First Amendment Showers at the Supreme Court

The United States Supreme Court will hear arguments Tuesday in two cases that have serious First Amendment implications: one with implications as old as time and politics and the other as modern as the technology involved. First Amendment cases do not dominate the 80 or so cases the court takes every year. Two being argued on the same day seems even rarer.

The first case on the Tuesday argument docket is Susan B. Anthony List v. Driehaus, which challenges an Ohio law that criminalizes false statements about a political candidate or ballot initiative. This controversy goes all the way back to the 2010 congressional re-election campaign of a U.S. Representative from Ohio who had been targeted by conservative political groups, particularly an anti-abortion group that had published statements that the Congressman, Steven Driehaus had voted for tax-payer-funded abortions through his vote for the Patient Protection and Affordable Care Act.
Claiming this was a false statement, Driehaus filed a complaint with the Ohio Elections Commission, invoking the controversial law. This led to a hearing and ultimately a constitutional challenge by SBA.

The law, which includes actual criminal sanctions of up to six months in jail and up to $5,000 in fines also includes procedural mechanisms that can also create the threat of sanctions.

SBA argues this restraint and threat of restraint on speech is blatant violation of the First Amendment. The lower court, the Sixth Circuit Court of Appeals, did not entirely clear up the messy procedural conflicts.

Surprisingly, as the SBA brief to the Supreme Court points out, Ohio is not alone with these types of false political speech statutes – nearly one-third of the states have them. SBA’s brief to the court makes several compelling arguments for protecting even false speech in political campaigns, equating this to a “chilling effect” on political speech. SBA also questions whether a law like this even has any efficacy. Most succinctly, SBA wrote: “Speakers should not have to risk criminal penalties to participate in the marketplace of ideas, particularly the political marketplace.”

For its part, the Ohio Attorney General Michael Dewine, makes mostly procedural arguments invoking constitutional doctrines of ripeness, arguing SBA did not incur “sufficient” injury and that its arguments on threat of sanction are too speculative to merit constitutional review.

Meanwhile, more than two dozen organizations lined up to support SBA with amici briefs, perhaps most notably the political humorist P.J. O’Rourke, whose brief’s question presented dripped with satire: “Can a state government criminalize political statements that are less than 100 percent truthful?”

As old as political mudslinging might be, the second case on Tuesday’s docket is as modern as they come. ABC v. Aereo pits the broadcast television networks against a start-up website which delivers the same content available in a broadcast region, except through an online subscription service.

At issue here is whether the U.S. Copyright Act’s definitions of retransmission of signals can be applied to the service which it compares to a personal DVR for broadcast signals that are collected via individualized mini-antennas. The broadcast programs are then available for playback by the subscriber.

Aereo’s briefs and arguments at the lower courts say this is no different than the way consumers in the late 1970s through the 1980s used VCRs to record shows for playback later. It is also akin to modern DVRs, which are used by 45 percent of American households. In essence, Aereo says that the litigation amounts to a war on cloud technology.

The broadcasters, on the other hand, believe that this subscription service robs them of revenues because Aereo is unfairly and without license retransmitting its programming without compensating them. A broadcasting executive at a recent communications law conference at Syracuse University College of Law said this was the biggest copyright case of the century and could redefine broadcasting.

“The broadcast television industry has invested billions of dollars producing, assembling, and distributing entertainment and news programming in reliance on this legal system. Yet Aereo has built an entire business around exploiting that copyrighted content – and has done so without obtaining permission from copyright owners or paying anyone a penny,” ABC argued in its brief.

The arguments are Tuesday morning and the Court will rule by the end of June. Stay tuned.

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Sunshine Week

Source: Sunshineweek.org

Source: Sunshineweek.org

This is Sunshine Week, a week dedicated to shining light on public information and the workings of government.  An homage to Supreme Court Justice Louis Brandeis’s famous statement that sunshine is the best disinfectant, press rights groups, open government advocates and regular citizens have been marking this week since 2005.

