Legal Analysis and Commentary from Justia
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Julie Hilden

Does the First Amendment Provide Protection for Facebook “Likes”? A Federal Judge Wrongly Says No

Justia columnist and attorney Julie Hilden comments on a recent decision from an Eastern District of Virginia federal judge, who effectively held that the use of the “Like” icon on Facebook is not protected by the First Amendment. The case arose when the employees of a sheriff who was up for re-election decided to “Like” his opponent’s Facebook page. Once the sheriff was re-elected, he fired those employees (as well as others). But the fired employees who had used the “Like” icon sued, arguing that the sheriff had illegally fired them for the exercise of their First Amendment rights. Hilden takes issue with both the judge’s decision to rule against the fired employees, and his approach to the case, which caused him to refuse to interpret what the Facebook “Likes” meant. Citing Supreme Court precedent, Hilden notes that the High Court has often protected and interpreted symbolic speech, and that the Court, in the recent case of Morse v. Frederick, has interpreted the meaning of ambiguous speech as well. She thus concludes that the judge should have both interpreted the “Likes,” and also held that they were First Amendment-protected. Continue reading →

Posted In: Constitutional Law, Speech and Religion, Technology Law

More Analysis and Commentary by Julie Hilden

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The Defamation Suit Against Rachel Maddow: Why It Should Fail

Justia columnist and attorney Julie Hilden argues that the defamation suit that was recently brought by conservative preacher and metal rocker Bradlee Dean against television commentator Rachel Maddow and NBC and MSNBC should be dismissed. Hilden contends that each of Maddow’s comments regarding Dean either was sufficiently accurate for libel-law purposes or fell into libel law’s protection for “rhetorical hyperbole.” Hilden also notes that the fact that Maddow read Dean’s reply to her reportage on the air—although he did not like her tone of voice when she read it—should mitigate some of the damages Dean claims to have suffered from her reportage. Carefully parsing what Dean said on the radio, and what Maddow said about him on television, Hilden contends that Maddow has the better of the legal argument, and ought to prevail. Continue reading →

Posted In: Speech and Religion

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A Spate of Complaints Asking Libraries to Censor the Hunger Games Trilogy: Why We Should Keep the Books Accessible to Kids

Justia columnist and attorney Julie Hilden discusses the types of complaints that libraries have received about the books in the Hunger Games trilogy, and argues that libraries should nevertheless keep the books on the shelves. The complaints that Hilden discusses claim that the books contain sex, are anti-ethnic, are anti-family, contain material that is “occult/satanic,” and are too violent. Except for the claim about violence, Hilden argues, these claims are inaccurate on the facts—they either do not accurately describe the books’ content, or they fail to put material from the books in proper context. Finally, regarding the claim about violence, Hilden notes that a number of classic works that are commonly taught in schools contain violent acts—and even, in cases like Lord of the Flies, acts of violence among children. Continue reading →

Posted In: Education, Speech and Religion

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Was It a First Amendment Violation for a New York School to Suspend a Fifth Grader Who Shared a Violent but Perhaps Joking Wish?

Justia columnist and attorney Julie Hilden comments on a student-speech case that was recently decided by a three-judge panel of the U.S. Court of Appeals for the Second Circuit. As Hilden explains, the case raised the question whether a 10-year-old student’s First Amendment rights were violated when he was suspended for six days based on arguably threatening—but possibly merely joking—words that he had written during a classroom assignment. The Second Circuit panel split 2-1, with the majority siding with the school. However, Judge Rosemary Pooler, in dissent, contended that under the central school-speech precedent of Tinker v. Des Moines Indep. Cmty. Sch. Dist., the student should have won. Judge Pooler argued that the young student’s words were much more innocuous than the majority seemed to think, and emphasized that the Tinker test focuses on foreseeable disruption—of which, she concluded, there was little evidence in this case. Continue reading →

Posted In: Constitutional Law, Speech and Religion

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The Controversy Over the R Rating for The Weinstein Company’s Movie “Bully”: Why There Should Be a Ratings Exception for Essential Material in Documentaries and Based-on-a-True-Story Films

Justia columnist and attorney Julie Hilden comments on the ongoing ratings fight regarding the film “Bully,” a documentary about kids and bullying that is scheduled to premiere March 30th. The producer and director of “Bully” are fighting for the film to get a PG-13, and not an R, rating, so that teenagers can see it. Hilden argues that films like “Bully”—documentaries where the true-life use of expletives or other explicit material is necessary to truly understand the film’s subject matter—should be excepted from the usual application of the MPAA ratings system. As other examples of film that should benefit from such an exception, Hilden cites the based-on-a-true story “Boys Don’t Cry” and the documentary “This Film Is Not Yet Rated.” Hilden also suggests that the MPAA should use a much broader pool of parents in determining what movies parents, in general, think are acceptable for their children to see. Continue reading →

Posted In: Constitutional Law

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A Louisiana Federal District Court Judge Strikes Down a Law Banning Registered Sex Offenders From Accessing Facebook and Other Social-Networking Sites Was It The Right Call?

