The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

by Tony Guo


Over Fall Break I visited my fiancée in New York City.  As part of my visit we went to Washington Square Park.  We both graduated from New York University and Washington Square Park is a second home to us.  It was the first place I met my fiancée.  Before I graduated the park had undergone renovations forcing the two previous classes and my class to break tradition and graduate in Yankee stadium instead Washington Square Park.  I was curious to see the recent renovations and excited to visit my favorite park.  When we got near the park we saw rows of police vehicles.  We had stumbled upon an Occupy Wall Street protest.

My fiancée and I made our way to the barricaded fountain and in the process received several copies of the same Occupy Wall Street newspaper.  As we left the park to go to the vendor fair nearby I heard a protestor arguing with a resident.  The protestor held a copy of the Constitution and a copy of the Occupy Wall Street newspaper.  The protestor gave the newspaper to the resident who immediately threw it in the trash can.  As the resident moved away, the protestor shouted “you are suppressing my First Amendment right to be heard.”  The protestor having not taken William and Mary Professor Timothy Zick’s First Amendment class was unaware that the First Amendment only prohibits state actors such as a police officer from limiting his right to free speech and not private persons.  The protestors should have said please recycle.



Published in: on November 6, 2011 at 12:01 pm Comments Off on The First Amendment and Occupy Wall Street’s Occupation of Zuccotti Park

9th Circuit Gives California Violent Video Games Bill the Beat Down

Last week, in Video Dealers Software v. Schwarzenegger (pdf), the Ninth Circuit unanimously affirmed a District Court decision for summary judgment in favor of the plaintiff’s constitutional challenge that a California act banning the sale of games classified as “violent” to minors violated the first amendment right to free speech. The Court held that the act constituted a “presumptively invalid content-based restriction on speech” and was subject to strict scrutiny. The Court felt that the State had failed to present a compelling interest and failed to show there were not less-restrictive means of reaching the same end. The Court decided the case on the narrow first amendment grounds and unfortunately (for us conlaw nerds) didn’t get around to the claims that the law was void for vagueness (one of the standards in used in defining violent games in the act was that: “A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.” Seems a little VforV to me.)

The Court held that violent content is distinguishable from sexual obscenity under Ginsburg v. New York (1968 SCOTUS case) because the Supreme Court in that case was very explicit that the decision applied only to sexual material, thus disregarding the state’s contention that the same standard should be used for the two. The court continued on to decide the case based on the old standby first amendment litmus of courts everywhere, the Miller test. Because the State failed to prove any harm as a result of these violent games, the State never had a chance.

Many question the need for the statute in the first place because–as anyone who has set foot in a viedo game store in the last decade already knows–the game companies have taken it upon themselves to provide ratings that are largely followed by game-store clerks. Those in favor of the statute argue that banning the sale of violent games to minors is the only way to assure that children will not be exposed to violence because of the relative ease kids can get around this by purchasing games on the internet.


Published in: on February 24, 2009 at 11:50 pm Comments Off on 9th Circuit Gives California Violent Video Games Bill the Beat Down

W&M Up Against FIRE-ing Squad

The nation’s second-oldest college, which prides itself on having educated some of the most important Founding Fathers, has been criticized for undermining the most fundamental right in the Constitution: the freedom of expression. FIRE, the Foundation for Individual Rights in Education, has labeled William & Mary a “red-light” school, calling out the College for having one or more policies that “clearly and substantially restricts the freedom of speech of its students.”

The Flat Hat reported the story Tuesday on its web site. As part of its free-speech warning system, FIRE, a 10-year-old organization, sent a letter to President (and former law school dean) Taylor Reveley. In the Flat Hat article, Reveley expressed his surprise at the school’s labeling, saying that he doesn’t think W&M is “stifling free speech.”

William & Mary is by no means the only target of FIRE’s mailing. The University of Virginia, Virginia Tech, and George Mason all received similar letters. (See the entire list here.)


Published in: on January 28, 2009 at 8:41 pm Comments Off on W&M Up Against FIRE-ing Squad

Fox News v. FCC: Indecent Restrictions on TV Profanity?

If a word describes something usually done in the bedroom or bathroom, then that word should only be used in private. That is the motto after which the Federal Communications Commission’s (FCC) rules regulating the use of profane language on broadcast television seem to be modeled. One cannot delve into the meaning and purpose of FCC regulations without first understanding the subtle, and arguably arbitrary differences between obscenity, indecency, and profanity. Most people probably view these three words as interchangeable. In the context of everyday life they are. Legally speaking, there are differences between the three words.

