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“F” for Felon: The New Scarlet Letter by Hannah Hicks

“F” for Felon: The New Scarlet Letter

Hannah Hicks

 

Introduction

 

In most states, the use of illegal drugs by a woman during her pregnancy is a matter addressed by child protective services.[1] However, in Alabama women can be criminally prosecuted for drug use during pregnancy. This post will provide a brief introduction to Alabama’s chemical endangerment statute and argue that public policy weighs against the prosecution of women for drug use during pregnancy.

Alabama’s Chemical Endangerment Law

Ala. § 26-15-3.2 makes chemical endangerment of a child a felony.[2] Under the law, knowingly or recklessly allowing a child to ingest, inhale, or come into contact with a controlled substance, chemical substance or drug paraphernalia is a class C felony.[3] If a child sustains injury as a result of exposure, the offense is a class B felony.[4] If death results, the offense is a class A felony and carries a minimum 10-year sentence.[5]

Alabama’s chemical endangerment law was enacted to protect children from exposure to meth labs.[6] However, Alabama prosecutors have used the law to bring dozens of cases against women who used drugs during pregnancy.[7] This has led The New York Times to describe Alabama as “the national capital for prosecuting women on behalf of their newborn children.”[8]

The two strongest arguments in favor of the criminal prosecution of women who use drugs during pregnancy are that these laws have a strong deterrent effect[9] and that these prosecutions link pregnant women to drug treatment programs.[10] These arguments ultimately fail under the weight of the counter-arguments presented below.

 

Policy Arguments Against Criminalization of Drug Use During Pregnancy

 

              Barriers to Treatment

 

Women fearing prosecution under chemical endangerment laws may avoid seeking prenatal care or drug treatment if they believe that medical providers will turn them over to law enforcement. Additionally, one defense attorney in Alabama is aware of one woman facing prosecution under the chemical endangerment statute “who drove to Georgia when she went into labor and another who gave birth to a three-pound baby in a bathtub at home.”[11]

These women’s concerns are well grounded. Some jurisdictions have experimented with the policy of doctor reporting of pregnant women suspected of drug use.[12] Although the U.S. Supreme Court in Ferguson v. City of Charleston decided that hospital testing for the purpose of obtaining evidence of criminal drug use by a pregnant woman is an unreasonable search when the woman has not given her consent,[13] the holding of the case was so narrow that it leaves open the possibility that medical records could be turned over to authorities and used against pregnant women.[14]

For example, women who are addicted to “hard” drugs undergo serious withdrawal symptoms that often require medical intervention. Doctors sometimes prescribe small doses of methadone to wean users off of these drugs. There is nothing in the Alabama statute that would prevent prosecution of women undergoing this form of addiction treatment.[15]

The American Medical Association, American Academy of Pediatrics, and The American College of Obstetricians and Gynecologists have voiced their concern that prosecuting women for drug use during pregnancy “is irrational” because “it will result in greater harm to infants.”[16] These professional organizations argue that “fear of prosecution would not influence women to discontinue drug use early enough to significantly reduce harm to infants [and] women will be encouraged to avoid contact and communication with medical providers.”[17] Moreover, withdrawal effects might complicate pregnancies.[18]

 

              Unbridled Regulation of Pregnant Women

Another concern surrounding statutes like Alabama’s chemical endangerment statute is the looming possibility of extensive intrusion the lives of pregnant women. One critic states the concern as follows: “everyone talks about the personhood of the fetus, but what’s really at stake is the personhood of women.”[19] Some fear that the application of Alabama’s chemical endangerment law opens the door for state regulation of all aspects of a pregnant woman’s life. At least one critic has queried whether criminal prosecutions for the use of cigarettes and alcohol while pregnant are the next step.[20] Beyond that, what happens when the pregnant woman works at a job that exposes her to toxic chemicals or fails to follow her doctor’s bed rest orders because of other pressing responsibilities?[21]

Crushing Social Outcomes

Successful prosecution under Alabama’s chemical endangerment law delivers a devastating blow to women and their children. Not only does it result in temporary separation of the family during crucial years of child development, it also initiates a lifelong struggle under the scarlet letter “F” for felon. With the label “felon,” these women will face extreme difficulty securing employment. Additionally, they will not be able to receive government assistance, including food stamps and housing. With these insurmountable barriers, it is no surprise that women and children affected by these child endangerment prosecutions will succumb to the cycle of chronic poverty and criminal activity.

