Maximum PC first amendment RSS Feed

Amazon Rebuffs A Subpoena

Erin Simon — Fri, 30 Nov 2007 00:35:17 -0600

Recently unsealed court records show that a federal prosecutor tried to subpoena records of 24,000 consumers' book purchases through Amazon, but the retailer stood up to the feds and a magistrate judge backed them up. Those individuals weren't the targets of the investigation; the prosecutor was instead seeking evidence against the seller, a former Madison, Wisconsin official named Robert D'Angelo who was accused of tax fraud for, among other things, running a used-book business out of his office without reporting the income. The prosecution wanted to subpoena the identities of people who bought books from D'Angelo to see if any would testify against him. The court documents had been sealed during the investigation, but Amazon recently convinced the judge to make them public.

Amazon refused to turn over that information in order to protect its customers' First Amendment rights. The First Amendment's protection of the freedom of expression necessarily includes some protections for anonymity both in creating speech and in consuming it; otherwise people would be afraid to engage in some sensitive or embarrassing communications. Magistrate Judge Stephen Crocker agreed, declaring that the subpoena's “chilling effect on expressive e-commerce would frost keyboards across America.” Although the prosecution wanted the sales records for a legitimate law enforcement goal, he ruled, “[i]t is an unsettling and un-American scenario to envision federal agents nosing through the reading lists of law-abiding citizens while hunting for evidence against somebody else.” Hear, hear.

News in Porn Law

Erin Simon — Thu, 25 Oct 2007 23:09:01 -0500

The Sixth Circuit Court of Appeals this week struck down a statute imposing strict record-keeping requirements on pornographers. The Child Protection and Obscenity Enforcement Act, 18 U.S.C. § 2257, required producers and distributors of sexually explicit material to keep proof of the name and age of every person depicted therein (and even to note their aliases, nicknames, and maiden names!) and attach to every porn item a notice of where such information may be found. This was all ostensibly in the name of making it easier to catch and prosecute child pornography, but what it did was substantially burden legitimate smut-peddlers, especially websites that act as conduits for large volumes of porn produced by other people.

The Sixth Circuit therefore decided that the law was overly broad to reach its ostensible target of child pornography and intruded too far on the plaintiffs' First Amendment rights. The First Amendment prohibits the government from regulating speech (read as: anything remotely communicative, including pictures of naked people) based on its content, which this law did. The court also held that porn participants have First Amendment rights to remain anonymous – good news for all of us on the internets, not just the adult performers.

The statute stays in force, however, everywhere outside the Sixth Circuit, which consists of Kentucky, Michigan, Ohio, and Tennessee. The internet and our federal court system being what they are, that means everyone online, whose porn can be seen outside those four states, will have to keep complying with the law until the Supreme Court has its say.

Thumbnail photo courtesy of hansol.

Free as in Speech Week

Erin Simon — Thu, 06 Sep 2007 20:26:59 -0500

The First Amendment guarantees that the government cannot abridge the people's right to free speech. That protection made headlines in two cases this week, one copyright-related and another dealing with surveillance law.

In Golan v. Gonzales, the 10th Circuit held that a law re-copyrighting material that had fallen into the public domain implicated the First Amendment. While not striking down the law, it did remand the case back to the lower court to evaluate the effect of the copyright expansion on protected speech. The case was brought by tech law guru Lawrence Lessig, who has a happy writeup at his website. Another recent case in the 9th Circuit, Kahle v. Gonzales, held that a similar copyright expansion didn't raise First Amendment problems because it was within the “traditional contours” of copyright law (a standard set by a previous Supreme Court case Eldred v. Ashcroft, upholding yet another copyright expansion). The circuit split increases the likelihood that the Supreme Court will review the issue.

Meanwhile, a New York District Court has struck down a provision in the Patriot Act on First Amendment grounds. The Patriot Act authorized the FBI to issue National Security Letters (NSLs) demanding private information about individuals. These letters, unlike warrants, have no judicial supervision, and the recipient of the NSL is under a gag order never to discuss even the fact that they have received such a demand. The ACLU (here's their happy writeup) filed suit in 2004 on behalf of one Internet company that had received such a letter, whose identity had to remain concealed thanks to the secrecy provision. In Doe v. Gonzales, the Southern District of New York held that the NSLs were an unconstitutional intrusion on free speech without allowing meaningful judicial review.

Thumbnail photo courtesy of roland.

Violent Video Games for Kids

Erin Simon — Thu, 09 Aug 2007 23:50:25 -0500

A 2005 California law requiring labeling of violent video games and banning their sale to minors was declared unconstitutional by a California District Court this week. Assembly Bill No. 1179[pdf] (which endearingly defines video games as “electronic amusement device[s]”) was challenged by the Entertainment Software Association and the Video Software Dealers Association shortly after being signed into law by Governator Schwarzenegger (who endearingly starred in many violent films before inveighing against violent games). The plaintiffs got a preliminary injunction before the law went into effect; the latest decision makes that injunction permanent.

The decision quotes highlights from the bill, including its definitions of “heinous,” “depraved,” and “torture.” “Needless mutilation of the victim's body” is a particularly pertinent factor in the assessment of the game's violence, raising the question: when is mutilation of a victim's body necessary?

Minors do not have full First Amendment rights, and states may encroach on the First Amendment if they have a “compelling interest.” But content-based regulations are particularly repugnant to the constitution, and California's video game law couldn't overcome that defect by being narrowly tailored to the state interest of protecting minors from becoming violent by being exposed to violent games. That's in part because the state couldn't show that violent video games were any more dangerous to minors than violent movies, tv, or the internet. (It's worth noting that the movie-rating system is a voluntary industry measure, not government-imposed.)

A victory for games as communicative speech deserving of First Amendment protection, this case also raises a few interesting questions. States can and do limit minors' access to sexually explicit material (indeed, the law was passed shortly after the revelation of sexual content in Grand Theft Auto) – so why the higher standard to limit their exposure to violence? Should the courts be interrogating the science behind a legislature's choices?

Thumbnail photo courtesy of Fuzzy Gerdes.