Obscenity is the worst of the three and is not protected by the First Amendment. Obscene material is defined as “that which would be categorized as lewd by the average person applying contemporary community standards.” Obscene material depicts or describes sexual conduct in an offensive manner and lacks any artistic, political, or other important value. Indecent material is a little less offensive, and it is protected by the First Amendment. It has been defined as material which depicts or describes sexual or excretory activities in an offensive manner. Profanity, as defined by the FCC, includes language that is so offensive to people who hear it that is rises to the level of nuisance. Profanity is not always unlawful, foul words take on their indecent or profane character depending on the context of where and when they are spoken.

Currently, the Supreme Court is hearing a dispute between the major broadcast networks and the Federal Communications Commission. In the 1970s, the FCC was given authority to prevent profanity from airing on broadcast television between the hours of 6am and 10pm. Punishment for violating FCC regulations was limited then to cases where networks repeatedly aired profane language that was used in an effort to shock; one time slip up’s were excluded.  In response to the use of the F Word and the S Word by celebrities at award shows, the FCC adopted a policy which categorizes all profanity, even a single use of it, as indecent because certain words always create “sexual or excretory images.”

However, U.S. Supreme Court Justices do not all agree with the FCC’s contention that any use of the F Word or S Word always creates “sexual or excretory images.”  (more…)

Published in: on November 10, 2008 at 8:18 pm Comments Off on Fox News v. FCC: Indecent Restrictions on TV Profanity?

The Obscenity Prosecution Task Force’s Crusade Against Porn

One of the most controversial recent Department of Justice initiatives is the Obscenity Prosecution Task Force (OPTF) founded in 2005. According to the DOJ’s official website, the OPTF “is dedicated exclusively to the protection of America’s children and families through the enforcement of our Nation’s obscenity laws.” Recently, however, those dubious aims have recently come under fire.

The OPTF specializes in bringing the makers and distributors of hardcore pornography to trial under the Supreme Court’s 1973 decision Miller v. California. Miller held that the first amendment did not protect obscene materials in violation of “community standards”. The OPTF claims that by prosecuting sellers of pornography featuring consenting adults, it will not only protect children by keeping them from being exposed to hardcore pornography, but also that it will lead to a decline in the production of illegal child pornography. However, many feel that this logic is dubious at best. This is largely because the vast majority of these explicit videos are seen by adults who have consented to purchase them as well as numerous experts beliefs that focusing on prosecuting child pornographers is a more effective way to deter them. Many of these experts believe moral policing to be the true reasoning behind the obscenity prosecutions.

Not only do many people question the motives and reasoning of the OPTF, but many law enforcement and government officials are puzzled to find that prosecuting pornographers is seen as a DOJ priority, especially in large cities like Miami where issues such as terrorism, corruption, and crime are regarded as more deserving of the support of federal law enforcement.


Published in: on October 23, 2008 at 5:14 pm Comments Off on The Obscenity Prosecution Task Force’s Crusade Against Porn

WTF? FCC v. Fox Television Stations

On Friday night, a few of the nation’s leading law scholars argued whether fleeting expletives can be publicly broadcast without a fine.

The moot court was scheduled as part of the Institute of Bill of Rights Law annual Supreme Court Preview. This year’s case, FCC v. Fox Television Stations, featured Tom Goldstein, one of the nation’s top Supreme Court litigators, arguing to uphold a new FCC policy that penalized a single expletive uttered by rock star Bono during a broadcast of the January 2003 Golden Globes ceremony.

Goldstein noted the “increase in the coarseness of dialogue” while arguing that the FCC should have the right to change their policy and administer fines based on context. Justice John McGinnis from Northwestern Law School, commented on a perceived increase in vulgar language due to celebrities racing against each other for news coverage. Accordingly, a discussion of FCC v. Pacifica and George Carlin’s “Filthy Words” routine followed.

In one line of questioning, presiding Justice Linda Greenhouse, a renowned journalist, asked Goldstein why some bureaucrat gets to decide ex-post if a network is liable for a huge fine. Goldstein simply replied, “what Fox calls a bureaucrat is really an expert agency.”


Published in: on October 1, 2008 at 10:05 am Comments Off on WTF? FCC v. Fox Television Stations

Pastors for Politicians?

The Alliance Defense Fund is calling for Christian pastors to begin endorsing political candidates on September 28, 2008—which has been illegal since 1954. The issue stems from the First Amendment’s Free Speech Clause potentially trumping the IRS tax code 26 U.S.C § 501(c)(3), which exempts religious organizations from income tax so long as those organizations do not endorse specific political candidates.

