Category Archives: Uncategorized
Anti-Semitism is on the rise in Europe, especially in France and Germany. One outlet for anti-Semetic commentary has been twitter. In France, the hashtag #unbonjuif (literally “a good Jew” has been used to spread anti-Semetic jokes. It is now the 3rd most popular hashtag in France.
In France, as well as Germany, the notion of “Free Speech” is not protected as it is in the United States. Germany for example, has outlawed anti-Semetic speech as a whole, something unthinkable in the U.S. The French government is seeking to crack down on the use of twitter to spreed anti-Semitism. The problem is individuals can use twitter anonymously, and twitter servers are offshore and are generally cannot be subpoenaed in French Courts. The solution is this, sue twitter. From France24.com.
According to French lawyer and online media specialist Gérard Haas, Twitter, as a publisher, is legally responsible for the content of its website, just as much as its individual contributors.
He told FRANCE 24 that the only solution for anti-racism organisations was to target individual tweeters and “sue, sue, sue” in response to last week’s anti-Semitic Twitter binge.
“Twitter has to improve its reaction to events like these so that the justice system can quickly identify who has made posts that are illegal under French anti-racism laws,” he said.
While this is happening in France, if a similar situation were to happen in the United States, this course of action could not happen. First, as tasteless and repugnant as anti-Semetic speech is, it is still covered by the first Amendment to the Constitution as free speech, with very little exception.
Even if that were not the case, twitter is protected by the Section 230 of the Communications Decency Act. Most people know the Communications Decency Act as the anti-internet-porn act of 1996. Well, less than a year later, the anti-pornography provisions were largely struck down by the United States Supreme Court in Reno v. ACLU. However, the safe harbor provisions and section 230 still remain.
Section 230 basically gives websites and servers immunity from any slanderous or defamatory communication posted by a third party, stating in part “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. The key part being “publisher or speaker”. In tort law, a publisher (anyone who prints or repeats the defamatory communication) of information has the same liability as the original speaker. Without that provision, then twitter would be liable for everything everyone posts on its webpage, as would facebook, or any blog or news source with a comments section. So hooray for forward thinking which allows us to have forums to express our thoughts freely, without them having to bear the costs of our own stupidity… for now…
I apologize for my absence. Between work, buying a house, remodeling said house, and moving from old condo to new house, I have had no time to think, let alone blog. Now life is getting back to a state of “normal”, whatever that means.
Starting today, I am back to blogging. Feel free to ask any questions on cyber law issues that come up. Also, please visit the Skyles Law Group website, to take a look at my firm and the business we do. There is an interesting feature on almost all the pages, where you can make a legal inquiry directly from the site, without having to email or call the office.
I usually do not blog on political issues, or issues as related to law outside the realm of digital media law or cyber law. I had actually planned to write an interesting article about e-discovery today, but I have been requested by friends to address today’s ruling on the Affordable Health Care for America Act, as decided in today’s decision of National Federation of Independent Businesses v. Sebelius, No. 11-292 (S.C.O.T.U.S., June 28, 2012).
All politics aside, my first feelings foremost are that courts should rule on issues as a matter of law, not politics. As Robert Bolt, under the character of Thomas More, wrote in the play A Man for All Seasons, “Men must rule themselves by their wits, this court must rule according to the law” (Act 2, Scene 9). The most important part in my opinion is not that the law was upheld under the tax and spending provisions under the constitutions, it is that the Court has limited the use of the Commerce Clause, stating specifically that it cannot be used to force individuals to make purchases in the stream of commerce. More importantly, the Supreme Court has limited the power of the federal government to bully the states into enacting state laws that bend to their desires.
From a Constitutional Law perspective, the Commerce Clause is the bane of every law student’s existence. It has been used to expand the powers of government, for good and for evil. In Civil Rights law it was used to end laws discriminating against African Americans, who wanted to eat at lunch counters. During the Great Depression, it was (and is still being) used to regulate crop production, even when the crops are for personal use. It is currently the reason why Amazon Taxes are probably unconstitutional. In general the Commerce Clause has been used to increase federal government power, and decrease the ability of the states to exercise powers left to them in the Constitution. By stating that the Commerce Clause cannot be used to force individuals to purchase health insurance, this is the first time, at least that I have seen, that the Supreme Court has limited the power of the federal government under the Commerce Clause.
