UNDERDOG - JON KATZ, Criminal Defense in and beyond the Capital Beltway. - First Amendment

Hurdles to suing for copyright violations.

nospam@example.com (Jon Katz) — Thu, 04 Mar 2010 00:00:00 -0500

A real tension exists between the First Amendment and the Constitution's protections of intellectual property.

Art. I, § 8 of the Constitution empowers Congress to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The First Amendment provides that "Congress shall make no law abridging the freedom of speech..."

In 1992, federal trial Judge Pierre Leval recognized, as follows, the tension between the First Amendment intellectual property protections:

"Even if there was some likelihood of confusion, I would still conclude that New York's cover did not violate Yankee's trademark rights. This is because the First Amendment confers a measure of protection for the unauthorized use of trademarks when that use is a part of the expression of a communicative message.

"Because the trademark law regulates the use of words, pictures, and other symbols, it can conflict with values protected by the First Amendment. The grant to one person of the exclusive right to use a set of words or symbols in trade can collide with the free speech rights of others. When another's trademark (or a confusingly similar mark) is used without permission for the purpose of source identification, the trademark law generally prevails over the First Amendment. Free speech rights do not extend to labelling or advertising products in a manner that conflicts with the trademark rights of others. In these circumstances, the exclusive right guaranteed by the trademark law is generally superior to the general free speech rights of others. See Rogers v. Grimaldi, 875 F.2d 994, 999 (2d Cir. 1989).

"However, when unauthorized use of another's mark is part of a communicative message and not a source identifier, the First Amendment is implicated in opposition to the trademark right. In recognition of this potential conflict, the Second Circuit has construed the Lanham Act narrowly when the unauthorized use of the trademark is for the purpose of a communicative message, rather than identification of product origin. Thus, where the unauthorized use of a trademark is for expressive purposes of comedy, parody, allusion, criticism, news reporting, and commentary, the law requires a balancing of the rights of the trademark owner against the interests of free speech. See id., 875 F.2d at 998; Cliffs Notes, 886 F.2d at 493-95." Yankee Publ'g, Inc. v. News Am. Publ'g, Inc., 809 F. Supp. 267, 276 (S.D.N.Y. 1992).

When people call me about copyright infringement help, I say that I will be interested in defending the alleged infriger, and not the alleged victim of copyright infringement. That is not to say that I encourage people to run roughshod on others' intellectual property. It is to say, however, that I worship at the altar of the First Amendment, and believe that if the First Amendment is to have sufficient meaning, it is more important to overprotect free expression than to underprotect it.

In the foregoing regard, when defending against a copyright infringement lawsuit -- as with defending against all lawsuits -- it is critical to analyze arguments for dismissing the lawsuit on procedural grounds. The Supreme Court on March 2, 2010, addressed the extent to which courts may consider copyright infringement lawsuits filed by people who have not registered their intellectual property with the federal government. From my initial reading of the opinion, the Court refused to permit non-registration as an automatic bar to suing alleged copyright infringers. The opinion goes into much greater detail than that, here. Reed Elsevier v. Muchnik, __ U.S. _ (March 2, 2010).

Sometimes courts get it right with students' First Amendment rights.

nospam@example.com (Jon Katz) — Wed, 17 Feb 2010 00:10:00 -0500

Bill of Rights. (From the public domain.)

Sometimes courts wrongly underprotect students' First Amendment rights. Of course, as to private schools, the First Amendment is not even implicated to those who run such schools.

Sometimes courts get it right, as with last week’s denial of a dismissal to a civil defendant/ high school principal for disciplining a student for posting a Facebook page with more than unflattering comments about one of the teachers at the school. Evans v. Bayer, __ F.Supp.2d _ (S.D. FL, Feb. 12, 2010).

In Evans, high school student Evans never used school property to produce nor display the Facebook page, and actually had the Facebook page removed before the school administration ever saw it.

