Blawg Review #262: World Press Freedom Day

The Carnival of Law Bloggers has invited me to host Blawg Review #262 for World Press Freedom Day. For those not already familiar with it, Blawg Review is a weekly review of legal blogging, hosted by a different “blawg” each week.

In looking over past reviews, I gather it’s rare for non-lawyers to have this honor. The two exceptions I found were from a law student (see BR#57) and a regular commenter on legal matters (BR#238). Both seemed to be considered “blawgers” by the legal-blogging community. Webopedia defines a “blawg” as:

A slang term used to describe an online blog that is written by lawyers, or one that is focused on providing legal-oriented content.

Even by that flexible definition–no one would classify Public Intellectual as a “blawg.”  This blog’s original intent was to translate the concepts I was learning in graduate school into language that could reach a wider audience. Social science offered insights on matters of public concern, but it bothered me that we were trained to keep it all to ourselves, writing only in obscure academic journals and using encrypted terms.  I appreciate when specialists (in any field) keep the lines of communication open, by limiting the jargon when they write about their area of expertise.  So I created this blog to do just that with sociology.

In that same spirit, I’ve chosen links for this review that were accessible to me as someone outside-the-loop.  My involvement with law is limited to my experiences as a defamation defendant (see Comins v. VanVoorhis).  Thus, I can’t really judge the “quality” of blawgs from a legal standpoint. But as an educated citizen, I’d like to be informed about legal issues, and to pass along whatever I learn to other non-experts.  Law bloggers help make that possible when they break down the legalese into layman’s terms. In the spirit of freeing up knowledge and to commemorate World Press Freedom Day, this blawg review will celebrate those kinds of posts. Since some of the topics pertain to technology and various forms of online communication, I’ve also included posts by industry insiders, so that we might contrast legal blogs with technology and software blogs.

World Press Freedom Day

Today is World Press Freedom Day, celebrated every year on May 3rd worldwide.

World Press Freedom Day is an opportunity to:

1. Celebrate the fundamental principles of press freedom
2. Evaluate press freedom
3. Defend the media from attacks on their independence
4. Raise awareness about (or pay tribute to) journalists exiled (or killed) in the line of duty (see IFEX article: World’s press rallies around journalists in exile on World Press Freedom Day).

The UN’s General Assembly proclaimed World Press Freedom Day in 1993, following a recommendation adopted two years earlier at the UNESCO’s General Conference. (Learn more about the WPFD 2010 conference hosted earlier today at Australia’s University of Queensland; also, WPFD 2010 on Twitter).

Press freedom has great significance to me not only personally (as the victim of a SLAPP lawsuit, aimed not at collecting damages but at intimidating me into silence) but also professionally. As a PhD candidate at the University of Florida, my dissertation research focuses on civic literacy: the (a) willingness and (b) ability of citizens to participate in matters of public concern. Not surprisingly, preliminary findings support past research suggesting a strong correlation between civic literacy and press freedom. In order to be “willing” and “able” citizens must first be informed. It’s hard to imagine an uninformed population doing much of anything.

Of course, not everyone likes this idea of citizens participating. A population that’s engaged and informed means greater accountability for political leaders and other powerful individuals. So if you happen to be involved in some activity for which you’d rather not be held accountable, I guess you’re not celebrating World Press Freedom Day today.

Democratizing Knowledge

Freedom starts with democratizing knowledge. It’s hard to imagine a democracy without a free press and freedom of speech. Anyone can claim to be a proponent of free speech. But most people are flip-floppers on free speech. The First Amendment is a light switch that they turn on and off as it suits their agenda.

Have you ever met a person who openly admitted to being against “free speech”? That seems to be an undesirable position, even among those who are in fact the First Amendment’s enemies.  I find that such people don’t classify whatever they’re opposing as “free speech.” Instead, they redefine it as something that sounds unpleasant, such as “hate speech”; that way it’s easier to get people on board with denouncing it.

Sometimes both sides in an argument see their own position as “free speech” and the other’s as “hate speech.” That’s exactly what happened here at the University of Florida in 2007 when the Vice President of Student Affairs sent a mass email condemning a public screening of the movie Obsession: Radical Islam’s War Against the West and demanding an apology from those responsible.

Defamation

Another anti-free speech buzzword is “defamation.”

Just before I started blogging in late 2006, I read up on online defamation and liability laws at Electronic Frontier Foundation. That was when I first learned about my favorite non-defamation example, Vogel v. Felice.

A statement that the plaintiff is a “Dumb Ass,” even first among “Dumb Asses,” communicates no factual proposition susceptible of proof or refutation. It is true that “dumb” by itself can convey the relatively concrete meaning “lacking in intelligence.” Even so, depending on context, it may convey a lack less of objectively assayable mental function than of such imponderable and debatable virtues as judgment or wisdom. Here defendant did not use “dumb” in isolation, but as part of the idiomatic phrase, “dumb ass.” When applied to a whole human being, the term “ass” is a general expression of contempt essentially devoid of factual content. Adding the word “dumb” merely converts “contemptible person” to “contemptible fool.” Plaintiffs were justifiably insulted by this epithet, but they failed entirely to show how it could be found to convey a provable factual proposition. … If the meaning conveyed cannot by its nature be proved false, it cannot support a libel claim.

