As one of the unprotected areas of speech, the regulations pertaining to obscene material have long been subject to intense scrutiny. However, while obscenity has been unprotected and regulated in the form of the Miller Test, pornography has remained mostly unregulated. While regular pornography remains a protected form of expression under the First Amendment unless in violation with the Miller obscenity test, child pornography is an unprotected form of speech under the First Amendment[1]. The Supreme Court first created child pornography's unprotected status in the 1982 case of New York v. Ferber [2]. However, with the passage of the Child Pornography Prevention Act (CPPA) of 1996, Congress waded into a murky issue: that of virtual child pornography.
A definition given by the Ohio Supreme Court says virtual child pornography is "pornography that depicts children, but through images that are either computer-generated or that are created using only adults." CPPA attempted to expand the child pornography category to include both computer-generated depictions of children, and depictions of what appeared to be minors. Even from the description of the CPPA, we can already feel a sense of vagueness in the type of content that this would encompass. How should a computer image of a person be judged as a child or not? What does it mean to "look underage"?
Therefore, we have the first Supreme Court case dealing with virtual child pornography: Ashcroft v. Free Speech Coalition (2002). The FSC is a group representing the adult entertainment industry, and they filed the lawsuit against the CPPA. The Supreme Court ruled on behalf of the FSC, stating that the overbroad and vague language would seem to prohibit the adaptation of famous works such as "Romeo and Juliet", or of films such as "American Beauty" [3]. In addition, the Supreme Court states that virtual child porn does not directly relate to the abuse of children, which is the main purpose of categorizing child pornography as an unprotected form of speech. It does not seem to consider the Circuit Court's argument that, by making virtual child porn a protected form of expression, there will be indirect harm done to children through proliferating the market demand for child pornography.
However, the Supreme Court's stance on the issue of virtual child pornography seems to be extremely confusing. In 2003, Congress passed the PROTECT act, in which was the provision that, while the possession of virtual child pornography is not illegal, but any attempts to distribute material that "is intended to cause another to believe that the material contains depicted [child pornography]" is illegal [4]. In the 2008 case of United States v. Williams, where defendant Williams was trying to challenge the constitutionality of the PROTECT act provisions as being overbroad and vague, the Supreme Court ruled in favor of the legislation. The Supreme Court's argument was basically that, as technology becomes more advanced and the lines between virtual and real child pornography becomes blurred, repeated transmissions of picture files over the internet will make it nearly impossible to determine whether the image was real or virtual, so therefore any attempt to pass pictures as real must be treated as if the pictures were real [5].
Personally, I do not really see how these rulings are compatible with each other. The government obviously has a vested interest in preventing the abuse of children through child pornography, which is why they have labeled it an unprotected area of speech through the neoliberal ruling on Ferber. In my opinion, the Ashcroft ruling was libertarian because it ruled in favor of generally applicable and narrowly tailored regulations, while minimizing the role of government in categorizing virtual pornography into virtual adult and virtual child porn. However, what the government seems to have forgotten is precisely the issue that arose in the Williams case: how to determine between virtual and real pornography? This issue seems to have no answer, especially as picture and video editing software becomes more adept at creating virtualized versions of people. The Court's response to this seems to be a neoliberal ruling on what people perceive child pornography to be, which seems to defeat the purpose of the previous Ashcroft ruling. An additional point of irony seems to be what Justice Scalia says at the end of the Williams opinion, "whether someone held a belief or had an intent is a true-or-false determination, not a subjective judgment". If the Court had believed, in Ashcroft, that they should not be given the power to evaluate physical images of "virtual" children, they seemed to have backpedaled twice as fast in Williams, to make sure that they can evaluate the MENTAL beliefs of a distributor of pornography.
In my opinion, this ridiculous clash of opinions merely show the problems that will continue to face the court in the area of virtual child porn. As I see it, there are really no solutions for the issue of child pornography. The courts can choose to continue ruling on an ad-hoc basis upon the regulation upon the contents of virtual child pornography (both physical and mental contents, as Williams seems to have set a precedence for), in which case the question is "how to determine the intentions and beliefs of the distributor and receiver". The courts could also decide to ban all representations of children in pornography, in which case the question becomes "How to determine what constitutes a 'child' in computer-generated or adult-simulated child pornography?" The two extremes would be if the courts were to declare all pornographic material as protected or unprotected, but either would trigger severe backlashes from the public as to make it unfeasible. Ultimately, as the government has a vested interest in stopping child pornography for the public interest, it will have to maintain an active neoliberal role in this regard. Libertarian rulings such as Ashcroft would only seem to run contrary to the government's goals, and ultimately serve no purpose at all.
-David
Bibliography
[1] http://en.wikipedia.org/wiki/Child_pornography_laws_in_the_United_States
[2] http://en.wikipedia.org/wiki/New_York_v._Ferber
[3] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=00-795
[4] http://www.firstamendmentcenter.org/speech/internet/topic.aspx?topic=virtual_childporn
[5] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=06-694
Tuesday, April 27, 2010
Tuesday, April 20, 2010
Affirmative Acceptance?
Every single year, millions of high-school seniors in the US apply to universities all across the US, in hopes of getting into a prestigious university, and having a brighter future ahead of them. For university officials, however, the difficulty of the task is often compounded by the higher institution's goals of affirmative action, or the encouragement of diversity in the education of students. Therein lies one of the big questions of the First Amendment: should universities base their admission decisions upon racial discrimination?
The first question to tackle is the issue of First Amendment jurisdiction. For every university admissions process, the mere process of evaluating the application based upon a set of criterion is already stepping into the realms of regulation based upon content. While nobody would argue that this process is necessary, the goal of affirmative action steps even farther. The fact that different racial information provided could lead to different admission decisions, shows that affirmative action counts as viewpoint regulation. For a viewpoint regulation to be considered constitutional, it must pass the test of Strict Scrutiny.
