When the Founding Fathers set in stone the right of freedom of speech in the First Amendment, I doubt any of them realized the challenges those who would be in charge of interpreting the document would face. With the dawn of the information age, a new media evolved that would test the limits of the First Amendment: the internet. Never before had such a truly global medium existed that was truly accessible to everyone. To its credit, the Supreme Court has maintained a fairly hands-off approach to the internet, as demonstrated in ACLU v. Reno when the Court shied away from regulation. Because of its accessibility at all times, the court decided there was no way to regulate its content, in this case sexual content, without imposing a total ban on the media which they deemed a trampling on the First Amendment. I would have to agree. However, the worldwide nature of this technology would create a whole new set of global issues. How do we protect our right to freedom of speech that we as Americans hold so dear in the face of global controversy.
In 2000, a French organization sued Yahoo! in the French High Court for violation of French law (that prohibits the expression of symbols or ideas used by the Nazi Party) for allowing pro-Nazi discussions in its chat rooms and for the posting of Nazi paraphernalia on its auction sites. It required Yahoo! to block these items from French viewers and fined the company $13.000 each day it failed to comply. Yahoo! appealed to the United States District Court of Northern California on several grounds. First, Yahoo’s servers were in the United States and were primarily targeted to US citizens. They also sued obviously on First Amendment grounds. This court decided in favor of Yahoo! stating the ruling inconsistent with the First Amendment. The case was later reviewed by the Court of the Appeals of the 9th Circuit, where the decision was reversed, saying the charges against the company were solely directed at their business in France and therefore fell under French jurisdiction.
Obviously, this case raises some interesting questions. Is this regulation inconsistent with the First Amendment? Should France be allowed to impose its laws on a United States company? How does this decision mesh with the Reno v. ACLU decision? In response to the first question, I would argue it most certainly is. As decided by the Supreme Court in Police Department of Chicago v. Mosley, which stated, "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Clearly, banning of pro-Nazi discussion on chat room and prohibiting the sale of Nazi paraphernalia is done so because of the viewpoint this group holds.I’m not entirely sure how the other side would argue against this violation except maybe to say any speech regarding the Nazi Party would be prohibited regardless of whether it was in support of the party or not. However, this would still be blatant viewpoint discrimination because the regulation would be based solely on the content of the speech.
So with the First Amendment issue dealt with, now come the trickier ones. Should France be allowed to impose its laws on a United States company? Many would say no. Yahoo! is based out of the United States and therefore should be subject to the US Constitution, not French Law. Also, in Zippo Manufacturing Co. v. Zippo Dot Com Inc., jurisdiction is determined by how “active” or “passive” the website is deemed to be. Active websites enter into business transactions with other groups while passive websites simply make information available. Active websites are more likely to fall under the jurisdiction of the are where the transactions are taking place than passive websites. Therefore, one would think in the case of Yahoo!, their involvement would be primarily passive in that they simply offer users the opportunity to post on their server. This would suggest France had little jurisdiction. However, the international Convention on Cybercrime allows states to claim jurisdiction over individuals in the state the crime was committed. Therefore, the argument could be made for France’s jurisdiction. Still not sure what to think? Neither am I.
Perhaps the only way I start to feel a little better is to discuss the last issue: how this decision works with Reno v. ACLU. The French court took the time to determine the technology available to Yahoo! to block the content from French citizens only. Their ruling was Yahoo! did have the ability to limit the prohibition of Nazi paraphernalia and discussions only to French users. In this case, this would be consistent with Reno v. ACLU which did not ban sexual content on the basis that it would require a total ban. It seems in this case that Yahoo’s banning of Nazi related speech in France would not require a total ban on the speech. This makes the decision a bit more palatable to me anyway. However, it is also probably worth mentioning that Yahoo!, in order to avoid future issues, prevented the posting of Nazi discussions or memorabilia on its servers entirely. Sigh.
I guess the moral of this story is the internet is tricky, especially when it comes to the Freedom of Speech. I'm sure that until the technology is readily available to block content based on the geographic location of the user, these issues will continue to crop up. Maybe when this happens, we will be able to use the internet with full protection under the First Amendment of the United States. Until then, I guess we’ll continue to step on foreign toes.