Suffice it to say, last Friday, a federal magistrate judge made an excellent decision to refuse dismissal of this suit, in which Evans seeks relief against principal Bayer. Here are links to this case:

- The court order denying full dismissal of the case.

- Evans’s court complaint in the case.

- Bayer’s failed motion to dismiss the case.

- Evans’s opposition to Bayer’s opposition motion. Jon Katz

ADDENDUM I: Thanks to a listserv member for circulating an article on this Evans case.

ADDENDUM II: Following is some particularly noteworthy language from the foregoing Evan case:

As noted, this is not a novel situation and has been dealt with by other courts. But here we have speech that was made off-campus, never accessed on-campus, and was no longer accessible when the Defendant learned of it...

One of the most recent decisions regarding internet student speech is instructive. In Layshock v. Hermitage School District, the Third Circuit examined whether a school district can punish a student for expressive conduct that originated outside of the classroom, when that conduct did not disturb the school environment and was not related to any school sponsored event. Nos. 07-4465, 07-4555, 2010 WL 376184, at *1 (3d Cir. Feb. 4, 2010). Justin Layshock created a fictitious profile of his school’s principal on Myspace, another social networking website. Layshock used the principal’s photo from the school website and gave fake answers to various questions. The profile

was created after school hours and off-campus, at Layshock’s grandmother’s house...

Regardless of the standard used, Evans’s speech falls under the wide umbrella of protected speech. It was an opinion of a student about a teacher, that was published off-campus, did not cause any disruption on-campus, and was not lewd, vulgar, threatening, or advocating illegal or dangerous behavior. Therefore, the Court finds that Evans had a constitutional right. The next inquiry is whether it was a clearly established right.

Is escorting constitutionally protected?

nospam@example.com (Jon Katz) — Fri, 12 Feb 2010 00:00:00 -0500

Bill of Rights. (From the public domain.)

Is escorting constitutionally protected? Before courts can reach that question, a definition of escorting is needed. As it turns out, the definition of an “escort” runs the gamut from a dinner and conversational companion who provides no touching nor erotic services, to massages, to private partially-nude and fully-nude stripteases, to erotic direct physical contact running from erotic massages to more than that.

For escorts who provide stripteases, they may seek some protection from U.S. Supreme Court caselaw providing some First Amendment protection for erotic/exotic dancing. City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382 (2000). However, even the foregoing Erie case provides governments with a roadmap to require exotic dancers to wear pasties and g-strings. Moreover, the U.S. Supreme Court permits governments to try to zone adult entertainment to specific locations, and such zoning laws may not be amenable to escorts who provide outcall services. Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002).

Thanks to a colleague for recently referencing a 1988 Ninth Circuit case that gives little to no First Amendment protection for escorts against government regulation. IDK, Inc. v. County of Clark, 836 F.2d 1185 (9^th Cir. 1988). IDK’s 2-1 panel majority held:

“The county's regulation governing the licensing and operation of escort services neither reaches a substantial amount of activity protected by the freedom of expressive association nor appears vague in all possible applications. Therefore, the escort service's facial challenge fails. We emphasize that our holding does not mean that the regulation is incapable of unconstitutional application in particular situations and does not immunize the regulation from challenges to its application. Facial invalidation is "strong medicine" which should be used "sparingly and only as a last resort." Broadrick [v. Oklahoma], 413 U.S. [601] at 613 [(1973)]. We conclude that this regulation does not reach a sufficient amount of the activities protected by the Constitution to justify a dose of that medicine.”

IDK, Inc., 836 F.2d at 1198.

Dissenting Judge Reinhardt takes a better approach, concluding:

“The Clark County regulation requires that licenses be obtained for the exercise of first amendment associational rights, and gives licensing officials broad discretion to grant or withhold such licenses. However, it fails to meet the strict standards that the first amendment imposes. It is written in terms that invite arbitrary and discriminatory enforcement. It is not the least restrictive means of achieving the county's goals, and it encompasses associations that are unrelated to those goals. It is "unconstitutionally vague because it subjects the exercise of the right of assembly to an unascertainable standard, and unconstitutionally broad because it authorizes the punishment of constitutionally protected conduct." Coates [v. Cincinnati], 402 U.S. [611] at 614 [(1971)]. For these reasons, I respectfully dissent from the majority's decision.”

