Archive for the ‘Uncategorized’ Category

Transmetropolitan: All Around The World Now Available to Order

Friday, May 20th, 2011

Transmetropolitan: All Around The World — the most hotly-anticipated art book of the year — is now available for order from the Comic Book Legal Defense Fund!

Celebrating Warren Ellis and Darick Robertson’s dystopian classic, all proceeds from the sale of Transmetropolitan: All Around The World benefit the First Amendment work of CBLDF. Transmetropolitan combined black humor, political scandal, and moral ambiguity to look into the mind of gonzo journalist Spider Jerusalem and The City he inhabits. Aided by his embattled Editor and his two Filthy Assistants, Jerusalem blazes a path through a futuristic world of skyscrapers and technological wonders, dark alleys, and unspeakable depravity.

Transmetropolitan: All Around The World is a lovingly crafted and designed tribute to a seminal work. Contributors include: Aaron Alexovich, Stephanie Buscema, Jim Calafiore, Stefano Caselli, Cliff Chiang, Richard C. Clark, Kevin Colden, Molly Crabapple, Camilla d’Errico, Kristian Donaldson, Ryan Dunlavey, Gary Erskine, Richard Friend, Dan Goldman, Cully Hamner, Lea Hernandez, Phil Hester, Rantz Hoseley, Matt Howarth, K Thor Jensen, Seth Kushner, Jonathan Luna, Milo Manara, John McCrea, Moritat, Dean Motter, Darick Robertson, Jimmie Robinson, Stuart Sayger, Tim Seeley, Fiona Staples, Bryan Talbot, Pete Woods, and many, many others.

Only a limited number of copies are ...

The Good Fighters: Molly Crabapple

Friday, May 20th, 2011

A fine artist and the founder of Dr. Sketchy’s Anti-Art School, Molly Crabapple creates work that provokes desire in some and the urge to silence in others. Her work also openly embraces sexuality, influenced by her experience as a model and burlesque dancer, which often brings her into opposition with censorship. Thus, she’s become an eloquent and devout supporter of free expression.

With Crabapple’s recent donation to CBLDF of an intricately-detailed 8′ by 7′ art monster — you can bid on it here — we took a moment to chat with her for this edition of The Good Fighters.

CBLDF: Your work frequently deals with glamour, performance and sexuality. Do you ever feel a concern for the content of that work will make trouble for you or others?

Molly Crabapple: I’ve been lucky in that any “censorship” I had to deal with has been of the weaselly corporate self-censorship variety (hell, at one point my own agent was blocked from looking at my site at work because of filters). While I’ve been lucky enough to never have to deal with official suppression of my work (thanks in part to organizations like the CBLDF), producing work that deals with sexuality ...

Yale Student: OCR is Pressuring Schools to Abandon Commitment to Freedom of Speech

Friday, May 20th, 2011
About a month ago, Yale sophomore Nathaniel Zelinsky wrote an opinion piece arguing against censorship and encouraging more speech as a remedy to bad speech. Yesterday, he touched on the subject again, tackling Yale's recently announced disciplinary action against the Delta Kappa Epsilon (DKE) fraternity. Zelinsky argues, as do we, that pressure from the Deparment of Education's Office for Civil Rights (OCR) caused Yale to abandon its commitment to freedom of expression in handing down its surprisingly severe punishment. Zelinsky asks good questions in his piece:
Dean Miller's precedent in banning DKE for creating a "hostile" environment raises troubling questions. Who decides what speech is hostile? The University administration? The alleged victim? The Federal Government? By definition, any decision-maker comes with his or her own particular prejudices which bias the eventual decision. We distrust anyone censoring, and therefore should allow no censors. This willingness to ban "hostile" (as opposed to truly dangerous) speech is antithetical to a commitment to free expression for all. 

The term "hostile environment" is indeed nebulous. But we do have guidance from the Supreme Court. In Davis v. Monroe County Board of Education (1999), the Court said (in part) that in order for a school to ...

FIRE on ‘The Hugh Hewitt Show’ Tonight

Friday, May 20th, 2011

FIRE Vice President of Programs Adam Kissel will join guest host and former FIRE President (and current Legal Network member) David French on The Hugh Hewitt Show at 7:30 p.m. EDT to discuss FIRE's free speech and whistleblower retaliation case at UCLA. At UCLA, Dr. James Enstrom was let go after approximately 35 years of service because, UCLA said, he didn't actually fit the "mission" of the Environmental Health Sciences department. In reality, as FIRE's documentation shows, UCLA used a variety of changing pretexts to get a dissenting scientist out of the picture.

Tune in tonight on your local station or by clicking the "Listen Live" link on the right side of this page on the show's website!    

EFF Demands Answers About Secret Surveillance Law Memo

Friday, May 20th, 2011

Washington, D.C. - The Electronic Frontier Foundation (EFF) has filed a Freedom of Information Act (FOIA) suit against the Department of Justice (DOJ), demanding the release of a secret legal memo used to justify FBI access to Americans' telephone records without any legal process or oversight.

A report released last year by the DOJ's own Inspector General revealed how the FBI, in defending its past violations of the Electronic Communications Privacy Act (ECPA), had come up with a new legal argument to justify secret, unchecked access to private telephone records. According to the report, the DOJ's Office of the Legal Counsel (OLC) had issued a legal opinion agreeing with the FBI's theory. That legal opinion is the target of the FOIA lawsuit filed Thursday.

The Inspector General's report is heavily redacted, concealing which part of the surveillance statutes the FBI and OLC are relying on to reach their dangerous conclusion and to what types of records this new purported exception to the law applies. However, the report does show that the Inspector General had grave concerns about the FBI's interpretation of the law.

