Freedom of Blog...protected by the 1st amendment?

[Phillip Allen]

I am curious to know how the "established" press got a cod-lock on the “right" to free speech?

The press industry seems to enjoy a monopoly or does it?

[Norman Bernstein]

I am curious to know how the "established" press got a cod-lock on the “right" to free speech?

The press industry seems to enjoy a monopoly or does it?

Not sure what you mean.. can you cite an example?

[Keith Wilson]

Blogs are covered by the first amendment. "Speech" and "press" have been interpreted by the courts to include all sorts of things besides talking and printing words on paper for a very very long time.

[Phillip Allen]

I will not be able to cite details until I hear the report again but there is a court case involving a drug company in which the company apparently seeks to have a blog shut down ...it's on NPR this morning though I have heard about it before. The discussion angled toward suggesting that a private blog was not privileged to the same protections as the "established" press.

[Bruce Hooke]

There are some specific rights that have been given to the "press" in recognition of the fact that freedom of the press is one of the central points of the first amendment. As a photographer, one example I am familiar with is that while normally a photographer who takes a photograph for commercial purposes must get signed "model releases" from anyone in the picture who is recognizable before selling the picture, this restriction does not apply to photographs taken for news reporting purposes.

For many years, it was very clear who was a member of "the press." With the explosion of new outlets, such as blogs, the definition of "the press" has undergone a transformation. Like all things legal it takes time for stuff to get sorted out, so I am not sure where various rights accorded to the press stand at the moment. There is an ongoing debate about the degree to which things like blogs constitute "the press," since they follow some of the rules of traditional journalism, but also break quite a few of the rules. For example, a lot of bloggers are less careful about sourcing their stories than traditional media usually are.

[Phillip Allen]

I'm hoping to hear discussion on the merits and disadvantages of gagging the public in the form of blogs

[Phillip Allen]

For instance, in the case of Bruce's model release; it seems to me to be off subject...without the release does not give a government cause to restrict freedom of speech. We are not supposed to yell fire in the proverbial theater; however, our voices are not taken away at the box office. If we do yell fire, we are liable to civil suit and in the case of personal injury, criminal proceedings...but we still are not gagged at the box office...to suggest that to not have a stack of model release forms with us places us in a second class position with regard to freedom of speech/assembly etc is a non sequitur.

[Keith Wilson]

Here's the case. http://www.mindfreedom.org/know/psych-drug-corp/eli-lilly-secrets/documents-borne-by-winds-of-free-speech
It involves the release on the web of internal Eli Lilly documents "suggesting that the company tried to hide or play down the health risks of its leading antipsychotic drug, Zyprexa". A judge is trying to block the release of the documents, which given the nature of the web, is pretty difficult.

“Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed.”

[Bruce Hooke]

In the case of my example, and I am sure this applies in many of the other related issues, it is a question of balancing rights. I'd guess that you might not be real happy if a photographer snapped a picture of you and that picture showed up in an advertisement that made you look like a fool or simply made the photographer a lot of money, none of which came to you. So, the photographer has to get your permission before they use your image for commercial purposes. Note that all of this only applies to commercial use of an image. Non-commercial use is a totally different world and in most ways is as free as press use. Whether a blog is commercial use might well be a gray area that would depend on whether the blog generates revenue in some way.

Now, if a press photographer covering a news event had to get signed model releases, most important news photographs would never see the light of day, either because it would not be possible to get model releases because of the situation (Mr. Fireman, would you please sign this?) or because the subject of the photograph would refuse because they are not real keen on showing up in the paper. So, the law recognizes that to further freedom of the press we have to give the press some rights that other commercial photographers, for very good reasons, do not have.

[Phillip Allen]

Again, Bruce, I believe this clouds the issue...take the photo and print it...you take the risk but it is not stopped by the government at the press...misuse of our rights must be established first before that single instance can be addressed legally...to deny freedom of speech because one "might" use it wrongly is preemptive and I believe contrary to the intent of our constitution.

[Phillip Allen]

I am not abandoning this discussion but will stand down for a bit...I seek enlightenment on this topic and a better overview

[Bruce Hooke]

I am not sure quite what you are saying. Maybe you are saying simply that the photography case is not that applicable to the situation that really interests you, which is the Eli Lilly documents. That's fine. I agree that photographs are a bit different from documents.

If, on the other hand, you are saying that the photography restriction I am talking about should only apply after the fact...that is actually pretty much the situation already. There is no law requiring a commercial photographer to get a model release. It is simply well established case law that if you make money from someone's image they can sue you for damages. So, since most commercial photographers don't want to get sued, they make it a practice to get model releases. This is further enforced by the fact that buyers of commercial photographs don't want to get sued either, so they insist on model releases. What is enshrined in law is the special protection for press photography, and that is there for the reasons I have already given.

