Today (October 6), in one of the most closely watched First Amendment showdowns in recent memory, the United States Supreme Court will finally hear arguments on the case of Albert Snyder vs. the Westboro Baptist Church.  

The WBC is, of course, the Kansas church presided over by the notorious Fred Phelps, whose God Hates Fags crusade has garnered scads of international publicity and outcry. There doesn’t appear to be a whole lot of logic—Biblical or otherwise—behind the views or actions of Phelps and his cronies, but one of their most peculiar and inexplicable publicity stunts has been showing up at the funerals of slain soldiers and brandishing signs with such slogans as “Semper Fi Fags.” 

In 2007, Albert Snyder, the father of one such soldier, successfully sued Phelps and his church for infliction of emotional duress. The Maryland jury award of $11 million was eventually carved in half by a judge, and the verdict was later overturned on appeal. 

Scott Swenson at The Huffington Post has a nice piece that provides a bit of historical perspective on Snyder v. Phelps and its odyssey through the court system and potential ramifications. 

As odious as you might find Phelps and his brethren, the case presents a thorny constitutional challenge. What do you think? Is the First Amendment so sacrosanct and pliable that even the Westboro Baptist Church should be able to use it for shelter? 

 Source: The Huffington Post 

Image by celebdu, licensed under Creative Commons. 

Many documentary filmmakers are at their core journalists, and some of the feistier ones ferret out information and images that bring to light villainy, greed, cruelty, and corruption. So it’s disconcerting to see a documentary director being threatened with jail time if he doesn’t turn over his outtakes.

That’s what’s happening to Joe Berlinger, director of the film Crude, which tells the story of a lawsuit brought by indigenous Amazon people against the oil giant Chevron for environmental damages to the rainforest. (See a review of Crude in Utne Reader.) Chevron has subpoenaed Berlinger and the nearly 600 hours of raw footage shot for the film.

Berlinger’s attorneys have argued that the footage is shielded by the journalist privilege, which protects reporters from being forced to reveal confidential sources or information, and that forcing the filmmaker to hand it over is a violation of his First Amendment rights. The filmmaker has been granted a temporary stay until June 8, when an appeals court will hear his motion for a stay on the order to turn over his film.

Berlinger has attracted some influential allies to his cause. First, the industry group the International Documentary Association and a group of filmmakers that includes 20 Academy Award winners and many more nominees issued an open letter supporting Berlinger, reported the New York Times on its Arts Beat blog. Then, this week, a group of 13 heavy-hitting media companies—including NBC Universal, HBO, and the New York Times Company—filed a friend-of-the-court brief in the case.

He’s also been defended by that feistiest of fellow whistle-blowers, Michael Moore, who told the New York Times that the decision could have “a chilling effect”:

“If something like this is upheld, the next whistle-blower at the next corporation is going to think twice about showing me some documents if that information has to be turned over to the corporation that they’re working for,” Mr. Moore said. “Obviously the ramifications of this go far beyond documentary films, if corporations are allowed to pry into a reporter’s notebook or into a television station’s newsroom.”

The head of the company distributing Crude issued a similar warning a statement. Seymour Wishman, president of First Run Features, cited “the high risk that other journalists in the future will be deterred from embarking on similar hard hitting investigations. In order to be informed, persuaded or disabused of misperceptions, the American public desperately needs the benefit of uninhibited documentaries like Crude, and journalists like Joe Berlinger.”

If you agree—that is, if you’ve ever seen a documentary that changed your mind about an issue—consider donating to the legal fund for Berlinger’s case at Kickstarter.

Sources: Arts Beat, New York Times, First Run Features, Kickstarter

Image by Ali Pflaum, courtesy of Radical Media.

A new form of censorship has quietly crept over the internet. Though governments continue to pursue old-school forms of prior restraint, technology is quickly making the blackened-ink style of censorship obsolete. The new ways to restrict free speech don’t require killing information entirely, governments and private companies simply inconvenience and frustrate people away from information they want to keep under wraps.

