Archive for the 'First Amendment' Category

Facebook sends a Minneapolis reminder that it’s not a forum for free speech

June 16, 2013

The Associated Press’ recent story that a former Nazi commander has been living in Northeast Minneapolis has had a surprising and perhaps ironic consequence:  a reminder that Facebook is not a forum for free speech.

The Facebook page in question is Old Minneapolis, which features photographs of, well, old Minneapolis.  Its operator, Jesse Jamison, reports Facebook shut him down for 12 hours this weekend after he reposted information including a photograph from WCCO-TV identifying the location of the alleged Nazi commander’s Northeast Minneapolis home.

In Jamison’s words, complaints to Facebook were “flooding in,” and Facebook responded by banning the page for a half-day and sending this message referring him to Facebook’s “Community Standards”:


Here are the Community Standards.  It’s unclear which could have been violated. Was the reposting from mainstream media somehow a “threat” as defined by Facebook, or maybe a publication of “personal information of others without their consent”?  Could Facebook really characterize publication of information regarding an alleged Nazi’s home as “hate speech”?

The incident is a graphic reminder that while Facebook comes free of charge, it is not a public forum for freedom-of-speech purposes.  Because Facebook is privately owned, it is not a “state actor” for First Amendment purposes and the operators can ban whomever they want for whatever reason they want.


Indeed, Jamison also writes a Facebook user “was also blocked just for defending the page, and he didn’t use strong or threatening language.  The person that reported him has been banned permanently, and so have a few others that were using threatening language.”


10 steps bloggers should take to avoid getting sued

September 21, 2012

Being sued over blog posts is bad, and being threatened with legal action can be just as bad.  Saturday morning, at the 2012 Minnesota Blogger Conference, I am presenting on …

10 steps bloggers should take to avoid getting sued

1. Tell the truth

Libel is a claim that a communicator has harmed someone’s reputation by publishing something false.  So truth is the ultimate defense to a libel suit.   A blog post that says horrible things about someone is not libelous if it is true.

2.  Report for jury duty

Sometimes even false posts are legally protected.  That’s because a jury ultimately decides whether the blogger did “what a reasonable blogger would do” under the circumstances.

3.  Focus on the famous

Politicians, celebrities, and other public figures must prove “actual malice” to win a libel suit.  So if you stick to writing about famous people, the risk of legal liability decreases.

4.  Act like the AARP era

Most of a blogger’s legal defenses were enacted with the Mainstream Media in mind.  So emulate the “AARP” generation by Avoiding Anonymous Sources, Attributing Information, Retracting When Necessary, and Publishing Regularly.

5.  Know when truth doesn’t matter

Bloggers do risk liability for publishing true information if doing so is an invasion of privacy.  So don’t publish Social Security numbers or bank-account information, and tread carefully with racy pictures.

6.  Stay local

Most laws governing bloggers are state laws, enforced separately and differently in each state.  So posting about people outside Minnesota increases the chance, complexity, and cost of litigation.

7.  Keep SLAPP in the face

Minnesota is among states with laws that protect against “SLAPP” lawsuits, which are Strategic Lawsuits filed to prevent Public Participation.  The SLAPP laws provide extra protection to bloggers who write about public issues

8.  Picture a troll

“Copyright trolls” patrol the internet, looking for material used without the owner’s permission.  Bloggers are easy prey.   Know where your pictures come from, and get permission to publish if necessary.

9.  Act in moderation

Some believe that bloggers can avoid legal liability by not moderating comments.  I disagree.  Moderate your comments and remove the dicey ones.

10.  Blog as a matter of policy

Read your business and homeowners’ insurance policies for whether you’re covered if you’re sued.  Consider purchasing a separate policy for bloggers.

Recent Minnesota Supreme Court decisions are unfriendly to free speech

August 20, 2012

Summer has delivered two sizzling First Amendment decisions from the Minnesota Supreme Court, neither of which is good for online communicators.

The most recent decision came earlier this month.  State v. Crawley involved a Minnesota statute that makes it a crime to knowingly file a false police report.  In a 4-3 decision, the court held that even though the statute criminalizes expression based on its content–something the First Amendment abhors–the law was OK because it could be read to criminalize only defamatory speech, which is not protected by the First Amendment. 

In other words, the Minnesota Supreme Court wrote language into a statute that doesn’t exist.  In a dissent, Justice Stras called the court to the carpet and said the justices should not get in the business of writing statutes.  It is hard to disagree.