Conclusion

Other states are beginning to follow Alabama’s lead. In 2014, Tennessee enacted a law that allows for the prosecution of women who give birth to drug-dependent children.[22] Some women’s rights advocates argue that laws that allow for prosecution of drug use during pregnancy are one more weapon in pro-life advocates’ armory of  “fetal personhood” arguments.[23] If that is the case, more states with pro-life majorities are likely to begin adopting similar laws. However, these laws might not withstand constitutional challenge,[24] and as this post has argued, there are strong policy reasons to object to the recent shift toward criminalization of drug use during pregnancy.

[1] Ada Calhoun, The Criminalization of Bad Mothers, The N.Y. Times Mag. (Apr. 25, 2012), http://www.nytimes.com/2012/04/29/magazine/the-criminalization-of-bad-mothers.html?_r=0.

[2] Ala. Code §26-15-3.2.

[3] Ala. Code §26-15-3.2(a)(1).

[4] Ala. Code §26-15-3.2(a)(2).

[5] Ala. Code §26-15-3.2(a)(3).

[6] The Associated Press, New Ala. Law Being Used to Prosecute Drug-Using Moms, The Legal Intelligencer (Feb. 14, 2008), http://www.thelegalintelligencer.com/id=900005503410/New-Ala-law-being-used-to-prosecute-drugusing-moms.

[7] Hicks v. Alabama, 153 So.3d 53, 57 (Ala. 2014).

[8] Calhoun, supra note 1.

[9] Dave Boucher & Tony Gonzalez, Prosecutors Argue Controversial Law Helps Drug-Addicted Moms, The Tennessean (Apr. 14, 2015), http://www.tennessean.com/story/news/crime/2015/04/13/prosecutors-argue-controversial-law-helps-drug-addicted-moms/25705273/.

[10] Boucher & Gonzalez, supra note 9.

[11] Calhoun, supra note 1.

[12] Ferguson v. City of Charleston, 532 U.S. 67 (2001).

[13] Id. at 70-71.

[14] See Brigitte Nahas, Drug Tests, Arrests & Fetuses: A Comment on The U.S. Supreme Court’s Narrow Opinion in Ferguson v. City of Charleston, 8 Cardozo Women’s L.J. 105 (2001).

[15] Calhoun, supra note 1.

[16] Brief Amicus Curiae for Appellee at 3, Johnson v. Florida, 602 So.2d 1288 (Fla. 1992) (No. 77-831).

[17] Id.

[18] Id.

[19] Id.

[20] Calhoun, supra note 1.

[21] Id.

[22] Boucher & Gonzalez, supra note 9.

[23] Calhoun, supra note 1. In considering 2014 challenge to this use of the chemical endangerment statute, the Alabama Supreme Court placed great weight on the fact that the plain meaning of the word “child” includes fetuses. Hicks, 163 So.3d at 59-61.

[24] Kathleen Adams, Note: Chemical Endangerment of a Fetus: Societal Protection of the Defenseless or Unconstitutional Invasion of Women’s Rights?, 65 Ala. L. Rev. 1353, 1371 (2014). However, the Supreme Court of Alabama recently held that the state’s chemical endangerment statute did not violate the mother’s constitutional right to due process. Hicks, 163 So.3d at 65.

It’s About More Than Money: Why College Athletes Should Not be Paid By Trenton Dressen

It’s About More Than Money: Why College Athletes Should Not be Paid

By

Trenton Dressen

With hot headlines such as the Ed O’Bannon lawsuit, unionization by Northwestern football players, and high profile college football players getting sanctioned for selling their autographs, the debate over whether college athletes should be paid is more heated than ever. While reasonable arguments can be raised to pay the athletes, many of the complications that would come with pay are overlooked. Ultimately, the cost of paying athletes is likely to outweigh the benefit and pay should not be implemented.

Stories of Johnny Manziel or Todd Gurley getting sanctioned for making a few hundred dollars off of their own autograph scream injustice. Narratives of schools like the University of Alabama or the University of Texas profiting millions while their athletes go unpaid appear blatantly unfair. Anyone who sees the NCAA’s annual revenue would instinctually feel that something inequitable was going on.  However, these anecdotes often cause us to see the issue of college athlete compensation while wearing blinders.

First, high profile athletes are by far in the minority. The NCAA and its members contain more than 460,000 student-athletes[1]. While those like Johnny Manziel or Todd Gurley are in the news far more frequently and generate far more income than most of the athletes, the decisions made regarding the pay of college athletes would affect all of those 460,000 athletes.

