Politics of Fear and PAA

This is a good piece from Dahlia Lithwick on the politics of fear and the current debate over the Protect America Act extension. It is full of links as well if you want more information on the PAA debate.

More libel

This is an interesting suit - Subway v Quiznos. The suit concerns consumer generated Quiznos ads that Subway contends defame their sandwiches - particularly the quantity of meat on those sandwiches. Does Subway have a case? Is an "Italian BMT" a public figure? Can people trying to win a Quiznos prize have actual malice against a "meatball marinara?"

A second point - why do advocates of tort reform never discuss cases like this one?

Butts are so icky

We'll be reading Pacifica and talking about indecent speech on broadcast media in a few days. Unlike advocacy of illegal action, I am not sure that we can say that there has been much liberalization on the question of indecency. The FCC will seek a $1.4 million fine of ABC affiliates for showing a naked butt on an episode of NYPD Blue in 2003.



Warning: The FCC says this clip is indecent

Free speech in Turkey

Turkey has more restrictive laws regarding speech than does the US (most countries do) but has decided, in response to several high profile prosecutions, to liberalize speech regulations. The regulations in question balance a variety of interests in ways that are unfamiliar under first amendment logic, but I think there are some similarities worth considering. Atilla Yayla, a political science professor featured in this article, was fired from his job, criminally investigated, and ended up fleeing to the UK because he mildly criticized Attaturk, the founding leader of modern Turkey. At first blush, this seems a bit hard to fathom. Today, the American founders certainly can be criticized, but for years it was considered the height of rudeness and quite controversial to suggest that Thomas Jefferson, as now appears to be confirmed by DNA testing, fathered one or more children with a slave, Sally Hemmings. In the UK, it is an offense (albeit rarely prosecuted) to insult the queen. To the extent that the law protecting Attaturk is grounded in his importance as a symbol of Turkish nationalism and nationhood (and I think it is), the law is quite similar to proposed constitutional amendments to offer special protection to the American flag and to the laws protecting the British Queen.

Updated: Yayla convicted, sentenced to 15 months in prison, suspended.

Hate speech at funerals

You may or may not know the name of Fred Phelps, but he really hates gay people and any person, organization, or government body that doesn't hate gay people as much as he does. He is most famous for leading anti-gay protests at the funerals for American soldiers killed in Iraq. Next up:

A fundamentalist church whose members demonstrate at the funerals of soldiers killed in Iraq and believe God hates gays will protest the Academy Awards and the funeral of Heath Ledger, because the actor played a gay cowboy in the 2005 film "Brokeback Mountain."

Members of the Westboro Baptist Church in Topeka, Kan., are trying to find out where the 28-year-old actor's funeral will be held and have already made signs to hold outside the Oscars that read "God Hates Fags and Fag Enablers," "Heath in Hell" and "Mourn for Your Sins," Shirley Phelps-Roper, daughter of the church's controversial founder Pastor Fred Phelps, told ABCNEWS.com.

(snip)

Last year a Baltimore jury determined the Westboro Baptist Church was too vulgar and offensive to be covered by the First Amendment. The church was ordered to pay nearly $11 million to Albert Snyder, who brought a suit after the Phelps clan picketed the funeral of his 20-year-old son Matthew, who died while serving in Iraq.

As we discussed briefly earlier this week, many instances of religious speech draw on the speech clause and the religion clauses of the first amendment. Phelps and his followers could raise both free speech claims in their appeal of the Baltimore judgment, and free exercise claims against the state. On the other hand, their activities are extremely offensive to many people and it is genuinely difficult to fathom what possible contribution to public debate is made by the persecution of families in mourning. Protesting at the Oscars fits more neatly with our general first amendment categories although many might argue that their planned signage constitutes hate speech.

Are there significant differences between speech at the Oscars ceremony and a protest at a soldier's or actor's funeral? Can we draw first amendment distinctions that allow the Baltimore judgment against Phelps to stand while protecting his protest in front of the Oscars? Should both be protected, or neither?

Deporting citizens

So it turns out that the authorities have been deporting a small number of US born citizens by mistake without bothering to even make a simple phone call to check on their birth certificate records. This is the sort of thing that is bound to happen when we reduce or eliminate due process protections, access to legal counsel, and judicial oversight of bureaucracies. It is also likely that when we maintain separate standards for citizens and non-citizens that some citizens will find themselves improperly labeled. In the cases detailed in Taylor's piece, this resulted in American citizens being deported in some cases, and nearly deported in others, to countries who would regard them as foreigners. In fact, if Warziniack had actually ended up in Russia the Russians would have regarded him as an illegal immigrant and he might have ended up spending years bouncing back and forth between the two countries. As it was, he spent a lot of time in detention due to the mistakes made by the immigration authorities.

