Archives for Constitutional Law

Sarah Palin v. the Media

Sarah Palin has indicated that she may file a defamation lawsuit against the New York Times for an editorial falsely linking her to the 2011 shooting of Rep. Gabby Giffords. Defamation lawsuits are especially difficult for public figures to prove, but she appears to have a pretty solid case. More importantly, the information she gathers through discovery would have sweeping ramifications, including concrete evidence of media bias against conservatives.

The Editorial & Correction

The Times published its editorial titled “America’s Lethal Politics” on June 14, in response to the recent shooting of Rep. Steve Scalise. Here is the relevant excerpt:

In 2011, when Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl, the link to political incitement was clear. Before the shooting, Sarah Palin’s political action committee circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs.

The Times subsequently back-peddled and modified the text as follows:

In 2011, Jared Lee Loughner opened fire in a supermarket parking lot, grievously wounding Representative Gabby Giffords and killing six people, including a 9-year-old girl. At the time, we and others were sharply critical of the heated political rhetoric on the right. Before the shooting, Sarah Palin’s political action committee circulated a map that showed the targeted electoral districts of Ms. Giffords and 19 other Democrats under stylized cross hairs. But in that case no connection to the shooting was ever established.

The following correction notice is now posted below the revised article:

An editorial on Thursday about the shooting of Representative Steve Scalise incorrectly stated that a link existed between political rhetoric and the 2011 shooting of Representative Gabby Giffords. In fact, no such link was established. The editorial also incorrectly described a map distributed by a political action committee before that shooting. It depicted electoral districts, not individual Democratic lawmakers, beneath stylized cross hairs.

The Times therefore admits that it made two mistakes: (1) it falsely stated that Gov. Palin’s PAC was linked to the Gabby Giffords shooting, and (2) it falsely stated that Gov. Palin’s PAC circulated materials that placed Giffords and others under stylized cross-hairs. This article was published not by the Editorial Board, which is the collective voice of the publication. That is a very bad look.

Elements of Proving Defamation in New York

But, was it legally defamatory? Let’s take a look at the elements for proving defamation in the State of New York.

She would need to prove the existence of a false statement published to a third party without privilege or authorization, with actual malice, that either causes special harm or constitutes defamation per se. The general categories of defamation per se include allegations that the plaintiff was involved in criminal activity; has a loathsome, contagious, or infectious disease; was unchaste or engaged in sexual misconduct; or acted inappropriately in her business, trade, or profession.

Gov. Palin can prove most of this with ease. The Times admittedly published two false statements about her to its readership with no privilege or authorization, and I suspect she can prove damages in some form. Note, however, that she would need to prove that the Times acted with actual malice. This is the challenging part of the inquiry.

Defamation law imposes a heavier burden on public figures than private figures. A private figure would only need to prove that the Times was negligent in printing the false information; in other words, the Times didn’t do its homework. Actual malice, on the other hand, requires clear and convincing evidence that the Times either knew the statements were false or acted with reckless disregard for the truth. It requires more specific evidence than the Times‘ general dislike of Gov. Palin.

This is a heavy burden requiring proof of the defendants’ mindset, and it shows why it’s so difficult for public figures to successfully sue for defamation. The Supreme Court established this rule as a matter of constitutional law, ironically in the case of New York Times Co. v. Sullivan.

Analysis

I can see both sides of this argument. Gov. Palin could argue that the Times has the expertise and resources to diligent research its statements, but its Editorial Board’s disdain for Gov. Palin caused it to neglect cursory fact-checking that is readily available online. After all, the Times is not some small-time blog; it’s a world-renowned publication that attracts some of the country’s best journalists. Moreover, this mistake was made by the Editorial Board, comprised of journalists trusted to speak on behalf of the Times.

They have the expertise to conduct this basic research, and the New York Times Company’s $2.8 billion affords them all the resources they need. Besides, the information the Times needed is easily available through a quick Google query, so it should have been very easy for the Editorial Board to get this right. Couple this with any number of articles the Times has published over the past decade criticizing Gov. Palin––along with the likely dearth of any articles casting her in a favorable light––and Gov. Palin has a strong case that the Editorial Board’s disdain for her caused its members to shirk very basic journalistic responsibilities.

Of course, there are two sides to every case. The Times could argue that it made a pair of honest mistakes. For example, perhaps they will argue that the phrase “the link to political incitement was clear” was a poor choice of words; perhaps they meant to say that the link was clear to them, rather than to the authorities as the statement implied. An honest mistake, in other words. Similarly, maybe the Times will argue that the “targeted electoral districts of Ms. Giffords and 19 other Democrats under stylized cross hairs” may falsely imply that the legislators themselves were under cross hairs, but the Editorial Board intended to correctly convey that the districts themselves were under the cross hairs. Again, honest mistake. Furthermore, the prompt correction evidences the Times‘ good faith, and may reduce any damages it owes Gov. Palin under Civil Rights Law § 78.

Still, the Times‘ correction also admits that it “incorrectly stated” and “incorrectly described” the facts. I am unaware of any New York laws that would prevent Gov. Palin from using these statements against the Times as an admission of guilt.

Putting the Media on Trial

This will be an interesting case if Gov. Palin chooses to pursue it. I suspect Gov. Palin would at least make it through the pleading stages, especially given the weakness of New York’s anti-SLAPP law in comparison to California’s. This means the case would proceed through discovery, where Gov. Palin could really dig into the Editorial Board members’ personal opinions on Gov. Palin, as well as the Republican Party, tea partiers, and conservatism in general. Their mindset is at issue, so she could legitimately demand text messages, e-mails, instant messages, and other documents and testimony that could evidence this bias. Her attorney would be wise to promptly send a letter to the Times directing them to preserve records of all such correspondence.

