The Public Eye by Louis Fine

A first amendment themed blog for JOUR3776 at the University of Minnesota.

[lfin94]

My Comments for JOUR3776

Here are the links to the Tumblr posts that I commented on for this project. My commenter name is lfin94:

http://elliegeraetsblog.tumblr.com/post/69961950679/facebook-like-speech

http://sjmcnate.tumblr.com/post/68733450747/haitian-photographer-wins-copyright-case-in-u-s-court#disqus_thread

http://emilyac31.tumblr.com/post/68178972441/does-the-first-amendment-really-give-you-the-right-to#disqus_thread

http://zc1amend.tumblr.com/post/67222244271/obamacare-or-privacy-scare

http://martha-lueders.tumblr.com/post/69446633711/cautious-media-professionals

[lfin94]

Is The Attack In Benghazi Being Handled Like The Vietnam War?

In lieu of my class's recent discussion of the leaking and handling of the Pentagon Papers I have been reminded of the recent attack in Benghazi. In my opinion there are some contextual similarities between these two that make me question whether the attack has been handled correctly.

Just as a recap, The Pentagon Papers were a government study leaked by Daniel Ellsburg to The New York Times and The Washington Post which exposed a lot of information to the public about what was really happening in the war in Vietnam, the most privileged of which being our losing condition. The U.S. government, who had been assuring the people of the US of the country's success in Vietnam, tried to do everything in it's power to suppress further publication of those documents. They even took The New York Times to court claiming that the publication was a threat to national security. After the two week trial (that is fast, not slow) the courts deemed that the publishing of the Pentagon Papers was not a threat to national security.

The attack in Benghazi had some similarities to this situation. On September 11, 2012, between 9:40PM and 10AM the next day (times are according to CNN) there was an attack on the American consulate in Benghazi, Libya which resulted in four American deaths. One of the deaths being our ambassador, Christopher Stevens. When first asked about this, the Obama administration blamed the attack on an anti-Islam YouTube video and in a speech in DC he wouldn't call it terrorism but he briefly mentioned acts of terror in an unspecific manner. Obama also initially claimed that he was unaware of the attack and that it was a pre-planned event, but mounting evidence grew of his awareness of the situation as it had happened as well as his lack of action.

(See more information in this article from Fox News: http://www.foxnews.com/politics/2013/05/13/fact-check-timeline-statements-raises-questions-on-obamas-benghazi-claims/)

This prompted lots of critiques of the government's effectiveness both in handling issues in the Middle East and in communicating with the public which is why the Obama administration's handling of the attack in Benghazi reminds me of the U.S. government's approach to the Vietnam War. Here we have an issue of national security with a similar context that the government hadn't perfectly handled or communicated to the American public. While some of the buzz about the attack has simmered recently, there has been more of a push to make more information about the Benghazi scenario available, as of late October of 2013. As a brief example, consider this excerpt of Senator Lindsey Graham who in this CNN interview on October 31st, had this to say when discussing the possibility of getting access to information from the survivors of the Benghazi attack:

"This is a big deal. We haven't gotten the truth. And the only leverage I have is to insist upon this information being released by stopping nominations. I'm not asking for too much. Is it really too much for me to want to talk to the people who were in Benghazi independent of the administration? Or should, in the future, the Congress just be told to shut up and go away, trust us, we've looked at it."

Should we be pushing for more information as well? Do you think that the government's handling of the Benghazi attack is similar to it's handling of the Vietnam War's publicity? How do you feel about the handling of the Benghazi attack (before, during, and after the fact)? Let me know in the comments what you think.

More Links:

CNN timeline of Benghazi: http://www.cnn.com/2013/08/06/politics/benghazi-attack-timeline/

Lindsey Graham CNN interview: www.realclearpolitics.com/video/2013/10/31/lindsey_graham_very_good_chance_of_getting_access_to_benghazi_survivors.html

[lfin94]

Does Modern Access Need To Rethink The Definition Of "Journalist"?

    In exploring this last week's subject of access to judicial and non-judicial sources I had a bit of a throw-back to a previous ethics class I had taken that asked me about who counted as a journalist. My first answer to this question was that a journalist was a person who did journalism professionally for the mass media. My professor made me rethink what my answer meant when he in turn asked me if bloggers and civilians on the internet count. After all, with the advent of the internet, anyone can cover anything and reach a large scale audience.

