Category Archives: Free Speech

A group of animal rights advocates, led by a Redwood City man named Joseph Cuviello, crashed into the city's more obscure free speech regulations last September, when they tried to protest a Ringling Bros.-Barnum & Bailey circus in Union Square. Defying police officers' warnings, they hung a "Ringling Bros. Beats Animals" banner in the northwestern corner of square, right in the audience's sightline. The officers took down the sign, wrote up citations, and told the protesters they were only allowed to organize in the event's "free speech zone," a bike-rack-barricaded box in the southeastern corner of the square, according to Cuviello.

Fred Noland

The protesters argued that the space around 20 feet by 20 feet was too constricted and secluded. One of the activists' lawyer showed up. A police sergeant showed up. After some discussion and a look into Parks Code Section 7.08(d), the police confirmed that the protesters were, in fact, allowed to demonstrate throughout the entire eastern half of Union Square.

This confusion shouldn't be surprising. Section 7.08(d), made law in 1981, dictates "designated public assembly areas" for parks. But the locations are precise, unmarked, and seemingly arbitrary, like that random corner of the club where guys awkwardly congregate to sip drinks, lean against the wall, and stare at the dancefloor.

When there's a permitted event at Justin Herman Plaza, you can picket in "the western portion of the Plaza at street level," but not "the east end below street level, including the steps leading down to that area." At Portsmouth Square, you have just a 50-foot radius from the parking garage elevators at your disposal.

The rationale, the Parks Code explains, is "to prevent interference with the progress and enjoyment" of the events.

The way Cuviello sees it, though, the Parks Code laws restrict free speech. Cuviello and two other activists are suing the city, charging this is "plainly unconstitutional." According to their complaint, filed in the U.S. District Court of Northern California in June, "demonstrators were forced to adhere to an imaginary, unspecified 'free speech meridian' line," which limited their "ability to promote their message to the people attending and witnessing the circus' event."

Challenging 7.08(d) is certainly a legal longshot. Supreme Court rulings, such as Frisby v. Schultz in 1988, give government the power to control the "time, place, and manner" of free speech just not the content as long as the so-called free speech zones "are narrowly tailored to serve a significant government interest." This precedent has been invoked to keep Fred Phelps' Westboro Baptist fanatics away from soldiers' funerals and pro-life protesters away from the homes of doctors who perform abortions. It allows cities to enact zoning restrictions for strip clubs. And notably, in the mid-2000s, President George W. Bush's secret service team used strict "free speech zones" to clean up his public events.

So watch where you say.

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Free Speech: Activists Challenge Parks Code's Protest Rules

Broadband providers have "editorial discretion" to give priority to their own Web content, and the U.S. Federal Communications Commission's net neutrality rules limiting that discretion is a violation of providers' free speech rights, two carriers said in a court brief filed Monday.

Broadband providers have a similar editorial discretion as newspapers do, carriers Verizon Communications and MetroPCS argued in a brief filed in their challenge of the FCC's net neutrality rules, passed in December 2010. Both carriers challenged the net neutrality rules shortly after the FCC passed them.

"Just as a newspaper is entitled to decide which content to publish and where, broadband providers may feature some content over others," lawyers for the two carriers wrote. "Although broadband providers have generally exercised their discretion to allow all content in an undifferentiated manner, they nonetheless possess discretion that these rules preclude them from exercising."

Broadband providers have the right to "distinguish" their own Web content over other content, and offer prioritized content to partners, the lawyers wrote in the brief. "In fact, some types of speech, such as live streaming high-definition video, could benefit from (or may only be available with) differential treatment, such as prioritization," they wrote. "Broadband providers could also give differential pricing or priority access to their over-the-top video services or other applications they provide, or otherwise feature that content."

The arguments that the net neutrality rules violate the First Amendment of the U.S. Constitution don't make sense, said Harold Feld, senior vice president of digital rights group Public Knowledge. The carrier First Amendment argument has been "routinely rejected by the courts," he said in an email.

Verizon and MetroPCS argued that they are speakers as well as conduits for other people's speech, Feld said. "But nothing in the rule prohibits Verizon from creating and providing any content it likes," he added. "From a First Amendment standpoint, there is nothing expressive or protective about Verizon interfering with the speech of others."

The carriers' argument seems at odds with the First Amendment, Feld said. "In fact, they are claiming a First Amendment right to block, degrade or otherwise treat traffic differently," he said.

The two carriers also argue that the FCC has introduced price regulation to fixed and mobile broadband services with the net neutrality order. The net neutrality order prohibits broadband providers from charging "edge" services -- like Google's search or Facebook -- for carrying their traffic, the lawyers for Verizon and MetroPCS wrote.