Strict Scrutiny:
1) There must be a compelling governmental interest furthered by the regulation
2) The regulation must be narrowly tailored, and acceptable in scope with regards to alternatives, vague, and overbroadness.
In 1978, the Supreme Court delivered a landmark ruling on the case of Regents of University of California vs. Bakke [1], ruling on the admissions process of universities. In this case, Bakke was an applicant to the Medical School of the University of California at Davis, where he was turned down despite having higher academic scores than "special applicants" from minority groups. In the 5-4 decision, the Supreme Court ruled that UC Davis cannot use race as the only factor in the admissions process, but that it is allowed to use race as one of the factors in the determination of the admission decisions of applicants [2]. This ruling is called a landmark ruling because governmental institutions of any kind have traditionally not been allowed to discriminate based upon race based on the Equal Protection Clause, applied through the 14th Amendment[3]. This Clause states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws", and is viewed as prohibiting discrimination of minority groups by using the "All men are created equal" proposition.
With the Bakke ruling, many universities have begun to adopt affirmative action in their admissions process. In every case, affirmative action that universities can take needs to pass the strict scrutiny test, most importantly the narrowly-tailored requirement. In 2003, two Supreme Court rulings, both dealing with the University of Michigan, further defined the scope of affirmative action in universities. In Grutter v. Bollinger [4], where a UM Law School applicant named Grutter was denied admission despite having high academic achievements, the Supreme Court ruled in favor of the use of race as a factor in admissions. The Supreme Court again cited the compelling interest of "attaining a diverse student body" [5] in their decision to uphold the regulation. However, in Gratz v. Bollinger [6], the Supreme Court struck down the use of a points-based system of admission, which gave an absolute number of bonus points given to some racial minorities, as being "not narrowly tailored to achieve respondent's ... interest in diversity." [7]. These duo rulings present universities with a very tricky path to navigate in keeping their affirmative-action-based admissions process constitutional.
I would like to argue that, while the government does have a compelling interest in furthering diversity in educational and professional environments, they should consider taking a different approach to doing so. Firstly, from a neoliberal point of view, governments absolutely have the ability to choose to fund viewpoints that it finds compelling for the public interest. As the Supreme Court has already ruled on Rust v. Sullivan, government can regulate its "agents", which receive money from the government, to engage in government speech that it finds prudent. It is clear that, through the rulings of the many affirmative action cases in the past, the government has a vested interest in promoting diversity. Combining the rulings and the decision of Rust v. Sullivan, we can argue that first test of the strict scrutiny is valid.
However, I do not believe that using ad-hoc rules and regulations at the gates to universities is the correct method to solving the issue of promoting diversity in the educational atmosphere. From both Bakke and Gratz, the Supreme Court has already ruled on the unconstitutionality of two different concrete methods of quantifying racial contributions to the admissions process. In Bakke, UC Davis used a yearly quota system to determine the number of applicants from each race that it can take, in a segregated admissions process, while in Gratz, the UM Law School gave bonus points to minorities which helped lower the bar of admission for them. It is quite ironic that the Supreme Court has found specific affirmative action plans, such as UC Davis's quotas and UM Law School's points system, as being not narrowly-tailored enough, while finding vague assertions of "individuals with intriguingly different backgrounds" from UM's Undergraduate Admissions Policy [8], or "undertaking affirmative action" from UC Davis's Medical School [9], as being narrowly tailored enough.
With the indecisiveness that the Supreme Court has shown, I do not believe that anything other than a vague affirmative action pledge will ever be deemed acceptable. In my opinion, while affirmative action is important, the vague language in the admissions policies of universities should make it not narrowly-tailored and therefore unconstitutional. That the Supreme Court has ruled constitutional the vague language as stated above should show the extent it believes in the neoliberal compelling interest in fostering diversity.
Some states, such as Texas, have completely moved away from using content regulation of the applicant's race in the factor of determining affirmative action. When an Appeals Court ruled University of Texas's affirmative action admissions process as unconstitutional in 1996, minority enrollment plummeted. In 1998, Texas state lawmakers came up with a meritocratic method of ensuring minority enrollment into the state universities without discriminating based on race [10]. Looking at the fact that Texas's high schools remained largely segregated by race, lawmakers instituted an automatic admissions process for the top 10% of all seniors in each high school, which would ensure that schools that were primarily dominated by minorities would have a large population that could enroll at state universities.
However, problems are still abound in the realm of affirmative action in university admissions processes. Arguments against affirmative action range from the ineffectiveness of race-based admission policies [11] to the degradation of democracy [12]. In my personal opinion, because universities are not allowed to set down concrete guidelines on how to utilize race in admission decisions, the vague affirmative action plans that universities have seem similar to a licensing system. Its vagueness allows for the possibility of abuse, under the auspice of "fostering diversity". Even though there is consideration to GPA and other academic records, the weighted importance of race in the admissions process is undefined ; because race is an attribute that is attached to everybody, not just minority groups, one can seemingly make arbitrarily admission decisions to everybody under this shield of vagueness. I believe that the task of fostering diversity in education should begin in earlier stages of a person's educational path, and belong in the hands of those knowledgeable about education, instead of being in the hands of the judiciary branch of government. Otherwise, I can foresee no reasonable solution to the problem of affirmative action in university admissions processes.