"Even officials within the Justice Department itself are concerned that the FBI's secret legal theory jeopardizes privacy ...

‘Stossel’ Episode Featuring FIRE Runs Again Tonight at 10 p.m.

Thursday, May 19th, 2011
The episode of Fox Business Network's 'Stossel' from last November that prominently featured FIRE and discussed political correctness on college campuses will air again tonight on Fox Business at 10 p.m. Eastern. If you missed this excellent episode last year, now's your chance to see it!

Join EFF in Supporting California Bill That Requires Police to Get a Warrant Before Searching Cell Phones

Thursday, May 19th, 2011

EFF is proud to support SB 914, a bill that requires the police to obtain a warrant before searching a recent arrestee’s cell phone.

SB 914 is a response to a January decision of the California Supreme Court in People v. Diaz. In that case, the court authorized police officers to search any person’s cell phone after they had been arrested under a narrow exception to the Fourth Amendment’s warrant requirement that permits law enforcement officers to search the area immediately around a person “incident to arrest.” This exception has two traditional rationales: ensuring officer safety by allowing a search for weapons, and protecting evidence from immediate destruction. By permitting the warrantless search of a cell phone under this exception, the Court gave officers carte blanche to rummage through all the private data and information people keep on their cell phones – emails, text messages, call history, websites they’ve visited, and their calendars, to name just a few examples –regardless of whether the police believed there was evidence of the crime on the cell phone and without any judicial oversight.

Courts throughout the country have been grappling with this issue and have reached conflicting results, with some courts ...

Why Yale Frat Chants Are Not ‘Harassing’ or ‘Threatening’

Thursday, May 19th, 2011

It's unsurprising that the "Yale fraternity case," which we covered yesterday, is big news. A famous fraternity, of which both Presidents Bush were members, was suspended by Yale University for five years because its pledges marched through campus chanting "No means yes, yes means anal" and "My name is Jack, I'm a necrophiliac, I f--- dead women." 

The profuse apologies of the president of the Yale chapter of Delta Kappa Epsilon (DKE), who called the pledge chants "inappropriate, disrespectful, and very hurtful to others," were apparently insufficient. The Women's Center at Yale described the speech as "an active call for sexual violence," and several members of the Yale community later filed a complaint with the U.S. Department of Education's Office for Civil Rights (OCR) for the creation of a hostile sexual environment as proscribed by Title IX. Title IX provides that, "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ...." 

The federal government, through OCR, is now investigating Yale over its response to the chants and other circumstances (the OCR complaint ...

What Passes for ‘Justice’ in Yale Fraternity Case

Wednesday, May 18th, 2011
It's all over the news -- Yale University has suspended the Delta Kappa Epsilon (DKE) fraternity for five years for speech uttered by its pledges on the evening of October 13, 2010, in front of the Yale Women's Center. As the Yale Daily News reported at the time,
At their pledge initiation on Old Campus, DKE members shouted phrases such as "No means yes, yes means anal" and "My name is Jack, I'm a necrophiliac, I f--- dead women." Some of the students were blindfolded and being led in a line with their hands on each others' shoulders.

Reaction was swift. The October 15 Yale Daily News article linked above goes on to describe some of the fallout:
In an e-mail to the News Thursday, DKE President Jordan Forney '11 called the pledge chants "inappropriate, disrespectful, and very hurtful to others."

"It was a serious lapse in judgement by the fraternity and in very poor taste," he said, adding that DKE does not condone sexual violence.

The Women's Center deemed the actions "hate speech" and "an active call for sexual violence" in an e-mail to the News Wednesday night....

Business Coordinator Elizabeth Deutsch '11 said ...

How to Read Freedom House’s Censorship Circumvention Report

Wednesday, May 18th, 2011

Freedom House released Leaping Over the Firewall last month, a report covering two angles: details about Internet censorship in Azerbaijan, Burma, China, and Iran; and the use of circumvention software in those countries to bypass Internet censorship. As government censorship of the Internet spreads worldwide, research about the technology, norms and policies determining the flow of information is going to be increasingly vital.

Leaping Over the Firewall blends a non-technical survey method with some lightweight lab testing of circumvention software. This approach is unique, but has some limitations that affect how the report should be read in order to avoid confusion.

What are the report's goals?

The report is about circumvention tools—software used by Internet users to get around blocking and filtering technologies set up by governments. More specifically, the report is a vehicle for two very different sets of information:

  1. the results of non-probability sampled surveys about users of circumvention software, distributed to and collected from users in Azerbaijan, Burma, China, and Iran; and
  2. the results of lab-based testing of circumvention software.

What does Freedom House intend to achieve by releasing this report? In their own words:

Freedom House conducted this product review to help internet users in selected ...

Racist beliefs can justify increased sentence, Idaho court rules

Wednesday, May 18th, 2011

An Idaho trial judge can take a defendant’s racist beliefs and associations into account in increasing his sentence, an appeals court ruled recently.

Lunde Eugene Justice pleaded guilty to one count of grand theft for stealing an acquaintance’s pickup truck, and to four counts of forgery for taking checks from a friend and cashing them at various businesses. The prosecution agreed to a 10-year fixed sentence on each count, all to run concurrently. That would mean that Justice would serve 10 years.

However, after Justice pleaded guilty, the district court ordered a pre-sentence investigation and mental-health examination — a common procedure under Idaho criminal law. The investigation and examination revealed that Justice harbored hard-core racist beliefs and showed no remorse for his past crimes.

