Reason Magazine - Topics > Free Speech/First Amendment

Perez Hilton Hates Sharing the Spotlight

mriggs@reason.com (Mike Riggs) — Wed, 23 Jul 2008 14:06:00 EDT

It seems that even bloggers who routinely skirt the Digital Millenium Copyright Act have a place in their hearts for intellectual property rights. Mario Lavandeira, the founder and host of Perezhilton.com is suing Elizabeth Silver-Fagan, the founder and host of Perezrevenge.com, for "cybersquatting and deceptive trade practices," according to Joseph Menn at the Los Angeles Times.

While there may be some small, innocuous truth to the deception claim (both sites ooze hot pink graphics), Perezrevenge.com isn't cybersquatting on Perezhilton.com. From Nolo:

Cybersquatting means registering, selling or using a domain name with the intent of profiting from the goodwill of someone else's trademark. It generally refers to the practice of buying up domain names that use the names of existing businesses with the intent to sell the names for a profit to those businesses.

The folks at Perezrevenge.com seem to be using their space, rather than holding it for ransom. They also have a slightly different business model, in that they steal photos, report celebrity journalism, and attack Lavandaeira's site, rather than just steal photos and draw semen on them. And by attacking Lavandeira's site, they're supplementing—not replacing—his product, and possibly even driving traffic his way.

Regardless, Lavandeira claims the following in his suit (full pdf):

[The] Defendants deceive the public and create the impression that www.perezrevenge.com emanates from, originates from, is associated with and/or is otherwise endorsed by Lavandeira which results in lost sales and severe damage to Lavandeira's reputation and goodwill.

Damage to his reputation and goodwill? The semen guy? The one with the blue/blond/strawberry hair? Seriously? Lavandeira doesn't have an ethical leg to stand on. His job entails pirating other people's work and then begging them not to sue him. His copyright page says as much:

All images on perezhilton.com are readily available in various places on the Internet and believed to be in public domain. Images posted are believed to be posted within our rights according to the U.S. Copyright Fair Use Act. [Emphasis added]

Where, then, does Lavandeira get off suing someone for doing to his work what he does to the works of hundreds of celebrity photographers? I wouldn't be surprised if it came out that this was a way for Lavandeira to boost traffic to his site ("Perez Hilton Admits Lawsuit Attempt Slutty and Silly"). Publicity stunt or no, I'm crossing my fingers that his attempt at abusing the court system to stifle a competitor comes back and bites him in the ass, much as it did Violet Blue when Boing Boing secretly took down all her guest posts and links after the supposedly anti-DMCA Blue sued an up and coming porn star for "stealing" her totally original name.

Wardrobe Malfunctioned Without Warning

jsullum@reason.com (Jacob Sullum) — Mon, 21 Jul 2008 15:00:00 EDT

Today the U.S. Court of Appeals for the 3rd Circuit overturned the $550,000 fine that the Federal Communications Commissions imposed on CBS for Janet Jackson's failure to keep her breasts in her bustier during the 2004 Superbowl halftime show. It ruled that the FCC's abrupt abandonment of a longstanding policy forgiving brief, unplanned bits of "indecency" was "arbitrary and capricious," violating the Administrative Procedure Act. Because of the change in policy, the court said, CBS did not have fair warning that it could be fined for an incident like this one. Last year the U.S. Court of Appeals for the 2nd Circuit reached a similar conclusion (PDF) regarding the FCC's suddenly strict treatment of fleeting profanities uttered by celebrities during live award shows. In March the Supreme Court agreed to review the latter decision, so it may soon decide the extent to which the FCC can make shit policy up as it goes along.

Here (PDF) is the 3rd Circuit decision. Here is my column about the 2nd Circuit case.

'It's Illegal to Take a Picture of a Law Enforcement Officer'

jsullum@reason.com (Jacob Sullum) — Wed, 16 Jul 2008 13:44:00 EDT

Last month Scott Conover was driving on Highway 421 in Mountain City, Tennessee, when he saw a Johnson County sheriff's deputy, Starling McCloud, on the side of the road near a Mustang he had just pulled over. For reasons that remain somewhat mysterious, Conover decided to take a picture of McCloud with his iPhone. According to McCloud and Mountain City police officer Kenneth Lane, who stopped at the scene to assist McCloud, Conover turned his Hummer around after passing the traffic stop and came by again slowly, telling McCloud, "Smile. I'm going to take your picture."

Question: What crimes did Conover commit? If your answer is "none," you may not be qualified to be a sheriff's deputy in Johnson County, Tennessee. McCloud counted three: "unlawful photographing in violation of privacy," "pointing a laser at a law enforcement officer," and "disorderly conduct."

The first charge is clearly groundless, since it applies only to a photograph taken where "there is a reasonable expectation of privacy" (i.e., not on a public road) if the photograph "would embarrass or offend an ordinary person" or if it was "taken for the purpose of sexual arousal or gratification." By Conover's account, McCloud added his own provision to the law, saying, "It's illegal to take a picture of a law enforcement officer." The laser charge also seems to be baseless, assuming Conover is telling the truth when he says, "At no time did I have a laser. I had an iPhone." The disorderly conduct charge is based on Conover's refusal to delete the picture of McCloud, something the deputy had no right to demand.

