First Amendment

18 U.S. Code § 2257 generally requires producers of sexually explicit material to prove the actors are not minors. Coming around the corner apparently will soon be updated § 2257 regulations from the Justice Department. More about this matter is here.

Thanks to fellow listserv members for forwarding the above-displayed information.  Jon Katz.

If Virginia's Virtus can bare a breast on the state seal, why cannot Janet Jackson do the same, penalty-free, during the Super Bowl hafltime? See more here.

Friends, opponents, and Obama, lend me some justice. On the beaches of France, Italy and beyond, countless women exercise the same right that men have to bare their breasts. If women have to cover their breasts in public, then men should have the same obligation.

Why does such an obsession remain among so many Americans to suppress breasts? Perhaps there would be fewer people having sexual hangups and committing sexual assault if America's rampant official prudery were thrown out the window, including removal of anti-breast laws, obscenity laws, anti-prostitution laws, and laws suffocating the ability of strip clubs and adult video stores to operate.

As to a recent development in this arena, do not let the Federal Communications Commission get away with wasting our tax dollars, justice, and common sense to seek Supreme Court review of the Third Circuit's magnificent July 2008 reversal of a half million dollar FCC fine against CBS for Janet Jackson's exposure of her right breast for nine-sixteenths of a second during the Super Bowl until CBS cut the image. (Had she exposed both breasts, would the fine have been doubled?)

Barack Obama did not seem to speak much, if at all, about First Amendment protection during the campaign. However, he did talk repeatedly about change. Mr. Obama, it is time to change the decades long tradition of FCCensorship and prudery. Alternatively, if women were polled about the laws mandating covering their breasts in public and fining broadcasters for their exposure during times that children are awake, how would they vote?

Barack Obama's transition team is reviewing which executive orders from the Bush Administration (and from administrations previous to that, too?) to scrap. While the transition team is at it, time is beyond ripe for Obama to completely overhaul FCC censorship and to push to change statutes that enable such censorship in the first place. Now also is the time for Obama's team to push to eliminate the obscenity laws while they are at it.

Barack Obama: Let us see such good change. Jon Katz

ADDENDUM: Thanks to SCOTUS for blogging on the FCC's cert. petition in the Janet Jackson fine case. Thanks to Herman Hupfeld for inspiring the title of today's blog entry .  

Why listen to government/FCC-censored broadcast radio and television when we have the choice to listen to satellite and online radio and to watch cable television?

Why listen to broadcast radio and television when the FCC might still get upheld in court for heavily fining a station for broadcasting Allen Ginsberg's Howl masterpiece during prime time, or even a fleeting expletive by a winner at an awards ceremony or a successful player in a sporting event?

Yesterday's Supreme Court oral argument in the F.C.C. v. Fox Television broadcast indecency case gives insight into such justices as Chief Justice Roberts and Justice Scalia, who seem to have no problem with heavy F.C.C. fines for the use of the words f_ck and sh_t during primetime on broadcast television. Justice Ginsburg showed skepticism about permitting the F.C.C. to skewer the use of such words in such a blanket fashion, and Justice Stevens underlined how silly it is to be punishing mere words so harshly.

Of course, you need not wait for the Supreme Court to decide this case. You always can insist that your U.S. Congressmembers insert First Amendment teeth to replace the F.C.C.'s constant urination on First Amendment rights by looking for sh_t and f_ck words all over the place on the taxpayers' backs. Will you make such a move? Jon Katz. 

Virginia's state seal has a bared breast.

Virginia's above-displayed seal shows a half bare-breasted Virtus. under current Virginia law, if Virtus walked into a Virginia bar, she would either be required to cover up with pasties or something more modest, or to leave.