IDK, Inc., 836 F.2d at 1206. Jon Katz

Citizens United v. FEC

nospam@example.com (Jon Katz) — Mon, 25 Jan 2010 00:00:00 -0500

The Internet is abuzz about Citizens United v. FEC. For the First Amendment defense side of my law practice -- and as a concerned person -- Citizens United is a critical opinion for me to read and digest, all 183 pages of the case, which covers Chief Justice Roberts's opinion, two concurring opinions (by Justices Scalia and Thomas), and Justice Stevens's opinion (joined by Justices Ginsburg, Breyer, and Sotomayor) that partially concurs and objects.

As an advocate for erring on the side of providing too much free expression protection than too little, I expect I will be on the side of the Supreme Court's majority that is in opposition to Justice Stevens's opinion. Even if the opinion will favor Republican candidates and more "mainstream"-sounding candidates, the First Amendment means little if it is not given full protection. As to those who wish to give less First Amendment protetion to corporations than to individuals, I see no such limitations in the language of the First Amendment. Moreover, when corporate First Amendment rights are watered down, damage to individuals' First Amendment rights will be simultaneous and consecutive to such damage to corporations' free expression rights.

Chicago trial court protects Craigslist over erotic ads.

nospam@example.com (Jon Katz) — Fri, 30 Oct 2009 00:00:00 -0400

Bill of Rights. (From the public domain.)

Last week, a Chicago federal trial judge extended protection beyond libel suits to listserv operators, online bulletin board operators, and bloggers for third-party postings concerning erotic services, even where those postings might be thinly-veiled or even non-veiled ads for prostitution:

[47 U.S.C.] Section 230(c)(1) would serve little if any purpose if companies like Craigslist were found liable under state law for “causing” or “inducing” users to post unlawful content in this fashion. See Chicago Lawyers, 519 F.3d at 671; cf. NPS, LLC v. StubHub, Inc., No. 06-4874-BLS1, 2009 WL 995483, *10-13 (Mass. Super. Jan. 26, 2009) (concluding that there was a material issue of fact whether the defendant “intentionally induced” its users to violate antiscalping laws). The fact that Craigslist also provides a wordsearch function does not change the analysis. The word-search function is a “neutral tool” that permits users to search for terms that they select in ads created by other users. Roomates.com, 521 F.3d at 1167 (“[O]rdinary search engines do not use unlawful criteria to limit the scope of searches conducted on them, nor are they designed to achieve illegal ends — as Roommate’s search function is alleged to do here.”). It does not cause or induce anyone to create, post, or search for illegal content.

Dart v. Craigslist, Inc., __ F.Supp.2d _ (N.D. Ill., Oct. 20, 2009).

Dart is a natural follow-up to the Seventh Circuit's 2008 granting of 47 U.S.C. § 230 protection to Craigslist against a lawsuit alleging discriminatory housing ads on Craigslist, which I blogged about here. Last March I warned sheriff Dart that he was climbing up the wrong tree with this lawsuit. It is time for him to hang up this matter.

ADDENDUM: Thanks to a fellow listserv member and the First Amendment Center for bringing the Dart opinion to my attention.

The cat-and-mouse game of fighting adult entertainment laws.

nospam@example.com (Jon Katz) — Mon, 12 Oct 2009 00:10:00 -0400

Bill of Rights. (From the public domain.)

Nearly a decade ago, I added adult entertainment to my law practice. Such representation is a great way to defend the First Amendment, and can include criminal defense, as well.

