True Threats, Free Speech, and Government Trust: the case of Cameron D’Ambrosio

The Center for Rights, a nonprofit civil liberties organization, is running a campaign to raise awareness of a legal case in Boston that seems to disregard basic First Amendment protections. (The Center for Rights is the 501(c)3 sister of Fight for the Future.)

As usual, the defendant in a free speech case happens to be unsympathetic, and the speech is poor taste, but the First Amendment doesn’t let you throw unsympathetic kids in prison for poor taste.

From the facts recounted by the organization, a teenager named Cameron D’Ambrosio posted a rap song on Facebook that bragged he would be more famous than the Boston Marathon bombers and apparently criticized the White House. As a result of those lyrics, the kid has been in jail for a month and is facing 20 years in jail for “communicating a terrorist threat.”

First Amendment Would Protect Rapping this Song Lyric

I haven’t had a chance to review all the material out there, but everything I’ve read suggests that the First Amendment protects this kind of speech and the kid shouldn’t be sitting in a jail cell.

According to Fight for the Future, the rap line was fairly harmless: “Fuck a Boston bominb wait till u see the shit I do, I’ma be famous rapping.” Some media reports apparently left off the word “rapping,” suggesting that he wanted to become “famous” through his own bombings.

If he said he’d be famous rapping, there is no way that’s a threat, even if it’s a tasteless comparison.

If the rap song suggested he’d become famous bombing stuff, I am not totally sure how that is a threat and not the standard stuff of rap songs. I know that gun violence doesn’t trigger the same angst as bomb-violence (even if there’s more gun violence), but rappers say tasteless violent things all the time–we all know the expression “bust a cap in his ass” for a reason, and that reason is excellent rap music. We all know Eminem raps about killing an ex wife named Kim, and has an ex wife named Kim… Rap music is full of references to violence and slaying rival sucker MCs, usually with guns, only sometimes with bombs apparently.

In light of the obvious context, the legal analysis would probably begin and end with the Supreme Court case of Watts v. United States. That case stands for the principle that political speech is protected but a “true threat” is not.  In Watts, a Vietnam protestor said that if he were drafted to fight in the war, and made to carry a rifle, “the first man I want to get in my sights is L. B. J.” That was ruled protected political speech because it wasn’t a “true threat.” The analysis turns largely on the notion that a reasonable listener would not consider it a true threat of violence.

We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

The rap song here appears to also be general political (or cultural or counter-cultural) speech and not a true threat of violence.

Government Trust At Stake

I emailed a few First Amendment scholars to see what they thought of the facts of the case. One told me she was troubled and asked how she could help. The other said, effectively, that “the government must know something we do not,” and is otherwise acting “insane,” though perhaps not for the first time. Around the same time I received the email from the second scholar (the one who assumed the government “knew something”), I read an email from a friend explaining that he had been on a grand jury and the jury would indict often based on the idea that the prosecution “must know” something they couldn’t tell the jury.  And these two bits of information reminded me of what several people told me in the run-up to the Iraq War, when there was some doubt we would find weapons of mass destruction based on the available evidence. People would say, “the government must know something they’re not sharing with us.” In short, just trust the government.

I am not so sure American citizens are going to continue “just trusting” their government without evidence in light of recent history, but “government distrust” is generally considered a core principle of the First Amendment in cases such as this one.

If the prosecution has evidence of a planned bombing, beyond an apparently misinterpreted lyric, the prosecution should make that as public as possible.

Despite the alarm after the terrible bombing, this completely unrelated kid has been in jail for over a month and faces 20 years in prison apparently for what the Supreme Court would call a very “crude” and “offensive” expression, not what seems to be a true threat.

Note: I am on the Board of Directors of the Center for Rights.

How Local Communities Can Become More “Fiber-Friendly”

Yesterday, the Fiber To The Home Council (FTTH Council) issued a report describing how communities can take steps to make fiber-to-the-home for their residents a reality. While most of today’s broadband providers house fiber connections in only parts of their networks, fiber-to-the-home providers bring those rapid connection speeds all the way to your front door.

