July 16, 2010

By J. DeVoy

Xbiz reports that the government’s case, failing to meet its burden of proof on any of the counts against Stagliano, has been dismissed.

The trial, pending before Judge Richard Leon in the United States District Court for the District of Columbia, was dismissed on the defense team’s Rule 29 motion at the end of the government’s case.  And what a team it was: H. Louis Sirkin, lead counsel for John Stagliano Inc. and Paul Cambria Jr., lead counsel for Stagliano. A solo practitioner, Allan Gelbard, represented Evil Angel Productions. Davis Wright Tremaine partner Robert Corn-Revere served as local counsel. (source.)

The proceedings came to a jarring halt when the government’s star witness, an FBI agent, impeached his own credibility while calling the judge’s and prosecutor’s into question.  From that point onward, the government could not surmount the burden of proof it bore under the constitution.

Beginning in 2008, the government’s case against Stagliano accused him of enough crimes to put him in prison for more than 30 years.  Despite running Evil Angel for two decades, the case against Stagliano rested upon mere minutes of footage, with the remainder of his natural life potentially in jeopardy.

UPDATE: Additional coverage available at AVN, courtesy of Mark Kernes.

Dear Leader Randazza Quoted in NYT Article on SLAPP Suits

May 31, 2010

by Christopher Harbin

Marc was recently quoted in the paper of record regarding Slapp suits.

One tidbit of the article stood out as odd to me:

“The group Medical Justice, which helps protect doctors from meritless malpractice suits, advises its members to have patients sign an agreement that gives the doctor copyright over a Web posting if the patient mentions the doctor or practice.”

I don’t condone this practice, but would the doctors want  an assignment of copyright rather than a non-disclosure agreement? Wouldn’t fair use basically eviscerate any control the doctor or practice might have?  Also, what about non-copyrightable statements.  For example,  “My doctor cut off the wrong leg” and “My doctor is a crook” contain no protectable expression, so I’m pretty sure Medical Justice is giving out crummy advice.   How is their mission of  “protecting doctors from meritless malpractice suits” advanced by silencing critics anyways?

What the First Amendment is all about

April 30, 2010

Judge William Downes of the U.S. District Court for the District of Wyoming ordered the University of Wyoming allow William Ayers speak on its campus with this explanation:

“This court is of age to remember the Weather Underground. When his group was bombing the U.S. Capitol in 1971, I was serving in the uniform of my country,” Downes said. “Even to this day, when I hear that name, I can scarcely swallow the bile of my contempt for it. But Mr. Ayers is a citizen of the United States who wishes to speak, and he need not offer any more justification than that.” (source)

Hat Tip: Popehat

Is a third creative commons-licensed Nine Inch Nails album forthcoming?

March 12, 2010

By J. DeVoy

Something’s happening at the official Nine Inch Nails website.

In the past, such pictures portended the release of Ghosts I-IV and The Slip (available for free download).  Both of those albums were released under a creative commons license, a move praised by Harvard Law professor Lawrence Lessig.

The band’s move to creative commons licensing and self-distribution isn’t particularly shocking.  In 2007, Nine Inch Nails frontman Trent Reznor told fans all around the world to steal copyrighted music distributed by his then-label, Interscope, rather than buy it.

The band has also taken a particularly open approach to its live concerts, securing permissive recording device policies at a number of venues.  Additionally, the band released HD footage from its 2009 tour for fans to remix into a tour DVD.  This has resulted in a fan-made live DVD of the 2009 Lights In The Sky Tour and The Downward Spiral Live, a DVD of the band playing its 1994 release from start to finish.  Generally, recording live performances is prohibited for copyright reasons, and the recorded presentation of concerts are released, for profit, by a distributor.  Nine Inch Nails previously released concert DVDs under that regime, but no more. 

Then again, whether an album is released remains to be seen.  Reznor is notorious for refusing to release his material, even after it’s done — especially music videos.

