Can a school discipline students for any off-campus speech, including speech on social media?

June 18, 2021 · by ·

The Supreme Court of the United States heard arguments in April in the Mahanoy Area School District v. B.L. case (audio is here).

The Mahanoy case is about a 14-year-old high school cheerleader, who failed to make the cheerleading varsity teams of her school and vented her frustration on social media in no uncertain terms. She posted on Snapchat a photo of her and a friend both “flipping the bird” with the text, “fuck school fuck softball fuck cheer fuck everything” superimposed on the photo. The snap post was made on a weekend, the picture had not been taken on school’s premises, and did not mention or name the high school.

The cheerleading squad to which the teenager belonged had the following for policy:

Please have respect for your school, coaches, teachers, and other cheerleaders and teams. Remember, you are representing your school when at games, fundraisers, and other events. Good sportsmanship will be enforced, this includes foul language and inappropriate gestures…. There will be no toleration of any negative information regarding cheerleading, cheerleaders, or coaches placed on the internet.

The teenager was suspended from the squad for a year because she had been “disrespectful” when posting the Snap message.

She sued the school district claiming a violation of her First Amendment rights. The United States District Court for the Middle District of Pennsylvania granted summary judgment in her favor, ruling that the school had violated her First Amendment rights. The Third Circuit agreed and affirmed, holding that Tinker does not apply to off-campus speech.

The School District then filed a certiorari petition to the Supreme Court, which was granted. This is an important case as the Court will decide whether a school can discipline students for any off-campus speech, including speech on social media.

The Tinker 1969 case: should it apply today for social media speech?

The question presented to the Supreme Court is whether its “Tinker v. Des Moines Independent Community School District case, which holds that public school officials may regulate speech that would materially and substantially disrupt the work and discipline of the school, applies to student speech that occurs off campus.”

Indeed, the Court held in is 1969 Tinker case that “[s]chool officials do not possess absolute authority over their students.” For the Court, students or teachers did not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

However, Tinker provided a narrow exception that student conduct, “in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others” is not protected by the First Amendment.

In Tinker, petitioners were teenagers who had planned to wear black armbands at school to protest the Vietnam war. The school had then adopted a policy banning wearing armbands at school. Petitioners had nevertheless worn armbands and had been suspended. The students who gave their name to this famous case, Mary Beth Tinker and John Tinker, filed an amici curiae brief in the Mahanoy case in support of Respondents (the teenager and her parents).

Law professors Bambauer, Bhagwat and Volokh’s Amici Curiae Brief

Law professors Bambauer, Bhagwat and Volokh filed an amici curiae brief in support of Respondents, explaining that they were concerned that extending Tinker “to all off-campus student speech… expected to reach campus… would empower schools to punish students for expressing unpopular or controversial viewpoints.”

They argued that, while student speech outside school activities should generally be fully protected by the First Amendment, the “schoolhouse gate” is no longer only physical, but is also virtual. This argument is acutely understood in 2021 after more than a year where students were taught online, attending classes from home because of the pandemic.

As all students‘s online speech is expected to reach campus, expanding Tinker to online speech “would be an enormous expansion of schools’ power to censor the speech of their students.” They propose to apply Tinker to student speech outside the school only in certain cases, such as when students say “cruel personal things to or about each other, especially online,” that is, bullying or harassment. Disruptive  speech in a school-sponsored forum could be disciplined as well.

Arguments of the Petitioners

During the arguments, Petitioners’ counsel mentioned that for state law or policies in all fifty states, including statutory law in twenty-six states , “the standard for bullying is severe, persistent harassment that interferes, actually prevents that child from getting an education.” For instance, New York law defines “harassment” and “bullying” as “creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying,” that would, inter alia, “unreasonably and substantially interfere with a student’s educational performance, opportunities or benefits, or mental, emotional or physical well-being” or “reasonably cause or would reasonably be expected to cause a student to fear for his or her physical safety.”

Petitioners argue schools can regulate off campus speech if it is directed at the school and the audience is the school.

During the oral argument, Justice Thomas asked Petitioners’ counsel whether the place where a student posts a social media post, at school or at home, does make a difference for applying Tinker. Counsel stated that it does not make a difference.

Justice Breyer said that the teenager’s speech, while inelegant, had not caused a material and substantial disruption, and quipped that, if swearing off campus did cause such disruption, “every school in the country would be doing nothing but punishing.”

