Month: February 2011

Government Speech and Online Forums: First Amendment Limitations on Moderating Public Discourse on Government Websites

David S. Ardia, Berkman Center for Internet & Society

Brigham Young University Law Review, Forthcoming

Over the past decade, governments at all levels have moved with alacrity to engage with their citizens online, launching thousands of government websites, including blogs, discussion boards, and other online platforms that solicit public participation. When government engages with the public online, however, it raises difficult questions about the limits of the government’s ability to control its own message, to subsidize the speech of others, and to restrict private parties from speaking.

Courts typically apply the First Amendment’s public forum doctrine to answer these questions, but that doctrine is ill-suited to deal with online forums because it has not kept pace with the changes in public discourse in our increasingly networked world. To overcome the public forum doctrine’s shortcomings, courts are looking to the recently minted government speech doctrine to deal with conflicts over speech on government websites. Unlike the public forum doctrine, which is premised on the idea that all citizens have an equal right to speak in the public forum and a right to equal treatment from the government, the government speech doctrine is based on the assumption that government not only can, but must, privilege some viewpoints over others.

The government speech doctrine, however, suffers from a disturbing circularity. The Supreme Court’s current test, which turns on whether the government “effectively controlled” the message being conveyed, simply requires that the government be effective in doing the very things that are the subject of a plaintiff’s First Amendment challenge. Indeed, the more aggressive the government is in controlling speech, the greater will be its entitlement to claim special treatment under the government speech doctrine.

Echoing Justice Souter’s concurrence in Pleasant Grove City v. Summum, I argue that the government speech doctrine should be grounded in meaningful governmental accountability. That is to say, the doctrine should ensure that recipients of government speech have enough information about the government’s expressive activities that they will be capable of holding the government accountable when it overreaches. Fortunately, the government already has access to the tools it needs to be transparent about its expressive activities online. The real question is whether the government has the will to do so and whether the law provides sufficient incentives when that will is lacking.

… “Academic freedom now confronts challenges powerful enough to ask not what its future will be,” writes Cary Nelson, president of the American Association of University Professors, in No University Is an Island: Saving Academic Freedom (2010), “but whether it will have a future at all.

Nelson’s warning is timely. But his analysis is incomplete. Focusing on how political, corporate, and administrative intrusions threaten academic freedom, Nelson casts professors as victims of powerful anti-intellectual forces. But that’s not the whole story. And if academic freedom is to be saved, the whole story must be told.

… Academic freedom belongs to the public — it is not the property of academics. Professors must explain why academic freedom is vital to our democracy — and prove that they deserve it.

Beset by budget shortfalls, rising tuition, poor learning outcomes, and scandal, our colleges and universities are under more scrutiny than ever. Demands for accountability have never been louder. Failure to meet those demands has never had a higher price tag.

Professors must decide how much academic freedom is worth to them. Is it worth policing themselves — consistently, consequentially, and transparently? If so, academic freedom might just have a future after all.

Erin O’Connor and Maurice Black are research fellows at the American Council of Trustees and Alumni.

TV Programme on the European Court

Following the controversy in the United Kingdom on the Court’s judgments on voting rights for prisoners, the BBC programme ‘The Record Europe’ has dedicated an episode to the European Court of Human Rights. It explains the controversy and the role and functioning of the Court. You can watch it on youtube (in two parts) here and here. This is the programme’s own announcement

Solicitors await a “deluge of legislation” from the next Minister for Justice

Published 28 February 2011

Legal profession

Leave a Comment

Tags: irish law, law society, oireachtas, professional indemnity insurance, solicitors

“He needs your No 1 vote or he may resort to his phaser weapons.”

Fine Gael will probably have the choice of Minister for Justice & Equality and the position is expected by many to go to Alan Shatter, veteran solicitor, politician and publisher of colourful pamphlets.

Shatter was recently interviewed by Stuart Gilhooly for The Parchment and made the following comment, which is either exciting or terrifying depending on your outlook:

He wants a legacy. He wants to change the way the country works. He wants to make a difference. And you get the feeling that if he gets his chance, three decades of frustration will be released by a deluge of legislation.

Fewer universities with one big brand leader known as the University of Ireland is in the wider national interest

The Irish Times – Fri, Feb 25, 2011

SEÁN FLYNN

EDUCATION: IN THE COURSE of discussions on the University College Dublin-Trinity research alliance two years ago, the Taoiseach Brian Cowen and his advisers had a Very Big Idea. The secret discussions with the two universities had focused on how to build a world-class research capacity in our leading higher education colleges. But some of the Cowen team wanted to go further.

The logical step, they argued, was for a full merger of UCD and Trinity, pooling the best of both in a reshaped institution that would glide onto any list of the best universities in the world.

In its final days, the Government is believed to be rushing through a statutory instrument that will amend the existing Copyright Act and which will give judges the power to grant injunctions against ISPs in relation to copyright infringement cases.

