“Defamation of Religion”

The Wall Street Journal Law Blog gives us “Defamation of Religion” — The New International Legal Craze?

Apparently, the United Nations is beginning to embrace the idea that there should be liability for calling bullshit on stupid stone age superstitions defaming religions.

Angela Wu, the international law director for the Becket Fund for Religious Liberty, a public-interest law firm seems to have her head screwed on straight. She said,

The defamation of religions protects ideas rather than individuals, and makes the state the arbiter of which ideas are true. It requires the state to sort good and bad ideologies. (source)

Angela, care to come visit us and tell that to the speech-code liberal nazis that run American academia?

Laptop Detention

There is a reason why I don’t take my *good laptop* outside the country.

1. We have turned into a nation of mewling cowards — prepared to sell our freedom for mere “security theater.”
2. We pass rules to control the worst possible people committing the worst possible acts, regardless of the actual effectiveness of the rules or their side-effects.
3. We have idiots write the rules.
4. We hand the idiot-drafted rulebook to flunkies who aren’t qualified to work a frialator.
5. We then call the result “security.”

“The Department of Homeland Security now claims the right to seize your laptop ‘absent individualized suspicion’ for as long as it deems ‘reasonable’ whenever you dare cross an international border.” More Fun With Laptop Detention

Massachusetts Opens its Arms

Add this to the billion reasons I’m proud to be a Masshole.

After the Massachusetts Supreme Court ruled that “equal protection” means… well, “equal protection,” and thus gays could marry (being entitled to equal rights under the law), then-governor Mitt Romney was apoplectic. Romney pushed for a state constitutional amendment. Losing that battle, he then invoked a long-forgotten 1913 Massachusetts law, which provided that if a union would not be legal in the couple’s home state, the couple could not be married in Massachusetts. That law was passed to prohibit out of state mixed-race couples from coming to Massachusetts to marry (we do have a bigoted past).

Mass Governor Deval Patrick had some choice words as he signed a bill repealing the 1913 law.

Patrick said the repeal shows that “equal means equal” in Massachusetts, where a 2003 ruling by the state’s highest court made gay marriage legal a year later.

“In five years now … the sky has not fallen, the earth has not opened to swallow us all up, and more to the point, thousands and thousands of good people — contributing members of our society — are able to make free decisions about their personal future, and we ought to seek to affirm that every chance we can,” Patrick said. (source)

Sam Brownback Can’t Spell Irony

One of my favorite targets for the ass-hat award, the normally-uber-swine Sam Brownback is on the right side of an internet freedom issue.

The Chinese government (enshrined with a permanent ass-hat award) monitors all internet service in the country, and has required foreign-owned hotels to install snooping equipment. Sam Brownback is outraged and held a press conference.

No mention was made, during the grandstanding, of the Bush Administration’s monitoring of animal rights, environmental and poverty relief activists, as documented by files released in 2005 as a result of a series of Freedom of Information Act lawsuits by the American Civil Liberties Union. (In those cases, the monitoring was done by the FBI.) (source)

Gators Attack Juicy Campus

University of Florida Student Body President, Kevin Riley, and Chief Information Officer, Marc Hoit, recently issued this letter to the Florida Attorney General asking that the Florida Office of the Attorney General launch an investigation into Juicy Campus, the well-known gossip site. They did not elaborate on what kind of investigation they expect the state to launch.