    This consideration has resurfaced in me when thinking about public access of the courts because of how the courts create special restrictions in the interest of preserving the 6th amendment protection of defendants. (For those of you who need a short review, the 6th amendment is the one that establishes the right to a fair and speedy trial). The regular notion of press involvement with the fairness of a trial has proven challenging enough as we've seen in cases like Sheppard v. Maxwell (1966) and Nebraska Press Association v. Stuart (1976); where when taking into account the media's influence, the courts have had to make tough decisions to protect the defendants' rights .

    But now with the proliferation of social media like Twitter and Facebook, anyone with a cellphone can cover or receive coverage of court related issues and spread information to the outside (or inside world). According to this article

http://law.about.com/od/trialtechniques/a/Social-Media-Use-By-Jurors-In-The-Courtroom.htm

lawyers and prosecuting attorneys are starting to accommodate for social media's spread by stopping the potentially elected jurors from accessing their social media profiles and those of others when there is the risk of bias. This problem has been messing with the results of numerous cases and according to the article "has resulted in numerous new trials and overturned verdicts".

    My posed questions are a tad more complex this time. If the role of "journalist" can be extended to anyone who uses the internet to comment, cover, and or share information, does keeping the jury from using social media or monitoring their usage during court proceedings count as a prior restraint or some other kind of unconstitutional restriction? Do you see a way to legally limit social media's threat to the 6th amendment? Let me know in the comments section below.

[lfin94]

What Is The Logic Behind The Anti-Honor System?

    Pirating, torrenting, illegal downloads, and streaming. They are such fierce words for acts that are so simple and rewarding. Growing up in the late 20th century and well into the early 2000's these actions appeared to be rampantly growing in their frequency as the resources necessary to do so became more abundant. I've never torrented. I came close once but my honor system got in the way. I don't mean to rag on those who have partaken in doing so, but the arguments that I've heard in support of illegal downloads have always seemed flawed and our recent studies in my mass communication law course have only seemed to advance my assumptions.

    As an example of some of the arguments I have heard, I want to reference an article that was published to realclearpolitics.com that was written by Cathy Young. Here is the link:

http://www.realclearpolitics.com/articles/2012/01/24/copyright_debate_misses_big_picture_112884.html

    In her article there were several statements that particularly caught my attention. The first was in reference to the commercial relationship between illegal downloaders and the sources of their taken content:

"Yes, creators and copyright holders have important rights and legitimate interests. And yes, some Internet users display an obnoxious sense of entitlement to "free" intellectual content. But media corporations and other owners would be far better helped by being savvy about consumers' wants and needs than by draconian and ultimately futile attempts to police the Web."

    This excerpt, which was in reference to Acts like SOPA and PIPA represents to me a general philosophy that has been inspired by the advent of the consumer internet. The idea that receiving content in our capitalist system without going through the necessary means of sale and exchange is justified by wanting.To me, these wants and needs are similar in that they are to just not pay.

    Since the medium is known as the world wide web lets put some real world standards on this. Could you imagine if in an open market thousands to millions of people repeatedly came in and out and pocketed goods under the logic that the shop keepers weren't considerate enough of customers who wanted access without paying? It boggles my mind to think that a digital wall inspires this difference in consideration of the market.

    But then again, there are people that argue that taking part in these actions is extremely negligible on the market for the content they are taking in. Ms. Young in her article took it a step farther as to ask whether or not copyright owners deserve to profit from every customer.

"A common retort is that theft is theft. But do owners of intellectual property have a right to collect a profit from every consumer? Consistently applied, such a position should lead to a ban on libraries and make it illegal to lend a book or DVD to a friend -- or even to resell used books, CDs and DVDs."

    Thanks to our class I was able to see the flaws in this statement since the first sale doctrine and the Copyright Act of 1976 (and it's updated versions) have already accommodated this issued to only allow copyright holders  control over the first sales of their works. While there is no protection for people who illegally reproduce, distribute, and receive, it seems silly to think that enforcing copyright protections would eliminate the ability to resell or borrow to people who have legally consumed in the first place. On that note, it should be obvious that Libraries, being a legal and government funded institution wouldn't be hurt this protection either.

