School Officials and a Circuit Court of Appeals Take a Book from Libraries

By Brittni Smallwood
© 2006 The Associated Press
(Photo: Virginia Rosen)



A book known as “A Visit to Cuba” will be take removed from Miami libraries. According to an article in the First Amendment Center website a three-judge panel of the 11th U. S. Circuit Court of Appeals voted in favor (2-1) of the book being taken from schools in the Miami-Dade Country School Distrist. The judges ruled that their decision does not infringe upon First Amendment rights because according to them the book shows a misrepresentation of life in Cuba.

The school district has issues with the book because to them it depicts children in Cuba in a distorted way. The book has Cuban children smiling while in communist uniforms, meanwhile it fails to mention the issues of the country. The school district said the book was brought to the attention of the Board about three years ago when a parent made a complaint. The parent was a former political prisoner in Cuba.

One Federal Judge advised that the school district should bring in books that showed different perspectives of Cuba.

• Does the bookseller have a right to argue the books existence on Miami Library Shelves? What if the author says their book is a depiction of what Cuba really is, especially to them, regardless of what others say?
• Does the town or the upset father have a right to remove literature from shelves, even if it is not accurate; it’s providing a different look of Cuba?

Foreign Rules could put Google Execs Behind Bars

By Brittni Smallwood
© 2007 The Associated Press
(Photo: Uwe Lein)

A group of Google executive and lawyers face criminal prosecution in Italy on charges of violating Italian privacy laws. The dispute is over a video that shows teenagers making fun of a boy with Downs syndrome. According to Italian prosecutors, Google’s executives and lawyers took two months to remove the video. However Google officials say they removed the video immediately once they heard the complaint.

The Google executives and lawyers told Privacy Advisor they did not post video yet they are still the party being prosecuted. The company also does not monitor the content that is uploaded to Google video. According to the Privacy Advisor article, in Italy the internet content provider is legally responsible for what a third party posts, but in the US because of the Communications Decency Action, Section two thirty the service provider is not be liable.




Google Executives and lawyers compare the issue to mail service employees brought to court for hate speech letters sent in. They see the prosecution as a “direct attack on free, open Internet”.

If guilty the Google executives could face up to three years in jail.


• Because Google is an American Company should Section 230 of the Communications Decency Act apply…that the Internet content provider is not legally responsible for what the third party posts?

• Does this infringe upon First Amendment Rights in America or Free Expression Rights if you’re in Italy?

Juicy Campus Is No Longer

By Kate Sheehy
© 2008 The Associated Press (Photo:Damian Dovarganes)

The Reporter's Committee for Freedom of the Press(RCFP) reports that the controversial website JuicyCampus has announced it will no longer be online. Thousands of college students from all over the country could post crude comments about their peers anonymously. The RCFP says many college administrators and students expressed great concern over the language used to attack an individual’s character.

CEO of the website Matt Ivester gave a comment to the AP saying,

“In these historically difficult economic times, online ad revenue has plummeted and venture capital funding has dissolved," said Ivester who founded the site in 2007.

The RCFP reports that people posted comments on the site such as “biggest slut on campus,” and jokes about peoples’ weight were also common. However, this type of speech is legal by federal law under Section 230 of the Communications Decency Act. The law states that the website cannot be held legally responsible for what is posted.

Juicy Campus spokesperson Steven Wilson told the AP that the site did not shut down because of public criticism.

The AP interviewed Andy Canales, Student Body president at Pepperdine University, Malibu, CA. According to the AP he was very vocal in his opposition to the JuicyCampus website.




· If you were going to advertise for this site, how would you argue that this speech is protected under the First Amendment and not hate speech?
· The Communications Decency Act says "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." How does this apply to the JuicyCampus website?
· Think about this site in terms of William Posser's summary of privacy protection in terms of Tort law, or one person's responsibility towards another. Does this site disclose embarrassing facts about people? Is it false publicity? Think about how one would argue this site as a publication.

Controversial Pictures

By Kate Sheehy
© 2002 The Associated Press (Photo: Frank Augstein)


The Reporter's Committee for the Freedom of the Press (RCFP)and The New York Times report that members of Congress are asking President Obama, to review the policy of the Bush administration restricting media from photographing the coffins of dead soldiers. The regulation started in 1991 and applies primarily to the Dover Air Force Base, where most of the returned bodies of soldiers come through. Initially, exceptions were allowed. Then under the Bush Administration, this act became completely prohibited.

The RCFP reports that Defense Secretary Robert Gates says he is seriously considering repealing the restriction. RCFP writes that Gates says taking pictures of the coffins is not a problem, if the feelings of the soldiers' families are respected. The RFCP states that Democratic Senator Frank Lautenberg, has also written a letter to Obama requesting this policy be reevaluated.