Conservatives believe that the mainstream media is biased against them. Now they have a chance to literally put the media on trial.

Categories: Constitutional Law, Defamation, First Amendment, Free Speech, SLAPP, and Uncategorized.

COVFEFE Act Triggers 1st Amendment Concerns

Life increasingly mimics art (or what now resembles art), as Rep. Mile Quigley (D-Ill.) has introduced the so-called COVFEFE Act, preventing the President from deleting any of his social media posts. In other words, a Congressman is now using legislation to troll the President’s Twitter feed.

As the trolls now disembark the Internet and storm the halls of Congress, I’m naturally inclined to ponder: “Can they do that?” More specifically, does the First Amendment give Donald Trump the right to delete his tweets? The answer, as you can imagine, is somewhat complicated and probably depends on the nature of the social media post.

This naturally follows a week after a number of Twitter users accused the President of violating their free speech rights after allegedly blocking them from @realDonaldTrump based upon their viewpoints. Prof. Eugene Volokh refuted these claims in a well-reasoned column. In the meantime, I have somehow felt compelled to add COVFEFE to my computers’ spellcheck dictionary.

How the COVFEFE Act Modifies the Presidential Records Act

Let’s start by taking a look at the text of the proposed COVFEFEor Communications Over Various Feeds Electronically for EngagementAct. The existing Presidential Records Act is codified in 44 U.S.C. §§ 2201-2207 and mandates the preservation of presidential records. 44 U.S.C. § 2201(2) defines presidential records as “any documentary materials…whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” In other words, any documents the President or his staff creates to help the President carry out his duties.

For clarity, this is how Section 2201 would read if the COVFEFE Act passes, with modifications and changes in bold:

(1) The term “documentary material” means all books, correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, social media, and motion pictures, including, but not limited to, audio and visual records, or other electronic or mechanical recordations, whether in analog, digital, or any other form.
(2) The term “Presidential records” means documentary materials, or any reasonably seg­regable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term—
(A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(B) includes any personal and official social media account; but
(C) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) of title 5, United States Code); (ii) personal records, except as provided for in sub-paragraph (B); (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
(6) The term ‘social media’ means any form of electronic communication (such as a website for social networking and microblogging) through which users create an online community to share information, ideas, personal messages, and other content (such as videos).

I redacted Paragraphs 3-5 for brevity, but you may view them here.

The Nature of the COVFEFE Act Modifications

As you can see, the COVFEFE Act would classify “any personal and official social media account” as a presidential record.

Conceptually, I like this legislative proposal because it recognizes that what we post on social media is more akin to a permanent document than the fleeting scribbles on a chalkboard. What we post online never truly goes away, so it’s fair to classify the President’s posts that “relate to or have effect upon the carrying out of” his official duties as official presidential records. For example, the Twitter handle @POTUS serves as the official Twitter presence of the President of the United States.

However, we cross into murky waters when we look at the President’s personal Twitter handle, @realDonaldTrump. Section 2201 presently makes no distinction between records maintained in the President’s personal storage versus his official storage; for example, a qualifying document personally created by the President on his own personal laptop with his own software that he purchased with his own money and stored on private property would still be classified as a presidential record under existing law. The laptop and the software would remain the President’s private property, but the document would be an official presidential record.

The COVFEFE Act takes this one step further, however, because it includes “any personal and official social media account.” In other words, it appears to nationalize the President’s personal social media accounts, including @realDonaldTrump. This appears to be a stretch.

Section 2201 presently understands that not every document the President creates should be considered a presidential record. Paragraphs (3)(A)-(C) define personal records as documents “of a purely private or nonpublic character” unrelated to the President’s official duties. Examples include private journals and documents regarding political associations and political activities.

The First Amendment Right to Delete

Our Constitution created a republican form of government based upon representation by citizen-statesmen. Its promise, as articulated by Abraham Lincoln at Gettysburg, is “government of the people, by the people, for the people.” Even the President, bestowed with the mighty power of Commander in Chief of our military forces, is by nature a civilian leader. Consequently, the President retains his constitutional rights, particularly when acting in his civilian capacity.

Constitutionally, the First Amendment grants the President the right to delete his personal tweets, just like the rest of us. The Free Speech Clause protects not just the right to speak, but the right not to speak. Deleting a social media post symbolizes that we have changed our minds and chosen not to speak on a matter we once addressed. I suppose some may conceivably argue that deleting a post is substantively different than either not posting it or posting a retraction; however, this argument is premised upon the notion that the federal government may dictate its preference of one constitutionally protected manner of expression (or non-expression, or changed expression) over another. I think not.

Furthermore, even if we somehow concluded that deleting a tweet is not protected speech, we must remember that the First Amendment protects expressive conduct. In many different ways. The Supreme Court devised the following test in Spence v. Washington for determining that conduct is treated as protected speech: “An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” In other words, does the actor intend to send a message and will it be understood by others?

Deleting a tweet is a simple act of using the Twitter interface to remove a post that we no longer wish to be published. Why would we do this? Perhaps we change our minds on the substance of the tweet; maybe we later decide it was an opinion we prefer not to share; or possibly we decide it contained typos or was otherwise inarticulate, among other possibilities. Whatever the reason, we send one obvious message by deleting a tweet: Oops, my bad! That mea culpa is generally understood by others who learn that the tweet was deleted. Consequently, it is protected conduct.

