Distinguishing Snyder from Rosenbloom

University of Houston Law Center's Professor Leslie Griffin of the Religion Rogue blog analyzes the recent Supreme Court decision in Snyder v. Phelps in the context of an earlier case, Rosenbloom v. Metromedia. Professor Griffin suggests the Court may be moving toward a Free Speech analysis suggested by Justice Brennan in Rosenbloom, which protects speech about matters of "public concern" even when it causes harm to private individuals. I believe that Chief Justice Roberts's opinion in Snyder is written in such a way that its analysis is distinguishable from Justice Brennan's.

The speech in Rosenbloom which Justice Brennan suggested was protected was about Rosenbloom himself; he was described as "a main distributor of obscene material in Philadelphia." I believe that stands in contrast to the facts considered important by the majority in Snyder. As Justice Alito points out in Part IV of his dissent, the majority first confines their analysis to the placards at the funeral, putting aside the events before and after (which included a press release and an internet "epic"). Even in that limited context, the Court had to further decide that the "predominant theme" of the speech was of public concern, since some of the signs could also reasonably be interpreted as referring to the plaintiff or his family. The result was a conclusion that the speech in Snyder wasn't really about the plaintiff at all, which I believe is how the Chief Justice could conclude that it was in the category of speech afforded the most protection by the Supreme Court. I believe this is an important distinction between Rosenbloom and Snyder; if that's true, then we may not yet know if this court might adopt Justice Brennan's reasoning in a case applied to speech either about or targeted at a private individual.

Sticks and stones

may break your bones, but names can never hurt you; the Supreme Court decision in Snyder v. Phelps reminds me of the schoolyard taunt. The opinion seems to take great care to point out that all that was analyzed was the picketing activity of Westboro Baptist Church at the funeral of Matthew Snyder; the broader context of the conflict between Snyder and Phelps, which included television and internet publications, was explicitly not discussed by the majority or the concurrence. This case involves the interaction between two different parts of the law.

The first is an area of torts law; the lower court found that the Church had intentionally inflicted emotional distress (IIED) on Albert Snyder, the father of the Marine whose funeral the Church picketed, and one of the persons targeted directly by the Church's related writings. IIED requires a jury to decide that intentional, extreme, and outrageous conduct by the defendant caused severe emotional harm to the victim. In this case, the jury in the lower court did find the behavior of the Church outrageous, and awarded Snyder damages. The right of Snyder to sue for these damages is established by the State.

The second is First Amendment jurisprudence - in this case, the right to speak freely. The Court has allowed the State to constrain that right in certain cases, on a continuum from most protected to least protected. When the government attempts to interfere with the most protected speech, the Court applies the highest level of scrutiny, and the government usually loses. In this case, the Court looked exclusively at the behavior of the Church at the funeral and decided that the picketers were in a public place, making statements of broad public concern, not ones exclusively targeted at the Snyder family. Because this falls into the category of "most protected speech" the government must show that any restriction on it is very narrowly tailored to serve a compelling interest.

There are a number of things to look at in a decision like this. First, the dissent argued that the speech involved in the conflict between the Church and Snyder could reasonably be characterized as targeted when analyzed as a whole (including the television and internet postings). The majority decided that the predominant theme of the messages on the placards at the funeral were speaking to issues of broad public concern - America's tolerance of homosexuals. It's clear that what you include in the analysis will affect the outcome in a decision like this. Targeted speech of a certain kind was considered less protected in a case called Chaplinsky v. New Hampshire; that lower level of protection may have made a difference in this case.

Next, the compelling interest in this case would be the State's desire to protect its citizens from emotional attack. The Court has spoken in this area earlier in a 1988 case called Hustler Magazine v. Falwell. There the Court looked at speech that was targeted at a public figure. Despite the targeted nature of the piece, the Court decided that the State's interest in protecting the emotional well-being of a public figure could not overcome the speaker's right to create the parody in question. Had the Court in Snyder v. Phelps decided that the speech was targeted at Snyder and that Snyder was not a public figure, they might have given some guidance about the balance between the State and the speaker in this different configuration. Instead when they decided that the Church's message was of broad public concern, they put the speech into a category which the State is rarely allowed to regulate, because the Court believes the government may not interfere with the free discussion of ideas important to a politically informed citizenry.

Finally the Court addressed the issue of whether the definition of IIED was narrowly tailored enough to survive the strict scrutiny it imposed. In a statement which echoed a similar analysis in last year's United States v. Stevens, the Court reiterated that it was inappropriate to allow the over 50 jurisdictions in the United States to apply what are essentially local criteria in restricting speech. In the Federal statute at issue in the Stevens case, punishment could be imposed when the material was "illegal in the State in which the depiction is created, sold, or possessed", giving up to three different jurisdictions a chance to criminalize the video; in this case, each local jury could apply its own definition of "outrageous conduct" as described above. The majority decided that such a definition did not give enough guidance about what speech should be punished, and thus could reach even the speech in this case, which they decided was highly protected.

