Friday, July 25, 2008

Friday First Amendment Roundup: July 25

It was a big week for free speech in the arts: the Third Circuit defended Janet Jackson's infamous wardobe malfunction, struck down the "Child Online Protection Act" yet again, and protected depictions of animal cruelty. Meanwhile New York State seeks to censor video games, Minneapolis prepares for protesters, and a Utah resident has found a new use for the Constutition - fighting parking tickets.

Let's start with COPA, the internet censorship bill that has now been blocked six times by federal courts, including twice by the Supreme Court. Ostensibly intended to protect minors from viewing porn on the internets (as we all know, Ted Stevens tubes are full of pr0n), COPA imposes stiff criminal penalties on any internet proprietor who allows a minor access to material deemed inappropriate. The law was passed in 1998, fast on the heels of the Supreme Court's defeat of the Communications Decency Act.

[As an aside here, how amusing is this new "1984" method of naming legislation? No more naming bills for what they do ("Labor-Management Relations Act") or for the authors ("Taft-Hartley Act"); now it's all about PR maneuvering, where the most awful bits of legislation get the happiest-sounding names. The USA-PATRIOT Act, the Child Online Protection Act, the Sunshine and Rainbows Act - okay, so I made that last one up.]

The ACLU represented numerous online proprietors opposing COPA, arguing that the bill is overreaching, overburdening, and redundant considering the abundant filtering software available to parents who wish to limit the internet access of their children. The Justice Department responded with an argument based on every person's greatest fear that his or her pants might fall down. Get ready to see a metaphor stretched:

"During oral argument, Justice Department attorney Charles W. Scarborough argued that the First Amendment does not prohibit Congress from adopting a "belt-and-suspenders" approach to addressing the compelling government interest of protecting minors from accessing harmful material on the Web, with filters acting as the "belt" and COPA as the "suspenders."

But American Civil Liberties Union attorney Christopher A. Hansen argued that, under the First Amendment, if the belt works at least as effectively as the suspenders, then the government cannot prosecute people for not wearing suspenders."

All joking aside, COPA is a horrible piece of legislation that would impose an enormous burden on any person who posted any material deemed even slightly objectionable to some parent somewhere. I also take issue with this concept of the internet "violating community standards." It seems to me that the internet is in itself a community, with its own standards, and one of those is a high tolerance for expression.

The glory of the internet is that it allows a free and open exchange of ideas, unprecedented in history. Internet users at large seem willing to abide the ocassional intrusion of objectionable material in the interest of protecting the larger good. This law would undo all of that, in the interest of protecting children from seeing boobies. Thanks to the courts for protecting our tubes.


We move from belt-and-suspenders metaphors to a wardrobe malfunction of another sort. Unless you've been living "under a rock in a cave on Mars with your eyes closed and your fingers in your ears*," you could not have missed the uproar over Janet Jackson's right nipple's split-second cameo at the 2004 Super Bowl. It's been a little over four years since the FCC [in the interest of protecting children from seeing boobies] slapped broadcaster CBS with a $550,000 fine. On Tuesday, the Third Circuit tossed out the fine, dealing what one law professor called "a slap in the face for the FCC."

It's a triumph for those many Americans who don't consdier a woman's nipple to be profane, but the legal ramifications are a big unknown, as the country awaits the Supreme Court's consideration of FCC regulations this fall.

The immediate ramifications of Nipplegate were profound and obvious, as TV stations rushed to implement time-delays and began censoring anything they feared might bring the wrath of the FCC. If anyone doubts that the result was censorship, take a look at PBS, which now produces two versions of most documentary programs - one intact, and one for those who prefer World War II without all those swear words and nipples.

One only has to look this far to see how COPA, if passed, would be enforced. It's certainly reasonable to want to keep young children from accidentally happening across internet porn, but cases like "Nipplegate" show just how little it takes to set the censors off.

* to paraphrase Cecil Terwilliger


On to the animal cruelty decision, which will be a little harder for supporters of those first two decisions to stomach - particularly since the victor in this case is a guy who sold videos of dog fights for profit.