Balancing the President’s First Amendment Rights Against Transparency Laws

Since we understand that Donald Trump enjoys the First Amendment right to delete his tweets as a private citizen, we must turn to the question of the extent to which he relinquishes this right in his presidential role. The Supreme Court has held that valid legislationsuch as conflict-of-interest rulesmay limit the free speech rights of government officials in their official capacities.  The Presidential Records Act is analogous for its valid purpose of government transparency. The fair question, then, is how much of the President’s social media presence is within his official capacity, and how much is within his personal capacity?

As indicated above, the @POTUS handle was created by the Obama White House and passed down to the Trump White House; by its creation, management, and very name, it is a government creation that represents not an individual, but the office of the President of the United States. Anything posted to there should be presumptively regarded as a presidential record.

The @realDonaldTrump handle, however, was created and prolifically used by Donald Trump years before he ran for President. I don’t think it suddenly became government property as soon as he took the oath of office. It seems that the tweets from this account fall into a handful of different categories:

  1. Tweets that have nothing to do with government;
  2. Tweets where the President angrily lashes out at the media and other opponents;
  3. Tweets where the President campaigns for his policy objectives; and
  4. Tweets where the President describes his goals and achievements.

I think the First Amendment gives the President the categorical right to delete inherently nonpolitical tweets. On the other hand, COVFEFE (and the spirit of the Presidential Records Act) may properly prevent the President from deleting tweets documenting how he has carried out his official duties. Here is a good example:

Screen Shot 2017-06-13 at 2.04.21 PM

 

The President stated the progress of his international trip and summarized his interactions with other NATO leaders. This is a presidential record in the truest sense, and it should be preserved. Note also that it was deleted and retrieved by Factbase. The President may have later decided that divulging this matter was hasty, but the Presidential Records Act likely renders this a pitch that he cannot un-throw.

The more challenging question is whether the President may delete political tweets that angrily lash out at his opponents or campaign for his policy objectives. These are complicated because they touch upon his simultaneous roles as a a government official and as a politician. Are these two distinct capacities, or has the presidency grown so encompassing that it has eroded at any meaningful distinction? The fact that this is even a question demonstrates that the Executive Branch has grown into a behemoth that would have terrified the founding generation:

Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York.

My, how times have changed since Hamilton wrote Federalist No. 69.

Conclusion

To make a long story short, the COVFEFE Act may not broadly classify the President’s personal Twitter account as a personal record. The President retains his rights to the account itself and to his personal tweets. The First Amendment gives the President the right to delete them, under the theories of the right not to speak and expressive conduct. The account and personal tweets are his personal intellectual property, and I argue in a separate post that such an imposition may constitute a government taking the Fifth Amendment.

However, the COVFEFE Act may lawfully designate the President’s tweets concerning his official duties as presidential records. The spirit of the Presidential Records Act requires this. If the President wishes to exclude his political but not necessarily official @realDonaldTrump tweets from the Presidential Records Act, then he would be wise to restrict all tweets regarding his official duties to @POTUS. He can always retweet these to @realDonaldTrump. This would create a stronger presumption that @realDonaldTrump only conveys personal tweets and opinions that do not qualify as presidential records. Of course, discretion has never been the stronger part of President Trump’s valor.

Categories: Constitutional Law, First Amendment, and Free Speech.

Would the COVFEFE Act Invoke the Takings Clause?

I drafted another post examining how the proposed COVFEFE Act may infringe upon the President’s First Amendment rights. Imposing the requirements of the Presidential Records Act carte blanche upon the President’s personal Twitter account also strikes me as a potential taking of his personal intellectual property.

Creation, custody, and use of this account fall within his property rights to the extent licensed by Twitter’s Terms of Service, namely: “You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your photos and videos are part of the Content).” In other words, it is Donald Trump’s personal intellectual property.

It seems evident to me—and I invite my IP colleagues to comment—that classifying a personal account as a Presidential record subject to the accompanying custodial requirements constitutes a government taking within the terms of the Fifth Amendment. If this is indeed an exercise of eminent domain over the President’s private property for a public use, then the government would be required to pay the President “fair value” for the taking. This opens a whole other can of worms—not the least of which is determining the “fair value” of Donald Trump’s Twitter account—but it seems conceptually accurate. Again, I invite comment from my colleagues specializing in intellectual property.

Categories: Constitutional Law.

Berkeley College Republicans Lawsuit a Bold Stand Against Censorship

The backlash against the anti-speech movement among American universities continues, as conservative activists have sued UC Berkeley for its unjustifiable restrictions that led to the cancellations of speeches by Ann Coulter and David Horowitz. The message is simple: public universities cannot make conservative speech more difficult than other speech.

The lawsuit—titled Young America’s Foundation v. Napolitano and filed by San Francisco attorney and leading California Republican Harmeet Dhillonlays out a compelling argument that UC Berkeley systematically stifles conservative speech by imposing overly burdensome hosting restrictions upon the Berkeley College Republicans. The university claims this is done in the name of public safety, but the facts indicate that it’s more about preserving the heckler’s veto.

The evidence shows that the university and the UC Police Department have ordered officers observing protests to stand down and ignore acts of violence that are not life threatening. This lackadaisical attitude makes the defendants’ public-safety motive dubious at best. If they truly cared about public safety, then they would not issue orders requiring officers to disregard obvious threats to public safety. Moreover, if protestors can freely assault conservatives as long as they don’t seem poised to murder any of them, then this order implicitly encourages violence against conservatives.

In other words, the university shows no real interest in preventing violent protests, except when it offers a pretext for preventing conservative speech.

