The Supreme Court on Monday narrowed the circumstances in which someone who posts threats on Facebook or social media can be criminally liable for their actions.
In an 8 to 1 ruling, the court overturned the conviction of Anthony Elonis, a Pennsylvania man who was found guilty in 2011 of threatening his estranged wife, former co-workers and others in series of posts on his Facebook page.
The musings, which contained violent language and images, earned Elonis, writing under the pseudonym “Tone Dougie,” a sentence of 44 months in prison for violating a federal law that bars “transmitting in interstate commerce” a threat to injure another person or group of people.
On appeal, Elonis contended that to be criminal—and otherwise beyond the protection of the First Amendment—the threats required a subjective intent that Elonis claimed he lacked. According to Elonis, the trial court erred when it instructed a jury that a statement constitutes a criminal threat when a “reasonable person” would interpret the statement as “a serious expression” of an intent to inflict injury.
The Court agreed, noting that to be criminal, conduct must derive from a defendant’s mental state; that negligence alone is insufficient to support liability. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state,” Chief Justice Roberts wrote for the majority. “That understanding ‘took deep and early root in American soil’ and Congress left it intact here… ‘wrongdoing must be conscious to be criminal.’” (citation omitted)
Though the court did not discuss the implications for free speech raised by the appeal, the American Civil Liberties Union and other groups had charged that the instruction insisted on by the trial court would discourage speech protected by the First Amendment.
For its part, the government contended that requiring a subjective intent as Elonis urged would undermine the goal of protecting people from fear of violence regardless whether the person who threatens them intends his words to be harmless.
The Court limited its opinion to Elonis’ intent. “Having liability turn on whether a ‘reasonable person’ regards the communication as a threat—regardless of what the defendant thinks—‘reduces culpability on the all-important element of the crime to negligence,” wrote Roberts. “We ‘have long been reluctant to infer that a negligence standard was intended in criminal statutes… Under these principles, ‘what [Elonis] thinks’ does matter.” (citations omitted)
An actress who lost a lawsuit to force Google’s YouTube to remove an anti-Muslim video from its site pursued the wrong claim against the wrong party.
That’s one conclusion from a decision by 9th Circuit U.S. Court of Appeals, which ruled on Monday that Cindy Lee Garcia cannot compel YouTube to take down “Innocence of Muslims” because she cannot copyright her five-minute performance in the video, which disrespects the Prophet Muhammad and sparked death threats against Garcia.
“In this case, a heartfelt plea for personal protection is juxtaposed with the limits of copyright law and fundamental principles of free speech,” U.S. Circuit Judge Margaret McKeown wrote for a majority of the court. “The appeal teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.”
The decision represents a win for free speech. Though the First Amendment does not shield copyright infringement, Garcia could not claim a copyright in her performance. According to the court, granting a copyright to an actor based solely on her performance—a work for hire—would put distributors such as YouTube in the position of having to obtain licenses from everyone who appears in a film, as opposed to obtaining the permission of the work’s author, in this case Youssef.
The alternative would render distribution of movies unworkable, the court found. As McKeown noted:
“Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands. That leaves Garcia with a legitimate and serious beef, though not one that can be vindicated under the rubric of copyright.”
What if Garcia had grounded her complaint in the threats to her reputation and privacy that followed Youssef’s using Garcia’s performance in a way that was different than she had authorized? Though she appeared knowingly in “Desert Warrior,” Youssef allegedly overdubbed that performance to make her appear to ask if Muhammad were a “child molester” as part of a film that he disseminated widely.
Under California law, a person’s right to privacy may be violated in varied ways, including by acts that cast someone in a false light. “Innocence of Muslims” portrayed Garcia in a light that was highly offensive to millions of people worldwide, judging by the outrage the film has provoked.
False light can be difficult to prove in California without a showing of financial damages. Moreover, even were Garcia able to prevail against Youssef for portraying her in a false light, it’s unlikely that would authorize her to order YouTube to take down the video because, as the trial court noted, the harm from the trailer’s appearance on the Internet already has occurred.
