Cursing at the Cops: ‘Fighting Words’ Cases?

By Taylor Farnsworth and Tyler Falcone

The relationship between law enforcement and the citizens they are sworn to protect is one that is complicated, confusing, and fragile. The spectrum of outcomes from interactions between police and the public can range from a simple warning or a slap on the wrist, to something as severe as the loss of life. The latter has been the topic of heated discussion in the wake of the killings of Mike Brown, Eric Garner, and Tamir Rice by police officials just this year, and along with a number of other concerns raised, the issue of what is appropriate behavior when interacting with police is one that is receiving significant attention. While freedom of speech grants US citizens the privilege to speak freely without fear of punishment, there are still types of speech that go unprotected under the First Amendment. Fighting words, or “words seen as so vile or obnoxious that they are sure to incite a violent reaction,” (Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)) are one type of unprotected speech. Court cases dealing with fighting words are few and far between, and rulings on what constitutes fighting words seem to vary case to case. What is troubling about the seemingly circumstantial and subjective nature of these court rulings is that it becomes difficult to determine what is appropriate or, more importantly, legal when interacting with law enforcement officials.

The 2011 case of the State of Ohio v. Frazier, 2011-Ohio-3189 deals with Dorthea Frazier and her confrontation with police after the arrest of her son. Cody Frazier, the son of Dorthea, was stopped by the police after a brief vehicle pursuit and arrested less than 100 feet away from the home of Dorthea’s sister and Cody’s aunt, Shawn Weems. Dorthea and her sister were at Weems’s residence at the time of Cody’s arrest, and approached the scene to find out what was happening. As Dorthea approached, she began shouting expletives such as, ““What the f*** are you doing?” directed at her son and, “What the f*** are you arresting my son for?” directed at one of the arresting officers. While Dorthea was losing her temper, her sister made an attempt to calmly engage in conversation with an officer on the scene, Lieutenant Brian Simcox, to find out what had led to Cody’s arrest. Dorthea then interrupted the conversation by yelling, “You f***ing crooked a** cop,” and “You’re a b****,” at Lt. Simcox. Simcox then gave Frazier six to eight verbal commands to be quiet and calm down as she continued to shout expletives. The crowd around the scene grew to between 50 to 70 people who were “beginning to get agitated and it was – it was close to being a bad situation” (State of Ohio v. Frazier). Another officer who was on the scene, Brent Bauknecht, said, “The verbal abuse is one thing. Her yelling and screaming, cursing was enticing the crowd even more, which, for me, was making it more of an officer safety issue than so much her being loud and disorderly” (State of Ohio v. Frazier, pg 2).

Due to the concerns raised by the growing crowd and Dorthea’s lack of cooperation with police, the officers decided to place her under arrest. Frazier made an attempt to avoid and resist arrest and in the process, broke her arm. She was then charged with one count of resisting arrest and one count of disorderly conduct.  The matter was taken to trial in January 2009, and Frazier was found guilty of disorderly conduct and was sentenced to 30 days in jail and a $100 fine.

In April of 2010, Frazier filed a notice of appeal, claiming that her speech did not reach the level of fighting words and should not have been punishable by law. To make her point, Frazier relied on a previous Ohio Supreme Court decision in the 1993 caseState v. Lessin. In State v. Lessin 1993, 67 Ohio St. 3d 487, the appellant, Cheryl Lessin, was charged in the burning of an American flag, and was found not guilty under the protection of the First Amendment. The court deciding in Frazier’s appeal found that Lessin’s circumstances were different from Frazier’s, in that Lessin’s flag burning was a protected form of political protest. The court ruled that Frazier’s repeated cursing and yelling at officers did in fact rise to the level of fighting words with no communicative value, negating her First Amendment protection.

Frazier’s encounter with the police can be compared to the landmark fighting words case, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky was arrested on charges of disturbing the peace after screaming phrases like, “You are a God damned racketeer” and “a damned Fascist,” to local sheriffs attempting to quell Chaplisnky’s rant on the corruption of organized religion.  While the circumstances of the interactions were starkly different – Chaplinsky was arguing for his right to preach on his beliefs as a Jehovah’s Witness and Frazier was coming to the defense of her son –both involved altercations with police that led to arrests due to the language directed at officers on the scene, and both convictions were upheld.