    Every now and again, arguments like that of Ms. Young's appear to be  getting more popular and it makes me wonder about how businesses, internet service providers, and copyright holders should react to this logic that places customer desires above lawful standards. Do you guys have an idea as to a possible solution to online piracy? Let me know in the comments section what you think.

[lfin94]

An Interesting Adventure With Homework And Emotional Harm

A common issue amongst many modern college students is the issue of procrastination. Sometimes things more stimulating than homework come along and consequently statements like "Wow, look where the time went." and "Wait, what do you mean the exam is tomorrow?" start popping up faster than popcorn. Comparatively, I had a rather unique experience with procrastination this weekend where my distraction ended up actually bringing me back to my schoolwork almost immediately.

On Saturday I started watching some clips of The Daily Show with John Stewart and as I watched him make fun of our President, the mayor of Toronto, and other world leaders, the only thing I could think was "If it wasn't for cases like Hustler Magazine v. Falwell,  publicly distributed content that made fun of public figures wouldn't be as protected as much they are now. The writers of this show are lucky that they don't have to answer to who they make fun of."

After having this thought I immediately turned off the show and opened up our case book to see if I was mentally referencing the right case. Since I did, I gave myself a congratulatory pat on the back, but in doing so I thought of an interesting question: When considering how the IIED torts require content that is so outrageous that it transcends the bounds of decency in a civilized society, and while those same torts require actual malice standards when public figures sue, is there a line between protected and unprotected satire?

SCOTUS determined that allowing Falwell to maintain his damages for emotional harm from generally offensive content would hurt the market for free speech and expression because people who expressed satirical views would be at great risk. Though I agree that the marketplace of ideas must be protected (even if it fosters offensive material) I do wonder if there is a legal line drawn anywhere that satirical comedians who -pride themselves on being controversial or shocking about newsworthy material- aren't allowed to cross.

Does a legal line like this exist? Is it beyond the scope of generally unprotected speech? Let me know in the comments section.

[lfin94]

What Way Should We Imply A Thousand Words?

There is a news story that came out on CNN in early September that I had thought about a lot about but forgot about until the issue of false light came up as a subject in class. In this case, a 22 year old newlywed from Missoula, Montana murdered her husband by pushing him off a cliff only 8 days into their marriage. The coverage of crime was fine for the most part but the use of pictures of the couple from Facebook disturbed me. Here is a link to the news broadcast on CNN:

http://www.cnn.com/2013/09/11/us/montana-husband-death/

There's nothing really wrong with the coverage. My only concern was that most of the pictures they used were of the couple smiling and happy together when at a glance their relationship doesn't quite match that representation (see how one of them is dead now).

Now the first amendment and defamation common law allow fair/comment and criticism; especially by the press, but what kind of communication is happening when the couple is presented this way? In my opinion this is sensationalizing a murder for the sake of being unique. Each time I view this coverage I can't help but think "What went wrong between these people?" and "What happened?". They become fictional characters like that of a soap opera that I must know the details of their drama.

I have to give props to the reporters who put this together because the broadcast keeps me interested and involved but is this interest for the right reasons? I'm not sure. If I covered the crime I would have focused more on shots of the scene of the crime rather than Facebook pictures because it would be a less dramatic representation.

But now I have a question for you guys. Does showing the pictures of the couple smiling and happy throughout the news segment embellish the coverage of the story since their marriage ended rather quickly in murder? If so, what solutions would you suggest to work around sensationalizing news stories like this? If not, why?

[lfin94]

What Can We See In False Light?

    This week's subject of privacy - more specifically false light was a bit of a throwback for me because it reminded me of how the news media represented the recent Trayvon Martin case.

    In Time, Inc. v. Hill 385 U.S. 374 (1967), the Hill family who unfortunately was briefly held hostage in their home by some escaped prisoners, sued Time, Inc. for announcing an upcoming play and motion picture in Life magazine because it was an inaccurate portrayal of what actually happened. Apparently the re-enactment had inserted false events such as violence being inflicted on the father and "verbal sexual assault" on the daughter.