During an earlier period in prison, he had joined the Aryan Knights, a white-supremacist prison gang. He told the mental-health evaluator:  “Something is wrong with me because I don’t feel guilty for doing things. I mean I could beat a black kid to death and I wouldn’t feel bad at all.” He also said he didn’t respect anyone who is African-American or Asian.

After receiving this information, the district court sentenced him to a 28-year fixed ...

The Comics Reporter Details First Manga Restricted by Japan’s Revised Youth Healthy Development Ordinance

Wednesday, May 18th, 2011

Tokyo recently revised the controversial Youth Healthy Development Ordinance, expanding the number of manga that are listed as harmful publications that should be restricted from sale to anyone under age 18. The Comics Reporter has the details here.

This Month in FIRE History: Hug at Your Own Risk

Wednesday, May 18th, 2011

In light of FIRE's ongoing efforts to highlight concerns raised by the lowered due process protections mandated by the Department of Education's Office for Civil Rights (OCR) in cases of sexual harassment and sexual assault, it is fitting to review our 2006 campaign against Gettysburg College's sexual misconduct policy. The old Gettysburg policy's draconian restrictions are a key example of how university harassment and sexual misconduct policies provide the opportunity for administrative abuse-something that will be made even more likely under OCR's newly required "preponderance of the evidence" standard for adjudicating these cases.

FIRE became involved at Gettysburg in May 2006 after the school instituted a sexual misconduct policy that prohibited actions as innocent as hugging and established an extremely restrictive definition of consent. Under the policy, "consent" to sexual interaction was defined as "the act of willingly and verbally agreeing (for example, by stating 'yes') to engage in specific sexual conduct. If either person at any point in a sexual encounter does not give continuing and active consent, all sexual contact must cease, even if consent was given earlier." (Emphasis added.)

The policy's broad definition of sexual interaction included "brushing, touching, grabbing, pinching, patting, hugging, and kissing." ...

Comics Alliance: Why Comics Get Confiscated & How to Protect Yours

Wednesday, May 18th, 2011

Laura Hudson at Comics Alliance dug into the recent seizures of comics at the Canadian Border, speaking to CBLDF Executive Director Charles Brownstein and Tom Neely about the incidents, and sorting through “Canadian customs documentation to get the details on how this happened, the measures you can take to protect yourself and your comics when you’re crossing the border, the concerns this raises for comics fans, and a list of things that may get your comics flagged as obscene and confiscated (or worse).” It’s a terrific summary that presents a concise overview of the complex issue, and provides some excellent, plainspoken pointers about how to protect yourself and your comics. Read the full story here.

Please support the CBLDF’s coverage and defense of free speech issues like this by making a donation today!

Web Cleanup Vowed

Wednesday, May 18th, 2011
Authorities say they will work harder to eliminate 'unhealthy' online content in China.

Tibetan Leafleting Suspect Held

Wednesday, May 18th, 2011
Leaflets called for independence and return of the Dalai Lama.

EFF Applauds New Electronic Privacy Bill That Tells the Government: Come Back With a Warrant!

Tuesday, May 17th, 2011

Today, Senator Patrick Leahy introduced much-needed legislation to update the Electronic Communication Privacy Act of 1986, a critically important but woefully outdated federal privacy law in desperate need of a 21st century upgrade. This ECPA Amendments Act of 2011 (S. 1011) would implement several of the reform principles advocated by EFF as part of the Digital Due Process (DDP) coalition, and is a welcome first step in the process of providing stronger and clearer privacy protections for our Internet communications and location data. Here is the bill text, along with a summary of the bill.

The upshot? If the government wants to track your cell phone or seize your email or read your private IMs or social network messages, the bill would require that it first go to court and get a search warrant based on probable cause. This is consistent with DDP's principles, builds on EFF's hard-won court victories on how the Fourth Amendment applies to your email and your cell phone location data, and would represent a great step forward for online and mobile privacy protections.

The bill isn't absolutely free of problems: although it clearly would require a warrant for ongoing tracking of ...

Should Fans of Free Speech Be Confined to Two Colleges in the Entire Country?

Tuesday, May 17th, 2011

An article today in the Student Free Press discusses the Campus Sexual Violence Elimination Act (the "Campus SaVE Act"), a proposed federal law currently pending in both the Senate and the House of Representatives. The act would codify some provisions of the April 4, 2011, Department of Education Office for Civil Rights (OCR) "Dear Colleague" letter with which FIRE has taken major issue because of its poor protections for student free speech and for the erosion of due process rights afforded students accused of sexual harassment and sexual violence.

Most interesting, though, was this quote from Wendy Murphy, an adjunct professor at New England Law - Boston and former prosecutor, who has filed complaints against a number of institutions alleging non-compliance with OCR regulations. When asked about the SaVE Act's potential effects on free speech, she reportedly responded thusly:

[Murphy] noted that students could choose to attend universities that do not accept federal funds and are therefore exempt from complying with the bill.

"If they want to practice FREE-ER speech, they can choose to go to a different school where such rules are not in place," she wrote.

To FIRE's knowledge, there are only two traditional (by which ...

Geek Gathering: Social Media and the Tunisian Revolution on 5/20

Tuesday, May 17th, 2011

Join EFF on Friday to learn the inside story on social media and the Arab Spring!

How important are social networking tools like Twitter and Facebook for international activists fighting for their liberty? Are these networks forging a new international power structure? Tunisian activist Sami Ben Gharbia will join us for a special Geek Gathering to recount the role of social media in the Tunisian revolution. Sami's presentation and community dialogue will be hosted by Jillian York, EFF's new Director for International Freedom of Expression, with special guest Sachin Agarwal, founder of Posterous, the information sharing website Sami used extensively during the revolution.

