To crystallize the point: how is this not, on its face, textbook First Amendment material?
Upholding contracts and preventing trespassing (or other "wrongful conduct") are usually fair game for restrictions on 1A. But "Trade secret law is grounded in unfair competition principles, ... [so] First Amendment defenses to trade secret claims are most likely to succeed as to those who did not participate in misappropriating the information, who acquired the information lawfully, and who seek to make public disclosures as to matters of public concern. In exceptional cases, preliminary injunctions may impinge on First Amendment rights even when defendants are in privity or have wrongfully acquired the information."
This isn't just "what's your secret method for cheaply polishing ball bearings." It's clearly a "matter of public concern," and that does help enormously. But your first amendment claims would improve even more if the person distributing the information neither trespassed nor broke an employment contract.
Also note that the California Supreme Court has made it a jurisdiction least likely to apply first amendment to trump trade secret law, thanks to DVD Copy Control v. Bunner.
It would be advisable for any prospective documentarians to pass off any collected information to a local news station (rather than just youtube). Don't tell the network how you got it or develop any long term relationship with them. Make sure they have media liability insurance. Then maybe lay low while they fight the case, which they'll probably have to appeal all the way up. That'd set up the model case and the money to fund it.
Even short of that, though, as a "matter of public concern," this may be one of those "exceptional cases" alluded to above. It'd be interesting to see it argued.
Random interest groups are allowed to call whatever they like "terrorism," and they're allowed to write poorly thought out bills.
Also note that most of the bills are failing.
Even Missouri, where the article says one passed, you're just required to notify law enforcement if you witness animal abuse, and offer them copies of your video:
http://www.senate.mo.gov/12info/BTS_Web/Bill.aspx?SessionTyp...
It's a strange type of gag order that only compels speech.
I mean, these are definitely still bills worth challenging, but the article seems to be embellishing a bit.
This reminds me of an old web design trick. You get the customer specs, plan out exactly what you think will work, and then add something stupid-looking. Like a giant duck by the login button. The duck acts as a decoy for customer complaints; a lot of business people want to point at something and say "change it!", so you give them that. And when they bring it up you smile and say "say no more, I'll have it removed sir".
Likewise, if complaints about a given bill can be pulled or drawn towards language like "terrorism", then the meat of the bill avoids some scrutiny. Hell, an unscrupulous legislator whose constituency opposes the bill could demand the terrorism language be cut and then end up supporting the bill, pleasing both sides of the aisle as it were.
This is just me thinking out loud, though.
The FBI has referred to animal rights activism as domestic terrorism for a while now, it's just that 'terrorism' wasn't a public meme until relatively recently.
(The bit about making violating your employment contract a criminal act sounds exactly like the law that makes you a criminal for violating a website's ToS. Which has pretty much been struck down. But hey, there's no penalty for passing bad laws, so why not try? It makes your handlers happy!)
How many years does it have to pass in US before the Patriot Act, NSL's and FISA are verified by the Supreme Court? We're already into the second decade of their existence now.
<Insert the Thomas Jefferson quote about having a new constitution every generation>
http://en.wikipedia.org/wiki/Glorious_Revolution
Then there was the earlier Civil War where parliament fought a war to remove (and eventually execute) a king long before the French has a similar idea:
The only problem with the American constitution is that the federal government isn't very good at following it. Other than that, it's far more liberal than most liberal democracies even try to get away with.
The US Constitution's protection of the right to firearms, which actually is an outlier among liberal democracies, is also a case in point of its essentially 18th century conception of rights and governance. The Second Amendment is based on the quaint idea that individual liberties can only be secured through the constant threat of civilian rebellion and violence against the government.
Nearly every other liberal democracy regulates and restricts ownership and use of firearms far more than the US does, and those countries have no more fallen into tyranny than the US has - in fact, those countries tend to have governments that are more responsive and accountable to their citizens than the US, in addition to having rates of gun violence that are orders of magnitude lower.
I would respectfully submit that the common American assumption that the government cannot be trusted to do anything right is self-fulfilling.
This, pretty much. It has bottomed out civic participation such that the majority of civic participation comes from businesses whose engagement is about gaming the system.
I admittedly do not have stats to back that sentence up, but I suspect I could find them.
> I would respectfully submit that the common
> American assumption that the government cannot
> be trusted to do anything right is self-fulfilling
With such a significant portion of the country deeply suspicious of government, we steer away from government in the name of "freedom" but actually just place more power in corporations' hands.
