Carrollogos

A blog about Law, Technology, and Music

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Location: Washington, DC, United States

I am a Professor of Law and the Director of the Program on Information Justice and Intellectual Property at the American University, Washington College of Law and am a founding member of the Creative Commons board.

Friday, June 27, 2008

Free Speech, Guns and YouTube

Yesterday, the Philadelphia police arrested Andre Moore, a 44-year-old security guard, because he posted a video shot by his 12-year-old son entitled "dissin philly cops" on YouTube. In the video, Mr. Moore brandishes a pistol, demonstrates its operation, and encourages viewers to shoot Philadelphia police officers, particularly those in the 18th district.

He was charged with four counts, one of which was aggravated assault. I'm not a criminal lawyer, but the charges strike me as being highly questionable on their own right.

Even if there were some legal basis for bringing these charges under state law, however, this is in my mind a clear First Amendment violation. Mr. Moore's rant is irresponsible and outrageous. But it's free speech protected by the constitution.

Under the First Amendment, you're entitled to shoot your mouth off about any topic you like, and you're allowed to endorse or encourage violence, as long as you're not making a true threat or inciting imminent lawless activity.

Our society is only as free as we let it be under times of stress. There's been a lot of gun violence in Philadelphia, and there have been tragic shootings of Philadelphia police in recent weeks. Of course, the police in the 18th District were going to be outraged by Mr. Moore's rant. But we rely on law enforcement officials to recognize and respect the consitutional rights of the people they are sworn to serve and protect.

In the court of public opinion, Mr. Moore will have to take his lumps. And, his employer is free to discharge him for this irresponsible act. But, jailing a person for his or her speech, however offensive, undermines the basic liberties that define us as Americans.

Of course, the irony of the day is that on the same day the Phliadelphia police were in the course of breaking down Mr. Moore's door and dragging him away in handcuffs for shooting his mouth off about shooting guns, the United States Supreme Court announced a 5-4 ruling in which it created a new individual right to own and keep a gun in your home.

I expect that these charges will eventually be dismissed, and the courts will uphold the First Amendment. Mr. Moore might even have civil a claim against the police for violating his consitutional rights.

But there's another important point to keep in mind. The right of free speech is a right against government action. YouTube has taken the video down as a violation of its terms of use. In public spaces in the United States, the First Amendment are the terms of use. Speech on the Internet is only as free as the companies that run the Net say it should be.

So far, those companies have issued contracts that purport to restrict quite a bit of speech that would be free under the First Amendment. But those contracts are enforced only intermittently, and so the Internet continues to be a sort-of free speech zone.

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