On Independence Day, Professor Sees Hope in Constitution

By Professor Gary C. Williams
Johnnie L. Cochran, Jr. Chair in Civil Rights

As Independence Day approaches I am apprehensive. Terms such as “Muslim ban” and “fake news” are bandied about with impunity. The concepts of “extreme vetting” and building a wall alarm me. At the same time I am grateful. Three essential building blocks in the foundation of this nation - freedom of the press, the right to petition the government for redress of grievances, and the right of free speech - are at the forefront as we confront today’s challenges.

The press has been courageous in fulfilling its role under the first block. It has reported truthfully the actions of politicians of all stripes. It is reporting on, and investigating, Russian interference with our elections. And despite presidential claims that the press is “the enemy of the people,”[1] it has persisted in reporting on the actions and misrepresentations of our government and its leaders.

Our profession has seen some of its finest moments helping the defenseless utilize the second building block – the right to petition the courts for redress of grievances. Lawyers volunteered to represent people caught in the dragnet cast by the “Muslim ban.” Lawyers toiled from dawn to midnight crafting briefs challenging the worst aspects of that ban. And our courts have, thus far, remained steadfast in enforcing the principles of equal protection and freedom of religion - holding that a ban based upon religious affiliation violates the basic tenets of the Bill of Rights.

Dr. Martin Luther King once declared: “Every person of humane convictions must decide on the protest that best suits his [and her] convictions, but we must all protest.”[2] The ability to protest is protected by the third building block, the right of free speech. Americans have exercised that right by showing up at airports to protest the “Muslim ban.” And Americans poured out in unprecedented numbers to protest the political acceptance of sexist language and behavior.[3]

Our nation is not perfect. The Constitution that contains those building blocks at one time condoned slavery and denied women the right to vote. During World War II it allowed American citizens of Japanese descent to be imprisoned solely because of their race. But those building blocks made it possible to correct those errors. Today I see hope for our future.

[1] Trump Embraces ‘Enemy of the People,’ a Phrase With a Fraught History, New York Times, ANDREW HIGGINS, February 26, 2017
[2] Dr. Martin Luther King, 1967
[3] More than 500,000 in Washington D.C., and 400,00 in New York city alone. Women’s March Highlights as Huge Crowds Protest Trump: ‘We’re Not Going Away,’ ANEMONA HARTOCOLLIS and YAMICHE ALCINDOR, New York Times, January 21, 2017

Professor Caplan Pens ACLU Amicus Brief

Professor Aaron Caplan was the primary author of an amicus brief submitted to the California Court of Appeal in Geoffrey C. Keyes v. Jan Brio. The case interprets the California civil harassment statute, a topic on which Caplan has a leading law review article. In the brief, Caplan focuses on whether the speech in question is “directed at a specific person” or is merely about that person.

[Excerpt]

The First Amendment broadly protects a speaker’s right to communicate with listeners about topics of the speaker’s choice—even when the topic is another person. Restricting such communication just because its content distresses the person spoken about constitutes a forbidden prior restraint on constitutionally protected speech.

Read the full brief below:

The Supremes Say It's Okay to Steal Your Valor

By Associate Clinical Professor Jessica Levinson

[This op-ed originally appeared on The Huffington Post.]

Hello, my name is Jessica. I will be stealing your valor. Well, I may not actually pilfer your valor, but thanks to the Supreme Court, I can if I so chose.

Much, if not all of the recent news coverage of the Supreme Court has understandably focused on the court's decision to uphold President Obama's landmark healthcare law. Reporters and commentators have largely failed to cover another decision that came out on the last day of the 2011-12 term.

In a 6-3 decision, the court told us to say goodbye to the 2005 Stolen Valor Act. That Act made it a crime to falsely claim military awards or decorations. The court ruled that the Act is unconstitutional because it contravenes the First Amendment. Thanks to the Supreme Court disreputable men everywhere will have to search for a new pickup line when barhopping by military bases.

This case began when a true lowlife, Xavier Alvarez, told people at a meeting of the Three Valleys Municipal Water District governing board in Los Angeles County that he was a Marine who received the Medal of Honor. Seemingly the only honor Alvarez received was being a member of the water district governing board.

Alvarez was prosecuted under the Stolen Valor Act and eventually pleaded guilty to violating it.

