Jackson, soon to become chief prosecutor at the Nuremberg trials, stressed that “those who begin coercive elimination of dissent soon find themselves eliminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.”
Of course I’m not equating contemporary political correctness with fascism, anymore than Justice Jackson was equating compelled recitation of the pledge with internment in a concentration camp. But I am comparing PC, with its compulsory apologies, to compulsory pledges; both “begin” the process of repression that the Constitution “was designed to avoid.”
November 16, 2007
By Wendy Kaminer
Only 16% of Americans know that the First Amendment protects freedom of association, according to a 2007 survey by the Freedom Forum, while some 64% know that it protects freedom of speech. So there’s some irony in the tendency of private organizations to use their associational freedoms to deny their members free speech. Speech codes and thought reform programs at private colleges and universities exemplify this lamentable trend.
Now comes the United States Bridge Federation. The New York Times reports that the women’s bridge team, which represented the U.S. at the world bridge tournament in Shanghai last year, has been threatened with “serious sanctions, including a yearlong ban from competition” for daring to display a sign at an awards dinner proclaiming “We did not vote for Bush.”
Considering the president’s low approval rating at home and the virulent anti-Americanism he has inspired abroad, it’s easy to understand why members of the women’s bridge team wanted to clarify their own political allegiances. (These days even people who probably did vote for Bush, like Republican presidential candidates, are eager to distance themselves from his policies.) The team captain explained that she put up the “we did not vote for Bush” sign in response to “a lot of anti-Bush feeling,” focused, not surprisingly, on concern about torture and the war in Iraq.
But apparently, on U.S. Bridge Federation planet, disassociating yourself from the president at an international event is at best a serious breach of decorum and at worst “treason.” A hearing next month will determine if the women are guilty of “conduct unbecoming a federation member.” Maybe the hearing will not be a show trial, but given the reported conduct of federation officials so far, I wouldn’t bet on their sense of humor, fairness, or respect for freedom of thought (among other ideals they seem to consider “unbecoming.") The persecuted bridge players are being pressured to offer official apologies for their presumptively offensive speech – apologies drafted by the federation attorney. And, they’re under pressure to name names: According to the Times, a proposed settlement would require them to issue a statement revealing “who broached the idea of displaying the sign,” and “when the idea was adopted.”
Of course, as a private association, the U.S. Bridge Federation has a constitutional right to operate without regard to constitutional ideals; federation officials have a right to govern like petty tyrants (although they might be subject to private, civil actions if their conduct violates federation rules or contracts with members.) But I doubt that the officials are relying on their associational right to act badly. I doubt that they regard their conduct as tyrannical or even disrespectful of free speech. I suspect that they’re relying, instead, on the nonsensical belief (epidemic on college campuses) that free speech guarantees do not protect speech considered “hateful” or “offensive” – as if we’d need legal or social norms to protect friendly, inoffensive speech.
The women do have their supporters, but, as one elite player complained to the Times, in exercising their legal right to speak, they had offended many people: “While I believe in the right to free speech, to me that doesn’t give anyone the right to criticize one’s leaders at a foreign venue in a totally non-politically event.” In this Alice of Wonderland world, free speech doesn’t mean the right to speak freely.
November 15, 2007
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.
November 15, 2007
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.
November 15, 2007
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.)
November 14, 2007
By Wendy Kaminer
Alberto Gonzales left office patting himself on the back for his work combating online child porn, a Bush Administration priority. Congress has enthusiastically targeted child porn too, even when it’s only imaginary, but ran into resistance from the Supreme Court. This term, however, in U.S. v Williams, the Court is once again considering the right to discuss, or pretend to discuss, child pornography.
The story of this case begins with a 1996 law prohibiting virtual child porn, criminalizing computer images that falsely appeared to show children having sex. The 1996 Child Pornography Prevention Act also prohibited falsely describing sexually implicit images “in such a manner that conveys the impression” that the images depict actual children.
