Student’s First Amendment rights violated in conviction over MySpace postings

State v. A.B., No. 67A01-0609-JV-372 (Ind. App. April 9, 2007) [Download the opinion.]

A middle school girl in Greencastle, Indiana created a bogus MySpace profile impersonating her school’s principal. She invited one of her classmates, A.B., to be a “friend,” and A.B. posted an obscenity-laced (yet surprisingly grammatically accurate) comment that was critical of the school’s policy against certain types of body piercings. A.B. also created a group on MySpace that was likewise critical of the principal, and posted content there.

The State filed a delinquency petition against A.B., alleging several violations of the state’s harassment statute, Ind. Code § 35-45-2-2(a)(4). The trial court issued an order adjudicating A.B. to be a delinquent child, and gave her nine months of probation.

A.B. sought review, arguing, among other things, that the web content she created was political speech protected by the First Amendment. On appeal, the court agreed and reversed the adjudication of delinquency.

The court applied a two-part test to review the constitutionality of the application of the harassment statute. It determined (1) whether state action had restricted A.B.’s expressive activity, and (2) whether the restriction constituted an abuse of the right to speak. The court answered both of these questions in the affirmative.

In determining that the restriction was an abuse of A.B.’s right to speak, the court did “not engage in speculation as to what the speaker might have meant,” but employed an objective standard to determine that the speech was to be understood as political speech.

This form of speech is to be protected, absent some “particularized harm analogous to tortious injury or readily identifiable private interests.” The court found that the state presented no evidence of this sort of particularized harm, thus the constitutional right to speak had been contravened.

Josh Wolf freed from jail

For the past several months the controversy around video blogger Josh Wolf has swirled, as he served time in a federal corrections center for contempt of court. Wolf chose to be incarcerated last year rather than turn over to the feds footage of a San Francisco political demonstration. The story has placed the idea of citizen journalism at front and center. (I mentioned Wolf’s situation in a piece I did for Viral on Veoh which you can view here.)

Yesterday, Wolf and the federal prosecutors worked out a deal where Wolf turned over the footage and was released from custody. Read more about Wolf’s story and release here.

COPA held unconstitutional (yet again)

In 1997, the Supreme Court struck down portions of the Communications Decency Act [Reno v. ACLU, 521 US 844 (1997)] which sought to put strict prohibitions on the distribution of pornography on the Intenret. The following year, Congress passed the Children’s Online Protection Act (“COPA”), which was another attempt to cut off Internet pornography at its source.

Shortly after COPA was passed, the ACLU and others challenged it on constitutional grounds. The entry of a preliminary injunction made it all the way up to the Supreme Court, which affirmed. Discovery in the matter before trial led to last year’s privacy maelstrom surrounding the request of the Government for Google to turn over massive amounts of search data. [More on that topic here.]

The case proceeded to trial in November of last year, and earlier today, Judge Reed, at the end of an 84 page opinion, issued a final adjudication, which reads as follows:

AND NOW, this 22nd day of March, 2007, upon consideration of the evidence, testimony of the witnesses and experts, and the arguments of counsel presented during the trial of this matter and the pre and post-trial submissions by the parties … , it is hereby ORDERED, that based upon the Findings of Fact and Conclusions of Law detailed above:

(1) The Child Online Protection Act, 47 U.S.C. § 231, is facially violative of the First and Fifth Amendments of the United States Constitution; and

(2) Defendant Alberto R. Gonzales, in his official capacity as Attorney General of the United States, and his officers, agents, employees, and attorneys, and those persons in active concert or participation with defendant who receive actual notice of this Order are PERMANENTLY ENJOINED from enforcing or prosecuting matters premised upon 47 U.S.C. § 231 at any time for any conduct.

This is a FINAL ORDER and this case is CONCLUDED.

S/ Lowell A. Reed, Jr.

Download the entire opinion here.