Nine Inch Nails is the kind of band that everyone seems to like, but few follow.  The amount of music that the group has released since 2005 is staggering.  It’s refreshing, though, to see someone like Trent Reznor bring attention to technology and copyright issues.

ISC v. Marshall Liveblog

March 3, 2010

By Christopher Harbin

Starting at 11am EST, we will be live blogging the oral augments in ISC v. Marshall. WordPress doesn’t support iframes (the bastards), so you’ll have to watch it in a popup.

Click Here

Will Phillips, age 10, First Amendment Bad Ass

November 17, 2009

Will Phillips – you are the First Amendment Bad Ass of the month.

Will’s family has a number of gay friends. In recent years, Laura Phillips said, they’ve been trying to be a straight ally to the gay community, going to the pride parades and standing up for the rights of their gay and lesbian neighbors. They’ve been especially dismayed by the effort to take away the rights of homosexuals – the right to marry, and the right to adopt. Given that, Will immediately saw a problem with the pledge of allegiance.

“I’ve always tried to analyze things because I want to be lawyer,” Will said. “I really don’t feel that there’s currently liberty and justice for all.”

After asking his parents whether it was against the law not to stand for the pledge, Will decided to do something. On Monday, Oct. 5, when the other kids in his class stood up to recite the pledge of allegiance, he remained sitting down. ( source).

Will lives in Arkansas. Being a 10 year old who stands up for gay rights must be hard enough. Doing so in Arkansas can’t be easy at all. He’s getting a load of grief from his classmates and from the teachers at his school, but Will is standing fast.

You go, Will.

At the end of the interview he is asked “What does being an American mean?

“Freedom of speech,” Will says, without even stopping to think. “The freedom to disagree. That’s what I think pretty much being an American represents.”(source)

And Will wants to be a lawyer….

I’ll be proud to sponsor him for membership in the First Amendment Lawyers’ Association in about 14 years. I wonder if he would pledge if the pledge read like this.

Chick-Fil-A, Breast-Feeding and A Whole-Lotta First-Amendment Bad-Assery

August 15, 2009

Zac - Breast Correspondent

Zac - Breast Correspondent

By: Zac Papantoniou

While en route to check-off another item on my epic list of neglected errands thrown to the wayside while studying for the state bar exam I just took, I happened to catch a story being discussed on a local talk-radio station (yes, I listen to talk radio while driving . . . obsessively). They mid-morning show (The Buckethead Show) on 104.1 FM happened to be discussing a story involving two subjects I take interest in . . . protesting and breasts. Apparently, around noon today, a “nurse-in” was going to be held at a Chick-Fil-A not far from where I was; what’s a “nurse-in,” you ask? Well, hell if I know, but the back story goes a little something like this:

This past Tuesday, while breastfeeding her 6-month-old baby inside the Chick-Fil-A on University Rd. and Forsyth (that’s in Winter Park, FL, for those folks not familiar with my current stomping grounds), 27-year old mom Chylain Krivensky was asked to cover up, by the store’s manager. Krivensky explained, “The manager came up and introduced herself and told me she believed in what I was doing, but asked me if I could cover up cause there were children around.” Already feeling humiliated by the request, Krivensky’s feelings worsened when the manager handed her a kitchen towel to put over the feeding baby’s head. “My thought was, no one would put a towel over their head to eat it’s the same thing with a blanket I don’t put a blanket over her head to eat, covering somebody up to eat is ludicrous,” Krivensky exclaimed (on this point alone, I completely disagree with the young mother; on more than one occasion I have been known to play a little game I like to call “Treasure Hunt,” which involves a box of lucky charms, a bottle of Jameson’s Irish Whiskey, and a giant “American Tail” comforter I’ve had since I was the age of five, complete with life-size renderings of Fievel Mousekewitz on it . . . I’ll leave the rest up to your imagination). Krivensky asked the people sitting around her table if they felt uncomfortable with the feeding, to which she received no replies in the affirmative. Quickly thereafter Krivensky left the Chick-Fil-A, went home, and told her online friends about her ordeal. After complaining to Chick-Fil-A’s corporate office, the group of women organized what they decided to call a “nurse-in,” to quietly protest the wrong they believed had been done to Krivensky. (source)