Justice Alito said that he had no idea of the meaning of speech “targeting the school.” Justice Sotomayor asked Petitioner’s attorney whether a student could be punished for cursing at her home or on the way to school (no was the answer). Justice Sotomayor added that she had been told by her clerks “among certain populations, a certain large percentage of the population, how much you curse is a badge of honor,” asking how the line would be drawn if such language would target the school.

Arguments of the Respondents  

Counsel for Respondents argued “expanding Tinker would transform a limited exception into a 24/7 rule that would upend the First Amendment’s bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go.” If that would be the case, that “kids won’t have free speech, period.”

He further argued that “the blunt instrument of Tinker” is not needed to address off-campus behavior issues because the First Amendment allows regulating threats, bullying, harassment, and cheating, if the response to these issues is consistent with the First Amendment.

If the speaker is “under the supervision of the school” the school can prevent the student to swear or even publish an article about teen pregnancy, but if the student is at home, the school cannot regulate the student’s speech. Counsel for Respondent further argued that Tinker means that the school can silence a speaker if the speech is going to lead to disruption. However, Tinker cannot be applied to out-of-school speech just because listeners in school might be disrupted by this speech.

Justice Sotomayor asked him whether a school would be powerless to regulate out-of-school speech directed at a student being told “you are so ugly, why are you even alive.” Such speech is not a true threat, it is not harassment if they are just speaking. Counsel for Respondents answered that the school could regulate that conduct “if it satisfies a First Amendment, permissible definition of bullying,” adding that they thought that permissible definition of bullying, under the First Amendment could be “severe or pervasive interpersonal aggression that interferes with access to education.” However, if a school code would prevent any speech that would cause emotional harm, then it would not be consistent with the First Amendment. Judge Sotomayor was not convinced, stating that saying “You are so ugly, why are you around” is not aggressive.

Both Justice Kagan and Justice Barrett asked about regulating cheating, Justice Kagan giving as example  a student emailing answers to geometry homework from home. Counsel for Respondents answered that cheating is conduct, not speech , and thus could be regulated, as Giboney v. Empire Storage and Ice Co. allows prohibiting speech integral to prohibited conduct (this was a case about picket lines).

The case is important as the Court will decide whether a student can be disciplined for any off-campus speech, including speech on social media. It is doubtful that the Court will hold that schools have such rights, as doing so would allow schools to have a right to punish students for expressing their opinions, as long as the intended public is the school. A decision should be announced soon.

 

Image courtesy of Flickr user Pete, Public Domain.

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Ballot Selfies Are Still Illegal in New York

November 7, 2016 · by ·

Three voters registered in New York have filed a suit in the Southern District of New York (SDNY) (the SDNY Complaint) against the New York Board of Elections and New York City Board of Elections. They claim that the New York ban against ballot selfies violates their freedom of speech, and are asking the SDNY to preliminary enjoin Defendants from enforcing New York Elections Law banning booth selfies.

On November 3, 2016, District Judge Kevin Castel denied Plaintiff’s motion for a preliminary injunction.

“This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.”

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The New York Law Banning Booth Selfies

Plaintiffs claimed that they are prevented from engaging in political expression and speech because New York Election Law, N.Y. Elec. Law § 17-310(10) makes it a misdemeanor to show one’s ballot “after it is prepared for voting, to any person so as to reveal the contents, or solicits a voter to show the same” (see here for a former post on the topic).

Judge Castel wrote about the history of the New York law:

“The provision, enacted 126 years ago, was part of 19th century legislation popularly known as the Australian ballot reforms. The statute did not merely offer the voter the option of voting in secrecy, but mandated it, and for good reason. As Justice Blackmun noted in Burson, the nation had been plagued with voter bribery prompted by ballots that political parties “often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance.” 504 U.S. at 200. The problem was not resolved by standardized ballots because “the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box.” Id. Because of the statute, those who would engage in ballot policing, for the purpose of bribery or to enforce orthodoxy among members of a group, whether members of union, employees of a company, or members of a religious group, have longed been deprived of an essential tool for success. The absence of recent evidence of this kind of voter bribery or intimidation does not mean that the motivation to engage in such conduct no longer exists. Rather, it is consistent with the continued effectiveness of the New York statute.”

The SDNY Complaint noted that similar laws have been struck down in three states, Michigan, Indiana and New Hampshire.

New Hampshire Law Banning Booth Selfies Found Unconstitutional

Indeed, on September 28, the First Circuit, which is the Federal Court of appeals for New Hampshire, Maine, Massachusetts, Rhode Island, and Puerto Rico, struck down a New Hampshire law which made ballot selfies illegal, Rideout v. Gardner. The Court found that its “restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment.”