Supreme Court Hears Argument In 'Stolen Valor Act' Case

By Associate Professor Aaron Caplan

When can the government punish liars? The question is being debated today in the Supreme Court, as it hears oral arguments in United States v. Alvarez. In this case from Southern California, the defendant said during a public meeting that he had received the Congressional Medal of Honor. He hadn't. The government prosecuted under the Stolen Valor Act of 2005, which makes it a federal crime for any person to "falsely represent himself or herself, verbally or in writing, to have been awarded any [military] decoration or medal" -- even if no medals or related documents are counterfeited, and even if no one is financially harmed or suffers other personal injuries as a result of the false statement. It would be constitutionally acceptable for the government to prosecute someone who told this or any other lie as part of a scheme to defraud others. But in this case, the defendant's bogus boasts were not used to cheat anyone, but only to scratch some inner itch within his own personality. As it happens, his lies were quickly and publicly exposed, and he was ostracized by his community. Alvarez's behavior was certainly undesirable, but may he be sent to prison simply because society considers his lies morally objectionable?

I previously wrote about Alvarez for the American Constitution Society blog in 2010 when the Court of Appeals for the Ninth Circuit ruled 2-1 that the law was unconstitutional. Last fall, I asked nine students in my First Amendment class to sit as their own Supreme Court, applying existing free speech precedents to this novel situation. As a teacher, I was hoping that the class would be evenly divided to allow a lively classroom debate. There was plenty of debate, but in the end my justices reached a strong majority position -- by an 8 to 1 margin -- that the law was unconstitutional. They reasoned that the Stolen Valor Act punishes speech that does not fall into any of the narrowly defined categories of less-protected speech where the government is allowed to punish based on content. False statements that are part of a scheme to defraud are one proscribable category. False statements that damage another person's reputation (defamatory speech) are another. But my students overwhelmingly rejected the idea that these and similar categories were merely examples of a broader category of false statements in general. These students saw a great danger in allowing the government to decide what counts as the truth, unless such a judgment is required to redress an identifiable harm to others that the speech caused. Governmental action against speech is not justified merely because the speech is offensive to many (or most) people. They noted the historically-proven risk that such laws could be used against the government's political opponents, and argued that the truthfulness of Alvarez's speech should be judged in the marketplace of ideas -- which it was -- and not in a criminal courtroom.

A few months after our in-class exercise, the Court of Appeals for the Tenth Circuit issued a 3-0 decision in United States v. Strandlof that disagreed with the Ninth Circuit decision in Alvarez. My dissenting student was elated that his position was now supported by four out of the six federal appeals court judges who had considered the case. We will learn later this year whether the U.S. Supreme Court will dare to disagree with the collective judgment of a majority of my Loyola students.

Does WikiLeaks have anything to do with the Internet?

By Associate Professor Aaron Caplan

This is the second in a two-part series originally published in the April 21, 2011 edition of the Los Angeles Daily Journal.

Anonymous sources: One piece of information journalists often wish to keep secret is the identity of their anonymous sources. This is not a new phenomenon. In the early 1970s, Branzburg v. Hayes held that journalists have no constitutional privilege to keep sources confidential from a criminal investigation (although later cases have found a partial privilege in civil cases). Some states reacted to Branzburg with journalist shield statutes, and proposals for a federal counterpart arise in Congress with some regularity.

The current architecture of the Internet is not designed for anonymous communication. For every exchange of data over the Internet, be it via e-mail or by viewing a website, a trail of metadata is automatically logged that includes among other things the IP (Internet Protocol) addresses of the computers involved. In many ways, it is easier to be an anonymous tipster using older media, such as oral communication, an unmarked envelope, or a phone call on a landline. The Internet makes it far easier than before for law enforcement to attribute communications to particular speakers and listeners - including communications between sources and journalists.

WikiLeaks claims to have developed methods for truly anonymous uploading of source documents by leakers. If this is true, it creates a practical means of evading the Branzburg rule - journalists cannot be compelled to reveal identities of sources they don't know. It is open to question how effective this anonymous sourcing is, given the widely reported allegations of prosecutors that Pfc. Bradley Manning was the source of the leaked State Department cables. It appears he was identified in part by the paper trail he left on his work computer, and in part by oral testimony of an acquaintance, and not from evidence from the WikiLeaks dropbox itself. Regardless, the story shows the continuing difficulty of accomplishing truly anonymous speech.

