On the same day, one whistleblower gets to sue the government and another gets 35 years in prison

In separate decisions handed down last Wednesday, courts gave starkly different treatment to two whistleblowers, highlighting oddities in First Amendment law.  

In one case, Dahlia v. Rodriguez, whistleblower Angelo Dahlia (a police officer) alleged he was punished by his superiors for telling his union and outside law enforcement about misconduct within his department.  The Ninth Circuit ruled in a rare en banc opinion that Dahlia could proceed with a civil rights claim that he was unjustly retaliated against for disclosing the conduct of his fellow officers, ruling that “often ... unless public employees are willing to blow the whistle, government corruption and abuse would persist undetected and undeterred.”

US Supreme Court cases craft a weird rule in First Amendment law:  if a government worker blows the whistle inside a government body's chain of command as part of his or her official duties, then the First Amendment generally will not protect the worker's speech, but if the worker blows the whistle to outside sources -- including the media -- the First Amendment generally will offer protection if the speech is of sufficient public concern.  Same speaker, same information, but different audience = different rules. That helps explain the result in the Dahlia case, but what about the other decision handed down on Wednesday?

In the other -- and far more famous -- case, soldier Bradley (now Chelsea) Manning, was demoted, dishonorably discharged and sentenced to 35 years in prison for telling the media (via Wikileaks) about government misconduct, including the killing of civilians in Iraq.

In both cases, the whistleblower went outside the chain of command.  Why is Dahlia looking forward to redemption for the retaliation he faced, while Manning is looking forward to the better part of his life in Fort Leavenworth?

An easy distinction is that Manning disclosed classified information.  That is too easy.  What if a police department simply called its actions and conduct "classified"?  Surely, that label alone cannot be the end of the analysis.

Manning says she revealed classified information, "out of a love for my country and my sense of duty to others," in an effort to make a positive difference in policies and awareness of government conduct.  Dahlia didn't like the way his fellow officers were treating suspects in custody.  The Ninth Circuit applied a fact-specific inquiry to protect Dahlia's speech.  There was no protecting Manning's speech.

Something is not right with these rules and the discrepancies in last week's decisions.  They simply cannot be reconciled from a constitutional perspective.  There ought to be greater First Amendment protections for reporting inside the chain of command and there ought to be at least some protections on a case-by-case basis even in the military context for whistleblowing outside the chain of command.

Or else, as the Ninth Circuit put it in the Dahlia case, "government corruption and abuse" will "often ... persist undetected and undeterred.”

The holes in Ellen Kardashian's defamation lawsuit against the Kardashian clan

Last week, Ellen Kardashian, the widow of famed attorney Robert Kardashian and step-mother of celebutantes Kim, Khloe and Kourtney Kardashian, sued Bunim-Murray Productions, Ryan Seacrest Productions and various members of the Kardashian family, including the three Kardashian daughters and their mother, Kris Jenner, for defamation and other claims.  On its face, the Complaint is weak.

The bulk of the Complaint targets statements purportedly made during an episode of "Keeping Up With The Kardashians," which Ellen alleges, without supporting detail, was "orchestrated" and "carefully scripted" by the defendant production companies. 

The lawsuit mainly complains about the following allegedly false statements: 

• That Ellen bad-mouthed several members of the Kardashian family.  Ellen's response:  I didn't say those things ... my late husband did.  So Ellen may well believe those statements are true, but she wants it to be clear that she did not say them.  It is possible to bring a defamation claim for misattributing a quote, but it is not clear how Ellen was or could have been damaged by this alleged misattribution when she does not disavow the underlying statement. 
• That Ellen married Robert in his home as he was dying, and they were only married for a few weeks.  In the Complaint itself, Ellen alleges that they were married in Robert's home 10 days after Robert was diagnosed with esophageal cancer and just a few weeks before his death.  It seems that the Complaint alone would support a winning substantial truth argument -- i.e., that it is substantially true Ellen married Robert in his home as he was dying, and that he died shortly after their marriage.
• That Ellen married Robert when he was in his pajamas.  First, it is not remotely clear that such a statement is defamatory toward Ellen -- maybe toward Robert for not dressing up a little more -- but then Ellen goes on to insist that Robert was not in his pajamas, but was actually in a "'Tommy Bahama' style shirt." I see, so maybe this case should be called the "Pajama vs. Tommy Bahama" lawsuit. That has a nice, melodic ring!
• That Ellen was sued and attempted to evade service.  Ellen complains that Kris Jenner wanted to "press charges" against her.  A lay person might easily confuse a civil suit with the concept of "pressing charges" in the criminal sense, and the Kardashian/Jenner clan did, in fact, sue Ellen.  Ellen sought permission from the court to countersue, but withdrew that effort in favor of filing this new lawsuit two days later.  Also, calling Ellen a "slippery snake" for supposedly not wanting to be served is a matter of opinion.