Garcia sued both Google and Youssef initially in state court, where she alleged a series of wrongs, including violation of her privacy and intentional infliction of emotional distress, that she later dropped against Google when she sued the company in federal court for copyright violation.
Note that Garcia could not sue Google for Youssef’s alleged defamation. Federal law shields online services from liability for information they host that’s created by third parties.
Thus, to the extent Garcia has a remedy, it lies in a wrong to her reputation instead of copyright. As McKeown explained:
“We are sympathetic to her plight. Nonetheless, the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law, and Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression.
Privacy laws, not copyright laws, may offer remedies tailored to Garcia’s personal and reputational harms. On that point, we offer no substantive view. Ultimately, Garcia would like to have her connection to the film forgotten and stripped from YouTube. Unfortunately for Garcia, such a ‘right to be forgotten,’ although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States.”
Garcia’s claims may have a shot but it’s a long one. It’s also a reminder that you may have less dominion over your image than you think. As the ruling demonstrates, what’s workable for content creators and distributors can be at odds with the expectations we have in how our likenesses appear online.
As Matthew Schruers, a vice president of law and policy at the Computer and Communications Industry Association, which supported Google and YouTube in the case, told Wired, “Everything you and I and the rest of the world upload to YouTube, is protected the moment we hit record.”
Like many things, legal arguments can have an elegance about them.
Look no further than the arguments advanced by the plaintiffs in the lawsuit that led a federal appeals court to rule last week that the government’s collection of information about the telephone calls of Americans violates the USA Patriot Act.
The decision, which was reported widely, marks the first time an appeals court has declared the surveillance program that the National Security Agency has used to harvest telephone numbers and other details of calls made or received in the US for at least the past nine years to be illegal.
Besides invalidating the bulk collection of so-called metadata, the decision reveals some terrific lawyering by the American Civil Liberties Union, which filed the lawsuit on June 11, 2013, six days after The Guardian, reporting on leaks by former government contractor Edward Snowden, published an order from the FBI to Verizon directing the company to hand over metadata for all calls on its network that either began or ended in the US.
Under the Constitution, federal courts only have the power to resolve actual disputes between real parties. Thus, to sue, a plaintiff must show a concrete personal stake in the outcome of the case, a requirement known as standing. It’s not enough to dislike a law. You have to show injury.
For its lawsuit, the ACLU needed a Verizon customer whose phone records had been collected by the government. A customer who might claim that the government’s collecting his or her phone records harmed the plaintiff in some way. For that, the ACLU looked no further than its own offices.
As the ACLU charged in court papers, the organization was itself a customer of Verizon, which provided the ACLU with landline, Internet and wireless services throughout the period covered by the order. The NSA’s harvesting of the ACLU’s metadata exceeded the government’s authority and constituted a seizure in violation of the Fourth Amendment, the group charged.
In court papers, the ACLU described its standing as follows:
The information collected includes plaintiffs’ numbers, the numbers of their contacts, the time and duration of every single call they placed or received, and the location of plaintiffs and their contacts when talking on mobile phones. This information could readily be used to identify those who contact plaintiff for legal assistance or to report human-rights or civil liberties violations, as well as those whom plaintiffs contact in connection with their work. The fact that the government is collecting this information is likely to have a chilling effect on people who would otherwise contact plaintiff.
In other words, the ACLU communicates with people about matters that are sensitive or privileged and who depend, as the group noted, “on their ability to keep even the facts of their discussions” with the ACLU confidential.
The trial court determined that the ACLU had standing to file the lawsuit.
On appeal, the government took issue with the ruling, charging that the ACLU had failed to demonstrate that the NSA had reviewed any of the metadata collected from the group. Thus, the government charged, the ACLU had failed to allege an injury sufficiently concrete to support standing.
The US Court of Appeals for the 2nd Circuit disagreed, noting that the ACLU had alleged injury from the very collection of metadata, regardless whether the government reviewed the information.