I agree that JuicyCampus.com contains terribly defamatory posts about many people. However, if you are gullible enough to believe anything you read on JuicyCampus.com, your opinion cannot be all that influential. I also think that asking the government to launch an investigation because a few thin-skinned people have had their feelings hurt is asking for a level of governmental paternalism that used to (in my day) piss college students off. Kids these days…

The letter reads:

“[JuicyCampus] is used to anonymously post gossip regarding students. The anonymity, and the guarantee that information about a user’s identity will not be tracked, provided by JuicyCampus emboldens users to post false and damaging statements about others. These posts often amount to cyberbullying and raise issues of public welfare and safety.” (source)

Mr. Riley and Mr. Hoit, in their zeal to go crying to the teacher, seem to have neglected to do their homework. JuicyCampus.com is protected from liability for the actions of its users by 47 U.S.C. § 230, which was passed in order to ensure that online businesses would not have to grind to a halt while they police their users’ actions. The phone company is under no obligation to make sure you don’t use your phone to set up a contract killing, a drug deal, or to make sure you don’t say nasty things about your co-workers. Similarly, internet service providers should receive the same laissez-faire treatement, lest censorship become the bastard child of technology. See Robert Corn-Revere, New Technology and the First Amendment: Breaking The Cycle of Repression, 17 Hastings Comm. & Ent. L.J. 247, 264 (1994). Naturally, the internet =/= phone lines. However, unless the website in question actually assists in the production of the offending material, it is not liable. See, e.g., Craigslist Wins Section 230 Case. The much-misunderstood Fair Housing Council v. Roommates.com decision did not change that rule, but rather reinforced it. In that case, Roommates.com provided pull-down menus that guided users to create potentially discriminatory housing postings. Therefore, they lost their Section 230 immunity. Craigslist is, like JuicyCampus, free-form and fully protected.

Despite their claim that JuicyCampus raises issues of public welfare and safety, the signatories of this foolish missive appear to be clueless as to how JuicyCampus has cooperated with the authorities in the past.

In situations where Juicy Campus posts have crossed the boundary from nuisance or harassment to outright threat, the site has cooperated with authorities. In December, Carlos Huerta, a senior at Loyola Marymount University, in Los Angeles, posted a message on Juicy Campus alleging that he would start a shooting spree on campus. At the request of the police, Mr. Ivester traced the threat to Mr. Huerta, who was arrested and released without charges. (source)

I agree JuicyCampus most likely hurts a few people’s feelings. There may even be an anecdote or two that raises the complaints beyond mere alligator tears. However, the vast majority of the content on JuicyCampus is innocuous or just plain silly. It seems to me that the only purpose served by this letter was a desire to appear to care about a non-problem.

I have been to bathrooms at the University of Florida where I saw defamatory material written on the wall. No investigation was launched – at least not at the level of the state Attorney General - and nobody called for the building to be torn down. The logic of blaming the forum for the actions of the participants is as illogical as closing a public park because someone held up a defamatory sign.

Section 230 is an example of Congress getting an issue right — internet commerce must be allowed to grow, even if that growth causes a few stretch marks.

Kevin Grierson said:

I don’t think it’s the job of the law to limit the options of law-abiding citizens and businesses because of the potential harm to the Darwin-Award-winning segment of our society.

Similarly, it is not the job of the state to intervene in every example of hurt feelings – even if it is a widespread issue. The next time you take a flight, look at the immense hassle you have to go through. Flying in America is an experience that is a pain in the ass because we passed rules designed to affect the behavior of a few of the worst people in society. Then, we handed the rulebook to dumbest nitwits we could find. Do you really want the government passing rules and launching investigations that may wind up placing the same kind of restrictions on the greatest tool for mass communication ever invented? I sure don’t.

If a student feels aggrieved by the content on Juicy Campus, he or she has the right to file a private cause of action. If the speech rises to the level of a true threat, the police will get involved. Asking the government to launch an investigation into a public forum because of the actions of a minority of participants in that forum is an act of abject foolishness.

There are some areas where the government should never venture – including criminal investigations of activities involving free speech. Fortunately for us, I do not believe that Bill McCollum will take any action. Mr. McCollum, a die-hard Republican, has an excellent record when it comes to free speech issues. McCollum has tirelessly pursued child predators and human traffickers, but he has courageously resisted calls from social conservatives to investigate and prosecute mainstream pornography. McCollum understands the meaning of being a conservative, and is not likely to intervene in a situation that could be cured either through the marketplace of ideas or over-cured by government intervention.