The defamation claim is weak because -- although I don't know the underlying facts -- the Complaint itself suggests that all of the statements were either substantially true or protected opinion.   Moreover, Ellen, who is almost certainly at least a limited purpose public figure, will have to prove that the defendants acted with actual malice (i.e., knowledge of falsity or reckless disregard for the truth).  That will be especially difficult for Ellen to show against the producers because, among other things, they could most likely reasonably rely on the Kardashians as witnesses to the underlying events, many of which happened years ago.

The other claims in the Complaint are also weak.  Ellen alleges the public disclosure of private facts, but then asserts that the underlying "facts" are false.  Which is it?  Are they facts or are they false?  I've seen this before:  you can't base a defamation claim and publication of private facts claim on the same underlying allegations.  They are mutually exclusive.

The intentional infliction of emotional distress claim is a virtual throw-away.  A plaintiff cannot evade the strictures of a defamation claim by restyling it as a claim for intentional infliction of emotional distress.  Remember the movie The People vs. Larry Flynt?  That's what that whole Supreme Court scene was all about.  Here's the Supreme Court decision in case you want to check.

And, finally, a claim for "conspiracy to defame"?  No such thing.  Conspiracy is not an independent claim in California.

This is what self-censorship looks like

Two weeks ago, I explained how the NSA surveillance program threatens First Amendment rights, including the chilling of speech because of the fear of government surveillance. This week, two secure email providers shut down.  This morning, The Guardian revealed that, through a loophole in the law, the NSA can see your emails and listen to your phone calls without a warrant.  This afternoon, President Obama vowed to make changes to the NSA system. 

The part in the middle (about the secure email service providers shutting down) shows how this dramatic script evolves into a free speech snuff film.

Lavabit.com, a provider used by leaker Edward Snowden, shut down its secure email service yesterday.  The founder, Ladar Levison, explained his dilemma:

I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit ... I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests. ... I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.

No more Lavabit means no more speech on Lavabit. 

So, why don't Lavabit's users just go somewhere else ... like Silent Circle, another secure email provider?  Oh, yeah, Silent Circle also announced its "preemptive" shut down this week:

Silent Circle has preemptively discontinued Silent Mail service to prevent spying.  ... the less of your information we have, the better it is for you and for us.  ... We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now.

Another such provider, TorMail, is gone too.

I don't (I mean didn't) use any of these services, but I might like to.  I might like to think that maybe, just maybe, there is a way for me to communicate without warrantless spying by the NSA.  Sadly, I now have to catalog those wishes and hopes along with being a good basketball player and owning a Ferrari -- i.e., things that ain't too likely.

Taxing Lap Dances: A Risque Threat To Speech Everywhere

The U.S. Supreme Court is considering whether to take the case of 677 New Loudon Corp. v. State of New York Tax Tribunal, following a decision from New York's highest court holding that the government may tax erotic dancing but not other forms of dancing.  

The government should not tax some forms of expressive conduct more than others.  The Supreme Court should take the case and reverse the New York court's decision.

The Supreme Court recognizes that nude dancing is "expressive conduct within the outer perimeters of the First Amendment."  And, the Supreme Court has held that "official scrutiny of the content of [speech] as the basis for imposing a tax is entirely incompatible" with the First Amendment.  Put these two rules together, and taxing authorities should not be able to discriminate between nude dancing and other forms of dancing.

The New York high court was sharply divided 4-3.  Although New York's tax scheme exempts "choreographic" and "dramatic or musical arts" performances, New York's tax authority decided to impose a tax on establishments where women perform private lap dances and pole dances.  The dissent said it was clear that dancing was exempted, and saw no constitutional distinction between "highbrow dance and lowbrow dance" because "a dance is a dance."  The dissent is right.  Such discrimination between expressive acts is not constitutional.