An article from The Foundation of Individual Rights in Education, or The FIRE, titled “Misconceptions About the Fighting Words Exception,” explains other cases dealing with fighting words that had been brought to trial. Author Sean Clark writes on a case Gooding v. Wilson, 405 US 518 (1972), in which Vietnam protestor Johnny Wilson screamed phrases like, “You white son of a b***, I’ll kill you,” and “I’ll choke you to death,” in the faces of police officers trying to break up anti-Vietnam protests. After being convicted of breaching the peace under a Georgia state law, he appealed and the case was taken to the US Supreme Court. The Supreme Court overturned the conviction on the grounds that Georgia’s statute was overbroad and too vague, prohibiting free expression. Despite the seemingly severe nature of Wilson’s threats, his speech was not direct enough to fit into the narrow confines of the fighting words doctrine.

Arguments have been made that charges of fighting words are simply outdated, and losing any legitimacy they once held in courts. Jeffrey Rosen writes in article on LegalAffairs.org that, “during the past few decades, it has been criticized for being out of sync in a multicultural age: The doctrine’s definition of fighting words is said not to take into account the unique perspective of women, racial minorities, and gays and lesbians, some of whom may be less likely to respond to insults with physical violence. But a brief excursion into the historical roots of the fighting-words doctrine provides even stronger reasons for abandoning it. Legal bans on fighting words grew out of 19th-century efforts to discourage the practice of dueling, and they evolved from a Southern culture of honor and hierarchy that’s very different from modern American democracy” (Rosen). These facts alone show some of the shortcomings and subjectivity of the fighting words doctrine, and makes it easier to understand why such a doctrine could becoming less relevant in today’s culture.

Sean Clark writes in his article, “Gooding was the nail in the coffin—if the fighting words exception has any real vitality left at all (and many commentators, including Nadine Strossen, think it is essentially dead) the Supreme Court has effectively limited the exception to only include abusive language, exchanged face to face, which would likely provoke a violent reaction.” His critique is understandable when it is discovered that Gooding shouted phrases like, “You son of a b****, I’ll choke you to death,” and, “if you ever put your hands on me again, I’ll cut you all to pieces” (Gooding v Wilson 405 US 518) while assaulting police. If these words do not constitute fighting words it becomes hard to imagine what it would take to fit the criteria.

A common characteristic of these cases is that they all involve altercations between police and the public. As government officials, free speech and criticism on the workings and dealings of police officers is a constitutionally protected right granted to every American, which could be why it seems so difficult to get a conviction to hold up. In light of recent events involving police and the killing of unarmed civilians, the importance of appropriately interacting with law enforcement is more relevant than ever, and while the fighting words doctrine continues to change, it is important to understand what is acceptable, and what could result in jail time, or worse. While fighting words have not been directly attributed to the incidents involving Mike Brown, Eric Garner, or Tamir Rice, the overall theme of interacting properly with authorities is prevalent. Other questions also arise, such as when is it appropriate for who to say what? In other words, are these rulings objective, or do the setting, time period, and people involved more directly influence whether or not a conviction will stick? Frazier was supposedly convicted due to the potential her words had at inciting the crowd around her to violence; Chaplinsky was convicted for disturbing the peace when he was merely speaking out on organized religion; both involved cursing at police officers. Wilson was legally protesting the war, but then assaulted and directly issued death threats to officers attempting to break up the protest. Were Wilson’s direct threats on authorities’ lives less of threat than Dorthea Frazier cursing and criticizing police and the work they were doing? An interesting afterthought is that Frazier and Chaplinsky were both minorities, and both had some of the only upheld convictions in fighting words cases. Sean Clark writes in his article that the fighting words doctrine has gone down a “twisted legal path”, and that the Supreme Court has had to continuously “narrow the fighting words doctrine and extend First Amendment protections to offensive or vulgar speech” (Clark). It is clear that courts are continuously redefining the fighting words doctrine, and it will be interesting to see how they continue to do so in the future.

Sports Franchises Call a Foul on Social Media

By Max McGee, Jon Dimuzio and Caralyn Dienstman

When Tyler Andersen of Jacksonville, Florida attended the 2013 NASCAR Daytona 500 on February 24th 2013 in Daytona Beach, Florida, he thought it would be another exhilarating eventful day that the young Florida State student would get to have during his college years. Looking back at that day, exhilarating is definitely a term that may be more of an understatement (Tompkins).