Second, universities like the University of Alabama or the University of Texas are in the small minority of universities that actually make money each year. Of the 228 athletics departments at NCAA Division I public schools, just 23 generated enough money in 2012 to cover their own expenses[2]. Of those 23, 16 received some sort of subsidy to help cover those expenses[3]. That is just the public schools in Division I, not considering the schools that make up Division II and III[4].

Finally, the NCAA’s total revenue is deceiving. While it is true that the revenue is substantial[5], the funds are not simply stacked up for NCAA president Mark Emmert to swim through like Scrooge McDuck. Those funds are used to support operational expenses and athlete travel expenses for 89 national championships in 23 sports, provide catastrophic-injury insurance coverage for all athletes, various grant, scholarship, and internship programs, reimbursement to schools that provide scholarships and sponsor sports, and helping athletes who need educational material, clothing, and emergency travel expenses[6].

Taking the issue in light of those three factors gives proper context to the discussion. It is not simply an issue of taking the piles of money that were earned by athletes and giving it back to them. The decision made in regard to compensation of these athletes will have some effect on all 460,000 of the athletes, each of the universities they compete for, and on the funds used to help the athletes and allow them to compete.

The end goal for all of those advocating for athlete payment is to simply redistribute the revenue from universities and the NCAA back into the pockets of athletes. However, it is not that simple. Will each of the athletes be paid? Just the athletes in revenue producing sports? If it is just revenue producing sports, will pay be different from player to player? Where will the funds come from?

If it were decided that all athletes should be paid, regardless of sport, this means that hundreds of thousands of athletes will need to receive money. Even if the revenue of the programs in the black were combined with that of the NCAA, without considering the debt of the other schools or the operating expenses that go along with the NCCA, the return to each student would be rather minimal. However, when taken in light of the universities running at a deficit and the cost incurred by the NCAA to fund the events and help the athletes, it would be impossible.

That leaves the option of paying just some of the athletes. It stands to reason that if just some of the athletes are paid, it should be those that are producing income for the universities. This is typically limited to men’s football and basketball, and women’s basketball. If each of those athletes at all of the universities of those programs are paid, it is still likely to be a substantial sum of money from wherever it is taken. The majority of this money would likely come from the NCAA. Doing so would likely force the NCAA to reallocate money that had been used to fund non-income producing sports, their athletes, and the championships for those sports, to be given to athletes in income producing sports. Ultimately, it would likely doom some, if not many, of the non-income producing sports. This would eliminate the educational and personal development opportunities provided to thousands of students through those sports and the accompanying funds and scholarships.

Alternatively, we could pay just some of the athletes in the income producing sports. Advocates like sports analyst Jay Bilas believe that payment of the athlete should be left up to the university, and the free market should drive the payment amount[7]. This would mean that the universities who have revenue beyond their expenses could then choose to use that revenue how they please, paying certain players as much as they see fit[8]. While the free market argument seems more plausible than the rest, it will also likely have a substantial detrimental impact to the non-income sports landscape and its athletes. Surely, universities will use their funds to try and drive up income for income-producing sports. This means taking it away from non-income producing sports or eliminating those programs altogether. Again, these athletes would lose out on the educational and developmental opportunities that they likely would not get otherwise.

If the goal of college athletic is strictly money, then perhaps it is possible, but I believe it still stands for something more. If it does, then the cost of paying athletes outweighs the benefits of doing so.

[1] The NCAA Budget: Where the Money Goes, NCAA, http://www.ncaa.org/health-and-safety/ncaa-budget-where-money-goes (last updated Oct. 15, 2013).

[2] Steve Berkowitz Steve Berkowitz, Jodi Upton & Erik Brady, Most NCAA Division I Athletic Departments Take Subsidies, USA TODAY (July 1, 2013, 12:48 PM) http://www.usatoday.com/story/sports/college/2013/05/07/ncaa-finances-subsidies/2142443/

[3] Id.

[4] Id.

[5] The NCAA Budget: Where the Money Goes, supra note 1.

[6] Id.

[7] Ed Sherman, My full Q/A with Jay Bilas on Pay-For-Play: NCAA ‘Unwilling to do the Right Thing’: Advocates Free Market System (Feb. 14, 2014), http://www.shermanreport.com/my-qa-with-jay-bilas-on-pay-for-play-ncaa-unwilling-to-do-the-right-thing-this-is-pro-sports/

[8] Id.