The report’s recommendations include easing regulatory burdens on fiber providers and speeding up permit reviews and other bureaucratic processes, making existing infrastructure that can be used for fiber deployment (like utility poles and public rights-of-way) available to providers on fair terms, and ensuring that community-wide infrastructure is adequately maintained for use by providers. The report emphasizes that while deployment of fiber-to-the-home is a costly undertaking, these steps can give communities hoping for that deployment an edge in attracting providers to their areas.

You can read the full report here.

Today’s Free Speech Lawyers

I have been invited to write an article for Harvard Law Review‘s 2014 symposium on freedom of the press. I’m honored for the opportunity to contribute.

The symposium will coincide with the 50th anniversary of the pivotal Supreme Court case New York Times v. Sullivan.

What interests me, fifty years after Sullivan, is how much the life of a free-speech lawyer has changed. The archetypical First Amendment lawyers of that era represented newspapers like the New York Times against libel suits like Sullivan’s in the US. The archetypical First Amendment lawyers of today, it seems, represent speech platforms like YouTube, Twitter, Tumblr, Wikipedia, and Automattic/Wordpress.com on a range of matters, from usage policies and privacy to copyright, and regularly address global issues.

Much of the leading thinking on freedom of press in the Internet age comes from academics like Jack Balkin, Yochai Benkler, Edwin Baker, Larry Tribe, Larry Lessig, Susan Crawford, Eugene Volokh, Greg Magarian, Danielle Citron, and many others. At the same time, alumni and current lawyers at the Office of Communication of the United Church of Christ, Media Access Project, Free Press, ACLU, the Electronic Frontier Foundation, CDT, PK, and many others, have helped to steer the future of free speech.

But corporate lawyers spearheaded the free speech triumph of New York Times v. Sullivan and I’ve been thinking how today’s lawyers at Google/YouTube, Twitter, etc. are their heirs in many ways. In this article, I’m hoping I can shed some light on if, how, and why that is. Or, as I often do while writing, I may change my mind.

Tech companies like Google and Twitter aren’t perfect, just as The New York Times and Wall Street Journal aren’t perfect. Yet, just as large corporate newspapers often have economic incentives to support freedom of press principles, so do today’s speech platforms. The unofficial tagline of Twitter is “The tweets must flow.” Journalists have profiled several of its speech lawyers as speech “defenders.” Google often hires lawyers with a background in free speech to design usage policies and address speech-threats abroad. Some of the most important free-speech controversies over the past few years have included hate speech on Facebook, the Innocence of Muslims on YouTube, the “blocking” of pro-choice text messages on Verizon, controversies over network neutrality and discrimination against speech technologies, proposed copyright legislation like SOPA/PIPA affecting Internet users and search engines, and the private/public blockading of Wikileaks. One difference between newspapers and speech platforms, of course, is that companies like WordPress.com and Google generally carry the speech of others, not the speech journalists who work there. Other differences include varying areas of law, the myriad judicial bodies at home and abroad that are more likely to affect global tech companies than city-based newspapers, and today’s potentially different norms and concepts that shape the field.

At this point, I plan to contrast and compare the role of tech lawyers in the development of free-expression doctrine with that of newspapers a half-century ago. I will probably focus on companies for whom I do legal work (or that employ friends who will speak with me). I also plan to interview lawyers at traditional publications like The New York Times, the Washington Post, and The Atlantic–partly because these traditional publications have a new set of challenges in the Internet age.

This is a topic I’ve discussed in my book (here) and something that Jeff Rosen has written admirably about, most recently in a New Republic article called the Delete Squad. Rosen once interviewed me for an article and called a legal case I handled “a model for the free-speech battles of the future,” so I’m guessing this article will give me the chance to interview him back.

Oh, and I should note, the companies I do some work for include Google and Dropbox, among others. And my work for them tends to focus on public policy and freedom of speech.

Anticipating Today’s Hearing on Copyright Reform

In late April, the Chairman of the House Judiciary Committee Rep. Bob Goodlatte (R-VA) announced he intended to tackle copyright reform over the summer. Later today, the Judiciary Committee’s Subcommittee on Intellectual Property will hold its first hearing to address the subject, entitled “A Case Study for Consensus Building: The Copyright Principles Project.”

Today’s hearing will be worth watching, and could mark the beginning of efforts to enact meaningful reforms to our copyright system.