Krivensky, was in the right; Florida Statute 383.015(1) states:

The breastfeeding of a baby is an important and basic act of nurture which must be encouraged in the interests of maternal and child health and family values, and in furtherance of this goal . . . A mother may breastfeed her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother’s breast is uncovered during or incidental to the breastfeeding. (source)

The First Amendment in action, babies and breast-feeding moms, what more could I ask for out of a lunch-time, first-person documented, Satyricon blog-post topic? I made a quick U-turn and proceeded to make my way to the Chick-Fil-A, so that I could be up-close and personal to what I thought was going to be the oddest protest these young eye’s had ever seen. I expected chanting women, screaming babies and a heated battle taking place, between frazzled moms on the receiving end of long nights spent awake created by the round-the-clock care needed to appease newborns and the cold-hearted fast-food corporate managers who always seem to have a psycho-analytical complex which can only be described as falling somewhere between the characteristics displayed between God and Napoleon Bonaparte . . . what I found upon my arrival at the Chick-Fil-A was anything but.

What occurred in my presence was a situation, rarely witnessed, when it comes to unhappy protestors and fast-food conglomerates; I saw the owner, managers, and employees of that Chick-Fil-A acknowledging that they were wrong and doing their darndest to turn a negative situation into a positive learning experience. Unbeknownst to me, after Krivensky complained to Chick-Fil-A’s corporate office, the same manager who offered her a kitchen towel on Tuesday invited her to fill the restaurant with mothers and babies this afternoon. “When I spoke with her yesterday she was mortified,” Krivensky said. “She had no idea there was a law. She’s the reason this has turned out so wonderful. It is not her fault that she was not educated about the law.” The manager said the idea to show support for breastfeeding came after the women complained. The manager and owner also offered to comp the women’s meals during the event, but most of the women did not accept.

The owner, managers and owner were walking around not only doing interviews with the local news stations, but also explaining the situation to other mystified patrons, who had no idea what was going on. I spoke to an Assistant Manager, while eating a delicious chicken sandwich, named Tonya who told me, “[we] were wrong, and we’re happy, to not only have been educated on the law, but to also be able to give these women a forum to express their fundamental rights. We’re now trying to do our best to educate all of our employees, working at this store, on the law.” This heart-warming moment was then cut short by a giant cow mascot handing out toys to kids, and other people needing Tonya’s attention. Tonya told me to have a nice day, and as I headed out the door, I smiled at the thought of at least one corporate store, who seems to be doing things right. That’s why, Chick-Fil-A on Goldenrod and University, in Winter Park, FL, gets my vote for “First-Amendment Bad-Ass of the Week.”

MOTHERFUCKER! Fox v. FCC Overturned; Clarence Thomas Captured by Space Aliens!

April 28, 2009
Clarence Thomas appears to have been captured by aliens and replaced with a reasonable facsimile who respects the First Amendment!

Clarence Thomas appears to have been captured by aliens and replaced with a reasonable facsimile who respects the First Amendment!

by Marc J. Randazza and Jason Fischer

The 5-4 decision came down yesterday. In an opinion written by Scalia, the Second Circuit’s speech-protective ruling in Fox v. FCC was overturned. (Prior decision discussed here) At least the Court left open the question of whether the FCC’s policy might violate the First Amendment in certain circumstances.

Scalia says vaffanculo to the First Amendment (what else is new, lately)

Scalia flatly rejects any notion that he might have a responsibility to examine the First Amendment issues in the case.