"This officer asked the male subject to hand over the camera or delete the picture," McCloud reported (PDF). "The male subject said he was not going to do anything and got irate." Officer Lane confirmed (PDF) McCloud's account:

Deputy McCloud then asked the driver to delete the picture and told him he could leave....This man became very irate and started cursing. Deputy McCloud asked Mr. Conover just to delete the picture and he refused. This officer heard the woman in the passenger seat say, "Just delete it." Two children were sitting in the back seat as well.

My favorite part: According to Mountain City police officer Ben May, who also stopped by the scene, as Conover was being handcuffed and carted off to jail, he "demanded that his daughter take another picture." May added (PDF), "I then seen a young girl take a picture of the subject, Deputy McCloud, and myself." Evidently the little girl was not arrested.

Conover sounds like a bit of a dick, frankly, but McCloud, who misapplied the law and abused his authority, is more than just a private dick; he's a public menace. As Conover told WJHL, a local TV station, "This guy maliciously arrested me, charging me with phony charges that he don't even understand himself." WJHL notes that "taking photos is protected by the First Amendment." And as much as McCloud might wish it were otherwise, there is no law against annoying police officers.

[Thanks to Paul Armentano for the tip.]

Very Animated Anti-Arab Animus

gillespie@reason.com (Nick Gillespie) — Mon, 14 Jul 2008 08:34:00 EDT

Alan Vanneman sends along this dispatch from The Wash Post, in which an ex-diplomat has been sent to jail for being, well, not very diplomatic:

A retired Foreign Service officer was sentenced yesterday to one year in prison for making threats against Arab American Institute President James Zogby and other employees there.
W. Patrick Syring, 50, who served two tours in Beirut during his 25-year State Department career, pleaded guilty to violating civil rights laws. The charges stem from messages he left at AAI in the midst of the 2006 war between Israel and Hezbollah.
"The only good Arab is a dead Arab," Syring said in a profanity-laden July 2006 voice-mail message delivered to AAI, which promotes Arab American participation in elections and policy issues.
After federal prosecutors in the District accused him of intimidating the workers based on their national origin, Syring sent an incendiary message to a television station where Zogby had been interviewed. In the March 2008 e-mail, Syring repeated some of the language from his phone call and accused Zogby of "promoting the interest of Hezbollah, Hamas and Arab terror."

Whole thing here.

While it's easy to see why the guy washed out of the diplomatic corps, it's not fully clear to me that he should be doing jail time for his out-of-bounds comments (at least as reported in the press). I like the idea of holding government officials to higher standards than the rest of us, but it's not clear to me that's in play here. He should (and I'm assuming he will) have a tough time finding work. What say you, Hit & Runners?

Alan Vanneman site here; always worth reading.

Swift SLAPP

jsullum@reason.com (Jacob Sullum) — Wed, 09 Jul 2008 17:35:00 EDT

Last May property rights activists in Clarksville, Tennessee, ran an ad in a local paper urging their neighbors to oppose a redevelopment project that involves the use of eminent domain. The ad, sponsored by the Clarksville Property Rights Coalition, noted that Mayor Johnny Piper, City Councilman Richard Swift, and Downtown District Partnership member Wayne Wilkinson "are all developers" and declared:

This redevelopment plan is about private development. Our city government is controlled by developers....This redevelopment plan is of the developers, by the developers, and for the developers.

Not only did the plan win the city council's approval, but now Swift and Wilkinson are suing the coalition for defamation, seeking $500,000 in damages. Bert Gall, the Institute for Justice attorney who is defending the activists, says:

Swift and Wilkinson are thin-skinned bullies trying to silence and intimidate their critics with frivolous litigation. All citizens have a First Amendment right to speak out against government abuse-without getting sued for their speech by the very people whose actions they are protesting.

Careful there, Bert. Swift and Wilkinson might sue you too.

Pity the Poor Incumbent

jsullum@reason.com (Jacob Sullum) — Wed, 09 Jul 2008 13:00:00 EDT

Members of Congress don't like being criticized, especially close to an election. They also don't like facing challengers who can pay for their own campaigns.

In 2002 Congress passed a law that addressed both of these problems. It was called the Bipartisan Campaign Reform Act (BCRA), because "Bipartisan Incumbent Protection Act" would have been too revealing.

Last summer and last month, in decisions almost exactly a year apart, the U.S. Supreme Court ruled that BCRA's restrictions on issue ads and its attempt to erase rich candidates' fund raising advantage violate the First Amendment. These cases highlight the need for true campaign reform: deregulation of election-related speech. Yet both major-party presidential candidates want to move in the opposite direction, imposing new restrictions on Americans' ability to put their money where their mouths are.

Last year's case dealt with BCRA's ban on "electioneering communications," interest group ads that mention candidates for federal office within 30 days of a primary or 60 days of a general election. The Court concluded that the ban, when applied to messages that are neither "express advocacy" (explicitly calling for a candidate's election or defeat) nor its "functional equivalent," infringes upon the constitutional right to freedom of speech.

In last month's case, the Court overturned a BCRA provision that triples the individual contribution limit and eliminates the cap on coordinated party expenditures for candidates opposed by wealthy people financing their own campaigns. "The unprecedented step of imposing different...limits on candidates vying for the same seat is antithetical to the First Amendment," Justice Samuel Alito wrote for the five-member majority.