[Bruce Hooke]

On a more general level, I come back to the point that many of these situations are a question of balancing rights. I don't know much about the Eli Lilly case, but here is a general concept that might well apply: private industry has a right to protect trade secrets. This is a reasonable idea. The public has a right to know about underhanded actions by private industry. Also a reasonable idea. Somewhere there has to be a balance between these two ideas. In furtherance of the second idea, the right to know, we have generally given some special protections to the press -- more than we would give to another company that was trying to steal the ideas for their own use. This is not a radical idea that taking a trade secret so that you can use it is not something we want to protect, but taking a trade secret in order to expose underhanded dealings is something we want to protect. The real challange comes when we take this principle and try to put it into practice in a world where the lines between the press and other commercial endevours has become much fuzzier than it used to be.

If you are concerned about the "prior restraint issue" (the idea that the judge can try to stop something before it happens) just consider that once a trade secret is made public the whole thing is moot, so if there is going to be any protect for trade secrets then it has to apply before something is published.

[ljb5]

...there is a court case involving a drug company in which the company apparently seeks to have a blog shut down.

In general, I think the freedom of the press includes blogs and pretty much all other "amateur" forms of journalism.

Although that right is pretty clear to you and me, I'm not surprised that a drug company would fight it. They're pretty sleazy -- and they give a lot of money to politicians and judges.

Mostly Republicans, of course.

Fortunately, we have the ACLU to stand up for our rights.

[Kaa]

Some random comments.

First of all, read the first amendment. It does not guarantee you free speach. All it does is prevent the government from passing laws that restrict speech unless the government can show overriding reasons to do so. In particular, the first amendment does not apply to the private sector. It's perfectly possible to sign away your free-speech rights in a contract, e.g. an employment contract, and it's quite legal. Also, the first amendment does not provide you with immunity from private lawsuits -- from libel/slander to disclosure of trade secrets.

Second, the first amendment protections extend to all citizens of the United States, not just the members of the press. Blogs are definitely included.

Third, in photography the general distinction (for the purpose of needing model releases and such) is between commercial and so-called "editorial" photography. Commercial is basically using the image in advertising. Editorial is using the image for news or arts purposes. Note that it doesn't matter whether it's "for profit" -- newspapers and magazines are for-profit ventures (and mostly full of ads these days) and their use of photographs is clearly "editorial". Given that, publishing photos in a blog is also clearly editorial and doesn't depend on whether the site makes money or accepts and displays advertisements.

Kaa

[Bruce Hooke]

Kaa,

Thank you for the clarifications. The one thing I would note is that I have always been taught that even if my photographs are in a gallery and being sold as "art," this is still considered commercial use, or at least the safe route is to treat it as commercial use. I think I'd have more protection if I was, say, using the image for the purposes of satire or political comment, but this all gets into gray and complex areas that are probably a distraction from the point of this thread.

[Kaa]

Bruce -- take a look at http://www.photoattorney.com/2006/02/commercial-vs-editorial-use-of.html

Art is very much editorial use, though a gallery owner may insist on model releases "just in case". This is often the case with nude photos and rarely the case with, say, street candids. Moreover, with nude photos I think there's a law which says you must have documentation showing the model is over 18...

Kaa

[Bruce Hooke]

The key line is probably this one:


But since it sometimes is difficult to know if the use will be considered commercial or editorial, it's always a safer to get the model release.
And that probably explains why the general rule I was taught by various photo teachers was when it doubt get a release.

The issue of nude photos of children is very controversial and has been fought out in court in various contexts. The baby picture taken by the parent of their kid in the bathtub usually does not cause much trouble. In theory, art photographs of nude children are also ok, but many photographers have gone through a lot of hassles defending this right.

[Kaa]

The issue of nude photos of children is very controversial and has been fought out in court in various contexts. The baby picture taken by the parent of their kid in the bathtub usually does not cause much trouble. In theory, art photographs of nude children are also ok, but many photographers have gone through a lot of hassles defending this right.
Kids-in-the-bathtub pictures *usually* do not cause trouble, but I know of a couple of cases where they led to a LOT of trouble (see e.g. http://www.cs.cmu.edu/~pshell/gammage/testimonies/cambridge-story.html (http://www.cs.cmu.edu/%7Epshell/gammage/testimonies/cambridge-story.html) and http://www.interesting-people.org/archives/interesting-people/200304/msg00280.html )

Also, yes, art photos of nude children lead to huge amount of hassle, hate mail and such, but on the other hand, Jock Sturges' books are on the shelves of Barnes & Noble...

Kaa

[Bruce Hooke]

Yes, it was the Cambridge story I had in mind when I wrote "usually" and Jock Sturges when I talked about court cases. I had not come across the Dallas story.

Sometimes I really wonder about this country...

[Phillip Allen]

Kaa, these are truly disturbing stories...do you know the result?

[Kaa]

Kaa, these are truly disturbing stories...do you know the result?

Well, I'm pretty sure emotional trauma and financial hardship (lawyers are expensive) would be among the results... I don't remember offhand what the legal outcome of the cases was, but a bit of googling should turn it up.

Kaa

[Osborne Russell]

What was the intent of the framers re: blogs?

[Phillip Allen]

of course lawyers are expencive...they have a lifestyle to maintain...(a reason I don't like the American rule)

[Phillip Allen]

The intent, Osborne, was free speech by what ever method the speaker uses. The method did not exist but the speech did...one could argue that freedom to travel doesn't include land beyond the original thirteen colonies because that land did not exist within the boundries of the United States...