I feel as though our country is (perhaps stuck in) our awkward teenage years. You know how teenagers often resist anything teachers and parents tell them? We rail against government just because we can regardless of whether or not it's actually a good idea.
In our defense, the last two presidential elections have shown a willingness of the country (particularly among younger voters) to begin to move away from some of the mistrust in government.
Sometimes people just have to learn things the hard way.
Americans do not actually think this. The highway system, environmental protections, labor laws, the military, Medicare, and Social Security are all extremely popular.
What Americans actually believe is that government actions should not be trusted merely because they are government actions.
The fundamental concept of American governance is that the people are sovereign, not the government. This was a radical notion in the 18th century, and I would argue that is remains so today, given the number of folks who can't seem to wrap their heads around it.
For example, gun ownership is not based on the right to rebel--no such right exists (see: the Civil War). Americans have the right to own guns because Americans want to own guns, and Americans are in charge. We get to decide what we want to do and when we want to do it. The role of government is not to rule the people, but to adjudicate peacefully between the many different opinions that people freely hold.
The 2nd Amendment is still in force today not because it is old, but because the American people, today, want it to remain in force.
In other words, you can try to rebel. You don't have the right to win though ;)
It certainly seems very American to think that people have a right to rebel...that's how we got our country, after all. But I'd say that's more of a natural right than a legal right--one that supercedes the typical concept of legality in its very nature.
What I meant above was more that the U.S. Constitution does not provide a power, right, or mechanism for states or individuals to violently rebel. It's certainly not the reason we have the 2nd Amendment (quite the opposite, actually).
I would actually say, though, that the Second Amendment is likely intended to put governments at explicit risk of rebellion, especially when it comes to day-to-day enforcement. It's not so much about rising up and marching on DC when they decide to oppress people. It's more about not being able to send in the cops to oppress people in the first place, because if they do, they'll end up being shot. Even within this century, the Black Panthers used the Second Amendment to protect blacks from police brutality: http://www.theatlantic.com/magazine/archive/2011/09/the-secr...
How does this apply to the rest of the bill of rights, though? Two major instances I can think of the oft-maligned "legislating from the bench" both apply to civil rights, first desegregation, and more recently marriage equality.
The courts are ruling the existing laws cover marriage equality despite the outcry - and this is a good thing. Some things are right and wrong regardless of how many people want it to be a certain way.
I don't think whether people "want" something especially when it comes to equal rights should have any impact on how the law is interpreted. One of the good arguments against direct democracy, IMHO.
That Amendment has since provided the legal power behind most civil rights decisions, including desegregation and (if they win) marriage equality. The "equal protection" clause justifies rulings against needless discrimination, and the "due process" clause makes those rulings apply to state and local laws in addition to federal law.
So here is an example where a huge swatch of what people take for granted today as Constitutional protections, in fact dates only to the 1860s.
If Americans as a whole wanted to get rid of the 2nd Amendment, they could pass a Constitutional amendment revoking it. They did it to Prohibition. The reason that is not happening is that most Americans like guns, or at least they respect the desire of other Americans to own them.
This is precisely the exceptionalism I'm talking about. Americans do not have a monopoly on the understanding that individuals are sovereign and that the government operates only with the consent of the people.
The citizens of other liberal democracies are not passive subjects - indeed, aside from selective dogmatism around gun ownership, Americans are far more passive and fatalistic toward their government's abuses and intransigences than the citizens of many other countries.
The US political system is as dysfunctional as it is precisely because so few Americans believe it can be made to work. In the absence of a culture in which large groups of people people actively engage in the formal and informal mechanisms of democratic governance, too many Americans instead express contempt and despair and stockpile guns.
The examples I gave are things that aren't omnipresent among liberal democracies. It's not quasi-tyrannical to outlaw "hate speech", just less free. I prefer more freedom to less.
* Expression that incites criminal action;
* Expression that causes injury;
* Obscenity via the Miller Test;
* Child pornography;
* Regulation of commercial speech;
* Copyright and other 'intellectual property' restrictions;
and so on.
Of course, the various other liberal democracies also enshrine the right to free expression; and they also enforce arguably reasonable limits on that right, some of which are similar to the limits in the US and some of which are slightly different.
Is a country where you can be fined for saying "fuck" on television more or less free than a country where you can be fined for saying a minority should be exterminated, where it can be shown that hateful propaganda has the effect of silencing a whole group of people?