“I respectfully urge you to work to bring an end to the misguided policies of the past that seek to hide the sacrifice of our soldiers and the public recognition and pride that should accompany it,” said Lautenberg.

President of Military Families United, John Ellsworth told the RCFP he believes that families of the soldiers should be the ones to decide if the coffin should be photographed.

· If brought to trial would regulations about photographing these coffins be considered under the Strict Scrutiny or Immediate Scrutiny test, in other words are the pictures directly or indirectly related to speech?
· What reasoning could you use to argue that under the First Amendment the press has a right to share these pictures with the public?
· Think about the Freedom of Information Act and whether prohibiting photographs falls under the exemption of National Security or Personal Privacy?

NBC's Hunt on War Criminals:Sensationalism or Journalism

By Kate Sheehy
© 2008 Associated Press (Photo: Rob Carr)


The New York Times reports that NBC’s new series, which focuses on hunting down war foreign war criminals living in the U.S., is being questioned for violation of individual privacy. Working with a Rwandan government official, NBC brought accusations against a visiting professor from Goucher College in Maryland. Leopold Munyakazi has been suspended while the college investigates charges against him for genocide in Rwanda. The college president Sanford J. Ungar says that a producer from NBC sent him a letter outlining these charges last December.

The article in the New York Times refers to very similiar criticism of NBC over their investigative program, “To Catch a Predator." They went about trapping sex predators, exposing them on television before they had the opportunity to defend themselves. This resulted in the suicide of one of the accused.

Munyakazi denies the charges, according to the Times, saying that he actually saved people during the conflict. NBC’s actions have alarmed many federal and public organizations. The department of Homeland Security told the New York Times this could hurt their own investigations and ability to prosecute war criminals. The Human Rights Watch commented that they are concerned over the ethical tactics of the program.

“I was worried that a journalist was making false accusations, due to some extent to his close collaboration with the Rwandan government,” Executive Director Kenneth Roth said.

The Poynter Institute, a school for professional journalists, has raised issue with NBC’s journalistic integrity in working closely with a government entity. The institute told the Times that their issue addresses a journalist’s duty to work independently.

“Because it’s really important that our audience view us as independent — not carrying water for someone else,” ethics group leader for the Poynter Institute, Kelly McBride said.

Even Goucher College’s president, a former host for NPR, voiced concern to the New York Times about the ethics of the NBC producer and crew. He questions the strategy of the NBC producer’s way of getting information about Munyakazi. He says the station should have gone through the proper government officials here in the U.S., instead of working directly with the Rwandan government.

· What issues could be brought up under FCC regulations that this type of programming does not serve the public interest? That it does?
· Was it acceptable for the media to come onto the college campus and make accusations against Munyakazi in his place of employment? How may this violate the Freedom of Information Act?
· How may a gov. agency argue that a restraining order is necessary to protect national security? What test could be applied to prove or disprove that this reporting could cause danger to the public?

AP Alleges Copyright Infringement

AP alleges copyright infringement

By Brittni Smallwood
© 2009 The Associated Press
(Photo: Damian Dovarganes)


A street artist Shepard Fairey and the Associated Press are in a debate about whether Fairy is guilty of copyright infringement. According to an article by the Reporters Committee for Freedom of the Press, the AP says they own the copyright, and that they want credit and compensation for the photograph of Barack Obama.



Shepard Fairey is defending his art, saying that his actions were plausible because of the “fair use” doctrine of copyright law. The law states that under certain circumstances an individual is allowed to have limited use of copyright material without the copyright holder’s permission. Fairy admits that his red, white and blue “hope” image of Barack Obama was based on an image from an Associated Press photojournalist, Mannie Garcia.

Columbia University law professor Jane Ginsburg told the Associated Press that this situation makes her uneasy. The notion that someone can take anyone’s photograph and just use it, she says is pretty radical.

Shepard Fairey’s attorney defends him by saying the artist did not violate any rights or rules by creating a painting based on the photograph of Mannie Garcia. In her opinion Fairey used the painting for political use and not commercial.

• Is Shepard Fairey’s painting legal under the fair use test? Especially because Fairey says that his painting was used for political use and not commercial, even though Shepard Fairey received thousands of dollars for ebay purchases of these paintings with his signature on it.

• Even though Fairy made money off of the painting, if he created his image for the purpose of “serving the public interest by stimulating creativity as copyright law intended (Hopkins, 137)” then is his secondary use legal and of just cause?