A Virginia law that took effect this year provides for the suspension or revocation of a liquor license where one finds "entertainment of an obscene nature, entertainment commonly called stripteasing, topless entertaining, or entertainment that has employees who are not clad both above and below the waist or (ii) [ ] employees who solicit the sale of alcoholic beverages. The provisions of clause (i) shall not apply to persons operating theaters, concert halls, art centers, museums, or similar establishments that are devoted primarily to the arts or theatrical performances, when the performances that are presented are expressing matters of serious literary, artistic, scientific, or political value." Va. Code § 4.1-226 (emphasis added).

What was I saying? Perhaps Virtus can avoid being forced into pasties due to her story's serious political value.  Va. Code § 4.1-226(2). Did you hear that, Virginia exotic cabaret owners? Why not try overcoming this general breast ban by starting onstage dressed as Virtus, and then disrobe, to dramatize the very real and human side of Virtus? Reserve your www.eyeoftheVirtus.com domain today.

Unfortunately, a 1991 Fourth Circuit case does not buy the argument that women should be able to bare their breasts as much as men are permitted in public. United States v. Biocic, 928 F.2d 112 (4th Cir. 1991). Fortunately, the concurring judge in Biocic indicated that he only signed onto the opinion because he felt bound by precedent here. Id. at 118.

For a few months this year, numerous Virginia liquor-licensed establishments stopped requiring pasties after a federal court ruling finding Virginia's anti-nutidy statute to be unconstiuttionally vague, in violation of the First Amendment. Norfolk 302, LLC v. Vassar, 524 F. Supp. 2d 728 (E.D. Va. Nov. 21, 2007). However, as if without better things to do, Virginia's legislature passed a new law a few months later (Va. Code § 4.1-226) that better specifies what is meant by topless dancing, so as to intimidate establishment owners to require that pasties be worn. Jon Katz  

ADDENDUM: Thanks to my brother lawyer Marc Randazza, for giving exposure to Virtus's bared breast.

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Both dominant political parties in the United States have too many candidates and officeholders who do not hesitate to promote censorship. Some deny it is censorship, but a stinkbomb remains a stinkbomb even if Madison Avenue calls it a biscuit.

Frank Zappa did an excellent job taking on Tipper Gore and her bipartisan group's push to force ratings on music -- with the silent if not vocal complicity of Al -- and GOP veep candidate Sarah Palin (any relation to Michael Palin from Monty Python?) veered towards library book banning when a smalltown mayor. As Time reports: "[Palin's mayoral opponent] Stein says that as mayor, Palin continued to inject religious beliefs into her policy at times. 'She asked the library how she could go about banning books,' he says, because some voters thought they had inappropriate language in them. 'The librarian was aghast.' That woman, Mary Ellen Baker, couldn't be reached for comment, but news reports from the time show that Palin had threatened to fire Baker for not giving 'full support' to the mayor."

Of course, both sets of presidential and veep candidates carry on the shameful history of remaining silent while convention protestors' get pushed far away from the earshot and eyesight of conventiongoers and whlle police abuse demonstrators and suspected demonstrators left and right, as I have blogged about during the last few days. Jon Katz

An August 26, 2008, video of demonstrators in Denver, including the police blocking the exit of hundreds of people on a city block (near the last third of the video), including plenty of non-demonstrators who just happened to be present. Where was the mainstream media when this was happening?

In recent years, no matter who runs for the Tweedledum/Tweedledee Democratic/Republican tickets, the presidential nomination conventions, campaign stops, and inaugural coronations are surrounded by assaults on the First Amendment right to demonstrate. (If you disagree with the brothers Tweedledum/Tweedledee reference, are Obama and McCain more materially the same than they are different? Yes, I am voting for Obama to have a less oppressive and less militaristic government than McCain would bring and maintain, but Obama will heavily support business as usual with the military-industrial-government complex; the failed and oppressive drug war that runs roughshod on the Constitution; the legalized murder of the capital punishment system; the oppressiveness of the PATRIOT Act, and countless other government assaults on civil liberties and democracy. Does the two-party-dominated system sufficiently support a truly democratic and just society? I think not.)