March Madness: The Madness of Not Paying College Basketball Players by Christopher Becker

March Madness: The Madness of Not Paying College Basketball Players

By

Christopher Becker

            Tournament time is upon us. Last week, the yearly ritual for many of filling out brackets gave way to well-played, thrilling games and buzzer beaters. Millions are captivated by the high octane drama involved in upsets and busted brackets. The Madness of March often shadows some of the shortcomings of the game. Whether it be pace of play, lack of scoring, officiating or any number of other things about the progression of the game on the court, time and criticism apparently stand still while we all begin our annual month long infatuation with the sport.  Although this is a time for celebrating the game in general as well as the passion of the athletes and students, it is when the most focus is on the game that the biggest opportunity for correcting some of its ills presents itself. This opportunity should be seized to continue the all important discussion of compensating athletes.

In 2010, Turner Broadcasting purchased the rights to broadcast the Tournament and agreed to participate in certain marketing activities with the National Collegiate Athletic Association.[1] This deal is set to run 14 years from 2011-2024.[2] For the rights to broadcast the games, Turner Broadcasting paid an astounding $10.8 Billion Dollars.[3] Yes, Billion with a “B.” 68 teams are selected for the tournament, and every single game is available to watch on television.[4] Not only is this broadcasting agreement incredibly lucrative for the NCAA,[5] there is also over a billion dollars in advertising revenue generated by the tournament.[6] This advertising revenue is likely to continue or even increase as a result of the Tournament’s superb television ratings.[7]

With record setting ratings and incredible advertising revenue being produced, both parties are surely enjoying the fruits of their agreement. However, those who contribute most to the product, the players themselves, directly receive none of the revenue generated from the tournament.[8] There are those that argue players should not be paid.[9] Not so coincidentally, this would leave more revenue for all parties profiting from inter-collegiate athletics to share. For the NCAA, it would be awfully unfortunate if their $71 million dollar “surplus” (let’s be careful and not call it profit because of course the NCAA is a non-profit organization) were eroded in any way.[10] The justifications offered for not paying athletes range from the fact that it would somehow diminish the excitement surrounding the events,[11] to schools invest in athletes with the amount of money they spend per athlete,[12] to the value of their education is sufficient compensation.[13] These arguments deserve little credence when one simply acknowledges the popularity of professional sports, the profitable return the schools and NCAA receive from the money spent on student athletes, and in some instances, such as at the University of North Carolina Chapel Hill, the work that goes into the degree and the skills it really confers as a result of the desire of schools to guarantee players are eligible to play.[14]

The fact that players do not receive any of the revenue directly should be especially unnerving when one considers the plight of the athlete more closely. For instance, the University of Connecticut Huskies made a remarkable championship run which saw them win the necessary six games to be crowned tournament champions. Unfortunately, this was not the only story from the team’s season. Star guard Shabazz Napier had this to say in reference to the need for athletes to be compensated, “we have hungry nights that we don’t have enough money to get food.”[15] There are many other examples of athletes expressing similar sentiments. Specifically, Jalen Rose has been outspoken about his struggles during his time playing basketball at the University of Michigan.[16] Although the NCAA has changed some of its rules concerning food[17], the fact of the matter is that athletes still have a multitude of other expenses to worry about and should be compensated in some way in light of the revenue produced off their activities.

Although in the interest of time the matter cannot be explored in greater detail, the unconvincing reasons given for not paying student athletes, the struggles they face even with academic scholarships, and the amount of revenue their activities produce serve as several important reasons that the NCAA should pay College Basketball players. This discussion needs to be continued and furthered as we enjoy the rest of this year’s Tournament.

[1] Press Release, National Collegiate Athletic Association, CBS Sports, Turner Broadcasting, NCAA Reach 14 Year Agreement (Apr. 22, 2010) http://www.ncaa.com/news/basketball-men/2010-04-21/cbs-sports-turner-broadcasting-ncaa-reach-14-year-agreement.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Bruce Horovitz, March Madness Ad Haul Spirals Higher than Any Sport, USA TODAY (Mar. 17, 2013, 5:33 PM), http://www.usatoday.com/story/money/business/2013/03/17/march-madness-ad-revenue-super-bowl-advertisers/1991379/.

[7] Scott Phillips, More Record TV Ratings for the 2015 NCAA Tournament, NBC SPORTS (Mar. 22, 2015, 1:00 PM), http://collegebasketballtalk.nbcsports.com/2015/03/22/more-record-tv-ratings-for-the-2015-ncaa-tournament/.

