Beesquared

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  • On Facebook, distinguishing art from assault

    When you post something online, what’s the difference between making a threat and striking a pose?

    The Supreme Court on Monday will hear arguments in a case that raises that question. It involves a challenge by a Pennsylvania man to his conviction in 2011 for threatening his wife, his former co-workers and others in a series of posts to his Facebook page.

    After his wife left him and he lost his job at an amusement park, Anthony Elonis adopted the pseudonym “Tone Dougie” and published musings and lyrics that he says he penned not as a statement of his beliefs but solely as therapy for his pain.

    One post, which he published two days being fired, read:

    Y’all saying I had access to keys for the f#$king gates, that I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as made as me. You see, even without a paycheck I’m still the main attraction. Whoever thought the Halloween haunt could be so fucking scary?

    Another, which Elonis posted after his wife obtained a protection order, stated:

    Fold up your protection-from-abuse order and put it in your pocket. Is it thick enough to stop a bullet? Try to enforce an order that was improperly granted in the first place.

    That and other writings earned Elonis a sentence of 44 months in prison for violating a federal law that prohibits “transmitting in interstate commerce” a threat to injure another person or group of people.

    Threats of violence against a particular person or group of people – so-called true threats – are not protected by the First Amendment.

    At trial, Elonis asserted that his postings were similar to lyrics by rappers such as Eminem, who in songs has fantasized about killing his ex-wife. With that in mind, Elonis asked the judge to instruct jurors they could convict him only if they found that Elonis intended to communicate a threat.

    However, the court instructed the jury that a statement constitutes a true threat — and thus beyond the protection of the Constitution — when a “reasonable person” would interpret the statement as “a serious expression” of an intent to inflict injury.

    On appeal, Elonis contends that true threats require a subjective intent to threaten another person. That’s especially true online where messages may be seen by anyone, according to the American Civil Liberties Union and other groups. As the groups write in a friend-of-the-court brief:

    A message posted to a publicly available website or mailing list is potentially viewable by anyone with an Internet connection anywhere in the world. A speaker may post a statement online with the expectation that a relatively small number of people will see it, without anticipating that it could be read – and understood very differently – by a much broader audience.

    An objective test for online communication “would inevitably chill constitutionally protected speech, as speakers would bear the burden of accurately anticipating the potential reaction of unfamiliar listeners or readers,” the groups say.

    For its part, the Justice Department, which is pressing the court to uphold the conviction, argues that the requiring a subjective intent to threaten would undermine the law’s goal of protecting people from a fear of violence regardless whether the speaker intended the statement to be harmless.

  • News quiz, week ending Nov. 28

    1. This player won the World Chess Championship for the second year in a row.

    2. The board of this US university adopted a policy of zero tolerance for sexual assaults on campus.

    3. The Obama administration issued rules Wednesday to curb emissions of this greenhouse gas.

    4. A first folio of Shakespeare’s plays surfaced this week at a library in northern France. The discovery brought to how many the world’s known total of surviving first folios of the bard’s plays?

    5. This star cricket player from Australia died Thursday after being hit on the neck during a delivery.

    6. This US Supreme Court justice returned home from the hospital, where doctors inserted a stent in the justice’s right coronary artery.

    7. This president on Friday was the first non-African head of state to visit a country at the center of the Ebola outbreak. Who is the leader and what country did he visit?

    8. This piece of film memorabilia sold Monday for more than $3 million.

     

     

     

     

     

     

     

    Answers:

    1. Magnus Carlsen of Norway; 2. The University of Virginia; 3. Ozone; 4. 233; 5. Phillip Hughes; 6. Ruth Bader Ginsburg; 7. French President Francois Hollande, Guinea; 8. The Cowardly Lion costume from The Wizard of Oz

     

  • Week in the news, Nov. 21

    Here are eight questions that test how closely you’ve followed the news during the past week. My love for such quizzes was rekindled a few years ago by the Financial Times, which publishes a quiz at the end of each year. This week I decided to compile a quiz of my own.

    1. In his address to the nation on Thursday about immigration, which former president did President Obama quote?

    2. This surgeon died from Ebola on Monday at Nebraska Medical Center.

    3. On Tuesday, four people were killed in an attack on a synagogue in what city?

    4. The editors of the Oxford Dictionary selected this word as the word of the year.

    5. An executive with this startup publicly suggested investigating the private lives of journalists who criticize the company?

    6. Yahoo and Firefox agreed this week to do what?

    7. China inked its largest-ever foreign investment pact. What is it?

    8. Mike Nichols, who died this week at age 83, won the Academy Award for Best Director of this 1968 film.

    ###

    Answers

    1. George W. Bush

    2. Dr. Martin Salia

    3. Jerusalem

    4. Vape

    5. Uber

    6. Starting in December, the Firefox browser will use Yahoo as its default search engine, replacing Google.

    7. A $12 billion contract to build roughly 870 miles of railway along the coast of Nigeria

    8.  The Graduate

  • Re difference between Times story and Department of Defense transcript

    In my last post, I noted a difference between a comment by Pentagon spokesperson John Kirby that appeared in the Times last Thursday and a transcript of the briefing at which Kirby made the comment.