There is nothing special about the US Constitution. It is no better, and in many ways worse, than the constitutions of other liberal democracies. The US Constitution is a legal, historical document that admits of many possible interpretations, and it is nothing if not misleading to pretend to absolutism, however selective, in how it shapes the law.
As for the Second Amendment, the US is perhaps the only liberal democracy that perceives a need to guarantee a citizen's right to own and bear firearms, based on the 18th century idea that governments are inherently tyrannical and the only way to guarantee liberty is with the constant threat of violent rebellion.
As we have seen, this belief has been disproven. The citizens of other countries are able to keep their governments more or less honest through maintaining formal and informal democratic institutions and civic engagement - indeed, the governments of many other countries are more responsive and accountable to their citizens than the US government.
You can legally say "fuck" on American television all you want, just not using the public airwaves. Since the rise of cable it's the market, not the FCC, that sets those rules.
And there is a very, very important qualitative difference between regulating pornography and advertising and regulating political and religious expression.
> As we have seen, this belief has been disproven. The citizens of other countries are able to keep their governments more or less honest through maintaining formal and informal democratic institutions and civic engagement - indeed, the governments of many other countries are more responsive and accountable to their citizens than the US government.
Well, so far. There are some liberal democracies that are more honest than the US (probably Germany) and some that are less (probably Italy), and they haven't been liberal democracies quite as long as the US.
Frankly, much of the problem is that the US is such a damn big country. Most liberal democracies have the population of a large state, and New York and California both have relatively responsive state governments compared to the US federal government. How responsive is the EU? Less responsive than they can be because Germany and Greece want radically different things. The same is true of California and Mississippi.
In other words, the Constitution has failed at its fundamental purpose - controlling the federal government. Not that there are any political remedies - this would just spread the cancer faster. Pride blinds. The more we insist our well-built ship cannot possibly be sinking, the less inclined we are to look for the lifeboats.
Courts should neither "anticipate a question of
constitutional law in advance of the necessity of deciding
it" nor " formulate a rule of constitutional law broader
than is required by the precise facts to which it is to be
applied."
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936) (Brandeis, J.)
A good explanation of the list is here: http://en.wikipedia.org/wiki/Ashwander_rules
However, in practice, IMHO, this excuse is used to punt cases more than really viewed as a valid principle
Food Lion sued for unfair trade practices, fraud, breach of contract, etc. ABC was fined $5.5 million, but that was later reduced to about $300,000, according to a quick Google search.
This was used to illustrate why journalists must disclose that they are journalists and should avoid undercover methods, as written in the journalism code of ethics.
Sources:
http://lawclassolemiss.wordpress.com/2010/04/05/food-lion-in...
http://www.poynter.org/uncategorized/2125/abc-and-food-lion-...
http://www.nytimes.com/1997/03/09/arts/beyond-abc-v-food-lio...
http://www.spj.org/ethicscode.asp
Edit: Also interesting, but not quite as relevant, is the Chiquita/Cincinnati Enquirer scandal that happened around the same time.
http://www.newyorker.com/online/blogs/newsdesk/2011/07/chiqu...
In that case food lion got publicly busted and undoubtedly had to tighten standards. What's the alternative in a system where you can't engage in undercover reporting?
ABC: "Hey food lion. ABC here. Do you guys sell rotten meat?"
Food Lion: "no. no we do not."
ABC: "Mind if we check?"
Food Lion: "Sure, just give me a minute to clean up some things so you're not seeing how we operate day-to-day. I'll schedule your visit."
ABC: "Huh. Everything looks above board"
Food Lion: "Yes, they do look that way today. On your visit. Don't come back without notice."
Although Minnesota's version of the ag-gag bill was certainly too far reaching and rightfully shut down (https://www.revisor.mn.gov/bin/bldbill.php?bill=S1118.0.html...), I'm behind the core concept that guerrilla-style undercover videos belongs on the farm as much as it does in our offices. The biggest danger is confusing the "taping" discussed in this article with actual journalism - and in-depth analysis of the legislation definitively shows that these ag companies will grudgingly allow legitimate reporting of their facilities, but have a right to persecute unethical practices.
* Don't confuse the Humane Society of the United States with your local humane society. For example, their CEO is against the ownership of pets. More details are at http://www.humanewatch.org/, but take that with the same scepticism you would any documentary or online video:-)
| breaking into a pharmaceutical and
| publishing their formulas aren't First
| Amendment material
[1] Not to mention that most of these are published in the form of patents anyways...