On this basis, UC Berkeley devised an unwritten policy that imposes unreasonable restrictions upon “high-profile speakers.” Of course, the university refuses to provide any objective criteria for this classification and applies it with unfettered discretion. For example, it has designated Ann Coulter and David Horowitz as “high-profile speakers,” but not former Mexican President Vincente Fox. Unless UC Berkeley is willing to admit that its elite students deem conservative pundits higher-profile than a former world leader, perhaps it should more aptly reclassify them as “unpopular speakers.”

The university used this pretext to force Berkeley College Republicans to host its conservative speakers in distant, off-campus locations during mid-afternoon classes to student-only audiences while paying several thousands of dollars in security fees; meanwhile, no such “security” measures were imposed upon the former President of Mexico.

The key question before the court is whether these restrictions represent lawful time, place, and manner restrictions upon speech. In other words, the court’s inquiry will focus on whether the restrictions are content-neutral, narrowly tailored to a significant government interest, and allowing alternative channels of communication.

The university’s disproportionate application of these restrictions to conservative speakers suggests that they are content-based and therefore subject to strict scrutinyan exacting judicial standard the defendants are highly unlikely to survive.

The university will likely counter that this restriction was content-neutral or, alternatively, constitutional under the annoyingly broad Renton test, which permits content-based speech restrictions designed to prevent adverse secondary effects of the speech. In this case, the university claims to have reliable intelligence pointing to physical violence at the events, which it reasonably wishes to prevent.

Of course, the university’s argument would have far more merit if it didn’t tacitly encourage violent protests by ordering officers not to interfere with the protests. It’s quite a clever scheme, actually: if the university wishes to censor conservative viewpoints, all it needs to do is allow violent extremists to run wild and then use the violence as an excuse to impose heavy burdens in the name of public safety.

Therefore, this lawsuit is intended to prevent universities from making cynical end-runs around the First Amendment to silence disfavored speech. Anti-speech behavior is increasingly prevalent and antithetical to academic culture, so kudos to Ms. Dhillon, YAF, and the Berkeley College Republicans for standing up to it.

Categories: Constitutional Law, First Amendment, Free Speech, and Public Interest Law.

No, Rachel Maddow Didn’t Commit a Felony

Well, at least Geraldo’s off the hook now.

Rachel Maddow promised a scoop and delivered a flop. She Tweeted: “BREAKING: We’ve got Trump’s tax returns.” Droves of angry anti-Trump viewers tuned in, pitchforks in hand, prepared to storm the White House and pillory the President for what must surely have been an impeachableney, treasonousoffense.

What she produced instead was a two-page Form 1040 from 2005 showing that he paid the IRS $38 million in taxes on $150 million in income, which was offset by $100 million in losses.

That’s it. No evidence of mafia ties. No Russian surprises. No evidence of tax evasion. Nothing. If anything, paying $38 million on $50 million in adjusted gross income makes a pretty good case for tax reform.

This was not one of Rachel Maddow’s better moments. She actually seemed more like the hapless Rachel Green from Friends; the only thing missing was that charmingly flustered moment of realization that everyone in the room (or country) was staring aghast at her blunder, followed by a sadly endearing quip and canned sitcom laughter. Poor Rachel. Even the Huffington Post published a “Stop Piling On” article in her defense.

Maddow’s reputation may have taken a hit, but a number of Trump supporters have alleged that she committed a felony by broadcasting the tax returns. After all, federal law deems it unlawful “to print or publish in any manner not provided by law” a tax return or information about a tax return that was disclosed in an unauthorized manner. Seems cut and dry, right?

Well, not exactly. The Supreme Court has held that the First Amendment protects media broadcasts of private content of public interest that was illegally obtained by third parties.

Specifically, Bartinicki v. Vopper held that the First Amendment immunized a radio station from prosecution for broadcasting a conversation of public interest that was illegally recorded by a third party. The Court acknowledged that the radio station probably knew the recording was illegal and therefore violated federal law, but also recognized that the radio station did not intercept or steal the recording and its contents were a matter of public concern.

The Court ultimately concluded that the law’s interest in protecting the privacy of private conversations is subordinate to the First Amendment’s interest in disseminating matters of public importance. It wrote that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” This was an extension of its holding in New York Times Co. v. Sullivan, which imposed a heavier burden of proof in defamation lawsuits filed by public figures regarding matters of public interest.

The facts of that case are analogous to Maddow’s broadcast of the President’s tax returns. Both laws prohibit the disclosure of information that was unlawfully obtained. Both parties had reason to believe the information was unlawfully obtained, but there is no reason to believe they obtained it illegally. In Maddow’s case, there is no reason to believe she or her producers stole the tax returns from the IRS or Trump’s CPA. It’s more likely thatlike the Bartnicki disclosuresomeone else broke the law and passed the information to the media outlet. The President’s tax returns arelike the Bartnicki recordingmatters of public interest. Therefore, under the Bartnicki holding, Maddow’s broadcast of Trump’s tax returns is protected by the First Amendment.

There are reasonable grounds for criticizing this ruling. Chief Justice Rehnquist argued in dissent that this holding unnecessarily harms the expectation of privacy in our conversations by removing a deterrence from broadcasting illegal recordings: “Surely ‘the interest in individual privacy’ at its narrowest must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations. The Court subordinates that right…to the claims of those who wish to publish the the intercepted conversations of others.” [citations omitted]

This provokes a fascinating constitutional and philosophical debate requiring the balancing of individual privacy rights against the media’s right to broadcast matters of public concern. That discussion, however, exceeds the scope of this post. Needless to say, however, Rachel Maddow may be feeling blue, but at least she won’t be wearing an orange jumpsuit anytime soon.

