Category Archives: First Amendment

Celebrities Voice Their Support for Hawaii Privacy Bill

~by Sonya Gillen (Student Blawg)

They say justice is blind: but ideally she is not deaf.  At least that is what Steven Tyler is hoping.  The lead singer of Aerosmith, along with fellow rocker Mick Fleetwood of Fleetwood Mac, testified on February 8, 2013, before a Hawaii Senate hearing in support of Hawaii S.B. 465, otherwise known as The Steven Tyler Act.

The bill, written by Tyler’s entertainment attorney, Dina LaPlot, and introduced by Democratic Hawaiian State Senator Kalani English, provides for a civil cause of action for invasion of privacy in addition to the current physical invasion of privacy in the State of Hawaii.  The Tyler Act was recently amended by the Hawaii Senate Judiciary and Labor Committee to strongly resemble the California Anti-Paparazzi Law (California Civil Code 1708.8).  California is the first, and only state to pass anti-paparazzi legislation. The California legislation was signed into law under then Governor and former celebrity Arnold Schwarzenegger and enacted on January 1, 1999.

Proponents for the Hawaii Privacy Bill say that it will help protect vacationing celebrities from overzealous paparazzi and therefore will encourage celebrities to vacation in Hawaii.  If enacted, the new law will make a person liable for civil action resulting in general, special and punitive damages equal to three times the amount of general and special damages combined if a person engages in constructive invasion of privacy.  Under the act, “A person is liable for a civil action of constructive invasion of privacy if the person captures or intends to capture, in a manner that is offensive to a reasonable person, through any means a visual image, sound recording, or other physical impression of another person while that person is engaging in a personal or familial activity with a reasonable expectation of privacy.”

Fellow celebrities, such as Neil Diamond, Avril Lavigne, Brittney Spears, and Tommy Lee among others, showed their support for the bill by sending individual written statements, all with the same content, to the Hawaii State Senate.  The group wrote, “Enacting SB465 would provide me and other public figures with a peace of mind that is nearly impossible to find in Hawaii because of the rampant paparazzi”.

The Hawaiian Attorney General, the ACLU of Hawaii, the Motion Picture Association of America and some local citizens oppose the legislation, saying the bill violates the First Amendment of the United States Constitution and Article 1, Section 4 of the Hawaii Constitution; is overbroad and unnecessary; and will have a chilling effect on legitimate press coverage.  Laurie Temple of the Hawaii chapter of the ACLU wrote, “Current state laws regarding trespass, invasion of privacy, and harassment, e.g. can more than handle the privacy, free speech and safety concerns of Hawaii’s residents and visitors.” In their memo to address First Amendment concerns regarding the publication of the illegally obtained pictures, the Motion Picture Association citied New York Times Co. v. United States, 403 U.S. 713 (1971) which established the right of a newspaper to publish knowingly illegally stolen materials and Vartnicki et al. v. Vopper, et al., 532 U.S. 514, at 534 (2001) which held that illegally intercepted communications were protected by the First Amendment.

Tyler’s attorney, Dina LaPolt, defended the legislation and its First Amendment constitutionality, citing Time, Inc v. Hill (1967) saying, “the Supreme Court of the United States held that the action of intrusion (i.e. paparazzi constructively invading a public figure’s privacy) does not itself raise First Amendment concerns because it does not involve speech or other expression.”

The legislation easily passed the Senate, but is now encountering problems in the House of Representatives, who are essentially telling Tyler to “Dream On”.  (Sorry, you knew there had to be at least one silly Aerosmith pun in a blog that focuses on Steven Tyler)  Rep. Angus McKelvey who is the head of the Hawaiian Consumer Protection Committee is quoted as telling a representative from the Associated Press, “There is zero support for that legislation in the House of Representatives”.  The bill seems to be stalling in committee.  Commenting on the likelihood of the House committee leaders putting in a joint request to the Speaker of the House to move the bill forward, McKelvey commented, “There is a better chance of people flapping their arms and flying from Lanai to Maui.”  (Well, there probably will be no backstage passes in his future)

Although it is currently stalled, the legislation may not be officially dead.   It may be the “Same Old Song and Dance”(Ugh, sorry again) for the legislation in the future. When the Senate Judiciary and Labor Committee revised the original version of the bill, they changed the effective date from July 1, 2013 to July 1, 2050 to allow time for further discussion on the bill.  “I was very surprised we got out of the Senate on the first run,” LaPolt said. “If it had passed through the House, I would have been shocked.”  For Tyler and LaPolt, at least the publicity generated by the legislation has no doubt been a “Sweet Emotion”. (not sorry on that one!)