The ADF’s plan is to regain the right of religious organizations to both announce political candidates they support and continue their tax exempt status. The ADF is hoping the IRS will take away the tax-exempt status of those churches participating in the September 28 rally. The churches, and thus the ADF, will then have a cause of action against the IRS. The ADF hopes for a ruling by the courts that declares such tax codes against religious organizations as unconstitutional.

The most notable group against the ADF’s goals is Americans United [for Separation of Church and State]. The AU is in full support of the tax provision, and even has an online “Report a Violation” form to stop “potentially illegal electioneering by religious leaders or groups.”

Although the battle in court has not begun—if it ever will begin—inferences can be made fairly easily from free speech to the Free Exercise Clause, and the IRS tax code to the Establishment Clause as potential strategies by the ADF and AU, respectively.


Published in: on September 23, 2008 at 4:18 pm Comments Off on Pastors for Politicians?

Secrets, Secrets Are No Fun: Hacking and the First Amendment

Remember the movie Hackers?  In one of Angelina Jolie’s earliest film roles, she portrays an underground computer hacker, a.k.a. “Acid Burn,” with a (micro)chip on her shoulder and a penchant for creating chaos.  The year is 1995, and the internet is just coming of age.  She and her grungy troupe of Jolt-drinking, Cheeto-scarfing computer hackers combine forces to take down a company’s servers.  Basic message: hackers are subversive (and maybe a little dorky).  Fast-forward to 2008, and the public image of so-called hackers is not much better.

This August, students at MIT – as part of a class project – identified a major security defect in the fare card software for the ‘T,’ Boston’s subway system.  The defect allowed any person with a few easily available tools to ride the T for free.  The students wrote a white paper on the subject, and created a presentation for the DefCon conference, where they hoped to share their results with the research community.  Not so fast, said the Massachusetts Bay Transportation Authority (MBTA).

Rather than enjoying the ‘A’ they received on the project, the students wound up in the middle of a federal lawsuit with the T (PDF).  Even though the students shared their findings (PDF) with the MBTA a month in advance of the conference, a gag order (PDF) was issued and the students were prevented from disclosing any of their research to anyone.  Ironically, as a result of the lawsuit, their research became part of the public record, and thus available to anyone with a computer.  Ultimately, the Electronic Frontier Foundation (EFF), a progressive legal fund, came to the students’ aid to get the gag order overturned.  But they shouldn’t have to.


Published in: on September 9, 2008 at 8:57 pm Comments Off on Secrets, Secrets Are No Fun: Hacking and the First Amendment

Privacy and Political Contributions

I recently plugged in my Williamsburg zip code to a Web site to see whether my neighbors were making campaign contributions. Not only was I surprised to discover that classic rocker Bruce Hornsby lives just down the street, but I also unearthed the political affiliations for some faculty members at William & Mary. It was a sharp reminder of the conflict between privacy and political activism provided through the First Amendment and the Federal Election Campaign Act (FECA).

Professor Daniel J. Solove, an expert on privacy law who teaches at GWU (and, umm, for the purposes of poetic disclosure, donated $250 to a presidential campaign in Q1 2008), discusses two problems he has with this publicly available information:

1. I believe that the disclosure of people’s campaign contributions violates the First Amendment…


Published in: on August 5, 2008 at 7:11 pm Comments Off on Privacy and Political Contributions


With all of the chatter around the Supreme Court’s recent Heller, Boumediene, and Kennedy decisions, it has been easy to overlook some interesting cases making their way through other parts of the court system. For instance, Center for Bio-Ethical Reform v. Los Angeles County Sheriff Department, No. 05-55294, slip op. (9th Cir., July 2, 2008).

Without going into too much detail, the Center for Bio-Ethical Reform is an anti-abortion organization that works to “expose as many people as possible to the reality of abortion.” In this case, CBER did it by driving a billboard truck with pictures of aborted fetuses around and parking it by a Los Angeles middle school as students arrived for class in the morning. Two deputy sheriffs made CBER move the truck, citing Cal. Penal Code § 626.8, a state criminal statute prohibiting “disruptive entry” on school grounds. The ultraconservative Thomas More Law Center represented CBER in its suit against the L.A. County Sheriff. On Wednesday, the 9th Circuit very reasonably ruled that the deputies violated CBER’s First Amendment rights.

On Thursday CBER issued a celebratory press release that contained this gem: “The First Amendment means nothing if it doesn’t mean the right to show people things they don’t want to see.” That’s not a perfect definition by any means, but I for one am thrilled to see CBER taking the First Amendment so seriously.


Published in: on July 18, 2008 at 1:52 pm Comments Off on Apophasis