Ryan T. Darby practices free speech law in San Diego.

Categories: Constitutional Law, First Amendment, Free Speech, and Public Interest Law.

Jordan’s Law Would Discourage Lawful Video Recordings

California Assemblyman Matt Dababneh (D-Encino) has introduced a bill making it illegal to conspire to video record a violent felony. Simply stated, this law wouldlike the preexisting laws discussed belowincriminate the cameraman if he and the attacker were acting in cahoots, and it would also enhance the attacker’s sentence.

This billintroduced as AB 1542 and referred to as Jordan’s Lawis well-intended legislation aimed at protecting crime victims, but it would likely cause non-conspirators to fall under suspicion and, consequently, deter third-party witnesses from making valuable and constitutionally protected recordings. A wiser approach is to rely upon existing criminal laws that already criminalize this behavior and preserve our free speech rights.

First of all, it is already illegal under Penal Code section 182 to conspire to commit a crime. The difficulty lies in proving that the alleged conspirator committed an overt act in furtherance of the crime. If two thugs agree that one of them will assault someone and the other will record it, then does recording it actually further the assault? There are credible arguments on both sides.

However, what about criminal liability for aiding and abetting? Penal Code section 31 makes “all persons concerned in the commission of a crime” guilty of aiding and abetting, and Penal Code section 971 provides that accessories to crimes may be prosecuted as principals. This principle covers everything from convincing someone to commit a crime, to providing the resources necessary to commit it, to driving the getaway car, and helping to conceal it. A third party can actually be charged with it for shouting “hit him!” during a fist fight because it encourages the crime. A person who plots to videotape a violent felony is therefore just as guilty of that felony as the attacker under the theory of aiding and abetting.

This law appears to offer no legal upside, but it would impose considerable costs to innocent bystanders. It imposes an undue burden on third-party witnesses who record the crime and subjects them to criminal suspicion. Section (b)(2) of the proposed legislation provides that submitting the recording to law enforcement “at the first reasonable opportunity” may be treated as evidence of the cameraman’s innocence.

Does that mean that if bystanders don’t submit their videos to law enforcement, then they’re probably guilty? Will bystanders who post their videos to social media automatically become suspects? Can police officers now threaten to arrest bystanders unless they hand over their devicesand how long can the police hold onto those devices, and what happens if they find unrelated incriminating evidence while fishing through those devices?

This poses serious questions for an open society that increasingly relies upon the free flow of information. This law would likely yield two unintended consequences: (1) distrust of law enforcement among younger Americans will increase, and (2) bystanders will be less likely to record these events.

Why do we want people recording violent felonies, anyway? is the question you may be asking. Well, because video can be very compelling evidence. It can identify the assailant and depict the depravity of the crime. It can corroborate the victim’s account of the incidentor vindicate an innocent suspect. It can identify additional witnesses. It tells a useful story.

Shouldn’t people put their phone downs and help the victim or call 911? Perhaps, but that’s a personal judgment and there are a lot of factors at play. What if someone else is calling 911? What if attempting to intervene would put the witness at risk of physical harm? We can criticize the decision to record if we wish, but there are a lot of assault victims out there who wish there was some sort of video evidence to prove their criminal or civil cases.

If law enforcement cannot prove conspiracy under Section 182 or aiding and abetting under Sections 31 and 971, then it cannot prove conspiracy under this proposed law. Jordan’s Law states that the bystander is guilty if acting “with the intent to encourage the commission of the underlying violent felony.” Again, this would already render the bystander guilty of aiding and abetting. So, what exactly would this new law accomplish other than scaring innocent bystanders away from recording these incidents?

I believe Assemblyman Dababneh’s statistics that social media-motivated felonies are on the rise, and I see no problem with the law’s one-year sentencing enhancement for the attacker, which actually is new. Raising attention that this behavior is illegal and will be prosecuted is valuable, but we can and should do that without putting innocent bystanders in legal jeopardy and chilling their lawful exercise of speech.

Ryan T. Darby is a free speech attorney in San Diego.

Categories: Constitutional Law, First Amendment, Free Speech, and Public Interest Law.

Answering an 8th Grader’s Questions on Cyber Bullying & the First Amendment

An eighth grade student recently requested to interview me as part of a research project on how the First Amendment affects protection against cyber bullying. I find it commendable that she is tackling an issue that is challenging even to seasoned attorneys and policy makers, and I think others may find our interview interesting and educational. Cyber bullying is an emerging issue among teenagers, and I think she did a very good job of examining the constitutional side of this issue.

Here is the transcript, redacted to protect her privacy:

Q: Hello, my name is [Student] and I am an eighth grader at [School]. I have a very important research project called Proteus. My question for the project is, “Should there be a limit to Freedom of Speech online? Are Internet Trolls misinterpreting the First Amendment?” I came across your name and job title during my research. I was hoping to be able to interview you and find out more about your studies of the First Amendment and online harassment.

A: Sure, fire away.

Q: What exactly do you believe the First Amendment states? Do you think it gives Internet Trolls a right to say anything they want online?

A: The Free Speech clause of the First Amendment states: “Congress shall make no law…abridging the freedom of speech.” This is very vague, and the historical record shows that even the Founders didn’t completely agree on what it means. Some took the very limited view that it only prevents the government from censoring material ahead of time, but it could potentially punish people for their viewpoints. The Alien and Sedition Acts of 1798 are an example of this limited viewpoint.