The purpose of the New Hampshire law banning selfies at the booth was to avoid vote buying and voter intimidation, and voters who published their voting selfies could be fined $ 1,000 under N.H. Rev. Stat. Ann. § 659:35.

659:35 Showing or Specially Marking Ballot. –

I. No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

The First Circuit applied the intermediate scrutiny test, used by the courts to verify the constitutionality of a content-neutral regulation which purpose is unrelated to the content of expression. Such regulation must be “narrowly tailored to serve a significant governmental interest.” If it does not meet this standard, it violates the First Amendment.

The First Circuit applied the test and found the statute facially unconstitutional, as the government could not justify the restrictions that banning booth selfies imposed on speech. The Court noted that “the legislative history of the bill does not contain any corroborated evidence of vote buying or voter coercion in New Hampshire during the twentieth and twenty-first centuries.”

The Court also noted that even if ballot selfies would indeed “make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring.” In other words, the law cannot solve a problem with a hedge hammer, but must instead be narrowly tailored to only forbid what is necessary to achieve its goal. A general ban on booth selfies is too broad a measure, as it “reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reason.” There is not a current voting fraud problem which can only be solved by banning selfies at the booths. The First Circuit concluded that “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger.”

Booth Selfies and Democracy

The SDNY Complaint argued that ballot selfies “[have] become a common manner of political expression.” Snapchat (now Snap) had filed an amicus curiae brief in the Rideout v. Gardner case where it pointed out that that “younger voters participate in the political process and make their voices heard” by taking selfies at the polls. Its brief had cited a Pew Research Center 2012 report, which found that “22% of registered voters have let others know how they voted on a social networking site such as Facebook or Twitter,” that “30% of registered voters have been encouraged to vote for [one Presidential candidate or the other] by family and friends via posts on social media such as Facebook or Twitter” and that “20% of registered voters have encouraged others to vote by posting on a social networking site such as Facebook or Twitter.” These percentages are likely to be higher this year as more and more people are active social media users.

A Hodgepodge of Laws

Booth selfies are banned in some states, tolerated in others, and legal in some. The press has recently published helpful guides so that voters can check out whether they can indeed share their voting selfies on social media, see here or here. However, these guides may become quickly obsolete, as several cases challenging the constitutionality of law forbidding booth selfies have been filed.

The Sixth Circuit upheld on October 28 Michigan’s ban of booth selfies for this upcoming election. The Court reserved the right of plaintiff to fully litigate his First Amendment complaint, but only after the election, as the issue is too important to be decided too quickly (the complaint had been filed in September 2016). The Sixth Circuit noted, however, that the “ban on photography at the polls seems to be a content neutral regulation that reasonably protects voters’ privacy—and honors a long tradition of protecting the secret ballot.”

In California, the ACLU had filed a suit on October 31, requesting the District Court for the Northern District of California to issue a temporary restraining order and a preliminary injunction to enjoin California Secretary of State to enforce the California law banning booth selfies, Cal.Elec. Code §§ 14276, 14291. The Court rejected the demand on November 2. A new law will allow a California voter to disclose how she has voted, but it will only enter into force on January 1, 2017, too late for the Presidential Elections.

What is next? New York voters will not be able to share their booth selfies in this week’s election. Regardless, please VOTE!

 

Image is courtesy of Flickr user justgrimes under a CC BY-SA 2.0 license.

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Does the Disparagement Provision of the Trademark Act Violate First Amendment? The Supreme Court Will Answer

September 30, 2016 · by ·

The Supreme Court agreed yesterday to review the case of Lee v. Tam. The Supreme Court will now rule on whether the disparagement provision in 15 U.S.C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment. Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a), provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of… matter which may disparage.”

I wrote about the case on this blog three years ago and again a few months ago. Last June, I wrote about The Slants filing a petition for a writ of certiorari for the TTLF Newsletter on Transatlantic Antitrust and IPR Developments, published by the Stanford-Vienna Transatlantic Technology Law Forum. Here  it  is below.

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Re-appropriation, disparagement, and free speech. The Slants, continued

We saw in the last issue of the TTLF newsletter that the Federal Circuit held en banc that the disparagement provision of § 2(a) of the Trademark Act, 15 U.S.C. 1052(a), which forbids registration of disparaging trademarks, violates the First Amendment.

The case is about the mark THE SLANTS, which Simon Tam is seeking to register in connection for live performances of his dance-rock music group. The United States Patent and Trademark Office (PTO) refused to register it, claiming it was an ethnic slur disparaging to persons of Asian ancestry. The Trademark Trial and Appeal Board (TTAB) affirmed, but the Federal Circuit ruled in favor of Mr. Tam and remanded the case for further proceeding.

