Given this focus on press invasions, it is unsurprising that many scholars have seen their proposed new tort as interfering with the First Amendment guarantees of press freedoms. (See, e.g., Lorelai Van Wey’s Note, “Private Facts Tort: The End is Here.”) Ben Bratman’s 2002 law review article, “Brandeis & Warren’s ‘The Right to Privacy and the Birth of the Right to Privacy’” discusses the background of this issue in light of “the considerable focus that Brandeis and Warren placed on the print media and its alleged violations of privacy” (636).

In 1890, when Warren and Brandeis’ published their article, the First Amendment of the Bill of Rights had yet to be applied to the states, although many states had their own versions. Despite this, in many ways “freedom of speech and the press” was viewed in stronger terms then than now (despite the fact that the Alien and Sedition Acts of 1798 was never challenged by the Supreme Court). There was, for example, no perceived difference between commercial and political speech — both were granted the same level of protection. The nineteenth century juries Thomas Cooley’s position on the issue was generally considered the most persuasive:

The constitutional liberty of speech and ofthe press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals. (Bratman 637)

Warren and Brandeis were not unaware of this potential conflict, and carved out an exception to their proposed tort by adding a

“public interest” or “public character” exception to their tort, which recognized that the press or commercial photographers had to be free to record and report the actions of public characters and officials (Bratman 636)

In other words, even Warren and Brandeis, despite their argument that they were not inventing anything new at all, recognized that the right to privacy they were articulating had the potential to conflict with the guarantees of the First Amendment.

Image by takomabibelot via Flickr

The First Amendment to the United States Constitution is first of ten Amendments that constitute the so-called “Bill of Rights.” It originally bound only the federal government — not state governments — but after the Civil War, it slowly began to be “incorporated” through the Fourteenth Amendment to apply to the states as well. It reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

It consists of multiple parts:

1. The Establishment Clause, which forbids government support of any particular religion. This is also considered to be the foundation for the “separation of church and state”: the requirement that religious and governmental matters not overlap. It is not an absolute prohibition, and many conservatives see it not as requiring the removal of God or prayer from public life, but rather as a prohibition on establishing and promoting one specific state church.
2. The Free Exercise Clause, which generally forbids governmental interference in religious practices absent a “compelling state interest.”
3. Freedom of Speech, which generally — although not absolutely — protects the right to speak even if it offends others. The classic example of an acceptable limitation is that one may be punished for the harm that results from yelling, “Fire!” in a crowded theater. The protection is against government restrictions on speech, not private restrictions, although private restrictions that invoke state power (as with a libel action) are subject to First Amendment scrutiny as well.
4. Freedom of the Press, a right very related to the previous one, but focused more on publications than individuals. It is also subject to limitation (libel, for example). Regulation of broadcast media is not generally a violation of press freedoms, although content-based regulations are usually not allowable.
5. The Freedom of Assembly and to Petition, although directly stated, have rarely been ruled on by the Supreme Court. The general idea is that — subject to reasonable time, place, and manner requirements — citizens are allowed to gather and ask for a redress of grievances.
6. Freedom of Association is a right implied by the First Amendment, although not directly stated. Thus, political parties may exclude those of another party from voting in their primaries, and the Boy Scouts may exclude openly gay scoutmasters.

Although strong rights — the American right to speak is much stronger than that allowed under most European rights regimes, for example — none of the rights guaranteed under the First Amendment are absolute. All of them are subject to various forms of limitation and restriction, such as reasonable time, place, and manner restrictions on assembly and speech, punishments for libelous or slanderous speech, and so on.

Jack M. Balkin, from the Knight Foundation. CC BY-SA 2.0.