The other decision, Tatro v. University of Minnesota, which was released in June, received more mainstream media play than Crawley.  In fact, I talked about it when I was interviewed on Channel 9 last week.

In that case, the court ruled unanimously that the university could discipline a student in its morturary sciences program for making Facebook posts that most people would find to be, quite frankly, tasteless.  The court acknowledged that the university was abridging freedom of speech but justified the ruling because the university had a policy prohibiting certain online communication.

From a free-speech perspective, Tatro is much less problematic than the recent Crawley case.  At least the university had a policy.  As for Crawley, all communicators, online and otherwise, should be concerned that the state’s highest court would rewrite a speech-restrictive statute as they did.

I would not be at all surprised to see the case end up in the United States Supreme Court, as a Minnesota case did 20 years ago.  That case was R.A.V. v. City of St. Paul, where the nation’s high court disagreed with the Minnesota Supreme Court over a St. Paul ordinance that criminalized the messages that cross burnings are intended to convey.  Interestingly, the Minnesota Supreme Court based its Crawley decison on R.A.V.

Interesting stuff.  Stay tuned.

Town with 39 people can ban all businesses, including “adult” ones

August 6, 2012

The latest installment in Minnesota governmental attempts to ban “adult” businesses brings us to the tiny hamlet of Florence, Minnesota, population 39, which has successfully banned all businesses — including adult ones — from its two-tenths of a square mile.

At issue was an establishment called the “Juice Bar,” which shut down after the owner was threatened with criminal prosecution.  The owner sued and claimed the the city could not ban all businesses consistent with the First Amendment.  The theory was that banning businsses left no room for constitutionally protected “adult” communication.

The city contended that the effort to maintain “entirely residential” property was valid because of its interest in staying small and not having much infrastructure.  Last week, federal judge Donovan Frank agreed, stating:

The City has the power to enact its own ordinances and its decision to be zoned entirely residential is unrelated to the suppression of free expression; the incidental restriction on any First Amendment freedoms resulting from the zoning ordinances is no greater than necessary to the furtherance of those interests.

Federal judge says “no go” to East Grand Forks’ attempt to regulate adult media

August 1, 2012

Much of the law that protects the media comes from the world of adult media, and a dispute over an “adult” business ordinance in East Grand Forks, Minn., provides the latest chapter.

Last week, a federal judge took the fairly unusual step of enjoining the city from enforcing an ordinance against “Fantasysrus” because the ordinance potentially infringes on First Amendment rights. 

Judge John Tunheim ruled that the ordinance was too vague to be enforced because it did not define “adult uses” and permitted arbitrary enforcement.  As the judge explained:

The East Grand Forks city ordinance does not define “sexually oriented” and provides no guidance as to how much of the merchandise or activity must be sexually explicit or an “adult use” to trigger the ordinance. Consequently, an art gallery with some paintings of nudes, a dance studio that teaches belly dancing, a sauna that allowed nudity at certain times, or a bookstore selling Fifty Shades of Gray could be “sexually oriented” or not, depending on the discretion of the city official.

Judge Tunheim also ruled that because the ordinance provided no framework for differentiating between a “sexually oriented store” and a “sexually oriented bookshop,” the city got too much discretion over who could operate a business and who could not.

The decision is yet another reminder that the government has limited power to restrict not only the freedom of expression, but the freedom to purchase others’ expression—even when the expression has more to do with what goes on behind closed doors.

Minnesota law banning emails and other communications for 50 years is constitutional

December 28, 2011

When a Minnesota court orders that an alleged domestic abuser cannot email, message, or otherwise contact the victim for 50 years, there is no First Amendment violation, according to a Minnesota Court of Appeals decision issued Monday.

A Minnesota man brought an appeal to challenge a law that authorizes courts to issue “orders for protection” 50 years in duration under certain circumstances.  In the case, the man had pleaded guilty assault and violating a prior order that his wife sought for her protection.  After the husband served time for stalking and harassing another woman, he again was arrested for violating the order issued with respect to his wife.

So the court issued another order for 50 years, pursuant to a Minnesota statute that forbids an alleged abuser from having any contact with the victim “whether in person, by telephone, mail or electronic mail or messaging, through electronic devices, through a third party, or by any other means.”

The husband’s claim was that the statute constituted a prior restraint on his right to engage in expression.  The court of appeals disagreed, likening the law to those that provide protest-free buffer zones around abortion clinics.  The court observed that such laws ban conduct, not speech.  The court went on to explain that state government has a “strong intrest in preventing violence in a domestic setting,” and that the law was narrowly tailored because it “applies only to the most persistent abusers.”