Now the PTO has filed a petition for a writ of certiorari asking the Supreme Court to answer “[w]hether the disparagement provision in 15 U.S.C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment.”

The Federal Circuit held that §2(a) “penaliz[es] private speech merely because [the government] disapproves of the message it conveys.” The PTO argues in its petition that §2(a) does not prohibit any speech, but only “directs the PTO not to provide the benefit of federal registration to disparaging marks” (petition p. 8).

Would refusing to register THE SLANTS as a trademark merely deny Mr. Tam the benefits of federal trademark registration, or would his freedom of speech be violated?

PTO argument: Mr. Tam is merely denied the benefits of federal registration

The petition notes that federal registration does not create trademarks, but is merely “a supplement to common-law protection” and that a person who first uses a distinct mark in commerce acquires rights to this mark, citing the 1879 In re Trade-Mark Cases Supreme Court case (petition p. 3 and p. 11). The PTO further argues that “[t]he holder of a trademark may use and enforce his mark without federal registration” (petition p. 3). Mr. Tam would still have federal remedies available to him to protect his mark, even if THE SLANTS is not federally registered. For example, the Anti-Cybersquatting Consumer Protection Act, 15 U.S.C. § 1125(D), does not require the mark seeking protection to be registered (petition p. 12).

For the PTO, Section 1052(a) is not unconstitutional, as it does not prohibit speech, nor does it proscribe any conduct or restrict the use of any trademark. Instead, it merely “directs the PTO not to provide the benefits of federal registration to disparaging marks.” Since a mark can function as a mark without the benefit of federal registration, even if a mark is speech, it does not need the benefit of federal registration to be expressed, and therefore, it is not a violation of the First Amendment to refuse to register it.

The PTO further argues that the purpose of Section 1052(a) is to avoid the federal government “affirmatively promot[ing] the use of racial slurs and other disparaging terms by granting them the benefits of registration” (petition p. 10) and that “Congress legitimately determined that a federal agency should not use government funds to issue certificates in the name of the United States of America conferring statutory benefits for use of racial slurs and other disparaging terms” (p. 15-16).

However, in In re Old Glory Condom Corp.(at FN3), the Trademark Trial and Appeal Board noted that “the issuance of a trademark registration for applicant’s mark [does not amount] to the awarding of the U.S. Government’s “imprimatur” to the mark.”

PTO argument: no violation of free speech, as Mr. Tam can still use his mark to convey his message

The PTO also argues that Section 1052(a) is not an affirmative restriction on speech because the federal law does not prevent Mr. Tam “from promoting his band using any racial slur or image he wishes,” does not limit Mr. Tam’s choice of songs played, or the messages he wishes to convey (petition p. 12).

The PTO gives Sons of Confederate Veterans, Inc. as an example of a case where the Supreme Court recognized the government’s right to “take into account the content of speech in deciding whether to assist would-be private speakers.” However, this case can be distinguished from our case. The Supreme Court held in Sons of Confederate Veterans that a state can refuse to issue a specialty license plate if it carries a symbol which the general public finds offensive, in that case a confederate flag. But the owner of a car can still reap the government benefits of car registration, which is mandatory to operate a motor vehicle, even though his speech has been suppressed by the government as disparaging, while, in our case Mr. Tam cannot reap the benefits provided to the holder of a federally registered mark. The fact that he still has some benefits as the owner of a common law mark is irrelevant.

The petition also gives National Endowment for the Arts v. Finley as an example of a case where the Supreme Court upheld the government’s right to take moral issues into consideration when denying a federal benefit. In this case, a court of appeals had held that §954(d) (1) of the National Foundation of the Art and the Humanities Act violated the First Amendment. This federal law requires the Chairperson of the National Endowment for the Arts (NEA) to make sure “that artistic excellence and artistic merit are the criteria by which applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” The Supreme Court found in Finley that §954(d) (1) was constitutional.

However, Finley can also be distinguished from our case. The Supreme Court noted there that respondents had not “allege[d] discrimination in any particular funding decision” and that, therefore, the Supreme Court could not assess whether a particular refusal for the NEA grant was “the product of invidious viewpoint discrimination.” In our case, we do know that the only reason the PTO refused to register THE SLANTS is because it assessed the mark to be disparaging, and so the Supreme Court could very well find this decision to be an “invidious viewpoint discrimination.” Also, while not receiving a grant from the NEA may make it more difficult for an artist to create art, it does not entirely prevent it, even a particular piece of art which would shock standards of decency.

