Monthly Archives: February 2014

Chris Bliss - Comedy As Free Speech
Comedian and juggler Chris Bliss says "comedy as speech" has a historic parallel. It was the court jester after all who could make fun of the king. Because i...

By: IFTV

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Chris Bliss - Comedy As Free Speech - Video

free speech helmet in interrogation 5
Lyon Smith and Beatriz Pizano, direction Trevor Schwellnus. Demo of "freedom of speech" helmet during an absurdist interrogation scene.

By: alunaT

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free speech helmet in interrogation 5 - Video

Protecting free speech: Time to change our laws?
The Buck Stops Here: As the controversy over Penguin #39;s withdrawal of Wendy Doniger #39;s book grows, we ask on The Buck Stops Here: is the Indian law the #39;true v...

By: NDTV

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Protecting free speech: Time to change our laws? - Video

February 16, 2014 8:21 PM Share with others:

Is clicking the "like" button on Facebook a form of free speech protected by the First Amendment?

That was the issue at stake in Bland v. Roberts, in which six former employees of the Hampton, Va., sheriff's office sued the sheriff for wrongful discharge. The employees alleged that the sheriff fired them as retaliation for their support of his opponent's political campaign.

The support that one of the former employees gave was to click "like" on the opponent's Facebook page.

The lower court dismissed the lawsuit, saying that merely clicking a button was not the equivalent of expressing an opinion that would be considered protected free speech. The court felt that to constitute free speech, the employee would have had to take much more substantive actions. The employees appealed, backed by briefs from both Facebook and the American Civil Liberties Union.

And the appeals court ruled in favor of the employees and reinstated the lawsuit.

In making the decision, the appeals court applied the standards used for older forms of communications, noting that clicking the "like button" leads to a published statement that is "pure speech."

The appeals court argued that there was no constitutional difference between hitting the "like" button and typing a message of support on a computer keyboard, which would be protected speech.

The case continues the trend of courts determining that the free speech principles of old media apply to new media. And the ruling demonstrates once again that employers should tread lightly before taking punitive actions against employees based on their activities on social media sites.

-- Beth Slagle, Meyer, Unkovic & Scott, bas@muslaw.com

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Business Workshop: Free speech, Facebook and protected clicks

It has not been a good week for free speech in India. First, there was Penguin Indias decision to withdraw Wendy Donigers The Hindus from circulation, under legal pressure from fringe right-wing groupsmuch criticized in the media. Fresh on its heels followed Reporters Without Borders annual report, which placed India at a damning 140th place out of 180 countries in terms of press freedoms. Yet even as free speech liberals attempt to regroup, and take stock of a deteriorating situation, there is yet another lawsuit winding its way through the Calcutta High Court, which could have devastating consequences for the independent press in India.

In December, Sahara India initiated a libel lawsuit against Mint Journalist Tamal Bandyopadhyay for his yet to be released book, Sahara: The Untold Story. On December 10, the Calcutta High Court judge stayed the release of the book. Initial indications do not look good for Bandyopadhyay and his publishing house, which has also been made a party to the suit. After reproducing one impugned paragraph, the Judge observed, Prima facie, the impugned materials do show the plaintiffs in poor light.

It is interesting that the impugned paragraph in question specifically states that the allegations it makes are unverified: More such incredible tales abound about Sahara, none that could be substantiated, is the precise wording of the sentence. How the case for libel can be made out even after that express disclaimer is unclear. But what is truly staggering is the amount Sahara is claiming in damages: Rs. 200 crore! It is an amount that no journalist can afford to pay, and one that would drive most publishing houses out of business. (Although the facts are different, the amount is reminiscent of the Rs 100 crore a Pune Court ordered Times Now to pay in damages, for a fifteen-second clip wrongly showing Justice P.B. Sawants photograph in a story about a scam, back in 2011).

It would be bad enough if this was a one-off case. It is particularly alarming, however, because it fits into a larger pattern: the blatant abuse of libel and defamation laws by corporations and individuals in positions of power, to silence critical voices. Hamish McDonalds The Polyester Prince, chronicling the rise of Dhirubhai Ambani, was not published by HarperCollins in India, after legal pressure. Just last month, Bloomsbury agreed to withdraw Jitender Bhargavas The Descent of Air India, a book highly critical of then-aviation minister Praful Patels role in the downfall of the airline, and apologized to Patelagain, under threat of a defamation suit. And now this.

The trend is obvious, and its implications can hardly be understated. Not only do Indians lose access to important books examining the workings of power and capital in India, the nexus between politics and industry, and other similar issues of vital public interestbut the inevitable effect, as incidents such as these pile upwill be pervasive self-censorship by journalists. Who would want to risk a 200-crore lawsuit, to be contested against a corporation with unlimited resources? And if public debate on these matters is killed, we will be much poorer for it.

Is there a solution? Yes, there is. It lies with the Courts, and it is called the rule in New York Times v. Sullivan.

It is a rule that has been favourably referred to by the Supreme Court in some of its free speech cases, and in the last decade, by the Delhi High Court. Yet if there was ever a time to end the ambiguity, and incorporate it directly into Indian law, the time is now, when press freedoms stand at a critical crossroads.

In many respects, New York Times v. Sullivan presented a similar fact situation: the use of libel law by a powerful actor, in an attempt to stifle reporting on a critical issue of national importancethe American Civil Rights movement. On March 29, 1960, the New York Times carried an advertisement that described some of the actions of the Montgomery Police force against civil rights protesters. The advertisement carried some factual inaccuracies. For instance, it stated that Martin Luther King had been arrested seven times, whereas he had actually been arrested only four times. It mentioned an incident in which students had been padlocked into a hall to starve them into submission, which actually hadnt happened. And so on. On the basis of these factual inaccuracies, Sullivan, Montgomery Public Safety Commissioner sued for libel. The Alabama Court awarded him damages of 50,000 dollars. New York Times appealed to the Supreme Court. The stakes could not have been higher, because a victory for Sullivan would have led to a slew of similar lawsuits against the New York Times, that would probably have driven it out of business, and made it extremely difficult for other newspapers to report freely on the widespread suppression of civil rights protesters in the American South. Indeed, the respected American free speech scholar, Anthony Lewis, observed that libel laws were the Souths tool of choice to ensure that public opinion would not be swayed by aggressive investigative reporting of police brutality.

The American Supreme Court, in one of its most famous decisions of all time, held in favour of the New York Times. In words that have echoed in the annals of free speech history, Justice Brennan noted:

We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

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Untold Stories