I don’t mind Mr. Riley or Mr. Holt raising the alarm about Juicy Campus. They were well within their First Amendment rights to express their opinion, and to petition the government to take any steps they liked. They crossed the line by purporting to speak for the tens of thousands of students at the University of Florida. I called McCollum’s office, which confirmed that there has been exactly ONE complaint about Juicy Campus by University of Florida students — and that was launched by the student body president himself. Who were these two ass-hats speaking for but themselves?

I encourage Mr. Riley and Mr. Holt to do their homework before they try to start a government investigation into people saying naughty things about one another. I have always found the University of Florida to be a shockingly intellectually complacent institution (and yes, I am a Gator), but this is a new low. Had this been a less enlightened attorney general, their foolish letter very well could have caused real damage to free speech on the Internet.

Frazier v. Winn - 11th Circuit Pledge of Allegiance Case and a Call to Amend the Pledge

In Frazier v. Winn, __F.3d__ (11th Cir. 2008), the Eleventh Circuit struck down part of Florida’s Pledge of Allegiance statute, Fla. Stat. § 1003.44(1) and upheld part of it.

The statute reads:

The pledge of allegiance to the flag . . . shall be rendered by students. . . . The pledge of allegiance to the flag shall be recited at the beginning of the day in each public elementary, middle, and high school in the state. Each student shall be informed by posting a notice in a conspicuous place that the student has the right not to participate in reciting the pledge. Upon written request by his or her parent, the student must be excused from reciting the pledge. When the pledge is given, civilians must show full respect to the flag by standing at attention, men removing the headdress, except when such headdress is worn for religious purposes . . . . (emphasis in case, but not in original statute)

The Plaintiff argued that § was constitutionally invalid because it required parental permission before being excused from participation in the Pledge, and that it required him to stand during the Pledge even if excused.

Requirement that Students Stand

The Eleventh Circuit ruled that the “must stand” requirement was invalid.

That students have a constitutional right to remain seated during the Pledge is well established. See, e.g., Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1274, 1278 (11th Cir. 2004) (noting that the right to remain seated and silent during the Pledge is clearly established); Banks v. Bd. of Public Instruction, 314 F. Supp. 285, 294-96 (S.D. Fla. 1970), aff’d, 450 F.2d 1103 (5th Cir. 1971) (concluding that rule requiring students to stand during the Pledge was unconstitutional). (source)

The State of Florida agreed that this was settled law, but asked that the Eleventh interpret the statute as reading the term “civilians” to apply only to students not exempted from the Pledge. Since the statute contained no language limiting the term, the Court declined to read such a limitation into it.

Parental Consent Requirement

Here, the Court got a little more creative with the law.

The Pledge Statute permits a student to be exempted from participating in the Pledge of Allegiance if, and only if, the student presents a signed statement from his parent excusing him from participation. The Eleventh, rather than examining the Pledge Statute as a compelled speech issue, looked at it as a parental rights statute.

Although the statute here generally requires students to recite the Pledge, the statute also requires students to be notified that they might be excused from reciting the Pledge. The statute then spells out how a student may be excused, that is, by getting his parent’s [sic] consent. Most important, the statute ultimately leaves it to the parent whether a schoolchild will pledge or not. (source)

Strangely enough, the Eleventh seemed to completely brush off the students’ First Amendment rights, and seemed to engage in a bit of judicial activism by injecting a governmental interest into the statute that seems to have no support.

Here, unlike in Barnette and in the cases cited by Plaintiff, the refusal of students to participate in the Pledge—unless their parents consent—hinders their parents’ fundamental right to control their children’s upbringing. The rights of students and the rights of parents—two different sets of persons whose opinions can often clash—are the subject of a legislative balance in the statute before us. The State, in restricting the student’s freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect. See, e.g., Washington v. Glucksberg, 117 S. Ct. 2258, 2267 (1997) (“[T]he ‘liberty’ specially protected by the Due Process Clause includes the right[] . . . to direct the education and upbringing of one’s children. . . .”). (source)

The Court then balanced the students’ First Amendment rights against the parents’ fundamental right to decide how their children are reared and educated.