This issue is broader than just nude dancing.  Yesterday, Media Coalition, a conglomeration of media organizations, filed an amicus curiae brief encouraging the Supreme Court to take the case.  Media Coalition began its brief with the provocative question: "May a State impose a sales tax on tickets to the Broadway musical Mamma Mia, while exempting tickets to Rigoletto?”  That is a fancy way of saying: may the government tax speech based on its content -- whether that content is found in video games, the silver screen, books or a "gentleman's club"?  Nope ... not constitutional. 

This issue also is broader than just what happens in New York.  The Supreme Courts of Illinois, Utah and Texas also approve discriminatory taxes based on the content of speech, and a few other state legislatures are considering such laws.  A few weeks ago, Philadelphia decided to extend its "amusement tax" to lap dancing. 

Former Chief Justice John Marshall wrote nearly two hundred years ago that "the power to tax is the power to destroy."  Businesses featuring lap dances should not be unduly taxed for featuring their particular brand of free speech.  As the dissenters in New York's case found, it would not be constitutional to tax Hustler while leaving The New Yorker untaxed.  The bottom line is that taste and taxes do not mix.   
 
  

Pen vs. Sword a/k/a First Amendment vs. Second Amendment

How, you may think, can the First Amendment's free speech provision be in conflict with the Second Amendment's right to bear arms?  Look to the land of "stand your ground" plus televised trials.  Look to Florida.

In Wollschlaeger v. Florida, the Eleventh Circuit Court of Appeals is considering whether a Florida law preventing doctors from asking patients about gun ownership violates the First Amendment.  The district court enjoined the law, Florida Statute sec. 790.338, which provided that a health care practitioner "should refrain from making a written inquiry or asking questions concerning the ownership of a firearm or ammunition by the patient or by a family member of the patient" unless such information is "relevant" to medical care or safety.  

The State of Florida is defending its law in the "Docs vs. Glocks" case, claiming that a thoroughly undramatic series of anecdotes commanded the necessity of this obscure provision.  For example, doctors supposedly declined to treat at least two people who refused to say whether they owned guns.  Really?  Why would a doctor do that?  It seems hard to fathom.  Is it possible there is a little more back-story there?  

The law also states that doctors "should refrain from unnecessarily harassing a patient about firearm ownership during an examination."  Oh please.  Are we really supposed to believe there is an epidemic of gun-bashing doctors hell-bent on refusing to uphold their Hippocratic oath? 

Florida insists that its law allows doctors to counsel patients on gun safety.  The problem is the doctors are not supposed to ask if guns are even present in a patient's home, so that puts doctors in the position of either counseling everyone or no one about gun safety or making potentially inappropriate guesses about who needs a talking to about guns.

Another fundamental problem is that the law is vague, leaving doctors to guess whether the medical board -- which has the power to sanction doctors for violating this law -- will later agree that the questions were "relevant."

I understand that lots of people are fervently pro-gun rights, but it is not necessary to take away a doctor's First Amendment rights -- let alone interfere with a doctor's ability to counsel and advise patients -- in order to keep guns.  

Doctors should not be so micromanaged by the government concerning their examinations.  They should be able to ask questions about gun ownership in the confines of the doctor-patient relationship rather than be chilled from asking questions for fear of later disciplinary action.   

I side with the Docs.

The Ninth Circuit's Irreconcilable Video Game Rulings

By Kevin Vick (guest blogger)          

The Ninth Circuit’s July 31 decisions in Brown v. Electronic Arts and Keller v. Electronic Arts cannot be reconciled with each other or the First Amendment.  

            Both lawsuits involve the alleged use of athletes’ likenesses in highly-popular video games.  The suits claim that popular Electronics Arts (EA) games Madden NFL and NCAA Football include players whose characteristics – e.g., jersey number, height, weight, skin tone, home state – are based on the attributes of real-life players such as plaintiffs Jim Brown (NFL Hall of Famer) and Samuel Keller (former University of Arizona and University of Nebraska quarterback).

            While the lawsuits are based on the same core allegations, they differed in one respect that determined the outcome.  The claims at issue in Brown were for alleged violations of the Lanham Act (the federal trademark and unfair competition law), while the claims in Keller were for violations of California’s common law and statutory rights of publicity, which gives the right to control your persona … within the confines of the First Amendment.  

