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Alexander Tsesis on “Inflammatory Speech: Offense versus Incitement”

April 16, 2013

 Alexander Tsesis (Loyola University Chicago School of Law) has posted ”Inflammatory Speech: Offense versus Incitement”, Minnesota Law Review, Vol. 97, 2013/Loyola University Chicago School of Law Research Paper No. 2013-006. Here’s the abstract:

The commonly accepted notion that content regulations on speech violate the First Amendment is misleading. In three recent cases – Snyder v. Phelps, Brown v. Entertainment Merchants Ass’n, and United States v. Stevens – the Court made clear that free speech includes the right to express scurrilous, disgusting, and disagreeable ideas. A different set of cases, however, concluded that group defamation, intentional threats, and material support for terrorist organizations are not protected forms of expression. This Article seeks to make sense of this doctrinal dichotomy and to develop clearer guidelines for regulating incitements that are posted on the Internet and in public areas.

Many leading First Amendment scholars regard the Supreme Court’s jurisprudence on outrageous and inciting expressions to be inconsistent. These academic authors often adopt a libertarian theory of the Free Speech Clause. They generally agree with cases that strike limits on offensive statements but disregard, or outright ignore, those that uphold restrictions on threats and defamations made in the absence of any imminent threat of harm. This Article demonstrates that opponents of incitement regulations fail to differentiate policies that protect public safety from those that silence outrageous but benign expressions.

I propose a relatively straightforward method for evaluating the constitutionality of incitement laws. The mens rea of a speaker is key to judicial determinations about whether true threats, group defamation, and material support for terrorists are actionable or constitutionally protected. This Article parses the Court’s analysis of unprotected incitement that poses a threat to public safety. A small but significant group of decisions belies the libertarian claim that incitement is constitutionally protected. My proposal will undoubtedly be controversial because the method I propose would augment juries’ and judges’ authority to assess the context within which threatening statements are made and qualify the relevance of the canonic imminent threat of harm doctrine.

Download a pdf copy of the article via SSRN here.

Related articles

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Posted in Constitution, Constitutional Rights, First Amendment, free speech, Freedom of expression, freedom of speech, Group Defamation, hate speech, IIED, Imminent Threat of Harm, Incitement, Intentional Infliction of Emotional Distress, Material Support for Terrorism, Outrageous Speech, Protected Speech, Regulation of Speech | Leave a Comment »

Matthew Lafferman, “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”

March 13, 2013

Matthew Lafferman (JD Candidate, George Mason University – School of Law) has published “Do Facebook and Twitter Make You a Public Figure?: How to Apply the Gertz Public Figure Doctrine to Social Media”,  Santa Clara Computer and High Technology Law Journal, Vol. 29, No. 1, 2012. Here’s the abstract:

In Gertz v. Welch, the Supreme Court expanded First Amendment protections to defamation law by requiring a plaintiff who qualified as a public figure to prove a higher burden of proof to recover for damages under a defamation suit. The Court relied on two major rationales to delineate the Gertz doctrine: public figures “voluntarily exposed themselves to increased risk of injury” and had “significantly greater access to the channels of effective communication.” Applying this doctrine to online media poses challenges, specifically when applied to social media platforms. Many scholars have recognized that social media users have equal access to the same basic media features, rendering the Gertz Court’s access-to the-media rationale inapplicable when applied to social media. A 216% rise in defamation suits against Internet users in the last three years alone, due to the recent discovery that most homeowner’s insurance policies cover libel liability, signals an almost inevitable rise in defamation suits that will eventually force courts to face the challenge of applying the Gertz public figure doctrine to social media.

This Comment offers an approach that reconciles the problems of applying the public figure doctrine to social media. This Comment argues that courts should require defendants to overcome certain initial presumptions by clear and convincing evidence before designating a social media user an involuntary public figure or a general public figure. Moreover, when recommending an approach for courts to identify voluntary activity on a social network for limited-purpose public figures, courts should avoid defining mere access to social media as voluntary activity and instead conclude such access is an extension of an individual’s private life. This approach would allow courts to apply much of the currently existing public figure doctrine to social media and help courts avoid the negative legal and policy consequences of abolishing the doctrine altogether.

A pdf copy of the paper is available for download at SSRN here.

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Posted in defamation, Defamation Law, Facebook, First Amendment, free speech, Freedom of expression, freedom of speech, Gertz v. Welch, Public Figure, SCOTUS, social media, Twitter, United States, United States Supreme Court | Leave a Comment »

Matthew M. Pagett, “Sticks, Stones, and Cyberspace: On Cyberbullying and the Limits of Student Speech”

January 10, 2013

 Matthew M. Pagett (North Carolina Court of Appeals) has posted “Sticks, Stones, and Cyberspace: On Cyberbullying and the Limits of Student Speech”, UNC School of Government School Law Bulletin 2012/2, December 2012. Here’s the abstract:

This article discusses cyberbullying in public schools and evaluates the pertinent statutory and common law standards. In particular, the article focuses on the relevant North Carolina statutory law and the extent to which school officials may punish students for cyberbullying behavior. The author also reviews the relevant Supreme Court standards as they apply to this particular factual scenario.