And this Court and others have routinely acknowledged parents as having the principal role in guiding how their children will be educated on civic values. See Wisconsin v. Yoder, 92 S. Ct. 1526, 1541 (1972) (refusing to enforce a compulsory education requirement beyond the eighth grade where doing so would infringe upon the free exercise of the Amish religion and intrude on the “fundamental interest of parents . . . to guide the religious future and education of their children”); Arnold v. Bd. of Educ. of Escambia County, 880 F.2d 305, 313 (11th Cir. 1989) (“Within the constitutionally protected realm rests the parental freedom to inculcate one’s children with values and standards which the parents deem desirable.”). (source)

Of course, the parent in this case supported the child’s right to bring the lawsuit, and thus likely supported his right to skip the Pledge. The plain language of the statute does not seem to support the Eleventh’s position that this statue was a “parental rights” measure.

Conclusion

It seems like the Eleventh wanted to keep the statute intact, so they sent their clerks to find the best possible way to justify it. The statute clearly is a compelled speech statute, not a parental rights statute.

What disturbs me is that we actually have such litigation in the first place. I do not recite the Pledge of Allegiance. It isn’t that I’m not in favor of showing one’s loyalty, but I believe that participating in the Pledge is actually an act of cowardice and an act that is completely un-American.

For starters, the insertion of the term “under God” in the Pledge renders it state-sponsored endorsement of a particular set of religious beliefs in violation of the First Amendment. See Newdow v. United States Cong., 292 F.3d 597 (9th Cir. 2002) (rev’d on other grounds Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004)).

Second, the text of the Pledge makes no sense. I refuse to pledge my allegiance to a piece of cloth.

Third, I do believe that a Pledge of Allegiance is an appropriate and positive exercise. However, when it is nothing more than reciting meaningless drivel about a piece of cloth, it is no pledge at all.

Proposal — The New Pledge

I pledge my highest allegiance
to the Republic of the United States of America.
I pledge to uphold, defend, and protect the Constitution
against all enemies, foreign and domestic, at all times.
I pledge to join with my fellow citizens for this cause,
and to achieve Liberty and Justice for All

Now THAT is a patriotic, accurate, and Constitutional pledge. We should pledge to that which really matters. We should ritualize our loyalty in an accurate and constructive manner – to remember from where our country’s true strength lies. We should not fetishize a piece of cloth. Without the Constitution, that piece of cloth is worthless. It is a shame that I’m so alone in that belief.

Memphis Police Sue to Out Anonymous Critic

From Commercial Appeal via hawkhead at biglawboard

Memphis Police Director Larry Godwin and the city of Memphis have filed a lawsuit to learn who operates a blog harshly critical of Godwin and his department.

The lawsuit asks AOL to produce all information related to the identity of an e-mail address linked to MPD Enforcer 2.0, a blog popular with police officers that has been extremely critical of police leadership at 201 Poplar.

“In what could be a landmark case of privacy and the 1st Amendment,” the anonymous bloggers write on the site, “Godwin has illegally used his position and the City of Memphis as a ram to ruin the Constitution of the United States. (source)

There is a suggestion that this may have something to do with stopping investigation leaks, so I’ll reserve judgment for the moment. However, it certainly looks like an angry public figure stomping on the First Amendment. Comments from anyone who knows more about the case are invited.

Congressional Candidate Crybaby in Colorado

George Lilly, a Republican candidate for congress in Colorado’s First District makes this following lofty statement on his website:

The oath of office to uphold and defend the Constitution is a sacred oath, and will not be violated by me under any circumstances. Compromising on principle is unacceptable to me under any circumstances! A candidate with principles is hard to find and they are few and far between. You have a chance to vote for one now if you’re tired of all of this corrupt non-sense going on in Washington D.C.