Likewise with the Necessary and Proper clause, likewise, has been a source of almost limitless power of the Federal Government. This too has been limited in stating that the Federal Government cannot use this power as a means to force individuals to purchase health insurance.
The only measure that survives is the Tax and Spending clause, which the Constitution states explicitly, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (U.S. Const. art. 1, § 8, cl. 1.). By doing so, the provision which forces the individual to pay a fine if they do not purchase health insurance is now qualified as a tax. As a matter of practicality, when an individual refuses to purchase insurance, that act triggers an extra payment to the IRS on their tax return. So the court concluded under the tax and spending clause, such a payment would qualify as a tax.
The other significant portion of the Act, dealt with state mandated medicare payments. This, in my opinion, is a really big one. As we know from history, the federal government from time to time will threaten to withhold funding to the states to finance federally mandated programs if they do not comply with some aspect of federal law. The most common example was when the federal government threatened to withhold federal highway funds to the states, if the states did not raise their drinking age to 21. In this case, the Federal government threatened to withhold all medicaid funding if they did not raise their eligibility to everyone whose income was within 133% of the federal poverty guidelines. The court said emphatically, that the federal government could not do that, describing the matter not as encouragement but as a “gun to the head” of the states. This again, limits the ability of the federal government to coerce the states into acting at their behest.
Lets look at the tally.
Commerce clause can enforce individual mandate No: Roberts, Scalia, Alito, Thomas, Kennedy
Yes: Ginsburg, Kagan, Sotomayor, Breyer
Necessary and Proper clause can enforce individual mandate: No: Roberts, Scalia, Alito, Thomas, Kennedy
Yes: Ginsburg, Kagan, Sotomayor, Breyer
Tax and Spending clause can enforce individual mandate: No: Scalia, Alito, Thomas, Kennedy
Yes: Roberts Ginsburg, Kagan, Sotomayor, Breyer
Federal Government can coerce states to change Medicaid laws: No: Roberts, Scalia, Alito, Thomas, Kennedy, Kagan, Breyer
Yes: Ginsburg, Sotomayor
So, in other words, this court limited the power of the federal government in three key ways, while still receiving the adulation of the President who’s mission it has been to increase the power of the federal government. It may seem genius, but I don’t think that is how the Chief Justice intended for this to happen. I think he was aiming for a 6-3 vote to avoid a split 5-4 opinion, and it backfired. When the Supreme Court goes into conference after oral arguments, the Chief Justice is always the first to speak and the first to vote. I think he was trying to do so in a way to entice Justice Kennedy to side with him and make it an all around 6-3 decision at least on the tax and spend clause, to make the court appear less partisan. It didn’t work because Justice Kennedy decided to support the more conservative block.
The Chief Justice is an intelligent man, who I agree with philosophically on the nature of the law. It is not up to the Courts to determine whether or not a law is wise, that is the purview of the congress and the people. It is merely the court’s responsibility to determine whether the laws are constitutional. In this, I think he is the least activist, and least partisan member of the court. He approaches the law, not with a result in mind, but with a strong mind and strong legal reasoning. He has here, as he has in the past, left it to congress to determine the laws by which we the people will be governed. I think we have a better means to predict how the court will rule in future occasions.
Being one of the first firms to specialize in this particular area, I was somewhat disappointed to see that the big firms have finally caught on to what we are trying to do here. I only hope I don’t end up being muscled out. Better yet, I hope to ride the wave into converting my little boutique firm into one of those large firms that can bill $500 per hour. Then again, I do want to maintain my soul.
From the Washington Post:
“There were literally two lawyers in the whole country who did that,” said Ingis, co-chairman of the privacy and data security practice at Venable in Washington. “Flash forward to today, every firm in the country has or wants to have a privacy practice. And it’s really a data practice. You have whole bunch of new businesses where a lot of the growth is about figuring out how to use data better, how to store data, where to store it, and who can access it … What had been a boutique practice with a narrow focus [has become] one that is very mainstream.”…
“The level of attention and sophistication companies are giving privacy and data security has escalated dramatically over the years,” said Kurt Wimmer, U.S. chairman of Covington’s global privacy and data security group. “It’s a response to the increasing attention regulators, plaintiffs lawyers, Congress and everyone else is giving privacy these days.”