Litigating against adult entertainment zoning and licensing laws can be like a cat-and-mouse game, pitting businesses against censorious municipalities, seeing which businesses will cave rather than financing expensive litigation and, sometimes, expert witness fees, getting significantly different outcomes depending on the prevailing appellate circuit, and witnessing often sharply-divided Supreme Court opinions.

As with criminal defense, even after a battle defeat against adult entertainment laws, I keep persevering, knowing that critical victories are on the horizon. In that regard, congratulations to the legal team that obtained good First Amendment headway in the Seventh Circuit last month in Annex Books v. City of Indianapolis, __ F.3d _ (7th Cir., Sept. 3, 2009).

Annex Books rejects the tired efforts of so many municipalities to rely on old, junk science "studies" connecting adult entertainment with everything from reduced property values to crime to the bubonic plague. Interpreting Los Angeles v. Alameda Books, 535 U.S. 425 (2002), Annex Books says in relevant part:

Because the other Justices divided 4 to 4 [in Alameda books], and Justice Kennedy was in the middle, his views establish the holding. See Marks v. United States, 430 U.S. 188 (1977). He concluded that a regulation of adult bookstores “can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.” 535 U.S. at 445 (concurring opinion). “[A] city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact. … A city may not assert that it will reduce secondary effects by reducing speech in the same proportion.” Id. at 449.

Annex Books speaks of the importance of specifics to justify adult entertainment laws rather than the mere inclusion of tired negative secondary effects studies in legislative histories, where one wonders how many legislators even look at any of the studies:

Counsel for Indianapolis conceded at oral argument that none of the studies that the City has offered in defense of its ordinance deals with the secondary effects of stores that lack private booths. Nor do the studies assess the effects of stores that sell as little as 25 % adult products. These shortcomings, plus [U.C. Santa Barbara professor Daniel] Linz’s work, call the City’s justifications into question and require an evidentiary hearing at which the City must support its ordinance under the intermediate standard of Alameda Books. See also Abilene Retail #30, Inc. v. Dickinson County, 492 F.3d 1164 (10th Cir. 2007) (reaching the same conclusion on a similar record). The Supreme Court decided Playtime Theatres more than 30 years ago, and since then adult-entertainment ordinances have become common. There must be some pertinent data to be gathered, if not in Indianapolis then elsewhere. (Some can be found in a bibliography at http://www.secondaryeffectsresearch.com.) But if, as is possible, there is simply no sound basis for a conclusion that book or video stores (without live entertainment or private booths) open after midnight, or on Sunday, cause adverse secondary effects, then Indianapolis must revert to its pre-2003 system of regulation.Marks v. United States, 430 U.S. 188 (1977). He concluded that a regulation of adult bookstores “can be consistent with the First Amendment if it is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.” 535 U.S. at 445 (concurring opinion). “[A] city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact. … A city may not assert that it will reduce secondary effects by reducing speech in the same proportion.” Id. at 449. Justice Kennedy insisted that the benefits (less crime) be compared with the detriments (less speech) and added that a given regulatory system is easier to justify if it works in the same way as the regulation of other, similar, businesses, for then it is harder to conclude that the government has set out to curtail speech because of its subject matter. Id. at 447–49.

Annex Books

My cat and mouse description of battling adult entertainment laws became all the more relevant when I read T.T. Liang's T'ai Chi Ch'uan for Health and Self Defense, where he talks of the difference of the patient cat waiting for the mouse to move, and then arriving before the mouse does, as opposed to the dog that barks its head off when it sees a squirrel, thus alerting the squirrel to get to safety and then to thumb its nose at the dog. Without the harmony, balance and strength of t'ai chi, those fighting adult entertainment laws risk getting weakened through being frustrated by the many boobytraps of such challenges. Jon Katz

Westboro Baptist Church wins hands-down.

nospam@example.com (Jon Katz) — Thu, 24 Sep 2009 20:00:00 -0400

For a week and a half in October 2007, my life was consumed with my defense of the Westboro Baptist Church (WBC) and its pastor before a Maryland federal jury against charges of intentional infliction of emotional distress and intrusion upon seclusion. Each day, I drove to the heart of Baltimore/Charm City for this trial, not once getting the time to enjoy the city and its Bromo Seltzer tower, except for the last day, during lunch while the jury deliberated.