Alito rejected the government's claim that such an asymmetrical arrangement is necessary to "level electoral opportunities," saying that argument "has ominous implications." He noted that "different candidates have different strengths": Some are wealthy, while others have wealthy supporters; some are celebrities, while others come from famous families. (He might also have noted that some are taller, better-looking, and better-spoken than others.) It's up to voters to weigh these advantages, Alito said, warning that "it is a dangerous business for Congress to use the election laws to influence the voters' choices."

One candidate strength Alito was too tactful to mention is incumbency, which confers name recognition, free publicity, and the power to dispense favors, which in turn attracts campaign contributions. Those advantages seem to make a big difference: Since 1980 the re-election rate for House members has ranged from 88 percent to 98 percent.

Combine the enormous advantages of incumbency with the campaign contribution limits Congress imposed in 1974, and you start to see why rich guys are tempted to run for office. The Supreme Court has said they have a First Amendment right to finance their own campaigns but not to finance other people's campaigns.

Most of the current Court is skeptical of that distinction, but at least four justices seem inclined to eliminate it by allowing restrictions on expenditures as well as contributions. The next Supreme Court appointment could make a crucial difference for the freedom of Americans to engage in political speech, directly or by proxy, without fear of being fined or going to prison.

Unfortunately, John McCain and Barack Obama both seem to think the main problem with campaign finance restrictions is that there aren't enough of them. McCain spearheaded BCRA and made campaign reform the signature issue of his 2000 presidential campaign. Both McCain and Obama worry that money plays too big a role in political campaigns, and both have decried the influence of ads sponsored by the independent groups that have proliferated because of BCRA's restrictions.

Then again, McCain has been criticized for excessive coziness with lobbyists, while Obama's credibility on this issue took a big hit when he decided to decline taxpayer funding for his general election campaign so he could avoid spending limits. I'm not sure who the bigger faker is, but he could turn out to be a smaller menace to freedom of speech.

Now Playing at Reason.tv: Who's Waging the War on Sex?

Thu, 03 Jul 2008 16:30:00 EDT

reason.tv recently caught up with author Marty Klein to chat about his book America's War on Sex: The Attack on Law, Lust and Liberty.

"Our glorious Constitution," says Klein, a certified sex therapist and frequent expert witness in anti-censorship court cases, "guarantees us the widest range of right civilization has ever seen. Why are those rights systematically damaged and repealed when it comes to sexual expression?"

Click below to watch this four-minute video.

And go here to add this video to your website.

reason on sex here.

On censorship here.

On free speech and First Amendment issues here.

John Stagliano on Censorship

gillespie@reason.com (Nick Gillespie) — Tue, 01 Jul 2008 09:57:00 EDT

Over at The Los Angeles Times' Opinion section, adult moviemaker and distributor John Stagliano—currently facing federal obscenity charges that could put him in prison for almost 40 years—is debating Pepperdine Law School's Barry McDonald all week about free expression. Briefly, Stagliano is for it, McDonald not so much. (Full disclosure: Stagliano is a supporter of Reason Foundation, the nonprofit that publishes this website.)

Here's a passage worth reading from Stagliano, auteur of the popular Buttman series and the award-winning Fashionistas:

Barry, your point is that people must be forced to not think things that you don't like, and for that you'd have me put in jail. Your comment that it "seems" to you that viewing images "to obtain sexual pleasure cannot be the healthiest way of experiencing sex" seems not a good enough reason to imprison me for 39 years. In fact, using a proper concept of morality based on individual rights, it is you and those who would put me in jail when I did not infringe on anyone's rights who are behaving immorally.

More here, today and the rest of the week.

Check out Stagliano's Defend Our Porn! website.

If you subscribe to the print edition of reason (only $19.97 for a year's worth of the mag ABC News' John Stossels says is "one sane voice fighting tons of nonsense"), look for a Q&A with Stagliano in the August/September double issue, now winging your way. And look for an extended interview soon at reason.tv, our video site featuring the Drew Carey Project.

If you don't subscribe, do so now! You'll receive 11 action-packed issues of the richly illustrated mag that the Village Voice says is "dictating the libertarian spin" and you'll help underwrite the expenses of publishing the print mag, reason online, and reason.tv.

Hustler, Once More Into the Constitutional Breach

gillespie@reason.com (Nick Gillespie) — Tue, 01 Jul 2008 09:23:00 EDT

In the hometown of pornographer and First Amendment defender Larry Flynt, another constitutional battle is a-brewing due to Hustler:

A Northern Kentucky mother of two is suing Ohio's attorney general, seeking to overturn part of a new Ohio law that requires those convicted of selling obscene material to register as sex offenders
The woman, identified only as G.B. in the suit, is a manager of the downtown Hustler store that sells magazines, DVDs, videos, lingerie, lotions and other items of a sexual nature.
"She's not been convicted or charged with anything. She's frightened," attorney Lou Sirkin said Monday.
The woman is afraid, Sirkin said, because under the current law, if she sells something at the store that is deemed—even years later—to be obscene, the law requires her to register as a sex offender for 15 years.

More here at The Cincinnati Enquirer.

Update: Now ad-free!