The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of STEVENS, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time. (Op. at 25-26)

In other words, Scalia gives a big “fuck you” to the principles laid out in two key First Amendment cases. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (”[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).

On what grounds did the Court overturn the Second Circuit’s ruling?

The Second Circuit said that the FCC acted arbitrarily and capriciously in suddenly changing its three decades old position that “fleeting expletives” are not actionably indecent. The Second Circuit said that some of the FCC’s justifications for its new policy, in contrast to the earlier policy, were “divorced from reality“.

Scalia’s view is that as long as the FCC can come up with any articulable rationale for its rule, and it could have enacted the rule in the first place, it doesn’t need to have a more detailed reason to change the rule. The Constitution be damned:

In this appeal from the Second Circuit’s setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters’ arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. (Op. at 12)

Nevertheless, the analysis of the administrative procedures act and an agency’s rule-making authority is, quite honestly, too dull for me to get into in depth. (A future update may change this). Suffice to say that the FCC can change the rules if it has some reason to do so.

But here is where it gets exciting.

Are you sitting down? Good. Read this from a concurrence in the case.

I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so” in these cases. (Concurrence at 1)

Guess who wrote that… wait for it… waaait for it.

Clarence Thomas!

Yeah, THAT Clarence Thomas.

Holy shit, it gets better.

First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” Red Lion, supra, at 390, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. (Concurrence at 3)

A reminder, that is Clarence Thomas writing there. Clarence. Motherfucking. Thomas.

I am open to reconsideration of Red Lion and Pacifica in the proper case. (Concurrence at 6)

Clarence Thomas. First Amendment Bad Ass of the Week.

UPDATE: According to Fischer, Thomas has always been awesome.

Jennifer Kinsley, First Amendment Bad Ass

April 16, 2009

Jennifer Kinsley is, without question, one of the brightest and most committed First Amendment lawyers in America.

Her home-town Cincinnati City Beat Newspaper recently recognized her work in this piece, Nobody’s Above the Law.

I just consider myself to be fortunate beyond words to be able to call Kinsley my friend.

R.I.S. – Judith Krug – First Amendment Warrior

April 15, 2009

Judith Krug, First Amendment Heroine, Dead at 69

Judith Krug, First Amendment Heroine, Dead at 69

Judith Krug headed the American Library Association’s Office of Intellectual Freedom since 1967 and founded the Freedom to Read Foundation. She fought the banning of such titles as “Huckleberry Finn,” “Mein Kampf,” “Little Black Sambo,” “Catcher in the Rye” and sex manuals. In 1982, she founded Banned Books Week — an annual festival that promotes titles that some have attempted to ban.

“My personal proclivities have nothing to do with how I react as a librarian,” Ms. Krug said in an interview with The New York Times in 1972. “Library service in this country should be based on the concept of intellectual freedom, of providing all pertinent information so a reader can make decisions for himself.” (source)

Krug was instrumental in the fight against Section 2257 and the “minors display” ordinances that were fashionable in the 1980’s. Most impressively, she convinced 13 federal judges to unanimously strike down the MacKinnon-Dworkin anti-pornography ordinance.

She invented Banned Books Week. Although the ALA lost some—the Virginia library/computer case and the seven-year battle against 2257, every time you cite a case beginning “ALA” you’re benefitting from her work. ALA v. Virginia basically neutered the rash of “minors’ display” ordinances that the censors came up with in the ’80s and the ALA got 13 federal judges to unanimously strike a “MacKinnon-Dworkin” anti-pornography ordinance, which would have repealed the First Amendment in the area of sexual expression.

We don’t lower the flag to half mast lightly at the Legal Satyricon. But, for Judith Krug, we are honored to do so.

Censorship in the Name of Political Correctness — Gamers Prepare to Face a New Enemy

March 30, 2009

Editorial and Comment by Zac “AGhostInTheSnow” Papantoniou

“Just when the decency police and moral values group have been all but defeated in the courts–both of law and public opinion–a new threat has emerged from our left flank: political correctness . . . The leftist thought police are now wanting to impose their view of propriety on modern cultural discourse.” – Lawrence Walters

If you love video games as much as I do, you should ingrain the name Lawrence Walters into your brain.