-David
Bibliography
[1] http://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke
[2] http://www.oyez.org/cases/1970-1979/1977/1977_76_811/opinion
[3] http://en.wikipedia.org/wiki/Equal_Protection_Clause_of_the_Fourteenth_Amendment
[4] http://en.wikipedia.org/wiki/Grutter_v._Bollinger
[5] http://www.oyez.org/cases/2000-2009/2002/2002_02_241/opinion
[6] http://en.wikipedia.org/wiki/Gratz_v._Bollinger
[7] http://www.oyez.org/cases/2000-2009/2002/2002_02_516/opinion
[8] http://www.law.umich.edu/prospectivestudents/admissions/Documents/admissionspolicy.pdf
[9] http://www.ucdmc.ucdavis.edu/pathology/education/cls_training_program/admission.html
[10] http://aad.english.ucsb.edu/docs/hockstader.html
[11] http://aad.english.ucsb.edu/docs/wydick.html
[12] http://www.openmarket.org/2006/12/22/government-has-no-first-amendment-right-to-discriminate/
The first question to tackle is the issue of First Amendment jurisdiction. For every university admissions process, the mere process of evaluating the application based upon a set of criterion is already stepping into the realms of regulation based upon content. While nobody would argue that this process is necessary, the goal of affirmative action steps even farther. The fact that different racial information provided could lead to different admission decisions, shows that affirmative action counts as viewpoint regulation. For a viewpoint regulation to be considered constitutional, it must pass the test of Strict Scrutiny.
Strict Scrutiny:
1) There must be a compelling governmental interest furthered by the regulation
2) The regulation must be narrowly tailored, and acceptable in scope with regards to alternatives, vague, and overbroadness.
In 1978, the Supreme Court delivered a landmark ruling on the case of Regents of University of California vs. Bakke [1], ruling on the admissions process of universities. In this case, Bakke was an applicant to the Medical School of the University of California at Davis, where he was turned down despite having higher academic scores than "special applicants" from minority groups. In the 5-4 decision, the Supreme Court ruled that UC Davis cannot use race as the only factor in the admissions process, but that it is allowed to use race as one of the factors in the determination of the admission decisions of applicants [2]. This ruling is called a landmark ruling because governmental institutions of any kind have traditionally not been allowed to discriminate based upon race based on the Equal Protection Clause, applied through the 14th Amendment[3]. This Clause states that "no state shall ... deny to any person within its jurisdiction the equal protection of the laws", and is viewed as prohibiting discrimination of minority groups by using the "All men are created equal" proposition.
With the Bakke ruling, many universities have begun to adopt affirmative action in their admissions process. In every case, affirmative action that universities can take needs to pass the strict scrutiny test, most importantly the narrowly-tailored requirement. In 2003, two Supreme Court rulings, both dealing with the University of Michigan, further defined the scope of affirmative action in universities. In Grutter v. Bollinger [4], where a UM Law School applicant named Grutter was denied admission despite having high academic achievements, the Supreme Court ruled in favor of the use of race as a factor in admissions. The Supreme Court again cited the compelling interest of "attaining a diverse student body" [5] in their decision to uphold the regulation. However, in Gratz v. Bollinger [6], the Supreme Court struck down the use of a points-based system of admission, which gave an absolute number of bonus points given to some racial minorities, as being "not narrowly tailored to achieve respondent's ... interest in diversity." [7]. These duo rulings present universities with a very tricky path to navigate in keeping their affirmative-action-based admissions process constitutional.
I would like to argue that, while the government does have a compelling interest in furthering diversity in educational and professional environments, they should consider taking a different approach to doing so. Firstly, from a neoliberal point of view, governments absolutely have the ability to choose to fund viewpoints that it finds compelling for the public interest. As the Supreme Court has already ruled on Rust v. Sullivan, government can regulate its "agents", which receive money from the government, to engage in government speech that it finds prudent. It is clear that, through the rulings of the many affirmative action cases in the past, the government has a vested interest in promoting diversity. Combining the rulings and the decision of Rust v. Sullivan, we can argue that first test of the strict scrutiny is valid.
However, I do not believe that using ad-hoc rules and regulations at the gates to universities is the correct method to solving the issue of promoting diversity in the educational atmosphere. From both Bakke and Gratz, the Supreme Court has already ruled on the unconstitutionality of two different concrete methods of quantifying racial contributions to the admissions process. In Bakke, UC Davis used a yearly quota system to determine the number of applicants from each race that it can take, in a segregated admissions process, while in Gratz, the UM Law School gave bonus points to minorities which helped lower the bar of admission for them. It is quite ironic that the Supreme Court has found specific affirmative action plans, such as UC Davis's quotas and UM Law School's points system, as being not narrowly-tailored enough, while finding vague assertions of "individuals with intriguingly different backgrounds" from UM's Undergraduate Admissions Policy [8], or "undertaking affirmative action" from UC Davis's Medical School [9], as being narrowly tailored enough.
With the indecisiveness that the Supreme Court has shown, I do not believe that anything other than a vague affirmative action pledge will ever be deemed acceptable. In my opinion, while affirmative action is important, the vague language in the admissions policies of universities should make it not narrowly-tailored and therefore unconstitutional. That the Supreme Court has ruled constitutional the vague language as stated above should show the extent it believes in the neoliberal compelling interest in fostering diversity.
Some states, such as Texas, have completely moved away from using content regulation of the applicant's race in the factor of determining affirmative action. When an Appeals Court ruled University of Texas's affirmative action admissions process as unconstitutional in 1996, minority enrollment plummeted. In 1998, Texas state lawmakers came up with a meritocratic method of ensuring minority enrollment into the state universities without discriminating based on race [10]. Looking at the fact that Texas's high schools remained largely segregated by race, lawmakers instituted an automatic admissions process for the top 10% of all seniors in each high school, which would ensure that schools that were primarily dominated by minorities would have a large population that could enroll at state universities.
However, problems are still abound in the realm of affirmative action in university admissions processes. Arguments against affirmative action range from the ineffectiveness of race-based admission policies [11] to the degradation of democracy [12]. In my personal opinion, because universities are not allowed to set down concrete guidelines on how to utilize race in admission decisions, the vague affirmative action plans that universities have seem similar to a licensing system. Its vagueness allows for the possibility of abuse, under the auspice of "fostering diversity". Even though there is consideration to GPA and other academic records, the weighted importance of race in the admissions process is undefined ; because race is an attribute that is attached to everybody, not just minority groups, one can seemingly make arbitrarily admission decisions to everybody under this shield of vagueness. I believe that the task of fostering diversity in education should begin in earlier stages of a person's educational path, and belong in the hands of those knowledgeable about education, instead of being in the hands of the judiciary branch of government. Otherwise, I can foresee no reasonable solution to the problem of affirmative action in university admissions processes.
