Showing posts with label freedom of speech. Show all posts
Showing posts with label freedom of speech. Show all posts

Friday, August 10, 2012

Facebook "Like" Button Not Protected as Free Speech, Federal Court Rules

Be careful what you "like" on Facebook:  The click of that button is not protected as free speech, one federal judge has ruled.

Bobby Bland and several others were employed as civilian workers by the Hampton, Virginia Sherriff's Office. The Sheriff, B.J. Roberts, ran for re-election against Jim Adams, and the plaintiffs were apparently not in favor of their boss being reelected.

In fact, three of the plaintiffs went so far as to "like" Adams' Facebook page.

Unfortunately for them, their boss won the election, and he decided to not retain the plaintiffs as employees of the Sheriff's Office. They sued him for unlawful termination.

The Sheriff justified the firings on cost-cutting and budgeting grounds, but the plaintiffs argued that the terminations clearly violated their First Amendment rights. The Court granted Sheriff Roberts’ motion for summary judgment, dismissing the plaintiffs' case.

The judge held that "simply liking a Facebook page" was not a "substantive statement" that warranted constitutional protection. The Court said that it would not attempt to "infer the actual content" of the message from "one click of a button."

The Court wrote that "Facebook posts can be considered matters of public concern; however, the Court does not believe [it to be] sufficient speech to garner First Amendment protection." (emphasis in original).

The ruling raises interesting questions about the odd "speech vs. conduct" divide.

For example, according to the U.S. Supreme Court, burning an American flag carries sufficient expressive content to be protected speech.

In Texas v. Johnson, the Supreme Court acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope" of the First Amendment.
In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the Supreme Court asked whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."
The Supreme Court found that, under the circumstances, "Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment...Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent."
But the intent and message behind giving a Facebook "thumbs up" to the candidate running against your boss is not overwhelmingly apparent?  
It sure seemed pretty apparent to their boss what it meant, but apparently not to the Court.

Tuesday, July 31, 2012

Battlefield 3 Video Game May Be Too Close to Reality, Judge Rules



A federal judge has denied Electronic Arts' motion to dismiss a trademark infringement lawsuit involving true to life helicopters featured in its popular video game, "Battlefield 3."

The popular videogame -- which Electronic Arts sold 5 million copies of in its first week on the market -- accurately depicts the AH-1Z, UH-1Y and V-22 helicopters, manufactured by Textron Innovations and Bell Helicopter Textron.

Battlefield 3 features modern-day armed conflict role playing on land, air and at sea.  Game characters use genuine U.S. military weapons and vehicles, ranging from tanks and jeeps to planes and helicopters.

Textron and Bell had alleged in their Complaint that consumers are likely to view the images of its helicopters in the game and infer that the manufacturers endorsed or sponsored the game, when they did not.

Electronic Arts moved to dismiss the Complaint on the theory that it was merely engaging in nominative fair use when depicting the helicopters, and that such expression is protected by the First Amendment.


The Court disagreed, finding that "[a]lthough consumers are unlikely to think Textron has entered the video-game business, Textron has alleged sufficient facts to support the inference that the game explicitly leads consumers to believe it is 'somehow behind' or 'sponsors' 'Battlefield 3.'"


The same parties had previously clashed over Electronic Arts' depictions of Bell-manufactured vehicles in the "Battlefield Vietnam," "Battlefield Vietnam: Redux" and "Battlefield 2" video games, but the parties had previously reached a confidential settlement agreement over those uses.

The recent ruling invites a host of interesting questions about the accurate depiction of items in everyday life in video games and in other expressive media. 

For example, if a movie director desires to present a true to life war scene showing the use of an AK-47 assault rifle, does that depiction entitle the gun maker to sue? Judge Alsup's opinion suggests that such an outcome is possible.

"It is plausible that consumers could think Textron provided expertise and knowledge to the game in order to create its realistic simulation of the actual workings of the Bell-manufactured helicopters," Judge Alsop wrote.

Wednesday, July 25, 2012

Warner Brothers Studio Faces Legal and Public Relations Nightmare


Amidst the current news reports that The Dark Knight Rises’ actor Christian Bale made a surprise visit to the survivors of the Aurora, Colorado theater massacre, was a curious comment:

“Mr. Bale is there as himself, not representing Warner Brothers,” reportedly said an assistant to Susan Fleishman, the executive vice president for corporate communications at the movie studio.

But why would the studio seemingly want to distance itself from Mr. Bale’s charitable and apparently welcome visit?  

To be sure, the movie studio has already made a substantial donation to the victims, and is obviously not callous or indifferent to the suffering caused by the worst mass shooting in U.S. history.
Carey Rottman with Christian Bale / Facebook
Rather, the answer may have more to do with the unfortunate position that Warner Brothers now faces from both a legal and public relations perspective.

First, the Warner Brothers’ “Dark Knight” franchise is regrettably forever linked as part of the Colorado shooter’s motives, as the suspect appeared in a Colorado courtroom earlier this week with hair dyed red and orange, reportedly claiming to police that he was the Joker character played by the late Heath Ledger.

Warner Brothers’ desire to at least try and keep some distance between itself and the tragedy to avoid civil liability is not based on paranoia.

Indeed, one of the shooting victims has already filed a lawsuit against the studio, alleging that the violence depicted in the Dark Knight films is a legally contributing factor to the shootings. (That same suit has also in turn blamed the lack of security at the movie theater, and the suspect’s doctor for failing to treat him properly).

Plaintiffs’ lawyers may want to take advantage of a reasonable cooling off period before firing off such lawsuits.  The criminal investigation has barely just begun, and will undoubtedly shed much more light on the suspect’s state of mind, motives and conduct in weeks and months to come.

It is worth noting that civil lawsuits blaming content creators for the criminal acts of deranged minds have a tendency to fail.  And, in fact, Colorado has precedent nearly on point:  Nintendo of America, Activision and Sony Computer Entertainment were named as defendants in a civil lawsuit filed by the families of the 13 victims killed in the 1999 massacre at Columbine High School in Littleton, Colorado.

That lawsuit was aimed at 25 entertainment companies in total and sought $5 billion in damages.  Ultimately, the case was dismissed by a Colorado federal court in March 2002, with the Court finding that the media and videogame companies could not have reasonably foreseen that their products would cause the horrific events that occurred in the Columbine massacre or other acts of violence.

"Setting aside any personal distaste, as I must, it is manifest that there is social utility in expressive and imaginative forms of entertainment, even if they contain violence," District Court Judge Babcock wrote in his opinion.