[Nicholas Carey]

Here's the case. http://www.mindfreedom.org/know/psych-drug-corp/eli-lilly-secrets/documents-borne-by-winds-of-free-speech
It involves the release on the web of internal Eli Lilly documents "suggesting that the company tried to hide or play down the health risks of its leading antipsychotic drug, Zyprexa". A judge is trying to block the release of the documents, which given the nature of the web, is pretty difficult.

“Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed.”The deal on this case is that the judge ordered the documents (evidence in the case) sealed.

One (or more) of the participants in the case leaked the documents. Bloggers picked them up and they have since been spread all over the 'net.

The judge is trying to undo the violation of his order, or as the law professor put it, Judge Tries to Unring Bell Hanging Around Neck of Horse Already Out of Barn Being Carried on Ship That Has Sailed.

Futile effort.

[Nicholas Carey]

Thank you for the clarifications. The one thing I would note is that I have always been taught that even if my photographs are in a gallery and being sold as "art," this is still considered commercial use, or at least the safe route is to treat it as commercial use. I think I'd have more protection if I was, say, using the image for the purposes of satire or political comment, but this all gets into gray and complex areas that are probably a distraction from the point of this thread.As I understand it, the context of the photo is what determines whether or not a model release is required. If the photo was a candid photo, shot in public -- say, of a couple snogging while sitting at at the table of a sidewalk cafe -- no model release is needed and they have no recourse to prevent or control the publication of the photo.

The subjects of the photo were just part of the street scene. They were in public and hence had no expectation of privacy.

If, on the other hand, the couple posed for the photographer in his studio (or, for that matter, at that same sidewalk cafe's table), model releases would be needed as the context of the photo is different.

[Keith Wilson]

One (or more) of the participants in the case leaked the documents. Actually, I think they were subpoenaed by a lawyer involved in another case; some question of jurisdiction? Anyway, a nasty complicated legal wrangle, and a judge that doesn't understand that it's nearly impossible to get something back once it's on the web.

[Landrith]

I think looking at whether you can write what you want should dispense with First Amendment analysis. I think people are better served by analyzing power. I have relied on clearly established First Amendment rights to protected political speech in seeking redress and have been within controlling case law examples of permitted speech for the jurisdiction and in US Supreme Court precedent. I even had the benefit of Congressional policy in the form of statutes protecting and immunizing my speech further. It all meant nothing compared to the inconvienience of some city officials stealing federal funds from minority neighborhoods. My life was destroyed over it.

Applying that experience to a Blog vs Established media problem, you can look at the greater political impact of trying to crush a newspaper that might be able to rally the masses against the crusher and compare how easy it would be to just send some law enforcement officers into a home or an ISP and cause a Blog to be shut down. How could a few Blog readers widely dispersed hurt you? If any other media covered your unconstitutional repression you could just say the USA PATRIOT Act provides you the power. In my unrelated experience, federal judges did not even read the the USA PATRIOT Act or any pleadings quoting it.

Its all about power. When the Constitution quit being an absolute and instead a "living" document it changes for the moment and government exercise of power is always right and now its lawful too.

[Bruce Hooke]

As I understand it, the context of the photo is what determines whether or not a model release is required. If the photo was a candid photo, shot in public -- say, of a couple snogging while sitting at at the table of a sidewalk cafe -- no model release is needed and they have no recourse to prevent or control the publication of the photo.

The subjects of the photo were just part of the street scene. They were in public and hence had no expectation of privacy.

If, on the other hand, the couple posed for the photographer in his studio (or, for that matter, at that same sidewalk cafe's table), model releases would be needed as the context of the photo is different.

Actually, at least when it comes to images that are being used for clearly commercial (advertising) purposes, I don't think this "loophole" exists, but I'm no expert on these matters. I am not a street photographer, so I have not delved into this realm that much.

[Phillip Allen]

I think looking at whether you can write what you want should dispense with First Amendment analysis. I think people are better served by analyzing power. I have relied on clearly established First Amendment rights to protected political speech in seeking redress and have been within controlling case law examples of permitted speech for the jurisdiction and in US Supreme Court precedent. I even had the benefit of Congressional policy in the form of statutes protecting and immunizing my speech further. It all meant nothing compared to the inconvienience of some city officials stealing federal funds from minority neighborhoods. My life was destroyed over it.

Applying that experience to a Blog vs Established media problem, you can look at the greater political impact of trying to crush a newspaper that might be able to rally the masses against the crusher and compare how easy it would be to just send some law enforcement officers into a home or an ISP and cause a Blog to be shut down. How could a few Blog readers widely dispersed hurt you? If any other media covered your unconstitutional repression you could just say the USA PATRIOT Act provides you the power. In my unrelated experience, federal judges did not even read the the USA PATRIOT Act or any pleadings quoting it.

Its all about power. When the Constitution quit being an absolute and instead a "living" document it changes for the moment and government exercise of power is always right and now its lawful too.

A pragmatic approach...and it tends to tighten my gut a little...I've know these types including the Clintons...the world has very dangerous people in it.