-David
Bibliography
[1] http://en.wikipedia.org/wiki/Regents_of_the_University_of_California_v._Bakke
[2] http://www.oyez.org/cases/1970-1979/1977/1977_76_811/opinion
[3] http://en.wikipedia.org/wiki/Equal_Protection_Clause_of_the_Fourteenth_Amendment
[4] http://en.wikipedia.org/wiki/Grutter_v._Bollinger
[5] http://www.oyez.org/cases/2000-2009/2002/2002_02_241/opinion
[6] http://en.wikipedia.org/wiki/Gratz_v._Bollinger
[7] http://www.oyez.org/cases/2000-2009/2002/2002_02_516/opinion
[8] http://www.law.umich.edu/prospectivestudents/admissions/Documents/admissionspolicy.pdf
[9] http://www.ucdmc.ucdavis.edu/pathology/education/cls_training_program/admission.html
[10] http://aad.english.ucsb.edu/docs/hockstader.html
[11] http://aad.english.ucsb.edu/docs/wydick.html
[12] http://www.openmarket.org/2006/12/22/government-has-no-first-amendment-right-to-discriminate/
Monday, March 29, 2010
The Airport : a Questionable Marketplace?
Just a few days ago, as I arrived at Chicago Midway Airport, I noticed a sign at the baggage claim area: "Please Be Aware: Any Solicitation of Rides is Illegal at Chicago Midway Airport." This statement made me curious, as to why this would not be construed as unconstitutional under the First Amendment. Is there really a functional difference between taxi or limo drivers standing at taxi stands and welcome passengers into their cars, and a stranger standing inside the terminal welcoming you towards their car? To me, the answer seems to be "not that much", in which case the statute would no longer seem to be regulating the conduct of soliciting, but rather the substance implied in the actual soliciting itself - regulating based upon the content of the message.
However, based upon news reports of illegal soliciting at Chicago Airports [1], it seems that the government has a legitimate neoliberal reasoning for regulating the solicitation of rides at airports. These are twofold: economic, and safety. Firstly, because the private airport transportation system operates on a licensing system [2], the airport is losing revenue from the passengers that choose to take unlicensed vehicles. Secondly, numerous reports, such as the news article cited above, state the myriad of dangers that may befall passengers who unknowingly take unlicensed transportation at an airport. In a way, I consider the government's ban on illegal solicitation of rides as a functional form of prior restraint, even though it is in a form of a legislative statute.
As with all prior restraints, we must consider the following four conditions:
1) Serious
2) Imminent
3) Causation
4) Narrowly Tailoring
From the story in the Chicago Tribune, the dangers are definitely serious; passengers in unlicensed vehicles have gotten into physical violence and danger with the drivers after being charged exorbitant prices. The nature of solicitation makes it imminent, since as soon as a potential passenger acquiesces, the dangers immediately emerge. According to the news article, disagreements between the passengers and unlicensed drivers directly lead to conflicts, fulfilling the causation clause. Lastly, the statute seems to be narrowly tailoring: if you have a license, then you are exempt from this statute. Granted, I saw no sources which prove the usefulness of the licensing system, which would justify the application of the prior restraint statute on the solicitation of rides, but in my mind the reasoning seems sound enough. The judicial system seems to agree, since I could not find any cases regarding the constitutionality of the regulation on unlicensed solicitation of rides at airports.
Which is all and great for the safety of the passengers, but what about other types of solicitation at airports which do not lead to a clear-cut safety issue?
Let's take a look at the case Los Angeles vs. Jews for Jesus [3]. In this case, Snyder, a minister for the Gospel Jews for Jesus, was distributing free religious literature at the Los Angeles International Airport (LAX), and was notified that an LA resolution banning "all First Amendment Activities" at airports prohibited him from doing so. The Supreme Court ruled that the resolution was overbroad, and therefore unconstitutional. Along the way, the court also outlined three types of "forums of ideas":
1) Traditional Public Forum
2) Government-Designed public forum
3) Nonpublic Forum
The court placed the airport squarely in the "traditional public forum" category, which seems to make sense, since anybody could access the airport's public areas at any time. This ruling seems like a victory for the First Amendment.
Then, along came International Society for Krishna Consciousness of California (ISKCON) vs. City of Los Angeles [4]. On the surface, this case seems to be very similar to the Jews for Jesus case. There's a religious institution, ISKCON, at the exact same airport (LAX), doing almost the exact same solicitation of religious materials. The only difference: ISKCON was also soliciting funds in addition to spreading information about their religion. But somehow, this time the California Supreme Court ruled in favor of the regulation in question, saying that airports could regulate solicitation based on a time/place/manner ruling. Somehow, these two Supreme Court decisions do not seem to agree with each other.
We can first take a look at the nature of the regulation itself. The regulation in question for Jews for Jesus was considered overbroad, as it banned "all First Amendment Activities". The regulation on solicitation for ISKCON was much more narrowly tailored. It was defined by the case Los Angeles Alliance for Survival vs. City of Los Angeles, which laid down the following rules for solicitation: [5]:
1) No person shall solicit, ask or beg in an aggressive manner, in any public place
2) All soliciting prohibited at following locations:
a) Banks and ATMs
b) Motor Vehicles and Parking Lots
c) Public Transportation Vehicles and Stops
d) Restaurants
Now, if we were to apply the same prior restraint tests as in the case above for soliciting rides, it seems to fall short of being valid for this test. The term "aggressive manner" itself seems to be overbroad, as aggression is subjective from the viewpoint of the receiver. Though the rule attempts to define "aggression", the threshold for "fear" and "intimidation" is different for everyone. This would seem to create a chilling effect on the practice of solicitation, which otherwise would appear to be a valid contribution to the marketplace of ideas.