The FCC order sets a "uniform price of zero" for carrying the traffic of edge providers, the brief said. "The order thereby limits the ability of providers to employ two-sided pricing models in which edge providers pay for some costs of the network (thereby pushing more costs onto consumers)," the brief said. "It also effectively prohibits price discrimination among edge providers because all must pay the identical rate."

A hearing on the lawsuit is not yet scheduled in U.S. District Court for the District of Columbia.

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Verizon cites free speech rights in opposing net neutrality rules

The carrier has filed its first brief outlining its arguments in a federal lawsuit, calling the FCC's rules "arbitrary and capricious" -- and unconstitutional.

Bring out the constitutional scholars: Verizon says the Federal Communications Commission's Net neutrality rules violate the right to free speech.

In a nutshell, Verizon argues that the FCC has overstepped its authority with its Net neutrality rules, going so far as to argue that the rules are unconstitutional -- Verizon sees the transmission of data across its network as "speech." As if that's not enough, the carrier argues that the rules are "arbitrary and capricious." In other words, Verizon doesn't believe the rules are necessary given that there hasn't been a big problem of companies slowing down traffic or blocking services on their networks.

Verizon laid out its argument in a brief filed yesterday in the U.S. Court of Appeals for the District of Columbia.

In December 2010, the FCC adopted a set of Net neutrality rules in an effort to protect broadband users from having a service provider slow down traffic or block certain content. The agency adopted those rules after it lost a court battle over having penalized cable and broadband provider Comcast for violating its Net neutrality principles. But a federal court said that the FCC had overstepped its bounds in that case.

Once the rules were officially registered with the government in September of last year, Verizon said it planned to file a lawsuit against the FCC challenging the rules and asking the court to overturn them.

The FCC has until this coming September to file its legal reply with the court.

The Net neutrality debate has been raging for years, with supporters asking for the government to enact rules or laws that protect consumers and promote competition on the Internet.

Those who support Net neutrality argue that the rules are necessary because without them broadband providers, many of whom also provide television service and own their own video content, can favor their content and services over the content and services of a competing company that uses the broadband providers' networks. In other words, Net neutrality proponents fear that Verizon, AT&T, Comcast, Time Warner and others will monkey with traffic from a company like Netflix to encourage customers to use their own video services and ditch a rival like Netflix that uses the broadband network to deliver its movie and TV streaming service. As a result, they may run these other companies out of business.

Meanwhile, those opposing the rules have said for a long time that they are simply unnecessary. The Net neutrality detractors, which include all of the large service providers, argue that broadband companies have an incentive to make sure that they carry all traffic to consumers. What's more, they simply don't like the government controlling rules dictating how the Internet operates.

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Verizon to FCC: Free speech trumps Net neutrality rules

Plans to impose a public interest test on media owners ... Communications Minister Stephen Conroy. Photo: Louise Kennerley

CITING the Magna Carta, free speech and commercial freedom, the bosses of most of Australia's major media organisations have implored the Prime Minister, Julia Gillard, and the Opposition Leader, Tony Abbott, to block further media regulation.

The Communications Minister, Stephen Conroy, told the Herald last week he would take to cabinet within weeks a plan to regulate the media and impose on owners a public interest test.

A public interest test would compromise billions of dollars of Australian and international equity assets, according to the strongly-worded letter, signed by the heads of Foxtel, APN, Seven West Media, NINE, AAP, News Ltd and the Australian News Channel.

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''The Convergence Review has not even been able to define such a test,'' the bosses wrote. ''Frankly, such an approach is quite unacceptable as the basis for managing billions of dollars in asset value in the media sector and will compromise those asset values (and accordingly Australian and international equity holders) negatively - this is both unfair and inequitable.''

Letters addressed to the Prime Minister and Opposition Leader commend the Coalition for its public support of press freedom.

They claim if the government's public interest test (which could apply to the Fairfax majority stakeholder Gina Rinehart) is approved, there would be a ''massive increase in regulation'' on ''subjective, vague and imprecise'' grounds, which would stymie free speech.

''While a 'public interest test' may have an appealing-sounding ring to it, it is really, in our view, nothing more than a political interest,'' the bosses argue.

''It has the capacity to be misused by politicians of all persuasions to block the acquisition of media companies by people they do not agree with or simply do not like.''

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A wordy attempt to save free speech

The Oatmeal

This cheeky response to a legal threat began a successful charity fundraiser, but it also led to convoluted drama.

By Rosa Golijan

Most of the time, I avoid calling legal fights "bizarre" or "unbelievable," but both terms seem applicable towhat is going on between cartoonist Matthew "The Oatmeal" Inman and attorney Charles Carreon.

In less than a month,a lawsuit threat was turned into a highly successful charity fundraiser which then became a legal drama so twisted that a crowd-sourcing website, two charities, one hundred individuals listed as "John Doe," and even the California state attorney general found themselves involved.

