Monthly Archives: January 2013

Social media prohibition, unconstitutional

The 7th Circuit court of appeals yesterday declared an outright ban on social media usage by convicted sex offenders to be a violation of the First Amendment. At the crux of the arguments is the public’s right to be protected from convicted sex offenders and the offender’s right to send and receive information – a core, fundamental concept under the First Amendment. The 7th Circuit recognized this conflict, but ruled that an outright ban on such information, even to sex offenders, violates the First Amendment. The court stated,

The state initially asserts an interest in “protecting public safety, and specifically in protecting minors from harmful online communications.” Indiana is certainly justified in shielding its children from improper sexual communication. Doe agrees, but argues the state burdens substantially more speech than necessary to serve the intended interest. Indiana naturally counters that the law’s breadth is necessary to achieve its goal.

The Sate of Indiana agreed that the goal of its statute was to curtail communication between convicted sex offenders and minors. However, the Court did not believe the statute was tailored in a fashion to limit such conduct, but instead cast a broader net, restricting speech that did not meet the ends of the Indiana law.

Turning to the Indiana statute, the state agrees there is nothing dangerous about Doe’s use of social media as long as he does not improperly communicate with minors. Further, there is no disagreement that illicit communication comprises a minuscule subset of the universe of social network activity. As such, the Indiana law targets substantially more activity than the evil it seeks to redress. Even the district court agreed with this sentiment, stating the law “captures considerable conduct that has nothing to do” with minors. Indiana prevents Doe from using social networking sites for fear that he might, subsequent to logging on to the website or program, engage in activity that Indiana is entitled to prevent.

I have followed cases like this one for quite sometime. The general consensus among the appeals courts is any form of “blanket prohibition” on Internet, or social media usage, will be a violation of the First Amendment. This issue has not directly been decided by the US Supreme Court, but the consensus among the circuit courts of appeal, and many state supreme courts, indicates a blanket prohibition will likely be overturned.

Here’s the opinion.

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Go get your own (damn) camera!

I’m not sure why large media groups feel they can waltz up to a twitter feed and grab photographs that someone else has posted, and claim they have the right to unfettered use of that photo without the photographer’s permission. If the roles were reversed, and someone were to use a photograph posted on a news paper’s news feed or twitter feed, they would be banging down the doors for copyright infringement claim (absent any copyright defenses, mind you).

In this instance, when the 2010 devastating earthquake hit Haiti, the AFP news agency looked to Twitter and discovered a user’s “exclusive photos” of the disaster. AFP took those photos and shared them with photo service Getty. From there, the Washington Post then took the photos from Getty and published them on its website. Isn’t there a rule about double checking, or having two sources for the information you publish?

Well, it turned out, the “exclusive owner” of these “exclusive photos” didn’t have any right to them. Hence, Getty and the Post published the pics without permission and with an inappropriate attribution to the photographer.

Oops! Internship over.

Needless to say, the actual photographer sued for infringement. To which AFP, he Post and Getty argued, the posting of the image on Twitter gave a general license to anyone to use the image for their own needs. This is actually a very clever argument. On appeal, it could possibly hold up. Unlikely a though. The southern District of New York Federal District Court disagreed with the argument and found in favor of the photographer.

Read the opinion here


Adult Industry Challenges Los Angeles County Measure B

My good friends Paul Cambria of Lipsitz Green Scime Cambria, Louis Sirkin of Santen Hughes and Bob Corn-Revere of Davis Wright Tremaine filed an action today in California Federal court challenging Los Angeles County’s recent mandate requiring performers to wear condoms while shooting adult films in Los Angeles County, a.k.a. Measure B.

The industry argues tha numerous provisions of Measure B are excessively vague and burdensome, placing an intolerable restriction on freedom of expression. The lawsuit also challenges the county’s jurisdiction to regulate adult production on performer health and safety.

Last I checked, the government cannot regulate what consenting adults do in their bedrooms, or in front of a camera. I’m reminded of Justice Kennedy’s reaffirmation of the Constitution’s protection of privacy:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life….The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’

Read the Xbiz article here.