Sixteen-year-old girl criminally liable for child pornography

A state appellate court in Florida has affirmed the decision of a trial court that adjudicated a 16-year-old girl, A.H., a delinquent based on her violation of the state’s anti-child pornography statute. The law in question, Section 827.071.(3), prohibits one from producing, directing or promoting a photograph or representation that the person knows to include sexual conduct of a child.

The charges against A.H. were based on digital photos A.H. and her 17-year-old boyfriend took of themselves “engaged in sexual behavior.” The photos were never shown to a third party, but A.H. e-mailed them to the boyfriend’s personal account.

At the trial court level, A.H. moved to dismiss the charges, arguing that the Florida statute was unconstitutional as applied to her. She contended that, because the photographs were not actually distributed to a third party and the other participant in the photos was an older minor, her right to privacy was implicated and that criminal prosecution was not the least intrusive means of furthering a compelling state interest.

The trial court ruled that there was a compelling state interest in preventing the production of the photographs and criminal prosecution was the least intrusive means of furthering the state’s compelling interest. The appellate court agreed, and further determined that the privacy provision of the state constitution did not protect A.H.’s behavior.

At the heart of the case was the court’s determination that A.H. had no reasonable expectation of privacy in the photographs. First, the decision to take the photographs and to keep a record that may be shown to people in the future weighed against a reasonable expectation of privacy. Second, because the persons in the photos were minors, they had no reasonable expectation that the photos would not be shared with others. The court stated that “[m]inors who are involved in a sexual relationship, unlike adults who may be involved in a mature committed relationship, have no reasonable expectation that their relationship will continue and that the photographs will not be shared with others intentionally or unintentionally.” Third, the fact that they had kept the photos private was immaterial: “The fact that these photographs may have or may not have been shown in no way affects the minor’s reasonable expectation that there was a distinct and real possibility that the other teenager involved would at some point make these photos public.”

The court went on to hold that even if A.H. had a reasonable expectation of privacy in the photos, the State had a compelling interest in seeing that the content of the photos, namely, minors engaged in sexually explicit activity “is never produced.” The court concluded that prosecution of the participants, regardless of their age, was the least intrusive means of furthering that compelling interest. Moreover, the court observed that “the statute was intended to protect minors like appellant and her co-defendant from their own lack of judgment.”

The court also addressed the significance of the fact that A.H. had e-mailed the photos to the boyfriend (who, you’ll remember was the other participant in the photos), concluding that that act would contribute to the widespread distribution of the photos:

Not only can the two computers be hacked, but by transferring the photos using the net, the photos may have been and perhaps still are accessible to the provider and/or other individuals. Computers also allow for long-term storage of information which may then be disseminated at some later date.

One of the judges on the three-judge panel lodged a vigorous dissent, arguing that the application of the statute against A.H. violated her constitutional right to privacy. Citing to the Florida constitution and previous case law, the dissenting judge noted the “clear constitutional mandate” of privacy giving rise to a right that applies to both adults and children alike.

The dissenting judge also criticized the majority opinion’s emphasis on the fact that A.H. had e-mailed the photos to the boyfriend:

That the Internet is easily hacked, as the majority says, is not material. The issue is whether the child intended to keep the photos private, not whether it would be possible for someone to obtain the photos against her will and thereby to invade her privacy. The majority states that the child “placed the photos on a computer and then, using the internet, transferred them to another computer,” as if to suggest that she left them out carelessly for anyone to find. That is not what happened. She sent the photos to her boyfriend at his personal e-mail address, intending to share them only with him.

So the case is problematic for a number of reasons. It certainly complicates the analysis as to what kind of privacy rights minors have. But it also raises a fundamental question as to how laws should be enforced to effectuate their purposes. If anti-child pornography statutes are intended to protect minors from exploitation, doesn’t it seem at least a bit anomalous to prosecute the very persons who are being exploited?