    When considering the Trayvon Martin case I noticed a similar inaccuracy when the story was introduced to me. This was different from Time, Inc. v. Hill in that it was an issue of positive inaccuracy. Its is important to establish some facts before I discuss my perspective though. According to CNN's article Trayvon Martin Shooting Fast Facts, on February 26th, 2012 George Zimmerman shot Trevon Martin claiming it was self defense. By March 12th, 2012 the Sanford Police Department's Police Chief Bill said that charges had not been placed because there was no grounds to disprove Zimmerman's story of the events. By March 26th, 2012, rallies were taking place across the country in protest.

    It was around this time that the issue came to my attention. I was walking to a bus stop on campus after a night course at the U of M when I noticed tons of protestors for Trayvon's cause leaving campus as well. There was a rally, and the protestors adorned themselves with commemorative signs, hoodies, Skittles wrappers, and iced tea cans in tribute to the boy's death. I had no idea what this was so I asked two or three people who seemed as though they were involved. What they then wouldn't stop telling me was that an innocent black boy in Miami was shot by the racist George Zimmerman because he was wearing a hoodie and carrying iced tea and skittles.

    This issue - which was new to me at the time - was unnerving. I wondered if we actually had a new hate crime on our hands, but I wasn't going to let one source shape my opinion on such an issue. I decided to wait until I got home to see how the media would handle what was going on. From what I saw that night and nearly every day after, all the news stations would show were pictures of a young and innocent Trayvon and discuss whether or not Zimmerman was a murderer.

    Celebrities were protesting on behalf of Trayvon (Here is a link: http://www.washingtonpost.com/lifestyle/style/celebrities-show-support-for-trayvon-martin/2013/07/18/7dec4668-ef3b-11e2-bed3-b9b6fe264871_gallery.html#photo=1 ), and on top of this, a large number of regular people; whether online or ones that I knew personally would discuss it the same way, even going a step farther to declare that it was in fact murder.

    This all changed though when evidence of a fight between Trayvon and Zimmerman surfaced with a notion of Trayvon being an aggressor.  Pictures were published of an injured George Zimmerman, and pictures of Trayvon that made him seem more thug-like than innocent appeared as well. I'm going to put two here as an example but a simple Google search will find scores more (WARNING: They are slightly graphic):

        Most of the people that I knew who were adamant about Trayvon's innocence immediately backed off after seeing pictures like this and certain related information. This isn't to say that they then supported George, but they did take a stance of unsureness because they didn't know what to think of the situation any more.     I am not bringing this up to tell people to pick a certain side. The only way we would be able to know what really happened between these two is if we were there when it happened. I bring this up because we as professional journalism students have both a future obligation to objectivity and a potential to shape the minds of the public. We need to understand how certain representations can have powerful effects on the masses even when they may not be a negative representation of a subject.

    Do you think that the Trayvon Martin case had issues with false light? Do you think that the media's earlier coverage was objective or biased? What about news in general? How did you feel during this Trayvon dilemma? Let me know in the comments.

[lfin94]

How Far Is Our Reach On The Internet? Should We Be Worried?

This week I was writing a paper for my Mass Communication Law class that had the following prompt:

    "Mr. Smith, like the majority of American adults, has a social media profile, and he posts daily on his whereabouts, hobbies, and other interests. Mr. Smith becomes involved in promoting animal rights and, over a period of several months, he posts numerous accounts of animal brutality and encourages philanthropic action on his profile, which is accessible to around eight hundred “friends.” Ms. Jones, who has access to Mr. Smith’s social media site, accuses  Mr. Smith of being a fraud and labels him an animal killer. Experiencing reputational damage, Mr. Smith sues Ms. Jones for defamation. Can Ms. Jones claim Mr. Smith is a public figure and therefore avoid liability unless Mr. Smith can prove she acted with actual malice?"

It took me a long time to figure out if Mr. Smith qualified as a public figure due to the initial issue I was considering which was whether or not his social media profile's friend list counted as "the public". While I can't delve to far into my reasoning (out of fear that my Professor will think I am "copy-pasting" my paper as my entry for this week), I will say that I ended up going with a different premise inspired by the case Gertz v. Robert Welch Inc as to why he counts as a public figure and made this issue a contributing factor.