Sadly enough, the man hasn’t even been elected yet, and he is already violating his oath.

On June 9, 2008, the Rocky Mountain Right (RMR) blog carried an announcement that the RMR was endorsing Charles Crain, Lilly’s rival in the Republican primary. In delivering that endorsement, the RMR said that while it remained neutral in most primaries, George Lilly was not worthy of such hands-off treatment by a blog that identifies itself as “Colorado’s Conservative Grassroots.” The endorsement of Crain said, in pertinent part:

George Lilly converted to the Republican Party last year from the Constitution Party for the express reason of running for Congress. At his public appearances at Denver County GOP events he has launched tirades against the Schaffer and McCain campaigns and has made it clear that he will not support the Republican ticket in November. Supporters of Lilly’s were responsible for many of the pointless disruptions of the Colorado Republican Convention several weeks ago. His supporters made clear they would not support John McCain or Bob Schaffer and pulled several stunts that included parading around in Uncle Sam outfits while screaming at Dick Wadhams at the podium.

George Lilly is no Republican. While it is doubtful we can win this seat, George Lilly’s presence on the ticket could be disruptive enough to harm other Republican candidates running statewide.

Vote Charles Crain in the Republican CD-1 Primary. Tell George Lilly to go back to the Constitution Party.(source)

That sent Mr. Lilly running for the phone to call the waaaambulance.

Mr. Lilly may not be fully aware of this, (but my readers are) the First Amendment is part of the Constitution — accordingly I guess that it is a damn good thing that Mr. Lilly won’t be taking that oath of office after all. The most sacred of all First Amendment rights is the right to free speech on matters of political importance. Even Robert Bork agrees with that! However, Mr. Lilly seems more inspired by Lee Kuan Yew than Thomas Jefferson. He issued this threat to the publisher of the RMR:

You have libeled me with your blog. I have contributed money to Bob Schaffer on two ocasions for his Senatorial bid, and I have spoken well of him on many occasions and told people like Ryan Call (State Republican Legal Counsel for the Republican Party) as well as others, that I support Bob. I have known Bob for close to twenty years, and I think he is an excellent person and legislator. He is also friendly with Ron Paul, and thinks very highly of him as do I. I recommend that you print an immediate retraction of your false allegations against me and issue an apology, or I will seek legal redress against you.
…
I have made a copy of your blog which I am keepiing on file, and I am sending this email to my supporters, so that you may get a “heads up” from someone other than myself.

Lilly identifies himself as a “Ron Paul Republican.” As such, I have a natural affinity for him. However, his actions have revealed him as not only a phony, but a hypocrite with absolutely no right to hold office of any kind. It isn’t as if he was qualified in the first place. See his TTT resume here.

The Republican party has already conceded that it can’t win Colorado’s First District. I encourage any Republicans in that district to write in Charles Crain or vote for a third-party candidate. A person like George Lilly deserves nothing better than a humiliating and crushing defeat at the hands of his own party.

Oh, and by the way Lilly, I dare you to send me a cease and desist — or better yet, file a lawsuit against me. I promise you a good old fashioned in-court pimp slappin’ in response.

Hat Tip: Citizen Media Law Project

Third Circuit COPAcabana! COPA Struck Down Again

COPA is Congress’ attempt to revive the Communications Decency Act, which was a Congressional attempt to expand indecency rules to the Intertubes.

On the heels of United States v. Stevens, and CBS v. FCC, the Third Circuit just issued a unanimous opinion in ACLU v. Mukasey affirming the District Court’s holding that the Child Online Protection Act (COPA) is unconstitutional as it is overbroad and unconstitutionally vague.