Congress has seemed reluctant to tackle copyright issues since the widespread blowback it received in 2011 and 2012 over SOPA and PIPA, controversial copyright legislation that many argued went too far to enforce copyright protections.

Already there’s been a great deal of speculation as to how the Judiciary Committee will approach copyright reform. Mike Masnick at Techdirt, who extensively covered the SOPA / PIPA bills, expressed cautious optimism about these hearings, and saw the subcommittee’s selection of witnesses for this first hearing as a promising sign that it wants to handle reform in a prudent manner.

Still, there has been a certain level of skepticism about the hearing. Mark Hachman at ReadWriteWeb expressed concern that Chairman Goodlatte’s past support for SOPA and CISPA means the Judiciary Committee as a whole will be unable to strike the right balance between ensuring compensation for copyright holders and ensuring innovation in new technologies and services continues, and will favor the copyright community’s interests over others.

David Lowery, a musician of Cracker and Camper Van Beethoven fame, wrote in Politico that he fears the views of the actual content creators will be ignored in this hearing. He argued that the perspective of the artists is crucial to meaningfully addressing problems in the copyright system and developing solutions to them, adding that he expects Chairman Goodlatte to include that community in future hearings.

There have also been calls for the subcommittee to not lose sight of the public’s importance during these hearings. Public Knowledge’s Sherwin Siy said that while the organization lauds the Judiciary Committee for addressing copyright reform, copyright law “can often be a barrier[] to everyday individuals’ ordinary uses of media,” and that Congress should “work to balance the interests of artists with those of their audiences and the public in general.”

While this is only the first in a series of hearings on copyright reform, concerns that Congress will ignore the views of the content industry, the tech community, or the general public are to be expected. No doubt we can expect to hear more from all sides as the Judiciary Committee continues its work on the issue.

Indeed, despite concerns about Congress’s ability to address copyright matters in a balanced way, Chairman Goodlatte’s reform effort could prove to be a positive step. Instead of rushing headlong into another effort to pass legislation (as some, including us, might argue was the case with SOPA), the subcommittee is taking a look at how the current copyright system is functioning, what is working well, what isn’t, and where there might be some areas of agreement so meaningful reform can occur. Chairman Goodlatte said that the goal of these hearings “will be to determine whether the copyright laws are still working in the digital age to reward creativity and innovation.”

Chairman Goodlatte and his subcommittee will have assistance from other quarters as well. On May 2, the National Academy of Sciences Board on Science, Technology, and Economic Policy (STEP) published a report entitled “Copyright in the Digital Era: Building Evidence For Policy.” Although the report was not designed to give recommendations to Congress, it is aimed at identifying data lawmakers need to make informed policy decisions. But the report makes clear that we need much more data about how the copyright system operates in practice to identify areas that need work and being devising solutions.

Given Chairman Goodlatte’s stated desire to learn rather than quickly advance a legislative agenda, today’s hearing should be a good starting point for addressing copyright reform issues.

Testifying before the subcommittee are Jon Baumgarten (former General Counsel of the U.S. Copyright Office), Laura Gasaway (UNC Law School Professor), Daniel Gervais (Vanderbilt Law School Professor), Pamela Samuelson (UC Berkeley School of Law Professor), and Jule Sigall (Assistant General Counsel for Copyright at Microsoft). All five witnesses are also members of the Copyright Principles Project, an effort launched in 2007 to bring together copyright practitioners, academics, and stakeholders to identify possible areas of agreement on how to improve the copyright system. In 2010 the Copyright Principles Project issued a report outlining 25 recommendations for reform, including encouraging registration of copyrights (not a requirement under current law), increasing the Copyright Offices technical and economic expertise, and a number of suggestions relating to the award of damages in infringement cases.

The hearing will begin at 2 pm – you can watch here.

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Google Glass Ready for Shipping

Google announced that it will release Glass devices in waves to its program for Explorers–notably developers.

I’ve been reading quite a bit about Glass, first with an eye towards public policy (privacy, data, etc.) and then with an eye to user experience.

User experience because two weekends ago I took part in a Startup Weekend competition. Our team included two designers plus two Google Pioneers. Pioneers, a smaller group than Explorers, are developers who were invited to one of two Google Glass hackathons. One of our Pioneers had even won a prize at the New York Glass hackathon.