A car crash that injured 14 cars on the final lap and injured 33 spectators transpired right in front of Tyler and he did what any person would have done in this day and age. He took out his smartphone and documented what had occurred feet in front of him. He uploaded the video to YouTube (Tompkins).

NASCAR claimed copyright infringement, which prompted YouTube to take the video down, but the website soon reversed its decision.

NASCAR Vice President of Digital Media Marc Jenkins flat out admitted it used the assertion of a DMCA (Digital Millennium Copyright Act) copyright violation to have the video removed knowing full well no violation had been committed.

We found a way to get into contact Andersen on Twitter and we exchanged private messages of what he could recall from that day of controversy. Anderson stated, “You expect a few wrecks and some big ones with it being Daytona but you never expect something like that. Especially one that causes harm to the fans.” In this particular scenario, and many instances similar to it, social media poses a threat to the sporting industry. It is this threat caused by the recent social media phenomenon that has lead to fans signing over rights of their still images and video’s they gather from various games over to national athletic organizations like NASCAR.

The act of whipping out a smartphone at a moments notice to record any given live phenomenon has become almost second nature for most millennials. Uploading classic images and videos on social media, is a quick and easy way to gain attention and keep the public in the loop. Images such as those from a 2004 brawl that broke out during an Indiana Pacers vs. Detroit Pistons game, demonstrated the epitome of this behavior. The event has since been nicknamed the “Malice at the Palace” is immortalized online. The repeating .gif file is only a few clicks away to anyone with Internet access thanks to the fans and phones that were present to capture the epic moment. It seems copyright infringement actions are one way for professional sports teams to keep control of its product – however under the fair use exception, this tactic doesn’t always give clubs the control they want (Tompkins).

The Fair Use Doctrine outlines exactly what is acceptable when reproducing particular work. Under the Fair Use Doctrine four factors are considered when determining if an image or video has been uploaded fairly. The four factors considered include the following (Tompkins):

  •   “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes”
  •   “The nature of the copyrighted work”
  •   “The amount and substantiality of the portion used in relation to the copyrighted work as a whole”
  •   “The effect of the use upon the potential market for, or value of, the copyrighted work”

Going off of these four factors, the Daytona crash should not have been taken off of YouTube as it qualifies as “fair use.” Anderson posted video that was not intended to gain commercial profits or to exploit the NASCAR brand, but rather to report on a news incident. Although, Anderson had not originally intended to witness a horrific accident at a sporting event, he did, and therefore “fair use” should have been applied.In order to protect various works, the copyrighting laws hones in on creativity while not applying to ideas, systems and factual information conveyed. Focusing on those “fair use” credentials, NASCAR should not have removed the video from YouTube.

Controversy arose in this situation since Anderson was under the agreement that all footage captured belonged to NASCAR, because it was stated on the back of each his ticket. At the time the crash occurred, Anderson was unaware of this particular policy. Anderson said, “I’ll be honest with you. I didn’t know. But then again I wasn’t expecting that to happen. And I wasn’t the only fan either…I just got tweets telling me it was taken down by NASCAR for copyright.” Journalists and sporting leagues alike want to be able to protect their works and publications in order to make revenue. When it comes to sporting events, different organizations will take different approaches when it comes to regulating various social media and status updates.

The Premier League in the UK took more instantaneous action to control its images during the World Cup in Brazil. Although, legal action was threatened, similar to the Daytona event, there were too many postings for the league to monitor. Instead, videos were taken down from Vine, a smartphone app that enables users to upload six-second video clips. Officials of the Premier League came across clips of goals or highlights from random games on social media that were posted within seconds from when the action was actually broadcasted. The Premier League aggressively monitored the almost live posting to protect the value of the Leagues brand and the commercial rights associated with the brand (Wood).

Although copyright infringement during sporting events has been a long-lasting issue, the rise of Twitter has brought the issue to a whole new level. Erik Manassy, was one of the first die-hard sports fans to join Twitter back in 2006 when the site was first established. Manassy, a Jets fan, Tweets under the name “@e_man,” a handle that currently has over a million followers. Therefore, @e_man is capable of tweeting at least once every thirty seconds. Each tweet tracks and comments on players and plays alike. In 2011 Trustees of Columbia University published the Sports Leagues New Social Media Polices in the Columbia Journal of Law & Art. According to the Sports Leagues New Social Media Policy, “leagues can claim infringement where uploads originate from copyrighted material.”  If a follower is essentially tweeting a play-by-play of the game, then this could qualify as copyright infringement and is not protected under the Fair Use Doctrine. However, if posts are displaying facts then this is considered fair use. In this particular case the NFL went after Twitter, the hosting sight, rather Manassy’s millions of followers who had uploaded tweets. A notice and takedown features of the DMCA were invoked and the NFL succeeded in getting the tweets of the game broadcast, according to jetsrant.com (Hull).