The move is believed to stem from October’s court case between the music industry (Warner, Sony, Universal and EMI) and UPC in which the judge pointed to a key gap in Irish copyright laws.

Siliconrepublic.com has learned that the Department of Enterprise Trade and Innovation and the Department of Communications have tabled the legislation which is currently in the hands of the parliamentary draftsman with a view to passing it by Friday.

Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9 (CanLII) (17 March 2011)

Deschamps J. —

[1]                              The law of defamation is a tool for protecting personal reputations.  This right keeps pace with changes in society and in the importance attached by society to freedom of expression.  In Quebec, actions in defamation are governed by the general principles of civil liability.  The flexibility of those principles makes it possible to address society’s growing concerns about freedom of expression.  … The Court must examine the factors to consider when determining whether racist comments made about a group can cause a compensable injury. …

[16]                          The concept of defamation [in Quebec civil law] requires that the right to the protection of reputation be reconciled with the right to freedom of expression, since that which belongs to the former is generally taken away from the latter.  Several international agreements reflect this need to strike a balance between the two rights. …

[17]                          Freedom of expression is protected by the Canadian Charter of Rights and Freedoms, s. 2(b), and the Charter of human rights and freedoms, R.S.Q., c. C?12, s. 3 (“Quebec Charter”).  It is one of the pillars of modern democracy.  It allows individuals to become emancipated, creative and informed, it encourages the circulation of new ideas, it allows for criticism of government action and it favours the emergence of truth (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 (CanLII), 2011 SCC 2). Freedom of expression is essential in ensuring that social, economic and political decisions reflect the aspirations of the members of society.  It is broad in scope and protects well?prepared speech and wrath?provoking comments alike (R. v. Keegstra, 1990 CanLII 24 (S.C.C.), [1990] 3 S.C.R. 697; R. v. Butler, 1992 CanLII 124 (S.C.C.), [1992] 1 S.C.R. 452).  However, it is not absolute and can be limited by other rights in a democratic society, including the right to protection of reputation (Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (S.C.C.), [1995] 2 S.C.R. 1130, at paras. 102?106; Prud’homme, at para. 43; Néron, at para. 52).

[18]                          The right to the safeguard of reputation is guaranteed by the Quebec Charter (s. 4) and the Civil Code of Québec, R.S.Q., c. C?1991, arts. 3 and 35).  Since good reputation is related to dignity (Hill, at paras. 120?21), it is also tied to the rights protected by the Canadian Charter.  Reputation is a fundamental feature of personality that makes it possible for an individual to develop in society.  It is therefore essential to do everything possible to safeguard a person’s reputation, since a tarnished reputation can seldom regain its former lustre (Hill, at para. 108).

[19]                          Of course, there is no precise measuring instrument that can determine the point at which a balance is struck between the protection of reputation and freedom of expression.  In reconciling these two rights, the principles on which a free and democratic society is based must be respected.  The intersection point will change as society changes.  What was an acceptable limit on freedom of expression in the 19th century may no longer be acceptable today.  Indeed, particularly in recent decades, the law of defamation has evolved to provide more adequate protection for freedom of expression on matters of public interest.  In the common law, for example, this Court has reassessed the defence of fair comment (WIC Radio Ltd. v. Simpson, 2008 SCC 40 (CanLII), 2008 SCC 40, [2008] 2 S.C.R. 420, at paras. 49 et seq.) and recognized the existence of a defence of responsible communication on matters of public interest (Grant v. Torstar Corp., 2009 SCC 61 (CanLII), 2009 SCC 61, [2009] 3 S.C.R. 640).

[20]                          The Canadian approach is part of a trend that can be observed in many democracies, …

[21]                          What is of interest for my purposes is not so much the specific solutions proposed by these courts, which vary depending on the legal traditions, constitutional guarantees and social norms that exist in each country, as the general trend that emerges from the cases.  Just like Canadian courts, including those in Quebec, all of these courts are increasingly concerned about protecting freedom of expression.  The law of defamation is changing accordingly.  This is the general context in which this case must be considered.  I will now look at the legal rules applicable to defamation in Quebec civil law. …

[26]                          The type of injury that defines defamation is damage to reputation.  In our law, damage to reputation is assessed objectively, from the perspective of an ordinary person (Néron, at para. 57; Prud’homme, at para. 34; Métromédia C.M.R. Montréal inc. v. Johnson, 2006 QCCA 132 (CanLII), 2006 QCCA 132, [2006] R.J.Q. 395, at para. 49).