Initially, the mid-March celebration, if you want to call it that, was promoted on March 16, the birthday of James Madison, the principal writer of the First Amendment and an advocate for a free, vibrant press.

The American Society of News Editors (ASNE) founded Sunshine Week, but it has expanded with support from news organizations and a host of other press rights groups including the Society of Professional Journalists, the Reporters Committee for Freedom of the Press and the John S. and James L. Knight Foundation. The Tully Center for Free Speech supports Sunshine Week.

ASNE also prepared a Sunshine Week Open Government Proclamation, which urges government entities to be more open with regard to access to public records.

In part, the proclamation states: “Whereas, James Madison, the father of our federal constitution, wrote that ‘consent of the governed’ requires that the people be able to ‘arm themselves with the power which knowledge gives’”

The proclamation also speaks to the trust between citizens and the government, especially when it comes to public records and transparency of information.

Freedom of information, as some of the Sunshine Week literature notes, is a non-partisan issue.  It also spans government entities — villages, town councils, city councils, school boards, state universities, county, state and federal agencies and other government agencies. The important work of government requires these agencies maintain records and allow the public to review them.  The public has a right to know and even a duty to ask.

But that does not mean the information is also readily available all the time.  Every state and the federal government has freedom or information laws, which require the government to release information upon request.  Of course, there are legitimate exemptions to these laws, defined in the statutes.  Sometimes officials interpret the exemptions too broadly and sometimes they simply ignore the law.

This can be a problem.  The National Freedom of Information Coalition and the Better Government Association in 2007 reported that 38 of the 50 states received an F for failing to adequately comply with public records requests under the respective state laws.  Only two states – Nebraska and New Jersey – even earned a B.

But another report, 2010’s Access Across America, sponsored by the Society of Professional Journalists, found while law enforcement agencies appear to be tighter and tighter with public information, journalists across the country are not asking enough government agencies for records.

All over the country, journalists and press advocacy groups are marking the week with discussions on public issues, speeches and exercises to challenge government agencies to be more open. Perhaps the best way to celebrate Sunshine Week is to simply think about public information, and if you happen to be a journalist, to seek and use public information for your stories.

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Reporting Olympics for non-existent agency

With many eyes on Sochi Winter Olympics, Russia continues a free speech crackdown.

The Olympics starting today in Sochi will be covered by 2 800 journalists. The number includes a few dozens of Russian sports reporters from RIA Novosti, whose future after the Olympics is very uncertain.

Ria.ru courtesy picture

Ria.ru courtesy picture

The biggest Russian news agency RIA Novosti got “liquefied” in December 2013 with President Putin’s decree. The decree was published on the Kremlin’s website and shocked employees, management and even CEO of the agency. The decree states that the purpose of closing is “economy” and reformatting. Experts say this is yet another step in the crackdown on civil rights in the country, and the agency is “punished” for its liberal views. The agency was given three months to be reorganized. Therefore, right after the Olympics, journalist will face some dramatic changes.

“This step is another one in the series of changes of Russian news landscape that, it seems, points out at the tightening of the governmental control in the media sector that is quite regulated already,” it was said on the English version of the Ria Novosti website that normally copies the Russian version. This time, the Russian version, however, didn’t have the same message. Shortly after the message was quoted by other media, it was taken down from the website.

According to Putin’s decree, Ria Novosti is to be transformed into the new agency called Russia Today that would provide  news about Russia for foreign audience. “Restoring a fair attitude to Russia as an important country in the world with good intentions – it is the mission of the new structure,” says the appointed CEO of the new agency Dmitriy Kisilev. In other words, the purpose of Russia Today is propaganda or, as it called in the 21st century, news subsidies.

In Russia, Kiselev’s name rings the bell: his pro-government statements have earned him a reputation as a “Kremlin soapbox.”  Instead of going on and on about his loyalty to the government, it is better to quote him once to get the idea.

“I believe that gays should not only be fined for promoting homosexuality among young adults. They need to be banned from donation of blood, sperm, and their hearts, in the case of a car accident, should be buried or burned as unfit to continue someone’s life,” Kiselev commented on the Russian notorious anti-gay propaganda law.