According to ABCNews, There may be no use of film or tape of a game in any manner while that game is in progress.  The network telecasting the game has exclusive rights to that game while it is in progress. The website states that “These Film/Tape Usage Guidelines apply only to distribution via over-the-air or non-standard television. There can be NO use of film or tape of a game on any other media platform including, but not limited to, on a wireless platform or on an internet or online site EXCEPT that such film or tape may appear on an internet or online site only if it is part of a single, non-archived, online “simulcast” of a television station’s regularly scheduled news programming.  “Wireless platform” includes, but is not limited to, cellular, personal communication services and other methods of providing content to handheld digital devices, paging, specialized mobile radio and wireless internet (including Wi-Fi). (ABC News)

In plain English this means that if you are not the media, you should not be filming the game with your wireless device.

On YouTube’s website, they have statements regarding to what happens if there are copyright infringements. It says, “If you are a company and own exclusive rights to a large amount of content that requires regular online rights administration, you may want to apply for access to YouTube’s Content ID system or to our Content Verification Program.

From these various policy statements from organizations such as ABC News or YouTube, it seems the onus is on the individual league or franchise to police possible copyright infringements. Considering that almost everyone has access to use of social media that may be an exercise in futility.

Citations

ABC News. ABC News Network, n.d. Web.

Hull, Michelle R. “SPORTS LEAGUES’ NEW SOCIAL MEDIA POLICIES.”Columbia

Journal of Law & the Arts Spring (2011): 10-12.Http://www.wilmerhale.com/. Web.

Tompkins, Al. “Daytona Crash Video Tests Fair Use, Copyright for Fans and q   Journalists.” N.p., n.d. Web. 18 Dec. 2014.

YouTube. YouTube, n.d.

Wood, Pete. “The Premier League’s War against Its Fans Is

Unwinnable.”Http://www.theguardian.com/. N.p., n.d. Web.

The First Amendment Down on the Farm: the “Ag-Gag” Controversy

By Leah Ference and Alyssa Luchette

The name “ag-gag” is, in and of itself, indicative of what seems to be popular opinion on the issue of the bills that seek to police the act of recording on farms across the country. The term, coined by Mark Bittman in a 2011 article for the New York Times,[1] refers to laws which seek to protect the Agricultural industry (“big Ag”) by “gagging” journalists and other whistleblowers who would otherwise seek to report the conditions that animals are subjected to while living on farms.

Essentially, the laws, which claim to work to “protect family-owned and corporate farms,”[2] prevent citizens from taking pictures, video, or audio recordings on farms across the country, as well as from lying on job applications to work on farms “undercover” for the purposes of obtaining this information. In the past, journalists and other whistleblowers have released videos and documentaries featuring footage taken from farms, often depicting cruel and/or illegal conditions for animals. Animal rights activists release the footage in order to raise awareness, and this kind of reporting and dissemination of information has proven essential for that purpose.

In his book Eating Animals, Jonathan Saffran Foer outlines the difficulties he had trying to get even basic information out of the farm facilities, including seven unsuccessful attempts to obtain legal access, or even information, from Tyson Foods.[3] With these kinds of roadblocks in the way for the press, they are left with no options other than to go undercover. Beyond that, the ag-gag laws punish the general collection of information, not just undercover operations. The first person arrested under an ag-gag statute, Amy Meyer, was on public property in Utah when she decided to film the operations at Dale Smith Meatpacking Company in February 2013 [4]. So while other meatpacking operations have successfully sued undercover journalists for trespassing, this woman was on the public street, so there is no property issue present, and she was therefore arrested for generally collecting information.