The internet was meant to foster communication, and it still creates opportunities for vibrant free speech. At the same time, computer science professor Harry Lewis writes for the Chronicle of Higher Education that the internet’s “rapid and ubiquitous adoption has created a flexible and effective mechanism for thought control.” As people increasingly rely on the internet for their news and information, banishing something from the web means effectively striking it from the public consciousness.

Governments have already begun to influence internet usage inside of their countries to enforce social and political norms. Lewis writes that on the internet, there is already “no sex in Saudi Arabia, no Holocaust denials in Australia, no shocking images of war dead in Germany, no insults to Mustafa Kemal Atatürk in Turkey.”

China sits at the vanguard of this new form of censorship. The country’s famed “Great Firewall” is one of the most advanced information blocking tools in the world. Every savvy netizen, however, knows of proxy servers, encryption services, and other ways to skirt the firewall and find information that China doesn’t want its citizens to see. “The Great Firewall of China isn't impenetrable, “Jacqui Cheng reported for Ars Technica in 2007, “it just takes a little elbow grease and high Internet traffic to squeeze a few banned terms through.” That requirement of elbow grease constitutes the cornerstone of the new censorship.

Governments don’t have to censor all the information that comes into their country anymore, either. Censorship increasingly relies on one information bottleneck: Google. Jeffrey Rosen wrote for the New York Times that Google and its subsidiaries, including YouTube, “arguably have more influence over the contours of online expression than anyone else on the planet.” Governments and businesses now realize that banning information from Google means effectively censoring it from a massive audience of people, and they are developing strategies accordingly.

“To love Google, you have to be a little bit of a monarchist, you have to have faith in the way people traditionally felt about the king,” technology expert Tim Wu told the New York Times. After the Turkish government successfully lobbied YouTube to take down videos inside of Turkey that were deemed offensive, the Government tried to ban the videos worldwide to protect Turks living outside the country. These videos would all be available on websites other than YouTube, but with one website eclipsing all others for web videos, really, who would know?

In the United States, copyright laws are often invoked to frighten people into censorship. The Electronic Frontier Foundation reported that the McCain-Palin campaign, an unlikely advocate for internet freedom, claimed that YouTube “silenced political speech” after it took down campaign ads due to copyright violation claims.

YouTube general council Zahavah Levine responded saying, “YouTube does not possess the requisite information about the content in user-uploaded videos to make a determination as to whether a particular takedown notice includes a valid claim of infringement.” Because of that lack of information, the site often takes down videos first and examines the validity of copyright claims later. By the time videos are restored, especially in a fast-moving political campaign setting, the damage has already been done.

The website Chilling Effects documents many of these cease-and-desist letters in an attempt to combat some of the unnecessary censorship. The site was created in partnership with the Electronic Frontier Foundation and a number of universities to help people understand their First Amendment rights and protect legal online speech. But with governments and businesses exchanging and learning from each other’s censorship tactics, the strategies to restrict free speech will likely grow more sophisticated.

The Virginia Supreme Court has overturned its conviction of spammer Jeremy Jaynes on the grounds that the state’s anti-spam law could potentially infringe on free speech. In 2003, Jaynes was convicted and sentenced to nine years in prison for violation of the Virginia Computer Crimes Act. After a February 2008 appeal, the court voted 4-3 to uphold the verdict, but later decided to revisit the defendant’s argument that the law violated the First Amendment. This month they concluded that the law is "unconstitutionally overbroad on its face because it prohibits the anonymous transmission of all unsolicited bulk e-mail including those containing political, religious or other speech protected by the First Amendment to the United States Constitution.” It’s important to note, however, that this won't lead to a male-enhancement products free-for-all: The federal CAN-SPAM Act is still in place.

(Thanks, Maud Newton.)

