Cyber-Bully Censorship by Facebook and Teachers

We've all seen the damage a relentless campaign of bullying can do once it takes to the Internet, especially among young students on the ubiquitous Facebook platform.  In some cases, the victims resort to suicide to escape the scathing humiliation.

The Maryland Attorney General and Facebook are teaming-up with educators to put a quick stop to cyber-bullying among students.  This pilot program consists of a dedicated channel, the Educator Escalation Channel, where designated teacher-censors flag objectionable content by transmitting a content-removal report for expedited FB processing.

The program was rolled-out by the Maryland AG in conjunction with recently-passed legislation enhancing the state's Internet harassment crime.  While these coordinated efforts advance the interest of eliminating school-originated cyber-bullying, some legal pundits warn of their potential to stifle free speech in the process.

Commenting for the WSJ's Law Blog, noted Gotham criminal defense lawyer Scott Greenfield remarked that the teacher-censorship program could, "institutionalize a process where the teachers appear capable of making a determination on the value of speech outside the realm of school."  By our calculus here at the Law Blogger, that amounts to government censorship.

Greenfield said it best in his blog post on the anti-cyber-bully initiative:

While Facebook may be a private enterprise, fully entitled to decide what content is acceptable on its platform and similarly entitled to decide that its users will no longer be allowed to write “Suzy is a poo poo head” on the wall, it’s not that simple when the censor is a state actor and the content at issue is deemed offensive not because it violates any law, but because someone is empowered to stifle speech that doesn’t comport with their vision of redeeming societal value, whatever that means.  By doing the bidding of teachers, Facebook becomes the agent of the state.  Not so private anymore.

Neither the Maryland AG nor FB admit that the censorship of objectionable posts comes from the state.  While it may emanate from a state actor [i.e. a teacher], they say it is FB, in conjunction with its published community standards, that will make the final decision.

This program illustrates the tension between our interests in stopping the school yard bully, and avoiding the government censor.  Where do you land on this calculus?  Tell us with a comment.

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Posted in: cyber bully,Educator Escalation Channel,Facebook,free speech,Scott Greenfield

Bloggers Test Anti-SLAPP Law in Defamation Suit

Shirley Sherrod

There is a case pending in Washington, D.C. that involves the intersection of blogging and defamation and tests D.C.'s brand new anti-SLAPP law.  SLAPP stands for "Strategic Lawsuits Against Public Participation" -these injunctive laws are designed to provide defamation defendants immediate substantive protections against meritless libel suits -suits filed solely to silence a particular voice.

We all recall when former federal employee Shirley Sherrod had a video of her public comments edited and blog-posted by the recently-deceased conservative blogger, Andrew Breitbart.  The [deceptively] edited video made Sherrod, then a USDA official, look like she was making publicly racist comments about a white farmer seeking USDA assistance to save his farm from foreclosure.

In fact, Sherrod's un-edited statement showed she was telling a story from her past to illustrate the possibility of racial reconciliation.  The truth came out too late, however, to save Sherrod's job at the USDA.  And when it finally did come out, Sherrod rejected the Obama Administration's public apology-laced offer of re-employment.

Instead, she sued Breitbart and his assistant in the District of Colombia Superior Court for defamation; the defendants removed the case to federal court.  Sherrod claimed that the video intentionally and deceptively altered her public comments, causing her loss of employment and stress that has now affected her health.

The defendant-bloggers claimed they were merely expressing a political opinion through posting the edited video and filed a motion to dismiss the suit on anti-SLAPP grounds.  The motion was denied by the trial judge and oral arguments on the appeal were heard by the United States District Court for the District of Colombia last month.

A decision in the case is expected soon.

We here at the Law Blogger await this decision to see how the D.C. anti-SLAPP legislation fares in one of the first, and certainly most high profile, cases to test the law governing free speech through blogging, and its limits, in our nation's capital.

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Posted in: Andrew Breitbart,blogging,First Amendment,free speech,Shirley Sherrod,SLAPP,United States Circuit Court of Appeals

The Cost of Free Speech

"For the past 20-years, the congregation of the Westboro Baptist Church has picketed military funerals to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in America's military."  So reads the first line of today's 8-1 SCOTUS decision in the Snyder v Phelps case.

By now, the story is familiar to all of us: Albert Snyder's son, Marine Lance Corporal Matthew Snyder, was killed in action in Iraq.  Nearby Corporal Matthew's funeral, members of the Westboro Baptist Church protested, with many members of the congregation carrying anti-gay and anti-america signs.

Albert Snyder sued in federal court (pursuant to diversity of citizenship jurisdiction - when each party is from a different state), claiming the intentional infliction of emotional distress.  A jury awarded Mr. Snyder over 12 million dollars.  The Eleventh Circuit Court of Appeals reversed the verdict on First Amendment grounds.

In affirming the 11th Circuit, the High Court stressed the particular set of facts, as developed by the parties to the dispute.  Key among those facts were that the church protesters advised the police of their planned protest in advance, and obeyed all the restrictions (i.e. staying 1000 feet away from the funeral) placed upon their gathering.