Loyola to host paparazzi law forum

By Jacqueline Lechtholz-Zey, JD '11 and Gregory Strausberg, JD '09, LLM '11

On Feb. 25, the Loyola of Los Angeles Entertainment Law Review will present a day-long, three panel event entitled "Paparazzi Law in a Flash: Examining California's Past, Present and Future." This symposium aims to educate its law student, media professional, and attorney audiences on the legal discourse surrounding the modern day paparazzi in the context of the recent enactment of AB 2479 ("the anti-stalking law"). This newly enacted law makes it a misdemeanor to tailgate or drive recklessly to capture a photo or tape recording of an individual for commercial purposes. It represents California's most recent attempt at addressing the storied problem of striking the proper Constitutional balance between the First Amendment's protections for newsgatherers and an individual's right to privacy. With the passage of AB 2479, it is clear that states are again starting (as they did with the rise of "yellow journalism" over a hundred years ago) to recognize a growing problem in the way this segment of the media interacts with its subjects. However, the lack of enforcement of past laws aimed at curbing abusive practices--as indicated by the relative absence of lawsuits under California Civil Code § 1708.8--demonstrates the immense power of the First Amendment and the difficulty in crafting laws that do strike this proper balance. More information about the event is available on its website.

The legal dialogue regarding the paparazzi--including its dynamic interplay of state and federal law--is a field that has intrigued scholars (legal and non-legal alike) since the beginnings of America's media and entertainment industry, as exemplified by the axiomatic writings of Louis Brandeis and Samuel Warren in The Right To Privacy at 4 Harvard Law Review 193 (1890). While no point in American history clearly establishes the origin of an aggressive media force in need of legal regulation, many attribute the identification of this problem as coinciding with the rise of "yellow journalism" in the late nineteenth century. Such "journalism" is no better typified than by the infamous publication of an article in the New York Journal in 1898 that exclaimed, "DESTRUCTION OF THE WAR SHIP MAINE WAS THE WORK OF AN ENEMY"--a title that does not seem to sound so far flung from the typical grocery store tabloid reads of 2011. Such dramatic, seemingly simple proclamations had the power of catching the attention of the average nineteenth century reader and were therefore crucial to the fortunes of the rapidly expanding media companies of the time. However, behind such "simple" statements and their accompanying images (which often depicted famous individuals or sensationalized events) laid an extremely complex legal dilemma, which forced legal scholars such as Louis Brandeis and Samuel Warren, along with the American courts, to properly consider the point at which the First Amendment shield ended and where the right to privacy sword began.

Paparazzi Law in a Flash: Examining California's Past, Present and Future will include discussions of the past, present and future legal developments on this topic in a way that is understandable to legal and non-legal professionals. Loyola Law School has assembled leading practitioners, scholars, as well as recently admitted entertainment lawyers who have all played a central role in the on-going debate of what is permissible, constitutionally protected activity versus activity giving rise to criminal and civil liability. Loyola Professor Karl Manheim will speak about parallel efforts and international privacy law. And Professor Jay Dougherty will serve as a moderator. Loyola of Los Angeles Entertainment Law Review is also proud to include the discussions and articles of its own students Patrick Alach JD '09 and Gary Wax JD '09, which should be of use to those who seek to enforce or defend against the instantiation of this new statutory scheme.

This event is open to all who wish to attend. For media relations, please contact Brian Costello, deputy director of commujnications. We thank you for your support of this event and other future Loyola Law School entertainment and media law productions.

Informational privacy in 2011

By Associate Professor Aaron Caplan

Two cases on this year's U.S. Supreme Court docket examine informational privacy under the Constitution. Although definitions vary, informational privacy is ordinarily used to mean the ability of individuals to control the gathering, use, and distribution of information about them by others. The first case, NASA v. Nelson, has already been decided. It extends a long-standing stalemate on whether a person has a due process right to keep certain information private from the government. The second case, Sorrell v. IMS Health Inc., will be argued later this year. It asks whether data brokers and drug companies have a constitutional right to buy and sell information about doctors' drug prescription records for commercial purposes.

The prevailing wisdom has been that the Constitution provides little, if any, direct protection for informational privacy. As a result, privacy gets legal protection in the United States primarily through statutes. Among the most common statutes are those protecting information about medical care and prescription drug use. NASA leaves this general system basically intact, not expanding any direct constitutional source for privacy but not restricting the government's ability to enact privacy laws. Sorrell, however, has the potential to call many of our privacy-protecting statutes into question. [DISCLOSURE: I have provided some advice to the Vermont attorney general's office in Sorrell.]

