Google & Free Speech

Google_Mountain_View_campus_dinosaur_skeleton_'Stan'I learned something new in recent weeks.  If your blog is not being searched by Google, it tends to disappear from public view.

A defining feature of the marketplace of ideas today is that free speech is increasingly dependent upon  a handful of search engines, led by Google. And that’s kind of scary.  On May 29, 2014, I wrote an article noting that Google had omitted age from its plan to boost diversity in its workforce.  I’ve written a couple of articles about the fact that Google (like many Silicon Valley companies) appears to engage in blatant age discrimination with impunity.  On the day I wrote the article  my blog received almost a thousand impressions from Google.    This means pages from my site appeared in Google search results almost a thousand times.  A week later, my blog was receiving fewer than 100 Google impressions per day.

The chart showing the decline in Google impressions on my blog since May 29 looks like the flume at a water park when standing at the top or a graph of the economy right after the Great Recession. My Google search traffic ranged from 500 to 1,250 impressions per day for the month preceding May 29; it has been below 100 impressions ever since (with the exception of one day when there were 228 impressions).

The link in the decline in search traffic on my blog may be purely coincidental.  And I realize that Google is basically a mathematical formula, an algorithm.  However, clearly Google can be tweaked.  For example, European courts have recognized an individual’s right to be “forgotten” and require  Google to omit certain information from search engine traffic.  What if  Google was hyper-sensitive and was intentionally omitting my blog from searches?  I wondered whether I have any legal right to demand that Google play fair?

The answer appears to be no.

Continue reading “Google & Free Speech”

Library of Congress v. Free Speech

do-not-enterThe Library of Congress (LOC) has closed its doors to a foundation that was created by current and former employees to assist LOC employees in pursing complaints of racial discrimination.

The issue is interesting because it raises concerns about the right to free speech under the First Amendment of the U.S. Constitution, which would appear to be central to the Library’s mission.

A panel of three judges for the U.S. Court of Appeals for the D.C. Circuit recently upheld a lower court’s dismissal of a lawsuit filed against the LOC by The Cook and Shaw Foundation,  a non-profit group formed by present and past employees to assist LOC employees in filing race discrimination lawsuits.

The Library has a policy in which it recognizes certain employee organizations and gives them meeting space, the right to post materials on bulletin boards, etc.  The Foundation’s request for recognition was denied because “the Foundation’s purpose of helping employees bring and maintain lawsuits against the Library is inconsistent with the Library’s policy that recognized employee organizations be ‘concerned only with welfare, financial assistance, recreational, cultural, or professional activities.’”

The Foundation filed a lawsuit alleging the LOC violated the retaliation clause of Title VII of the Civil Rights Act of 1964.  This clause makes it unlawful for an employer to discriminate against any employees (or applicants for employment) because they have opposed any practice made an unlawful by the law or because they have made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.

There is a certain logic to the Foundation’s view that helping employees file race discrimination lawsuits relates to their welfare and professional activities.  However, the appeals court ruled that Title VII covers only employees and job applicants and not foundations. The appellate panel said the Foundation failed to identify any particular library employee who was subjected to retaliation in violation of Title VII.

“Perhaps such allegations could have formed the makings of a First Amendment claim by the Foundation. But plaintiffs advanced a Title VII claim,” the panel concludes.

The case is Howard R.l. Cook & Tommy Shaw, et al v. James Billington, #12-5193.

Appeals Court SWATs Free Speech for Police

On the bright side, at least he’s still alive.

A panel of the U.S. District Court of Appeals for the Ninth Circuit in San Francisco this week reversed a jury verdict in favor of Brian Hagen, a Eugene Oregon police officer who was removed from the  department’s K-9 team after expressing safety concerns following several  instances involving the accidental discharge of weapons by members of the department’s SWAT team.

The panel ruled that a “public employee [who] reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so ….does not speak as a private citizen and is not  entitled to First Amendment Protection.”

After three instances of accidental discharge of weapons by SWAT team officers in two years, one of which resulted in the actual shooting of a SWAT team member, Hagen became concerned about safety issues related to the K-9 team working with the SWAT team.  When he  repeatedly pressed for information about improvements to the SWAT team’s weapons handling, he was transferred from the K-9 team.

After a trial, a jury unanimously agreed that the City  had deprived Hagen of his First Amendment right to free speech under the U.S. Constitution by retaliating against him for expressing safety concerns. The jury awarded Hagen $50,000 in compensatory damages and $200,000 in punitive damages.