The lone dissenting justice, Samuel Alito, characterized the speech as a "vicious verbal assault" that did not merit First Amendment protection.

Only the hardened zealots among us would condone the disruption of the funerals of our nation's soldiers by protesting against gays in the military with such cheap attention-grabbing tactics.  Justice Oliver Wendell Holmes perhaps said it best:

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought we hate.

Chief Justice Roberts ultimately concluded, along with seven other justices, that the church members were legally allowed to be proximate to the funeral and say what they had to say.  The following excerpt from Roberts' decision perhaps best captures the spirit of Justice Holmes in the sanctity we place on freedom of speech:

Westboro believes that America is morally flawed; many Americans might feel the same about Westboro.  Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible….Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and– as it did here– inflict great pain.

Even particularly controversial, virulent and inflammatory free speech remains free; regardless of content.  In upholding the First Amendment in Snyder, the first case sited by Chief Justice Roberts was to the seminal case of Hustler Magazine, Inc vs Jerry Falwell.  That case, from the early 1970s, pitted the evangelical preacher against America's iconoclastic pornographer.

In order to be truly free, the content of our speech simply cannot be regulated by government.  There cannot be a "heckler's veto".

This case belongs to the progeny of the flag burning case from the 1990s and the Nazi march through Skokie, IL from the 1980s.  Each of those forms of controversial speech was protected back in its day; this is just the latest incarnation.

For the scholars among our readers, the oral arguments for this case are at this link.  Definately worth the hour to listen; you get a real feel as to the judicial persona of the various justices.

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Posted in: Albert Snyder,constitutional law,First Amendment,Fred Phelps,free speech,Matthew Snyder,SCOTUS

SCOTUS Bruises First Amendment in "Terrorist Aid" Case

On Monday, I was scheduled for admission to the bar of the U.S. Supreme Court; a very formal proceeding.  So first thing Monday morning, I made my way past the security checkpoints of the storied courthouse on the far-side of the Hill, and into Room G-32 (they have an entire suite of offices devoted to bar admissions).

There were only four attorneys slated for individual admission on the Court's docket that day; the last day of the 2009-2010 term.  Good news for us admittees; the Court was issuing 4 opinions so the entire bench would be present for the admission ceremony.

In another piece of extraordinary luck, we were seated in the front row of the courtroom for the day's proceedings.  I actually had a better seat than Nina Totenberg from NPR and Bill Mears of CNN; both were present to hear the opinions read from the bench.

The high-point from that session was Chief Justice John Roberts reading the 6-3 majority opinion in the case of Humanitarian Law Project v Holder; followed by Justice Stephen Breyer reading his dissent (joined by Justices Ginsberg and Sotomayor).  Dissents rarely are read from the bench in the High Court's chamber; this one signaled a strong warning from the Court's liberal wing that the government had gone too far by criminalizing free speech in the name of national security.

This case (actually two cases) involved application of a 1996 federal law banning "material support" to known foreign terrorist organizations black-listed by the Secretary of State.  The terrorist groups in these cases were not Al Qaeda or the Taliban but rather, dissident groups from Turkey and Sri Lanka.

The actions sought to be criminalized in the Holder cases would ordinarily receive First Amendment protection as a form of "pure political speech".  For example, teaching members of the foreign groups how to petition bodies like the United Nations, or hiring an attorney to resolve disputes in a US courthouse.

The federal government has utilized the "material support" law as an effective courtroom weapon in our protracted war on terror.  Justice Roberts emphasized, however, that the Court's holding was narrow and did not criminalize pure speech; just conduct in aid of known terrorist groups.

Prior to Humanitarian Law Project, the Court's terrorist cases were limited to constitutional issues surrounding detainees.  This case, the only "terrorist" case to be decided this term, moved the terrorist jurisprudence outside the detention centers and into our streets; into the heart of our right to free speech.  In so doing, the High Court's decision in this case affects each and every one of us as free thinking individuals.

When the cases were argued before the Court back in February, it was Solicitor General Elena Kagan, subsequently nominated by President Obama to occupy a seat on that very Court, who vigorously defended the law and its effectiveness in combating terror here in the homeland.  She prevailed in the forum where, presumably in October, she will become a mainstay.

The Holder decision evidences the Court's traditional and continuing deference to the political branches (Congress and the Executive) in matters of national security.  In the 21st Century, perhaps like no other time in our history, national security matters are everywhere; even in our own backyards.

After the Holder opinions were read, the Chief Justice turned to the administrative motions of the day, calling my long-time college friend and fellow-attorney, Barak Romanek, to the podium to move for my admission.  Thankfully, his motion was granted and I was duly admitted to the bar of the SCOTUS with a friendly nod from the Chief Justice.

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Posted in: criminal law,First Amendment,free speech,Helena Kagan,Humanitarian Law Project,Justice Breyer,Justice John Roberts,SCOTUS,terrorist