It is still unclear how the agency will be reorganized and what is to happen to its assets: developed infrastructure, subscriptions from hundreds of businesses and media outlets, network of regional and foreign correspondents, 40 websites on 22 foreign languages. The agency is given three months for reorganization.

It is also unknown what is to happen with thousands of agency’s employees. Even the CEO Svetlana Mironyuk didn’t see it coming, according to her own words.

“Sorry those whom I couldn’t protect. I am really hurt,” said Mironyuk tearfully the day the decree was published.

Employees expressed their same level of frustration on social media. However, after two days  Mironyuk changed her position and insisted that the employees should not comment on the closure, even on social media.

On the agency’s corporate portal, she posted a statement saying that everyone should comply with the president’s decisions.

“You work in the federal media and Ria Novosti’s main stakeholder is Russian Federation. We are required to comply with federal leaders’ decrees. I also ask you not to react to provocative calls on social media for so called ‘support actions’ for Ria Novosti employees. Those, who organize them, are avid provocateurs and are interested in destabilizing the work of the agency,” said (ex)-CEO in the statement.

Some employees used social media to post notes of help to find a new job. “They ask us to stay and work for the new company, but I would never stay. It will be hard to go from liberal to pro-government in one day. Don’t want to get this propaganda watermark on my forehead for the rest of the career,” says the agency’s editor who asked to be anonymous.

Ria Novosti is appointed to be the national Olympic Games host-agency. “The country will see the Games with Ria Novosti’s eyes”, said the website banner long time before the opening ceremony. Right after the Games, in March 2014 these eyes will be shut.

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Duck and Roll

A&E TV image

A&E TV image

Another “celebrity” has put his foot in his mouth and is being punished for saying something that some people find offensive.  Phil Robertson, one of the guys from the “Duck Dynasty” show, made some homophobic comments in an interview and it has totally blown up.

Just to spread the wealth, he followed it up with some racist comments, too.

The A&E television network suspended him but the show will most likely go on. Now everyone from activists to Sarah Palin are chiming in. There have been social media protests and petitions both denouncing and supporting him.

Admittedly, I have never seen “Duck Dynasty” and I do not plan to.  As far as I can tell, from my tangential absorption of pop culture, it’s a show about guys in flannel who grow long beards and go hunting.  Maybe this is part of our problem.

The “Duck Dynasty” controversy raises two important questions: 1) should we be surprised that this guy harbors offensive beliefs? and 2) why do we care what he thinks in the first place?

The controversy also provides an important example of how we as a society deal with speech that offends. And it’s another lesson in the beauty of independent media and the hazards of our pop culture-driven society.

If we want to play the blame game, there is plenty of blame to go around, too. In our zeal to find entertainment (and in television executives’ desire to produce cheap entertainment) we catapult people with no real talent into prominent players in society. The list of reality television stars who speak solely to shock or offend is as long as the list of reality television shows.

This is not to say that bona fide entertainers are immune from foot-in-mouth disease.  From actors (recently Alec Baldwin) to athletes to politicians, the fastest way to the expressway of fame and riches seems to be saying outrageous or offensive things.

This formula can also backfire. Now that the “Duck Dynasty” guy is exposed for what he really is, the debate has begun.  The counter attack is on, and the content-starved 24-hour news behemoths and talk shows which thrust this guy into the spotlight are now filling time criticizing his offensive speech. There is almost a self-righteous indignation among television news reporters telling the world of his offensive and politically-incorrect beliefs. Yet, recently the networks were tripping over themselves to get the “Duck Dynasty” guys on their own shows.

In the long-run, this controversy does not rank up there with great debates about important public policy issues. It is an easy story to tell with colorful characters.

One of the great things about our independent media is its ability to decide what is news or entertainment. Even though the free market often drives this, we are also engaged in the marketplace of ideas.

As the great Supreme Court Justice Oliver Wendell Holmes famously wrote, the best test of truth is its power to compete in the marketplace of ideas.  He added that society confronts “imperfect knowledge” every day.