Another Provision of the Incumbent Protection Act Falls

jsullum@reason.com (Jacob Sullum) — Mon, 30 Jun 2008 11:23:00 EDT

On Thursday, the same day it upheld the Second Amendment right to keep and bear arms, the Supreme Court upheld the First Amendment right to freedom of speech by rejecting one of the most blatantly self-serving provisions of the McCain-Feingold campaign finance law. The same legislators who did not like being criticized on radio and TV close to elections also were dismayed by the prospect that their huge electoral advantages as incumbents might be overcome by wealthy challengers freely spending their own money. Hence Congress decreed that in such races the less wealthy candidate would be allowed to collect three times the standard limit from each contributor, although his opponent would still be bound by the usual rules.

Without speculating about the motivation for such decidedly unevenhanded treatment, the Court ruled that it violates the First Amendment. "We have never upheld the constitutionality of a law that imposes different contribution limits for candidates who are competing against each other," Justice Samuel Alito wrote for the majority. Under "millionaire's amendment" to the Bipartisan Campaign Reform Act, he noted, candidates who want to spend their own money on their own campaigns must "choose between the First Amendment right to engage in unfettered political speech and subjection to discriminatory fund-raising limitations."

This burden, Alito added, "is not justified by any governmental interest in eliminating corruption or the perception of corruption," the rationale the Court has cited in upholding campaign contribution limits. Instead the government argued that "asymmetrical limits are justified because they would 'level electoral opportunities for candidates of different personal wealth.'" Alito found this rationale troubling:

The argument that a candidate's speech may be restricted in order to "level electoral opportunities" has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office....Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives.

YouTube Video Results in Raid

mriggs@reason.com (Mike Riggs) — Fri, 27 Jun 2008 14:35:00 EDT

After seeing a YouTube video made by Andre Moore, Philadelphia police broke down Moore's front door at 6 a.m. yesterday and arrested him for assault. Unlike the case of eight Florida girls who assaulted another girl, however, Moore's video didn't contain evidence of any criminal wrongdoing—unless verbally advocating violence against police constitutes a crime.

Michael Carroll from Villanova U. doesn't think the aggravated assault charges will stick:

"I'm not saying this is popular speech or that this is a responsible opinion. It's clear people are going to be upset by it, but that doesn't make it criminal."
Carroll believes this arrest stems solely from Moore's speech and nothing else, and speech, regardless of how hateful, is protected under the First Amendment.

Moore's video joins Body Count's "Cop Killer" on the list of "Protests Against Police Abuse That Actually Incite More Police Abuse."

Senior Editor Radley Balko wrote about another Internet phenomenon that earned police ire, here.

No Shit

jsullum@reason.com (Jacob Sullum) — Tue, 24 Jun 2008 07:00:00 EDT

According to the Federal Communications Commission, a single fuck or shit on a live awards show can cost a TV network millions of dollars, but the same words are acceptable in a “bona fide news interview.” The accidental airing of a celebrity’s spontaneous expletive is indecent, but the deliberate airing of the very same footage during a news report is not. The use of expletives is OK in a fictional World War II movie because they are “integral” to the film yet indecent in a documentary about real-life blues musicians.

Confused? Imagine how broadcasters feel when they try to figure out the FCC’s policy regarding dirty words on the air. In March the U.S. Supreme Court agreed to review that policy, which a federal appeals court has deemed “arbitrary and capricious.”

The last time the Supreme Court addressed the FCC’s regulation of broadcast indecency was in 1978, when it upheld a fine provoked by a mid-afternoon airing of a George Carlin monologue on a New York City radio station. The decision emphasized the distinction between Carlin’s “verbal shock treatment,” involving the deliberately provocative, repeated use of expletives, and “the isolated use of a potentially offensive word.”

For the next three decades, taking its cue from the Court, the FCC let stray expletives slide. Then Bono got a little carried away at the 2003 Golden Globe Awards, where he pronounced his award for best original movie song “really, really fucking brilliant.”

After initially saying Bono’s expletive was not indecent because it was not really a sexual reference and in any event was “fleeting and isolated,” the FCC reversed itself. It later ruled that expletive-containing comments by Cher at the 2002 Billboard Music Awards and by Nicole Richie at the 2003 Billboard Music Awards were indecent as well.

Last year, in response to a lawsuit by broadcasters, the U.S. Court of Appeals for the 2nd Circuit ruled that the FCC had violated the Administrative Procedure Act by failing to “articulate a reasoned basis for its change in policy.” That decision, which the Supreme Court now has agreed to review, did not definitively address the broadcasters’ constitutional objections, but the 2nd Circuit was skeptical that they could be overcome.

The Cunning Linguist

info@reason.com (Marty Beckerman) — Mon, 23 Jun 2008 12:00:00 EDT

Every obituary for George Carlin will cite his "Seven Words You Can Never Say On TV" routine in the first paragraph, if not the first sentence. The monologue led to Carlin's arrest and a 1978 Supreme Court obscenity case. (Carlin admitted that he was "perversely...proud of" the federal legal drama that his dirty words caused.)

But Carlin's comedy was not simply about dirty words; it was about the English language, and our collective fear of it. He used more expletives than Howard Stern, but his obsession was linguistics, not lasciviousness. As Carlin told CNN in 2004, "[I]f I hadn't chosen the career of being a performer, I think linguistics would have been a natural area that I'd have loved-to teach it, probably...Language has always fascinated me."

