Category Archives: Law: Free Speech

John S. Quarterman has some thoughts on Our Friend Unfairly Maligned in London’s Court at Perilocity.

I haven’t written about any of this myself because my thoughts seem pedestrian to me: I think there’s a huge difference between a leaker and a recipient of classified information. The leaker commits an act of civil disobedience, and takes the risk of severe consequences, although one hopes bounded by due process and humanity. The constraints on the recipient are — and/or should be — strictly moral ones, not legal ones, or journalism as we know it is over. Legally, WikiLeaks is like the New York Times, or rather, as regards US law, the UK’s Guardian. This ought to be too simple to even need repetition, although sadly that repetition seems necessary.

The moral questions can be much more complicated, especially if an unredacted leaked document puts lives at risk. In the most recent document dump, however, WikiLeaks defused most of the moral issues as regards itself by using expert intermediaries: as I understand it, it gave the documents to various quite well respected newspapers, and let them decide what to print, what to withhold, what to redact. So the choices were outsourced to experts, and thus so too a good share of the moral responsibility.

As regards the legal cases now underway in London and Sweden, I feel too ignorant to say much, except that the whole thing looks odd to me, starting with the local Swedish prosecutor’s decision not to bring charges being supplanted by a different prosecutor in the capitol, and going forward via odd steps (Interpol? Most wanted?) to the present day proceedings in London (no bail?). But without knowing far more about the relevant local law, I don’t feel justified in doing more than asking questions.

The sight of US legislators and other fomentors baying for Assanage’s head is ugly as sin — in fact, in some cases it is sin — but it’s also now par for the ugly course on which my fellow voters have set the ship of state.

From EFF's Secret Files: Anatomy of a Bogus Subpoena

Stuff like this is why I'm proud to be on EFF's Advisory Board. (Although I can claim zero credit for EFF's great work on this matter.)

Here's a part of EFF's intro to the report linked above:

We at EFF, like the public at large, are often left in the dark about what the government's practices in this area look like. However, sometimes — just sometimes — the fog will clear and we'll get a worrisome picture of what the government gets up to behind closed doors. Sometimes this happens when an independent-minded judge publishes an opinion revealing the government's practices, like the judge that first revealed that the government was tracking cell phones without warrants. Other times, someone served with an SCA demand such as a National Security Letter comes to us for legal assistance.

Recently, one such recipient of an SCA demand did come to us, and we're glad she did. The story of that subpoena — to the administrator of www.indymedia.us, an independent activist news site aggregating stories from Indymedia web sites across the country — provides yet another example of how government abuses breed in secrecy. Hopefully this analysis will be helpful to other online service providers who receive such bogus requests masquerading as valid legal process.

People following the extended fuss over Maryland legislative attempts to block the showing of a porn film called 'Pirates II' at the University of Maryland may be interested in this comprehensive summary of the relevant law posted by U. Miami visiting professor Michael Masinter to a law professor's list, and here reprinted with his kind permission:

First, there is the terminology problem; pornography is a term with no legal significance. Obscene speech and obscene films as defined in Miller are unprotected speech; their display can be criminalized or suppressed on the basis of content. Maryland can and does forbid the display of obscene films. Maryland defines obscenity using the language of Miller in Md. Code, Crim. L. § 11-203(a)(5), and forbids its display in Md. Code, Crim. L. § 11-202. From all I've read, the content of the film comes within the statutory definition but for the question of whether the film is patently offensive under current contemporary standards in the community (and perhaps the question of artistic merit associated with its high production budget). But the question of community standards is critical. Much has changed since Miller; explicit displays of actual, as well as simulated mainstream sexual practices seems no longer to be patently offensive to many communities; sexually explicit material is freely available over the internet, from pay per view cable tv, in hotels, bars and elsewhere. The adult film industry operates openly and above board despite obscenity laws because it seemingly has reached a kind of detente with prosecutors. A prosecutor who brings an obscenity case against a producer, exhibitor or vendor of a film displaying mainstream sexual practices will almost certainly encounter a very well funded and sophisticated defense team, with expert witnesses prepared to delve deeply into what are the community standards that prevail in a given community, using evidence compiled from online sales records, from hotel pay per view purchases, and from local cable tv companies that offer pay per view explicit films. Knowing that first rate defense lawyers backed by persuasive experts will show that a significant percentage of local folks consume explicit films, and that juries will likely think that prosecutors must have something better to do than prosecute these cases, most prosecutors don't bring obscenity prosecutions any more for explicit mainstream adult sex.

Second there is the question of how to regulate the showing of obscene films. Maryland already makes their display a misdemeanor; if its legislature thinks it wise, it would seem to be free to separately forbid their display on state funded university campuses. But there must be some mechanism by which to determine whether a particular film is or is not obscene; legislators cannot do that on the floor of the legislature. Pirates II may not be obscene; it may not be patently offensive in College Park even if it would be in Garrett County, and perhaps its high dollar production values even translate into substantial artistic content; those are questions ill suited to legislative determination; they require the opportunity for an adversarial hearing. So as a matter of ordinary procedural due process law, the legislature cannot determine whether a particular film is obscene. That concern is magnified when the legislature interferes in the operation of a university by making content based judgments about what may be shown on campus. So both procedural due process problems and free speech problems arise if the legislature attempts on an ad hoc basis to dictate what can be said or shown on campus.

Third, if the film is not obscene, can the legislature use the power of the purse to forbid its showing on state college grounds? Here the problem is, as Mark already noted, that no state funds were used to show the movie, and the movie was shown in a university created student controlled limited public forum. As the Supreme Court has made clear, leaving aside display to minors, nonobscene sexually explicit speech enjoys full protection under the first amendment. Content based discrimination against nonobscene speech runs headlong into contemporary first amendment law. The state may not have to pay to show nonobscene porn, but it cannot suppress it.

Fourth, and hypothetically since it won't happen, is there any remedy if the legislature were to retaliate against the university by reducing its budget? Here the answer would seem to be no; passing a budget is a legislative act; legislators enjoy absolute immunity for legislative acts, and so no obvious remedy would seem available to compel the restoration of funding. But there's no chance that will happen; the Maryland legislature is not about to destroy its flagship educational institution.

So at the end of the day, legislators can fume, and can propose prospective legislation to ban the showing of obscene films on state campuses, but can't determine whether a particular film is obscene.

The more interesting question is whether a campus administrator can, under a hypothetical university rule or statute forbidding the recreational display of obscene films on campus, ban the proposed showing of an individual film based on a preliminary judgment that it is obscene? If Pirates II featured explicit bestiality, necrophilia, or perhaps other non-mainstream sexual practices it probably would be obscene even under contemporary community standards in College Park. Could a campus administrator ban a film's showing, subject to prompt and plenary judicial review under a properly drawn rule, on the grounds that it is obscene? That question never arose in the Pirates II controversy since pretty clearly the university administrator who acted did so in response to legislative pressure rather than under any rule regarding the display of obscene films on campus or any judgment that the film was obscene.

Thank you, Michael Masinter!

Judge Sides with Maker of “Bush Lied” T-Shirt.

Of course, you might say that things are fairly bad when legislatures are getting so controlling that they are trying to regulate T-shirts commemorating war dead.