[8] Matthew Futterman, Should Athletes Get a Piece of the NCAA Tournament Revenue?: Whether to Pay College Athletes Remains One of the Most Explosive Issues in Sports, WALL ST. J. (Mar. 17, 2015, 1:06 PM), http://www.wsj.com/articles/should-athletes-get-a-piece-of-the-ncaa-tournament-revenue-1426610424.

[9] Darren Rovell, NCAA Holds Firm: No Pay for Play, ESPN (Mar. 26, 2015, 5:30 PM), http://espn.go.com/college-sports/story/_/id/10119750/ncaa-president-mark-emmert-insists-pay-play-model-coming.

[10] Steve Berkowitz, NCAA Had Record $71 Million Surplus in Fiscal 2012, USA Today (May 2, 2013, 8:58 AM), http://www.usatoday.com/story/sports/college/2013/05/02/ncaa-financial-statement-surplus/2128431/.

[11] Jeff Morganteen, Should Student Athletes Be Paid? No, Says NCAA President, NBC NEWS, http://www.nbcnews.com/business/careers/should-student-athletes-be-paid-no-says-ncaa-president-n62671 (last visited Mar. 26, 2015).

[12] Rovell, supra note 9.

[13] Jeffrey Dorfman, Pay College Athletes? They’re Already Paid Up To $125,000 Per Year, FORBES (Aug. 29, 2013, 8:00 AM), http://www.forbes.com/sites/jeffreydorfman/2013/08/29/pay-college-athletes-theyre-already-paid-up-to-125000year/.

[14] For more information on the University of North Carolina Scandal see Dennis Dodd, North Carolina Academic Case Puts NCAA and its ‘Mission’ on Trial, CBSSPORTS.COM (Mar. 18, 2015, 11:55 AM), http://www.cbssports.com/collegebasketball/eye-on-college-basketball/25112560/north-carolina-academic-case-puts-ncaa-and-its-mission-on-trial.

[15] Shabazz Napier: “Some nights I go to bed starving,” YOUTUBE, https://www.youtube.com/watch?v=fFdRk2DYolM (last visited Mar. 26, 2015) (Warning: YouTube comments may contain graphic or offensive language).

[16] Aaron McMann, Jalen Rose Proposes a $2,500 a Semester Stipend for College Athletes, USA Today (Sept. 25, 2013, 5:50 PM), http://www.usatoday.com/story/sports/ncaab/2013/09/25/jalen-rose-former-nba-player-proposes-semester-stipend-for-college-athletes/2871749/.

[17] Michelle Brutlag Hosick, Council Approves Meals, Other Student-Athlete Well-Being Rules, http://www.ncaa.org/about/resources/media-center/news/council-approves-meals-other-student-athlete-well-being-rules (last visited Mar. 26 2015).

Charlie Hebdo and the Importance of Self-Censorship: Should a magazine be allowed to publish inflammatory cartons and endanger innocent lives? by Anna Carroll

Charlie Hebdo and the Importance of Self-Censorship: Should a magazine be allowed to publish inflammatory cartons and endanger innocent lives?

by Anna Carroll

 

Charlie Hebdo, a French satirical magazine, published an issue depicting a caricature of the Muslim prophet Muhammad on its cover, a representation that is forbidden by some interpretations of Islamic law. Following the publication of this cartoon, the offices of magazine were firebombed in a terrorist attack. Fortunately, no one was injured in the attack as it took place in the early hours of the morning before workers arrived. This event took place in 2011.[1]

A year later, Charlie Hebdo depicted images of Mohammad naked even after the French government advised against publication. Fearing another attack, the government closed down embassies and schools and heightened security in Paris.[2]

Just two months ago, two Islamic extremists invaded the offices of Charlie Hebdo and shot and killed 12 people.  One of the attackers was recorded shouting, “We have avenged the Prophet Muhammad! We killed Charlie Hebdo.”[3] This horrific tragedy has elicited many differing viewpoints around the globe. Following the incident, the outcry on social media was particularly pronounced, with many French and other citizens stating, “Je Suis Charlie,” which means, “I am Charlie” in English. A week after the incident, Charlie Hebdo once again published an issue depicting the Prophet Muhammad displaying a sign that reads “Je Suis Charlie.”[4]