A sponsor of HB683, an ag-gag bill that was introduced in Pennsylvania in early 2013, claims that “there has to be a certain degree of privacy when you own a farm,”[5] but his view, as illustrated by the nickname of the bills, seems to be the minority. The PA bill failed, and the ASPCA website lists only seven states which currently have ag-gag laws in effect.[6]

Arguably, the main First Amendment issue at hand concerning ag-gag laws is that making it a felony to videotape farms is a violation of the right to freedom of the press. Yale Law student Lewis Bollard’s award-winning essay argues that because ag-gag laws “significantly restrict the flow of information in the public domain,”[7] they disrupt the core values of freedom of speech. The public cannot discover the truth of the matter if the press is not allowed to report on it, and the ag-gag laws prohibit promotion of stable change by hiding the slaughterhouse policies that the public would not agree with.

Bollard argues that strict scrutiny should be applied to those laws since they are aimed directly at suppressing speech, the First Amendment being one of the most important rights guaranteed under the U.S. Constitution. Citing the Supreme Court’s decision in a 1993 case regarding religious animal sacrifice, he concludes that ag-gag laws are “underinclusive for any goal other than penalizing undercover investigators,”[8]because they specifically target reporting on farm operations, and do not expand their restrictions to other aspects of or participants in the process. His argument is that the laws are too narrowly tailored, instead of targeting the general act of trespassing on the farm’s private property; ag-gag laws specifically target the press’s ability to report on the day-to-day operations of the facility, and therefore specifically prohibit expressive speech. Natasha Khan explains that because they are specifically targeted at “whistleblowers,” these bills “create a chilling effect on what the public learns about animal cruelty;”[9] which also unconstitutionally limits freedom of the press.

Because of the widespread media disdain for these laws and the relatively low success rate at passing them, the chances that they will become commonplace in states across the country are arguably quite low. Animal rights groups such as the ASPCA routinely post updates on which states currently have legislation that has been introduced, and ask that their supporters campaign against the bills being signed into law.[10] Often, even states which do manage to pass ag-gag type laws only succeed in prohibiting whistleblowers from lying on applications in order to gain entry into farms for the purposes of filming illegal or unethical activity.[11] It is therefore likely that most attempts to pass laws that criminalize reporting of these activities will ultimately fail.

Sources:

Bittman, Mark. “Who Protects the Animals?” New York Times, April 26, 2011. Accessed November 2, 2014. http://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/?_r=0.

Khan, Natasha. “Bill Would Limit Whistleblower Activities on PA Farms.” Public Source. March 21, 2013. Accessed November 2, 2014. http://publicsource.org/investigations/bill-would-limit-whistleblower-activities-pa-farms#.VFblxPnF8p9.

Safran Foer, Jonathan. Eating Animals, (New York: Back Bay Books, 2009), page 84.

“Animal Legal Defense Fund Files Historic ‘Ag Gag’ Lawsuit.” ALDF. Accessed December 3, 2014. http://aldf.org/press-room/press-releases/animal-legal-defense-fund-files-historic-ag-gag-lawsuit/

“Ag-Gag Bills at the State Level.” ASPCA. Accessed November 2, 2014.https://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level.

Bollard, Lewis. “Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms.” Yale Law. January 1, 2012. Accessed November 2, 2014.http://www.law.yale.edu/documents/pdf/News_&_Events/BollardLewis2012Hogan-SmogerEssayContestWinner.pdf.

[1] Bittman, Mark. “Who Protects the Animals?” New York Times, April 26, 2011. Accessed November 2, 2014. http://opinionator.blogs.nytimes.com/2011/04/26/who-protects-the-animals/?_r=0.

[2] Khan, Natasha. “Bill Would Limit Whistleblower Activities on PA Farms.” Public Source. March 21, 2013. Accessed November 2, 2014. http://publicsource.org/investigations/bill-would-limit-whistleblower-activities-pa-farms#.VFblxPnF8p9.

[3] Safran Foer, Jonathan. Eating Animals, (New York: Back Bay Books, 2009), page 84.

[4] “Animal Legal Defense Fund Files Historic ‘Ag Gag’ Lawsuit.” ALDF. Accessed December 3, 2014. http://aldf.org/press-room/press-releases/animal-legal-defense-fund-files-historic-ag-gag-lawsuit/

[5] Khan, Natasha.

[6] “Ag-Gag Bills at the State Level.” ASPCA. Accessed November 2, 2014. https://www.aspca.org/fight-cruelty/advocacy-center/ag-gag-whistleblower-suppression-legislation/ag-gag-bills-state-level.