Walters, who has been described by some as “the Anti-Jack Thompson,” is a distinguished First-Amendment attorney and Managing Partner at the law firm of, “Weston, Garrou, Walters and Mooney”; he recently spoke at the “2009 Game Developers Conference” in a session titled, “Silencing the Censors.” (Disclaimer, Walters is Randazza’s law partner).

During the session, Walters forewarned game developers of a looming threat to the video-game industry, censorship in the name of “political correctness.” Walters cited pending legislation, in the state of New York, that aims to prohibit sales of games to minors, that have various degrees of profanity, racist stereotypes, derogatory language, and/or actions toward a specific group of persons.

The law would require New York retailers to apply warning labels to any game that contained such subject matter and would require retailers to keep all such games in a “sealed and locked container” inaccessible to customers. Non-compliant retailers – or “non-custodial” adults who purchase regulated games for minors – would be subject to a fine of up to $1,000.

I have some major points of contention with legislation such as this. First, the video-game industry voluntarily set up a self-regulating body (the ESRB), over 15 years ago, to independently rate and label the content of every game sold in North America. Attempting to enact such legislation is a waste of precious tax-payer dollars; dollars, that could be better spent on a multitude of various state needs, such as . . . oh, I don’t know, maybe . . . education?! Second, legislation based on political correctness, which would impose a $1,000 fine on an offender is both excessive and (should be) a shock to one’s conscience; especially considering the way such legislation binds the hands of parents when it comes to child-rearing. Last, but certainly not least, such legislation is an affront to one’s rational ability to use common sense, not to mention, the basic freedoms afforded by the First Amendment of the Constitution! As Walters pointed out in his session:

“Think about that for a minute. Would we ever in a million years tolerate the government passing a law that movies cannot have profanity, racial jokes, or derogatory language? That would eliminate practically every movie made,” he said.

“Now we can debate all day long whether racist stereotypes or derogatory language is even appropriate in video games, but that’s for us to debate, and not for the government to decide.”

This type of “thought policing,” as of late, has generally come from those leaning to the right of the political spectrum; but Walters warns that with the new change in the political landscape, it is ever increasingly coming from those on the left as well. We’ve seen this before, I mean, who grew up in the 80’s and doesn’t remember Tipper Gore’s “War on the Music Industry?”

This type of thinking will do us in people! Parents must be free to make decisions as to their children’s best interests; video-game developers must be free to create products and retailers must be free to sell those products as they see fit, without having to worry that they’ll be fined a grand if a minor gets their hands on a video game with mature content in it. You and I, must be free to express thoughts, ideas, expressions and creations, without having to constantly look over our shoulders, wondering if we’ll be the target of a politician’s next attempt to stifle something they find “controversial.” Because it starts here, with you and I; and if we don’t speak up for ourselves, we’ll have to then wonder, will there be anyone left to speak up for us, once the thought police come to stifle our fundamental freedoms?

I’ll leave you with something Ben Franklin once said:

“Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.”

HT to First Amendment Bad-Ass, Lawrence G. Walters, for speaking up, and fighting for our right to play any fucking video game we choose . . . Read more: Here and Here.

Connecticut Legislator Pushes for Student Speech Rights Bill

January 31, 2009

We haven’t given out a First Amendment Bad Ass award in a while, but Connecticut State Senator, Gary D LeBeau, come on down! LeBeau has proposed a “student speech” bill in the Connecticut General Assembly.

Sen. Gary D. LeBeau, the Democrat from East Hartford who co-chairs the General Assembly’s Commerce Committee, said today that he was spurred to introduce his bill by the nationally publicized case of Avery Doninger, a former Burlington high school student disciplined for a 2007 Internet posting she wrote from her home.