The United States has long valued the importance of freedom of speech, indeed embodying its protection in the First Amendment in the Bill of Rights. However, throughout the years, the Supreme Court has read various limitations on this right. In the 1969 case Brandenburg v. Ohio, the Court and addressed speech likely to lead to incitement and held that “in order for government suppression of speech to be constitutional, the government must demonstrate three elements: (1) imminent harm from the speech, (2) a likelihood that the speech will produce illegal action, and (3) an intent to cause imminent illegality.”[5] The justification for prohibiting speech under the Brandenburg doctrine is the government’s interested in protecting the public from “clear and present danger.”[6] Furthermore, “in determining whether there is a clear and present danger justifying limitation on free speech, the court must inquire in each case whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.”[7] The caricatures published by Charlie Hebdo would seem to fall under the “clear and present danger” test. Charlie Hebdo had been attacked before for publishing similar images. The offices were on notice of the very real possibility that another attack might occur and the French government even urged the magazine to refrain from publishing images of the Prophet Muhammad.

The Supreme Court has yet to hear a case involving facts parallel to the Charlie Hebdo situation. In Holder v. Humanitarian Law Project, the Supreme Court did uphold restrictions on speech and publication of materials that would provide foreign terrorist organizations with legal support.[8] The legal support in question was aimed at informing the terrorist organization on how to “follow and implement humanitarian and international law” with the hope of “impact[ing] peaceful resolutions of disputes.”[9] Even so, the Supreme Court recognized that providing “material support” to terrorist organizations could potentially free up terrorist funds that could be used in furthering illegal objectives.[10] While Holder v. Humanitarian Law Project is an important case on limiting speech in order to prevent the growth of terrorist organizations, it offers little guidance on how to deal with freedom of speech in terms of imminent terrorist attacks.

Hate speech laws in the United Kingdom are more expansive and clearer than similar laws in the United States.[11] The Crown Prosecution Service states on its website “that while ‘free speech includes the right to offend . . . there have been prosecutions for deeply insulting behavior. This is behavior which falls short of a desire to commit violence but is nevertheless threatening, abusive or insulting, and intends to stir up racial hatred.’”[12] Although the illustrators of the cartoons in Charlie Hebdo likely did not intend to commit violence themselves, based on past reactions to the cartoons, they were likely aware that further insulting depictions of the Prophet would “stir up racial hatred.”

Even if the cartoons by Charlie Hebdo are considered protected speech, public concern weighs in favor of self-censorship. The 12 people who were killed in the Charlie Hebdo offices might have been willing to sacrifice their lives for the publication but they were not the only lives lost or destroyed that fateful day. The two terrorists took more lives in their escape, and another gunman took hostages at a Jewish supermarket in Paris and demanded that the initial attackers be allowed to go free.[13] Should ordinary citizens’ lives be put at risk to protect speech that does not contribute to society but rather creates hatred?

As members of society, the people in charge at Charlie Hebdo should have seriously considered the potential implications of publishing offensive images that had been known to incite violence in the past. Freedom of speech is just as important today as ever, but a lot can be said for self-censorship when it saves lives.

[1] French Satirical Paper Charlie Hebdo Attacked in Paris, BBC News (Nov. 2, 2011, 7:13 AM), http://www.bbc.com/news/world-europe-15550350.

[2] Nicholas Vinocur, Magazine’s Nude Mohammad Cartoons Prompt France to Shut Embassies, Schools in 20 Countries, Reuters (Sept. 19, 2012, 8:04 AM), http://news.nationalpost.com/2012/09/19/magazines-nude-mohammad-cartoons-prompt-france-to-shut-embassies-schools-in-20-countries/#__federated=1.

[3] Cassandra Vinograd et al., Charlie Hebdo Shooting: 12 Killed at Muhammad Cartoons Magazine in Paris, NBC News (Jan. 7, 2015), http://www.nbcnews.com/storyline/paris-magazine-attack/charlie-hebdo-shooting-12-killed-muhammad-cartoons-magazine-paris-n281266.

[4] Laurence Thomann, Charlie Hebdo ‘Survivor’s Issue’ to Sell Outside France, Business Insider (Jan. 10, 2015, 7:23 AM), http://www.businessinsider.com/afp-charlie-hebdo-survivors-issue-to-sell-outside-france-2015-1.

[5] Catherine Blue Holmes, Quran Burning and Religious Hatred: A Comparison of American, International, and European Approaches to Freedom of Speech, 11 Wash. U. Global Stud. L. Rev. 459, 464 (2012).