He was especially fascinated with the blunting of language for comfort's sake. Carlin ridiculed our watering-down of sexual descriptions and ethnic categories, not to mention our mourning clichés, all of which he believed were the real-life manifestations of George Orwell's "Newspeak," utilized to obscure reality, numb the mind, and discourage criticism. As much as Carlin loathed theology, war, greed, and hypersensitivity, he was most disgusted when religous puritans, the military, corporations, and P.C. "classroom liberals" mangled the language for the purpose of soothing the masses. When I saw Carlin perform in the ‘90s, the biggest laugh of the night came from his observation that "the unlikely event of a water landing," discussed in every preflight safety lecture, sounds suspiciously like "crashing into the fucking ocean."

In fact, Carlin was disgusted with the mangling of English for any reason. He hated anyone who pronounced forte as "for-tay," insisted that "no comment is a comment," and advised us that "unique needs no modifier; very unique, quite unique, more unique, real unique, fairly unique, and extremely unique are wrong and they mark you as dumb, although certainly not unique." For all of his lifelong ranting against conservatism, Carlin was a diehard traditionalist when it came to grammar and vocabulary.

This mastery of the language allowed Carlin to craft his puns ("Soft rock music isn't rock, and it ain't music...it's just soft," "I thought it would be nice to get a job at a duty-free shop, but it doesn't sound like there's a whole lot to do in a place like that"), but also gave him the ability to see how we pad our existences with pleasant lies. In Carlin's mind, language should not be safe, and neither should life. Children, he argued in his final HBO special, this year's It's Bad for Ya, should play with sticks, not have "play dates" under the ever-watchful eyes of overprotective, micro-managing parents. (He had previously complained, with his trademark growl, "We've taken all the fun out of childhood just in the interest of saving a few lives.")

Near the end of his career, Carlin was more bitter than funny—It's Bad for Ya is a righteous tirade that provokes more nods than laughs—but he never lost his unparalleled ability to play with words. He deconstructed the phrases that we use absentmindedly, exposing our hypocrisies—and our human condition—in the process. He was a comic genius because he was a linguistic master. As Carlin said in his most famous routine: "I thank you for hearing my words... They're my work, they're my play, they're my passion. Words are all we have, really."

Marty Beckerman is the author of Dumbocracy, which will be released this September. His website is www.MartyBeckerman.com

Carlin Kicks the F*cking Bucket

mriggs@reason.com (Mike Riggs) — Mon, 23 Jun 2008 11:28:00 EDT

The guy whose raunchy lines your prudish friends hated you for reciting in crowded restaurants, George Carlin, is dead of a heart attack at 71 years old.

CNN misses him so much that it's hosting an ever-so-lightly censored version of the “Seven Dirty Words” sketch on its site. The sketch (which grownups can view uncensored below) led to Carlin’s arrest and the 1978 U.S. Supreme Court case, FCC v. Pacifica Foundation. Fortunately, the 5-4 ruling let Carlin off the hook on the grounds that his monologue was "indecent but not obscene"; unfortunately, it also gave the Federal Communications Commission some guidelines on how to censor the airwaves without violating the Constitution.

Carlin refused to vote, calling the electoral process the "delusion of choice." Ironically, one of the last times he publicly discussed politics was during an interview with the late Tim Russert.

For your pleasure, a compilation of reason-esque Carlin quotes:

"Some national parks have long waiting lists for camping reservations. When you have to wait a year to sleep next to a tree, something is wrong."

"I'm completely in favor of the separation of Church and State. My idea is that these two institutions screw us up enough on their own, so both of them together is certain death."

"Fighting for peace is like screwing for virginity."

"If we could just find out who's in charge, we could kill him."

"Think off-center."

And of course, the video:

Nick Gillespie on Carlin's American Spirit, here. Jacob Sullum writes here on two decades of post-Seven censorship.

UPDATE: Check out Jay Dixit's thorough and fascinating interview with Carlin on the Psychology Today blog.

The Donkey Likes Angry Sex, and the Man Was Playing Hard to Get

jsullum@reason.com (Jacob Sullum) — Mon, 16 Jun 2008 09:54:00 EDT

In a letter to blogger Patrick Frey, Marcy Tiffany, Judge Alex Kozinski's wife, tries to set the record straight regarding her husband's collection of humorous, sometime raunchy digital pictures. Her most important points:

1. The "website" described by the Los Angeles Times is in fact a set of files on a computer in his home. Kozinski and his family use the computer as the server for their home network and as a way of sharing pictures and other files with relatives, friends, and acquaintances.

2. The files on the computer were never meant to be public but were accessed by Cyrus Sanai, a lawyer with a grudge against Kozinski, who shopped the more risqué images around to various news organizations, including the Times.

3. The images on which the Times focused not only are not the sort of material that would be found to be legally obscene; they do not even qualify as pornography, since their intent is to amuse rather than arouse. Furthermore, although the Times described the "sexually explicit material" as "extensive," it represents just "a tiny pecentage" of the files on the computer, which include many other visual jokes as well as personal files such as family photos.

4. The Times and other news outlets misrepresented the nature of the images. Footage the Times described as "video of a half-dressed man cavorting with a sexually aroused farm animal," for example, was actually a widely circulated YouTube video of "a man trying to relieve himself in a field when he is attacked by a donkey he fights off with one hand while trying to hold up his pants with the other." The San Francisco Chronicle, perhaps taking its cue from the Times, called this an example of "bestiality."