Vice presidential candidate Sarah Palin’s now-public emails could fundamentally change internet and free speech laws in the United States. Last week, Palin’s Yahoo email account was broken into and many of the emails were posted on Wikileaks, a website designed to publicize leaked government documents, the media gossip blog Gawker, and other websites. The McCain campaign has called the incident a “shocking invasion of the governor's privacy and a violation of the law.” Writing for the conservative blog Powerline, John Hinderacher cited the crime as, “Just another reminder that there is no sense of decency on the Left.” The issue has been widely covered in the mainstream media, but the real implications of the event may not be felt for years to come.

“I predict that some day we will look back on this breach as a watershed event in the history of statutory Internet privacy,” Paul Ohm writes for the law blog Concurring Opinions. The leak of Palin’s emails could motivate Congress to pass strict privacy laws, but also to punish websites like Gawker and Wikileaks, possibly igniting, “a fierce First Amendment debate.”

Under current laws, Gawker and Wikileaks are likely protected from prosecution, but that hasn’t stopped readers from sending various threatening emails. One of the few inoffensive messages read, “Get a good lawyer, in fact get at least a dozen… you are going to need them when the Secret Service and the FBI come to visit. Jerks!” Orin Kerr, a professor at the George Washington University Law School, disagrees. Kerr writes for the Volokh Conspiracy: “While it's unseemly and perhaps rather nasty to post it, it's normally not a crime to post evidence that was obtained as a fruit of crime”

That didn’t prevent justice officials from trying to intimidate journalistic organizations. The Associated Press, one of the many organizations that has reported on the incident, reports that “Secret Service contacted the Associated Press on Wednesday and asked for copies of the leaked emails, which circulated widely on the Internet. The AP did not comply.” Kurt Opsahl writes on the Electronic Frontier Foundation blog Deeplinks that the Associated Press and Gawker are likely not in any legal trouble, for now: “While the individuals who broke into Gov. Palin's personal email account have likely broken the law, news media… are entitled under the First Amendment to republish any newsworthy email messages.”

The incident has dredged up a fair amount of animosity toward the press, in spite of the legality of posting the emails. Andrew Grossman writes for the conservative Heritage Foundation, “just because it’s legal doesn’t mean it’s right.” On his show for Fox News, Bill O’Reilly said, “I’d like to see the website [Gawker] prosecuted.”

“Congress often enacts privacy protecting legislation only in the wake of salient, sensationalized, harmful privacy breaches.” Ohm write for Concurring Opinions. This could be one such incident. Should Congress decide to attack websites that post leaked documents, it runs the risk of infringing on the right to free speech and fundamentally changing the internet for the worse. The chances of this happening are even higher should the McCain-Palin campaign win the 2008 election. If that is the case, the true victims of this crime are still unknown.

 Image by  Matthew Reichbach , licensed under Creative Commons.

A 12-year-old wearing an anti-abortion T-shirt is suing his school in Hutchinson, Minnesota, after being told by the administration to remove it, reports Minnesota Monitor. This selective enforcement of free speech is troubling—as much as I might disagree with his politics and find his actions offensive, I do believe this student should be protected by the First Amendment. Eventually, a student might be punished for wearing a NARAL or Planned Parenthood T-shirt, and I’d like him or her to be able to cite precedent.

It reminds me of the minor controversy that arose lo these many years ago at my own high school when students were banned from wearing their horribly tacky Co-Ed Naked and Big Johnson T-shirts. Obnoxious and vulgar? Definitely. Protected by the First Amendment? Absolutely. Unfortunately, public schools are often the places where free speech is prohibited most frequently and arbitrarily, in the interest of a “disruption-free” classroom.

Though it’s a stand we may take reluctantly, our commitment to free speech should supercede our own tastes and politics; limiting speech with which we disagree defeats the whole purpose of the First Amendment. Wendy Kaminer argues as much in last month’s Free Inquiry, lamenting the results of a recent Freedom Forum survey where 74 percent of respondents disapproved of public school students being allowed to wear T-shirts with offensive words or pictures, and reminding us that “the right to speak is nullified when made contingent on the willingness of people with opposing views to listen.”