Also used in aid to my argument:
Cooper, Gregory S. "Tangled Web We Weave: Enforcing International Speech Restrictions in an Online World." University of Pittsburgh Journal of Technology Law & Policy 8.2 (2007). LexisNexis Academic. LexisNexis. 29 Mar. 2009 http://web.lexis-nexis.com/universe.
Tuesday, March 31, 2009
Tuesday, March 10, 2009
A Rude Awakening
For those of you, like me, who believed the freedom to protest political actions and officials was certainly a given, Rank v. Jenkins is an unfortunate wake up call. Turns out political demonstration may not be as free as I previously thought it to be.
In June of 2007, the American Civil Liberties Union (ACLU) filed suit on behalf of Jeffery Rank, Nicole Rank, Leslie Weise, and Alex Young against Gregory Jenkins for alleged first amendment infringements. [1] Jeffery and Nicole Rank attended a Fourth of July Speech in Charleston, West Virginia where the president was scheduled to speak. They obtained tickets and were not disruptive, but wore t-shirts that expressed their disagreement with President Bush. The Ranks were asked by White House Officials acting under the advisement of Jenkins, the Director of the White House Advance during the Bush Administration, to cover their shirts or leave. When they refused, they were removed and arrested for trespassing [2]. The procedure followed is outlined in Presidential Advance Manual. [3] Laying out guidelines for dealing with demonstrators at events attended by the president, the document has received much attention for its freedom of speech violations.
Clearly, this is a blatant infringement of the Ranks’ freedom of expression. There is really no other way of looking at it. The Bush Administration could argue this event was private, and therefore removal of persons based on content was allowable. However, there are some serious flaws in this argument. First of all, the event was held on the grounds of the West Virginia state capital, so it would be difficult to assert that this event was not public. The courts have consistently been suspicious of this private event defense, and, in Wickersham v. City of Columbia, the court ruled that restrictions on the content of freedom of speech at private events could not be imposed if there was shown to be significant government involvement. It would be difficult to substantiate the claim that the government was not heavily involved in this event.[4] Therefore, it is certainly my opinion that the courts would have very little choice but to rule in favor of the plaintiff.
Another aspect that makes this case so unnerving is the content of the Presidential Advancement Manual, which serves as guide for staff to deal with demonstrators at presidential events. It includes instructions like “Proper ticket distribution is vital to creating a well-balanced crowd and deterring potential protesters from attending events.” [5] VIP tickets are only given to those extremely supportive of the administration; demonstrators are minimized by setting aside specific areas for demonstrators that are far from the press or the motorcade; rally squads are to be strategically placed throughout the demonstrators to drown out any dissent. However, the most blatant disregard for the first amendment is shown when the Manual states security should remove demonstrators from the event if their antagonistic presence cannot be controlled. Additionally, it charges administrators to determine whether actions against political demonstrators would cause more damage in the press than if simply left alone.[5] I highly doubt there are many out there who would consider that consistent with the rights our fore fathers set down.
This Manual in itself makes the actions against the Ranks unconstitutional. The simple fact that it is written by the Bush Administration makes any action taken in these situations action by the government. Since in this case, the removal of the couple from the event was based on the content of their shirts, this is a classic case of content discrimination by the government, and is in my opinion inherently unconstitutional. No justification can be made under the guise of danger to the president as the two were simply wearing t-shirts. I doubt many would consider wearing clothing threatening actions as the vast majority of us do it on a daily basis with no harm to those around us. Hopefully, this will be a clear cut case for the United States District Court for the District of Columbia. I only have one recommendation for the Bush Administration. Perhaps next time, they should be more specific when they give guidelines on when action will cause significant damage in the press. They certainly failed miserably this time.
In June of 2007, the American Civil Liberties Union (ACLU) filed suit on behalf of Jeffery Rank, Nicole Rank, Leslie Weise, and Alex Young against Gregory Jenkins for alleged first amendment infringements. [1] Jeffery and Nicole Rank attended a Fourth of July Speech in Charleston, West Virginia where the president was scheduled to speak. They obtained tickets and were not disruptive, but wore t-shirts that expressed their disagreement with President Bush. The Ranks were asked by White House Officials acting under the advisement of Jenkins, the Director of the White House Advance during the Bush Administration, to cover their shirts or leave. When they refused, they were removed and arrested for trespassing [2]. The procedure followed is outlined in Presidential Advance Manual. [3] Laying out guidelines for dealing with demonstrators at events attended by the president, the document has received much attention for its freedom of speech violations.