Congress proudly passed the CPPA despite the lack of evidence linking virtual porn to actual crimes against children. Free speech advocates pointed out that the virtual child porn ban was a thought crime, enabling the imprisonment of people who created, possessed or discussed non-obscene images of imaginary children having imaginary sex. The Supreme Court agreed (by a 6 to 3 vote) and in Free Speech Coalition v Ashcroft, struck down the ban on virtual porn. The First Amendment does not protect your right to possess or otherwise traffic in actual child pornography, but it does protect your right to think about it. In his majority opinion, Justice Kennedy observed: “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”
Undeterred, Congress passed the PROTECT Act in 2003; it includes a provision similar to the earlier ban on speech falsely “convey(ing) the impression” of child porn. The PROTECT Act prohibits “knowingly ... advertis(ing), promot(ing) … or solicit(ing) …any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material contains” child porn.
The meaning of this provision is not exactly clear. What is “purported material?” Who decides if material or “purported material” is described in a way designed to give the false impression that the material is child porn? The 11th Circuit Court of Appeals found this language “vague and standardless,” providing people with no notice of precisely what speech might land them in jail, while granting individual law enforcement agents “incredibly broad discretion to define whether a given utterance or writing contravenes the law’s mandates.” In other words, the PROTECT Act not only exposed people to prosecution for pretending to talk about child porn; it exposed people to prosecution when law enforcement agents believed they were pretending to talk about child porn. Pursuant to this provision, innocent people could be indicted for pandering child pornography because a federal prosecutor had a dirty mind.
So in U.S v Williams, the 11th Circuit struck down the pretend pandering provision of the PROTECT Act. The government appealed to the Supreme Court, which heard arguments in the case last month; according to legal commentators the Court seems poised to reverse the appeals court and uphold the law.
The Justices’s apparent inclination to uphold poorly drafted prohibitions on falsely advertising or pandering pornography may partly reflect the facts of the case before it. Michael Williams was convicted of possessing and pandering actual child porn. He received concurrent 5 year sentences on both charges and is not appealing his conviction for possession (so his sentence will be unaffected by the Court’s decision in this case.) Williams is, however, appealing his pandering conviction, arguing that the false pandering law under which he was convicted is unconstitutionally broad and could ensnare innocent people.
The Court has traditionally heard challenges to overly broad laws brought by people who could have been constitutionally prosecuted under narrowly drafted laws; the conviction of a guilty person pursuant to an unconstitutional law does not make the law any less of a threat to the innocent. But the fact that Williams was not a victim of the vague, overly broad language of which he complains naturally makes it easier to rule against him, regardless of the law.
Still, while an innocent man is not at risk of imprisonment in this case, innocent people will be at risk if the Court rejects Williams’s challenge to the false pandering prohibition. Free speech is at risk too, partly because the Court is reported to be considering whether to limit the “overbreadth” doctrine that allows unsavory people like Michael Williams to challenge laws that might be unconstitutionally applied to innocent people by unsavory prosecutors.
As the National Coalition Against Censorship and the First Amendment Project stressed in their amicus brief in Williams, the pandering provision, if upheld, would dangerously expand government power “to penalize and chill speech based on its content” and “present widespread opportunity for abuse by local law enforcement officials. The risk, demonstrated time and again, is that police officers and prosecutors, in their zeal to combat real child abuse, will charge innocent people with child pornography, solely on the basis of their ideas, fantasies, speech or expression.”
Important First Amendment principles are at stake in U.S v Williams, as this brief stresses, and civil libertarians should be grateful that free speech advocates were not afraid to support a challenge to an unconstitutional law, simply because it was initiated by a convicted child pornographer (who, as I’ve noted, will not escape prison if the 11th Circuit decision striking down portions of the PROTECT Act are upheld.)
But the nation’s most prominent free speech organization (or most prominent, putative free speech organization,) the ACLU, did not speak up in this case, declining to file its own brief or to join in the brief filed by the smaller, scrappier National Coalition Against Censorship and the First Amendment Project. Whether the ACLU’s silence reflected inattention to the case or concern about offending donors, it’s another sad testament to the organization’s declining commitment to defending civil liberty, especially at a cost. Even if free speech prevails here and the Supreme Court unexpectedly upholds the 11th Circuit's decision in Williams, civil libertarians should not sleep easier knowing that a federal appeals court was less skittish about deterring abusive prosecutions and defending First Amendment freedoms than the ACLU.
November 13, 2007
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.
November 09, 2007
By Harvey Silverglate
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
7th, 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.
November 08, 2007
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.)