However, the Supreme Court and society in general have concluded that the First Amendment broadly protects our right to free speech and expression. The idea is that free speech is a primary societal value, and speech is presumed to be lawful unless it falls within a few narrow exceptions. For example, we can be sued for defamation if we make untrue factual statements that harm other people; the government can set reasonable rules for the time, place, and manner of public demonstrations; and the words a perpetrator utters while committing a violent act can elevate it to a hate crime.

The potential free speech exception applicable to cyber bullying is harassment. Simply stated, we are free to express our opinion, but we cannot threaten, stalk, or otherwise systematically harass others. Think of it as the “tap-out” rule: we can tell others what we think, but once it escalates to systematically harassing someone who simply wants to be left alone, and especially if the person feels threatened, then it rises to the level of harassment. When this happens, courts can order a restraining order that prohibits the perpetrator from engaging in this sort of conduct, and violation of the order can result in arrest.

These same principles apply to online conduct. Internet users can be sued for defamation or slapped with a restraining order for harassment. Free speech does not protect websites that facilitate illegal services, such as drugs and prostitution.

The states are developing different laws in response to cyberbullying. California has made it a crime to post someone’s personal information online with the intent to make that person fear for his or her safety, or to maliciously impersonate someone online. Public school students who transmit nude or harassing photos may now face expulsion.

Q: How exactly are Internet Trolls being legally protected by the First Amendment?

A: The First Amendment protects our online speech in the same general manner as our offline speech. Online speech is protected unless it can be proven to fall under narrow exceptions, such as threat, harassment, and defamation. As a practical matter, the ability to post with superficial anonymity offers obnoxious Internet users an additional layer of protection. Everything that happens on the Internet can be traced back to its source, so nothing online is truly anonymous, but this process can be difficult. It relies on the the cooperation of third parties, such as the site where the abusive conduct occurred (like Yelp or Facebook) and the user’s Internet service provider. These companies tend to be very protective of their users’ privacy, so they typically require a court order before providing this information. This requires a substantial burden of proof and expense in civil cases, and law enforcement is often reluctant to pursue this in criminal cases.

Q: Okay, thank you, that makes sense. Do you think it’s possible to have the First Amendment rewritten so Internet Trolls won’t have as much freedom? What would be the negative impacts of that? Do you believe there would be more benefits or problems caused by censoring speech online?

A: Amending the Constitution is extremely difficult. An amendment generally needs to be proposed by a 2/3 vote of both the House of Representatives and the Senate, and then approved by 3/4 of the states. It’s unlikely to get that many people to agree on virtually anything, so that probably won’t happen.

I also don’t think the First Amendment needs to be amended because we already have laws protecting us from harassment, threats, and defamation. Law enforcement prefers to use its limited resources investigating other crimes, so it probably makes more sense for schools to take the lead in cyber bullying among minors, as we’re seeing in California.

The First Amendment reflects that free speech is one of our primary principles. Free and open discourse is essential to preserving a free society. We already have safety-minded exceptions to prohibit speech that constitutes threats or harassment, and going any further risks criminalizing speech simply because some people do not like it. The Constitution exists to protect individual rights against a majority that could restrict those rights, and the Free Speech clause in particular protects unpopular opinions.

Wandering toward censorship creates a number of issues. Who is in charge of the censorship? What standards will be used? What will be the recourse for those wrongfully censored? Won’t this sort of oversight chill speech in general? These are serious issues, and it’s better for a free society to err on the side of protecting those who engage in abusive speech than to risk criminalizing or deterring non-abusive speech.

Q: Do you think the First Amendment has done more harm than good?

A: No absolutely not, I think that the First Amendment is vital to our free society. We live in a republic where we rely on the free flow of ideas, we need to communicate those ideas. We need to be free to petition our elected officials and try and advance those ideas and keep everyone accountable. So I think having protection of those communications is absolutely critical. It sounds like one of the merging concerns is the notion of cyberbullying where people can essentially abuse the legal rights we’ve given them. Ultimately I think it really falls under the idea that free speech and communication is a primary principle in our society. I think that ultimately we would rather risk some of the bad things that go along with it rather than lose all of the really important things that come with it.

Q: Okay, thank you. Should Internet Trolls be treated like criminals and have the same punishments?

A: Well, I think that a really important thing is to define what Internet Trolls are. I’m familiar with the term somewhat but I associate it with people just making stupid comments on Twitter, Yelp, or Facebook. People that are really doing some hurtful things like impersonating people in malicious ways in terms of defamation are a different case. Would you mind explaining Internet Trolls for this purpose?

Q: Sure, I was thinking of Internet Trolls as people who would target a certain person online. They are the people that would continue to harass someone through social media. I was focusing also on the times where the Internet Trolls have led their victims to suicide or just really emotionally abusing them.

A: Okay, I’m not sure if they should be criminalized. Well let’s put it this way, whenever we were asked a question in law school, typically the right answer was: it depends. I think that is a perfect response to this. Let’s say I was online and I go on Facebook and just post a comment saying, “You’re dumb.” Should I be criminalized? No. I don’t think so. Now hypothetically, say that someone I know and have reason to believe is emotionally unstable. I’ll say that maybe they’re dealing with a mental disorder or illness and that they are going through a rough patch. Let’s say I know exactly the thing that would trigger that person and then hypothetically I just really want to say something extremely hurtful to that person and then I just dive head first into something like that. Then that person hurts themselves or worse. At that point I think there is a very good argument that you have committed a crime and certainly can be sued for it. Ultimately at that point it’s like pushing someone off a bridge or when someone is standing on a bridge saying, “You know what, yeah you should jump.” It goes from just being mean, which isn’t really criminal, to just maliciously encouraging someone at risk to hurt themselves. That’s really where the dividing line is.