This all ages event will be held at EFF's future headquarters in the heart of San Francisco's Mission District nightlife. Come see our new home for online rights!

Friday, May 20, 2011, 7-9 PM
EFF's Future Headquarters
2567 Mission Street
San Francisco, CA 94110

We ask for a $25 contribution, but no one will be turned away for lack of funds. EFF member admission is $20 online or at the door with your Member Card. Contact for the Members-Only link!

About Sami Ben Gharbia
Sami is a Tunisian anti-censorship activist and blogger based ...

LSU Chancellor Speaks Out on Flag Burning Protest

Tuesday, May 17th, 2011

Last week, Louisiana State University (LSU) graduate student Benjamin Haas expressed his intention to burn an American flag at the university's Parade Grounds to protest the treatment of Isaac Eslava, who was arrested after stealing and burning an American flag flown over a campus war memorial. Correctly, the university respected Haas' First Amendment rights and did not seek to block his protest. However, after failing to obtain the necessary burn permits, Haas was forced to change his plan and read a statement instead.

A counter-protest was organized by students in response, and Haas was met by a large crowd opposing his defunct plan to burn a flag. Unfortunately, things got ugly, and police had to escort Haas from the scene when counter-protestors began throwing objects and shouting threats at Haas.

Yesterday morning, LSU Chancellor Michael V. Martin issued a statement concerning the events that unfolded:

Much attention has been given to Wednesday's Free Speech Alley activities when a student announced his intention to burn the American flag on the LSU campus and a group of concerned students led by Cody Wells responded by organizing a patriotic counter-protest demonstration. What ensued was a decision by the student to only read ...

Supreme Court rules on exception to whistleblower law

Tuesday, May 17th, 2011

The US Supreme Court on Monday ruled 5-3 in Schindler Elevator Corp. v. US ex rel. Kirk that a written response to a Freedom of Information Act  request is a “report” within the exception to a federal whistleblower law. Daniel Kirk brought a qui tam suit under the False Claims Act (FCA) alleging that his former employer Schindler Elevator had submitted hundreds of false claims under its federal contracts after he learned of the false claims from documents his wife received from a FOIA request. The Civil War-era FCA authorizes private citizens, dubbed qui tam relators, to sue on behalf of the US accusing federal contractors of fraudulent claims against the government. However, the FCA public disclosure bar [31 USC § 3730(e)(4)] forecloses qui tam suits “based upon the public disclosure of allegations or transactions … in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation.” The five-justice majority opinion by Clarence Thomas held that the written response to the FOIA request met the definition of report, thus precluding Kirk from bringing his qui tam suit.

Read more.

This Week in Internet Censorship

Monday, May 16th, 2011

A Wave of Anti-Censorship Protests in Turkey

In towns across Turkey this Sunday, thousands of citizens took to the streets to protest proposed new Internet filters. Beginning in August, Turkey’s Information and Communication Technologies Authority, or BTK, has proposed a selection of opt-in filters that Internet subscribers could choose from. Additionally, BTK has proposed a list of banned words for use in domain names.

This isn’t Turkey’s first foray into online censorship: the Law on the Internet (or the Regulation of Broadcasts via Internet and Prevention of Crimes Committed Through such Broadcasts) No. 5651, enacted in 2007, allows a large variety of actors, including the government, to petition the court or the Telecommunications Authority to filter certain online content (for more details, see Access Controlled, Turkey Country Profile, 2009).

As a result of the law, popular video-sharing site YouTube has been blocked on and off since 2007 in response to complaints about specific videos (most of which were deemed to "insult Turkishness," a criminal offense), while blogging platforms WordPress and Blogspot have also experienced bans at times. The law has also resulted in the blocking of a number of sites on the grounds of defamation, including the site ...

Unjust Sexual Misconduct Policy at Franklin & Marshall College

Monday, May 16th, 2011

We have been writing a lot lately about due process in campus sexual assault cases ever since the Department of Education's Office for Civil Rights (OCR) issued guidance last month instructing universities that, in order to comply with federal civil rights laws, university judiciaries must apply a "preponderance of the evidence" standard (roughly 51% proof) when resolving cases of sexual misconduct on campus. As Erica wrote on The Torch last month, making a point discussed in more detail in FIRE's May 5th response to OCR:

The preponderance of the evidence standard, which would allow universities to punish students for offenses like peer-on-peer sexual harassment and sexual assault if the evidence tips above 50 percent in favor of the accuser/alleged victim, is much lower than "the clear and convincing evidence" standard that many university disciplinary proceedings apply and is nowhere near as protective as the presumption of innocence for criminal defendants in a court of law.

As we take a closer look at universities' sexual misconduct procedures, however, it is evident that many of them already fail to provide the basic elements of due process and fair procedure to accused students. At Franklin & Marshall College (F&M), for example, there ...

Documenting Tools for Beating Internet Censorship

Monday, May 16th, 2011

Network censorship and surveillance is a booming business. Censorship schemes continue to fragment the Internet and new censorship proposals are constantly introduced around the world, including in liberal democracies. (Lately governments have gotten fascinated by the idea of forcing ISPs to censor particular sites from the DNS, so users can't find them even though the sites are still there.) Censors usually assume that most Internet users don't know how to bypass the censorship (or, often, that many users won't even realize the censorship is going on!).