Clearly, this is a blatant infringement of the Ranks’ freedom of expression. There is really no other way of looking at it. The Bush Administration could argue this event was private, and therefore removal of persons based on content was allowable. However, there are some serious flaws in this argument. First of all, the event was held on the grounds of the West Virginia state capital, so it would be difficult to assert that this event was not public. The courts have consistently been suspicious of this private event defense, and, in Wickersham v. City of Columbia, the court ruled that restrictions on the content of freedom of speech at private events could not be imposed if there was shown to be significant government involvement. It would be difficult to substantiate the claim that the government was not heavily involved in this event.[4] Therefore, it is certainly my opinion that the courts would have very little choice but to rule in favor of the plaintiff.
Another aspect that makes this case so unnerving is the content of the Presidential Advancement Manual, which serves as guide for staff to deal with demonstrators at presidential events. It includes instructions like “Proper ticket distribution is vital to creating a well-balanced crowd and deterring potential protesters from attending events.” [5] VIP tickets are only given to those extremely supportive of the administration; demonstrators are minimized by setting aside specific areas for demonstrators that are far from the press or the motorcade; rally squads are to be strategically placed throughout the demonstrators to drown out any dissent. However, the most blatant disregard for the first amendment is shown when the Manual states security should remove demonstrators from the event if their antagonistic presence cannot be controlled. Additionally, it charges administrators to determine whether actions against political demonstrators would cause more damage in the press than if simply left alone.[5] I highly doubt there are many out there who would consider that consistent with the rights our fore fathers set down.
This Manual in itself makes the actions against the Ranks unconstitutional. The simple fact that it is written by the Bush Administration makes any action taken in these situations action by the government. Since in this case, the removal of the couple from the event was based on the content of their shirts, this is a classic case of content discrimination by the government, and is in my opinion inherently unconstitutional. No justification can be made under the guise of danger to the president as the two were simply wearing t-shirts. I doubt many would consider wearing clothing threatening actions as the vast majority of us do it on a daily basis with no harm to those around us. Hopefully, this will be a clear cut case for the United States District Court for the District of Columbia. I only have one recommendation for the Bush Administration. Perhaps next time, they should be more specific when they give guidelines on when action will cause significant damage in the press. They certainly failed miserably this time.
Works Cited
Albrecht-Taylor, Kymberly. “HOW WE VOTE: ELECTRONIC VOTING AND OTHER VOTING PRACTICES IN THE UNITED STATES: NOTE: GIVING DISSENTERS BACK THEIR RIGHTS: HOW THE WHITE HOUSE PRESIDENTIAL ADVANCE MANUAL CHANGES THE FIRST AMENDMENT AND STANDING DEBATES.” William & Mary Bill of Rights Journal 539.17 (2008). LexisNexis Academic. LexisNexis. 10 Mar. 2009 http://web.lexis-nexis.com/universe.
Office of Presidential Advance. Presidential Advance Manual. 2002. 10 Mar. 2009 http://www.aclu.org/pdfs/freespeech/presidential_advance_manual.pdf.
Rank v. Jenkins. No. No. 07-cv-01157. United States District Court for the District of Columbia. 28 June 2007. 9 Mar. 2009 http://www.aclu.org/pdfs/freespeech/rank_v_jenkins_complaint.pdf.
Secret Service and White House Charged with Violating Free Speech Rights in ACLU Lawsuit . 14 Sept. 2004. American Civil Liberties Union. 8 Mar. 2009 http://www.aclu.org/freespeech/protest/11462prs20040914.html.
Weignant, Chris. ACLU Provides Concrete Evidence Of Bush’s Contempt For Free Speech. Weblog. 29 June 2007. The Huffington Post. 9 Mar. 2009 http://www.huffingtonpost.com/chris-weigant/aclu-provides-concrete-ev_b_54453.html.
Subscribe to:
Comments (Atom)