[6] 16B C.J.S. Constitutional Law § 834 (2015).

[7] Id.

[8] Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).

[9] Daphne Barak-Erez & David Scharia, Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law, 2 Harv. Nat’l Sec. J. 1 (2011).

[10] Humanitarian Law Project, 561 U.S. at 30.

[11] Holmes, supra note 5, at 472.

[12] Id. at 473.

[13] Charlie Hebdo Attack: Three Days of Terror, BBC News (Jan. 14, 2015, 12:55), http://www.bbc.com/news/world-europe-30708237.

Charlie Hebdo and Free Speech – Why the Cartoons Should Be Protected Speech By Joel Schneider

Charlie Hebdo and Free Speech – Why the Cartoons Should Be Protected Speech

By Joel Schneider

The Charlie Hebdo attack was a tragedy. Such an event no doubt inspires a broad range of emotions: anger, fear, disgust, shock, or any combination thereof. One natural reaction to such a display of “barbarism” is doubt, doubt about the relative worth of speech that can be the rationalization for violence like what took place in Paris in January of this year. While it can be wise to re-evaluate one’s position in the face of adversity, analysis should end in a commitment to speech that is as unburdened as possible. Ultimately, democratic governments should and must protect speech like Charlie Hebdo’s cartoons if they are to remain consistent with their principles.

It has been said that “free trade in ideas” is the best way to reach the “ultimate good desired.”[1] Endeavoring to allow a truly free exchange in ideas is, as Justice Holmes pointed out, an “experiment.”[2]  At the heart of this experiment is a broad freedom to speak and express, a freedom that acts as a shield “to many types of life, character, opinion and belief,” allowing them to “develop unmolested and unobstructed.”[3] Thus, “attempts to check the expression of opinions that we loathe and believe to be fraught with death” can threaten that experiment.[4] Limiting ideas and speech should be done then with great care and precaution, otherwise society’s improvement and evolution are frustrated. Dissent, dissonance and offensive speech then be allowed to survive to the greatest extent possible to ensure the integrity of the experiment, and this is true in the face of an oppressive majority, or in the case of religious extremism, an oppressive minority.

The level of commitment to this “free trade in ideas” can really only be measured by a society’s allowance of unpopular speech; it defines just how unencumbered the right is. After all, it is no great defense of rights to uphold speech that arouses no offense or inspires no opposition. Of course, there must be limits; not all speech can be protected. In this country, 1st Amendment protection does not extend to speech “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”[5] For instance, expressions that are so likely to incite “men of common intelligence” to turn to violence, or “fighting words,” are among these unprotected expressions,[6] as are libel and defamation.[7]  These exclusions from protection hinge on, among other things, an objective element – in the case of ‘fighting words,’ that is that the words must be objectively likely to incite violence or danger to the public.

This objective step of the analysis is an important limit on a democratic government’s ability to curtail speech and expression. It requires that if expression is going to be limited, it has to be done in light of a foreseeable reaction to speech that pushes the average person past the point of rationality. Charlie Hebdo’s cartoons and depiction of Muhammad cannot meet such a requirement, whether one is considering the average Muslim[8] or just the average citizen in a western democracy. Such a violent, extremist reaction is just that, extreme, and cannot rightfully be a limit on discourse if the bar for limiting discourse in general is to remain a high one. For one, it allows any group that is willing to react violently or in an extreme manner to effectively control what is acceptable expression and what is not. Aside from this being an absurd result, it very obviously limits the free exchange in ideas democracies strive for.

And although there may be some consequences of such a commitment to free speech, the alternatives are democratically untenable. For example, one proposed answer to the problem of speech that incites religious extremists to violence is to outlaw it by passing religious defamation laws.[9] These laws are unworkable, however, primarily because they would require a judge to eventually take a side in a “theological debate,” since one of the ultimate questions in a defamation claim is the what the truth is.[10]  Anti-blasphemy laws are similar, in that it would require some judicial or legislative rule on what constitutes blasphemy, a religious concept. Moreover, laws outlawing blasphemy are frequently “used to establish theocratic regimes,”[11] and have no place in a democratic society that purports to allow the free expression of a wide variety of ideas.