After everyone on the team watched Timothy Jordan’s SXSW speech about developing for Glass, our team spent a lot of time thinking about how people will use Glass and how it may change our lives. We have continued thinking about this question since the competition.

We organized the Google Glass DC Meetup group to bring together the folks in DC who are excited about Glass. Several Pioneers and Explorers will be there. Those in DC should join.

(Oh, and with so much talent on our team, our project ended up winning the Startup Weekend competition with an instant-help app. It was my second Startup Weekend and I am a big fan of that organization and recommend others try it.)

Economic Argument for Updating Privacy Laws

Luke and I published this piece in Politico today, arguing that our current surveillance laws, and the global perception of the USA PATRIOT Act, ECPA, and FISA, hurt our nation’s global competitiveness. It’s not just a civil liberties issues, but also an economic one.

Supreme Court Victory: You Buy It You Own It

Supreme Court rules for the public–not textbook publishers and foreign manufacturers–in Kirtsaeng v. Wiley. The publishers had argued that anything made abroad (from an iPod to a Toyota to a shampoo bottle) that has a copyright logo on it can never be resold or lent to anyone without the copyright-holder’s permission. It would have been modern “stuff-feudalism.” We wouldn’t own the physical stuff we bought. We’d be renters.

The Court rejected that argument, resoundingly in the opinion’s language, and by a 6-3 vote. 

Here is the opinion

Latest News: This Week in Law and Techdirt Post

On Friday, Marvin was a guest on This Week in Law, a weekly webcast focused on the latest technology-related legal news. Among the topics discussed was the legal trouble facing transportation apps like Uber, SideCar and Lyft, a topic Marvin covered in this piece on Slate. You can watch the full show below:

Over the weekend, Marvin had a guest post on Techdirt, discussing his favorite posts of the week. Check it out here.

Defining Innovation at SXSW

While attending SXSW, Marvin dropped by the Fast Company Grill. Some of the attendees were asked for six-second definitions of innovation. There are some great offerings from Newark Mayor Cory Booker, Microsoft’s danah boyd, SoundCloud’s Ben Fawkes, and Girls In Tech’s President Kate Brodock.

Check out Marvin’s video below:

Curb Your Partisanship

For the past several years, I have been impressed by how much Democrats and Republicans agree on the importance, in principle, of supporting high-tech entrepreneurship. (It’s one theme of my book.)

This bipartisanship was on display last week, when 33 startups flew into Washington, DC to meet with White House officials and Congressmen. The fly-in day was called “Startup Day on the Hill” and was organized by Engine Advocacy, a group that helps give startups a voice in DC and has 500 startup members. (I’m on Engine’s Steering Committee and am a big fan.)

This video clip is from the “Demo” event on Tuesday, where startup founders displayed their companies to members of Congress and their staff,  demonstrating to those in DC that not all companies are lawyered-up/lobbyist-retaining giants.

We had some remarks from Senator Jerry Moran, a Republican from Kansas, now a major champion of high-tech entrepreneurship. For those unfamiliar with Sen. Moran, he is now a lead sponsor of Startup Act 3.0 and years ago was the first Republican Senator to join Senator Ron Wyden (D) in opposing SOPA/PIPA.

This video is a fairly amusing depiction of this bipartisanship on tech issues–a bipartisanship that has extended from the days of SOPA to ECPA reform to Aaron’s Law addressing the CFAA. I am hoping this bipartisanship is extended and strengthened.

In the video, Senator Moran, a Republican, is giving some advice to startup founders. A bearded Mike McGeary, Engine’s Director and someone who worked on Howard Dean’s 2004 campaign, is listening on. The camera then pans to me, the clean-shaven guy in a striped green tie who was a tech advisor to the Obama campaign in 2008. And then it pans to Grover Norquist, champion of the “Taxpayer Protector Pledge,” someone who understands that entrepreneurship drives economic growth, and that economic growth is key to balancing the spending/revenue equations. So we all stand on the same side to support tech innovation, if from slightly different perspectives.

The entire crowd was politically mixed, matching folks on opposite sides of the political aisle.

Hat tip to Daniel Schwartzbaum, who really created the video, and also to the folks at Engine.

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