The jury socked the defendants with a multimillion-dollar verdict. The defendants appealed, with Margie Phelps representing the defendants/appellants in the Fourth Circuit, and with an amicus lineup behind them of the ACLU and the Thomas Jefferson Center for the Protection of Free Expression. Oral argument was held December 2008.

Months passed. The waiting became worth it with a hands-down total reversal today by the Fourth Circuit that bars a retrial. Albert Snyder v. Fred Phelps, Sr., et al., __ F.3d _ (4th Cir., Sept. 24, 2009).

If appellee Albert Snyder seeks en banc review, I doubt he will get far. For one thing, the Federal Rules of Appellate procedure require a petition for such review to establish that "the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed ... and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions; or ... the proceeding involves one or more questions of exceptional importance..." Fed. R. App. P. 35(b). For another thing, the appellate panel's opinion -- and the concurring opinon, as well -- provide compelling grounds why the trial judge should never have allowed this case to go to jury delberations, and it seems doubtful that the full court will disturb the hands-down reversal of the trial court.

I also doubt the Supreme Court will grant certiorari review, if a petition is even filed by Albert Snyder, the appellee. This case was filed in federal court as a diversity jurisdiction case. I doubt that the Supreme Court will see any split in the federal circuits or in the state appellate courts that justifies cert. review, nor any other compelling reason to grant such review. For one thing, WBC's approach to demonstrating is in many ways one of the kind, and has not gotten to enough appellate decisions yet to make the Supreme Court see a circuit split nor to want to accept cert.

Protecting free expression often requires defending dark and/or controversial views and actions. It includes defending against cross burning statutes, defending the right of neo-nazis to march in Skokie, and defending the rights of the adult entertainment industry, As the American Civil Liberties Union's website proclaims: "It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today."

Today's appellate victory for the Westboro Baptist Church is a huge victory for the First Amendment and Constitution, and, thus, for all of us.

D.C. Circuit strikes First Amendment-violative F.E.C. rules.

nospam@example.com (Jon Katz) — Wed, 23 Sep 2009 00:00:00 -0400

On September 18, the D.C. Circuit struck down new F.E.C. rules limiting "how non-profits may spend and raise money to advance their preferred policy positions and candidates." Emily's List v. F.E.C., _ F.3d _ (Sept. 18, 2009).

Praised be and long live the First Amendment.

Q: Did you go to law school? Penn: No, clown school.

nospam@example.com (Jon Katz) — Sun, 02 Aug 2009 00:00:00 -0400

Penn Jillette sticks it to those with a crabbed view of the First Amendment.

The indecency of penalizing George Carlin's seven dirty words.

nospam@example.com (Jon Katz) — Wed, 06 May 2009 00:00:00 -0400

Welcome to Singapore -- I mean the United States Supreme Court -- which this week allowed the Federal Communications Commission to fine television and radio stations for fleeting expletives, where such allegedly indecent words as those from George Carlin's list of seven can get a broadcaster severely fined even if the broadcaster has no reason to know the speaker is going to utter those words on a live program. FCC v. Fox Television Stations, _ U.S. _ (May 4, 2009).

Of course, the Supreme Court's Fox New ruling is not limited to words, as witnessed by the court's telling the Third Circuit on the same day, Mary 4, to reconsider its reversal of the $500,000 fine against CBS for Janet Jackson's Super Bowl split-second exposed nipple.

Praised be the four Fox Television dissenters: Justices Stevens, Souter, Ginsburg and Breyer.

President Obama: In picking Justice Souter's replacement, please focus heavily on preventing such abominations to the Constitution as Fox Television Stations.