Typically, and currently in Denver, convention demonstrators are kept blocks away from the convention site, nullifying the very purpose of their demonstrations. The same is sure to happen at the Republican convention. Also typically, presidential coronations, I mean inaugurations, lately have been examples of Soviet-style clampdowns on protestors and well-choreographed sanitized inaugural parades.

Certainly official clampdowns on and intimidation of demonstrators in the United States go far beyond presidential politics. As I have witnessed firsthand,  police have a repeated habit of taking repeated close-up photos and videos of demonstrators at large demonstrations against presidential policies in Washington, D.C.; the police purport merely to be gathering evidence, but I have trouble believing that their actions are not also calculated to intimidate. During the April 16, 2000, weekend anti-World Bank/IMF protests, when I spent an entire Saturday defending arrested demonstrators at their bond hearings in the District of Columbia Superior Court, on my way to the nearby federal courthouse, I challenged a couple of police officers on an eerily mainly deserted street whether there was any purpose for their being dressed all in black with boots other than to intimidate; they did not answer. On the Friday late afternoon after the September 11, 2001, massacres, I saw military vehicles rolling down K Street a few blocks from my law school (granted, probably not intended to intimidate demonstrators, but a reminder of how much the United States is not safe from martial law government and martial law tactics). In the early Nineties on one of the many protest weekends -- most weekends in Washington are booked with one or many demonstrations, running from tame flag-waving events to strong opposition to one or many government policies and actions -- I saw a fatigue-wearing soldier on the street corner in front of the Treasury Department. During the September 2007 anti-Gulf War II demonstration in Lafayette Park, I saw cops not only at the ready to use force if ordered to do so, but also roaming in the crowd of peaceful demonstrators on the road that for years always has been closed to traffic in front of the presidential palace.

On July 14, 2008, I wrote about the public indifference -- but likely complicity if not downright participation -- ordinarily shown by presidential candidates and other high-profile politicians towards First Amendment violations against demonstrators protesting those politicians. Do McCain and Obama approve of such clampdowns? Will they voice their opinion on this matter, whatever are their opinions? Will they speak out for greater protection of demonstrators at their conventions, campaign stops, inauguration, and beyond? I am not holding my breath, including because their very discussion of the issue acknowledges the severe problem, and, in their silence, perhaps they hope the issue will stay off most voters' radars. Do not let them do it. Jon Katz.

ADDENDUM: Thanks to a fellow listserv member for posting the above-displayed video. 

The Bill of Rights. (From the public domain.)

Copyright infringement brings the risk of significant money damages and, sometimes, criminal prosecution. The First Amendment fanatic that I am, I feel very comfortable defending people accused of copyright infringement. As much as great music and great musicians are near and dear to my heart, my First Amendment concerns win out in my deciding which side I would represent for such litigation.

Here are some resources to help sharpen one's teeth in defending against copyright litigation:

- Nimmer on Copyright - With its price tag over $1500, I wonder how many people infringe on Nimmer's own copyright. By the way, the author, Melville Nimmer, successfully argued to the Supreme Court to overturn the conviction of a man who walked into a courthouse with a t-shirt proclaiming "F*ck the Draft". Cohen v. California, 403 U.S. 15 (1971).

- Here is an overview of the fair use doctrine, from the U.S. Copyright Office's website.

- Here is an apparently standard type of copyright complaint for allegedly unlawfuil Kazaa-type downloading.

- Recording Industry v. The People blog presents itself as being "[a]bout the RIAA's attempt to monopolize digital music by redefining copyright law, through the commencement of tens of thousands of extortionate lawsuits against ordinary working people."

- Pike & Fischer publishes Internet Law & Regulation. Most of its articles apparently require a subscription.

- ArsTechnica.com covers copyright infringement lawsuits.

- Here is the website of the Recording Industry Association of America. Jon Katz.