“Whether or not such claims prevail on the merits, appellants surely have standing to allege injury from the collection, and maintenance in a government database, of records relating to them,” wrote US Circuit Judge Gerard Lynch for the majority. “Appellants’ records (among those of numerous others) have been targeted for seizure by the government; the government has used the challenged statute to effect that seizure; the orders have been approved by the [Foreign Intelligence Surveillance Court]; and the records have been collected.”
The appeals court observed that the government admitted that when it searches its database its computers search all of the information stored in it. That means the government searches the ACLU’s records, which are among the millions of records stored in the database, electronically.
Finally, the court noted that the ACLU also had standing to challenge a violation of its right to freedom of association guaranteed by the First Amendment. As the court observed, the government’s forcing a group that’s engaged in advocating for the civil liberties of its membership to disclose its members can itself violate the right to associate freely.
“When the government collects appellants’ metadata, appellants’ members interests in keeping their associations and contacts private are implicated, and any potential ‘chilling effect’ is created at that point,” Lynch added.
The ad, which began with a quote from “Hamas MTV” and stated “Killing Jews is worship that draws us closer to Allah. That’s his Jihad. What’s yours?” qualifies as speech protected by the First Amendment, according to the court, which held that the MTA cannot decline to run it based solely on a fear that the ad might incite violence.
“While the court is sensitive to the MTA’s security concerns, the defendants have not presented any objective evidence that the Killing Jews advertisement would be likely to incite imminent violence,” wrote U.S. District Judge John Koeltl in a ruling published Friday. “The defendants have restricted it based on its content without a compelling interest or a response narrowly tailored to achieving any such interest.”
The ad at issue was among at least four advertisements that the group submitted to the MTA last summer for display on buses and at subway entrances. The agency approved three of the ads but rejected the “Killing Jews” ad, concluding that it advocated attacks on Jews and that it was reasonably foreseeable the ad would provoke violence.
AFDI sued, claiming that the ad parodied an advertising campaign carried out in 2012 and 2013 by the Council on American-Islamic Relations, a civil rights advocacy group that sought to depict Muslims with positive messages, including “#MyJihad is to build friendships across the aisle. What’s yours?”
In court papers, MTA acknowledge that AFDI’s ad had appeared on buses in Chicago and San Francisco in 2013 without triggering acts of violence. Still, MTA’s director of security testified that although the likelihood of incitement was “hard to quantify in percentages” the ad—particularly the line “What is yours?—could spur people to act violently.
In determining whether the ad constitutes constitutionally protected speech, the court rejected the MTA’s contention that the content fell into the category of so-called fighting words—words that the US Supreme Court has found that by their very utterance tend to incite an immediate breach of the peace or to inflict injury—and therefore are not protected by the First Amendment.
The court also concluded that the ad was unlikely to produce so-called imminent lawless action that would authorize the government to forbid the ad as harmful.
According to the court, the MTA failed to present evidence of a threat to public safety sufficient to justify the restriction of the ad based on its content. “There is no evidence of any violent response to this same advertisement when it ran in Chicago and San Francisco, or even to any similar ad in any city,” wrote Koeltl.
“In order to show that the Killing Jews ad falls outside of the First Amendment’s protection, the defendants must make some objective showing that this ad is directed at producing and likely to product such violent actions,” he added. “The defendants have made no such showing.”
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.
Ultra-Orthodox Jews in Brooklyn / Wikimedia Commons
The City of New York is facing a higher legal hurdle in its efforts to tamp down transmission of a deadly form of the herpes virus that can occur during some types of Jewish circumcision.
City officials must show that a prohibition against a person performing oral suction of the circumcision wound without the written consent of the parents or guardian of the infant being circumcised is not religiously motivated, the U.S. Court of Appeals for the Second Circuit held in a decision released last Friday.