Fifty years is, indeed, a long time.   But the court was correct to characterize the law as one addressing actions, not speech.  The law bans all contacts with the victim, regardless of what the alleged abuser might say.  And that, under the First Amendment, is permitted.

The decision is the second this month in which the court rejected First Amendment challenges to court orders arising from domestic relations.  Earlier in December, the court ruled that blogging about a former girlfriend can constitute harassment and that a Minnesota man could be ordered to remove his blog from the internet.

Occupy Minnesota wins partial victory in federal court

November 29, 2011

Cutting off electricity has nothing to do with the First Amendment, but sleeping outside Hennepin County Government Center does.  Even so, the Occupy Minnesota tents need to go.   But their signs can stay.  And the “chalking” needs to stop.

Those were among the rulings from federal Judge Richard Kyle, who last week handed Occupy Minnesota adherents a partial victory in their ongoing effort to occupy the public plaza outside the Government Center.

Interestingly, the judge’s “sleeping is speech” ruling was based on a decision from balmy Fort Myers, Florida, where a federal court ruled that “tenting and sleeping” was protected as expressive activity.  Hennepin County had suggested that banning sleeping in frigid Minnesota was a matter of public safety.  Apparently, Judge Kyle trusts Minnesotans enough to know when to come  out of the cold.

However, as I predicted, he cited a 1984 case in which the United States Supreme Court held that the National Park Service was within its rights to prevent protesters from sleeping in Lafayette Park across from the White House.  As the judge explained, government may ban sleeping in public because doing so is a “valid time, place, and manner restriction” that does not violate the First Amendment.

The judge would have none of Occupy’s argument that cutting off  electricity has anything to do with the First Amendment.  He also ruled that the county was within its rights to prevent “chalking” on plaza property.

But significantly, he ruled that the Occupy signs can remain and he ordered the county to not enforce a resolution that bans the signs.  The county’s resolution contains an exception for signs “placed by county personnel related to county business.”  The judge explained that “this difference is crucial” because it creates a rule based on content of signs — specifically what the First Amendment forbids.

The decision was extremely well-reasoned and fair and based in practicality.  As the judge explained, Occupy adherents “are unlikely to leave the Plazas anytime soon,” so he ordered the parties to mediate their dispute as soon as possible.

The constitutional battle over a First Amendment right to sleep could begin tonight

November 14, 2011

Hennepin County’s ban on sleeping outside the county Government Center takes effect tonight, so arguments regarding the ban’s constitutionality might awaken.

This morning, Minnesota Public Radio quoted Hennepin County Board Chairman Mike Opat as saying the ban is proper because the constitution does not prohibit rules that preserve public safety.  That much is true.  But there does not appear to be an explanation for how public safety begins being at risk tonight, but was not at risk over the past month.  Maybe the county is trying to prevent protesters from freezing to death, even though frigid temperatures are not forecast.

I’ve blogged previously about the Occupy adherents’ and their “media” (specifically their handmade signs, which the county wants to remove) as well as about whether sleeping in a public area can be considered “expressive activity.”  On that last point, Occupy would find imporant authority in a 1984 United States Supreme Court case that left open the possibility that sleeping is, essentially, speech.

In that case, the protesters hoped to draw attention to homelessness by camping in Layfayette Park, a national park across from the White House.  So too with the Occupy Minnesota protesters, for whom residential home foreclosures are chief concern.  And on the foreclosure issue, Occupy Minnesota has rightfully claimed success.

The 1984 case is very much on point.  Earlier this month, Occupy Sacramento recognized that when challenging a Sacramento city ordiance ordinance that prohibits staying in parks overnight.  In a Nov. 4 decision, a federal judge in California acknowledged the 1984 case and that “the act of sleeping out could all be expressive activity,” but explained that “nonetheless” the United States Supreme Court permitted the National Park Service to remove the slumbering protesters.  For that reason (among others), the federal judge refused to enjoin the Sacramento ordinance’s enforcement.

So Occupy Minnesota adherents do have a “sleeping is speech” argument should they be arrested.  But the battlle might be tough.

Iowa leaves Minnesota in the dust with protections afforded to student newspapers

November 10, 2011

Neighboring Iowa and its appellate courts have led the way on issuing courageous, well-reasoned decisions that protect important rights.  First came gay marriage.  Now it’s students’ free expression.