But even if we were to assume that the regulation itself were constitutional, the ruling by California's Supreme Court does not seem to make much sense. There is nothing in the discussion and majority opinions which address the first point of aggression in ISKCON's solicitation. As for the second point of the test, the airport does not fall under any one of the locations where solicitation is prohibited. The closest would be a "Public Transportation Stop", which is defined as "within ten feet of any designated or posted public vehicle stop." Therefore, I do not see why the regulation on solicitation even covers the actions of ISKCON. However, neither Justice Kennard or Justice Chin ever mention the problem of the jurisdiction of the regulation over ISKCON's actions. In their concurring opinions, they seem to take the regulation's validity as a given, while most of their opinions are devoted to whether or not an airport construes a "Public Forum".
In addition, neither of the opinions are very convincing, in my opinion. Justice Kennard, while arguing that an airport construes a Public Forum, ends his opinion by stating that "reasonable time, place, and manner restrictions on expressive activities in public forums are valid." This does seem too neoliberal and ad-hoc as to create a chilling effect - after all, who should get to decide what is "reasonable" or not? Justice Chin's opinion seems to state that, because the airport has the purpose to "facilitate, process and serve the traveling public in getting to and from airline flights and moving into and out of the airport terminal areas in a safe, secure, convenient, and efficient fashion," that an airport setting should be construed as a nonpublic forum. Therefore, according to his opinion, since interstate highways have the specific purpose of moving the population from one place to another safely and efficiently, should they also be construed as nonpublic forums? What about subway stations? Or escalators?
In my opinion, the ruling on ISKCON has no real basis. In the Supreme Court discussions, the justices agreed that ISKCON can solicit religious materials, but it cannot solicit for direct funding. Their argument was that ISKCON has "ample alternatives [that] remain [to search for funding]." One of these alternatives, as suggested by the justices, is to "distribute 'self-addressed stamped envelope[s]' in the areas of the airport open to the general public," in order to find funding. In my opinion, while the statement is true, it is certainly not a justification for banning ISKCON from seeking funding at the LAX airport. The suggested alternative entails spending money on purchasing stamped envelopes, so that they can be given out to people who may or may not send in money - in other words, certain expenditures in order to bring in uncertain revenues. A somewhat paradoxical plan, especially as solicitation is free, and any revenues will be immediate and certain.
In conclusion, while some airport regulations on solicitation seem to have valid grounds, such as for unlicensed rides, others do not seem to have much grounds, according to the First Amendment. Certainly, I don't think there is anything regarding the soliciting of funds at a public forum that would make the imposition of a functional prior restraint justified. Through the analysis of Jews for Jesus and ISKCON, I definitely agree with the Jews for Jesus ruling much more than that of ISKCON. I believe that the regulations stem from the fact that neither the solicitation of rides or funds are licensed, which is costing the airport revenue. This is simply speculation, of course...but if it were true, is the unconstitutional regulation really worth the extra revenue? I don't believe so.
---
Bibliography
[1] http://mobile.chicagotribune.com/inf/infomo?view=top_stories_item&feed:a=chi_trib_1min&feed:c=topstories&feed:i=50785329&nopaging=1
[2] http://www.ohare.com/badging/Final7-15-05keep.pdf
[3] http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/jewsforjesus.html
[4] http://www.courtinfo.ca.gov/opinions/documents/S164272.PDF
[5] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9756742ov2&exact=1
However, based upon news reports of illegal soliciting at Chicago Airports [1], it seems that the government has a legitimate neoliberal reasoning for regulating the solicitation of rides at airports. These are twofold: economic, and safety. Firstly, because the private airport transportation system operates on a licensing system [2], the airport is losing revenue from the passengers that choose to take unlicensed vehicles. Secondly, numerous reports, such as the news article cited above, state the myriad of dangers that may befall passengers who unknowingly take unlicensed transportation at an airport. In a way, I consider the government's ban on illegal solicitation of rides as a functional form of prior restraint, even though it is in a form of a legislative statute.
As with all prior restraints, we must consider the following four conditions:
1) Serious
2) Imminent
3) Causation
4) Narrowly Tailoring
From the story in the Chicago Tribune, the dangers are definitely serious; passengers in unlicensed vehicles have gotten into physical violence and danger with the drivers after being charged exorbitant prices. The nature of solicitation makes it imminent, since as soon as a potential passenger acquiesces, the dangers immediately emerge. According to the news article, disagreements between the passengers and unlicensed drivers directly lead to conflicts, fulfilling the causation clause. Lastly, the statute seems to be narrowly tailoring: if you have a license, then you are exempt from this statute. Granted, I saw no sources which prove the usefulness of the licensing system, which would justify the application of the prior restraint statute on the solicitation of rides, but in my mind the reasoning seems sound enough. The judicial system seems to agree, since I could not find any cases regarding the constitutionality of the regulation on unlicensed solicitation of rides at airports.
Which is all and great for the safety of the passengers, but what about other types of solicitation at airports which do not lead to a clear-cut safety issue?
Let's take a look at the case Los Angeles vs. Jews for Jesus [3]. In this case, Snyder, a minister for the Gospel Jews for Jesus, was distributing free religious literature at the Los Angeles International Airport (LAX), and was notified that an LA resolution banning "all First Amendment Activities" at airports prohibited him from doing so. The Supreme Court ruled that the resolution was overbroad, and therefore unconstitutional. Along the way, the court also outlined three types of "forums of ideas":
1) Traditional Public Forum
2) Government-Designed public forum
3) Nonpublic Forum
The court placed the airport squarely in the "traditional public forum" category, which seems to make sense, since anybody could access the airport's public areas at any time. This ruling seems like a victory for the First Amendment.