If a mark is a racial slur, should the intent of applicant for registering the mark matter?

The TTAB affirmed the refusal to register THE SLANTS because it was disparaging to persons of Asian ancestry and because the mark was disparaging to a substantial composite of this group. The PTO noted in its petition that the TTAB had determined “that Section 1052(a) prohibits registration of respondent mark despite the fact that respondent’s stated purpose for using the mark is to “reclaim” the slur as a sign or ethnic pride” (emphasis in original text, p. 13 of the petition). The PTO seems to argue that Section 1052(a) views disparaging content neutrally, without questioning the intent behind the choice of disparaging speech as trademark.

Judge Dyk from the Federal Circuit wrote in his concurring/dissenting opinion that he would have held that Section 1052(a) is facially constitutional because “the statute is designed to preclude the use of government resources not when the government disagrees with a trademark’s message, but rather when its meaning “may be disparaging to a substantial composite of the referenced group,” citing In re Lebanese Arak Corp.” In this case, the USPTO had refused to register KHORAN as a trademark for alcoholic beverages because it was disparaging to the beliefs of Muslims.

For Judge Dyk, the purpose of Section1052(a) is “to protect underrepresented groups in our society from being bombarded with demeaning messages in commercial advertising” and Section 1052(a) “is constitutional as applied to purely commercial trademarks, but not as to core political speech, of which Mr. Tam’s mark is one example.” Judge Dyk argued further that, while the First Amendment protects speech which is offensive to some in order to preserve a robust marketplace of ideas, “this principle simply does not apply in the commercial context,” giving as example racial or sexual harassment in the workplace.

But this argument seems to make a difference between registrants: Mr. Tam could register a racial slur to make a point, but could not do so if his purpose for registering the same mark would be to insult people of Asian descent. This interpretation of Section 1052(a) is troubling, as courts would have to determine if a particular mark is indeed political speech, then decide if it is “good” political speech or “bad” political speech. This is noted by the PTO in a footnote to the petition as being viewpoint discrimination which violates the First Amendment (p. 13).

The PTO argues that if Section 1052(a) is unconstitutional, then the PTO can no longer refuse to register as a trademark “even the most vile racial epithet” (p.10). Mr. Tam does not deny that “slant” is an ethnic slur. Indeed, he choose to name his band “The Slants” because it is a slur, in order to “take on stereotypes” about Asians (petition p. 5). Therefore, the mark may be an ethnic slur, but it is not disparaging. It all depends on the eyes and ears of the beholder. This was also the idea behind the attempted registration of HEEB or DIKES ON BIKE as trademarks.
Therefore, the question of who are the members of the group of reference is important. But it should not be.

Is it possible to protect minorities and the First Amendment?

If Mr. Tam would be authorized to register his trademark, it would be a victory for freedom of speech. The Slants would be able to promote further their anti-xenophobic message, and this would benefit the nation as a whole. But what if a person or an entity wishes to trademark a racial slur in order to advocate xenophobia? Owning the trademark could then serve as a tool to censor speech opposing racism. It would not be the first time that trademarks are used to suppress speech.

One can also argue that allowing disparaging trademark to be registered could confuse consumers about the origin of the product. Some consumers would not understand that a particular term is a racial slur. Others may understand it, but not know that it was meant to be used to fight prejudice. Since the function of a trademark is also to reduce consumer search costs, federal law could create a sign informing consumers that the trademark is used in an ironic way. I propose adding in these cases an irony punctuation (¿) after®. Is it a good idea?¿

Picture is courtesy of Flickr user leesean under a CC_BY_SA-2.0 license.

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Section 2(a) of the Trademark Act Violates First Amendment: A TTLF Post

April 1, 2016 · by ·

I wrote about THE SLANTS trademark case a while ago on this blog. You may remember that the Trademark Trial and Appeal Board (TTAB) of the United States Patent and Trademark Office (USPTO) had affirmed the USPTO refusal to register the mark THE SLANTS because it is considered disparaging.

The Slants is a music group from Portland, Oregon. All of its members are Asian Americans. Its bassist, Simon Tam, filed a trademark application in 2011 for the mark THE SLANTS in international class 41 which covers “entertainment in the nature of live performance by a musical band.” But the USPTO refused to register the trademark as it considered the mark to be disparaging.