Unfortunately, the censors are often right, at least in broad strokes: many Internet users get used to censorship and rarely or never try to bypass it. And censorship doesn't always take the form of simply blocking sites and services. But there are still major efforts to beat technical censorship by technical means, and motivated users can generally take advantage of them. Millions of people are at least occasional users of censorship circumvention services, but it's a perennial challenge to broaden this pool and give people the tools to maintain uncensored access over time.

Earlier this spring, I took part in a week-long book sprint event in Germany to create a second edition of ...

How to Keep Customs From Seizing Your Comics

Monday, May 16th, 2011

The crew over at Gamma Squad took a moment to touch base with CBLDF Executive Director Charles Brownstein about the latest comic book seizures by Canada Customs and to outline some tips for protecting yourself when crossing the border. Brownstein talks about why books are seized:

“It’s always hard to say why customs agents seize the work that they do, because oftentimes the determinations made are subjective,” said Charles Brownstein, Executive Director of the Comic Book Legal Defense Fund. “I don’t second guess the motives of customs authorities. In 2004 a customs agent in South Carolina seized a shipment of books that included a strip satirizing the Bush administration called “Richie Bush,” because the agent alleged the parody comic was ripping off the Richie Rich trademark.  All kinds of content has been seized, and is at risk.”

Check out the full article here.

Artist’s Wife Allowed Visit

Monday, May 16th, 2011
Chinese authorities arrange the surprise meeting at an unknown place.

Call for Applications for FIRE’s Justice Robert H. Jackson Legal Fellowship

Monday, May 16th, 2011

FIRE is pleased to announce a call for applications for our Justice Robert H. Jackson Legal Fellowship.

Established in honor of the late Supreme Court Justice Robert H. Jackson in 2007, the Jackson Fellowship allows recent law school graduates an opportunity to substantively engage issues and cases that represent the cutting edge of First Amendment jurisprudence and higher education law. Working closely with FIRE's President and Director of Legal and Public Advocacy, Jackson Fellows produce legal scholarship on issues central to FIRE's mission of protecting core constitutional liberties on campusfreedom of speech, due process rights, freedom of assembly, freedom of conscience, academic freedom, and more. Beginning in September, Jackson Fellows will work in FIRE's Philadelphia headquarters for two years. More information about the Fellowship, including instructions on how to apply, is available here. Applications will be reviewed on a rolling basis.

Our inaugural Jackson Fellows, Azhar Majeed and Kelly Sarabyn of the University of Michigan Law School and Yale Law School respectively, produced several pieces of original legal scholarship during their term as Fellows. Azhar, now FIRE's Associate Director of Legal and Public Advocacy, published "The Misapplication of Peer Harassment Law on College and University Campuses ...

This Week in the News: FIRE’s Opposition to OCR Letter Makes Waves and Wesleyan Partially Reforms Campus Housing Policy

Friday, May 13th, 2011

Last week, FIRE sent an open letter to the Department of Education's Office for Civil Rights (OCR) and issued a press release about how OCR's recently issued guidance to colleges and universities, which mandates that they lower the standard of proof to a "preponderance of the evidence" standard when adjudicating student disciplinary matters concerning sexual harassment or sexual violence, represents a huge blow to students' due process rights. Roger Pilon of the Cato Insitute was only the latest to praise FIRE for our opposition to this development at Cato @ Liberty.

Wesleyan University recently reformed a policy that would have punished students for "participating in social activities" on the property of any "private societies" not under Wesleyan's control. However, Wesleyan's new Campus Housing Policy isn't much better, punishing students for using houses or property of unrecognized Greek organizations as residences, or taking meals and participating in social activities at such houses or property. FIRE wrote a press release about this development on Monday and Will's views on the restrictive policy were reported by Charlotte Allen of Minding the Campus.

Torch readers will remember the plight of Sinclair Community College (SCC) student Ethel Borel-Donohue, who was banned from ...

Cato’s Roger Pilon on OCR and its Threat to Student Due Process

Friday, May 13th, 2011

Roger Pilon, Vice President of Legal Affairs for the Cato Institute, takes a keen interest in the latest dictates from the Department of Education's Office for Civil Rights (OCR) at the Cato @ Liberty blog. FIRE has provided copious commentary on the grave threats to student due process and free speech rights emanating from OCR's April 4 "Dear Colleague" letter, which, among other things, mandates that sexually based offensesincluding violent crimesbe adjudicated by universities using a "preponderance of the evidence" standard that falls far lower than the standard courts would use to address criminal sexual offenses. Pilon sees this as symptomatic of a regulatory bureaucracy that he believes has assumed more and more of the federal government's lawmaking responsibilities over the years.

In this vein, Pilon notes FIRE's recent open letter to OCR, highlighting the deficiencies in the latter's April 4 letter:

Thus we now learn from the Foundation for Individual Rights in Education (FIRE) - a fine organization dedicated to defending students and faculty caught in the jaws of higher education's obsession with political correctness - that just last month the United States Department of Education's Office for Civil Rights (OCR), all ...

Company’s attempt to stifle satire fails

Friday, May 13th, 2011

Press releases aren’t always what they seem.

In the rush to post content online, journalists have to take special care with even the most authentic-looking documents or run the risk of publishing a spoof.

These fake announcements, often bearing the name and logo of a real organization or company, are usually pranks designed to make a political point.

But what recourse does a lampooned company have when it’s the subject of one of these stunts? Can it successfully sue?

U.S. District Judge Dale Kimball in Utah provided some answers yesterday in dismissing a lawsuit filed by Koch Industries, which was also seeking subpoenas that would help it identify the authors of the fake press release.

Read more.