The difference in the claims made all the difference, as the Ninth Circuit affirmed the dismissal of Brown’s lawsuit while holding that Keller can proceed with his case.  The principal reason: the Ninth Circuit applied different tests to the respective claims.  The different approaches cannot be reconciled under the First Amendment.

            For Brown’s Lanham Act claims, the court applied the test first set forth by the Second Circuit in Rogers v. Grimaldi.  The Rogers test provides strong free speech protections to creators – not just video games, but movies, books and other expressive works.  Lanham Act plaintiffs complaining about the alleged use of their name or likeness in expressive works must show that (1) the use has no artistic relevance to the work and (2) the work explicitly misleads consumers to believe that the plaintiff endorsed or sponsored the work.  This standard is difficult for plaintiffs to meet.  Defendants routinely defeat Lanham Act claims based on the Rogers test (as in Brown).   

            However, the Ninth Circuit held in Keller that California right of publicity claims were not subject to the Rogers test, but to the “transformative use” test – i.e., whether the defendant has sufficiently transformed the plaintiff’s persona in some expressive way.  The transformative use test provides far less First Amendment protection than the Rogers test because it is a multi-factor analysis that culminates in a question of fact.  That is much less useful to defendants looking to defeat a lawsuit on First Amendment grounds via a pre-trial motion. 

            The Ninth Circuit should not have treated the Brown and Keller cases differently.  Video game maker EA should have won both.

The Ninth Circuit said that Lanham Act claims are meant to protect against consumer confusion, while right of publicity claims are designed to protect celebrities’ interests in the value of their personas.  This distinction does not withstand scrutiny.  Courts and commentators have often referred to the Lanham Act as the federal equivalent to state right of publicity claims.  And a concern for individuals’ interests in the values of their personas animates many Lanham Act decisions in favor of celebrity plaintiffs.  (I’m looking at you Tom Waits!) Likewise, right of publicity claims have often been seen as vehicles to prevent opportunistic defendants from misleading the public into believing that celebrities endorse or are affiliated with defendants’ products bearing their name or likeness.  In other words, consumer confusion and the celebrity’s interest in the value of his or her name are two sides of the same coin.

            Moreover, even if Lanham Act claims and right of publicity claims did protect different interests, why would that justify providing right of publicity defendants with a watered-down version of First Amendment protection?  The Ninth Circuit failed to answer that question, or even acknowledge that it requires an answer.  This is especially frustrating given the well-recognized – indeed, paramount – importance of First Amendment speech rights.

            That failure – along with some contrary decisions from other jurisdictions applying the Rogers test to state right of publicity claims – may lead to en banc review in the Ninth Circuit or, perhaps eventually, review by the Supreme Court.

            In the meantime, the Keller decision encourages plaintiffs to change the label on their claims from “Lanham Act” to “right of publicity.”  Such a facile sidestep offends the First Amendment.  

It will also further encourage and exacerbate the patchwork of state right of publicity laws and rulings – a legal regime that is particularly unsuited for the 21^st century and modern technologies such as the Internet.  The result is a potential minefield for content creators and distributors as JP Jassy and I explained in this article advocating a federal right of publicity statute that would preempt state right of publicity laws.

Guest blogger Kevin Vick is my partner at Bostwick & Jassy LLP, a stellar lawyer and all around good guy.  Here is his bio.  - JP Jassy

Congressman's office denies threatening blogger, but questions persist

According to the Daily Dot, the office of Congressman Mike Rogers (R-MI) denies threatening blogger Mike Masnick with a defamation claim.  See my last post for an explanation of why such a claim was not viable, even if it were threatened and the threat were carried out.

There are a few problems with the denial.  First, it identifies the reporter that Rogers' staff purportedly did not tell about the threat.  But, when Masnick went public with the threat, he didn't identify the reporter.  Basically, Rogers' office is saying "we didn't tell the guy you didn't name the thing you said we said."  That seems off.

Next, Rogers' office is basically saying that the reporter who told Masnick about the threat is a liar.  Maybe they will find themselves on the other side of a defamation claim now?

Finally, the reporter declined to comment to the Daily Dot, but pointed them in the direction of Rogers' chief of staff, who has not yet responded to the Daily Dot as of "late" this afternoon.  If the chief of staff confirms the threat was made then Rogers' office will have a carton of eggs on its proverbial face.