Indeed, Section 2(a) of the Trademark Act, prevents the registration of a trademark which “may disparage.”  But on December 22, 2015, the Federal Circuit held that the disparagement provision of Section 2(a) of the Trademark Act violates the First Amendment and ruled in favor of Simon Tam.

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I wrote about this case in the just published Transatlantic Technology Law Forum (TTLF) Newsletter. The Transatlantic Technology Law Forum is a joint initiative of Stanford Law School and the University of Vienna School of Law.

The TTLF blog post about this case is here.  I hope you’ll find it of interest.

Picture is courtesy of Flickr user Kenneth Lu  under a  CC BY 2.0 license.

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Right of Publicity and Freedom of Speech Clash in Manhattan

April 27, 2015 · by ·

270710213_23c8d502be_zThis New York Appellate Division case affirmed the First Amendment right of Defendant, a photographer, over the right to privacy of Plaintiffs’ children, whose pictures were taken surreptitiously using a high powered camera lens and became the subject of an art exhibition. The case is Martha Foster et al. v. Arne Svenson, (2015 NY Slip Op 03068).

Defendant Arne Svenson is a photographer. As he explained on his web site, “he has turned outward from his usual studio based practice to study the daily activities of his downtown Manhattan neighbors as seen through his windows into theirs.” The result of this work became the series The Neighbors, which was exhibited in 2013 in New York and Los Angeles, and will be exhibited next year in Denver. Svenson used a telephoto lens,inherited from a bird-watching friend, to take pictures, from his own downtown Manhattan apartment, of people living or working in a  building across the street, without their knowledge, taking advantage of its glass facade and open windows.

Defendant took pictures of Plaintiffs’ minor children, then three and one year old, which became part of the exhibition. Plaintiffs asked the defendant to stop selling these pictures, and defendant took down a picture representing the two children together, but kept offering for sale the picture representing Plaintiffs’ daughter alone. Plaintiffs then sent the gallery a cease-and-desist letter, asking it to take down the pictures from its site and to stop selling them. It complied, but the photographs were shown on several media channels reporting about the exhibition, and the address of the building was also made public.

Plaintiff filed a suit against Svenson, claiming invasion of privacy and intentional infliction of emotional distress. The New York Supreme Court, a court of first instance, denied the claim on August 5, 2013 and granted defendant’s motion to dismiss. Plaintiffs appealed.

(I wrote about the New York Supreme Court case here.)

New York’s Statutory Right to Privacy

New York State does not does not recognize a common-law right of privacy, and its only privacy statute,  New York Civil Rights Law §§ 50 and 51, is a right of publicity statute. The Appellate Division provides a short history of the New York privacy law in its discussion.

Under § 50, “[a] person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.” § 51 of the statute provides for injunctive relief and damages. As such, the statute only forbids nonconsensual commercial appropriations of the name, portrait or picture of a living person. If the person whose likeness has been appropriated consents to this use, or if the use is noncommercial, then it is not prohibited.

The New York Supreme Court had noted in the Svenson case that “the question… is whether the photographs used by the photographer in a show or as examples of his art qualified as a commercial use or for the purpose of advertising or trade” and that the New York legislature “also sought to protect the constitutional right of freedom of expression.”

Is Selling Art Commercial Appropriation?

The photographs taken by Defendant had been offered for sale. Does that mean that taking them without authorization constituted commercial appropriation? Plaintiffs were arguing that these photographs were bought and sold in commerce. However, the Appellate Division noted that New York courts “have refused to adopt a literal construction [of “for advertising purpose” and “for the purpose of trade”] because the advertising and trade limitations of the privacy statute were drafted with the First Amendment in mind.”

The Appellate Division also cited its own Nussenzweig v. diCorcia 2007 case, where plaintiff, Erno Nussenzweig, had claimed that defendant, Philip diCorcia, had violated his New York statutory right of privacy when presenting in an art exhibition, and selling to the public, a photograph of Plaintiff taken in the streets of New York. Plaintiff argued that the photographer had made a commercial use of his image. Indeed, diCorcia had grossed about $240,000 from the sale of a limited edition of the photographs from this exhibition, and the photographs had been sold for $ 20, 000 to $30,000 each.

The invasion of privacy action was found to be time-barred in Nussenzweig, but two Justices wrote in a concurring opinion that the artwork “constitutes a matter of general public interest entitled to First Amendment protection.” They noted that plaintiff’s photograph had been published “in both the popular press and art media [which] confirm[ed] that the image is “a matter of legitimate public interest to readers” so as to bring its use within the newsworthiness exception to the privacy statute” and that “the inclusion of the photograph in a catalog sold in connection with an exhibition of the artist’s work does not render its use commercial, as plaintiff suggests [because][i]f the image is a matter of public interest, it is immaterial whether that interest is satisfied by viewing the original in a museum, art gallery or private dwelling or by perusing a reproduction in an art magazine or other publication.”