    The discrepancy appears to reflect a mistake by the reporter, she tells me in an email. According to the reporter, she was typing what Kirby said and “it’s definitely possible” that she entered it incorrectly.

    That happens of course. I appreciate her reply, which leaves me feeling better than if I were to learn that the Pentagon edits transcripts, other than to correct typographical errors, without telling the public.

    Of course, there may be plenty of other things the Pentagon does without telling the public, but that’s another story.

  • From the Department of Double Negatives?

    In a briefing Thursday following U.S.-led airstrikes against 12 of the Islamic State’s oil refineries in Syria, Rear Adm. John Kirby, the Pentagon spokesperson, acknowledged limits on the effectiveness of the bombardment without plans to follow-up with troops.

    As the Times reported:

    “We get caught up in the immediacy of these airstrikes,” Admiral Kirby said, “but this is going to take time, and nobody here in this building is not unaware of that.”

    Of course, the comment caught my eye. I had to read the sentence several times to make sense of it. Kirby is saying, it seems, that the Pentagon thinks the aerial campaign in Syria will take awhile.

    However, that spurred me to want to read Kirby’s comment in context – to know what he had said before and after the those sentences. Here’s what Kirby said, according to a transcript the Defense Department has posted online:

     “We get caught up in the immediacy of these airstrikes. And it’s dramatic, and that footage is pretty cool. But this is going to take – this is going to take time. This is – this is not – this is not a short-term effort. And nobody here in the building is taking anything but a sober, clear-eyed view of the challenge in front of us.

    So what did Kirby say? I will ask the Pentagon and the Times and let you know what I learn.

    The briefing contained some other comments that, while less strained than Kirby’s comment above, are entertaining nonetheless.

    For example, the current campaign in Iraq and Syria is costing taxpayers between $7 million and $10 million a day, according to Kirby, who added:

    But, again, I want to remind you, that is an estimate right now. I know we owe you a better answer, and we’re continuing to work on that, and I wouldn’t be surprised if the answer that we come back after we do the pencil work is different than that.

    Pencil work? That makes me wonder whether the Pentagon plans to sketch a picture of a spreadsheet.

    Later a reporter asked Kirby about a separate round of airstrikes by the U.S. against leaders of the Khorasan group in and around the Syrian city of Aleppo. According to the Pentagon, the group, which is reported to be an offshoot of al-Qaida, was in the advanced stages of an attack on a target in either the U.S. or Europe.

    Specifically, the reporter wanted to know when the Pentagon thought the attack might happen. According to Kirby:

    Far better to be [to] the left of a boom than to the right of it. And that’s what we’re trying to do, is get to the left of any boom to prevent the planning from going any further, and certainly to prevent them getting into an execution phase, which we don’t believe they were in yet, and that’s where you want to be.

    Apparently when trying to prevent terror attacks, as when driving in some countries, it’s best to stay on the left.

  • Nashville Gives Green Light to Uber, Lyft and Other Ride-Sharing Services

    Ride-sharing services may be facing legal risks in some cities but the taxi alternatives have permission to pick up passengers at the airport in Music City.

    Nashville has become the first U.S. airport to authorize pick-ups by Uber, Lyft and other so-called transportation network companies provided the companies obtain a permit, pay a fee and identify themselves clearly.

    Drivers who satisfy the guidelines will be able to retrieve passengers in areas designated for such pickups.

    “This is a major milestone to embrace ever-evolving technology and accommodate new app-based transportation service operators,” Rob Wigington, chief executive of the Metropolitan Nashville Airport Authority, said in a press release. “We are continuously listening to the needs of our passengers, so that we can better provide and enhance the Nashville Airports Experience.”

    The authorization comes as ride-sharing services face questions from public officials in California and elsewhere about the services’ adherence to consumer-protection laws. On Thursday, the Wall Street Journal reported that district attorneys in San Francisco and LA are questioning whether the companies mislead customers in connection with how carefully the companies review the backgrounds of drivers.

    Regulators in California, which is home to Uber, Lyft and Sidecar, also are asking the companies to discontinue their practice of allowing customers to share rides. California law reportedly bars transportation services from charging more than one person for the same ride.

    Ride-sharing services tap smartphones and GPS to connect drivers and passengers. Drivers who hold licenses and satisfy certain criteria can use the services to earn money with their cars.

