free speech

The New York Times' Farhad Manjoo writes that the right to be forgotten--or, more specifically, the right requiring search engines to erase the online search results about European citizens in favor of their privacy--could spread to the United States. For example, a French regulator has ruled that all of Google's sites, including American versions, should grant the right to be forgotten on Google sites that are not country specific.

The United States and Europe, which have consensus on what constitutes copyrighted content, do not have the same consensus on what should be private information, Manjoo writes. But the law on which the right to be forgotten in Europe is based has no territorial restrictions.

The U.S. Court of Appeals for the Sixth Circuit has struck down a ban in Michigan on outdoor charity collection bins, the Michigan Radio Newsroom's Virginia Gordon reports. The appellate court ruled that the ban likely violates the free speech rights of Planet Aid.

NPR's Kenya Downs mused in a recent post whether the fight over the propriety of the Washington Redskins' trademark could end up changing this body of law. After years and years of efforts by American Indian activists to have the trademark canceled on the grounds that it is racially offensive and disparaging, petitioners won the cancellation of the trademark and the U.S. Department of Justice also has decided to intervene in the lawsuit. The team's owner argues that the Lanham Act, which prohibits disparaging trademarks, is too vague and an unconstitutional impediment to free speech, but trademark attorneys told Downs that the First Amendment challenge to the Lanham Act will be a tough sell. However, lawyers said the case's outcome, whether the football team wins or not, will impact whether ethnic groups can challenge trademarks as offensive.

The U.S. Supreme Court will be getting an education on "the rhythmic, slangy — sometimes violent — poetry of rap music" as it considers the standard by which violent speech can be judged as a true threat this term, The National Law Journal's Tony Mauro reports. Elonis v. United States, which is set for argument December 1, "asks whether the online posting of threatening language like that found in rap lyrics violates a federal law against transmitting 'any threat to injure the person of another' across state lines," Mauro further reports. Anthony Elonis was convicted of threatening law enforcement, his spouse and others from the rap-like posts he made on Facebook. Elonis argues that pure speech must be judged by a subjective intent standard, but the government says it only needs to prove that a reasonable person would view speech as a true threat.
 

The Dallas Morning News reports that prosecutors have moved to drop most of the charges against journalist and activist Barrett Brown related to posting stolen data online. They want to drop all but one of 12 charges "accusing him of trafficking in data, including credit card numbers, that was stolen from private intelligence firm Stratfor" by hackers, the Morning News says. "He had faced charges of aggravated identity theft and device fraud in a case that has received national attention for its free speech implications," the Morning News also says.

Lawyers for the libertarian Institute for Justice wrote in a New York Times op/ed that the Ninth Circuit was wrong to rule against First Amendment challenges to a "California law that prohibits licensed medical providers from using talk therapy to try to change a minor’s sexual orientation." The Ninth Circuit found that such therapy is “conduct,” not “speech,” according to the piece. The risk of allowing such a ruling to stand is that labeling expression as conduct, not speech, allows the goverment to regulate expression in any which way, Institute for Justice argues.

California has passed a law to criminalize, as a misdemeanor, posting "identifiable nude pictures of someone else online without permission with the intent to cause emotional distress or humiliation," The Guardian reports. The ACLU opposed the legislation on free-speech grounds.

Tech firms, including Yahoo and Facebook, want to be able to disclose more on the requests they receive from the government for Internet surveillance of Americans. The reason for not doing more earlier, the Yahoo CEO said, was the risk of committing treason and being imprisoned for it. In court, Yahoo is arguing that not being allowed to engage in the dialogue on surveillance or respond on the specifics of what it has been asked to do is a  prior restraint on its free speech. Historically, governmental retraint on speech prior to publication or utterance has been extremely frowned upon and tends to get struck down by judges. That argument may be a stronger one for Yahoo to prosecute in the FISA court.