In a 10-3 decision, the Third Circuit ruled unconstitutional a law that criminalized the sale of "depictions of animal cruelty," ruling that such depictions are protected under free expression law, and do not merit exception the way that, for instance, child pornography does. According to Shannon P. Duffy at the Legal Intelligencer:

"Smith said he disagreed with the government's argument that depictions of animal cruelty "can appropriately be added to the extremely narrow class of speech that is unprotected."

Instead, Smith concluded that the government had shown no "compelling interest" in prohibiting such speech -- since every state already criminalizes acts of animal cruelty -- and that the law failed to pass a "strict scrutiny" test because it was not narrowly tailored."

Now, animal cruelty turns my stomach, and I can see the noble intent behind a law like this, but allow me to speak on behalf of what I consider a good decision. Rather than consider some guy selling dog fight videos, think of pieces produced with artistic intent. There have been any number of artists whose works have been labeled as animal cruelty, and whatever side you come down on, this law would not address the production of that art, but rather criminalize the sale or transfer of any reproduction of that art.

This is one of those cases where "the price of freedom" means tolerating, and even defending, a practice that one finds morally repugnant - which is something the ACLU is well-known (some would say notorious) for. It's certainly a decision that's open to debate, and I'd be interested to hear some opinions.


On to a few shorters items from the past week:


In a move opposed by the New York Civil Liberties Union, the State of New York has passed a grand plan to censor video games. The State has declared illegal the sale of any video game that does not prominently display a rating, and outlawing any system that does not feature technology allowing parents to block games.

It's amazing to watch history repeat itself. Just as the Comics Code Authority is losing its power and the MPAA is being sidestepped by unrated DVD releases, New York State goes and puts legal authority in the hands of the voluntary-censor ESRB. Will any new media ever emerge without parents and lawmakers responding with fear?


Preparing for the Republican National Convention later this year, Minneapolis has dispatched ten new officers termed, in grand Orwellian style, "dialogue officers." Also known as "free speech liason officers," these ten have begun meeting with the Justice Department and with groups they expect to protest, in an effort to prevent... well, I'm not sure exactly what. Here's how one of the officers explains it:

"The whole goal is to try and reach out to groups that are going to protest. We recognize their free speech rights, but the concern on our end is that we don't want anybody to get hurt or have any property damage," said Bill Blake, a Minneapolis officer taking part in the initiative.

This seems like it could be a really great idea on behalf of the Minneapolis PD, to open a dialogue between the Justice Department and protesters at the GOP convention. I do find it a bit amusing that all ten officers have a background in hostage negotiation - which may come in handy if the Minneapolis convention goes the way of the 2004 New York Convention.


Finally, a somewhat lighter story: A 28 year-old resident of Provo, Utah is doing Tom Jefferson proud and finding an innovative new way to apply the Constitution: fighting parking tickets.

DonCarlos Wells has filed a motion claiming that Provo's permit-only parking ordinances, which span entire neighborhoods, violate the constitutional right to assembly because they render it impossible for guests to park in those neighborhoods.

According to the Utah Daily Herald, when Wells first stated his argument in court, the prosecuter laughed - but I don't think it's all that absurd. I'm not a lawyer, but applying a blanket permit ordinance over an entire neighborhood does seem an undue burden on residents and any visitors they may like to welcome to their homes. Wells's argument seems even stronger when the prosecuter is quoted as saying things like "The Supreme Court doesn't recognize [the right to association/assembly] in the context of social associations."

So freedom and liberty apply only to statesmen, not to kids who just want to play X-Box? That doesn't seem quite right to me.

Wells describes the Provo permit-only parking ordinance as a "money grab," claiming that the $10 per offense fine is just low enough that most people will decide it's not worth fighting and just pay it.

According to the Daily Herald:

Property owners in the Foothill Park area, which includes the neighborhood near Seven Peaks, can get up to two permits for $15 apiece. They can also get up to six temporary permits three times a year for $2 apiece to accommodate visitors.

That's $15 per year, for the right to park one car in the public street in front of your own home. And you can have to up to two of them, entitling you to park up to two cars. Six temporary permits three times a year works out to a total of 18 visitors per year that Provo will allow you to receive, provided you are willing to pay $36 for the privelege of having friends who own cars.

Best wishes DeCarlos. I think you may have an argument here.

Chris in Philly

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