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Because sometimes the finger just isn’t enough…

I have to appreciate the New York Courts and the recent decisions that have come through the gates.  Recently, I wrote about how giving a cop the finger didn’t amount to reasonable suspicion to warrant an investigation by that officer.  (See Hello Officer, Read my Middle Finger!).  Yesterday, the New York Court of Appeals declared swearing at a police officer equally didn’t amount to the commission of a crime or probable cause.

Here are the facts:

… Officer Johnson and another police officer were parked in separate marked police vehicles on a residential street in Rochester. Johnson noticed that a woman (later determined to be defendant’s girlfriend) was standing in front of a house across the street from where he was parked and was videotaping his activities. Curious about the woman’s identity, Johnson ran the license plate of a Cadillac that was parked in her driveway and discovered that the plate number had been issued for a Toyota — not a Cadillac.

Johnson briefly stepped out of his car to ask who owned the automobile and the woman responded that it was her grandfather’s vehicle. The officer then reentered his patrol car. A few minutes later, defendant Trevis Baker approached the open passenger-side window of Johnson’s car, leaned his head in and inquired why Johnson had checked the license plate. Johnson said something to the effect that he could run a plate if he wanted to.

Defendant started backing away from the police vehicle towards the middle of the street, swearing at the officer. When Officer Johnson asked “what did you say,” defendant repeated the profanity and accused Johnson of harassing him. After radioing his partner that he intended to make an arrest, Johnson exited his vehicle and, with the assistance of his partner, placed defendant under arrest. These activities apparently attracted the attention of various civilian bystanders and, by the time of the arrest, about ten people had congregated on the sidewalk behind defendant and his girlfriend. In a search incident to arrest, the police discovered that defendant was in possession of 25 bags of crack cocaine.

 Based on these facts, Baker was arrested and charged with possession of a controlled substance and disorderly conduct. Baker attorney argued at a suppression hearing, that “the First Amendment protects the right of a citizen to express disagreement with police actions, which was precisely all that defendant was doing in this case.”

The trial court denied Barker’s motion to suppress evidence and to dismiss the case.  But the Court of Appeals had a different view, deciding that the proof was insufficient to support a finding of probable cause to arrest because there was no “public harm”  in Barker’s statements.

 The court rationalized because the swearing at the police officer occurred

 During daylight hours on a public street, defendant made two abusive statements claiming harassment to a police officer who was seated in a patrol car. It is clear from the videotape that the public outburst was extremely brief, lasting about 15 seconds. The statements were not accompanied by menacing conduct — defendant was stepping away from the vehicle when he made them.

 And my favorite part of the opinion,

there is no basis to infer that Officer Johnson felt threatened by the statements. If he had, he would likely have remained in his vehicle, rolled up the windows, radioed his partner to do the same and requested backup.

 If you’re scared, you stay in your car. You don’t do what Officer Johnson did…

Instead, Johnson immediately exited his vehicle. The fact that another police officer was present — also safely ensconced inside his own patrol car and fully able to provide assistance — diluted the risk that others in the vicinity would join forces with defendant and gang up on Johnson.

 Brilliant!

And the last important aspect of the case, the exchange occurred between a single civilian and a police officer. Baker’s statements were directed exclusively at a police officer who, according to the courts, is “a party trained to diffuse situations involving angry or emotionally distraught persons,” which further undermined any threat of public harm because the police officer was in a position of safety and could have closed his windows and ignored Baker.

Here’s the Opinion.


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.


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.


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


Social Media Decisions

I ran across these two court decisions recently.  Two very different interpretations of First Amendment Protection.

PFLAG v. Camdenton School Dist. III, out of the Western District of Missouri,the Court granted an injunction against the Camdenton school district when it prohibited students’ access to Lesbian and Gay friendly websites but allowed access to Anti-lesbian and gay websites.

The court ruled that the school district violated students’ First Amendment rights by intentionally blocking websites supportive of gays and lesbians using filtering software.PFLAG claimed the School District administrators intentionally blocked 41 websites based solely on their LGBT-supportive content, but allowed anti-LGBT websites through the filter. The Court ordered Camdenton to “discontinue its Internet-filtering system as currently configured, and any new system must not discriminate against websites expressing a positive viewpoint toward LGBT individuals.”

In another case,John Doe v. Bobby Jindal, out of the Middle District of Louisiana, the Court upheld a criminal defendant’s First Amendment rights when the government attempted to impose a state law prohibition against his use if Facebook while on sex offender probation. The Court ruled that the law imposed “a sweeping ban on many commonly read news and information websites,” as well as social networking sites. The definition of “chat room” in the law is so broad, for instance, the court’s own website could fall under the ban.