Another Agency May Have Lied to Court in a FOIA Case

Friday, May 13th, 2011

In an ongoing battle in the Southern District of New York about whether the government must disclose metadata when it releases documents under the Freedom of Information Act, it now appears Immigration and Customs Enforcement (ICE) may have lied in a declaration it filed with the court. This comes on the heels of our earlier report about the FBI lying in a FOIA case in California and does not instill confidence that the government is acting honestly or ethically in FOIA litigation.

The case is National Day Laborer Organizing Network v. ICE, and it was brought by the Center for Constitutional Rights (CCR) and the Immigration Justice Clinic at Cardozo Law School. The plaintiffs are trying to get information on an ICE program called “Secure Communities” that conscripts state and local entities into enforcing federal immigration law by requiring the entities run the fingerprints of all individuals arrested (not convicted) through a federal database.

As part of the case, the plaintiffs requested the government produce metadata with the FOIA records released in the case. The court agreed and issued a strong order in February to that effect.1 The government appealed the order almost immediately and ...

Everyone is Harmed by Reducing Due Process in Campus Sexual Assault Cases

Friday, May 13th, 2011

Most everyone would agree that combating sexual violence on college campuses is of critical importance. However, eviscerating students' due process rights is not the way to do it.

Some women's rights advocates have been celebrating new policy guidance from the Department of Education's Office for Civil Rights (OCR) instructing schools to apply a "preponderance of the evidence" standardroughly 51% proofwhen adjudicating claims of sexual harassment and sexual violence in disciplinary proceedings. In a recent column for The Enterprise, for example, Wendy Murphy wrote that

Harvard Law School and U.Va. are under investigation because they require sexual assault victims to prove their allegations by "clear and convincing evidence" (about 80 percent proof) rather than the less rigorous, "preponderance of evidence" standard (about 51 percent proof). The new advisory makes it crystal clear that both schools have been violating women's civil rights by applying the illegal higher standard.

Now, Murphy is someone whodespite being a former prosecutorhas been quoted as saying that "I'm really tired of people suggesting that you're somehow un-American if you don't respect the presumption of innocence, because you know what that sounds like to a victim? Presumption you're a ...

SPLC’s LoMonte: For Schools, "One Inch Away From Being Unconstitutional" Isn’t Good Enough

Friday, May 13th, 2011

Frank LoMonte, executive director of the Student Press Law Center, makes a great point in an op-ed published in The Courier-Journal (Lexington, Ky.) yesterday. The article concerns a high school newspaper case, but Frank's argument is deeply relevant to higher education as well. Frank writes:

I like a good legal argument as much as the next lawyer, but if we are arguing about whether Principal Wooldridge actually violated the First Amendment or just came close, we are arguing about the wrong thing. In formulating education policy, the proper question should never be: "Can the school get away with this?"

A school that is governed by the standard of "what's the worst thing we can do to our students without violating the law" is a profoundly sick school. No school should aspire, in any of its services, to a standard of "one inch away from being unconstitutional." [Emphasis added.]

Check out the full article here.

Mr. Peabody’s Coal Train Tries To Run Down Free Speech

Friday, May 13th, 2011

Peabody Energy is at it again, trying to stifle critical speech intended to call attention to the company's practices. Last year, Peabody tried to intimidate a website that spoofed the Peabody-sponsored "Consortium for Clean Coal Utilization (CCCU)." This week, Peabody targeted a website that focused on concerns about the impact of Peabody's activities on children's health. The site ostensibly had Peabody offer a free inhaler to any family living within 200 miles of a coal plant, stating:

Why Free Inhalers? Because COAL CARES. Coal Cares™ is a brand-new initiative from Peabody Coal, one of America's proud family of coal companies, to reach out to American youngsters with asthma and to help them keep their heads high in the face of those who would treat them with less than full dignity. For kids who have no choice but to use an inhaler, Coal Cares™ lets them inhale with pride.

It's a brilliant bit of identity correction but Peabody, once again, was unable to take a joke. On Wednesday, Peabody's lawyers sent a letter demanding that its name be removed from the website. And that meant that EFF, once again, was forced to explain that this kind of biting, funny political activism ...

US to Counter Internet Blocks

Thursday, May 12th, 2011
Funds will be spent to support access to censored information.

Wendy Kaminer Questions Disregard for Due Process in Washington Post Article

Thursday, May 12th, 2011
FIRE Board of Advisors member Wendy Kaminer noticed something missing in a Washington Post report last week on proposed changes to the University of Virginia's sexual misconduct policy, one of the many policies revamped in the rush by universities to comply with the Department of Education's Office for Civil Rights' (OCR's) April 4 "Dear Colleague" letter. Absent from the discussion, Kaminer writes in a letter to the editor published today, was sufficient attention to the serious due process questions raised by these rules. Kaminer argues that they "are bound to do more to increase injustice on campus than decrease sexual violence," and FIRE strongly agrees. Kaminer's letter is here, and her must-read piece in The Atlantic on the OCR Guidelines and Yale University's situation, published April 6, is here.

Guest Blog: John Davis Malloy on the Smithsonian After Hide/Seek

Thursday, May 12th, 2011
It’s true that the Smithsonian’s Flashpoints and Faultlines forum was too late for Hide/Seek, but keeping the issues alive months after the exhibit closed may be the right timing for the future of this public institution. It was no surprise that in his welcoming remarks Wayne Clough described himself as having no choice but to [...]