The COPA statute (47 U.S.C. § 231(a)(1)) provides for up to six months imprisonment for anyone who knowingly posts “material that is harmful to minors” on the Web “for commercial purposes.” The statute defined “material that is harmful to minors” as follows:

any communication that is obscene or that:

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

The Third Circuit agreed that the stated Congressional intent, the protection of minors from harmful material on the Web, was a compelling state interest. Accordingly, the statute passed the first hurdle on the road to surviving strict scrutiny, but stumbled thereafter.

In examining whether the regulation was narrowly tailored, the Third Circuit took issue with the definition of “minor.” Under the statute, this could apply to an infant or a 17 1/2 year old. Citing its prior opinion, the Third (re)held:

Web publishers would face great uncertainty in deciding what minor could be exposed to its publication, so that a publisher could predict, and guard against, potential liability.” Id. at 255. We explicitly rejected the Government’s argument that the term “should be read to apply only to normal, older adolescents,” id. at 254, and stated that under either our definition or the government’s proffered definition, “the term ‘minor,’ viewed in conjunction with the ‘material harmful to minors’ test, is not tailored narrowly enough to satisfy the First Amendment’s requirements,” id. at 255. (source)

The court also held that COPA’s limitation to commercial enterprises did not sufficiently narrow its reach.

First, the court determined that COPA is impermissibly overinclusive because it “prohibits much more speech than is necessary to further Congress’ compelling interest. For example, . . . the definitions of ‘commercial purposes’ and ‘engaged in the business’ apply to an inordinate amount of Internet speech and certainly cover more than just commercial pornographers . . . .” Gonzales, 478 F. Supp. 2d at 810 (citations omitted). The court also concluded that COPA is overinclusive because it “applies to speech that is obscene as to all minors from newborns to age sixteen, and not just to speech that is obscene as to older minors . . . .” Id.

The Government contends that COPA is narrowly tailored because it applies only to commercial pornographers and only to material that is harmful to “older” minors. But we addressed and rejected the Government’s arguments in ACLU II, when we found there is nothing in the text of COPA to limit its application solely to “commercial pornographers” or to limit the phrase “material that is harmful to minors” to include material that only is harmful to “older” minors. See 322 F.3d at 253-57. Our prior decision is binding on these issues on this appeal. (source)

The decision also recognizes that the statute’s affirmative defenses available to websites that implement effective age-verification procedures do not cure it of its unconstitutionality. While they might keep kids from accessing porn websites, they were largely ineffective since kids can get access to credit cards quite easily. More importantly, the court was unwilling to allow the chilling effect that such affirmative defenses might create. The court held that age verification would cause some adults to avoid visiting websites that ask for their personally identifying information, and they would impose impermissible costs on Web publishers.

We conclude that the District Court correctly found that implementation of COPA’s affirmative defenses by a Web publisher so as to avoid prosecution would involve high costs and also would deter users from visiting implicated Web sites. It is clear that these burdens would chill protected speech and thus that the affirmative defenses fail a strict scrutiny analysis.

The Government contends that nevertheless these burdens “are no different in kind or degree from the burdens imposed by state laws regulating the sale and commercial display of ‘harmful to minors’ materials. . . . [T]he effect of the statute is simply to requir[e] the commercial pornographer to put sexually explicit images behind the counter.” Appellant’s Br. at 43 (citations and certain internal quotation marks omitted) (second alteration in original).

We rejected this argument in ACLU II. See 322 F.3d at 260 (“Blinder racks do not require adults to compromise their anonymity in their viewing of material harmful to minors, nor do they create any financial burden on the user. Moreover, they do not burden the speech contained in the targeted publications any more than is absolutely necessary to shield minors from its content.”). Blinder racks do not require adults to pay for speech that otherwise would be accessible for free, they do not require adults to relinquish their anonymity to access protected speech, and they do not create a potentially permanent electronic record. Blinder racks simply do not involve the privacy and security concerns that COPA’s affirmative defenses raise, and so the Government’s attempted analogy is ill-fitting. (source)

The court also found that there were less restrictive ways to achieve the government’s stated goal — like the use of internet filters by parents.