There seems to be more and more “imperfect knowledge” entering the marketplace every minute.  Some of us participate in the debate and some of us watch on the sidelines.  And then someone else does something outrageous and we all forget and move onto the next controversy.

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American graffiti

The irony was inescapable:  graffiti scrawled on a wall just below the First Amendment.  The message, a critical jab at the NewhouseSchool and SyracuseUniversity, was one of roughly a half-dozen tags found across campus early Monday morning.

“#1 in communications, last in free speech” was spray painted in bright orange on the western wall of the Newhouse 3.  It was a less-than-subtle jab at the university, which has not had the greatest record when it comes to free speech and debate over the past decade.

The vandals took shots at the university overall, with statements about the quality of the university, war, revolution and other political topics. Yes, vandals.

Rather than writing a letter to the editor, gathering for a peaceful protest on the Quad or the SchineCenter atrium or posting signs in the grassy strip between Schine and Newhouse, the vandals chose to spray paint their messages on campus buildings.

A number of photos were posted on The Daily Orange’s Twitter feed and local news channels covered the incident.  By midday Monday, university cleaning crews had removed most of the graffiti, though it is still obvious something was there.

As I went to survey the scene Monday at noon, two students were walking away, shaking their heads, after taking photos.  Then, the two university workers who had just finished power washing away the message also shook their heads in frustration and disbelief. They said they had been working since the early morning hours all over campus.  They lamented, “Why couldn’t they do this in the summer.”

As much as I respect dissent, opinions, debate and irreverence, the culprits are vandals.  Spray-painting slogans, catchphrases and even political commentary on buildings across campus is a crime. Even if you want to argue that it is a form of free speech, the messages would have carried a wide range of First Amendment protections had they been printed in books or newspapers or on posters or t-shirts.  One of the university workers proffered chalk.

Even a free speech absolutist like me has to question the motives and sanity of the vandals.  If there was a political message behind the graffiti, they easily lost their credibility by defacing campus buildings.  If it was some sort of prank with a humorous objective, the joke is lost on many of us.

Interim Chancellor Eric Spina issued a well-balanced statement, acknowledging the right to free speech, but in the right place.

“Every member of our campus community is entitled to his or her right to free speech, and there are many constructive ways to have your voice heard in our community.  We are saddened and disappointed that anyone would attempt to exercise that right in such a destructive manner. These are a set of important and historic buildings that hold great meaning for so many of our students, faculty, staff and alumni and to see them defaced in this manner is disheartening.”

Syracuse Department of Public Safety officers were canvasing the area in the middle of the night, interviewing at least two students who were pulling an all-nighter in Newhouse early Monday morning.  With the campus covered by video surveillance cameras, DPS must have video of the vandalism.

If anyone is ever caught, it will be interesting to hear them speak out and explain their motives and message.  That might be some speech we can accept, as long as it is not spray painted on another campus building.

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A Constitution Day Plea against NSA Surveillance

Ryan J. Suto is a Law and Public Diplomacy graduate of Syracuse University. He is currently volunteering for Restore the Fourth in Washington DC. He contributed this piece to share his thoughts on NSA surveillance. 

Today is Constitution Day, which marks the 226th anniversary of the ratification of the document which forms the legal outline of our society. This document includes values such as limited government powers, inter-branch checks and balances, and the personal right to be secure in one’s effects. Today is the day to reflect on how poorly we have done to maintain these values.

While government surveillance and opacity are not wholly new, the recent revelations of NSA metadata collection and activity exceeds the scope of all previously known examples of government overstepping. The National Security Administration (NSA)  routinely engages in the compilation of information on both domestic and foreign communications, acting inconsistently with the Foreign Intelligence Surveillance Act (FISA). More importantly, in October 2011, U.S. District Judge Bates wrote that the NSA acquires information with “substantial intrusions on Fourth Amendment protected interests.” To do this, the NSA has not only created an array of data collection technologies, but has also co-opted private data collected by complicit corporation. The NSA has hacked into the United Nations and has given your private information to the Israeli government. How can any American feel secure in his or her personal effect?