The Appellate Division concurred with the Nussenzweig concurrence. There was no doubt for the court that Defendant’s photographs must be considered works of art, as even Plaintiffs had conceded that Defendant was a renowned art photographer and that he had assembled photographs to present them in an art gallery exhibition.

For the Appellate Division, the fact that Svenson had made a profit from the sale of the photographs does not render the use of the photographs commercial, citing the Stephano v. News Group Publications 1984 case, where the New York Court of Appeals explained that it was the content of the article at stake, but not the publisher’s motive to increase circulation which determines, under the New York privacy statute, whether a particular item is newsworthy, and thus protected by the First Amendment, or merely commercial.

The Photographs are Protected by the First Amendment

New York courts may find that a particular use of someone’s likeness is protected by the First Amendment and is thus outside the scope of New York Civil Rights Law §§ 50 and 51. In our case, the photographs were presented in an art gallery.

The Appellate Division noted that, “[a]lthough the Court of Appeals has not been confronted with the issue of whether works of art fall outside the ambit of the privacy statute, others courts that have addressed the issue have consistently found that they do,”citing as an example the 2002 Hoepker v. Kruger Southern District of New York (SDNY) case, where the court found that that ”a careful weighing of interests” between privacy and freedom of speech is necessary, and must be done by the courts on a case by case basis. This may be particularly difficult if the protected speech is art, as art is not “newsworthy events or matters of public interest” the protection of which prevails over right of privacy, but stated that “New York courts have taken the position in the right of privacy context that art is speech, and, accordingly, that art is entitled to First Amendment protection vis-à-vis the right of privacy.”

Infliction of Emotional Distress?

Plaintiffs had also argued that the photographs had been obtained in an improper manner and thus should not been exempt from being considered as advertising or trade under the statute. They did not, however, cite any authority supporting this position. The Appellate Division took the view that Plaintiffs were thus arguing that “the manner in which the photographs were obtained constitute[d] the extreme and outrageous conduct contemplated by the tort of intentional infliction of emotional distress and serves to overcome the First Amendment protection.”However, the court did not find that Defendant’s behavior had been outrageous, even if the pictures were taken while the children were inside their home, as Defendant’s actions “certainly do not rise to the level of atrocious, indecent and utterly despicable.” Also, the Appellate Division noted that “the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available.”

An Appeal to the Legislature

New York, unlike other States, does not have a general invasion of privacy statute, only a right to publicity statute. While the Appellate Division reluctantly affirmed that there was no cause of action for violation of the New York statute, it added that “in these times of heighted threats to privacy posed by new and ever more invasive technologies, we call upon the Legislature to revisit this important issue, as we are constrained to apply the law as it exists.” It remains to be seen if the New York Assembly will hear this plea.

Image is courtesy of Flickr user cheb.odegaard under a CC BY 2.0 license.

This post was originally published on The 1709 Blog. 

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Filed Under: First Amendment, Privacy, Right of Publicity, Southern District of New York · Tagged: , ,

Is Collecting License Plate Data Protected by the First Amendment?

March 13, 2014 · by ·

9600608221_bef9576f1eTwo companies, Digital Recognition Network (DNR) and Vigilant Solutions (Vigilant), filed a complaint last month in the Utah Central District Court against Utah’s Governor and Utah’s Attorney General. They are asking the court to declare that the state’s Automatic License Plate Reader System Act (the Act) violates the First Amendment.

The case number is 2:14-cv-00099-CW-PMW.

What are Automatic License Plate Readers?

DNR manufactures automatic license plate reader systems (ALPR). They are composed of mobile or fixed high speed cameras, which record the license plates of every vehicle around them. Vigilant’s proprietary software converts these images into computer-readable data, allowing thus the creation of databases of the locations of all of these vehicles.

Clients are mainly recovery companies, better known as “the repo man,” which are cruising the streets looking for cars in arrears by using  vehicles carrying the DNR cameras. By using DNR services, they receive a ping when a car they want to repossess is in their vicinity.

As described on the DNR web site, clients are able to “[r]eceive up to the minute location updates” when using its services. That is because DNR “maintain[s] up to date information on asset locations for timely recovery.” In other words, the repo man knows where the cars in arrears are at any time, and it is then up to him to reclaim them.