Categories: Constitutional Law, Defamation, First Amendment, Free Speech, and Public Interest Law.

HOA Boardmembers Gain Additional Anti-SLAPP Protections

One of my colleagues from back in law school recently helped broaden anti-SLAPP rights for individuals serving on homeowners association (“HOA”) boards.

In Lee v. Silveira, a handful of HOA board members sued the majority of HOA board members for allegedly failing to follow proper bid procedures before voting to renew a management contract. The trial court denied the defendants’ anti-SLAPP motion, but the Court of Appeal for California’s Fourth District overturned this denial and held that California’s anti-SLAPP law protects HOA board members sued as individuals when the board members are elected to represent the interests of the HOA and the gravamen (or essence) of the lawsuit is how the defendants voted on matters of interest to the HOA.

As we know, Code of Civil Procedure § 425.16––California’s anti-SLAPP law––allows the court to quickly dismiss a lawsuit and order payment of attorney fees where the lawsuit arises from the defendant’s exercise of the right to free speech or petition, and the plaintiff cannot prove a likelihood of ultimately prevailing on the merits of the lawsuit.

This case is noteworthy because the Court of Appeal specifically distinguishes these facts from those of Talega Maintenance Corp. v. Standard Pacific Corp. In that case, the court upheld the denial of an anti-SLAPP motion of former HOA board members who were sued by the HOA as individuals alongside the developer in a construction defect lawsuit. The board members in that case were appointed to the board by the developer to protect the developer’s interests, and the HOA alleged that the former board members previously failed to disclose certain documents indicating the developer’s liability.

The Silveira court distinguished Talega for a few reasons: (1) the Talega defendants were appointed to the board by the developer to promote the developer’s interests, whereas the Silveira defendants were elected by the HOA members whom they were serving, in the community where they lived and shared membership; (2) the gravamen of Talega complaint was the defendants’ actions, as opposed to the Silveira defendants’ expressive activity of voting; and (3) the HOA sued the Talega defendants, while individual board members sued the Silveira defendants; (4) the vote in Talega was noncontroversial when taken, as opposed to the immediately controversial Silveira vote; and (5) the Talega lawsuit was incidental to the vote, whereas the Silveira lawsuit was a direct result of the vote.

Instead, the Silveira court applied its previous decision in Schwarzburd v. Kensington Police Protection & Community Services District Board. In Schwarzburd, individual members of a local board sued their fellow board members and the district itself. The individual defendants responded with an anti-SLAPP motion, and since the plaintiffs could have obtained relief simply by naming the district itself, it concluded that the board members were named as defendants in order to intrude upon their First Amendment rights.

The Silveira court applied this reasoning and found the plaintiffs’ decision to name the individual board members rather than the HOA itself was further evidence that the plaintiffs targeted the defendants’ expressive rights. It subsequently analyzed the underlying causes of action and concluded that the plaintiffs were not likely to succeed on the merits. Therefore, it reversed the trial court’s order, with instructions to grant each defendant’s anti-SLAPP motion.

Takeaways:

(1) HOA board members who are elected by the members of the community they serve can now rest more comfortably knowing California’s anti-SLAPP law protects the expressive nature of their votes.

(2) Attorneys seeking to challenge an HOA decision should consider naming the HOA itself and steering clear of its board members.

(3) Anti-SLAPP exists to protect our rights to free speech and petition. This decision reinforces the principle that expressive conduct within the framework of a process aimed toward benefiting an identifiable community is more likely to be protected by anti-SLAPP.

Hat tip to Constance Trinh Ehrlich of Neuland, Whitney & Michael, APC for her victory in this case.

Categories: anti-SLAPP, Constitutional Law, Free Speech, and SLAPP.

UCI’s Punishment of College Republicans Appears to Be Unconstitutional

UC Irvine has prohibited its College Republicans chapter from accessing event space after the CRs notified the administration they may host controversial speaker Milo Yiannopoulos again this fall, according to Breitbart.

It appears that UCI administrators invited College Republicans leaders to a meeting to discuss the planning of the Yiannopoulos event, which took place earlier this month. During the meeting, the College Republicans mentioned that they wanted to bring him back in the fall. Four hours later, the administration sent them an e-mail informing them that they could no longer reserve Student Center & Event Services venues until next spring for failing to provide a certificate of insurance for the private event security.

Wait, what? Suspended over a certificate of insurance? That sounds bizarre. I assume they’re referencing a fairly new California law requiring private security companies to carry a $1 million general liability insurance policy. UCI claims it requested the documentation three times before the event, and the College Republicans claim UCI only requested it the night before the event.

But, so what? Even if UCI is correct, is it really appropriate to effectively prohibit a student organization from hosting events for one year over a paperwork snafu? Bear in mind that these are college studentsif paperwork errors merited one-year suspensions, there probably wouldn’t be any student organizations left to suspend. Student organizations offer students the opportunity to learn important managerial and leadership skills, often through failure. This punishment serves no pedagogical purposeit is draconian; it is punitive; and it reeks of an ulterior motive.

There is ample evidence that this is a calculated move on the part of UCI to prevent the College Republicans from hosting Yiannopoulos again this fall. A UCI vice-provost previously sent a campus-wide e-mail condemning posters promoting the event, recommending that its organizers attend “Safe Zone training” at UCI. The administration also tried to charge the College Republicans a $1,000 fee for hosting the event with an outside student organization, but was forced to withdraw this demand. Moreover, UCI didn’t impose this proof-of-insurance requirement when David Horowitz required security, or even bring it up when UCI met with the CRs and their lawyers prior to the eventso, why now all of a sudden?