A.H. v. State, (Slip Op.) — So.2d —-, 2007 WL 120008 (Fla.App. 1 Dist. Jan. 19, 2007)

Seventh Circuit: explicit video game law unconstitutional

Ban of sale to minors and labeling requirements not narrowly tailored to meet compelling state interest.

In August 2005, the Illinois State Legislature enacted the Sexually Explicit Video Game Law (“SEVGL”), which criminalized the sale of “sexually explicit” video games to minors, and required purveyors of such games to conspicuously label any sexually explicit game with a four square inch label reading “18”, and provide relevant signage within the stores where games are sold.

The Entertainment Software Association, among others, filed suit against the State of Illinois the day after the SEVGL was enacted, claiming that the law violated the First Amendment. The district court permanently enjoined enforcement of the law, and the State of Illinois sought review. On appeal, the Seventh Circuit affirmed the lower court’s holding that the statue was not narrowly tailored.

An integral part of the court’s analysis was its concern that the statute would criminalize the sale of material “without concern for the game considered in its entirety or for the game’s social value for minors.” As a case in point, the court looked to the game God of War, which tracks the Homeric epic Odyssey in content and theme. Although that game shows exposed breasts, the court held that “there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey.”

As for the unconsitutionality of the labeling and signage requirement, the court similarly held that such a requirement was not narrowly tailored. The government had not shown that an educational campaign about the video game rating system would not have been just as effective as labeling. The requirement of a sticker that covers a substantial portion of the box was also unjustified.

Entertainment Software Association v. Blagojevich, No. 06-1012, — F.3d —-, (7th Cir., November 27, 2006).

Suit over drop in search engine placement dismissed

(This case came out a couple of weeks ago and has been written about quite a bit, but here’s my take on it anyway.)

Plaintiff LLC, the operator of an online directory and search engine for information about the care of young children, filed suit against Google after a “cataclysmic fall” in the number of visitors that the Kinderstart site received. It claimed that Google wrongfully blocked search results for Kinderstart, and intentionally lowered the site’s number in Google’s PageRank system. In an unpublished and noncitable opinion, the United States District Court for the Northern District of California dismissed Kinderstart’s complaint, and granted leave to amend.

Kinderstart alleged a number of causes of action, including violation of the First Amendment right to free speech and unlawful monopolistic behavior in violation of the Sherman Act. The court held that Kinderstart failed to allege facts sufficient to entitle it to relief.

In dismissing the First Amendment claim, the court held that Google is not a state actor. Although the Ninth Circuit employs a number of tests to determine whether state action exists, Google did not meet any of those tests. Kinderstart did not show that Google performed a public function, nor did it show that Google was involved in any joint action with the government. The complaint did not sufficiently allege that Google was in any way compelled or coerced by the government, or that there was any nexus or entwinement between Google’s actions and the government’s actions. No facts in the complaint pointed to any “symbiotic relationship” – a necessary element in a special Ninth Circuit test for state action – between Google’s conduct and the financial success of any governmental entity.

The court also rejected Kinderstart’s First Amendment argument that by making the search engine “freely available to anyone with an Internet connection,” Google had created a private space dedicated to public use in which the alleged restrictions violated free speech. On this point, Kinderstart’s own allegations of Google’s vast monetization – to the tune of $3.1 billion in 2005 – contradicted assertions that the sole function of Google is to promote open and free communication.

Another of Kinderstart’s claims was that by blocking links to the Kinderstart site in its search results, Google had engaged in anticompetitive behavior that is prohibited under Section 2 of the Sherman Act (15 U.S.C. §2). To succeed on this claim, Kinderstart would have had to allege a specific intent on Google’s part to destroy competition, conduct directed toward accomplishing that purpose, a dangerous possibility of succeeding at destroying competition, and resulting antitrust injury.

The court held that Kinderstart failed to allege enough facts to support this claim. There was no sufficient allegation that Google had denied access to an essential facility or refused to deal. Kinderstart did not explain how Google’s alleged conduct demonstrated the required intent for a Sherman Act violation. Moreover, noting that there generally is “no duty to aid competitors,” the court concluded that Google’s alleged removal of a competing search engine from its results was merely legitimate competitive action., LLC v. Google, Inc., No. 06-2057, (N.D. Cal., July 17, 2006) (Not selected for official publication).

Can Congress restrict minors’ access to social networking websites?

The Childrens Internet Protection Act (“CIPA”) curbs federal funding for any public library or school that will not employ software filters to prohibit minors from accessing pornographic materials. There is a bill [H.R. 5319] before Congress called the Deleting Online Predators Act (DOPA for short) that seeks to expand the scope of CIPA. The Bill calls for restricting federal funding for public libraries and schools that do not block minors’ access to chat rooms and social networking sites (such as

CIPA withstood a constitutional challenge before the United States Supreme Court in 2003. [U.S. v. American Library Assn., 539 U.S. 194 (2003)] If DOPA is enacted, it will likely face First Amendment scrutiny as well. Might the analysis be different this time around?

In the American Library Association case, the Supreme Court observed that “most libraries already exclude pornography from their print collections because they deem it inappropriate for inclusion. We do not subject these decisions to heightened scrutiny; it would make little sense to treat libraries’ judgments to block online pornography any differently, when these judgments are made for just the same reason.” Accordingly, it does not violate library partrons’ First Amendment rights for there to be filters on the computers at the library.

In blocking access to chat rooms and social networking sites, aren’t libraries going a step futher, inasmuch as they are literally obstructing the “speech” of library patrons? Perhaps. But a court hearing such a challenge would once again have a ready analogy from real-world library experience: when was the last time you saw a successful constitutional challenge to a librarian enforcing the library’s quiet rule?

[’s coverage]

Company had no standing to challenge discovery on behalf of anonymous defamers

After seeing what it believed to be defamatory statements about it on Yahoo! Finance and Silicon Investor message boards, plaintiff Matrixx Initiatives, Inc. (“Matrixx”) filed a lawsuit against several “John Doe” defendants. Through information obtained from Yahoo!, Matrixx determined that certain of the alleged defamatory statements were posted with computers owned by Barbary Coast Capital Management. Matrixx took the deposition of one Mr. Worthington, the manager of Barbary Coast, asking him to identify the anonymous Internet users who posted the alleged defamatory statements. Worthington refused.

Matrixx filed a motion to compel Worthington to answer the questions, and the trial court granted the motion. Worthington and Barbary Coast sought review, arguing that the posters’ First Amendment right to speak anonymously should prohibit the disclosure of their identities. On appeal, the court affirmed the decision of the lower court, holding that Worthington and Barbary Coast did not have standing to invoke the anonymous posters’ First Amendment rights.

In reaching its decision, the court distinguished two other cases in which the recipient of a subpoena did have standing to challenge the unmasking of another person. In the cases of In re Subpoena Duces Tecum to America Online, Inc., 2000 WL 1210372 (Va. App. 2000), and In re Verizon Internet Services, 257 F.Supp.2d 244 (D.D.C. 2003)(both cases reversed on other grounds), Internet service providers did not have to identify anonymous customers pursuant to subpoenas served on the ISPs. In each of these cases, the courts held that the ISPs had standing to assert the customers’ rights to remain anonymous, because the customer relationships were sufficiently close. In this case, however, the court held that “by contrast, we are presented with no ‘close relationship’ — or, indeed, any relationship — between appellants and the individuals for whom they are seeking First Amendment protection.”

Matrixx Initiatives, Inc. v. Doe, — Cal.Rptr.3d —, 2006 WL 999933 (Cal.App. 6 Dist, April 18, 2006).

Florida court issues pro-anonymity decision

Website operators do not have to disclose names of financial contributors.

In 1959 the U.S. Supreme Court held that the NAACP did not have to disclose the names of its members because to do so would violate the members’ right to freedom of assembly. NAACP v. Alabama, 357 U.S. 449 (1959).

On March 24, 2006, the Florida Court of Appeal held, on similar grounds, that financial supporters of a website that is used to fund litigation against the city of Maitland, Florida could remain anonymous.

Michael and Joan Matthews believed that the city of Maitland did not follow proper procedures when it approved the development of a seven-story, multi-use structure. They filed a lawsuit challenging the development, and started a website through which supporters could donate funds.

When the city took Joan Matthews’s deposition, she would not disclose the names of the contributors to the website. Similarly, Michael Matthews would not answer written interrogatories on the subject. The city filed a motion to compel the plaintiffs to turn over the names of their contributors, and the trial court granted the motion. The plaintiffs sought review of the trial court’s order, and the Court of Appeal reversed.

The appellate court noted the chilling effect that could occur if supporters of political causes who wished to remain anonymous ran the risk of being revealed in litigation of this sort. Because the names of the supporters was not relevant to the underlying dispute over the real estate development, disclosure would be improper. The court further observed that:

[T]he freedom to associate for the advancement of beliefs, whether pertaining to political, economic, religious or cultural matters, is an inseparable aspect of the liberty assured by the due process clause and . . . the compelled disclosure of membership in an organization engaged in advocacy constitutes an interference with the right to freedom of assembly.

Matthews v. City of Maitland, — So.2d —, 2006 WL 733966 (Fla. App. 5 Dist. March 24, 2006).

Does a government-funded website promoting evolution violate the Constitution?

We will have to wait and see – court tosses claim because plaintiff lacked standing.

Plaintiff Caldwell was “offended” and felt like an “outsider” when she viewed a website called “Understanding Evolution” which was published by the University of California. She filed a federal lawsuit, alleging that the site, funded in part by a grant from the National Science Foundation, violated the First Amendment Establishment Clause by endorsing certain views on religion. For example, Caldwell claimed the site put forth the notion that “the theory of evolution is not in conflict with properly understood Christian or Jewish religious beliefs.”

The defendants, which included the director of the University of California Museum of Paleontology and a UC Berkeley biology professor, moved to dismiss Caldwell’s suit. The U.S. District Court for the Northern District of California granted the motion to dismiss.

The court held that plaintiff Caldwell lacked standing to pursue the Establishment Clause action. Among other things, she had failed to allege that she suffered an “injury in fact,” which is required for a plaintiff to sustain a lawsuit.

In reaching the conclusion that the evolution website did not cause Caldwell to suffer an injury in fact, the court first looked to the holding of the U.S. Supreme Court’s decision in Valley Forge Christian College v. Am. United for Separation of Church & State, 454 U.S. 464 (1982). Being “offended” and feeling like an “outsider” were simply “psychological consequence[s]” produced “by observation of conduct with which [Caldwell] disagrees,” and were merely generalized grievances against the defendants, insufficient to confer injury in fact.

The court went on to reject Caldwell’s comparison of the evolution website to a public park containing religious symbols, finding the analogy “untenable”:

[A] citizen voluntarily choosing to access the internet who comes across an unwelcome message on a website page is not necessarily prevented from accessing the whole of the internet; the citizen may choose, with a simple click of the mouse, to access a different and unoffensive webpage or website.

Further, the court noted that allowing a plaintiff to claim injury from being “offended” by merely looking at a website would be the start down a slippery slope:

Given this massive appeal and impossibly broad spectrum [of the internet], it is simply inconceivable that the mere viewing of certain webpages . . . is sufficient to give rise to injury in fact standing. If this were so, then every webpage on the internet could give rise to a claim, simply based on an individual’s negative emotional response to that webpage.

Caldwell v. Caldwell, (Slip Op.) 2005 WL 618511 (N.D. Cal. March 13, 2006).