[27]                          This level of analysis is justified by the fact that damage to reputation results in a decrease in the esteem and respect that other people have for the person about whom the comments are made. … 

[28]                          It is the importance of “others” in the concept of reputation that justifies relying on the objective standard of the ordinary person who symbolizes them.  Therefore, the fact that a person alleging defamation feels humiliated, sad or frustrated is not a sufficient basis for an action in defamation.  In such an action, injury is examined at a second level focussed not on the actual victim but on the perceptions of other people.  Injury exists where “an ordinary person . . . believe[s] that the remarks made, when viewed as a whole, brought discredit on the reputation” of the victim (Prud’homme, at para. 34).  However, care must be taken to avoid shifting the analysis of injury to a third level by asking, as the majority of the Court of Appeal seems to have done (at para. 73), whether an ordinary person, acting as a trier of fact, would have found that the victim’s reputation was discredited in the eyes of a public that was likely to believe Mr. Arthur’s comments.  The judge must instead focus on the ordinary person, who is the embodiment of “others”.

[35]                          The common law also uses an objective standard, that of the right?thinking person, to ascertain the meaning of impugned comments and assess whether they are defamatory.  This standard is taken from English common law and is based on the famous case of Sim v. Stretch, [1936] 2 All E.R. 1237 (H.L.), in which Lord Atkin stated the following, with which his colleagues concurred:

The conventional phrase exposing the plaintiff to hatred, ridicule or contempt is probably too narrow [. . .].  I do not intend to ask your Lordships to lay down a formal definition, but [. . .] after collating the opinions of many authorities I propose in the present case the test:  would the words tend to lower the plaintiff in estimation of right?thinking members of society generally?  [p. 1240] …

[38]                          While these common law principles cannot be directly transposed into Quebec civil law because of the major differences between the two systems (Prud’homme, at paras. 54?59), they often serve as a source of inspiration.  The two legal communities have the same broad social values.  Indeed, there is a striking similarity between the civil law and the common law approaches. …

[48]                          It must be inferred from this that an individual will not be entitled to compensation solely because he or she is a member of a group about which offensive comments have been made.  The member or members of the group who bring an action must have sustained personal injury.  In other words, defamation must go behind the screen of generality of the group and affect its members personally.

[49]                          That being said, the victim does not have to be expressly named or designated to be able to bring an action in defamation.  The attack does not have to be specific or particularized.  The person who made the impugned comments cannot avoid liability by hiding behind the fact that he or she used general terms applying to a group.  Attacks on a group may in fact personally affect some or all of the group’s members.  While the injury must be personal, it does not have to be unique, that is, different from the injury sustained by the other members of the group.  The reputation of more than one person may be tarnished by the same wrongful comments.  While the law does not punish the defamation of groups having no juridical personality, it does punish multiple individual defamation (D. Buron, “Liberté d’expression et diffamation de collectivités:  quand le droit à l’égalité s’exprime” (1988), 29 C. de D. 491, at pp. 497?98).  Even if the members of a group are covered by comments that mention the group, it will be necessary, in order to establish their right to compensation, that the members prove that they personally suffered damage to their reputations. …

[57]                          In any action in defamation, injury is proved if the plaintiff satisfies the judge that the impugned comments are defamatory, that is, that an ordinary person would believe that they tarnished the plaintiff’s reputation.  The same test is used where the comments apply a priori to a group of individuals, but special attention will then have to be paid to the personal nature of the injury.  The plaintiff or plaintiffs must prove that an ordinary person would have believed that each of them personally sustained damage to his or her reputation. [He idenfied the following factors:]

1. Size of the Group
2. Nature of the Group
3. Plaintiff’s Relationship with the Group
4. Real Target of the Defamation
5. Seriousness or Extravagance of the Allegations
6. Plausibility of the Comments and Tendency to be Accepted
7. Extrinsic Factors

[79]                         Ultimately, the court must not conduct a compartmentalized analysis or seek to find all the relevant criteria.  What must be determined is whether an ordinary person would believe that the remarks, when viewed as a whole, brought discredit on the reputation of the victim.  The general context remains the best approach for identifying personal attacks camouflaged behind the generality of an attack on a group. …

[92]                          In short, having regard to all of the circumstances, I find that the group is of considerable size and is heterogeneous, that the characteristics attributed to the members of the group are individual and do not lend themselves well to extrapolation, and that the remarks are an extreme, irrational and sensationalist generalization.  Accordingly, an ordinary person, while sensitive to such excessive remarks, would not in my view have formed a less favourable opinion of each Arab or Haitian taxi driver, considered individually.  I therefore conclude that Mr. Arthur’s comments, while wrongful, did not damage the reputation of each Montréal taxi driver whose mother tongue is Arabic or Creole.  The plaintiff did not prove that a personal injury was sustained by the members of the group. …

[94]                          I have no doubt that racist speech can have a pernicious effect on the opinions of members of its audience.  However, it should be noted that an action in defamation will not always be the appropriate recourse in cases concerning racism or discrimination.  In the instant case, I am of the opinion that it is not the appropriate recourse.  I would therefore dismiss the appeal. ,,,