But this "contributing factor" of whether or not our friend's list is the public intrigued me because as I briefly procrastinated on Facebook earlier this week, I noticed that I could see the statuses of my friends' friends without being in contact with those people as long as my listed friends had interacted with them in some way. Now Facebook has a privacy policy that allows you to stop friends of friends or any public people from seeing your content on their site, but assuming that all 800 some of our hypothetical Mr. Smith's friends on Facebook had their privacy settings on "public" or "friends of friends", and Mr.Smith did as well, how many people could have had access to Mr. Smith's content (again assuming that all 800 friends had interacted with his content in some way). Moreover, what does this mean for us as a society that our posts and shared content can be looked up as long as the right barriers are moved out of the way?

It boggles my mind to think of the karma associated with writing on the web. To ironically quote a movie about Facebook, the movie "The Social Network" had a character who yelled at the creator of Facebook in his college years saying that "The internet isn't written in pencil, it's written in ink." Here's a link and some questions: http://www.youtube.com/watch?v=6HbrQMgOUFw

How should we approach public writing on the web? The statute of limitations for defamation is only a year and there is a distinct aura of common sense that just says, "think before you post" but realistically we can assume that not all of us do that all the time. Should we have new legal processes that are more tailored to accommodate the internet's reach? Can we be held accountable for our words years after we post? On a side note, what do you think of apps like Snapchat that delete your content shortly after you send it? Let me know in the comments. I'd like to see what you think.

[lfin94]

Who's Job Is It To Preserve Our Freedom Of Expression?

    Recently I went to a lecture in the Law School at the U of M Twin Cities. The Silha lecture -as it was called- had James Goodale; a prominent 1st amendment lawyer who came to discuss Obama's current actions related to free speech and the NSA. Here is a picture:

    Goodale started his lecture by discussing how the Nixon administration approached the Pentagon Papers when they were published in 1971. According to Goodale, when the Pentagon Papers; a large and top secret government study was being published by The New York Times and The Washington Post, the government took them to court in an attempt to charge them with conspiracy and espionage. The Newspapers won in the lower courts but lost in the appellate courts. At this point SCOTUS stepped in and ruled in the favor of the newspapers and the case was dropped.

    But Goodale didn't just tell us the back story of the case. He told us about the lies that the government made in an attempt to win; the biggest one being the government's claim that the publishing of the papers broke the code they had with the North Vietnamese. This turned out to be a lie when a man in the court realized that the translated code excerpt they used as evidence was really an excerpt from the congressional record. He used this to reason with us that we shouldn't "buy government labeled threats to national security hook line and sinker".

    On that note Goodale moved to the topic to Obama's pursuit of modern leakers. According to his speech, the Obama administration has acquired metadata on all U.S. Citizens (some 3 billion pieces) in an attempt to help national security find them. Obama defended the administration's actions with the Patriot Act but then the man who wrote the Patriot Act got upset and claimed that this was not what the act was meant for. Goodale then claimed that the Obama administration's methods of pursuing leakers and lying about their justifications for doing so is a repeat of Nixon's mistakes with the Pentagon Papers, however if Obama succeeds in catching them he will then be worse than Nixon because he'll get away with it. Over the course of the speech he voiced his concern about this and reasoned that a politician who lies under oath should be brought to justice.

    There was a Q&A session at the end where I asked him what he would like to see a future president/administration do to solve this problem. He said that a future president should do two things:

1) Not chase after so many leakers, and

2) be sophisticated enough about national security that he can provide some push-back against the NSA.

According to him a central focus on national security is okay but a presidents needs to be able to discuss with the NSA.

    But now I have questions for you guys. Where do you think the line is drawn between free speech and a threat to national security? Should the government have the right to cover up their reasoning in court when first amendment rights could be infringed in the process? To what level should the U.S. government be honest with the country about what they are really doing? Let me know what you think in the comments section!

[lfin94]

Is Indecency Now Decent?: How Far Are We Willing To Go For A Laugh?