“I strongly believe in the First Amendment,” the lawmaker said. “And after what school administrators did in the Doninger case, what’s needed is a bright line of where the state — since the school was acting on behalf of the state — can impinge on the rights of individuals. I think they overstepped in this case.

“As long as a message like hers is not sent directly to a school, or if she is not using school equipment, this young person and everyone else has a right to say what they think,” he added. “Unfortunately, the way she said it was pretty offensive, but that happens — and that’s sometimes the very speech that needs to be protected.” (source)

Hell yeah.

In Memoriam – David Wasserman

September 27, 2008

First Amendment lawyer David Wasserman died Thursday, Sept. 25 by his own hand. He reportedly suffered from depression for the past 16 years.

The Orlando Sentinel reports:

Wasserman, 52, was a passionate defender of the First Amendment who loved a good fight and reveled in speaking his mind, those who knew him said. He was the Christian Coalition’s nightmare, a guy whose credo was naked bodies are no big deal. And none of the government’s business.

A human run-on sentence, he was eager to preach his gospel of First Amendment freedom.

I knew Wasserman personally. I made my entree into First Amendment law when David and I were both representing an adult bookstore in Florida. David sponsored me for admission into the First Amendment Lawyers’ Association. However, it did not take long for me to sense that he was the kind of guy who seemed to always be followed by a cloud of bad luck.

I am a firm believer in the following law of power: “You can die from someone else’s misery – emotional states are as infectious as diseases. You may feel you are helping the drowning man but you are only precipitating your own disaster: The unfortunate sometimes draw misfortune on themselves; they will also draw it on you. Associate with the happy and fortunate instead.

Applying that wisdom, I chose to avoid him. However, we had many common acquaintances and business connections. Accordingly, I watched from the stands as he spiraled downward in a morass of bad decisions. I never enjoyed watching him drop, but I wasn’t ever surprised.

I don’t bring this up to malign his memory. In fact, I’d prefer that all who knew him remember him as a “passionate defender of the First Amendment” — a statement that is 100% true. However, Wasserman is a good cautionary tale for those who think that they want to break into the field of adult entertainment law. This is a field for those who are passionate defenders of the First Amendment — but it is a field where the consequences of judgment errors can magnify and multiply rapidly.

Those in the First Amendment bar are some of the most eccentric and unique personalities in the legal profession. David was a morass of imperfections (as we all are), but he was one of us just the same. I would not falsely call him my “friend,” as I did not know him well enough to take that title. Nevertheless, I proudly call him my brother in the struggle to protect the Constitution.

In honor of David, the Legal Satyricon flag shall be lowered to half-mast. Have a good journey, brother.

Third Circuit COPAcabana! COPA Struck Down Again

July 22, 2008

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.

“Room 8” Subpoenas and Prosecutors Running Wild

July 15, 2008

This post is a corrected version.

The New York Times and Simple Justice report on a Bronx District Attorney’s First Amendment overreach.

Somebody in the Bronx District Attorney’s office (nobody is taking credit for this foolishness) claims to have been investigating some poorly written death threats. (source) In the process, they issued a subpoena to the New York Political Blog Room 8 for the identity of some anonymous commenters.

The First Amendment protects an individual’s right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”). Naturally, that freedom is not absolute, and a death threat

The petty little nazi who issued this subpoena wanted to make sure that he didn’t get whacked with a Streisand-Dozier effect so, for good anti-First Amendment measure, he added this line to the subpoena:


Yes, apparently the Bronx D.A. has joined Dozier in thinking that he too can issue unconstitutional faux national security letters in order to try and quash criticism.

Not on Paul Alan Levy’s watch! Paul (today’s First Amendment Bad Ass Award Winner) jumped into action and gave the Bronx D.A. a royal PWNING. They have since retracted the subpoena and run off into the corner like the scummy little roaches they are.