In “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” Jack Balkin (of the blog Balkinization) writes about what he sees as the appropriation of free speech ideals by media corporations in an effort to maximize their capital investments:

Thus, in the digital age, media corporations have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and expand their intellectual property rights. … Invoking a property-based theory of free expression, they have rejected arguments that public regulation is necessary to keep conduits open and freely available to a wide variety of speakers. (22)

Balkin sees this as reminiscent of a similar appropriation during the first Gilded Age of the 1870s and 1880s especially, when the “robber barons” grew wealthy and strong. Corporations of the time lobbied (and won) for new property rights and new constitutional protections against employment regulations (24). The abolitionists and others had celebrated the freedom to labor for whom one chose as a rejection of slavery; the corporations reinterpreted this as the “freedom of contract,” and used it to prevent government labor regulations (24). So, for example, when Congress passed a child labor law in 1916, the courts — drawing on the freedom of contract now enshrined as a principle in the Constitutional theory of the day — struck it down two years later (in Hammer v. Dagenhart).

Bilkin writes:

In what Clinton Rossiter called the “Great Train Robbery of Intellectual History,” laissez-faire conservatives appropriated the words and symbols of early nineteenth-century liberalism — liberty, opportunity, progress, and individualism — and gave them an economic reinterpretation that served corporate interests. … By the turn of the twentieth century, the best legal minds that money could buy had reshaped the liberal rights rhetoric of the 1830s into a powerful conservative defense of property that they claimed was the rightful heir to the best American traditions of individualism and personal freedom. (24-25)

Today, Bilkin said, we’re seeing a similar move: “The right to speak has been recast as a right to be free from business regulation” (25). Corporations have moved to extend copyright, making it both broader (covering more) and longer (lasting for 70+ years instead of the original fourteen years of 1790. ) They have also argued that networks should be freer than ever of government regulation, because such regulations — passed in the name of protecting the public’s speech — infringes on their freedom of speech.

(Interesting note: this move — discussed in Balkin’s 2004 article — is very similar to what happened with corporate money and speech in the 2010 Citizen’s United decision.)

The Irony of Regulatory Reform, by Robert Horwitz

Robert Horwitz’s The Irony of Regulatory Reform: The Deregulation of American Telecommunications, published in 1989, explores in depth the issue of telecommunications regulation at a time when telecommunications was once again in transition. My own interest is in the revolutions in communications technologies that occurred with the spread of American post offices in the 18th century, the telegraph in the 19th, and the telephone — and then radio, TV, and cable — in the 20th. Horwitz writes:

Telecommunications constitutes one of the four essential modes or channels that permit trade and discourse among members of a society, the other three being transportation, energy utilities, and the system of currency exchange, or money. … These services are “connective” institutions. They are central to the circulation of capital and literally constitute both the foundation and the limit for the overall functioning of a society. This is why … they are called infrastructures.

In 1989, deregulation of industries overseen by agencies created during the New Deal was in full swing. The irony for Horwitz is that “deregulation has most strongly affected those regulatory agencies whose actions have been least odious to business.” Thus, agencies created later and earlier than the New Deal were largely unaffected.

History

Looking backwards, Horwitz says that the “emergency of regulatory agencies constituted the building of a national administrative structures in a state which had been institutionally localistic and court-centered.” He argues that in the 19th century, the courts provided the oversight of economic development that would eventually be taken over by modern administrative agencies. This changed in the 1890s, after laissez-faire economic principles had created “a general crisis of social control.” The era of big business necessitated an (eventual) government response.

Image via Wikipedia

The Progressive Era saw the first new regulatory bodies emerge, largely “in response to popular political activism.” This gave us what would become the Food and Drug Administration, the Justice Department’s antitrust division, and the Federal Trade Commission. New Deal agencies, on the other hand, were created to bring stability to specific markets, and was generally greeted with enthusiasm by businesses desperate for such stability. In the 1960s and 70s, the regulatory focus shifted to more general social protections, especially of citizens as a whole. This was the era of the Environmental Protection Agency and the Occupational Safety and Health Administration.

The New Regulatory Agencies of the 20th Century

Regulatory agencies of the 20th century are a new phenomenon. According to Horwitz,

Regulatory agencies constitute a new structure of federal political power in the American political system; they represent a mixture of legislative, executive, and judicial functions.