President Obama: It's time to clean house at the VA.

nospam@example.com (Jon Katz) — Fri, 10 Apr 2009 18:44:29 -0400

Imagine entering the military, risking your life in the line of duty, being treated at a Veterans Administration Hospital, complaining voluntarily about the VA hospital treatment to a reporter after speaking up at a town hall gathering there, and then having VA security stop the interview and strongarm the tape from the reporter. It happened this week at a Washington, D.C.-area Veterans hospital.

Here are links to the story:

WTOP radio reports that the VA is still holding WAMU reporter David Schultz's tape: http://wtop.com/?sid=1647088&nid=25

David Schultz reports: http://wamu.org/audio/nw/09/04/n17090408-25952.asx

WTOP radio's Mark Segraves calls the actions against the reporter and VA patient a crime: http://www.wtopnews.com/?nid=695&sid=latest

The federal Reporters Privacy Act: http://www4.law.cornell.edu/uscode/html/uscode42/usc_sec_42_00002000--aa000-.html

EPIC on the Reporters Privacy Act: http://epic.org/privacy/ppa

Carlos Miller calls for the figurative head of the WAMU newsperson who told the onsite reporter to give up the tape to the cops adn leave: http://carlosmiller.com/2009/04/10/va-officials-seize-reporters-equipment-during-interview-with-veteran

The reporter’s friend speaks: http://blogs.govexec.com/fedblog/2009/04/solidarity_with_david_schultz.php

The Huffington Post speaks out: http://www.huffingtonpost.com/2009/04/10/reporter-david-schultz-ha_n_185654.html

Mark Segraves reports by audio: http://wtop.com/?sid=1647109&nid=93

Reporters Committee for Free Press speaks out: http://www.rcfp.org/newsitems/index.php?i=10702

Reason speaks out: http://reason.com/blog/show/132823.html

President Obama, immediate rectifying action needs to be taken on this urination on the First Amendment.

ADDENDUM: After I posted the foregoing blog entry, WTOP online reported that on the same day, the Department of Veterans Affairs had agreed to return the reporter's tape without conditions for doing so. The tape's return was crucial not only for the interview tha led to its seizure, but because it contained previously-recorded interviews that had no connection to any veterans hospitals. However, this move by the Veterans' Affairs Department is too little too late after the seizure three days beforehand on April 7, 2009, and does nothing to show that any real effort will be made to avoid the repeat of such travesties of justice.

The Department of Veterans Affairs had an opportunity to address this seizure matter on its website, but did not do so.

Bad civics lesson: U. Maryland's president caves to state senator's efforts against on-campus erotic film screening.

nospam@example.com (Jon Katz) — Thu, 09 Apr 2009 00:10:00 -0400

Bill of Rights. (From the public domain.)

For many years, I have proudly defended the robust First Amendment rights of everyone, including political activists of all stripes, libel defendants, and the adult entertainment industry.

Politicians' efforts to clamp down on adult entertainment are hardly confined to the Bible Belt. In every state, most politicians seem to think they can score political points by attacking adult entertainment, which, of course, is an attack on the First Amendment.

Generally, government restrictions on adult entertainment necessitate strict scrutiny absent sufficiently relevant and reliable studies demonstrating negative local secondary effects from such entertainment. City of L.A. v. Alameda Books, 535 U.S. 425 (2002). This month, however, the University of Maryland's president cancelled an on-campus showing of an erotic film, not due to any negative secondary effects claim, but from buckling prematurely and fearfully under pressure from an eventually-failed effort by state senator Andrew Harris to withhold funds from state colleges that permitted such screenings.

How prematurely fearful did the University of Maryland's president act? He acted so prematurely that this week the state senate killed the measure. As the Associated Press reports: "Senate approval [of the state budget on April 8, 2009] came after a skirmish over a proposed amendment to tie funding for public colleges and universities to whether they follow through with developing policies relating to the showing of pornographic films. The amendment sought by Sen. Andrew Harris, R-Cecil, was ruled out of order after senators appeared fatigued over the issue."