[7] Bollard, Lewis. “Ag-Gag: The Unconstitutionality of Laws Restricting Undercover Investigations on Farms.” Yale Law. January 1, 2012. Accessed November 2, 2014. http://www.law.yale.edu/documents/pdf/News_&_Events/BollardLewis2012Hogan-SmogerEssayContestWinner.pdf.

[8] Bollard, Lewis.

[9] Kahn, Natasha.

[10] ASPCA article, see citation #4.

[11] ASPCA article.

Tech Titans v. Big Brother: Do We Have the Right to Know Who’s Watching Us?

By Lauren C. Brown and Esther Katro

Twitter filed a lawsuit on October 7, 2014 against the Department of Justice and the Federal Bureau of Investigation over restrictions they placed regarding how much information Twitter can disclose to the public about the National Security Letters (NSL) requests it receives (Zetter). This First Amendment case, alleging illegal prior restraint, was brought forth to the U.S District Court in the San Francisco Division of the Northern California District. Twitter’s attorneys sought a declaratory judgment against the DOJ and FBI, stating Twitter is “requesting relief from prohibitions on its speech in violation of the First Amendment” (Miller 2). It argues in the request that the U.S. government was not specific enough in what kind of speech Twitter is prohibited from publishing concerning the NSL requests it received.

Twitter, along with other electronic communication services like Yahoo! and Google, received a Deputy Attorney General (DAG) Letter, a type of gag order, saying it could only publish a certain range of how many surveillance reports it receives. For example, Twitter could only publish the number of reports received in a range of 0-999. On April 1, 2014, Twitter submitted a transparency report to the FBI and DOJ, which stated the type and amount of surveillance requests it receives, in hopes of publishing the report to its users. This report did not follow the provisions of the DAG Letter. Five months later in September, the defendants responded to Twitter and said, “Information contained in the [transparency] report is classified and cannot be publicly released.” Twitter argues that this response is too vague, as it does not specify which information is classified, which also prohibits the company from publishing any aspect of the report. The company claims this is an illegal prior restraint, as the gag order is too broad and does not serve a compelling governmental interest. The judgment also states, “the Federal Bureau of Investigation reiterated that Twitter could engage only in speech that did not exceed the preapproved speech set forth in the DAG Letter…Imposition of the requirements set forth in the DAG Letter on Twitter violate the Administrative Procedure Act.” Twitter seeks agreement of this (Miller 2-5).

Under the NSL statute and the Federal Stored Communications Act section 2709, the FBI is authorized to issue NSLs to electronic communication services like Twitter to disclose subscriber information and toll billing records information in the hopes of preventing international terrorist attacks or clandestine intelligence activities. It also imposes that these services cannot disclose the information the government seeks to the public. This nondisclosure obligation is imposed by the FBI unilaterally without prior judicial review. Twitter argues that this nondisclosure order is unconstitutional under the First Amendment because it prohibits electronic communication services like Twitter from publishing important and essential information to the public. The complaint says these nondisclosure provisions “are not narrowly tailored to serve a compelling governmental interest, including because they apply not only to the content of the request.” Twitter seeks the following in the case: a declaration that the FBI, DOJ and related parties have violated its First Amendment rights under the prior restraint clause; an injunction against these parties so that Twitter may publish parts/all of its transparency report with receiving punishment or criminalization; compensation for this violation of its First Amendment rights; and any further action that its lawyers see fit (Miller 3-5, 17-18).

Similar cases have been brought up regarding First Amendment Rights with companies such as Google, Facebook, Microsoft, and LinkedIn. On June 18, 2013, Google filed a motion for declaratory judgment, arguing it had a First Amendment right to publish two aggregate unclassified numbers about its NSL requests that were prohibited from publishing. In January 2014, Google and DOJ made a compromise, where Google and other companies would dismiss the FISC actions against the government in return for the Department of Justice’s agreement that the companies could publish information about the U.S. government surveillance of their networks in one of two preapproved disclosure formats. Separately, at least two U.S. District Courts have found the nondisclosure provision under FISA to be unconstitutional under the First Amendment (Miller 3).

