Thursday, September 19, 2013

Facebook "Likes" Ruled to be Constitutionally Protected Free Speech

Yesterday, the U.S. Court of Appeals in Richmond, Virginia issued its decision regarding First Amendment protection of Facebook “likes” of candidates’ Facebook pages.  In ruling that liking these Facebook pages is protected by the First Amendment, the Court held found that these likes are “the Internet equivalent of displaying a political sign in one’s front yard, which the Supreme Court has held is substantive speech.”

The case emanated from an issue regarding employees of a sheriff’s office who were terminated for supporting their supervisor’s opponents.  The support in issue was evidenced by these employees endorsing their supervisor’s opponent’s Facebook page.  One of the employees also chose to post pictures of the opposing candidate on his own Facebook page.

At issue was not merely the speech of the terminated employees, but the fact that their support was evidenced by simply clicking an icon and not necessarily their traditionally defined speech.  Previously, two Federal Courts had held that actual statements posted on a page are protected by the First Amendment.  It was not until this most recent ruling that the use of the “like” button was considered to be protected speech.

U.S. Circuit Judge William Traxler stated that, “On the most basic level, clicking on the ‘like’ button literally causes to be published the statement that the User ‘likes’ something, which is itself a substantive statement”. He continued by saying that, “the meaning that the user approves of the candidacy whose page is being liked is unmistakable”.

“Liking” something on Facebook is widely known to be an expression of support for the original post or page that the person “likes”.  While it is certainly not “speech” in the traditional sense, so much can now be expressed with one click of the mouse.  While commenting on a page or post further espouses one’s opinion, many people choose to express their support not in words but in a more simple way that Facebook allows.  To not protect these “likes” while extending First Amendment protection to actual comments is unequal and unjust, and the U.S. Court of Appeals (in this author’s opinion) has made the correct decision in treating the two methods of support equally.

More information can be found by reading this Bloomberg article.

More information on the case can be found by reading the U.S. Court of Appeals for the Fourth Circuit appellate decision; the case is Bland v. Roberts, 12-1671.

Thursday, March 21, 2013

Drones v. Privacy

The use of drones by the military has become increasingly prevalent in the United States’ conflicts in the Middle East.  However, with the cost of these “unmanned aerial systems”, there is now talk about potential use for these drones on U.S. soil.  

These drones have already been used by law enforcement in finding missing persons, and by county planners in measuring the growth of landfills.  Drones have also been used to investigate suspected arson, using thermal cameras to identify hot spots and investigate the path the fire traveled.  Other potential beneficial uses include reading license plates and face recognition.

However, the cost of drones is dropping to the point that private individuals and companies may have access to their use.  Some fear that criminals such as drug dealers and pedophiles could take advantage of the technology.  On a less sinister level, nosy neighbors may use these devices to monitor their neighbors.

With this technology, issues regarding citizens’ privacy must be addressed.  “Surveillance by government is limited by the Fourth Amendment’s protection against unreasonable searches and seizures, and snooping by corporations and individuals is covered by privacy law and common law. But these were not written with drones in mind.”  As such, states have already considered legislation specifically aimed at the issue of drones and privacy, with Congress lagging behind in the process.

While drones serve invaluable functions in the military, and provide great benefits to law enforcement and other governmental agencies, the potential use by private citizens and corporations raises great concern.  Even the use by law enforcement and governmental agencies raises concerns about overreaching use of this technology.  Without added legislation, citizens’ rights to privacy will be compromised, and this right of privacy is not and cannot be usurped simply by using technology not originally contemplated or in existence when these laws were originally enacted.  It should be the spirit of the law (the right to privacy) that is protected, no matter the words used to convey this intent.

More information can be found at the Wall Street Journal.

Thursday, January 17, 2013

Potential Challenges to New Gun Control Agenda

Yesterday, President Obama announced, in response to the school shooting at Sandy Hook Elementary, his plans to curb gun violence.  In setting forth his agenda, the President is asking Congress to renew a ban on the sale of assault weapons, ensure the performance of background checks on all guns sold and pass new gun-trafficking laws.  The President himself is taking steps to improve the background check process, reinstating funding for federal research on gun violence, ensuring more counselors are available at schools and providing greater access to mental health services.

The Senate is planning to begin discussing the President’s agenda starting next week; the House of Representatives is expected to wait and see what the Democrat-Senate passes before they act.  Once discussions begin, it is expected that there will much opposition to the ban on the sale of assault weapons, as well as a proposed prohibition on high-capacity magazines.  On the other hand, there appears to be much stronger support for universal background checks on gun sales and stricter gun trafficking laws. 

There is much support for stricter gun control, and there are many arguments as to why the President’s proposal is overreaching.  Whether for or against the President’s recently stated objectives, there are some obvious issues that the government will have to deal with before crafting any further gun control laws.

The first most obvious concern will be whether these laws violate the 2nd Amendment to the United States Constitution.  The true import of the 2nd Amendment has been debated whenever gun control laws are proposed.  The question becomes, does a citizen’s right to bear arms (and what type of arms?) trump the safety and welfare of other citizens?  Will these proposed measures even provide for the greater safety they propose to create?  In the Sandyhook Elementary School shooting, the shooter obtained the gun from his mother; increased and improved background checks cannot determine whether a gun obtained by one person, who is able to pass the background check, will be used by another.

A second issue is the failure to create a sufficient database to ensure background checks are thorough.  In order to create a federal database of people prohibited from purchasing firearms, states must provide the necessary data.  Without complete records, some people who should not be permitted to purchase a gun will slip through the crack.  Even though a gun seller does all they are required to do under the law, without proper notification guns may still be sold when they should not be.

Finally, and perhaps most difficult will be to define what constitutes an “assault rifle”.  On one side, people advocate that any semi-automatic weapon with detachable magazines and “military” features like pistol grips, flash suppressors and collapsible or folding stocks should be deemed an assault rifle.  However, gun advocates state that the term “assault rifle” should be used to describe only fully automatic weapons; they believe that many of the features used to designate “assault rifles”, other than being fully automatic, are merely cosmetic.  With such debate over what does and does not constitute an assault rifle, manufacturers may be able to side-step restrictions with minor alterations, much as they did under the 1994 ban.

Whether one sides with the President’s agenda or feels it is overreaching, the above issues will have to be dealt with in order to ensure any legislation that is written fulfills its intended purpose: help to prevent further gun violence while maintaining the rights of United States’ citizens.  The legislation will have to be drafted to be very specific, and cooperation by all states will be required.  The government cannot prevent all acts of gun violence as no system will be perfect, but the government must also exercise caution in creating a law which has no real effect or overly violates citizens’ rights.

For more information, below are articles with additional information: