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Free Speech part 4 concluding materials Finishing up Defamation; Student and Employee rights to speech; Commercial Speech; Net Neutrality CS 340 Spring.

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Presentation on theme: "Free Speech part 4 concluding materials Finishing up Defamation; Student and Employee rights to speech; Commercial Speech; Net Neutrality CS 340 Spring."— Presentation transcript:

1 Free Speech part 4 concluding materials Finishing up Defamation; Student and Employee rights to speech; Commercial Speech; Net Neutrality CS 340 Spring 2015

2 Suppose that each of the following statements is untrue and was communicated to a third party. Is the statement defamation? Why? 1.“Bob smells bad.” 2.Nurse Ellen tells Nurse Sam “Dr. Steve had a 3 margarita lunch before performing that surgery.” 3.“George took the money.” 4.“Vivian has herpes.” 5.“Charlie Sheen, Lindsey Lohan called and she wants her smack back.” 7.“Dr. Phil is having an affair with Oprah.” 8.“Bridget slept with Frank.” 9.“I think Bridget smoked weed at the party this weekend because I saw her coming out of her room, and when I went in I could smell it, and I found a roach.” 10.“Amy Winehouse had AIDs.”

3 Can you sue Twitter & Facebook over a member’s defamatory comments? See § 230 of the Federal Communications Decency Act http://www.eff.org/issues/bloggers/legal/liability/230

4 Your former friend defames you on Instagram. Can you successfully sue Instagram as Instagram was the online publisher? A.Yes B.No

5 What Courtney Love can Teach Us about Defamation The first defamation lawsuit http://www.techdirt.com/articles/20090329/2229284297.shtml Resolution: settlement http://artsbeat.blogs.nytimes.com/2011/03/04/courtney-love-settles-twitter- defamation-case/?_php=true&_type=blogs&_php=true&_type=blogs&emc=eta1&_r=1http://artsbeat.blogs.nytimes.com/2011/03/04/courtney-love-settles-twitter- defamation-case/?_php=true&_type=blogs&_php=true&_type=blogs&emc=eta1&_r=1 The second lawsuit: http://www.hollywoodreporter.com/thr-esq/courtney-love- sued-again-defamation-192727http://www.hollywoodreporter.com/thr-esq/courtney-love- sued-again-defamation-192727 The case went to trial. January 2014 verdict for Love http://www.huffingtonpost.com/eugene-k-chow/why-courtney-love-twibel_b_4688426.html The third lawsuit: Pinterest comments include "you stole 36 bags of clothing on cctv" and "you stol;e 36 bags of my txtiles and designs and are still using my designs.“ http://www.hollywoodreporter.com/thr-esq/courtney-love-hit-defamation-lawsuit-630423 Feb 20, 2014, the judge ruled the case can continue http://www.spin.com/articles/courtney- love-dawn-simorangkir-libel-lawsuit-howard-stern/http://www.spin.com/articles/courtney- love-dawn-simorangkir-libel-lawsuit-howard-stern/

6 Business Interests & Online Defamation Unfavorable reviews of businesses: T & J Towing v. Kurtz, Facebook group: Kalamazoo Residents against T&J Towing http://www.citmedialaw.org/blog/2010/tj-towing-v-kurtz-weve-got-court-documents Update & what is S.L.A.P.P.? http://nyti.ms/d7C2sohttp://nyti.ms/d7C2so Trip advisor: Dirtiest hotels list http://www.mondaq.com/unitedstates/x/264642/Libel+Defamation/Sixth+Circuit+A ffirms+Dirtiest+Hotel+Defamation+Ruling http://www.mondaq.com/unitedstates/x/264642/Libel+Defamation/Sixth+Circuit+A ffirms+Dirtiest+Hotel+Defamation+Ruling Unfavorable tweets against businesses: “Worst car dealership in the world” http://www.citmedialaw.org/sites/citmedialaw.org/files/2009-12-19-Alascio%20Response.pdf Apartment Mold: http://consumerist.com/2010/01/twitter-defamation-lawsuit-dismissed.html

7 Misc. Free Speech Issue: Students’ right to free speech Application of Tinker v. Des Moines (1969 US S. Ct. case). Black armbands & school ban Students are persons under the Constitution Rights not left at the school house gate School must base decision on the likelihood of disruption of education environment and intrusion of others. Fraser standard (1986) student lewd speech distinguishing "vulgar" speech from the pure "political" speech in Tinker Hazelwood standard (1988) school paper case “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns."

8 Bell v. Itawamba Co. School Bd. (5 th Circuit, 2014) Student Bell posted rap video on his Facebook critical of two school coaches “P.S. Koaches the Truth Need to be Told” https://www.youtube.com/watch?v=v83dJsRQBAU&feature=player_embedded Classmates had told Bell about sexually inappropriate behavior directed at them from coaches. Bell created song to inform the world of what was happening. School says video was threatening, harassing and intimidating to employees. Bell said he was telling the truth. He only shared this video with his fb friends. Bell was suspended and transferred to an “alternative” school.

9 Opinion: After watching & listening to Bell’s video, is Bell within his 1 st Amendment rights to create and share the video? A.Yes, he is within the 1 st Amendment. B.No, the 1 st Amendment should not protect him. C.Unsure Wrap up notes, Bell case Mississippi Court held for: Appealed. Appellate Court held for:Appellate Court

10 Finkel v. Dauber (NY, 2010) Secret Facebook group Victim of the bullying sues for defamation http://blog.ericgoldman.org/archi ves/2010/07/private_faceboo.htm http://blog.ericgoldman.org/archi ves/2010/07/private_faceboo.htm Outcome?

11 Free speech challenges for student speech consider A.The kind of speech (political, vulgarity, truth) B.The likelihood of disruption to the academic environment C.The rights of those around the student D.All of the above E.Nothing. Students do not have free speech rights

12 Misc. Free Speech Issue: Employee’s right to free speech Basic Primer http://www.hrexaminer.com/is-there-free-speech-at-work/http://www.hrexaminer.com/is-there-free-speech-at-work/ Some right to discuss working conditions Distinguish conditions discussion from mere venting Examples of venting: NJ first grade teacher properly fired for saying she “felt like a warden overseeing future criminals” http://blog.ericgoldman.org/archives/2013/01/tenured_school_1.htm Bartender example Great explanation of the difference. http://www.nytimes.com/2013/01/22/technology/employers-social-media-policies-come- under-regulatory-scrutiny.html?pagewanted=all http://www.nytimes.com/2013/01/22/technology/employers-social-media-policies-come- under-regulatory-scrutiny.html?pagewanted=all

13 Online Example: Anonymous Speech Anonymous Speakers Online v. US D Ct for Nevada 9 th Federal Circuit, 2010 Heighten standard protecting anonymous speech is appropriate for protecting political speech. Lower standard is appropriate for plaintiffs needing to identify online commercial speakers. No right to defame anonymously. Cohen v. Google (NY, 2009)

14 It’s within someone’s First Amendment rights to offer illegal drugs for sale on his blog. A.Yes B.No

15 Commercial Speech Central Hudson v. Public Service Commission (1997) Government regulation of commercial speech does not violate 1 st Amendment if: the speech concerns an illegal activity The speech is misleading OR The government’s interest is substantial, the regulation advances the interest and is narrowly tailored (≈ would pass strict scrutiny)

16 http://gawker.com/5932924/booming-silk-road-drug-market-boasts- 22-million-per-year-in-sales-fancy-redesign

17 Online Example: Illegal Activity Online drug bazaar Silk Road https://www.youtube.com/watc h?v=aLa_HHa4d8U https://www.youtube.com/watc h?v=aLa_HHa4d8U Trial underway right now

18 Online Example: Misleading Speech Spam: unwanted/unsolicited email Why is it called spam? YouTube - Monty Python - Spam Why is there so much spam? Cheap People respond to it. How-to Geek explains why spam is STILL a problem. http://www.howtogeek.com/180604/htg-explains-why-is-spam-still-a- problem/ http://www.howtogeek.com/180604/htg-explains-why-is-spam-still-a- problem/

19 Have you ever purchased something from an email that you received from a business that you had never before used? A.Yes, lots of times B.Yes, a few times C.Once D.Never

20 CAN SPAM Act of 2003 Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 Went into effect in 2004 Impacts emails sent by businesses 3 categories: transactional & relationship, commercial with mailing list consent, unsolicited ↑ requirements for those not between people with a transactional relationship.

21 CAN SPAM: The Categories Transactional & relationship category messages: Must include correct header info & must not disguise the ID of the computer sending message Commercial All of the above + mechanism to unsubscribe + postal address contact Unsolicited All of the above + “clear & conspicuous” notice that it’s an advertisement

22 CAN SPAM cont’d Penalties: $250/mg up to $2m; criminal penalties for hackers & those who falsify headers Weakness: Makes sending spam legal if you meet the guidelines Enforcement: Unenforceable Largely unenforced Dan Balsam Hates Spam: http://www.youtube.com/watch?v=OfrBKNf_JPE http://www.youtube.com/watch?v=OfrBKNf_JPE

23 CAN SPAM Act: Which category of recipient has the most message requirements? A.Transactional B.Commercial C.Unsolicited D.None of these, the requirements are the same.

24 Canadian Anti-Spam LawCanadian Anti-Spam Law (2014) Went into effect July 1, 2014 Applies to commercial emails, texts and social media messages sent to Canadian residents Moves to an OPT IN model Requiring express consent on part of recipient. Conspicuous presentation Fines: $200/each; Cap; up to $1 mil for individual sender,$10 mil corporation

25 Central Hudson says regulations of commercial speech don’t violate 1 st Amendment if A.The commercial speech is misleading B.The regulation passes strict scrutiny C. The commercial speech concerns illegal activity. D.All of the above

26 Private Censorship and First Amendment (pp. 260-262) The First Amendment protects against government action. What if… “If a private corporation gains sufficient power to effectively act like a government in censoring our speech, should the government intervene to protect the free speech rights of the general public?” First Amendment interpretations: Negative interpretation (trending) Affirmative interpretation (was the mainstay)

27 The forum moderator edited/removed my comments. Have my First Amendment rights been violated? A.Probably (yes) B.Probably not

28 Laws impacting communication conduits 1.Public forum doctrine State must facilitate not discriminate 2.State Action Doctrine Marsh v. Alabama (1946) Chickasaw, Alabama Marsh v. Alabama 3.Fairness Doctrine Fiduciary (trust) for public interest 4.Must carry doctrine 5.Common Carriage Doctrine

29 Speech Issue: Net Neutrality Concerns: Paid prioritization Throttling How to deal with mobile data Tom Wheeler, Chairman of the F.C.C. Gathered four million public comments Now proposing new rules to classify ISP as common carriers http://www.theverge.com/2015/2/4/7977569/its-official-the-fcc-will-seek-to- reclassify-the-internet-as-a-utility http://www.theverge.com/2015/2/4/7977569/its-official-the-fcc-will-seek-to- reclassify-the-internet-as-a-utility

30 Opinion: The most interesting stuff we have discussed so far is A.Ethical theories B.Implications of tech day C.Free Speech


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