    According to the Tennessean, officials in Nashville held discussions with Lyft and Uber to lay out a system that would respond to demand for the services while addressing taxi operators’ concerns that their companies are being treated unfairly. As part of the plan, the companies will pay $3.50 per trip to pick up passengers. Taxis pay $1.50.

    Uber is available in about 112 cities throughout the U.S. and Canada. Lyft serves about 63 cities in the U.S., while Sidecar serves 10.

    The companies now compete with taxis in many cities. In August, New York City council member Ben Kallos proposed legislation that would direct the city’s Taxi and Limousine Commission to create an app that would allow passengers to hail nearby drivers without having to wave down a taxi.

    Kallos said the proliferation of ride-sharing services may mean the apps need an app.

    “I think my nightmare would be hopping into a yellow cab in the future where they’ve got a phone for Uber a phone for Lyft a phone for Hailo…and they’ve literally got a dashboard covered in phones because they want to make sure they’re signed up for every single e-hail app,” Kallos told Mashable. “My preference would people to have one phone, one interface.”

  • M.T.A. rejects transit ad, group says it will sue

    Plans by a group that is planning to sue New York’s Metropolitan Transportation Authority after the agency rejected a proposed advertisement that refers to Muslims killing Jews highlights how cities can differentiate between categories of speech in accepting advertising on city-owned buses.

    The M.T.A. said in a statement released Friday that it had rejected a request by American Freedom Defense Initiative, a pro-Israel group, to run advertisements that feature the quotation, “Killing Jews is Worship that draws us close to Allah,” credited to “Hamas MTV.” The ad reportedly parodies ads sponsored by the Council on American-Islamic Relations that presented jihad as an idea of individual struggle rather than incitement to terrorism.

    The ads ran on buses in cities other than New York, according to the M.T.A.

    Under the First Amendment, a city’s allowing advertising on public buses does not make that property a public forum. Rather, a bus is a commercial forum, which means that a city can limit advertising so long as the city’s review of proposed ads is viewpoint neutral and substantially related to an important government interest.

    In its statement, the agency defended its policy as viewpoint neutral. “The M.T.A. does not decide whether to allow or not allow a proposed advertisement based on the viewpoint that it expresses or because that viewpoint might be controversial,” the agency said.

    The M.T.A. said that its security chief “concluded the proposed advertisement would lead reasonable observers to interpret it as urging direct, violent attacks on Jews, given turmoil in Gaza, Syria and Iraq and New York City’s heightened security concerns.”

  • Apple CEO Tim Cook talks with Charlie Rose – Part I

    https://www.youtube.com/watch?v=C-guVDR-XjQ

    “The hardest decisions we make are the things not to work on,” says Apple CEO Tim Cook.

     

  • Laws governing home tests for HIV can bolster prevention efforts in sub-Saharan Africa

    Laws that encourage people to test themselves for HIV can bolster efforts to eliminate AIDS-related deaths in sub-Saharan Africa.

    That’s the conclusion of a report published Wednesday by the Thomson Reuters Foundation and the South African AIDS Trust, a nongovernmental organization that coordinates efforts to counter HIV and AIDS in South Africa, Tanzania, Malawi, Mozambique, Zambia, Zimbabwe and Botswana.

    The report examines laws relating to home or self-testing in the seven countries where the South African AIDS Trust operates as well as in the USA, United Kingdom and France. Though about 24.7 million people live with HIV in sub-Saharan Africa, only about half know whether they have contracted the virus, according to the United Nations.

    Michael Sidibe (l), executive director of UNAIDS, meets on January 18, 2013 with President Jacob Zuma of South Africa. (Photo courtesy of UNAIDS)
    Michael Sidibe (l), executive director of UNAIDS, meets on January 18, 2013 with President Jacob Zuma of South Africa. (Photo courtesy of UNAIDS)

    The compendium, which the law firm Arnold & Porter produced pro bono in tandem with law firms in each of the countries covered, examines whether self-testing is legal, the regulations that govern distribution of devices that make such tests possible, and protections for privacy.

    “One of the key critical success factors in fulfilling the UNAIDS and global goal of zero new infections, zero deaths and zero discrimination is people knowing their own HIVsero-status and having the ability to act on the knowledge,” writes Jonathan Gunthorp, the South African AIDS Trust’s executive director, in a preface to the report.

    Self-testing for HIV creates opportunities for people to access HIV treatment and prevention services. The opportunity is especially great in sub-Saharan Africa, where fewer people know their HIV status compared with people elsewhere in the world. More than 1.1 people in the U.S. live with HIV infection but about 84% of them know they have the virus, according to the Centers for Disease Control and Prevention.

    All of the countries surveyed by the South African AIDS Trust provide citizens who have HIV with antiretroviral drugs that suppress the HIV virus and halt progression of the disease.