Then, along came International Society for Krishna Consciousness of California (ISKCON) vs. City of Los Angeles [4]. On the surface, this case seems to be very similar to the Jews for Jesus case. There's a religious institution, ISKCON, at the exact same airport (LAX), doing almost the exact same solicitation of religious materials. The only difference: ISKCON was also soliciting funds in addition to spreading information about their religion. But somehow, this time the California Supreme Court ruled in favor of the regulation in question, saying that airports could regulate solicitation based on a time/place/manner ruling. Somehow, these two Supreme Court decisions do not seem to agree with each other.
We can first take a look at the nature of the regulation itself. The regulation in question for Jews for Jesus was considered overbroad, as it banned "all First Amendment Activities". The regulation on solicitation for ISKCON was much more narrowly tailored. It was defined by the case Los Angeles Alliance for Survival vs. City of Los Angeles, which laid down the following rules for solicitation: [5]:
1) No person shall solicit, ask or beg in an aggressive manner, in any public place
2) All soliciting prohibited at following locations:
a) Banks and ATMs
b) Motor Vehicles and Parking Lots
c) Public Transportation Vehicles and Stops
d) Restaurants
Now, if we were to apply the same prior restraint tests as in the case above for soliciting rides, it seems to fall short of being valid for this test. The term "aggressive manner" itself seems to be overbroad, as aggression is subjective from the viewpoint of the receiver. Though the rule attempts to define "aggression", the threshold for "fear" and "intimidation" is different for everyone. This would seem to create a chilling effect on the practice of solicitation, which otherwise would appear to be a valid contribution to the marketplace of ideas.
But even if we were to assume that the regulation itself were constitutional, the ruling by California's Supreme Court does not seem to make much sense. There is nothing in the discussion and majority opinions which address the first point of aggression in ISKCON's solicitation. As for the second point of the test, the airport does not fall under any one of the locations where solicitation is prohibited. The closest would be a "Public Transportation Stop", which is defined as "within ten feet of any designated or posted public vehicle stop." Therefore, I do not see why the regulation on solicitation even covers the actions of ISKCON. However, neither Justice Kennard or Justice Chin ever mention the problem of the jurisdiction of the regulation over ISKCON's actions. In their concurring opinions, they seem to take the regulation's validity as a given, while most of their opinions are devoted to whether or not an airport construes a "Public Forum".
In addition, neither of the opinions are very convincing, in my opinion. Justice Kennard, while arguing that an airport construes a Public Forum, ends his opinion by stating that "reasonable time, place, and manner restrictions on expressive activities in public forums are valid." This does seem too neoliberal and ad-hoc as to create a chilling effect - after all, who should get to decide what is "reasonable" or not? Justice Chin's opinion seems to state that, because the airport has the purpose to "facilitate, process and serve the traveling public in getting to and from airline flights and moving into and out of the airport terminal areas in a safe, secure, convenient, and efficient fashion," that an airport setting should be construed as a nonpublic forum. Therefore, according to his opinion, since interstate highways have the specific purpose of moving the population from one place to another safely and efficiently, should they also be construed as nonpublic forums? What about subway stations? Or escalators?
In my opinion, the ruling on ISKCON has no real basis. In the Supreme Court discussions, the justices agreed that ISKCON can solicit religious materials, but it cannot solicit for direct funding. Their argument was that ISKCON has "ample alternatives [that] remain [to search for funding]." One of these alternatives, as suggested by the justices, is to "distribute 'self-addressed stamped envelope[s]' in the areas of the airport open to the general public," in order to find funding. In my opinion, while the statement is true, it is certainly not a justification for banning ISKCON from seeking funding at the LAX airport. The suggested alternative entails spending money on purchasing stamped envelopes, so that they can be given out to people who may or may not send in money - in other words, certain expenditures in order to bring in uncertain revenues. A somewhat paradoxical plan, especially as solicitation is free, and any revenues will be immediate and certain.
In conclusion, while some airport regulations on solicitation seem to have valid grounds, such as for unlicensed rides, others do not seem to have much grounds, according to the First Amendment. Certainly, I don't think there is anything regarding the soliciting of funds at a public forum that would make the imposition of a functional prior restraint justified. Through the analysis of Jews for Jesus and ISKCON, I definitely agree with the Jews for Jesus ruling much more than that of ISKCON. I believe that the regulations stem from the fact that neither the solicitation of rides or funds are licensed, which is costing the airport revenue. This is simply speculation, of course...but if it were true, is the unconstitutional regulation really worth the extra revenue? I don't believe so.
---
Bibliography
[1] http://mobile.chicagotribune.com/inf/infomo?view=top_stories_item&feed:a=chi_trib_1min&feed:c=topstories&feed:i=50785329&nopaging=1
[2] http://www.ohare.com/badging/Final7-15-05keep.pdf
[3] http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/jewsforjesus.html
[4] http://www.courtinfo.ca.gov/opinions/documents/S164272.PDF
[5] http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=9th&navby=case&no=9756742ov2&exact=1
Tuesday, March 16, 2010
The Curiosities of Anonymous Libel
The internet is still a relatively new medium of communication for the common person, but its potential as an anonymous medium of communication has grown exponentially as more and more people become familiar with its capabilities. The problem with anonymity and privacy on the internet emerges if the messages or content that are posted conflict with areas of speech that are not covered by the First Amendment. This can include prior restraint, non-seditious libel, and obscenity. Internet obscenity and indecency cases such as Reno vs. ACLU, which concluded with the ruling that anti-indecency provisions in the Community Decency Act are unconstitutional [1], have generally been very libertarian in their opinions. In the ruling for Reno, the libertarian opinion protects the internet speaker's interests, while putting the burden of risk on the internet users.