In light of these details, the attacks on Kozinski, whether on his ability to preside over an obscenity trial or on his fitness as a judge, are even more outrageous. Stanford law professor Larry Lessig's take on this, which likens Sanai to a burglar rummaging through Kozinski's home, looking for potentially embarrassing reading material, seems apt.

Previous posts on this story are here and here.

"Purple Rain" in a Whole New Light

mriggs@reason.com (Mike Riggs) — Fri, 13 Jun 2008 15:12:00 EDT

On Wednesday, police in the Indian city of Srinagar shot cannons loaded with purple water at Kashmiri Government workers who were protesting fuel price hikes. Here's an explanation for why police mark rioters with pretty colors:

To identify and arrest them later. Many water cannons on the market today come with a tank specially designed to store a semi-permanent colored dye. Once the water cannon is trained on a crowd, anyone hit by the spray will be easily recognizable by police.

Because shooting citizens with water cannons for exercising their constitutional rights is just a little too reminiscent of Civil Rights era police abuses, American cops do the next best thing: Use paintballs.

[T]he FN303—the "less-lethal" gun that caused the accidental death of an Emerson College student during World Series celebrations in 2004—can be armed with pellets that include paint instead of a more typical pepper spray-based projectile. Since last October, U.S. Border Patrol agents have used FN303s loaded with paint to police fences in Arizona and California.

Be on the lookout for funny colored SUV drivers if gas prices keep going up.

Senior Editor Brian Doherty on the pros and cons of civil disobedience.

A Judge's Dirty Pictures: Funny, Just Gross, or a Resigning Offense?

jsullum@reason.com (Jacob Sullum) — Thu, 12 Jun 2008 19:34:00 EDT

A federal judge has granted a request to delay an obscenity trial over which he is presiding so prosecutors can decide whether sexually explicit material on his semi-private website represents a conflict of interest. The defendant is Ira Isaacs, a self-described "shock artist" whose videos feature bestiality and defecation. The judge is libertarian favorite Alex Kozinski, chief judge of the U.S. Court Appeals for the 9th Circuit (doing a trial court rotation), whose interests seem to be a bit tamer:

Among the images on the site were a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal....
Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.
The sexually explicit material on the site was extensive, including images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women's crotches in snug-fitting clothing or underwear.

Kozinski told The Times that he began saving the sexually explicit materials and other items of interest on his website years ago.

"People send me stuff like this all the time," he said.

In turn, he said, he occasionally passes on items he finds interesting or funny to others.

Among the sexually explicit material on his site that he defended as humorous were two photos. In one, a young man is bent over in a chair and performing fellatio on himself. In the other, two women are sitting in what appears to be a cafe with their skirts hiked up to reveal their pubic hair and genitalia. Behind them is a sign reading "Bush for President."

"That is a funny joke," Kozinski said.

The judge said he planned to delete some of the most objectionable material from his site, including the photo depicting women as cows, which he said was "degrading...and just gross." He also said he planned to get rid of a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.

Kozinski offered the Los Angeles Times two possible explanations for the especially offensive images: that he uploaded them by accident or that his adult son, Yale, uploaded them on purpose without his knowledge. Judging from the description in the Times, Kozinski is right that none of this stuff would be found to be obscene—certainly not in Los Angeles, where the trial is taking place. Kozinski, a First Amendment stalwart, can be accused of indiscretion but not of hypocrisy. In fact, the prosecutors evidently are worried that he will be sympathetic to the defendant because he sees nothing wrong with looking at dirty pictures. If he remains on the case after this embarrassment, of course, there's a possibility he would err in the opposite direction. But given his ability to distinguish between "funny" and "just gross," I'd say Kozinski has the right skill set to draw the arbitrary, subjective line between sexually explicit and obscene. Too bad that's up to the jury.

Concerned Women for America are (is?) demanding Kozinski's resignation, which makes me like him even more.

Matt Welch noted the Isaacs trial earlier this week.

Violating Human Rights to Defend Them

jsullum@reason.com (Jacob Sullum) — Thu, 12 Jun 2008 13:23:00 EDT

At a time when the U.S. government is often (and often justly) criticized for compromising civil liberties in pursuit of terrorists, New York Times legal writer Adam Liptak reminds us of one respect in which Americans are indisputably freer than other Westerners: They can speak their minds without fear of being prosecuted for offending people. In countries such as Canada, France, England, Germany, and the Netherlands, by contrast, freedom of speech can be overriden in the name of equality and multiculturalism. Mark Steyn, the Canadian writer accused of violating British Columbia's hate speech law by saying unnice things about Islam in Maclean's, tells Liptak:

What we're learning here is really the bedrock difference between the United States and the countries that are in a broad sense its legal cousins. Western governments are becoming increasingly comfortable with the regulation of opinion. The First Amendment really does distinguish the U.S., not just from Canada but from the rest of the Western world.

In hearings before the British Columbia Human Rights Tribunal, the lawyer representing Maclean's noted that the province's law gives writers accused of hurting people's feelings little recourse:

Innocent intent is not a defense. Nor is truth. Nor is fair comment on true facts. Publication in the public interest and for the public benefit is not a defense. Opinion expressed in good faith is not a defense. Responsible journalism is not a defense.

An attorney with the British Columbia Civil Liberties Union (which is siding with Maclean's) explains the Canadian attitude this way:

Canadians do not have a cast-iron stomach for offensive speech. We don't subscribe to a marketplace of ideas. Americans as a whole are more tough-minded and more prepared for verbal combat.