According to DNR’s website, 190,000 vehicles have been recovered using this system. The data is also sold to law enforcement agencies, as DNR provides the data to Vigilant, which then shares it with law enforcement agencies.

The Utah Act

Utah enacted the Automatic License Plate Reader System Act in April of last year.

§ 41-6a-2003 of the Utah’s Act generally prohibits the use of automatic license plate reader systems. They are a few exceptions, such as when used by law enforcement agencies to protect public safety, conduct criminal investigations, comply with the law, enforce parking laws, enforce motor carrier laws, collect a toll electronically, or to control access to a secured area. No “repo man exception.”

§ 41-6a-2003 of the Act prohibits selling data thus collected. It cannot be held more than 30 days by a private entity and more than 90 days by the government, except when it is necessary to preserve it longer pursuant to a preservation request, a disclosure order or a warrant. Therefore, the Act prohibits building commercial databases with ALPR data.

As the Utah Act clearly prevents plaintiffs to enact their business model in the state, plaintiffs had to stop collecting and sharing ALPR data there, and are bringing this suit as they wish to resume their business in Utah.

Privacy Laws

The plaintiffs are careful to note that the ALPR data does not contain any personally identifiable information. They argue that, to allow identifying a person, this data would have to be combined with other data, such as data held by departments of motor vehicles, but which they cannot access since the federal Drivers Privacy Protection Act (DPPA), as well as several state laws, protects the privacy of motor vehicle records.

Is Disseminating ALPR Data Protected by the First Amendment?

Plaintiffs claim that disseminating ALPR data they collect is speech protected by the First Amendment.

They argue that the Utah Act is a content-based speech restriction, as it is the content of what is being photographed that is being regulated. They also claim that the Act discriminates based on the content of the speech and the identity of the speaker, and thus could not survive the “heightened scrutiny“ standard of review, that is, the intermediate level of scrutiny. Under that standard of review, the law must further an important government interest by means that are substantially related to that interest.

Laws protecting privacy indeed restrict the dissemination of truthful information. Justice Marshall, noted in the 1989 The Florida Star v. B.J.F. Supreme Court opinion that there is “tension between the right which the First Amendment accords to a free press, on the one hand, and the protections which various statutes and common-law doctrines accord to personal privacy against the publication of truthful information, on the other” (at 530). There is no doubt that the ALPR data is truthful information.

Warren and Brandeis wrote in their classic law review article that “[t]he right of privacy does not prohibit any publication of matter which is of public or general interest” (at 214). But what is the public interest in publishing ALPR?

Plaintiffs make the argument that such data is helpful to law enforcement agencies to fight crimes. In the 2001 Bartnicki v. Vopper case, the Supreme Court noted that “there are some rare occasions in which a law suppressing one party’s speech may be justified by an interest in deterring criminal conduct by another” (at 530). But here, the law would suppress speech which, at least according to the plaintiff, contributes in deterring criminal conduct…  Also, the data may also used for commercial purposes, as third parties which are not law enforcement agencies may buy the data. It is not clear if the plaintiffs are selling this data to private parties, but it would be possible to do so.

ALPR  impact everybody’s privacy, as these systems record information about all the cars in their vicinity, not just a few chosen targets.  Much can be inferred, whether wrongly or not, from the location of our car and our whereabouts, and not only for surveillance purpose. Did we park at the shopping mall to go to the health club or to gorge on French fries? The answer to that question may interest our health care provider. Did we visit a big box hardware store several times last week? This may interest its competitor across town.

Some Legislative Answers

Like Utah, Vermont has enacted a law last year regulating the use of ALPR systems, which restricts their use for legitimate law enforcement purposes.

Other states are considering enacting bills banning license plates scanners, such as Massachusetts. A New Hampshire bill, HB 675, is now dead. It would have authorized the use of license plate scanning devices, but only by law enforcement agencies, not by private parties.

A federal bill, HR 2644, would prohibit providing some grants to law enforcement agencies using an automated license plate reader unless they have written and binding policies limiting the length of time the data is stored, and do not store data in a database, and do not share data with a third party which is not another law enforcement agency. HR 2644 is not likely to be enacted.

The Utah case will certainly be followed by legislators around the U.S. Meanwhile, Utah legislators are anticipating its outcome by trying to quickly enact a new law. SB 222 would restrict the scope of the Utah Act by providing that the restrictions on the use of ALPR systems only apply to a governmental entity.  SB222 has been received from Senate for enrolling and should be enacted very soon.

Image is courtesy of Flickr user Nan Palmero pursuant to a CC BY 2.0 license.

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