This pathetic story goes beyond a college president who backed down to the detriment of the First Amendment. This story is an indictment of the failure -- until the measure was killed in the state senate yesterday -- of the vast majority of state senate members to oppose senator Harris's censorious effort. At least as the University of Maryland's Diamondback newspaper reports: "With the exception of Sen. Jamie Raskin (D-Montgomery) [a law professor and longtime ACLU friend] and a few supporters who argued the state was treading on First Amendment rights, most legislators, as well as the university administration, don't think the General Assembly overstepped their bounds. And in an interview Friday, before students announced the protest screening, university President Dan Mote said the legislature is free to make decisions about how the university uses state money."

Nobody has to like adult entertainment or any other form of expression to strongly oppose content-based restrictions of such expression. If unpopular expression is not protected under the First Amendment, the First Amendment will be severely weakened in protecting expression that you and I hold dear. Jon Katz

Perhaps Cook County's sheriff did not read Underdog's blog entry yesterday.

nospam@example.com (Jon Katz) — Fri, 06 Mar 2009 00:05:00 -0500

The world economy is in crisis. Warfare continues, including in Iraq and Afghanistan. Too many children die daily from malnutrition and insufficient healthcare. Government funding is tight in the United States, particularly until government legalizes marijuana, heavily decriminalizes all other drugs, eliminates mandatory minimum sentencing, and eliminates capital punishment.

What does Cook County, Illinois' sheriff do the same day I posted on the protection enjoyed by such online bulletin board operators as Craigslist from liability for the postings of third parties? He files a federal civil lawsuit (thanks to Popehat for posting the complaint, and to my brother lawyer Larry Walters for alerting me to the story) seeking to enjoin Craigslist from enabling the posting and continued public availability of ads that might be for prostitution.

Many places in the world permit prostitution or do not enforce against it. It is legal in at least two Nevada counties, Canada, Mexico, France, England, Germany, Israel, Denmark, Sweden, and the Netherlands. Sex sells and sells big, in the realm of visual items, sexual aids, advertising, strip clubs, and erotic services for hire. The sky has not fallen where prostitution is legal, and it should be legalized in the United States, to end the silly and unnecessary overstretching of law enforcement budgets for prostitution prosecutions, and to stop making consensual sex among adults a criminal act. Jon Katz

ADDENDUM: On October 20, 2009, a federal trial judge dismissed the sheriff's complaint against CraigsList for including erotic ads.

Bloggers and listserv hosts can escape liability for libelous third-party comments.

nospam@example.com (Jon Katz) — Thu, 05 Mar 2009 00:00:00 -0500

Bill of Rights. (From the public domain.)

The libel laws belong in the trash heap. The First Amendment is damaged far more by having libel laws than any benefit of such laws.

Fortunately, the federal Communications Decency Act ("CDA") provides broad protection against libel liability to bloggers and listserv operators for comments and emails posted by third parties to their webpages. Following are the authorities supporting such immunity and hopefully giving bloggers, listserv operators, and online bulletin board operators all the more courage to allow robust third-party discussion on their webpages.

- Operators of email listservs, online bulletin boards and blogs are not legally liable for what automatically gets posted to to their webpages by third parties. 47 USC § 230(c) (Communications Decency Act); Zeran v. Am. Online, Inc., 129 F.3d 327 (4^th Cir. 1997), cert. denied, 524 U.S. 937 (1998) (dismissing libel suit against AOL for allegedly libelous statements posted by a third party on an online bulletin board operated by AOL). See also Batzel v. Smith, 333 F.3d 1018 (9^th Cir. 2003), cert. denied, 541 U.S. 1085 (2004) (permitting dismissal of a lawsuit against an email listerv operator should the facts reveal that the operator merely acted as a passthrough to the listserv for the third party who emailed an allegedly libelous comment to the listserv operator).