UCI is a government university, so it must adhere to the requirements of the First Amendment. If UCI is suspending the College Republicans on the basis of the viewpoints they and their speakers espouse, then it is engaging in unconstitutional viewpoint discrimination. It is simply illegal for a government body to silence a speaker because it disagrees with its viewpoint.

This is a fact-specific inquiry and too early to reach any definitive conclusions, but UCI’s actions appear unconstitutional at first glance. A few relevant questions come to mind:

(1) Do UCI’s published rules governing its student organizations require them to present proof of insurance? If so, is this an affirmative obligation or must UCI request it? If the latter, then is there any evidence that UCI requested?

(2) How many other student organizations have provided private security at its events, and how many of them presented proof of insurance? How many were punished for not presenting it? What was their punishment?

(3) Why didn’t UCI request this proof directly from the security company? It was only a fax or e-mail away.

(4) The CRs requested $1,250 for event security, but received a paltry $181. How much does UCI grant to other student organizations requesting security?

The answers to these questions could be very revealing.

At first glance, however, this appears to be symptomatic of a regrettable anti-speech trend afflicting college campuses across the country. A fictional right to not be offended all-too-often trumps our constitutional right to free speech. Angry mobs delude themselves into believing that using force and intimidation to silence opposing viewpoints is somehow free speech. And, as we see here, university administrators favor the rights of the offended and of the angered over those who are peacefully expressing a legally protected opinion.

Kudos, however, to UCI’s Anteaters for Bernie Sanders for reaching across party lines to release a statement supporting the CRs’ right to free speech and equal treatment. They seem to recognize that partisan squabbles are secondary principles, whereas free speech is a primary principle that should unite all of us. Hopefully this attitude gains traction among UCI’s student organizations; time will tell.

Ryan T. Darby practices defamation defense and free speech law in San Diego, as well as a proud California College Republicans alumnus and Lifetime Achievement Award recipient.

The author originally published this post on SD Rostra.

Categories: Constitutional Law, Free Speech, and Public Interest Law.

Ryan T. Darby Sues UCSD for Violating Student Media Speech

Earlier this week, I teamed up with the ACLU to file a federal lawsuit against the University of California, San Diego for depriving student media of their First Amendment rights. Specifically, UCSD’s student government has attempted to censor a controversial humor publication known as The Koala by halting funding to all print publications.

As a UCSD alumnus, I did not reach this decision lightly. I co-founded the UCSD Military Veteran Scholarship and prefer to maintain good relations with my alma mater. I had a great experience there, and I’m proud to have graduated from a world-class research university.

Unfortunately, I grow tired of reading headlines about UCSD censoring student speech. A UCSD provost recently issued a statement condemning students who chalked pro-Trump slogans on campus and warned that they could face the “fullest sanctions,” even though chalking is expressly allowed under the student code. The Foundation for Individual Rights in Education (FIRE) recently named UCSD one of our country’s ten worst schools for free speech rights. UCSD previously tried to shut down The Koala in 2002 and in 2010, the former of which I witnessed firsthand as a student.

UCSD’s present battle against the First Amendment started when The Koala published an article this past fall mocking safe spaces and trigger warnings. Condemnation immediately followed, from the Chancellor’s Office on down. The student government decided to discontinue funding for all student media the same day as the Chancellor’s statement.

This trend toward censorship represents a growing problem within academia. Universities were the champions of the free speech movement of the 1960s and prided themselves as hotbeds of free expression. Today, it appears that free speech is taking a backseat on many campuses to other political and sociological concerns. The peril of this shift in values cannot be overstated. Most partisan disagreements represent secondary values; our constitutional right to express our opinions on those topics are primary values that form the foundation of our free republic.

The ambivalence we see here toward free speech is a disturbing trend that can lead nowhere good. No matter how disagreeable a reader may find The Koala‘s speech, censorship is not the answer. Instead, we should encourage college students to craft persuasive arguments about issues they find important, not to petition the government to shut down opposing viewpoints. The answer to speech we dislike is to counter it with thoughtful rebuttals, and allow the best ideas to prevail in the marketplace of public opinion.

UCSD’s decision to target The Koala is not only politically perverse, but unconstitutional. UCSD is a public university bound by the First Amendment, which prohibits public bodies from discriminating against the press and against individual viewpoints. UCSD understands that it cannot single out The Koala by stripping this one publication of its funding, so it has developed a clever ploy to strip The Koala of its funding by removing all student media funding. In other words, UCSD realizes a surgical strike is illegal, so it thinks it can skirt the law by choosing the nuclear option.

This is problematic for two reasons. First, the First Amendment’s Free Press Clause prohibits the government from singling out the media for inferior treatment. The student government freely grants money to a wide array of student expression, so it cannot lawfully deprive student media of the same financial resources it freely offers for other forms of expression. Second, the Free Speech Clause prohibits the government from discriminating against any particular viewpoint—period. The sum total of the evidence shows that the media freeze is a ploy for defunding The Koala. It’s the discriminatory intent that matters.

For these reasons, I made the difficult choice to file a lawsuit against my alma mater. I do so, however, hoping that a just outcome will prompt much-needed reforms respecting the rights of free speech on campus.

Ryan T. Darby practices defamation defense and free speech law in San Diego.

Categories: Constitutional Law, Free Speech, and Public Interest Law.