 A pdf copy of the article is available for download on SSRN here.

Posted in cyber-bullying, cyber-harassment, cyberlaw, First Amendment, free speech, Freedom of expression, freedom of speech, internet, internet law | Leave a Comment »

Threats of violence are not protected free speech, Supreme Court of Canada rules

December 14, 2012

This morning, the Supreme Court of Canada unanimously affirmed the convictions of terrorism under Part II.1 of Criminal Code in R. v. Khawaja - 2012 SCC 69.

On the issue of whether the provisions under Criminal Code, R.S.C. 1985, c. C‑46, s. 83.01(1)(b)(i)(A), in purpose or effect, violate the right to free expression, guaranteed under the Canadian Charter of Rights and Freedoms, s. 2(b);, the Chief Justice in Khawaja held:

[70] This Court’s jurisprudence supports the proposition that the exclusion of violence from the s. 2(b) guarantee of free expression extends to threats of violence: Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295, at para. 28; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 107; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 588. As this Court held in Greater Vancouver Transportation Authority, “violent expression or threats of violence fall outside the scope of the s. 2(b) guarantee” (para. 28 (emphasis added)). It makes little sense to exclude acts of violence from the ambit of s. 2(b), but to confer protection on threats of violence. Neither are worthy of protection. Threats of violence, like violence, undermine the rule of law. As I wrote in dissent in R. v. Keegstra, [1990] 3 S.C.R. 697, threats of violence take away free choice and undermine freedom of action. They undermine the very values and social conditions that are necessary for the continued existence of freedom of expression (at pp. 830-831). I therefore reject that the violence exception to s. 2(b) is confined to actual physical violence, without however deciding the precise ambit of the exception. Threats of violence fall outside the s. 2(b) guarantee of free expression.

So, kids, don’t threaten anyone with violence.

See also, Sriskandarajah v. United States of America (Piratheepan Nadarajah v. United States of America), 2012 SCC 70, where the Court  unanimously upheld the constitutionality of the Extradition Act, S.C. 1999, c. 18,  finding that it does not violate the right of citizens to remain in Canada under s. 6(1) of the Charter, even when the foreign state’s claim of jurisdiction is weak or when prosecution in Canada is feasible.

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Posted in Charter of Rights and Freedoms, free speech, Freedom of expression, freedom of speech, R. v. Khawaja, Supreme Court of Canada | Leave a Comment »

From the Censorious Criminal Libel Files (Canada Edition)

December 11, 2012

 

 

Image via http://www.firstamendmentcenter.org

BCCLA demands watchdog investigate RCMP actions against critic | BC Civil Liberties Association.:

 

New information in unsealed court documents has the BCCLA demanding an investigation into the RCMP for seizing the computers of a man who says he was helping unhappy RCMP members post their concerns online. On August 18, 2012, Grant Wakefield’s computers and cell phone were seized in a joint RCMP Major Crime and New Westminster Police Department operation.

The RCMP has confirmed that Wakefield was the informant whose information and photographs started high profile code of conduct and criminal investigations into Port Coquitlam RCMP officer Jim Brown’s activities. Simultaneously, Wakefield was also anonymously assisting disgruntled members of the RCMP to run a blog called the “Re-Sergence Alliance” blog, a blog that posted alleged RCMP front line member concerns about RCMP management and policy online.

 

The BCCLA adds:

 

“We’re asked to believe the RCMP used the resources of their major crime section, computer forensics team, the Federal Department of Justice, and a search warrant, to investigate what amounts to conspiracy theories posted in the comment section of an erotic blog and a Twitter account with thirteen followers,” said Eby. “Defamatory comments are made every day on the internet, and the RCMP doesn’t send their major crime team to investigate. What makes this case unique is that the man who had his computers taken away by the police was using those computers to help unhappy RCMP members publish their concerns online.”

The BCCLA is demanding the Commission for Public Complaints investigate the entire RCMP operation against Grant Wakefield, and has written to them to file a complaint.

Click here to read the unsealed court documents >>

Click here to read the BCCLA’s letter to the Commission for Public Complaints >>

 

The decision of P. D. Gulbransen, J. partially unsealing the RCMP search warrant is reported at B.C. Civil Liberties Association v. Regina, 2012 BCPC 406 (CanLII).

 

Criminalization of defamation is a pernicious form of libel chill and is anathema to a free and democratic society.  It is high time for the archaic and illiberal criminal offence of defamatory libel to be relegated to the dustbin of legal history.

 

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Posted in BC Civil Liberties Association, BCCLA, blawging, Blawgosphere, blawgs, blog, Cpl. Jim Brown, criminal law, Criminal Libel, criminal procedure, defamation, Defamation Law, free speech, Freedom of expression, freedom of speech, Grant Wakefield, libel, Libel Chill, media, RCMP, social media | 1 Comment »

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