A three-judge panel of the appeals court ruled on Dec. 3 that the lower court improperly denied the City’s  motion for Judgment as a Matter of Law. The appeals court reversed the jury verdict, vacated the damages, and remanded the case back to the lower court with instructions to enter judgment in favor of the defendants on each of Hagen’s claims. 

The  appeals court agreed with the City’s  argument that Hagen failed to establish that he spoke as a private citizen, rather than as a police officer who was “required by [the] City and police department to report safety concerns.”

 The appeals court said Hagen was required to express concerns about officer safety internally and within the police chain of command. Therefore, it said, even construing all evidence in Hagen’s favor, Hagen did not act as a private citizen who was  eligible to First Amendment protection.

The case is Hagen v. City of Eugene, Peter Kerns, Jennifer Bills, Thom Eichhorn, No. 12-35492.

Cyberbullies & Free Speech

A cyberbully, acting under the cloak of anonymity, has the potential to do grievous harm to an individual.

So what should society do about it?

A bill was recently proposed in New York State that would require website administrators to remove any comments posted on their web site by an anonymous poster unless the poster agrees to attach his or her name to the post and confirms that his or her IP address, legal name, and home address are accurate.

The proposed bill, The Internet Protection Act (A.8688/S.6779), also would require web site administrators to have a contact number or e-mail address posted for such removal requests, clearly visible in any sections where comments are posted.

The bill is co-sponsored by two Republicans, Assemblyman Dean Murray and Sen. Thomas O’Mara. Murray says he was a target of cyberbullying during his 2010 re-election campaign. An anonymous source reportedly alleged that Murray had committed acts of violence towards his ex-wife and that his son, who was in the military at the time, was in hiding because he was being abused.

Fiddling with free speech rights is certainly tempting when one ponders the cowardly cyberbully, who intentionally uses a computer like an unseen sniper to inflict harm.  In recent years, there have been several reported cases of  teen suicides allegedly precipitated by cyberbullying.

However, history shows that efforts to protect victims often backfire as a result of unintended and unforeseen consequences.  It is not inconceivable that the Internet Protection Act could be used to further harass targets and to prevent them from speaking out about abuse for fear of reprisal.

The underlying issue is whether Americans should have the right to “publish” information anonymously and whether this right is outweighed by the target’s need to easily “out” a cyberbully.

The issue of anonymous publication was addressed by the U.S. Supreme Court in McIntyre v. Ohio Elections Comm’n, 514 U.S. 344 (1995). The Court upheld the right of a citizen to post anonymous leaflets in an election campaign. The Court said an individual may seek anonymity for reasons of fear of economic or official retaliation, concern about social ostracism or merely because s/he desires to preserve his or her privacy.  “Whatever the motivation may be…the interest in having anonymous works enter the marketplace of ideas unquestionably outweighs any public interest in requiring disclosure as a condition of entry,” the Court said.

Perhaps the most famous U.S. case involving freedom of the press was the 1735 trial of John Peter Zenger, a printer who refused to reveal the anonymous authors of published attacks on the Crown Governor of New York. When the Governor and his council could not discover the identity of the authors, they prosecuted Zenger for seditious libel.  Zenger’s lawyer, Alexander Hamilton, successfully argued the proposition that the truth is an absolute defense against libel. The jury returned a verdict of “not guilty.”

A bill such as the Internet Protection Act, which affects a basic American right, certainly should be weighed against the  legal avenues that currently exist to address cyberbullying.  And is this really the best, most narrowly drawn approach to the problem of cyberbullying?

Cyberbullying may include activity that falls within various federal, state or local criminal statutes, such as criminal harassment.

In 2011,  an attorney who was a senior official of a Rhode Island teachers union was criminally prosecuted and convicted of a misdemeanor charge of cyber-stalking after  he posted anonymous criticisms of a politician who was running for office. The politician lost his reelection bid and his wife testified during the trial that he suffered rising blood pressure and lost weight because of the stress of the anonymous e-mails. The teacher’s union official was fined $100.

Cyberbullying may also involve a civil issue, such as libel. A determined private party may be able to ascertain a cyberbully’s identity in a civil case through  “John Doe” subpoenas to the web site and the internet service provider.

Despite it’s problems, the proposed Internet Protection Act is reportedly supported by 23 of the 49 New York Assembly Republicans, plus one Independent and one Democrat.

The Cyberbullying Research Center defines cyberbullying as “willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices.”