As we learned in class, "the crux of the controversy" of the older indecency cases between broadcast stations like Fox, Pacifica and the FCC stemmed from events like George Carlin's monologue "7 Words You Can't Say On TV" and actors who swore on award shows; unexpectedly costing the networks between thousands and millions of dollars. As I am sure we are all aware, the leash has definitely been loosened since these cases have happened judging by the language and profanity permitted on channels like Comedy Central, but after watching a recent re-run episode of a show called Tosh.O I am a little worried as to where American society's sense of humor is going with this increased freedom.

Just to clarify my tastes, I want to warn you that I am a bit of an old soul with my comedic preferences. I love listening to old recordings of past stars like Bill Cosby, and Bob Newhart, as well as watching old TV shows and Movies starring Jack Benny, Jerry Lewis, Dick Van Dyke, Andy Griffith, Victor Borge & more. I have some favorites who are more vulgar and indecent but not unjustifiably so. For example I love George Carlin's work because he prided his work on being controversial in a colloquial sense. I deeply enjoy Louis C.K.'s routines for the same reason.

In my opinion though, the line between relatable indecent comedy and the unwholesome is becoming thinner as we become less sensitive to more gruesome humor. The other day I was watching a rerun of Tosh.O (Comedy Central's AFV for youtube) when a really unwholesome bit happened. Daniel Tosh, the host of the show, played a youtube video of Muammar al-Gaddafi, the past dictator of Libya, getting captured and murdered by the Libyan rebels (watch at your own risk):

http://www.youtube.com/watch?v=5FiYo0JU8jo

During this sketch, Tosh makes fun of Gaddafi for (pardon my language) getting a knife jammed up his a** by one of the rebels. Tosh then proceeded to show a sketch where he mimicked the action on his coworkers by surprising them from behind and poking them in the butt while yelling "Qaddafi'd!". He then thanked Gaddafi for dying so that they could do that.

I feel that this kind of humor comes from the disconnect made by the internet that desensitizes people to the problems of others. Louis C.K. during an interview on Conan made an interesting commentary on how digital connectivity affects how kids interact because (keep in mind that I am paraphrasing) of how the digital divide protects them from the consequences of what they say. Here is the link so you can see what I am talking about:

http://www.youtube.com/watch?v=5HbYScltf1c

When you combine this desensitizing connectivity problem with the availability of day time TV and web connectivity from almost anywhere, it makes it very easy to understand why one of the justifications of the FCC during their older cases was to protect the children from indecent content.

Is there something that should be done about this? Censorship is out of the question for me because it harms free expression but for those of you who are like me and don't support this kind of humor, are there things that should be done on an individual or parental level? In my opinion, one of the greatest ways that we effect the future is by both how we make choices and how we raise our kids to make choices. When I have kids one day I'll be monitoring and tailoring the content they see for as long as possible to make sure that at least in my family this tendency in modern comedy isn't considered funny.

If you have an opinion on this please leave a comment and let me know. I'd like to see what you think.

[lfin94]

How Should Government Heads React To Government Tails?

    Not even a century ago when the Near vs. Minnesota case was taking place, mass produced, scandalous intelligence by an unauthorized source on the activities of government officials was grounds for the local and state law officials to take action. However, even though the 14th amendment has been re-applied by the SCOTUS to protect the civilian's free speech rights and the freedom of the press, we still see people being pursued for revealing hidden information. The most modern and dramatic example that I can think of is Edward Snowden; a current enemy of the state. While I understand that there is a sharp and defined difference in the danger of Snowden's actions in comparison to that of Near, I'm left with three questions:

1) How does the government feel to have people revealing and decrypting information on both sides of where the law's line is drawn?

2) Does the internet count as part of the fourth estate when an independent blogger is deciphering government information? And,

3) While he is distinctly not a member of the press, could the actions of people like Edward Snowden have a negative effect on established, independent members of the press in terms of their relationship with the government?

    These queries entered my mind when I came across this article on realclearpolitics.com that glorified the Michigan blogger Marcie Wheeler whose "...work enables journalists, lawyers, advocates and experts to unmask the government’s secret spying apparatus.":

http://mag.newsweek.com/2013/10/04/the-woman-who-knows-the-nsa-s-secrets.html

    If any of you out there have an opinion as to the answers to my questions or a recent case related to issues with the independent press/government dynamic, please leave a comment and let me know. I'm excited to hear what you have to say.