Campaign finance restrictions

An interesting speech case has been appealed to the Supreme Court and I think the Court will have to decide it promptly.

A conservative advocacy group, Citizens United, asked the Supreme Court on Tuesday to take up quickly and decide during the current Term a constitutional challenge to limits on its planned broadcast of ads promoting a movie about Democratic Presidential candidate Hillary Rodham Clinton. Tbe case may also affect promotion of a planned movie about another Democratic candidate for the White House, Barack Obama. A three-judge District Court in Washington refused a week ago to clear the way for unrestricted airing of three ads that promote the first film, “Hillary: The Movie” — a production that the District Court concluded amounts to a declaration that New York Sen. Clinton is not fit for the presidency so voters should not support her. A film that is similar is being prepared about Illinois Sen. Obama, to be ready in June.

One of the key problems in campaign finance law concerns determinations of what constitutes a campaign advertisement that advocates on behalf of, or against, the election of a specific candidate and what is merely non-advocacy political speech. When the speech in question doesn't look like a 30 second tv ad that says "Citizens United urges you to vote against Hillary Clinton" interpretation gets complicated. My take on this is that the District Court was correct as a matter of statutory interpretation (not that I am an expert on the campaign finance laws) but that the case raises serious questions about the constitutionality of this provision in the law.

It would be ironic, wouldn't it, if John McCain is the Republican nominee and groups that want to support his candidacy are prohibited by the McCain/Feingold campaign finance law from running ads in an effort to help him.

Hustler v Falwell

Hustler v Falwell can be found here including audio of the oral arguments.

And the cartoon at issue in the case is here.

Whitney v CA

I forgot to put up a new link for this case although, of course, you are all fully capable of looking up the case. Anyway, try here for the case, scroll down about 2/3 of the way for Brandeis's concurring opinion (or just search for Brandeis).

Padilla sentenced

Padilla was sentenced today to 17 years 4 months in prison, far less than the life term suggested by federal prosecutors. Padilla's co-defendants also received shorter than recommended sentences.

ATT and internet privacy

(updated below)

ATT wants to start filtering all internet traffic that passes through their equipment for copyright infringement. This would affect ATT subscribers, obviously, but also most of the rest of us as ATT owns various bits and pieces of the internet. This dovetails with the internet surveillance that the Director of National Intelligence would like to impose. We already know how seriously ATT takes the privacy of their customers (not at all seriously) when the government asks for private data.

Start training your carrier pigeon (or your owl) because that soon may be the only way to have a private communication with anyone you can't see in person.

Update: I spoke too soon, I guess they will be watching your owls and pigeons too.

Libel against John McCain

(Updated below)

The latest, and truly despicable, dirty trick of the current campaign is a flyer and website that attacks John McCain by suggesting that he is some sort of Manchurian candidate who is both using his POW experience as a sympathy ploy to get elected and once in power will be controlled by shadowy outside forces to America's detriment. They also suggest that he betrayed his fellow POWs. This strikes me as more than enough to meet the test for libel from New York Times v Sullivan. Like John Kerry in 2004, McCain would have an excellent case to make even under the very restrictive actual malice standard that public figures such as McCain must prove. I won't link to the Vietnam Veterans Against John McCain website because I don't think they deserve to have their speech amplified. TPM has a copy of the flyer and links to the original website.

Reports say that McCain is hitting back against this, but really, who does he hit? There may be no effective answer to this kind of libel, even for a sophisticated and well-funded political candidate with almost limitless access to mass media. Once defamed in this way, it is not clear that McCain can undo the damage through his own speech and speech on his behalf. Even if most people reject these charges (and most people will) McCain's reputation still suffers damage. A lawsuit after the campaign is over will have no effect on the South Carolina primary this weekend. Will bringing such groups out into the open help? Will their behavior and speech be affected by public scrutiny?

Perhaps we need to resuscitate the criminal law of libel for a very narrow class of especially damaging kinds of politically motivated attack? Attacks like this one don't appear to contribute anything to public debate about who would be the best president and fail to promote any of the usual goals of free speech. It would be very difficult to come up with a positive argument for protection of this sort of defamatory attack.

Unfortunately, this is only one of an already depressingly large number of shadowy and sneaky defamatory attacks in this campaign and they aren't going away. They pose real problems for free speech theory and we should discuss some of these in class.

Updated: For more on who these people are, and from the AP.

Updated again: The story gets a bit more complicated. The flyer has never been distributed except to media outlets and the group behind it has no money to place ads on tv or to distribute their information other than sending things to local media and to their email list of supporters. Far more attention to this story has come from the McCain campaign's pushback, media coverage, and people like me writing about it. My earlier argument that McCain has no real way to undo the damage was, it now seems, an over-reaction in light of this new information since it appears that if he had ignored the whole thing, few people would likely have known anything about this group and its libelous charges.