I would suggest to anyone out there with internet law issues, stick with the smaller firms. Your issues will be taken seriously, and you will receive more attention. You won’t become just another number on the Bate’s stamp. I can do anything that the larger firms can do, more efficiently and for less cost.
I met Duane Lester from All American Blogger when I spoke at a blogger conference in Charlotte, NC a few weeks ago.
Last week I got a tweet from Duane. Turns out a small news paper had taken a blog post of his, copied it almost verbatim, and published it in their newspaper. They did not get his permission. They did not attribute the source to him. So here was my complete non-legal advice.
So that is what he did. He wrote a letter to the paper, he attached a bill. He delivered the letter, and in the end, he got a check from the paper for $500.00. He also videotaped the encounter and posted it on his blog. This all can be seen here.
This entire episode shows that the law is a double edged sword. The advice about posting and attributing to bloggers, applies to news publications. You cannot copy and republish an article without violating someone’s copyright. Bloggers can’t do it. Newspapers can’t do it. Select what you want to use, a small fraction of the original work, attribute it, and add your own content, at least double of what you copied at bare minimum. More would be better.
I also encourage bloggers to actually develop relationships with local newspapers. See if you can get what you write republished with permission, and perhaps actual payment. This way, they get content, you get attribution, publicity, and maybe a little cash.
Disclaimer: This blog post contains no actual legal advice. It is difficult to dispense comprehensive legal advice on the internet. If you find the information on this site interesting and insightful, great. But before you rely on any of this advice, please consult a legal professional with the specific details of your case or controversy.
It’s not surprising that when a politician doesn’t like what is being said about him or her, they go on the offensive. So when I heard that a blogger from Georgia was being sued for defamation, interference with business practices, and negligent infliction of emotional distress, I wanted to look into it further.
The short story is Andre Walker, a former Democrat turned Republican, blogs about Georgia Politics on Georgia Unfiltered. One of the targets of his blog is Georgia Democratic Party Political Director Ali Rashad Richey. Walker did some digging into public records and found some unsavory information about Richey, including convictions, paternity tests, and unpaid child support. Most shockingly, he found out that Richey was on the payroll of a Democratic Party state senator, while he was in jail.
The law suit is a classic SLAPP suit, or Strategic Lawsuit Against Public Participation. I have written about this extensively before. Georgia does have an Anti-SLAPP law, but it is very weak. It only applies to legislators who are suing others as a means of intimidating them into silence about pending legislation.
The crux of the defamation lawsuit was the accusation that Richey was a convicted felon. Whether he was or not is a significant issue, but what is important to this is whether or not bloggers are afforded the same first amendment rights as any other journalists. It appears that the Georgia Democratic Party doesn’t seem to think so.
Georgia has a requirement that before anyone can proceed with a suit for defamation, be it slander or libel, they must first make a request for retraction. (Ga. Code Ann. § 55-5-11,12. for libel and slander respectively). It appears from the wording of the complaint that the complaint that there was no retraction requested. Instead, the retraction is a part of the damages demand. It seems that the only way that Richey would be able to succeed here is to argue that a blog is not a “publication”. Would they also argue then that the First Amendment rights do not apply to journalists?
Libel or Slander?
It appears as well that Richey’s attorneys do not know how to consider a blog as a publication. They decided to sue for both libel and slander. In general, libel only applies to the written word, while slander applies to the spoken word. In the complaint, the counts for libel and slander pretty much say the exact same thing, except one says “libel” and the other says “slander”. So which one is it?
The Likely Result
In the end, the lawsuit this lawsuit is not about winning. It is about intimidation. They want to silence Walker from saying anything about Richey, so they are suing him to scare him into silence. That is how a SLAPP suit works. Lawsuits are expensive to defend. Often times it is easier to shut up than defend against the lawsuit, even though you will eventually win, and probably get attorney’s fees taboot.
It does again illustrate the need to develop insurance and legal defense programs for bloggers. There is something on its way for bloggers. Stay tuned.
I am beginning to think that Facebook scares judges because they just don’t know what to do with it. There is next to no case law on free speech and the internet. Facebook is so vacant from the judicial records that when I went to look up “facebook poke” on Lexis, I received no results.