In the American system of separated powers, they are an odd delegation of Congressional power: legislatively created, administered by the executive branch, and often given quasi-judicial responsibilities to hear and decide cases (with judicial review, of course, the level of which has varied over time).

Image via Wikipedia

While industry regulation serves a certain level of private interest — especially in the creation of stability — much regulation involves what Horwitz calls the “public interest”: “something larger, something more general.” Although the 20th-century regulatory agency was a new beast in the United States, “the construction and maintenance of infrastructures usually have been the responsibility of governments” as far back as 13th-century England (in the Anglo-American tradition, at least — but remember that the Roman state built aqueducts and roads much earlier, for example).

In the United States, the Commerce Clause justified federal government intervention. Because this economically focused rationale underpins the American regulatory approach, Horwitz argues that, “[i]f there is a general concept of the public interest informing state intervention into infrastructure industries, it is a commerce-based concept.” Thus, in regulation transportation, “nondiscrimination” has been key. The goal? To ensure “[t]hat carriers would serve the needs of commerce rather than inhibit commerce.”

Image via Wikipedia

In telecommunications, the “common carrier principle is really little more than a commerce-based notion of the public interest.” It “guaranteed access to the means of transmission.” Granting individual people access was really just “a logical extension of expanding the marketplace.” But despite this limited original impetus, “common carrier law embraces principles broader than commerce” as it made the telephone “available (in principle) to all citizens.”

Liberty

Image via Wikipedia

Telecommunications, though, involves essential aspects of liberty, especially the ideals of “free speech” embodied in the First Amendment to the United States Constitution. Freedom of commerce does connect to freedom of speech is historically linked to the liberal (in the tradition of Locke and Mill) ideology of the free market. Thus, the ideology of free speech has for many years been to encourage the “marketplace of ideas.” The assumption, says Horwitz, is that “a democratic public sphere will emerge consequent to the unimpeded, private actions of speech-entrepreneurs.”

But what happens when those “speech-entrepreneurs” are a few powerful corporations who demand significant money to utilize their infrastructure? The result can be that “those with wealth can disseminate their views, the First Amendment ‘right’ of most citizens is merely to listen and read. Yet a free marketplace of ideas implies dialogue.”

Image via Wikipedia

Today we have the Internet and the World Wide Web, which have the potential to turn everyone into contributors as well as consumers of information. Does this mean, then, that the natural form of these new mediums reduce of eliminate the necessity of their regulation? Or is regulation still needed to maintain a “free marketplace” of both ideas and commerce?

Deregulation

Deregulation can reduce the power of established cartels and allow for innovation and novelty: “It permits the resurgence of competition and the anarchistic play of market forces.”  This, though, is certainly not in the interest of established players — so why is modern deregulation so associated with big (entrenched) business?

Partly, says Horwitz, this is due to the divergence of “administrative rationality and economic rationality.” Regulatory agencies are conservative and bureaucratic by their nature, and the logic of rules be lost even as their enforcement continues. Irrationality — and the regulatory delay of agencies struggling to apply outdated rules to a complex environment — can lead to business uncertainty instead of stability. The burden on the regulated industries thus grows over time. This was made worse as the social goals of the 1960s and 70s created “new obligations, costs, and time delays.” The result? Deregulation won out in many — but not all! — contexts.

From Wikileaks via Wikipedia. CC BY-SA 3.0.

I am sympathetic to arguments that WikiLeaks has published information detrimental to United States interests, and that the publication of various diplomatic cables has made the job of the Department of State more difficult. Additionally, I am concerned that WikiLeaks does not have the same vested interest in the responsible evaluation, redaction, and publication of sensitive data as a traditional media outlet like the New York Times. Thus, for example, the recent release of “sensitive facilities” seems to have limited benefit, but potentially increases risks for these (non-military, often non-governmental) locations.

Despite this concern, I was struck by the applicability of the words of the United States Supreme Court to the publication of the so-called “Pentagon Papers” in 1971.