The court is likely to rule in favor of Twitter in the case, because according to Twitter, “this prohibition on Twitter’s speech is not narrowly tailored to serve a compelling governmental interest, and no such interest exists that justifies prohibiting Twitter from disclosing its receipt (or non-receipt) of an NSL or the unlimited duration or scope of the prohibitions” (Miller 17). If the court agrees that the relevant issue is whether the DAG letter in its current form represents an illegal prior restraint, the government will first have to prove that there is a clear and present danger in informing the public of the NSL requests. In other words, the amount and type of information the requests try to obtain from Twitter must disrupt public safety and national security. If there would be no such issues with public safety and national security after the public is informed about the requests, then the analysis will stop and Twitter will win the case. However, if the government can prove that there is a clear and present danger in informing the public of the requests, then it must prove next that the speech, or Twitter’s public release of the NSL requests, is the cause of the danger. If the government can prove this, then it will have to also prove that the speech will not stop the danger. If the government proves that the speech will not stop the danger, it must then find that there are no alternatives to stopping the speech other than prior restraint. Finally, if the government proves that there are no alternatives to the prior restraint, it must prove that the terms of the prior restraint, or DAG letter, are no broader than necessary (Hopkins 67-68). In this case, and to the argument of Twitter’s lawyer, the DAG letter was not narrowly tailored and was vague in how many requests Twitter could release. In addition, it will be difficult for the government to prove that there is a compelling governmental interest in prohibiting Twitter from publishing the amount and kind of requests it receives.

Bibliography

Hopkins, W. Wat. “Chapter 4: Prior Restraint.” Communication and the Law. Northport, Ala.: Vision, 2014. 55-73. Print.

Miller, Eric D., Michael A. Sussman, James G. Snell, and Hayley L. Berlin. “COMPLAINT FOR DECLARATORY JUDGMENT, 28 U.S.C. §§ 2201 and 2202.”

COMPLAINT FOR DECLARATORY JUDGMENT, 28 U.S.C. §§ 2201 and 2202 (2014): 1-19. Case No. 14-cv-4480. Perkins Coie, LLP, 7 Oct. 2014. Web. 4 Nov. 2014. <https://g.twimg.com/blog/blog/attachments/Complaint.pdf>.

Zetter, Kim. “Twitter Sues the Government for Violating Its First Amendment Rights.” Wired.com. Conde Nast Digital, 05 Oct. 0014. Web. 04 Nov. 2014. <http://www.wired.com/2014/10/twitter-sues-government/>.