However, the risk from encountering obscenity on the internet seems to be very different in nature to encountering libel on the internet. Anonymous libel can often be shown to be fighting words, directed at a specific party ; the potential for anonymous libel accusations is much higher than for distribution of obscene material ; and the harm from libel is often much more measurable and visible. However, since the internet users that initiate the libel can often hide behind the veil of anonymity of internet domains, one wonders how plaintiffs can ever win libel cases if their requests for identity subpoenas to the internet service providers are denied.
To win a civil libel case, a plaintiff must win in the following four points in the libel test[2]:
1) Publication: the libel must be published
2) Identification: the libel must identify the plaintiff without reasonable doubt
3) Harm: the libel must seriously shame, disgrace, ridicule, or injures a person's reputation.
4) Fault: negligence
In anonymous libel cases, such as the case of Doe vs. 2TheMart.com in 2001[3], or in Independent Newspaper vs. Brodie in 2008[4], the courts must grant subpoenas before the internet service providers must reveal the identities of the libelous internet users involved. In both of these cases, the libel was criticism towards corporate governance and management of companies or estates. The current existing test for granting subpoenas for identities of libelers was established by the Brodie case, and is as follows[5]:
(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;
(2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application;
(3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
(4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and
(5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s
identity, prior to ordering disclosure.
These two ruling and proposed tests have both been seemingly libertarian in their use, in favor of the privacy of the internet posters. The Brodie test narrows down the scope of the requirements for passing the subpoena test, reducing the chilling effect on criticism posted on forums, keeping the marketplace of ideas open, and putting the burden of proof on the plaintiff. The chilling effect argument has generally been used in favor of libertarian rulings on anonymous libel. [6]
However, I would like to argue that the Brodie test places the burden on the plaintiffs too much as to create a reverse-chilling effect, and provides a dangerous situation where anonymous internet posters can exploit the difficulty of the Brodie test in order to intentionally create anonymous libel to harm others. This stems from the fact that there are two tests that a plaintiff would have to fulfill in order to identify and persecute the source of the libel. The established test for libel is narrow enough to be generally applicable, but how should plaintiffs "balance the anonymous poster's [...] right of free speech against the strength of the [...] defamation presented by the plaintiff"? This language seems too broad and vague, and it is reasonable for the anonymous libeler to exploit this vagueness, especially if there is intention to cause harm to the plaintiff.
To illustrate this point, we can consider the case of the anonymity-based Wikileaks. Wikileaks is a website where anyone can upload documents and materials anonymously, and anyone can access the material anywhere. Wikileaks was one of the pathways for the distribution of the emails at the center of the "Climategate" Climate Research scandal, as well as for the "Petrogate" oil scandal in Peru in 2008 [7]. Most people would argue that the revelation of these materials is precisely what the First Amendment is meant to do.
To contrast this, imagine what would happen if anonymous users uploaded false documents specifically for the purpose of libel. In today's fast-paced world, it is extremely easy for libel to destroy a person's reputation, even if the libel can be proven to be false. For example, even though Michael Jackson was never convicted of child sexual abuse, 41% of people believe that he has[8]. If someone had created a fake picture of Michael Jackson molesting a child, and anonymously uploaded it onto Wikileaks, would the anonymous poster's right of free speech had outweighed the defamation against Michael Jackson enough for the court to grant subpoena? Let's take another example: if one of Toyota's American rivals had created an advertising video of a Toyota Prius speeding out of control and killing someone, and anonymously uploaded it ostentatiously for the purpose of sabotaging the sales of the Prius, how would American courts determine whether the right of free speech trumps the libel presented enough to grant subpoena?
Upon close examination, it would seem that the last requirement in the test for granting the subpoena is firmly rooted in neoliberal theory, and has the potential to be abused. There is potential for the test to be abused against the defendants, but the remaining 4 requirements help shield the defendants ; whereas it would seem that courts could arbitrarily rule that the plaintiff had not "balanced the anonymous poster's right of free speech with the strength of the defamation", refuse to grant subpoena, and therefore dismiss the entire case that the plaintiff has brought against the anonymous libeler. This could lead to long-term implications of benefiting political incumbents, since they could have the resources to launch a full-scale anonymous libel attack on an adversary, and the courts might rule to benefit the incumbents when the adversary files a libel suit. We can compare this with Madison's reasoning for the maximalist interpretation of the First Amendment, where he advocates against subsequent punishment, because it would benefit the political incumbents, and therefore be against the theory of democracy. The only difference is, in this case, it would be the lack of subsequent punishment that would be used to benefit the political incumbents.
From this analysis, I believe that the current subpoena test needs to be redefined as to shift some of the burden off of the plaintiff. Courts should not have the power to define the importance of the libel in question in a libel case, as this would make the system a neoliberal and ad-hoc system that is prone to abuse.
Bibliography:
[1] http://en.wikipedia.org/wiki/Reno_v._American_Civil_Liberties_Union
[2] http://www.splc.org/legalresearch.asp?id=27
[3] http://cyber.law.harvard.edu/stjohns/2themart.html
[4] http://www.citmedialaw.org/threats/brodie-v-independent-newspapers-inc-lawsuit
[5] http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-02-27-Maryland%20Court%20of%20Appeals%20Decision%20in%20Independent%20Newspapers,%20Inc.%20v.%20Brodie.pdf
[6] http://www.firstamendmentcenter.org/speech/internet/topic.aspx?topic=online_libel
[7] http://en.wikipedia.org/wiki/Wikileaks
[8] http://crime.about.com/gi/pages/poll.htm?poll_id=6822671701&linkback=
However, the risk from encountering obscenity on the internet seems to be very different in nature to encountering libel on the internet. Anonymous libel can often be shown to be fighting words, directed at a specific party ; the potential for anonymous libel accusations is much higher than for distribution of obscene material ; and the harm from libel is often much more measurable and visible. However, since the internet users that initiate the libel can often hide behind the veil of anonymity of internet domains, one wonders how plaintiffs can ever win libel cases if their requests for identity subpoenas to the internet service providers are denied.