Review Website Named In Suit

By: Sarabeth Smith


The California Anti-SLAPP Project (CASP) filed a motion to strike the complaint of Yvonne Wong, a pediatric dentist, against Yelp!Inc. Yelp! is an internet site which publishes user recommendations and reviews of local businesses. Dr. Wong's complaint alleges that two posters defamed her by posting a critical review complaining that she gave their son laughing gas, failed to discover all of his cavities, and filled a cavity using an amalgam containing mercury.

CASP is a public interest law firm and policy organization dedicated to preserving free speech by upholding the right to engage freely in civic affairs. CASP assists those who have become targets of SLAPP suits. A SLAPP is a “Strategic Lawsuit Against Public Participation.” These lawsuits are often filed by corporations against individuals and community groups. While these lawsuits are usually unsuccessful, they burden the defendants with the costs of the suit.

According the the San Fransisco Chronicle, the suit was filed in December in Santa Clara Superior Court. California has had legislation in place since 1993 to combat these SLAPP lawsuits. Once the California anti-SLAPP is found to apply to the case, the law places the burden on the plaintiff to come forward with a legally sufficient and factually supported case.

In addition, Section 230 of the Communications Decency Act, immunizes website operators from the statements of third parties. However, Wong named Yelp! as a defendant because the company refused to take down the negative reviews. Wong’s attorney, John Terbeek said to the San Francisco Chronicle that he will probably will dismiss the charges against Yelp because he wasn't aware when he filed the suit that Web sites publishing third-party content are protected under U.S. law.

This is the second suit in California revolving around Yelp! for the publication of negative reviews. San Francisco chiropractor, Steven Biegel, settled a libel case against a former patient who posted a review on Yelp! complaining about Biegel’s billing practices.

• If websites which allow third parties to post their own content exercise editorial control by adding or removing content, should they be liable for defamatory content?
  
• If websites which allow third parties to post their own content take a hands off approach and do not mediate the content, should they be held liable for the content?
• Is there a difference between the publisher and the distributor of information?
  

Campaign Speech or Free Speech

By: Sarabeth Smith
Photo Credits: Regeilo Solis
Associated Press (2003)

Following a ruling from the Mississippi Supreme Court, former County Court Judge Solomon Osborne , 60, was reprimanded for a speech made during in his 2006 election campaign.
During a speech before a predominately African-American political action group, Osborne said, as quoted by The Greenwood Commonwealth: “White folks don’t praise you unless you’re a damn fool. Unless they think they can use you. If you have your own mind and know what you’re doing, they don’t want you around.”

While the judge claims that his comments were free speech, the Mississippi Supreme Court asserted that they went beyond the realm of protected campaign speech. Judge George C. Carlson Jr., wrote in his majority opinion that “Campaign speech expresses views on disputed legal and political issues and discussing the qualifications of the judicial office for which Judge Osborne was campaigning.”

However 3 of the 9 justices dissented from this opinion. They agreed that the judge’s comments were not appropriate, but they did address a political issue, that of race. The dissenters agree that punishing Judge Osborne’s speech is a violation of the First Amendment of the U.S. Constitution and Article 3, Section 13 of the Mississippi Constitution. While the judicial office had been seeking a lifetime ban, Osborne was ordered to be publically reprimanded and order to pay $731, the costs of the hearing.

- The Court said “No one is compelled to serve as a judge, but once an individual offers himself or herself for service, that individual accepts the calling with full knowledge of certain limitations upon speech and actions in order to serve the greater good. A calling to public service is not without sacrifice, including the acceptance of limitations on constitutionally granted privileges.” Do you agree with this?

- Should judges and other public officials be treated differently than the general public in terms of speech?

- Should speech of judges and other public officials be treated differently in different locations? Say, the courtroom in comparison with the campaign trail.

Don’t Ask, Don’t Tell - The Public’s Right to know the Identities of Prop. 8 Donors

By Sarabeth Smith
Photo Credit: (c) Associated Press
Photo by Rich Pedroncelli

According to the Associated Press, federal judge has denied requests to keep the names of donors to California’s anti-gay marriage initiative from publication. Pursuant to this decision, on February 2, nearly 14,000 donor's names were released to the public.

Proposition 8 overturned a 2008 state Supreme Court ruling which legalized gay marriage in the state of California. Proposition 8 was approved by voters in November of 2008 by 52%, effectively making gay marriage illegal in the state.

Under California’s 1974 Political Reform Act, the state can publishes the name and other identifying information of anyone who donates more than $100 to a campaign.

Supporters of the campaign filed a request for a preliminary injunction to block the then unpublished disclosure of late-stage donor names. The plaintiff’s also requested that already published names of donors be removed from the secretary of state’s website.

The plaintiffs claimed that public disclosure of the identities of donors would put those individuals at risk of harassment. Frank Schubert, a campaign manager for Project Marriage told the New York Times “Some gay activists have organized Web sites to actively encourage people to go after supporters of Proposition 8."