In that 1971 case, New York Times Co. v. United States, 403 US 713, the Court ruled against an attempt by the Nixon Administration “to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled ‘History of U. S. Decision-Making Process on Viet Nam Policy.”

“Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 70 (1963); see also Near v. Minnesota, 283 U. S. 697 (1931). The Government “thus carries a heavy burden of showing justification for the imposition of such a restraint.” Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971).

In his concurrence, Justice Black wrote:

The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. … In other words, we are asked to hold that despite the First Amendment‘s emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of “national security.” … The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.

Justice Douglas added:

It should be noted at the outset that the First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” That leaves, in my view, no room for governmental restraint on the press. … The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental suppression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). … Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be “uninhibited, robust, and wide-open” debate. New York Times Co. v. Sullivan, 376 U. S. 254, 269-270.

Not every Justice agreed, but protecting the right to publish, despite government claims of national security, prevailed.

While I the circumstances of WikiLeaks’ publications in 2010 are not the same as that involving the New York Times in 1971, I am nonetheless struck by the similarities. Beyond WikiLeaks status as a non-traditional news publisher, why is this any different from publishing the Pentagon Papers? Are the national security concerns greater? Is the risk to the United States higher? Is the damage higher? I’m still trying to decide.

Related articles

• Why the First Amendment won’t necessarily protect WikiLeaks. (slate.com)
• Like It or Not, WikiLeaks is a Media Entity (gigaom.com)
• EFF: Online Speech is Only as Strong as the Weakest Intermediary (eff.org)

The core constitutional issues in the case are whether signing a ballot measure petition is a form of political speech, whether, if it is protected by the First Amendment, it includes a right to sign without official public disclosure, what standard is to be applied when judging regulation of such a First Amendment right, and what government interest supports disclosure rather than confidentiality for signers’ identities.

via SCOTUSblog » Court to rule on petition-signers’ rights.

Opponents of gay marriage and similar laws argue that the state should not release the names of those who sign petitions (such as those supporting their position), because doing so might make signers targets and thus stifle their sense of freedom to freely express their opinions. (The argument is, in essence, the core of why we have secret ballots in actual voting.) Exposing signers to potential harassment for their views, then, would stifle their ability express their political views by signing petitions they support.

But is this really a free speech issue? That is, should anonymity of expression be protected as part and parcel of the First Amendment? After all, we’ve seen a number of instances where corporations and governments have tried to force journalists to reveal their anonymous sources, and have even jailed journalists who refuse. And many of us have witnessed or experienced the de-anonymizing influence of the modern Internet, where everything posted online tends to become public. So how can signing a petition  — usually in a public place, often with witnesses  —  give you protected anonymity? Is this even a Constitutional issue at all?

The Supreme Court has granted protections in the past to anonymous communications as part of First Amendment protections of free speech. For example, in In McIntyre v. Ohio Elections Commission, the Supreme Court struck down an Ohio law that prohibited the anonymous distribution of campaign literature, writing:

Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. … It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation  —  and their ideas from suppression  —  at the hand of an intolerant society.

First Amendment law can be complicated, and involves balancing a number of factors. In addition, there is a difference between government involvement (in this case, Washington acting as a state to enable publication of names), private actions (your employer discovering your anonymous criticisms of the company, and firing you), and court involvement (subpoenas, rulings that order journalists to reveal sources in court, and so on).

Personally, I always assumed (without ever giving it any deep thought or legal analysis) that my signature on a ballot initiative was a public record. After all, I’m signing it in public, it needs to be verified as legitimate to count, I’m providing my name and address  —  it certainly never felt anonymous to me. That’s why I always insist on reading what I’m signing, considering the issues, and only signing what I actually agree with, instead of signing just to make the petition-gatherer go away.

So my gut tells me that such signatures should be public, but only because I always assumed they were anyway. I’ll be curious to see where the Supreme Court comes down on this, since the lower courts have gone both ways.