- The Third Circuit provides similar protections: Dimeo v. Max, 433 F. Supp. 2d 523, (E.D. Pa. 2006), aff'd.248 Fed. Appx. 280, 2007 U.S. App. LEXIS 22467 (3d Cir. 2007, unpublished) (dismissing lawsuit against an online bulletin board operator for third party postings of allegedly libelous comments).

- The Seventh Circuit confirms protection beyond libel suits to listserv operators, online bulletin board operators, and bloggers for third-party postings that are legally actionable against the commenters. Chi. Lawyers' Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, (7th Cir. 2008). "What [47 USC] § 230(c)(1) says is that an online information system must not 'be treated as the publisher or speaker of any information provided by' someone else. Yet only in a capacity as publisher could craigslist be liable under [42 USC] § 3604. It is not the author of the ads and could not be treated as the 'speaker"' of the posters' words, given § 230(c)(1). The Lawyers' Committee responds that 'nothing in § 230's text or history suggests that Congress meant to immunize an ISP from liability under the Fair Housing Act. In fact, Congress did not even remotely contemplate discriminatory housing advertisements when it passed § 230.' That's true enough, but the reason a legislature writes a general statute is to avoid any need to traipse through the United States Code and consider all potential sources of liability, one at a time. The question is not whether Congress gave any thought to the Fair Housing Act, but whether it excluded § 3604(c) from the reach of § 230(c)(1). Cf. Regional Rail Reorganization Act Cases, 419 U.S. 102, 126-27, 95 S. Ct. 335, 42 L. Ed. 2d 320 (1974) (Congress need not think about a subject for a law to affect it; effect of general rules continues unless limited by superseding enactments)." Chi. Lawyers' Comm. for Civ. Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d at 671.

- After outlining today's blog entry, I came upon the following law review tome on today's blog topic by Anthony Ciolli (who blogs at First Movers), himself a recent later-dismissed defendant in a lawsuit for alleged libel and related counts arising from messages posted to an online bulletin board that his company maintained: Anthony Ciolli, "Chilling Effects: The Communications Decency Act and the Online Marketplace of Ideas," 63 U. Miami L. Rev. 137 (Jan. 14, 2008). The article is too long to have read yet, but expands upon the topic in more detail than today's brief blog entry. One of Ciolli's particularly good points is that bloggers and listserv operators of limited financial means might cave into frivolous lawsuits over third party postings, due to the absence of statutory provisions enabling such defendants to recover attorney's fees when they prevail in court.

Here's to robust online communications, and to eliminating government censorship online and everywhere else. Jon Katz

Congrats to the video game community and the First Amendment.

nospam@example.com (Jon Katz) — Sun, 22 Feb 2009 00:00:00 -0500

One thing I did not like about my years before eighteen-years-old was all the added restrictions on my liberty, including things as simple as going to a music club or dance club just because I had not yet reached the drinking age (which was eighteen in my native Connecticut at the time) even if I did not give a damn about drinking there.

Praised be federal trial judge Ronald M. Whyte (a Republican appointee, no less, in the form of George H.W. Bush) and the Ninth Circuit three-judge panel (two of three are Bush I and Bush II appointees) for invalidating on First Amendment grounds, a California law limiting minors' access to so-called "violent video games." VSDA v. Scharzenneger, et al., __ F.3d _ (9th Cir., Feb. 20 2009).

I am no fan of violence, but remain strongly convinced that my free expression zealotry is on firm ground, and that it is important to err on the side of allowing too much speech rather than too little. Those opposing violent imagery and other violent material have the same First Amendment rights to rail against such material, but not to have government censor it, nor to require ratings of such material (e.g., PG, R and X) .

Of course, when courts allow a ban on free speech, censors will try to take the ban further. In VSDA , at least, the Ninth Circuit refused to extend to non-sexual material the Supreme Court's previous permission in Ginsberg v. New York, 390 U.S. 629 (1968). for governments to limit minors' access to sexually explicit material.

ADDENDUM: Thanks to the WSJ Law Blog for covering this item.