But why does all this matter to you?

Because freedom of speech is on the line as it often is whenever someone's Internet activity leads to a legal mess.

Wait! How'd we get to this point?Even though many people don't recognize his name, 29-year-oldMatthew "The Oatmeal" Inman is a popular cartoonist. You've probably seen plenty of his work such as "10 Words You Need To Stop Misspelling,""What It's Like To Own An Apple Product," or "Cat vs Internet" in yourFacebookfeed, on Twitter, or on your favorite blog at some point. It's almost impossible to avoid Inman online.

As we explained when we intially begain covering the Carreon vs. Inman drama, the popularity of Inman's work often prompts websites to repost it without asking or crediting him. More often than not, these websites will even profit from this practice.

About a year ago, Inman got fed up with a website called FunnyJunk which had become particularly prone tore-hosting and monetizing his work. Hewrote a blog postdeclaring that FunnyJunk had "practically stolen [his] entire website."The website's owner respondedby claiming that Inman was threatening to sue him and removing any content which referenced "The Oatmeal."

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Internet cartoonist's charity fundraiser turns into free speech debate

Published: Mon, July 2, 2012 @ 12:07 a.m.

By Peter H. Milliken

milliken@vindy.com

YOUNGSTOWN

A state appeals court has deemed unconstitutional an Ohio law that it says infringed on First Amendment rights.

A state law that requires a public-employee labor union to give the employer at least 10 days advance written notice of its intent to picket imposes an unconstitutional infringement on free speech rights, the Youngstown-based 7th District Court of Appeals has ruled.

The ruling arose from peaceful informational picketing by the Mahoning County Education Association of Developmental Disabilities outside a Nov. 5, 2007, public meeting of the Mahoning County Board of Developmental Disabilities in Austintown, while the union was in negotiations for a new contract with the board.

The union represents teachers, teaching assistants, therapists, nurses, workshop specialists and secretaries employed by the board. The pickets carried signs saying Settle now, and MEADD deserves a fair contract.

The union appealed to the 7th District Court after the State Employment Relations Board and Judge Maureen A. Sweeney of Mahoning County Common Pleas Court upheld an unfair labor practice complaint by the DD board concerning the picketing.

A three-judge appellate court panel ruled unanimously on Thursday that the 10-day notice requirement is not necessary to serve a compelling government interest and is not narrowly tailored to achieve that interest.

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Rights to free speech upheld

Xavier Alvarez, a former member of the Three Valleys Municipal Water District governing board in eastern Los Angeles County, won an important victory in the Supreme Court on Thursday. But he probably won't want to frame the leading opinion and hang it on his wall.

"Lying was his habit," begins JusticeAnthony M. Kennedy's opinion. "Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the congressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005."

Nevertheless, despite Alvarez's almost comic mendacity, the court overturned his conviction, ruling 6 to 3 that the Stolen Valor Act which makes it a crime to falsely claim military honors violated the 1st Amendment. It was the correct decision.

Congress' justification for the Stolen Valor Act was to prevent damage to the reputation and meaning of military medals; it was inspired by legitimate solicitude for war heroes. But no one seriously believes people will think less of the Medal of Honor because someone pretends to possess one. If anything, anger over such a fraud reinforces the esteem in which the decoration is held.

And a lie like Alvarez's has a short shelf life. (A list of actual Medal of Honor winners is only a Google search away.) As Kennedy pointed out: "The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie." Alvarez, for instance, was ridiculed online and in the media for his lie.

Kennedy also questioned the broad sweep of the law, which, he noted, would have criminalized Alvarez's lie not just at a public meeting but even if he made it in a "personal, whispered conversation" in his own home. What's more, it does so entirely without regard to whether the lie was made for the purpose of material gain.

Although the court has refused to protect false statements in cases of libel and fraud, it has recognized that "some false statements are inevitable if there is to be an open and vigorous expression of views" in public and private conversation.

Unfortunately, Kennedy's eloquent opinion was joined only by Chief Justice John G. RobertsJr.and Justices Ruth Bader Ginsburg and Sonia Sotomayor. Justices Stephen G. Breyer and Elena Kagan concurred in the result but wrote a separate, more grudging opinion that held out the possibility that Congress could enact a "more finely tailored statute" to deal with false statements about military honors. Before rushing to act on that suggestion, Congress should make sure that liars like Alvarez are actually deriving financial benefit from their phony war stories, and that the offense can't be dealt with under existing law.

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Free speech, even for liars

Lost in the hoopla over the Supreme Courts ruling upholding the Affordable Care Act is a fascinating and important free-speech decision that is one of the oddest in the already strange history of the First Amendment.

The case, Alvarez v. United States, was all about lies. The first sentence of Justice Anthony Kennedys plurality opinion is an instant classic: Lying was his habit.