Despite these pleas, U.S. District Court Judge Morrison England Jr. ruled in favor of the state and denied the requests. The judge stated that the disclosure laws were meant to protect the public.

• Consider the Supreme Court case of Brown v. Socialist Workers Comm., 458 U.S. 87 (1982), where the court held that the mandatory discourse of names and addresses violated the First Amendment rights of the Ohio Socialist Workers Party. Is this inconsistent with the Prop. 8 decision?

• How can one establish that there will be a “reasonable probability” that compelled disclosure would result in “threats, harassment, or reprisals from either Government officials or private parties”?

8th Circuit sides with Mo. school in dispute over Confederate flag

By Chloe Sommers

Three Missouri high school students were suspended from school for wearing confederate flag clothing because of several racial incidents in school.

The students have now lost the suit against their public high school because of a 1995 dress-code policy saying, “dress that materially disrupts the educational environment will be prohibited," reports an online article from firstamendmentcenter.org. Some townspeople have taken discriminatory actions against some black residents, as recently as in 2005.

A few of the three students’ classmates dressed in confederate clothing in support of their friends that were suspended, not to incite racial discrimination. They argued that they had a right to wear it under the First Amendment. In August 2007, U.S. District Judge Jean C. Hamilton ruled on the side of the school officials, using the precedent set by the U.S. Supreme Court in the 1969 ruling Tinker v. Des Moines Independent Community School Dist. when they barred the Confederate symbol from campus.

The students appealed to the 8th U.S. Circuit Court of Appeals at the end of January where the previous ruling was upheld. One of the judges said, “no other circuit [court of appeals] has required the administration to wait for an actual disruption before acting,” reports the online article.

• In the spectrum of people covered by the First Amendment, where is the rights of high school students (no rights, some right, all rights...)

• Can you think of any other offensive material students wear that is not illegal under the First Amendment?

N.J. Gov. Corzine E-mails to Remain Private

By Chloe Sommers
Both photos © 2008 Associated Press (photos by Mel Evans)


The Associated Press article, N.J appeals court rules governor's e-mails are private, from the firstamendmentcenter.org is an example of how an appeals court can work as a last resort for a defendant.


In New Jersey, a lower court ruled that certain e-mails between New Jersey Gov. John Corzine and his labor leader ex-girlfriend, Carla Katz, be made public.

A judge read over the emailed communications before the ruling. But on January 12th, 2009 the state appeals panel reversed the decision, keeping the e-mails private. But more importantly, the Associated Press reports, "the appeals court was swayed by Corzine’s contention that the e-mails are covered by executive privilege, a concept that allows officials to withhold certain information in the interest of governing."

The Republican Sate Committee says the e-mails could show what, if any, influence Katz had in Gov. Corzine’s decision to stop the Legislature from tackling state worker pension and health-care reforms in 2007, reports the Associated Press.

Katz argued that the e-mails should remain private because they involved contract talks, which are exempt from Open Public Records Act requests. The Open Public Records Act comes from the Right to Know Law, stating “government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest…” You can read more about the law from the Rutgers website .

There are a few reasons, under the law, the Gov. Corzine could keep his e-mails private. Are one of these points for him.

• Most state laws have an exception for communication that is “an unwarranted invasion of personal privacy.”

• Most laws except negotiations because publicity about them could harm the process. (How would one argue that they qualify as contract talks.)

• The law also allows for executives to have some privilege over their work – otherwise people might not be candid in communication with them, or material that is still in deliberation might get out before it is fully decided. Does this situation qualify?

Federal Judge Strikes Down R.I Billboard Law

By: Chloe Sommers

Rhode Island state law bans highway billboards that advertise for a business or activity that is not located on the same property as the billboard.

In an article from the firstamendmentcenter.org, the state of Rhode Island's recent attempt to restrict the content of a highway billboard was ruled unconstitutional under the First Amendment.

Anthony Vono, a designer of promotional materials, was brought to court for advertising for his commercial and noncommercial clients from a billboard located on his business' property off of Northbound Route 95.

The Providence Journal online reports, at the time, in 2005, Vono's billboard was promoting a nonprofit welfare agency from the rooftop space he leases.

Vono's defense wass"that it is unconstitutional to base restrictions on whether the billboard is promoting on-premises or off-premises activities," according to the Providence Journal Online.

The case recently went to the U.S. District court, where Judge William Smith ruled the restriction of the billboard was unconstitutional. It violates Vono's free-speech rights because the sign was regulated based on the message and content.

• What legal argument would one give for declaring this law unconstitutional?

• Is this a restriction based on the content of the speech or is it a legal time/place or manner restriction?