In the face of Canada's enforced niceness, it is refreshing to hear someone defend the principle that people should not have to justify their opinions to the government, period. Ezra Levant, another Canadian journalist who faced a human rights complaint (since retracted) for offending Muslims, put it this way during an encounter with an inquisitor from the Alberta Human Rights and Citizenship Commission:

I reserve maximum freedom to be maximally offensive, to hurt feelings as I like....The only thing I have to say to the government about why I published [the Jyllands-Posten Muhammad cartoons] is because it's my bloody right to do so.

That's from my February column about Canada's human rights tribunals. Last week I noted that the French government, which is so keen to defend the country's secular and feminist values that it's prepared to violate Muslims' rights to freedom of religion and freedom of contract, nevertheless defends their "right" not to be offended. I should have mentioned a recent example cited by Liptak (and noted by our own Michael Moynihan): "Earlier this month, the actress Brigitte Bardot, an animal rights activist, was fined $23,000 in France for provoking racial hatred by criticizing a Muslim ceremony involving the slaughter of sheep."

Addendum: As Robert notes in the comments, the Alberta Human Rights and Citizenship Commission continues to investigate Levant for reprinting the Muhammad cartoons in The Western Standard. Although Syed Soharwardy, president of the Islamic Supreme Council of Canada, withdrew his complaint last winter, Levant reports that the commission is still considering a similar complaint from Yasmeen Nizam of of the Edmonton Council of Muslim Communities. You can keep up with the case at Levant's blog. Information about Mark Steyn's speech-related legal troubles is available here.

Borking Bork

info@reason.com (Damon W. Root) — Tue, 27 May 2008 14:22:00 EDT

Over at the Volokh Conspiracy, libertarian legal scholar and reason contributor Ilya Somin directs us to his essay, "The Borkean Case Against Robert Bork's Case for Censorship," which is now available for downloading at the Social Science Research Network. In short, Somin deploys Bork's own arguments against anti-trust legislation to undermine Bork's later position in favor of government censorship. While the whole thing is well worth your time, here's one particularly sobering description of Bork's illiberal approach to free speech and popular culture:

At the outset, it is important to appreciate the radical sweep of Judge Bork's vision in Slouching Towards Gomorroah. Although Bork is usually viewed, quite correctly, as a conservative, there are some radical implications to this book. Judge Bork not only criticizes modern liberals and libertarians, he also goes way back to the source, so to speak, and attacks the Enlightenment, the Declaration of Independence, and John Stuart Mill. Judge Bork harshly criticizes the principles of the Declaration, arguing that they are "pernicious" if "taken...as a guide to action, government or private." He denounces John stuart Mill's liberty-protecting "harm principle" as "both impossible and empty."

There is, therefore, a great deal at stake in considering Judge Bork's argument in Sloaching Towards Gomorrah. If we accept it, we would have to reject a very large part of the American tradition of individual freedom and perhaps even the broader Western tradition of liberalism.

Whole thing available here.

Ix-Nay on the Ult-Cay

jsullum@reason.com (Jacob Sullum) — Wed, 21 May 2008 16:38:00 EDT

Is Scientology a cult or a religion? I've long been suspicious of the distinction, which seems to be more a matter of time than anything else. But at least one British teenager thinks the answer is "cult," which is too bad for him, because that's the answer that gets you a summons from City of London police for violating the Public Order Act. Section 5 of the act prohibits the use of "threatening, abusive or insulting words...within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby." The punishment for violators is "a fine not exceeding level 3 on the standard scale." Prior to a May 10 protest at the Church of Scientology's London headquarters, police warned that use of the c-word would not be tolerated. But there it was on the kid's sign, which he refused to remove upon being "strongly advised" to do so. A leading civil libertarian told the Guardian "this barmy prosecution makes a mockery of Britain's free speech traditions."

[Thanks to Lee Gibson for the tip.]

The Crime of Lying About Fake Child Pornography

jsullum@reason.com (Jacob Sullum) — Mon, 19 May 2008 14:27:00 EDT

Today the U.S. Supreme Court upheld a federal law that makes it a crime to offer or solicit child pornography. This law defines child pornography more narrowly than an earlier statute that was overturned by the Court on First Amendment grounds, and it does not seem to leave a lot of room for punishing or chilling protected speech. But there is this strange wrinkle, noted by Justices David Souter and Ruth Bader Ginsburg in their dissent: In the case of a person offering to sell or transfer pornography, he either has to believe the images feature actual children or intend that people receiving the offer believe that. The images need not in fact feature actual children, however (or even exist). Yet the Court has said that "virtual child pornography," featuring computer-generated or manipulated images but no actual children engaged in sex acts, cannot be constitutionally prohibited (unless it is deemed "obscene"). Hence this law punishes, among other things, speech about transactions involving legal material, on the condition that the person offering it either thinks or claims it is illegal. In such a case, the transaction itself is legal, but talking about it is not.

Today's decision is here.