If it’s good for my dog, it must be good for my kid. Right?

Reuters is reporting that a public school district in Texas can require students to wear locator chips when they are on school property, a federal judge ruled on Tuesday. Yeah, that’s right. You read that correctly. The same technology I am using to track my dog, I can now legally track my kid in at least one school district in Texas.

According to the school district – the fourth largest in Texas with about 100,000 students – it is not attempting to track or regulate students’ activities, or spy on them, district spokesman Pascual Gonzalez said. Northside is using the technology to locate students who are in the school building but not in the classroom when the morning bell rings, he said.

Why is this important? Do we really care if Miss Congeniality and Captain Football are making out under the bleachers between 4th and 5th period? It seems Texas has lost track of its students, and luring them back to class with a Milk Bone dog biscuit isn’t going to be enough. I’m sure the school district has a legitimate rationale for this.

Apparently, “Texas law counts a student present for purposes of distributing state aid to education funds based on the number of pupils in the classroom at the start of the day. Northside said it was losing $1.7 million a year due to students loitering in the stairwells or chatting in the hallways,” according to the article. Is there really no other less intrusive solution for the school to get hall monitors out in the hall and document who is in the school at bell time?

Well, luckily “The software works only within the walls of the school building, cannot track the movements of students, and does not allow students to be monitored by third parties.” That’s reassuring.

I’m not sure if we should be looking to Orwell or Pavlov here to get control of a situation that warrants nothing more than a dinner bell or a grade grubber hall monitor to keep track of the students inside the doors when the bell rings.

Here’s the story


Hello Officer, read my middle finger!!

In a 14-page opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” Read this: giving a cop the finger!

This case all started when John Swartz  flipped off an officer who was using a radar device at an intersection in St. Johnsville, N.Y. Swartz was later charged with a violation of New York’s disorderly conduct statute. Swartz and his wife Judy Mayton-Swartz sued the two police officers who arrested him.

The officer’s record and explanation as to why he pulled over the couple on this case is classic! Richard Insogna, the officer who stopped Swartz and his wife claimed he pulled the couple over because he believed Swartz was “trying to get my attention for some reason.” The officer further claimed: “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and “I was concerned for the female driver, if there was a domestic dispute.”

Thankfully the appeals court didn’t buy that crap, ruling that the “nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.”

This opinion is awesome. In a wonderful analysis of the standard of “reasonable suspicion” the Court lamented

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.

Hey officer Krupke, Krup you!

indexHere’s the opinion.


Clash of the Titans (1st vs. 2nd Amendment)

In the wake of New York newspaper The Journal News’ publication of publicly available data—including personal information—on gun owners in Westchester and Rockland counties in New York, Maryland Republican Delegate Pat McDonough held a press conference on Dec. 28 and announced plans to introduce three gun-related bills in the Maryland state legislature. According to the delegate’s press release, the first of these, called the “Gun Owner Privacy Act,” is intended to “prohibit newspapers and other publications from printing personal or private information about firearm owners.”

According to an interview conducted with Blatimore’s City Paper, “The bill is going to prohibit publications from printing private information of gun owners,” he said. “This is really a response to the paper in New York which claimed what they were doing was for the public good, but what it really is is a massive editorial taking up two pages of the newspaper reflecting the position of the newspaper. It’s really dishonest to not say it is an editorial.”

When asked by the City Paper whether his proposal to limit the publication of such identifying information was an attempt to limit the First Amendment in order to protect the Second, McDonough responded “That’s a good way to put it.”

But this just begs the question, is it appropriate to limit the First Amendment freedoms of individuals to publish gun ownership information and for others who are interested to receive that information in order to protect the ownership of guns under the Second Amendment? Realistically, under the Freedom of Information Act, any individual could seek the information published by the Journal News. The information is not private. So is there really a protection guaranteed under the Second Amendment for those who want their gun ownership to remain a secret? Or, is it more important for the public to be told who are the gun owners particular neighborhood? Is there a right to publish that information? Or better yet, to receive it?

Read the article here: Baltimore City Paper