The ruling, which addresses a ritual act known as metzitzah b’peh, or MBP, means that a regulation adopted by the city in 2012 that requires parental consent will be struck down if officials cannot demonstrate that the law does not purposely interfere with the rights of the plaintiffs, who include several ultra-Orthodox Jewish groups and rabbis who perform circumcisions.
The city contended that the regulation only incidentally burdens the plaintiffs’ rights under the First Amendment, which prohibits laws that interfere with the free exercise of religion. The regulation should be upheld so long as the court finds that it has a rational basis, the city argued.
The appeals court sided with the plaintiffs, finding that regulating conduct that is done for religious reasons only does not, by itself, contravene the Constitution. However, “where the object of the law itself is the regulation of religious conduct – the law is subject to heightened scrutiny, and not to rational basis review,” Judge Debra Ann Livingston wrote for the three-judge panel.
At issue is the practice of MPB, which city officials say contributes to about 10% of herpes simplex virus, or HSV, infections among infants that occur after birth. Because newborns lack developed immune systems, about one-fifth of infants who contract HSV die from the infection, while those who survive can suffer brain damage.
New York City has about 15 cases of neonatal HSV infection a year, among roughly 125,000 live births, according to evidence presented at trial.
In 2012, the plaintiffs sued the city, charging that the regulation burdens their free exercise of religion and should be subject to strict scrutiny by the courts. The plaintiffs contend that Jewish religious authorities deem MBP to be the only acceptable means to enact metzitzah.
In her opinion, Livingston contrasted two of the U.S. Supreme Court’s leading decisions interpreting the Free Exercise Clause. The first, a 1993 decision, struck down a city ordinance in Hialeah, Florida that the court found aimed solely to suppress animal sacrifice by adherents of Santeria. The second, a 1990 case, upheld Oregon’s prohibition on ingesting peyote, finding that the law was not specifically directed to religious practice, despite claims by two Native Americans that they had consumed the drug for religious reasons.
Livingston concluded that New York City’s regulation governing the practice of MPB is the type of law at issue in the Hialeah case. “The regulation purposely singles out religious conduct performed by a subset of Orthodox Jews,” she wrote. “And the regulation applies exclusively to the religious conduct performed by this religious group.”
“Thus, while the interests at stake in this litigation are serious on both sides, requiring the most careful calibration, the method for this calibration cannot be a mere rational basis, Livingston added. “Strict scrutiny must apply.”
At trial, the City of New York introduced the testimony of an expert from the Centers for Disease Control and Prevention who characterized the evidence tying oral suction to neonatal infection of HSV as “strong, consistent and more than biologically plausible.”
New York City logged 11 confirmed cases of HSV in infants born between 2000 and 2011 who had undergone a circumcision that likely involved oral suction, according to a study performed by the city’s Department of Health & Mental Hygiene.
According to the city, the rate of HSV infection following direct oral suction is three to four times greater than for males born in New York City who did not have oral suction.
Though Jewish law requires that male children be circumcised on the eighth day after their birth, the practice of MPB occurs primarily among members of the Satmar, Lubavitch and other Hasidic sects. The city conceded at trial that MBP is the only conduct covered by the regulation.
For their part, the plaintiffs charged that the study cited by the city in support of the regulation contains insufficient evidence to determine that the tie between MBP and HSV transmission has resulted in actual infections. The plaintiffs also asserted that mohelim, the rabbis who perform MBP, are trained to take steps to prevent the spread of HSV, including refraining from performing circumcisions if they exhibit any symptoms of HSV infection.
The city adopted the regulation about seven years after it first warned rabbis, religious leaders and physicians of the risks of MPB.
The 2nd Circuit’s ruling does not mean that the plaintiffs will succeed in overturning the regulation.
“The Department has asserted interests that are substantial and may prove, on analysis, to be compelling,” Livingston wrote. “Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.”
The plaintiffs hailed the decision as a “great victory,” and said they remain ready to work with city officials “to protect our children’s health while fully respecting and accommodating our religious practice,” according to a report by Reuters.
The city’s law department had no comment on the ruling.