U.S. Supreme Court Takes up Religious Expression Behind Bars

By Marissa Miller and Alexandra Gentille

The United States Supreme Court has agreed to decide what kinds of inmate religious freedoms prison officials can restrict to provide a risk free environment.  On Oct. 7, 2014 the United States Court of Appeals for the Eighth District heard a federal case involving a Muslim inmate’s religious freedom and an Arkansas correctional facility’s grooming policy. Gregory Houston Holt, also known Abdul Maalik Muhammad is the plaintiff who brought to court defendant Ray Hobbs the Director of Arkansas’ Department of Correction. The high court was asked to decide whether or not Arkansas’ prison policy which banned Holt’s religious one-half-inch beard complies with the Religious Land Use and Institutionalized Person Act (RLUIPA) of 2000.
Holt has filed a lawsuit against the Arkansas correctional facility where he was detained when they denied him permission to grow out his beard for his Muslim religion. The facility does not allow inmates to have facial hair longer than a quarter inch. An exception to the prison’s policy would only be made if a doctor diagnosed an inmate with a skin condition. Holt used the RLUIPA Act to defend his case.
The RLUIPA Act says that, “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution.” The Arkansas prison must prove that its grooming policy is of a “compelling government interest” and is “necessary and narrowly tailored” as described by strict scrutiny judicial review to restrict Holt from having a long beard.
Arkansas prison administrators are likely to argue several persuasive government interests in the Holt v. Hobbs case. They are concerned about lengthy facial hair interfering with serious skin conditions and inmates changing their appearance to escape confines of the prison. Plus, prisoner officials worry about safety and security because inmates could conceal weapons and other contraband in their hair. The Arkansas correctional facility has to figure out if their grooming policy is the least limiting way to deal with inmate beards.
As of today, forty three U.S. states allow prisoners to grow their facial hair. Prisons in those states have not dealt with a large number of challenges that Arkansas correctional facility proposed long beards would cause in jails and among inmates.
In a Holt v. Hobbs brief two timely cases from districts in close proximity to the Eighth are listed under the table of authorities; Yellowbear v. Lampbert and Cutter v. Wilkinsin. In 2013 a U.S. Court of Appeals for the Tenth District  ruled in favor of Andrew Lambert, an inmate who filed a lawsuit against a Wyoming prison because it violated the RLUIPA Act by not allowing him to exercise his Native American religious tradition of using a sweat lodge. In 2005 the Supreme Court of the United States decided that in the Cutter v. Wilkinsin case that an Ohio prison violated the RLUIPA Act because it didn’t “accommodate nonmainstream religions” of inmates.
In the past, prisons had a hard time meeting its burden of showing its policy was the “least restrictive means necessary to further its compelling interest.” Based on cases that have been decided involving the RLUIPA Act in nearby U.S. Court of Appeals District Courts the Eighth district court is likely to rule in favor of inmate, Gregory Holt so he can freely exercise his Muslim religion by wearing a long beard.
Alabama and 17 others states filed a brief in the U.S. Supreme Court in which they support Arkansas prison administrators defense that its inmate grooming policy is needed to have safe space in the correctional facility.
Law professor and legal representative of Holt, Douglas Laycock, said that lower courts have been dismissive of RLUIPA cases. He said that the Holt v. Hobbs case was taken by the U.S. Court of Appeals for the Eighth circuit as an opportunity for the high court to take a religious provision of RLUIPA seriously. Alabama Solicitor General Andrew Brasher explained that there is a big difference between religious freedom of individuals in and out of a prison.
Prison officials must maintain order and safety among inmates. Enforcing facility policies is their way of asserting power to keep uniformity. Even though inmates do not have full Constitutional rights, the Equal Protection Clause of the 14th Amendment applies to prison inmates as well as the Model Sentencing and Corrections Act which gives some protection from discrimination on the basis of race, religion, national origin, or sex. However, inmates have limited rights to speech and religion.
In the Holt v. Hobbs case the court did not give deference to Arkansas’ correctional facility. The prison’s grooming policy prevented Holt from having a long religious beard which violated his Constitutional First Amendment right of freedom of religion. The U.S. high appellate court must use strict scrutiny judicial review when deciding the case by early in the next year of 2015.
Works Cited
Borkoski, Kali. Shave and a haircut: Prisoner grooming and RLUIPA (Video), SCOTUSblog, (Oct. 5, 2014, 10:55 PM), Web. Oct. 27, 2014. http://www.scotusblog.com/2014/10/shave-and-a-haircut-prisoner-grooming-and-rluipa-video/

 

Buckley, Ellen. Tenth Circuit: Summary Judgment for Prison Officials in RLUIPA Sweat Lodge Case Vacated, CBA CLE Legal Connection, N.p., (3 Feb. 2014), Web. Oct. 27, 2014. http://cbaclelegalconnection.com/2014/02/tenth-circuit-summary-judgment-prison-officials-rluipa-sweat-lodge-case-vacated/.

Cutter v. Wilkinson. The Oyez Project at IIT Chicago-Kent College of Law, N.d., Web. Oct. 27, 2014. http://www.oyez.org/cases/2000-2009/2004/2004_03_9877.
Denniston, Lyle. Argument report: Trouble at the lectern, SCOTUSblog, (Oct. 7, 2014, 12:46 PM), Web. Oct. 27, 2014. http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/
Hopkins, W. Wat. “Chapter 3 Conduct and Speech.” Communication and the Law, (2014 ed. Northport, Alabama: Vision, 2014), 46. Print.
Howe, Amy. Beard ban under fire: In Plain English, SCOTUSblog, (Oct. 7, 2014, 5:34 PM), Web. Oct. 27, 2014. http://www.scotusblog.com/2014/10/beard-ban-under-fire-in-plain-english/

 

Howe, Amy. Court to consider prison beard ban: In Plain English, SCOTUSblog, (Oct. 3, 2014, 12:02 PM), Web. Oct. 27, 2014. http://www.scotusblog.com/2014/10/218456/

No.13-6827 In the Supreme Court of the United States. Gregory Houston Holt A/K/A Abdul Maalik Muhammad, petitioner v. Ray Hobbs, Director, Arkansas Department of Correction, et al., Respondents. On writ of certiorari to the United States Court of Appeals for the Eighth Circuit. Brief for the Petitioner, SCOTUSblog: Supreme Court of United States Blog.com, (May 22, 2014), Web. 27 Oct. 2014. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/05/13-6827-ts.pdf

“Prisoners’ Rights.” LII / Legal Information Institute, N.p., n.d., Web. Oct. 27, 2014. http://www.law.cornell.edu/wex/prisoners_rights.