Mike Huckabee

OK, this has nothing to do with constitutional law, or anything else in either class, but it really is worth a minute of your time.



Updated: Everything you might want to know about frying squirrels, from Slate (even includes a clip from Secret Squirrel!).

Internet surveillance

The Director of National Intelligence has publicly stated that the government needs the power to observe everything that happens on the internet.

The nation's top spy, Michael McConnell, thinks the threat of cyberarmageddon! is so great that the U.S. government should have unfettered and warrantless access to U.S. citizens' Google search histories, private e-mails and file transfers, in order to spot the cyberterrorists in our midst. (Wired "Threat Level" blog)

There are many angles from which we can observe the claims for new power that McConnell makes. Aside from the practical question of whether searching everything that happens on the internet is likely to be an effective strategy, think about this from the perspective of our current reading on political fear. Assuming, for the sake of argument, that looking for a needle in the world's largest haystack won't provide a whole lot of bang for our intelligence buck (although I suppose we could use prison labor - scanning internet traffic could be the 21st century equivalent of breaking rocks for punishment), why would McConnell want to publicly advocate for this power? If it won't work, what is it for? What sort of political fear is involved here? Will constant and pervasive internet monitoring have effects we can recognize through the literature on the politics of fear?

Did anyone watch the Democratic candidates debate last night? That too featured references to the politics of fear, particularly by Obama.



Updated: Here is the clip - Obama on politics of fear.

Campus speech codes

We will be reading a short selection from Jon Gould's book Speak No Evil which examines campus speech codes and related controversies. Such controversies are frequent occurrences, one is now active at Bergen Community College. It is also worth comparing a campus speech code like Bergen's proposed code to the Canadian hate speech law considered in the last post.

Updated: And this is a good example of why some people push for hate speech codes.

Hate speech laws in Canada

Glenn Greenwald has a good post up today about a hate speech investigation in Canada. Canada has more restrictive speech laws than does the US, laws that are consistent with their constitution but which allow the government to investigate and prosecute Canadians for hate speech that in the US would not be actionable. The case Greenwald references is that of Ezra Levant, who published the Danish Mohammed cartoons in his conservative Western Standard. A complaint was filed with the Alberta Human Rights and Citizenship Commission against Levant and the commission investigated. Greenwald has a 5 minute youtube clip of part of the investigation, as he says, it is "stomach-turning."

Greenwald argues against the investigation and utilizes some classic First Amendment principles to do so. The Canadian constitution has a free speech provision that is at least as strongly worded at the First Amendment. However, their constitution also has a clause that requires that provisions of the constitution always be interpreted against a background commitment to equality. In a conflict between free speech and political equality, the Canadian constitution is read to favor equality even at the expense of free speech. Canada also has more restrictive pornography laws than the US based on gender equality arguments like Catharine MacKinnon's. It is an entirely different constitutional arrangement than ours, there is a different politics to these cases in Canada than the US, and Canadian judges have different factors to consider when hearing these cases than an American judge deciding such a case under the First Amendment.

The Canadians (and the Danes, the Germans, the French, and the South Africans, among others) made different constitutional choices than the US has in structuring the meaning and content of free speech protections. We can learn a lot from the comparison between our respective constitutional practices. Greenwald's criticisms are all valid, if this were a question of American First Amendment law, and may be valid as a question of free speech theory (although he doesn't elaborate much of that theory in a short post), but the investigation he criticizes is constitutional under Canadian law.

We should discuss this case in class both in terms of what it says about free speech theory and what it tells us about American hate speech law that we will read in a couple of weeks. I don't think it is an accident that the Canadians designed their constitution (ratified in 1982) to privilege equality over speech and I don't think it is an accident that they included specific instructions on how to weight civil liberties provisions in case of conflicts between rights or freedoms.

Not just for Rudy

Of course, Rudy isn't the only one using fear in this campaign. With things not going so well for her campaign, Clinton has also played the fear of terrorism card a few times, most recently yesterday.

The 9/11 Candidate

We will watch this video in Issues tonight and discuss it.

Video for class

Today in Con Law II we will watch this video and discuss it.

And maybe this one too, on the same theme.

Welcome

Since welcome posts are obligatory, welcome to my new blog Office Hours. I will use this blog to communicate with the students in my courses in Spring 2008 and it is primarily designed with those courses in mind. The blog will serve as an alternative place for discussion related to the course topics, a space in which I can raise issues that we did not have time to discuss in class, post links to resources relevant to our in-class discussions, and highlight current news and commentary germane to our discussions. I may also try to include audio-visual content that may not fit the confines of the classroom but is relevant to the course.