Is Being Mean Online a Federal Crime?

jsullum@reason.com (Jacob Sullum) — Mon, 19 May 2008 12:41:00 EDT

Remember Lori Drew, the Missouri woman accused of playing a cruel prank on Megan Meier, a 13-year-old girl who killed herself afterward? On MySpace, Drew allegedly pretended to be a boy who at first befriended Meier, a former friend of her daughter's, and then turned on her, saying "the world would be a better place" without her. After looking into the case, local and state law enforcement authorities could not find any criminal laws that Drew had broken. But last week Thomas P. O'Brien, the U.S. attorney for the Central District of California, brought four federal charges against her: one count of conspiracy and three counts of accessing a computer without authorization via interstate commerce to obtain information to inflict emotional distress. Each count carries a maximum penalty of five years in prison. "To my knowledge it is the first case of its kind in the nation," O'Brien said. "But when an adult violates terms on a MySpace account to gain information that creates this type of reaction, it caused this office to take a really hard look."

A little too hard, I'd say. O'Brien is by no means alone in wanting to hold Drew at least partly responsible for Meier's death, but the law does not allow him to do so. So instead he has resorted to legal contortions aimed at converting Drew's violation of MySpace rules into a federal crime. (The rationale for indicting Drew in California, by the way, is that MySpace is based in Beverly Hills.) There are plenty of reprehensible things people do that are not and should not be crimes. One of them is being mean to emotionally vulnerable people. Since individual reactions to insults are unpredictable and highly variable, a rule that criminalized speech when it leads to suicide or other forms of self-harm would chill any expression more negative than "Nice day, isn't it?" Because there is no such rule, O'Brien has twisted a law aimed at fraud, spying, vandalism, and child pornography into an excuse to punish a woman everyone hates.

Back in 2003, George Washington University law professor Orin Kerr warned that broadly construed laws against unauthorized computer access could "criminalize contract law on the Internet, potentially making millions of Americans criminals for the way they write e-mail and surf the Web."

RateMyCop.com

rbalko@reason.com (Radley Balko) — Tue, 13 May 2008 12:00:00 EDT

Many police departments have set up Internet registries for sex offenders and drug offenders, and police also have begun posting the pictures and names of suspected johns online. Still, police groups took umbrage when a site called RateMyCop.com appeared in March.

Site founder Gino Sesto wrote to police departments across the country and obtained lists of the names and badge numbers of their officers. He then posted the names online in a format broken down by state and city, encouraging users to rate their experiences with individual officers.

All of the information Sesto posted was already open to the public, and he didn’t reveal the identities of any undercover officers. But police groups were outraged, making the dubious argument that posting publicly available names and badge numbers on the Internet somehow jeopardized officers’ safety. Jerry Dyer, president of the California Police Chiefs Association, told Wired the site could give citizens the opportunity to “unfairly malign” individual officers. He added that he’d be asking the state legislature to ban sites like RateMyCop.com.

Then in March, hosting service GoDaddy mysteriously terminated Sesto’s account and pulled RateMyCop.com offline. GoDaddy has offered several explanations to Wired, none of which has made much sense. Sesto gave up on GoDaddy and tried to get the site hosted at RackSpace. After initially accepting his down payment for hosting services, RackSpace sent a letter to Sesto saying, “We believe that the website to be found at www.ratemycop.com as described to our sales representative could create a risk to the health and safety of law enforcement officers.” At press time the site was back online, but its future is uncertain.

"I'm not saying I'm depending on Maxim to keep me alive over there, but it helps"

info@reason.com (Damon W. Root) — Fri, 09 May 2008 15:58:00 EDT

Does Rep. Paul Broun (R-Ga.) hate our troops? If not, then why is he trying to ban morale-boosting men's magazines from U.S. military bases? From Stars & Stripes:

A Department of Defense committee that reviews materials sold on bases ruled last year that magazines such as Playboy and Penthouse are not pornographic. But Broun's Military Honor and Decency Act includes language that could make those magazines eligible for the ban.

[...]

"They're making it a point of undermining soldiers to almost make them feel like we're back in elementary school," Pfc. Nickolas Sears said Friday at Camp Red Cloud, South Korea. "We're all adults here, and if it's something we want to do, we should feel free to choose as we please."

(Link via The Weekly Standard)

UPDATE: Senior Editor Radley Balko already targeted his sights on Broun's bill.

Drink Up Me Hearties, Yo Ho

info@reason.com (Damon W. Root) — Thu, 08 May 2008 12:24:00 EDT

The next time one of your English-born pals complains about America's impending collapse into fascism, tell her to try flying the Jolly Roger back in Merry Old England. From The Guardian:

A fireman has been threatened with legal action for flying a Jolly Roger outside his home for his daughter's pirate-themed birthday party.

[...]

"It's a £5 flag, not hurting anyone, and they're probably spending hundreds of pounds of our cash getting me to take it down," the father-of-four told the Evening Standard. "That could be spent on improving the local area—it's disgraceful."

Another neighbour erected a Jolly Roger in support but took it down after receiving the same warning letter from the council.

A spokeswoman for Mole Valley district council said they visited both properties flying the flags and wrote to the owners informing them of the regulations.

The letters stated that although any resident was entitled to fly national flags outside their properties, the Jolly Roger was not allowed under the Outdoor Advertisements & Signs Regulations.

Whole thing here.

I'm curious about just what the council thinks he's advertising? But here's the real issue for reason's UK fans: What the hell flag is an anarchist supposed to fly?

Via the indispensable Fortean Times.

UPDATE: Contributing Editor Charles Oliver chronicled the opening salvos of this battle in the November 2007 print edition.