One might respond that we are in a time of war, exempting us from Constitutional limits on the grounds of necessity. However, the horrors of war were just as real to those who fought the Revolutionary War and created our founding documents as it is now for those who witnessed the horrors of 9/11 and face endless threats to domestic tranquility. We must remind ourselves that those documents originate from the cauldron of war by people who surely faced death if their revolution proved unsuccessful. Their values remain as true today as they did over two hundred years ago.

Any law is only as good as its enforcement, and the Constitution is no exception. We must  stand and assert our fundamental rights if we fear their erosion. Earlier this month the Associated Press reported that nearly 60% of Americans oppose the NSA’s metadata program. But without constituents in the streets and anger in their inboxes, our representatives have no incentive to challenge the current national security structure. As such, action is required to show Congress our disagreement of these programs. I call on all Americans to join the Stop Watching Us Coalition and Restore the Fourth in Washington, D.C. during  the weekend of October 26th for a day of action against the NSA’s mass surveillance. This day marks the anniversary  of the USA PATRIOT Act, legislation passed in response to the 9/11 terrorist attacks aimed at shaking our great nation’s strong foundation.
America is indeed an exceptional nation, full of amazing people and unthinkable potential. But if we the people don’t hold our government to its Constitutional limits of power, our liberty will be irreparably eroded by the fear of a possible enemy at the gates. As such, we must realize now that the true enemy of liberty comes from within–our own complacency.
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Supporting the Liberian Journalist

Liberian journalist Rodney Sieh was sent to jail last week in Monrovia.  He was essentially imprisoned because of the stories he published in his newspaper, FrontPage Africa.  A court order also shut down the newspaper.

Rodney’s case may be on the other side of the globe, far removed from our cozy world in Syracuse and at Syracuse University. But it should not be.

While reporters around the world are regularly harassed, threatened, beaten, imprisoned and killed, Rodney’s case has ties to us in Syracuse.  Continue reading

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Tully Center seeks release of imprisoned journalist

Read the letter by Director Roy Gutterman calling for the release of journalist Rodney Sieh in Monrovia:


Letter for release of Rodney Sieh

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Pranks and Errors

The airplane crash dominated the news for a whole weekend a few weeks ago until the next big news broke.  Just as the story of the dramatic Asiana Airlines crash began to fade from the public’s attention, a television report catapulted it back into the news cycle.

When a San Francisco-area television station reported, or misreported, the names of the four pilots, it was apparent the station was the subject of a hoax or a prank.  A reporter, live on the air, read four names that were clearly not real.  When pronounced phonetically, they sounded like English words, intended to mimic Asian-sounding names.

Confirmed by an intern at the National Transportation Safety Board, it turned out to be false information.  The station, KTVU-TV apologized, and will probably do a more thorough job reporting news and confirming details – perhaps even pronouncing foreign-sounding names before going on the air.  Continue reading

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Hustler v. Falwell: 25 Years of Protected Satire

The landmark Supreme Court case Hustler v. Falwell turned 25 this week. When a Supreme Court precedent reaches this age, its legacy is either firmly developed or lost to the history books. Hustler v. Falwell’s scope continues to grow and the precedent helps not only to clarify important First Amendment principles, but to protect them as well.

The case involved polar opposites in the American political spectrum of the 1970s and 80s: Jerry Falwell, a respected reverend intent on pushing public policy to the religious right, and Larry Flynt, an irreverent pornographer with a chip on his shoulder and a profitable publishing empire, eager to push the envelope on everything from sex to politics.

An ad parody in Hustler magazine in 1983 sparked the lawsuit.  Modeled on a Campari liqueur ad campaign about celebrities’ “first time,” the Hustler ad depicted Falwell talking about his “first time,” except his took place in a drunken, incestuous rendezvous with his mother in an outhouse in Virginia, minus a goat. That’s the clean version.

It was all a joke. The ad, hilarious to some and repulsive to some, was the centerpiece of the civil lawsuit and trial, testing limits of the First Amendment and American tort law. Continue reading

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