A recent article in Reason about bans on certain anti-war T-shirts made me think back on one of the saddest events of the past year for me. A friend from high school was killed in Iraq in January, and his family threw a good-bye party at the local watering hole for his friends to get together, drink, and tell funny stories about a kid we’d never see again. If you’re lucky enough to have never been to one of these memorials, there are a few things you should know. First, the venues tend to have one of two things in common: a close proximity to God (churches, synagogues, etc.) or easy access to booze (typically a bar or a VFW with a bar). Second, they’re heartrending. Dead young people always are. But the context—a violent death in a faraway country—gives them an even sadder underpinning. Third, there are T-shirts for sale. Always T-shirts. The proceeds usually go to the soldier’s family or a charity—both deserving recipients. 

Sadly, this tradition of memorializing dead soldiers is in iffy legal standing in a handful of states. The legal battle began with a Flagstaff, Arizona, anti-war protester who was selling T-shirts that read “Bush Lied...They Died” superimposed over the names of U.S. soldiers killed in Iraq. An Oklahoma mother, whose son is one of the soldiers named on the shirt, raised objections. In response, Oklahoma legislators imposed a ban on merchandise containing soldiers’ names and images in April 2006. Louisiana, Texas, and Florida all followed suit. And in May 2007, Arizona legislators unanimously passed a bill (free registration required) that made the commercial use of soldiers’ names and images without the consent of their families a misdemeanor crime. But, as Reason notes, “Such bans are almost certainly unconstitutional, since the shirts, though exchanged for money, are clearly political speech.”

Though prohibitions on the state level have weathered considerable opposition—in September a federal judge in Arizona issued a preliminary injunction against the law—U.S. Representatives Dan Boren (R-OK) and Charles Boustany (R-LA) pushed for a national ban in the House version of the 2008 Defense Authorization bill. Amid objections from the American Civil Liberties Union (pdf) and other free-speech advocacy groups, the ban didn’t survive the House/Senate conference committee that hashed out a compromised bill. The issue is far from dead, however. The conference committee requested independent studies by the Secretary of Defense and the Congressional Research Service focusing on legal reviews of the proposal.

Such laws, either on a state or federal level, are not only an infringement on free speech; they paint the grieving families of fallen soldiers—or anybody else, for that matter—as un-American if they come out against the war. If proponents of these misguided laws can somehow reconcile their cliché-ridden idea of the “ultimate sacrifice”—which these families have certainly made—with unpatriotic behavior, I’d love to see it. Until then, legislators should keep their laws off our dead friends.

—Morgan Winters

It wasn’t in Russia. It wasn’t in China. No, it was right here in the good ol’ U.S. of A. where, a couple of weeks ago, two newspaper executives were thrown in jail by a local law enforcement official who didn’t like what their paper had been writing about him. The men have since been freed, the charges against them dropped, and the special prosecutor on the case dismissed, but the fact that the whole episode even occurred ought to worry anyone who values free speech and an independent press.

The media execs in question, Michael Lacey and Jim Larkin, run Village Voice Media, owner of the Phoenix New Times, an alternative newsweekly that apparently had gotten under the skin of Maricopa County Sheriff Joe Arpaio with coverage critical of Arpaio’s department. Lacey and Larkin chronicled the whole “donnybrook” in the newspaper a day before their arrests, but suffice to say that they and the sheriff didn’t take a likin’ to one another, and the sheriff done set his sights on them.

The arrestees quickly became causes celebre in the alt-press community, and their fellow newspapers at the Association of Alternative Newsweeklies gamely showed solidarity by doing exactly what seems to have pissed off Arpaio the most: Revealing his home address.

That might seem like a real finger-in-your-eye move, but read about the whole case before you conclude that it’s a jailable offense. The most salient facts: The New Times published the address more than three years ago; the address was already available online; and as an invasion of privacy it pales next to the prosecutor’s attempt to subpoena detailed information about every visitor to the New Times website since 2004. As Jack Shafer points out in Slate, that’s people like you and me. —Keith Goetzman