Based on my knowledge of the Vogel v. Felice case, I made the decision to refer rhetorically to dog shooter Christopher Comins as a “Barbarian Hillbilly” in a blog post that pissed him enough to file this Complaint; whereas he was less offended when National Enquirer called him a “Callous Creep.”

Scott Greenfield of Simple Justice noted:

My guess is that Comins objected to being called a Hillbilly. I bet Hillbillies objected to being associated with Comins.

That’s a fair point.  If anyone has grounds to sue me based on a statement of fact, it’s the hillbillies.

In another name-calling example, J. DeVoy at Legal Satyricon looks into whether its defamatory to assert that someone is homosexual, and finds that “as times change, so does the law.”

Current Events Roundup: Implications on Press Freedom and Freedom of Expression

Copyright infringements sometimes conflict with freedom of expression. The Digital Millennium Copyright Act (DCMA) criminalizes production and dissemination of copyrighted digital material. Often, website owners cooperate with DCMA takedown notices when it’s not certain that any copyright infringement has occurred, because the website will not be held liable as long as the potentially infringing content is taken down.

Two DCMA takedowns made headlines this week. The first involved sweeping YouTube removals of Hitler parodies from the movie Downfall (see commentary from Mike Melanson at ReadWriteWeb; also Corynne McSherry at EFF and Samuel Axon at mashable).

The other involved the removal of a Twitter update by a music writer (see DMCA abuse extends to Twitter posts by Jacqui Cheng at arstechnica).

Consider the Gizmodo/stolen iPhone affair. From Kim Zetter at Wired:

Police raided the house of an editor for Gizmodo on Friday and seized four computers as part of an investigation into the leak of a prototype iPhone that the site obtained for a blockbuster story last week.

At first glance it didn’t seem like this case had anything to do with freedom of the press. But in a phone interview with Laptop magazine, EFF’s Civil Liberties Director Jennifer Granick said the Privacy Protection Act protects reporters and journalists from search and seizure for their news gathering activities. (see also Citizen Media Law Project).

Here is a quasi-insider perspective by Gizmodo intern Sergio Hernandez. And another, “The Official Verdict in the Stolen iPhone case” from mega-blogger Jason Calacanis (co-founder of Web Blogs Inc.) who trashes his former competitor Nick Denton, who runs the show at Gizmodo. Calcanis also offers a metaphor, comparing the stolen iPhone saga to finding a future Mercedes:

You see a silver Mercedes parked in front of your house… and see that it has a bunch of new features that the standard Mercedes you drive lacks. You take the car and drive it home, then call automotive magazines and offer to sell this prototype you found, and know the owner of, for 10x the street value of the car (say, $1M). What are you now? Yes, a criminal!

This analogy is simplistic because it overlooks the nuances between “information” and objects. A car cannot be stored on a hard drive. However, the analogy reminded me of a still-ongoing debate between Orin Kerr at Rick Horowitz at Probable Cause and Orin Kerr of The Volokh Conspiracy regarding how to apply. In Kerr’s recent article, he describes the basic goal of technology neutrality, which he paraphrases in a blawg entry as:

(T)o develop Fourth Amendment principles that roughly replicate the function of the Fourth Amendment offline in the online environment. Put simply, the Fourth Amendment should do for cyberspace what it does for realspace.

Horowitz wrote two posts in response to Kerr’s theories and has promised a third. The first two:

1. Orin Kerr’s Fourth Amendment & The Internet: Foundations

2. What’s Wrong With Orin Kerr’s Technology Neutrality

Online Anonymity and Privacy

The last few years have seen significant changes in the law regarding First Amendment protections for anonymous and pseudonymous speech on the Internet. Accordingly, Citizen Media Law Project’s Sam Bayard announced updates at CLMP to reflect all these changes.

Many Internet users assume they have limitless anonymity online, and get themselves in trouble as a result. Douglas Keene of The Jury Room gives an informative rundown of recent examples.

Walter Olson at Overlawyered dug up another example from Kalamazoo Michigan, where T & J Towing is suing a college student for $750,000 for starting the Facebook page “Kalamazoo Residents Against T&J Towing.” I visited the Facebook page, which has close to 11,000 visitors. This could be an example of the Streisand effect–unless that many people hated the company before they filed they sued the student.

Also on the Facebook front, KashmirHill weighs in on Facebook’s tracking of our digital footprints in “Control Matters More than Privacy.”

Lyle Denniston at SCOTUS discusses the Supreme Court Justices and where they fall in the anonymity debate, in

“Without Scalia, whither anonymity?Supreme Court Justices” and

Peter Richman, guest contributor at ninefiveyears writes about the bold new plan by the Associated Press to control the distribution of its news by implementing hidden licenses and tracking devices. Richman suggests the new technology could ultimately enable to AP to stipulate that readers forfeit their fair use rights simply by reading an article.

The hNews microformat is metadata embedded in a news article with two noteworthy features – 1) a licensing framework, and 2) a tracking beacon. The framework sets the legal terms and conditions for using the article… (W)hat is legally significant here is not so much the specific terms of the framework as the very fact that the AP is trying to control its content by binding its readers to a contract.

Thank you

Many thanks to the editors for such wonderful article suggestions, as well as to any reader who made it this far.

A new blawg review is published at a different law blog every Monday. You can visit Blawg Review for information about next week’s host, She Negotiates, and for instructions on how to get your blawg posts reviewed in upcoming issues.