Free Speech Happy Hour In June

Thursday, May 12th, 2011
Join us for a summer evening and mingle with your favorite civil liberties groups: NCAC, the Foundation for Individual Rights In Education, and the American Booksellers Foundation for Free Expression. It’s sure to be a fun night so invite your friends too! There will be a cash bar and appetizers served. Thursday, June 16 · [...]

Students ‘Draw’ Attention to Free Speech Rights on Campus

Thursday, May 12th, 2011

From California to Texas to Washington, D.C., Free Speech Walls are drawingliterallyattention to free speech rights on campus. Last fall, The Torch followed the College Libertarians at Pepperdine University as they built a Free Speech Wall to celebrate Constitution Day, saw it torn down, and then re-built it with the support of a broad coalition of student groups. Since that event garnered national attention, many other student groups have erected their own Free Speech Walls to teach fellow students about First Amendment rights.


To hold a Free Speech Wall event, organizers build a temporary wall out of cardboard or plywood, or cover a building wall with paper, and provide markers for people to write, draw, or post whatever they like. The Free Speech Wall encourages students to exercise their right to free expression on campus, including anonymous speech. In April, student groups at University of Texas San Antonio (UTSA) and American University (AU) in Washington, D.C., decided to host Free Speech Wall events on their campuses.

For Young Americans for Liberty (YAL) at UTSA, the Free Speech Wall they put up on April 11 provided a visual remedy for the lack of knowledge ...

Internet Freedom Discussed at the Council of Europe

Thursday, May 12th, 2011

When governments and companies assemble on an international level to discuss "Internet freedom," EFF's policy experts go on alert. All too frequently, government-level discussions about Internet freedom turn into opportunities to discuss tangential issues, many of which have negative implications on online freedom: laws and policies promoting censorship and surveillance on the Internet. With that in mind, EFF attended the Council of Europe (CoE) meeting on Internet Freedom: From Principles to Global Treaty Law? to ensure that European countries’ fundamental values--human rights, democracy and the rule of law--are upheld. EFF went in prepared to fight any attempt to promote pervasive spying proposals or government attempts to control the Internet. The Council of Europe largely succeeded in fostering a positive, rights-centered tone at the meeting. However, EFF remains concerned about the demonstrated support for a dangerous "cybercrime" initiative that invites online surveillance abuses.

Over 150 participants attended the meeting, including representatives from governments, companies and civil society. The Council of Europe’s expert group on cross-border Internet proposed a set of draft principles--ten ideas intended to guide countries' national and international Internet-related policies, norms, and rules. At the moment, the draft principles state that Internet governance arrangements must ensure the protection ...

Happy Birthday George Carlin!

Thursday, May 12th, 2011

Today is the anniversary of the birth of George Carlin (May 12, 1937 – June 22, 2008).

There is probably no entertainer more associated with the First Amendment.  A radio broadcast of a recording of one of Carlin’s best-known routines, “Seven Dirty Words You Can’t Say on Television,” was at the heart of the Supreme Court’s landmark ruling in FCC v. Pacifica. Truly groundbreaking, Carlin’s routine is as timely today as it was 30 years ago when the high Court handed down its decision.

At 8:00 PM EST tonight, Carlin’s daughter Kelly will be devoting her weekly one-hour radio show “Waking from the American Dream with Kelly Carlin” to a discussion about and (through audio clips) with her father. To listen, click on the link to the show.

Hear the oral argument before the U.S. Supreme Court in FCC v. Pacifica.

Read the Supreme Court’s decision in FCC v. Pacifica.


St. Augustine’s College Attempts to Justify Punishment of Graduating Senior for ‘Inappropriate’ Facebook Comments

Thursday, May 12th, 2011
On Tuesday, I wrote a blog entry here on The Torch about Roman Caple, the graduating senior at St. Augustine's College (North Carolina) who was denied the ability to walk at his graduation because of what the college called "a negative social media exchange" in a letter to Caple. Given no specific information, Roman could not discern exactly why the college required him to pick up his degree from the campus security booth instead of allowing him to participate in his graduation ceremony. Roman told news sources that he believed the university was punishing him for a post on his personal Facebook page, written after a deadly tornado that struck Raleigh, North Carolina, that said, "St. Augs is holding classes tomorrow and students in Falcrest still don't have power. Like, wtf. Really? #dumb."

As innocuous as this Facebook post is, the college recently told media outlets their real reason for punishing Caple, and it's even more offensive to free speech principles. In a statement to The Huffington Post, St. Augustine's College claimed that Caple posted "inappropriate comments" to the school's official Facebook page that it uses to communicate with students. The college provided a screenshot of ...

Tom Neely & Dylan Williams Speak Out On Their Customs Seizure Experience

Thursday, May 12th, 2011

Last weekend artist Tom Neely and publisher Dylan Williams were stopped and searched by Canada Customs on their way to the Toronto Comics Art Festival. Customs officers seized copies of two items they were bringing to the festival, Black Eye, an anthology of comics Neely contributed to, and Young Lions, a graphic novel by Blaise Larmee. The CBLDF caught up with Neely & Williams over email when they returned to the United States to learn more details about their ordeal.

Please support the CBLDF’s coverage and defense of free speech issues like this by making a donation today!

CBLDF: Please explain how you were bringing your comics into Canada.

Dylan Williams: Tom Neely and I were bringing books in that we didn’t have time to ship to the Toronto Comics Art Festival. We like to drive in from Buffalo but have been unlucky with customs every time for different reasons.

Tom Neely: Dylan Williams and I both flew into Buffalo and rented a car to drive to Toronto (way cheaper than flying into Toronto for some reason). We both had a suitcase full of books to bring to TCAF. When they asked us to pull over and ...


