The Internet and Steady Vigilance

The U.S. Constitution is a living document.  It has to be, because things like the internet were not present when the original document was written.  How the first amendment (and rights generally) apply to the modern world is something that must develop over time.  Eternal vigilance is required because the world is changing, and threats to liberty come from new directions.  In any case, I am interested in free speech around the world, not only in the United States.

The situation here is explained well in "Am I Making Myself Clear: A Scientists Guide to Talking to the Public" (by New York Times writer Cornelia Dean Amazon).

Beginning in the 1960s, the Supreme Court expanded the First Amendment's prohibition of government interference with the news media.  Far from merely prohibiting government "prior restraint" — blocking journalists from giving their news — the Court embraced the idea that free and robust news media were crucial for democracy.  As a result, it protected news media from libel suits unless journalists' actions were dishonest or flagrantly negligent.

The result is a media environment unique in the world, one in which the press is unusually free.  Libel laws are construed to give responsible journalists a pass if, through an honest mistake, they defame a government official or other person involved, willingly or not, in an issue of public importance.  The Court reasoned that penalizing journalists for honest mistakes would stifle their reporting.  

Cornelia Dean's book is not about freedom of the press (it is about science writing), but the synopsis I quoted is a very nice summary.  One point that it raises is that rights are in conflict.  She continues

And so, in the United States, there is no national union of journalists to which we must belong, no licensing authority, no nothing.  In effect, people are journalists if they declare themselves to be journalists.¹ As a journalist, I embrace this press freedom. But it comes at a price. Innocent people who suffer from journalist's innocent mistakes may have little recourse. The absence of licensing requirements for reporters means that people can report on whatever they want, whether they know anything about it or not. The result can be incompetent reporting.

To what extent do press freedoms extend citizen bloggers? (Her footnote is to Scott Gant's "We're All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age").  To what extent is privacy necessary to free speech on the internet?  Do the biggest threats to internet freedom come from governments?  From internet service providers?  From other corporations?  The internet has replaced the press, but it is not the same thing.  I am interested in how this plays out over time.

Maryland is bringing felony charges for videotaping

From the Kojo Nnamdi show on WAMU (Wednesday):

The state of Maryland has one of the most rigid laws prohibiting wiretapping. But advocates say those rules need to be rewritten in an era of cellphone cameras and YouTube. And they point to a growing list of controversial news stories and viral videos involving police actions in the Old Line State. We'll look at the strengths and limitations of the current rules, and whether recording devices are changing police practices.

The amazing thing is that the Maryland police have an exception that allows the them to make a videotape, but citizens cannot.  The Maryland state police did not participate in the show, but Joseph Cassilly, the state's attorney for Harford County, did.  Kojo and his other guests (David Rittgers of the CATO Institute and David Rocah from the ACLU) agree that Maryland is overreaching.  Maryland's interpretation of the law would permit anyone whose conversations are recorded and put up on YouTube to charge the videotaper with a felony (if they could argue that they had a reasonable expectation of privacy).

Do you think that this was a private conversation?

Companies that use lawsuits to stifle criticism

The New York Times had an interesting article this morning illustrating how corporations can use their deep pockets to stifle criticism ("Venting Online, Consumer Can Find Themselves in Court").  Apparently, T&J Towing, of Kalamazoo, Michigan, is abusing the legal system, suing a consumer (Justin Kurtz) for $750,000 in damages after he complained online about mistreatment (on Facebook).  This sort of thing is known as a strategic lawsuit against public participation, or Slapp.  It sounds like T&J Towing has some sort of arrangement whereby they can tow cars that they think are violating some law, without any hearing or judgement by a disinterested party.  They charge the owner of the towed car for the towing, and it doesn't matter if the car was legally parked ("The towing company’s lawyer said that it was justified in removing Mr. Kurtz’s car because the permit was not visible."  I wonder if "not visible" means that the tow truck driver did not bother to check.).  The point here is that companies have a lot more money than individuals.  They can and do use frivolous lawsuits to punish critics. 


I suspect that the city of Kalamazoo has the power to revoke T&J Towing's authority to tow.  After all, it's most often municipal codes that are being enforced.  The consistent stories I'm seeing on the Facebook site make me think that the appropriate city officials will have to respond to their citizens and T&J Towing will probably be shut down.


This case illustrates the power of companies to abuse the legal system and stifle criticism.  I am interested in how it turns out.  It has broader implications affecting the rights of consumers to honestly share their experiences online.