    Among countries surveyed, the U.S. is the only one that has a home HIV test in the market. The Food and Drug Administration approved the kit, which is manufactured by OraSure Technologies, in 2012. Though the U.K. also has endorsed self-testing for HIV a test that satisfies the European Union’s standards for medical devices has yet to appear on shelves.

    According to the report, South Africa, Malawi, Mozambique, Zimbabwe and Zambia all would permit device makers to market home tests, although South Africa currently prohibits pharmacies from selling them. (Presumably the test could be sold over-the-counter.) By contrast, Botswana and Tanzania require that HIV tests be supervised by a trained professional.

    Protections for privacy vary by jurisdiction as well, the report finds. Though France and Mozambique shield test results completely, most countries permit disclosure of test results pursuant to a court order or to guardians or partners, as well as in situations where a person is charged with a sexual offense or a disclosure is necessary for purposes of medical treatment.

    Constitutional privacy protections exist in South Africa, Malawi, Mozambique, Zimbabwe, while Mozambique, Botswana and Tanzania all have laws that protect HIV tests results specifically. The U.K. and France adhere to privacy protections enshrined in the European Convention of Human Rights. In America, rules governing the confidentiality of HIV tests vary by state.

    Depending on the jurisdiction, people who test positively for HIV may have a legal duty to disclose such information to sexual partners and insurers. Though none of the countries requires an employee to disclose his or her HIV status to an employer generally, the U.S. and U.K. require disclosure instances in which an employee’s HIV status ties directly to the job.

    All of the countries surveyed offer counseling in connection with testing for HIV. For example, Tanzania requires counseling before and after testing for anyone who receives a test in a state-sponsored testing center. In France, counselors must discuss the limits in reliability of so-called rapid tests. Counseling that follows tests tends to give guidance on such topics as notifying partners, connecting with care and maintaining a healthy lifestyle, depending on the test result.

    “HIV self-testing is not a magic bullet,” adds Gunthorp. “In combination with other innovative thinking, however, it may hold the key to increasing reach of testing, opening new options for hard to reach communities, making life easier for semi-discordant couples, and supporting both prevention and treatment.”

    The report also examines laws that govern the liability of manufacturers for harm to consumers from devices themselves or from failure of a test to diagnose someone correctly.

  • Student-athlete benched after taking to Twitter?

    On Saturday I heard a report on WFAN, a sports-talk station here in New York City, that a student at a public high school somewhere in the land was suspended recently after tweeting about his lack of playing time on the boys’ basketball team.

    Or was he benched? Did I even hear the report? I haven’t been able to find the story.

    Of course, educators want to teach kids how to voice concerns in a constructive way. But suspending a student for carping about playing time would be outrageous.

    Still, the report, if true, raises the issue of student liberties in an age of social media. Suppose a student were to sue his school for suspending him after taking to Twitter to complain about playing time. Might he have a case?

    The answer, I think, would be yes.

    In 1969, the Supreme Court held that students have a First Amendment right to engage in political protest. The case, Tinker v. Des Moines Independent Community School District, barred a school from punishing students who showed up at school in black armbands to protest the Vietnam War.

    However, for other types of speech, the Supreme Court has tended to balance the civil liberties of students and teachers with the need for school officials to lay down rules of conduct. For example, in 1988, the Supreme Court held that the principal of a Missouri high school could prevent the publication in a newspaper written and edited by a journalism class of articles about teen pregnancy and the effects of divorce on children in a school.

    Writing for the majority, Justice White distinguished between the silencing of student speech in a public forum and regulation of student speech that ties to the curriculum:

    “The latter question concerns educators’ authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

    Educators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach, that readers or listeners are not exposed to material that may be inappropriate for their level of maturity, and that the views of the individual speaker are not erroneously attributed to the school.”

    That means school officials generally can censor speech in academic programs so long as the regulation does not favor any particular point of view and that the officials show a reasonable educational justification.

    In April, a high school in Lakeland, Florida denied a request by an editor of the student magazine – who herself had endured chemotherapy – to write an article about a proposed constitutional amendment that would permit the use of medical marijuana.

    “The fact that some members of the audience might disapprove of, or take offense to, a particular story is not an educationally reasonable basis for censorship,” Frank Lomonte, executive director of the Student Press Law Center, told the Lakeland Ledger. “Students can, and occasionally do, take their schools to court under the First Amendment and win if they are censored, and a situation like this one could certainly be a candidate.”

    The courts have allowed a school to remove an editor who disregarded the school’s policy prohibiting all discussion of drugs in the student newspaper, and to suspend a student who make a sexually explicit speech at a school assembly after being advised by teachers that the remarks would be inappropriate.

    That brings me back to the news report about the hoopster. Athletic programs tie to a school’s academic mission, but no one who reads a tweet from a student’s account would reasonably think the message carries the imprimatur of the school.

    In that event, the action in the hoopster’s case could shift from the basketball court to a federal court.