For more on this, see:

• U.S. Supreme Court could be next stop for R-71 from the Seattle P-I, quoting legal scholars giving their opinions
• Ninth Circuit Overturns Preliminary Injunction Restraining Release of Names of Anti-Domestic-Partnership Petition Signers in Washington State at The Volokh Conspiracy
• The Ninth Circuit decision that concluded that Washington could release the names of signers in the interest of transparency and accountability, and that this was not a question of “anonymous free speech” anyway, since signing a petition was not anonymous at all.

The relatively high risk of chill associated with third party copyright liability suggests that the First Amendment is particularly relevant to the proper construction of this area of law. Indeed, First Amendment principles have a great deal to say about the use of vicarious liability, contributory liability, and inducement, as well as the appropriateness of presumed damages in third party copyright liability.

via Legal Theory Blog: Yen on Third Party Copyright Liability & Freedom of Speech.

As Chen points out, copyright has generally been treated as fully compatible with the First Amendment. This is true even though third party liability  —  that is, liability by a newspaper, an Internet service provider, or similar  —  has the potential to stifle speech without the same potential encouragement of speech potentially provided by copyright’s incentives to creation.

In the article, Chen New York Times v. Sullivan and Gertz v. Robert Welch to provide insights into the potential chilling effect of third party liability on speech. Although he labels the article as “preliminary thoughts,” I think he is on to something.

Recommended.

Related articles by Zemanta

• Copyright’s Paradox: a book by Neil Netanel (inpropriapersona.com)
• Social Science Research Network (SSRN) (inpropriapersona.com)

France’s highest court, the Constitutional Council, ruled that access to the internet is a “fundamental human right” this week in striking down a controversial “three strikes” anti-piracy law.

via Is Internet Access a Fundamental Human Right? France’s High Court Says Yes.

The decision, in paragraph 12, goes back to the 1789 Declaration of the Rights of Man and Citizen to say ground its decision in terms of free expression of thoughts and ideas:

La libre communication des pensées et des opinions est un des droits les plus précieux de l’homme : tout citoyen peut donc parler, écrire, imprimer librement, sauf à répondre de l’abus de cette liberté dans les cas déterminés par la loi. (The free expression of thoughts and of opinions is one of the most precious rights of humanity: all citizens  can speak, write, freely print, except in cases of abuse as determined by law.)

Nonetheless, the court does not say that restrictions as in HADOPI are unconstitutional, since they also clearly point out (as the quote above says) that rights of free expression can be limited to prevent “abuse” – such as to prevent copyright infringement. However, in American legal terms, I might call this entire section “dicta,” but the French civil law system is different, of course. Despite connecting internet access to the fundamental right to freedom of speech and thought, this was not the basis for the court’s decision, although it certainly informed it.

Instead, several other, perhaps equally important concepts, are at issue:

1. The French legal system requires a presumption of innocence, and the legislature cannot change this. (See paragraph 17 and 18.)

2. The sanction, after three reported incidents of infringement, involved cutting off Internet access. The court believed, essentially, that this was too great a sanction to allow a mere administrative agency the power to implement it. (This is clearly informed by an idea of Internet access facilitating free communication, and thus comes closest to making Internet access part of such a right). (See paragraph 16.)

3. While the legislature can balance the right of privacy and the protection of intellectual property, entrusting a private entity with surveillance powers unconstitutionally interferes with the right to privacy. (See paragraphs 26 and 27.) As part of this, in paragraph 30, the court also forbid monitoring or interception of private communications in order to combat copyright infringement.

An interesting ruling that, while it does not quite equate Internet access to other human rights, certainly suggests that it might be a component in freedom of expression – certainly I can imagine a parallel to destroying a newspapers printing press, for example, as having a similar chilling effect on expression.

Related articles

• France, the EU, and Internet Speech (volokh.com)
• Hadopi : la décision du Conseil Constitutionnel expliquée…
  (fr.readwriteweb.com)
• French court savages three-strikes law, tosses it out (arstechnica.com)
• France Rejects Three Strikes Law … For Now (mashable.com)