Given the vast quantity of speech that COPA does not cover but that filters do cover, it is apparent that filters are more effective in advancing Congress’s interest, as it made plain it is in COPA. Moreover, filters are more flexible than COPA because parents can tailor them to their own values and needs and to the age and maturity of their children and thus use an appropriate flexible approach differing from COPA’s “one size fits all” approach. Finally, the evidence makes clear that, although not flawless, with proper use filters are highly effective in preventing minors from accessing sexually explicit material on the Web. (source)

Accordingly, the Third Circuit (for the third time this week) breathed new life into our long-suffering First Amendment.

In sum, COPA cannot withstand a strict scrutiny, vagueness, or overbreadth analysis and thus is unconstitutional. We reach our result both through the application of the law-of-the-case doctrine to our determination in ACLU II and on the basis of our independent analysis of COPA and would reach the same result on either basis standing alone. (source)

Personally, I like this quote from the trial court decision — and it is one that I frequently quote when I am confronted with the “what about the children” red-herring/hysterics:

Perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.” ACLU v. Gonzalez, 2007 US DIST LEXIS 20008 (E.D. Pa. 2007)

—-

Note: Bob Corn-Revere, a fellow First Amendment Lawyers’ Association brother was lead counsel in both this and the CBS v. FCC case. Bob is this week’s First Amendment Bad Ass.

Addendum - Ever the humble professional, Bob issued this statement:

While I filed an amicus brief in the COPA case, all the heavy lifting was done by the ACLU, which did a masterful job. Congratulations go especially to Chris Hansen, who gave a brilliant oral argument. I was just happy to be associated with the case, even if just to provide some support.

He still keeps his FABA award.

FCC Gets Punked Again

When, oh when, will the FCC learn that it too is governed by the First Amendment?

The Third Circuit held that although the FCC possesses the authority to regulate indecent television content, it “had long practiced restraint in exercising this authority.” (Opinion at 13). This restraint had previously limited the FCC to find that broadcast material was indecent only in a few occasions “where programming contained indecent material so pervasive as to amount to ‘shock treatment’ for the audience.” (Opinion at 13).

During this entire period, the FCC consistently had a policy that isolated or fleeting material was not actionable indecency.

At the time of the infamous “wardrobe malfunction,” this policy was still in effect. However, in a blatant move to pander to the “values voters” who ushered in the Bush regime, the FCC decided to change this policy without notice or explanation immediately once the Super Bowl XXXVIII “wardrobe malfunction” hit the airwaves.

The Third Circuit found that while the FCC has the privilege of changing its policies, it must do so reasonably and not in an arbitrary or capricious manner. For engaging in this ambush-style policy change, the Third Circuit found the FCC’s actions “arbitrary and capricious under the Administrative Procedure Act as applied to CBS.” (Opinion at 14).

Additionally, the Third Circuit found that the FCC’s decision to hold CBS liable for Janet Jackson and Justin Timberlake’s halftime show performance was improper. Since Janet Jackson and Justin Timberlake were independent contractors, trying to hold CBS accountable was unlawful.

The First Amendment precludes the FCC from sanctioning CBS for the indecent expressive conduct of its independent contractors without offering proof of scienter as an element of liability. And, it is unclear whether the FCC correctly applied a “willfulness” standard to find CBS liable for failing to prevent the Halftime Show’s indecency. (Opinion at 50)

This decision is not only very satisfying to me as a First Amendment advocate, but it also has the right tone when considered in light of Deborah Taylor Tate’s recent statement that “the law is simple. If a broadcaster makes the decision to show indecent programming, it must air between the hours of 10 p.m. and 6 a.m. This is neither difficult to understand nor burdensome to implement.”

Hopefully Ms. Taylor Tate and her asshat colleague, Kevin Martin, will now also learn that the First Amendment is also neither difficult to understand nor burdensome to follow.