Now comes a ruling from the United States District Court for the Eastern District of Virginia. In order to dismiss a complaint by plaintiff’s against their former employer, Judge Raymond Jackson has ruled that “liking” something on facebook is not constitutionally protected free speech.
The case of Bland v. Roberts stems from an incident where two Hampton’s Sheriff’s employees were fired, ostensibly for not supporting the re-election campaign of Sheriff B.J. Roberts. In fact they went so far as to “like” the facebook page of Robert’s opponent, Jim Adams. The two plaintiff’s in this case did not have their contracts renewed, along with 4 others out of a total of twelve, who in some way shape or form expressed support for Robert’s opponent. A few things to note. The First Amendment guarantees, amongst other things, two very important freedoms, freedom of speech and freedom of association. Supreme Court rulings have sided with both to where an individual cannot be fired for their political affiliation, and a person cannot be fired for engaging in political speech. In this case, the two plaintiff’s political speech was limited to “liking” Adam’s campaign on facebook. The judge said that this does not amount to free speech guarantees under the first amendment. In his opinion you have to do more than that.
However, the Sheriffs knowledge of the posts only becomes relevant if the Court finds the activity of liking a Facebook page to be constitutionally protected. It is the Court’s conclusion that merely “liking” a Facebook page is in sufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protection sex tended to Facebook posts, actual statements existed within the record. For example, in Mattingly v. Milligan, Mattingly posted on her Facebook wall referring directly to the firing of various employees.
So in other words, if you just like the opponents campaign, you can get fired. If you say something to support the opponent on their facebook wall, that speech is constitutionally protected. Ironically, I am pretty sure they merely “liked” the campaign because they were afraid if they did anything more they would get fired. So I guess, with your politics, be loud and proud and in your face, then you will be afforded constitutional protection… at least by Judge Jackson.
Here we have yet another reason why bloggers need advocacy.
A blogger writing a blog on his personal experiences combating diabetes using the “paleo-diet”, is threatened with a government mandate which could send him to jail for “practice of dietetics or nutrition” without a license. The blog, Diabetes-Warrior.net, was started as a result of the blogger, Steve Cooskey changing his lifestyle in his fight against diabetes after he was hospitalized in 2009.
The complaint comes from the state diatetics and nutrition board, which regulates the dietician profession. In order to avoid jail he needs to virtually shut down and delete his blog. This is in spite of the fact that he placed this disclaimer on every post ““I am not a doctor, dietitian, nor nutritionist … in fact I have no medical training of any kind”.
From the Carolina Journal:
Declan McCullagh, a CBSNews.com correspondent who writes about online free speech, says the board probably is violating Cooksey’s First Amendment rights.
“The First Amendment says state and federal governments ‘shall make no law’ abridging freedom of speech,” McCullagh said. “It doesn’t say ‘except for what annoys the North Carolina Board of Dietetics and Nutrition.’”
McCullagh pointed to a sentence in Cooksey’s blog the board didn’t approve of: “I do suggest that your friend eat as I do and exercise the best they can.”
“If that language appeared in a book or a magazine article, do you think the board would complain?” McCullagh asked. “How about if someone said that to a friend over dinner at a restaurant? Of course not. But because it’s on the Web, they seem to think that the First Amendment no longer applies.”
A couple of key points. If Cooskey was offering paid services then the state would have a case. However, blogging would have nothing to do with the paid services, the paid service itself would be the violation. Anyone can offer lay opinion. News editorials offer lay opinion on legal issues all the time (and they are more often than not wrong). Are they practicing law without a license? Clearly not. Their activity is covered by the first amendment. The same applies here.
On my blog, on posts where I opine on legal situations, I always include a disclaimer stating that the information contained is not legal advice, and that the reader should consult a lawyer before doing anything. If Cooskey’s disclaimer is not enough, then what is to say my disclaimer is enough, should someone decide to act on the advice given?
I recently spoke on a panel discussion on legal issues facing bloggers at BlogCon 2012 in Charlotte, NC, generously sponsored by FreedomWorks, and the Franklin Center for Government and Public Integrity. I intended to discuss a very important case currently being litigated in the United States District Court for the District of Oregon, but ran out of time.
In my opinion, this case shows the need for first amendment issue advocacy on behalf of bloggers, and also expressly shows why it is important for bloggers to have insurance.