Although the opinion said multiple times that the decision was very limited to the facts in this case, we may be seeing a clue that IIED cases will be analyzed very strictly in future speech cases. On the other hand it may be that this analysis only implicates speech of public concern in a public forum, and that the outrageousness requirement may survive a lower level of scrutiny in different circumstances. If such a case comes up, we may see if the Court decides that some words, like sticks and stones, can hurt you, and be punished.

On Sarah Palin and inspiration

This response to a friend's blog re-post got too long for the comment box. There are a few questions to explore:

1. Was Sarah Palin responsible in any way for the Giffords shooting?
2. What about her free speech rights?
3. How does this compare to Mark David Chapman reading Catcher in the Rye?

Was Sarah Palin responsible in any way for the Giffords shooting?

18 U.S.C § 2(a), which is an example of a statute criminalizing aiding and abetting a crime, reads as follows: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." The key words a jury would consider in this case are probably counsels and induces. A prosecutor would work to convince a jury that Palin's writings and rhetoric convincingly counseled violence or induced it in the attacker. It's not a requirement that Palin be a necessary element; it's not necessary to prove that this attack would not have happened without Palin's contribution. A jury would just have to decide that Palin suggested or supported such an action.

Frankly, it's pretty unlikely any jury would reach that conclusion.

What about Sarah Palin's free speech rights?

The Supreme Court decided in Brandenburg v. Ohio that some violent speech is protected by the First Amendment to the US Constitution. The Court decided that States could only criminalize speech "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." This is a high bar for a prosecutor to reach in this case. Palin's web site was not apparently inciting imminent lawless action, and I don't think a jury would find that it was likely to do so either. While the web site listed individual lawmakers by name, and included gun sights targeting their districts, there was no direct call for violence, and most reasonable visitors would likely understand by the context that this was a political "call to arms" since this was published by the Palin PAC.

However the case isn't quite that open and shut. In 2003 the Supreme Court issued a relevant decision in Virginia v. Black, a case involving a statute criminalizing cross burning. While the defendants there claimed the statute infringed their right to free speech, the Court upheld the State's right to criminalize this form of expression because it was a "true threat"; the history of cross burning made this activity less an expression and more an intimidation. Here there is no statute prohibiting a publication of individual names with violent imagery, so Palin is not violating any law. However, if there were such a law, a prosecutor defending a conviction might look for evidence that such web sites have led to violence (e.g., against abortion providers) and try to make a similar argument.

Can you compare the Giffords shooting to the death of John Lennon?

Not really; an ambitious prosecutor would point out some salient differences. In particular, Sarah Palin did mention individuals by name, and placed gun sights (a symbol associated with violence) on their specific districts; Salinger's character did not shoot anyone, and especially did not mention John Lennon or anyone remotely like him. Because of these important differences, you can't say that just because it's unreasonable to associate Salinger with Mark David Chapman, it's therefore unreasonable to say Sarah Palin influenced Jared Lee Loughner. I think it's more compelling to do the analysis of her case on its own.

Sustaining grant-funded software

As I've written before, I am impressed by the Our Courts foundation, web site, and materials. My children found the interactive games compelling, and I'm considering using the volunteer guides in their schools.

I'm disappointed by their decision to use CC-BY-ND-NC as the license for the materials, in particular the inclusion of the NC (no commercial use allowed) and ND (no derivative works allowed) restrictions. The definition of "non-commercial" appears intuitively obvious, but as the discussions at creativecommons.org have demonstrated, its full import is still unclear. When coupled with ND (no derivatives), it's almost unnecessary; since no one can make a derivative work, anyone trying to commercialize the unchanged content would have to compete with Our Courts, which is providing the same work at no cost. The economics apparently wouldn't encourage such an attempt. There's also a compelling argument that restricting commercial use is unnecessary to protect the freedom of works and is incompatible with the principles of free software and free culture.

However, the use of ND is a bit more of a concern to me; it means that adopters can't adapt the materials if appropriate: altering vocabulary to address a different grade level, translating to another language, adding fact patterns or rights to the card hand-outs in the volunteer guide. Each potential improvement is a derivative work prevented by the license. Further, it means the games can only be re-distributed intact; downstream recipients, programmers and content developers, cannot add a new fact pattern to "Supreme Decision", or add/alter fact patterns to "Do I have a Right?" (DIHAR), add/change lawyers, add/change law firm upgrades, add rights, translate, etc.

I will guess that their team has plans to create more and different resources (games, materials, etc.); I look forward to them as they arrive. However, as they move forward, older resources will tend to ossify. By removing the no-derivative (ND) restriction (and perhaps by replacing it with SA) they may in fact improve the chance that these materials stay relevant and become more widely adopted, as they are adapted to new statutory environments, and are translated into Spanish, Chinese, and other languages. I recommend they use the CC-BY-SA to make it possible for Our Courts to foster an ecosystem around the content, and leverage their investment in those impressive materials by taking advantage of the enthusiasm and efforts of a wider, engaged community.