Justia columnist and attorney Julie Hilden comments on a recent Louisiana federal district court decision striking down an extremely broad and vague law prohibiting registered sex offenders from accessing a large variety of websites. Hilden argues that the judge’s decision, which followed a bench trial, was plainly correct under First Amendment case law. Accordingly, she contends that Louisiana Governor Bobby Jindal is likely using the law, which he signed, and the decision, which he has vowed to appeal, for political purposes. Hilden also raises the questions whether any law restricting Internet access for ex-offenders could pass muster; if so, what it might look like; and whether individual websites’ policing themselves—or creating separate sections for adults and children—might be part of the solution. Continue reading →

Posted In: Civil Rights, Technology Law

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How The Litigation Over California’s Anti-Same-Sex-Marriage Prop. 8 Gave Rise to a First Amendment Fight

Justia columnist and attorney Julie Hilden comments on a recent ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, regarding videotapes of witness testimony in the Prop. 8 trial. The facts were as follows: Chief Judge Walker of the U.S. District Court for the Northern District of California, who presided over the trial, promised witnesses who supported the anti-gay-marriage Prop. 8 that the videotapes of their testimony would not be used except by the judge himself, in chambers, and he accordingly placed the videotapes under seal. However, Chief Judge Walker himself used some of the tapes during public appearances, and his successor, Chief Judge Ware, attempted to unseal the tapes despite Judge Walker’s promise to witnesses that the tapes would be kept under seal. Hilden notes the crucial difference here between a ruling, which can often be reversed or amended, and a direct promise to witnesses, on which the witnesses may rely. Here, the promise was especially grave, as witnesses suggested that they feared for their safety if the videotapes were to be released. Continue reading →

Posted In: Constitutional Law, Speech and Religion

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The Supreme Court’s Decision in Golan v. Holder: Can the U.S. Government Constitutionally Pull Works Out of the Public Domain?

Justia columnist and attorney Julie Hilden comments on the Supreme Court’s recent decision in Golan v. Holder, which allowed certain works by foreign authors to be pulled out of the U.S.’s public domain, and put under U.S. copyright protection. The works’ status had been changed by statute, so that the U.S. could comply with an international treaty. Drawing heavily on its prior copyright-extension decision in Eldred v. Ashcroft, the Court allowed the works at issue in Golan to be newly subjected to copyright—despite arguments to the contrary that were based on the Copyright and Patent Clause, and on the First Amendment. In dissent, Justice Breyer, joined by Justice Alito, argued that the public-domain works at issue ought to retain their current status, due in part to First Amendment concerns; in part to practical problems, such as problems with “orphan works,” the copyright status of which is difficult and costly to determine; and in part to a utilitarian reading of the Clause. Continue reading →

Posted In: Constitutional Law, IP Law, Technology Law

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Is It a First Amendment Violation When A Prison Limits Inmates’ Ability to Solicit Pen-Pals? An Eleventh Circuit Decision Wrongly Says No

Justia columnist and attorney Julie Hilden comments on a recent decision from the U.S. Court of Appeals for the Eleventh Circuit, rejecting a First Amendment claim by the owner of two pen-pal services, which seek to circulate lists of inmates to persons interested in becoming their pen pals, and vice-versa; and of a website on which inmates may solicit pen-pals via advertisements. The case arose when the Florida Department of Corrections (FDOC) banned inmates from soliciting pen-pals, except through a process of one-to-one matching. Hilden argues that, even under the lax First Amendment test that applies to prison restrictions—under which only a rational relationship to penological purposes is required, for a regulation to be upheld—the prison’s rules still do not hold water. She contends that, without any specific evidence of problems within FDOC relating to inmate pen-pal-solicitation fraud, the Eleventh Circuit should—like the Ninth Circuit before it—have rejected the rule for lacking a proper evidentiary basis. Continue reading →

Posted In: Constitutional Law, Speech and Religion

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Should Bloggers Be Deemed Journalists, With the Power to Trigger the Supreme Court’s Favorable Rules Regarding Damages, Invoke Retraction Statutes, and Protect Confidential Sources? A Federal District Judge Offers Some Answers

Justia columnist and attorney Julie Hilden comments on a Portland, Oregon-based federal district judge’s ruling in a case where a key question was when—if ever—a blogger can count as a journalist. The judge, addressing a defamation suit that was brought against the blogger, declined to allow her to invoke two Oregon laws that were meant to protect journalists by (1) requiring potential defamation plaintiffs to give journalists who are potential defamation defendants a chance to correct or retract the allegedly defamatory statements, if the plaintiffs want to recover their full damages; and (2) allowing journalists to protect their confidential sources by keeping them anonymous. In addition, the judge—moving on from Oregon-law issues to federal-law issues—refused to grant bloggers the right to invoke favorable U.S. Supreme Court case law regarding damages unless the bloggers qualified as journalists under the judge’s multi-factor test. Hilden takes issue with both of the judge’s Oregon law rulings, and, to some extent, also with his proposed multi-factor test as to who counts as a journalist. Continue reading →

Posted In: Constitutional Law, Courts and Procedure, Technology Law