Thursday, May 12th, 2011

Update: An official Senate version of the draft PROTECT IP Act has been released and is available here. This version changes the “interactive computer services” language mentioned in our post below to “information location tools,” a term that points back to section 512(d) of the Digital Millennium Copyright Act. In that context it’s been generally understood to refer to search engines, though there’s no guarantee we wouldn’t see efforts to expand the definition in actions under this bill. But in any case, requiring search engines to remove links to an entire website raises serious First Amendment concerns considering the lawful expression that may be hosted on the same domain.

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Last year’s rogue website legislation is back on the table, with a new name: the "Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011"—or (wink, wink) "PROTECT IP". The draft language is available here.

The earlier bill, which failed to pass thanks largely to a hold on the legislation placed by Senator Ron Wyden of Oregon, would have given the government dramatic new copyright enforcement powers targeted at websites ...

New Department of Justice Documents Fail to Justify Expanding CALEA

Wednesday, May 11th, 2011

Earlier this month the FBI, DEA and the Department of Justice Criminal Division responded to our FOIA litigation for records related to the Department of Justice’s controversial efforts to push Congress to expand the Communications Assistance to Law Enforcement Act (CALEA).1 Although the agencies stated in their court filings (here, here, and here) that they had thousands of pages of records, so far they have only turned over a few hundred pages (and the DOJ Criminal Division has yet to give us any documents). The documents we received — emails, briefing documents and powerpoint presentations — are heavily redacted and still fail to provide any specific details—including technical details — on the purported surveillance problems the government claims require expanding the law.

We discuss the FBI’s documents below and will be writing more about the DEA’s documents in a later post. (As noted, the DOJ Criminal Division has failed to release any documents so far.)

The FBI produced several hundred pages of heavily redacted documents and completely withheld several hundred pages more. As we mentioned in an earlier post about FBI lying to a federal court in another FOIA case, the Bureau has ...

The Good Fighters: Jeffrey Brown

Wednesday, May 11th, 2011

Jeffrey Brown finds truth in the personal and intimate details that dominate our lives. Even his most autobiographical work is relatable, adeptly capturing the unease we all occasionally feel as we go about life.

Brown’s first book, Clumsy, defined his ability to articulate the bittersweetness and awkwardness that follows most people around, an ability that is further demonstrated in Ignatz winner I Am Going to Be Small, Unlikely, Little Things, and Funny Misshapen Body. Brown is also an established humorist and absurdist, as shown in the observational humor of Cat Getting Out of a Bag and Cats Are Weird and the superhero parody Incredible Change-Bots.

In person, Brown is quiet but articulate, a keen observer of the people and things around him — he always seems to be looking for the next drawing or story. On the eve of his Incredible Change Bots art opening at Brooklyn’s Scott Eder Gallery, Brown took a moment to talk about his motivations for supporting free expression in this installment of The Good Fighters .

CBLDF: This year you’ve been an incredibly avid supporter of the CBLDF by contributing hand drawn member cards, doing appearances, and plenty more.  What turned you ...

CBLDF Looking for a Law Student Intern

Wednesday, May 11th, 2011

Attention current law students! Are you looking for a way to support CBLDF and build your resume at the same time? Here’s your chance: CBLDF is looking for a law student summer intern!

The CBLDF law student summer intern will research, draft, and coordinate publication of short articles in bar journals directed at criminal law practitioners. The work is expected to take all summer and may be extended into the Fall semester. A full-time summer commitment is expected. Betsy Rosenblatt, CBLDF Advisory Chair for Outreach and Education, will supervise the internship. Supervision will be electronic, so you can work from anywhere!

The internship is offered on a volunteer basis, but we are willing to work with your school to provide school credit. Interested law students should e-mail a cover letter, resume, and writing sample on or before May 20, 2011.

Save the Date: Happy Hour in New York 6/16!

Wednesday, May 11th, 2011


(Lack of) Free Speech on Iowa’s Public Campuses

Wednesday, May 11th, 2011
Deborah D. Thornton of the Iowa City Press-Citizen (Iowa City, Iowa) sheds light (reprinted in The Modern Whig Party) on the rigid speech restrictions imposed on students at Iowa's three Regent schools: the University of Iowa (UI), Iowa State University (ISU), and the University of Northern Iowa (UNI). Thornton exposes many of the red-light and yellow-light policies in force at these schools, including the unconstitutional "free speech zones" at ISU and UI, while noting the recent efforts of ISU students to eliminate these restrictive speech policies. Adam is also quoted in the article, discussing the importance of fighting disfavored speech with more speech of one's own rather than through government censorship and speech codes.

EFF Welcomes New International Team Member Jillian York

Wednesday, May 11th, 2011

EFF is thrilled to announce the newest member of our international team, Jillian York. Jillian is the Director for International Freedom of Expression -- an always-critical issue that has come into sharp relief over the last few months with the events in Egypt, Tunisia, Syria, and beyond.

Jillian comes to us from Harvard's Berkman Center for Internet & Society, where she worked on the OpenNet Initiative and Herdict projects. Jillian is a longtime blogger and activist, and is well known for her research and insight into Internet filtering at the government level, the policing of content in corporate online spaces, and digital activism. Jillian writes for and is on the board of directors of Global Voices, and is a regular columnist for Al Jazeera.

We are very pleased that Jillian is joining our international team during this critical time for global freedom of expression issues. This year, we've seen how the Internet and social networking tools have given activists around the world new platforms to interact, organize, and spread their message well beyond their countries' borders. But these digital platforms also provide authoritarian governments with ways to expose and potentially retaliate against these activists. This is ...