To win a civil libel case, a plaintiff must win in the following four points in the libel test[2]:
1) Publication: the libel must be published
2) Identification: the libel must identify the plaintiff without reasonable doubt
3) Harm: the libel must seriously shame, disgrace, ridicule, or injures a person's reputation.
4) Fault: negligence
In anonymous libel cases, such as the case of Doe vs. 2TheMart.com in 2001[3], or in Independent Newspaper vs. Brodie in 2008[4], the courts must grant subpoenas before the internet service providers must reveal the identities of the libelous internet users involved. In both of these cases, the libel was criticism towards corporate governance and management of companies or estates. The current existing test for granting subpoenas for identities of libelers was established by the Brodie case, and is as follows[5]:
(1) require the plaintiff to undertake efforts to notify the anonymous posters that they are the subject of a subpoena or application for an order of disclosure, including posting a message of notification of the identity discovery request on the message board;
(2) withhold action to afford the anonymous posters a reasonable opportunity to file and serve opposition to the application;
(3) require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster, alleged to constitute actionable speech;
(4) determine whether the complaint has set forth a prima facie defamation per se or per quod action against the anonymous posters; and
(5), if all else is satisfied, balance the anonymous poster’s First Amendment right of free speech against the strength of the prima facie case of defamation presented by the plaintiff and the necessity for disclosure of the anonymous defendant’s
identity, prior to ordering disclosure.
These two ruling and proposed tests have both been seemingly libertarian in their use, in favor of the privacy of the internet posters. The Brodie test narrows down the scope of the requirements for passing the subpoena test, reducing the chilling effect on criticism posted on forums, keeping the marketplace of ideas open, and putting the burden of proof on the plaintiff. The chilling effect argument has generally been used in favor of libertarian rulings on anonymous libel. [6]
However, I would like to argue that the Brodie test places the burden on the plaintiffs too much as to create a reverse-chilling effect, and provides a dangerous situation where anonymous internet posters can exploit the difficulty of the Brodie test in order to intentionally create anonymous libel to harm others. This stems from the fact that there are two tests that a plaintiff would have to fulfill in order to identify and persecute the source of the libel. The established test for libel is narrow enough to be generally applicable, but how should plaintiffs "balance the anonymous poster's [...] right of free speech against the strength of the [...] defamation presented by the plaintiff"? This language seems too broad and vague, and it is reasonable for the anonymous libeler to exploit this vagueness, especially if there is intention to cause harm to the plaintiff.
To illustrate this point, we can consider the case of the anonymity-based Wikileaks. Wikileaks is a website where anyone can upload documents and materials anonymously, and anyone can access the material anywhere. Wikileaks was one of the pathways for the distribution of the emails at the center of the "Climategate" Climate Research scandal, as well as for the "Petrogate" oil scandal in Peru in 2008 [7]. Most people would argue that the revelation of these materials is precisely what the First Amendment is meant to do.
To contrast this, imagine what would happen if anonymous users uploaded false documents specifically for the purpose of libel. In today's fast-paced world, it is extremely easy for libel to destroy a person's reputation, even if the libel can be proven to be false. For example, even though Michael Jackson was never convicted of child sexual abuse, 41% of people believe that he has[8]. If someone had created a fake picture of Michael Jackson molesting a child, and anonymously uploaded it onto Wikileaks, would the anonymous poster's right of free speech had outweighed the defamation against Michael Jackson enough for the court to grant subpoena? Let's take another example: if one of Toyota's American rivals had created an advertising video of a Toyota Prius speeding out of control and killing someone, and anonymously uploaded it ostentatiously for the purpose of sabotaging the sales of the Prius, how would American courts determine whether the right of free speech trumps the libel presented enough to grant subpoena?
Upon close examination, it would seem that the last requirement in the test for granting the subpoena is firmly rooted in neoliberal theory, and has the potential to be abused. There is potential for the test to be abused against the defendants, but the remaining 4 requirements help shield the defendants ; whereas it would seem that courts could arbitrarily rule that the plaintiff had not "balanced the anonymous poster's right of free speech with the strength of the defamation", refuse to grant subpoena, and therefore dismiss the entire case that the plaintiff has brought against the anonymous libeler. This could lead to long-term implications of benefiting political incumbents, since they could have the resources to launch a full-scale anonymous libel attack on an adversary, and the courts might rule to benefit the incumbents when the adversary files a libel suit. We can compare this with Madison's reasoning for the maximalist interpretation of the First Amendment, where he advocates against subsequent punishment, because it would benefit the political incumbents, and therefore be against the theory of democracy. The only difference is, in this case, it would be the lack of subsequent punishment that would be used to benefit the political incumbents.
From this analysis, I believe that the current subpoena test needs to be redefined as to shift some of the burden off of the plaintiff. Courts should not have the power to define the importance of the libel in question in a libel case, as this would make the system a neoliberal and ad-hoc system that is prone to abuse.
Bibliography:
[1] http://en.wikipedia.org/wiki/Reno_v._American_Civil_Liberties_Union
[2] http://www.splc.org/legalresearch.asp?id=27
[3] http://cyber.law.harvard.edu/stjohns/2themart.html
[4] http://www.citmedialaw.org/threats/brodie-v-independent-newspapers-inc-lawsuit
[5] http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-02-27-Maryland%20Court%20of%20Appeals%20Decision%20in%20Independent%20Newspapers,%20Inc.%20v.%20Brodie.pdf
[6] http://www.firstamendmentcenter.org/speech/internet/topic.aspx?topic=online_libel
[7] http://en.wikipedia.org/wiki/Wikileaks
[8] http://crime.about.com/gi/pages/poll.htm?poll_id=6822671701&linkback=
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