This is a substantial understatement. Xavier Alvarez was a fabulist straight out of Mark Twain. He lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. When newly elected to the local water board in Claremont, Calif., Alvarez falsely told his new colleagues that he was a retired Marine who had received the Medal of Honor after being wounded repeatedly by the same aggressor.

ZUMApress

Xavier Alvarez can keep saying hes a Marine.

This last lie was unlike the others. It violated the Stolen Valor Act of 2005, which made it a crime to lie about decorations received in military service. It was already a crime to lie about military service in order to defraud the government or private person of some gain. The Stolen Valor Act criminalized the mere act of lying about military decorations, full stop. No intention to defraud was required.

Alvarez seems not to have sought to gain anything by his lie other than esteem. This made him a perfect test case for a question that previously tormented no one but law professors and their students: Does the right to free speech extend to lying for no otherwise unlawful gain?

On the surface, the issue might seem straightforward. With the possible exception of Justice Hugo Black, who liked to say that Congress shall make no law really meant no law at all, no Supreme Court justice has ever believed free speech to be absolute. At times, the court has said that certain kinds of speech such as obscenity, libel and the ill-defined fighting words deserve no protection whatsoever. Although that categorical approach has faded from the courts jurisprudence, the justices still believe that speech must have some value to merit protection under the First Amendment.

What value inheres in lies about simple matters of fact? What good could possibly come of Alvarez telling people that he risked his life for his country when he did no such thing?

Three justices Samuel Alito, Antonin Scalia and Clarence Thomas said the answer was, none. There was no reason, they said, to stop Congress from criminalizing lies about military service.

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False arrest

WILMINGTON The Board of Selectmen meeting on Monday was a smorgasbord of town affairs. However, the most impactful portion of the meeting came at the end, when one resident called on Selectmen to remove a Board of Appeals member due to Facebook comments. Selectmen, however, didnt bite.

Public comments heated up when resident George Lingenfelter asked the Board if all members had received his letter demanding the removal of a member of the Board of Appeals because of some comments made on a personal Facebook account.

All of the Selectmen acknowledged receiving the letter and openly denied the request to remove the individual from the Board of Appeals.

Selectman Lou Cimaglia said that because a person serves on a Board in the Town does not mean their rights of free speech are taken away.

I dont understand why a gentleman cant have an opinion or vote the way he wants to just because he serves as a volunteer of the Town, he said.

Selectwoman Judy OConnell said that she is denying the request and that Lingenfelter has recently exercised his freedom of speech when he took out an ad that called the members of the Board of Selectmen ignorant, but that doesnt give anyone the right to remove him from any position he holds.

Charles River Labs

Beginning with the amendment of a flammable license for Charles River Laboratories on Ballardvale Street. Environmental Health and Safety Manager of Charles River Labs Jason Burrill explained that the majority of flammable liquids on site are stored for use with the labs back-up generators. He said because the Lab works in a very sensitive field, many of the materials and animal welfare depend on the back-up generators in the case of emergencies.

New Dunks

The meeting moved on to discuss the common victualler license for a new Dunkin Donuts in the office park at 66 Concord Street. According to Adam Quinn, president of DJQ Donuts, the new store would be located in the corner space two units down from Sandwich Exchange. DJQ Donuts also owns 2 Dunkin Donuts stores on Lowell Street and one on Middlesex Avenue in Wilmington. The Board approved the license contingent upon DJQ Donuts meeting all requirements from the Board of Health, Building Inspector and the Planning Board. Quinn said he has already been in contact with all three entities.

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Free speech protected

KANSAS CITY, Mo. - It's free speech versus lies and some say that lies have won. Thursday morning, the Supreme Court threw out the law that makes lying about military service a crime.

With a vote of 6-3, the Stolen Valor Act was overthrown. It had criminalized lies about receiving military awards like the Medal of Honor. Justices said those types of lies are "contemptible" but protected by free speech.

Larry Elmore, a Vietnam veteran who tends bar at VFW Post 9997 in Kansas City, called the decision an upsetting irony.

"It's a slap in every veteran's face. Yes, they have the free speech because a lot of people died for that free speech," Elmore said.

Justices Alito, Scalia and Thomas all voted to keep the Stolen Valor Act. Alito said free speech does not protect false statements that inflict real harm and serve no legitimate interest.

Elmore agreed and said it's the worst kind of lie.

"It upsets me and upsets a lot of people worse than me," Elmore said. "I know there's people who would do bodily harm to them if they saw it."

A case from Blue Springs, Mo., dealing with false military services could be resolved soon. Contractor Warren Parker admitted lying about being a war hero and receiving a Purple Heart.

Parker received $6 million in government contracts meant for disabled veterans. He will be sentence July 16.

Copyright 2012 Scripps Media, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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Court: Military service lies not illegal