Tag: 1A

Fair Game (2010) – IMDb – A thriller based on a book the CIA litigated to redact

Fair Game Poster

More at IMDbPro

Fair Game (I) (2010)

… CIA operative Valerie Plame discovers her identity is allegedly leaked by the government as payback for an op-ed article her husband wrote criticizing the Bush administration. …

Stars: Naomi Watts, Sean Penn and Sonya Davison

… Plame’s status as a CIA agent was revealed by White House officials allegedly out to discredit her husband after he wrote a 2003 New York Times op-ed piece saying that the Bush administration had manipulated intelligence about weapons of mass destruction to justify the invasion of Iraq.

This movie is based on the experiences of Valerie Plame, about whom I have blogged here. The case about the redaction of the book which became the screenplay is here. Given that trailers and posters for the movie have been appearing over the last short while, I don’t expect it to suffer the same direct-to-dvd fate as befell Nothing But the Truth, more loosely based on the experiences of Judith Miller, about whom I have blogged here.

SSRN-Government Speech and Online Forums: First Amendment Limitations on Moderating Public Discourse on Government Websites by David Ardia

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.

Media Law Prof Blog: The Analogy Between Wikileaks and the New York Times of the Pentagon Papers Case

Derek E. Bambauer, Brooklyn Law School, is publishing  Consider the Censor in a forthcoming issue of the Wake Forest Journal of Law & Public Policy. Here is the abstract.

WikiLeaks is frequently celebrated as the whistleblowing heir of the Pentagon Papers case. This Essay argues that portrayal is false, for reasons that focus attention on two neglected aspects of the case. First, the New York Times relied on a well-defined set of ethical precepts shared by mainstream journalists to contextualize the Papers and to redact harmful information. Second, American courts acted as neutral arbiters of the paper’s judgment, and commanded power to enforce their decisions. WikiLeaks lacks both protective functions to regulate its disclosures. The Essay suggests that WikiLeaks is a bellwether: an exemplar of the shift in power over data generated by plummeting information costs. While that trend cannot realistically be reversed, the Essay offers two responses to the problems that WikiLeaks and its progeny create. First, established media outlets must continue to act as gatekeepers governed by strong journalistic ethics, even in an environment of ubiquitous access to raw data. Second, governments should consider, and debate, the possibility of using technological countermeasures – cyberattacks – against intermediaries threatening to disclose especially harmful data. There are times when the censor should win.

Download the article from SSRN at the link.

Minnesota Law Review: Money Talks but It Isn’t Speech

Money Talks but It Isn’t Speech

by Deborah Hellman

The Article challenges the central premise of our campaign finance law, namely that restrictions on giving and spending money constitute restrictions on speech, and thus can only be justified by compelling governmental interests. This claim has become so embedded in constitutional doctrine that in the most recent Supreme Court case in this area, Citizens United v. FEC, the majority asserts it without discussion or argument. This claim is often defended on the ground that money is important or necessary for speech. While money surely facilitates speech, money also facilitates the exercise of many other constitutional rights. By looking at these other rights, the Article calls attention to the fact that sometimes constitutional rights generate a penumbral right to spend money and sometimes they do not. Thus, the fact that money facilitates the exercise of a right is insufficient to show that the right includes a penumbral right to give or spend money. The Article argues that we ought to broaden the lens through which we view campaign finance cases. Rather than asking whether a restriction on campaign giving or spending violates the First Amendment, we should ask instead, when do constitutional rights generate a penumbral right to spend money? To that question, the Article offers the following answer: When a right depends on a market good for its exercise, the right generates a penumbral right to give or spend money. When a right does not depend on a market good for its exercise, the right does not include a penumbral right to spend money. Using this account, the Article argues that the right to give and spend money in connection with elections need not be treated as speech under the First Amendment.


This is a very important article.

On Concurring Opinions this week, a symposium on Tim Wu’s “The Master Switch”

Symposium on “The Master Switch”

posted by Gerard Magliocca

I am pleased to announce that Concurring Opinions will host a symposium this week on Tim Wu’s The Master Switch:  The Rise and Fall of Information Empires. .. I’m looking forward to a fun exchange of ideas about Tim’s book, which you can purchase here.


Wendy Seltzer on the DMCA’s Effects on Free Speech

Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. … Under the DMCA, process for an accused infringer is limited. … If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. …

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

See Wendy Seltzer “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment” 24 (1) Harvard Journal of Law & Technology 172 (2010) (pdf).

SSRN-‘Telling Me Lies’: The Constitutionality of Regulating False Statements of Fact by Mark Tushnet


Using recent decisions dealing with the constitutionality of the Stolen Valor Act as its starting point, this Essay examines the First Amendment questions raised by statutes prohibiting lies as such, that is, outside the context of fraud and defamation. It evaluates the constitutionality of statutes imposing strict or negligence liability for lying, concluding that the First Amendment does not bar legislatures from adopting such statutes if the statutes are carefully drawn. It then assesses arguments that deliberate falsehoods can be prohibited because they have no social value, concluding that that judgment, while somewhat overbroad, is correct. In reaching that conclusion the Essay offers an interpretation of United States v. Stevens, the recently decided “animal snuff video” case, which some have thought stands as an obstacle to statutes prohibiting lies as such. The Essay also deals with false statements made by those who do not believe the statements to be false, observing that many such statements are “ideologically inflected” in ways that make is unwise, and probably unconstitutional, to regulate their dissemination. A final section briefly discusses statutes prohibiting false statements in political campaigns.

Jotwell – Speech and Markets

Speech and Markets

Is there anything new to say about the constitutionality of campaign finance regulation?  Well, actually, there is, and Deborah Hellman says it in her fine new article “Money Talks but It Isn’t Speech.” The significance of Hellman’s article extends beyond the vexed yet tired issue of campaign finance, however.  Her work is an important intervention in a central – perhaps the central – problem in modern constitutional law.