The facts of the case are simple. The defendant made statements on her blog which may have been defamatory. The Plaintiff filed a defamation suit against the defendant. The judge dismissed on summary judgment all but one of the issues contained in the complaint (a summary judgment is where a judge rules that there is no issue that needs to be brought to trial, and that as a matter of law, the case is decided in one way or another). On the one issue that remained, the judge ruled very strongly against the first amendment rights of bloggers.
While the court stated that shield laws did not apply, due to the information being allegedly defamatory, the Court also opined on how shield laws should apply to bloggers.
Defendant contends that she does not have to provide the “source” of her blog post because of the protections afforded to her by Oregon’s Shield Laws. I disagree. First, although defendant is a self-proclaimed “investigative blogger” and defines herself as “media,” the record fails to show that she is affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Thus, she is not entitled to the protections of the law in the first instance.
So, shield laws do not apply to bloggers because they are not “media” because they are not affiliated with any newspaper, magazine, periodical, book, pamphlet, news service, etc. etc. This is an important factor to think about. Is it a requirement under the law to be “affiliated” with a news service to be considered “media”? This is particularly interesting because the law cited in the previous paragraph states that the “Medium of Communication” is broadly defined, and is not limited to “News papers, magazine, periodical, etc.”. So is the court here narrowing the scope of the definition of “Media” to explicitly exclude bloggers?
Anti-SLAPP and the First Amendment
Oregon has an anti-SLAPP law. The defendant made the mistake of not attaching the anti-SLAPP motion at the outset, however the judge said that this didn’t matter because in this case the First Amendment protections did not apply in the first place. If the plaintiff is a public figure, then in general, the plaintiff has to prove that the defendant had “actual malice” in stating the false or defamatory statement (see. New York Times v. Sullivan, 376 U.S. 254 (1964)). In this case the judge ruled that the plaintiff was not a public person or even a limited public person, so actual malice is not the standard. This is not the important part. If the person is not a public person, then the plaintiff still needs to show that the defendant was at least negligent in their publication of the false or defamatory comment (Gertz v. Welch 418 U.S. 323 (1974)). The court ruled that Cox was not a media defendant, and so Gertz did not apply, therefor not allowed the First Amendment protections afforded to the media.
Defendant fails to bring forth any evidence suggestive of her status as a journalist. For example, there is no evidence of (1) any education in journalism; (2) any credentials or proof of any affiliation with any recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact-checking, or disclosures of conflicts of interest; (4) keeping notes of conversations and interviews conducted; (5) mutual understanding or agreement of confidentiality between the defendant and his/her sources; (6) creation of an independent product rather than assembling writings and postings of others; or (7) contacting “the other side” to get both sides of a story. Without evidence of this nature, defendant is not “media.”
Again, we have the court applying a test to define what is and what is not considered “media”. The court stated that the defendant showed no evidence to define her as media. But, should she have to? Shouldn’t the court rule in favor of First Amendment protections, and leave it to the defense to prove in front of a jury that she is somehow “not” media? How can this be a ruling as a matter of law?
Need for Advocacy
Cases like this are likely to come up, and judges are likely to rule in the very same matter. This is why bloggers need advocates. They need advocates to reform legislation to specifically mention “bloggers” as media because the nature of media is changing, and the courts are slow to recognize this. With the shuttering of many small market newspapers and the shift of the remaining groups away from expensive investigative reporting, it has been up to bloggers and online media groups to pick up the slack. They cannot do it alone, there needs to be cohesion amongst bloggers to protect their first amendment rights. There needs to be active advocacy on behalf of bloggers.
Need for Insurance
As I stated last week at BlogCon, bloggers need insurance, and this case is a prime example of why. Originally the defendant defended herself pro se, and I speculate she did so because she could not afford legal representation. This was largely a mistake and she lost largely because she did not have the necessary legal training. But more importantly the amount in controversy is $2.5 Million. $1.5 Million to the Finance Group, and $1 million to the named plaintiff. This types of lawsuits have the potential to render many bloggers destitute for merely exercising their first amendment rights. Insurance could have the effect of both helping to pay litigation costs, and making payouts in the event the defendant loses. Like I stated before, insurance programs for bloggers are in development. In the mean time, bloggers need to check to see if they are covered under their existing insurance programs
The entire court opinion can be read here.