No grant-funded project wants to think about what happens when the soft money runs out - but funding doesn't last forever. Until Our Courts figures out an economic model that's self-sustaining, they run the risk that when they can no longer afford to publish and improve their materials, that investment and hard work disappears. They might take a look at the Connexions repository as an example of a project which uses the CC-BY license, thereby ensuring that their materials will continue to be updated and useful by the community even if their own funding should run out.

Airport Searches and the TSA

An interesting case from UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION, USA v. FODE AMADOU FOFANA, decided 2 Jun 2009, which held that the defendant could suppress the presentation of the forged passports he was carrying through security because the search was only reasonable to find "weapons, explosives, or prohibited items". Contraband or other generally illegal items are not reasonable targets for a TSA search.

Fofana does not challenge his selection for secondary screening, but rather argues that the hand search of his luggage went beyond the permissible scope of an airport screening search because Agent Stroud had already determined that he was not carrying weapons or explosives when she decided to open the envelopes containing the passports. He further argues that his search exceeded the TSA's statutory mandate under 49 U.S.C. § 44902(a) and 49 C.F.R. 1540.111. He reasons that under 49 U.S.C. § 44902(a) and 49 C.F.R. 1540.111, [*13] the TSA is only permitted to search passengers and their belongings to detect dangerous weapons, explosives, or other destructive substances. He contends, therefore, that the TSA exceeded its statutory authority by opening the envelopes after his bags had been cleared of any suspicion that they contained weapons, explosives, or prohibited items.

For the reasons explained above, the Court GRANTS Defendant's Motion to Suppress. Any evidence that was seized or subsequently obtained as a result of Fofana's unlawful search, including the three passports, will be suppressed.

The key part of the reasoning seems to be that the forged passports were found in a search which commenced after Fofana had been cleared (by X-ray, wand, and explosives swabbing) of having any "weapons, explosives, or prohibited items". A subsequent search for further items is, according to Judge Marbley, an unlawful search on the part of the TSA.

The Obama administration and secrecy

I read an entry on Glenn Greenwald's blog discussing a filing made by the Obama Department of Justice in the case of Al-Haramain v. Obama et al. Greenwald's analysis is that this is an unfortunate turn of events - an opportunity the Obama DOJ had to reverse Bush-era policy, which they let slip by. But after reading the filing, I'm not so sure.

It seems to me the brief is arguing that Classified information is determined by the Executive to be sensitive; only the Executive can determine who has access to it; and that there are case law and statutory precedents supporting their assertions. After reading the references, I don't actually see anything wrong with their reasoning. I think both Congress and the courts have concurred - let the experts (the Executive) be the final arbiters of whether disclosure of a document may be harmful to national security.

I believe what's happening here is that the plaintiffs have advanced the wrong arguments. Instead of asking the Court to compel the Executive to disclose the document, and instead of arguing that the Court could choose to disclose the document itself, they probably should be attacking the classification. There, I think, is the problem. The Executive clearly should be able to keep certain information secret - but there should be limits on what can be classified, and I don't think that argument has been advanced. Certainly it should not be possible for the Executive to classify documents to cover up wrongdoing - which in fact appears to be the tactic in use in this case.

However because the plaintiffs haven't (yet?) advanced that particular argument, the DOJ was not required to address it or advance it for them. Let's see if counsel for Al-Haramain addresses the propriety of the classification of these documents, and how the Obama DOJ responds to that. Until they do so, I think the DOJ is right to protect the concept of keeping classified information secret. That's too large a privilege to give up, especially if it can have serious consequences for national security.

Get out of jail, free

The Houston Chronicle has an article about technology at the Houston Municipal Court system. The court's computer network has been hit, hard, by a virus - the report suggests Conficker but the chief technical director for the City doesn't think so. The effects include a shutdown of the muni court on Friday, and a suspension for arrests for Class C misdemeanors.

To me it seems clear there are a number of lessons to learn:

1. Keep your critical computers away from the Internet. There are computers which are necessary for your department to function, and then there are the computers people use for less critical purposes. Think strongly about keeping an "air gap" between your critical infrastructure and the Internet.
2. Avoid an operating system monoculture. Another hard thing to do - it's a trade-off between being easy to manage (the Southwest Airlines approach) and being robust. Having even 20% of your computers running something other than Windows can mean the difference between an inconvenient virus attack, and shutting down your courts for the weekend.
3. Migrate off Microsoft Windows. It's a bug-ridden virus magnet.The sooner you move away from MS Windows on your critical infrastructure machines, the sooner you become more resistant to viruses and worms.