BACKGROUND

Both of the 2011 cases can trace their roots to Whalen v. Roe, 429 U. S. 589 (1977), which marks the last time the Supreme Court gave extended consideration to what it called the "interest in avoiding disclosure of personal matters." The plaintiffs in Whalen were patients challenging a New York statute that created a computerized database of all persons who had filled prescriptions for certain drugs. A difficulty for the patients was that the Constitution does not in so many words set forth an individual right to keep information away from other private parties or from the government. (It does, however, provide explicit protection against certain types of information-gathering by the government. Most important are the Fourth Amendment limits on government searches of people's "persons, houses, papers and effects," and the Fifth Amendment right against testifying as a witness against oneself in criminal cases.)

Ninth Circuit Oral Arguments Today in Keller v. Electronic Arts: A Challenge to EA's Popular College Football Video Game

By Professor Jennifer Rothman

Today the Ninth Circuit will consider a First Amendment defense to Electronic Arts' (EA) use of former and current college players' identities in a popular video game. The case once again raises the issue of a conflict between the First Amendment and the right of publicity - a state law that protects the name, likeness and other indicia of identity of a person from being used without consent. Because this right limits what others can say, or put in a comic book, or a commercial or even a news broadcast, it raises a host of First Amendment issues. In particular, the district court held that EA had no First Amendment defense because the use of the players' identities was not transformative. The district court adopted a very narrow reading of transformativeness - one that appears to limit a First Amendment defense to circumstances in which a player's appearance and information is significantly altered, such as turning a player into a "half-human, half-worm," as one comic book did with the identities of two well-known musicians.

It is no surprise that such a narrow reading of transformativeness in the right of publicity context has caused uproar among major newspapers, television networks and movie studios. If courts do not consider the broader context of the use in a transformativeness analysis, then realistic portrayals and references to athletes, celebrities and anyone else may not receive First Amendment protection.

As a First Amendment matter, the transformativeness test seems ill-equipped to handle disputes between free speech and the right of publicity; the narrow gloss that the district court put on transformativeness sets a dangerous precedent that the Ninth Circuit will hopefully strike down. But whatever test the circuit ultimately adopts, it's not clear that EA has a great First Amendment defense. In contrast to the fantasy sports leagues, which are tied to the performance of actual players during a particular season, the EA video games do not need to be linked to particular players' identities. They may be more successful commercially if they are, but the functionality of the games does not depend on their realism.

This case on remand, however, may not ultimately turn on First Amendment protections. Although many of the briefs in the case focus on alternative First Amendment tests that could be used - other than transformativeness - to evaluate free speech limits on publicity rights, there are other significant conflicts in the case that have not yet been litigated. Related cases reveal that the college athletes signed their publicity rights over to the NCAA. Moreover, the NCAA owns the copyrights in the televised games. The NCAA therefore arguably had permission to license the use of the images and names of the college athletes. The legitimacy of the implicit and explicit assignments of publicity rights to the NCAA by college athletes will likely be the next chapter in this on-going and hotly contested dispute.

Supreme Court takes on violence in videogames

By Professor F. Jay Dougherty

The Supreme Court heard oral argument today in the case of Schwarzenegger v. Entertainment Merchants Ass'n. This case is a facial challenge to California's recent attempt to regulate minors' access to certain "violent videogames". In U.S. law, certain sexual material--obscenity--is excluded from other "speech" protected from government regulation by the First Amendment. The Supreme Court has, however, permitted laws that limit a minor's access to certain sexual material that would not be "obscene" as to an adult, and that don't unduly restrict an adult's access to such material. But historically, violent material has been viewed as fully protected speech, and "obscenity" has been carefully limited to sexual material. The rare instances where violent speech can be unlawful involve speech that is intended to and likely to cause imminent unlawful behavior. That rationale is not the core justification for the California statute in this case. Rather, the argument is that violent material will cause psychological harm to minors. Hence, in this case, California asked the Court to treat violence for the first time much like obscenity--permit states to limit minors' access to material, even if that material would clearly be protected unregulable speech as to an adult.

The lower courts have refused to do that in this case (and in other cases challenging similar laws in other states). The Ninth Circuit refused to extend to violent videogames the rules applicable to obscenity regulation, and, applying the "strict scrutiny" required as to content-based regulations of speech (which the state law would be), found that scrutiny not satisfied. First, there was no credible evidence that violent media causes psychological harm to anyone, including children. Since protecting against such harm was the only "compelling government interest" the state could assert, the law failed strict scrutiny. Even if one assumed the state did prove such a compelling interest, the statute failed the second part of the strict scrutiny test; namely that the law be "narrowly tailored" to effectuate that interest and there are no less restrictive alternatives. The current industry rating system, the availability of parental controls on modern gaming systems, and enhancing education of parents and retailers about that system would achieve the goal in a less restrictive manner, according to the Ninth Circuit.