On Wednesday, the Iowa Court of Appeals issued a decision that unambiguously protects the rights of high school students to learn journalism by doing, and also affirms the right of faculty advisers to let that learning happen.

At issue was the Iowa Student Free Expression Law, which the Iowa Legislature passed in 1989 in response to the United States Supreme Court’s decision in Hazelwood v. KuhlmeierHazelwood generally gave school administrators broad discretion to censor student newspapers, despite the Frist Amendment.  In response, Iowa and eight other states (not Minnesota) passed laws protecting students’ rights “to exercise freedom of speech, including the right of expression in official school publications.”  Exceptions arise when expression is obscene, libelous, encourages law- or rule-breaking, or encourages “substantial disruption of the orderly operation of the school.”

The law also expressly forbids “prior restraint of material prepared for official school publications,” specificies that student editors have the final say, and limits advisers’ roles to supervising “production” and maintaining “professional standards of English and journalism.”

The case that led to Wednesday’s decision arose in Waukon, Iowa, where the newspaper’s faculty adviser was reprimanded for an April Fools’ parody editon of the paper as well as a non-parody story about students who chew tobacco, which the school’s adminsitration contended had caused “material disruption” of the school.  The 25-page court decision recites some of the complained-of conduct, including the students’ “derogatory twist” of a rival school’s mascot name “Kee Hawks” into “Keysucks.” 

The appeals court explained that there was no evidence that the newspaper content had encouraged breaking the law or rules.  For example, with respect to the Keysucks name, the school district’s attorney “was unable to explain” how the twist had caused any disruption.  Rather, the school administration’s concerns were entirely speculative.  The court also held the content was not libelous and did not violate the “professional standards of journalism.”  The judges also took the remarkable step of ordering the school district to remove the advier’s reprimands from his employment file, explaining:

The purpose of section 280.22 is to allow students broader free expression. If a school district is entitled to sanction a journalism advisor for student publications that comply with section 280.22, the statutory protections will be eroded and student speech will be chilled. Removing the reprimands from Lange‟s personnel file is necessary to protect the free speech rights of Iowa students as contemplated by Iowa Code section 280.22.

On a day when when Facebook is alive with chatter about how poorly Penn State students have behaved after a football coach’s firing, it is somewhat incongruous to trumpet a win for the rights of students.  But in the end, students need to be trusted to do the right thing, and to learn by doing, and to recognize parody on the Daily Show, in The Onion, or in their school newspaper.

And … Occupy Minnesota’s signs are still there

November 5, 2011

New Occupy Minnesota signs were tacked to county property on Friday, the day they were to come down. (Photo by Steve Aggergaard)

Hours after Occupy Minnesota signs were supposed to come down pursuant to Hennepin County’s “winterization” policy, they were still there.  In fact, the banner pictured above appears to be a new sign, taped to county-owned light posts.

What gives?

The Uptake, a treasured citizen-journalism website, has a great video explaining what appears to have happened.  Apparently the county removed the signs Friday morning, which prompted Occupy adherents to put them back up, which resulted in security officials again taking them down and putting them in a pile. But seven or eight adherents locked arms and blocked access to the signs, which—according to the video—prompted security officials to confer with county board.  And …

There were no arrests.  And the signs went up.  And, as of last evening at least, they have stayed.

Pamphlets and signs are the purest form of protest media, and it will be interesting to see how the various First Amendment issues are resolved.  The Uptake’s video suggests the American Civil Liberties Union of Minnesota is considering a “class-action lawsuit” on behalf of the adherents.  There’s no such mention on the ACLU’s website, so we’ll see how that shakes out.  Class actions are not easy to maintain, particularly on an “emergency” basis.

If there is legal action, a hurdle for Occupy might be who, exactly, has the legal right—the “standing”—to litigate the issue.  Ironically, if Occupy Minnesota were to incorporate as a nonprofit corporation, it would be a lot easier for Occupy as a corporate “person” to assert that its adherents’ constitutional rights are in jeopardy.

But of course, as the photo above demonstrates, corporate personhood tops the list of Occupy adherents’ concerns.  The opposition will make it more difficult for Occupy to go to court to obtain a “declaration” that the Hennepin County policy violates the First Amendment.  Rather, individual persons might need to actually be arrested and then argue, essentially from jail, that their individual arrests were unconstitutional.

Judging from Friday’s events, Occupy adherents appear poised to go that route if need be.