Those who argue for some modification of freedom of speech in response to violent extremism like the Charlie Hebdo attack are essentially arguing for a “right not to be offended,”[12] and this right should not exist. This is particularly so in the case of religion and politics, where “the tenets of one man may seem the rankest error to his neighbor.”[13] They are matters of opinion, deeply held opinions, but opinions nonetheless, and the only way to ensure that an opinion is not trampled by oppression is to protect it and to freely allow its exchange. This is essentially the same protection that any Muslim or Christian enjoys, and to deny it to those who have opinions that are blasphemous to a group or religion is inconsistent. As one Court so eloquently said: “these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy,” in spite of any “excesses or abuses” that result.[14]

[1]Abrams v. United States, 250 U.S. 616, 630 (1919) (J. Holmes dissenting).

[2]Id.

[3]Cantwell v. State of Connecticut, 310 U.S. 296, 310 (1940)

[4]Abrams v. United States, 250 U.S. 616, 630.

[5]R.A.V. v. City of St. Paul, Minn, 505 U.S. 377, 383 (1992) (citing Chaplinsky v. New Hampshire, 315 U.S. 562, 572 (1942)).

[6]Chaplinsky, 315 U.S. at 573; see also http://www.troll.me/2012/04/09/yosemite-sam/thems-fightin-words/.

[7]R.A.V., 505 U.S. at 382.

[8]Quarter of British Muslims Sympathise with Charlie Hebdo Terrorists, The Telegraph, http://www.telegraph.co.uk/news/religion/11433776/Quarter-of-British-Muslims-sympathise-with-Charlie-Hebdo-terrorists.html (finding 27% “sympathise” with the attackers, while “one in ten say satirical cartoons ‘deserve’ to be attacked).

[9]L. Bennett Graham, Defamation of Religions: The End of Pluralism?, 23 Emory Int’l L. Rev. 69 (2009)

[10]Id. at 75.

[11]Id. at 82.

[12]Id. at 76.

[13]Cantwell v. State of Connecticut, 310 U.S. 296, 310 (1940)

[14]Id.

Your TV is Not a Spy, Big Brother is Not in Your Living Room, and Yet, Without the Power to See Through Your TV, You Still Aren’t Safe By Michael Pepper

Your TV is Not a Spy, Big Brother is Not in Your Living Room, and Yet, Without the Power to See Through Your TV, You Still Aren’t Safe

By Michael Pepper

First off, anybody who wants to use the voice recognition features of a smart TV should not be outraged that the TV is listening to them—there can be no voice recognition without a voice to recognize. Comparing a television keeping its passive microphone on to wait for the phrase “Hi TV” so that it can process commands[1], a feature you paid for, to an Orwellian dystopian future is outrageous[2].

However, consumers deserve, and may be entitled to, demonstrable transparency with respect to how their speech is analyzed, stored, and used. At this point, Samsung has not delivered this. Samsung has recently come under fire because of its privacy policy for its SmartTVs: “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of Voice Recognition.”[3] What Samsung’s privacy policy provides fair warning against is exactly the problem that reveals Samsung and other electronics companies are not doing nearly enough to protect personal data, and, in the worst case scenario, may reveal that no company feels the pressure to actively safeguard against massive misappropriation.

The “third party” mentioned in Samsung’s privacy policy is Nuance Communications, Inc.[4] The voice commands are transmitted from the TV microphone to Nuance’s servers, which sends back the appropriate command to the TV.[5] This is simple enough and very similar to how most voice recognition, like Apple’s Siri, works with sending voice commands to external servers for comparison.[6] However, Nuance “has its own privacy policy that TV users suddenly become subject to if they utilize the on-board voice recognition feature.”[7] This is where the danger lies. The voice commands and the speech have been reasonably recorded, but they have now been sent to a third party, where consumers are in the dark about what they have implicitly agreed to just by using a feature that came with their TV. Who knows what that third party can then do? Are consumers really protected once their personal speech has left the living room?

Samsung’s answer: yes, because of “industry-standard security safeguards and practices, including data encryption, to secure consumers’ personal information and prevent unauthorized collection or use.”[8] This quote comes from a blog posted by Samsung in response to the outcry against its SmartTV.[9] Interestingly, it goes into some good detail about how voice recognition actually works and discusses how one may disable voice recognition.[10]

Despite all the technological details, Samsung remains vague on one key point: what are “industry-standard security safeguard[s]”?[11] It is unclear what these safeguards are, how they are implemented, how their compliance is overseen, and how, if at all, they really prevent unauthorized use. “Data encryption” is the singular example of a safeguard. What does this entail? Is it encrypted only in transit from the TV to Nuance? Is it separately encrypted at Nuance? How strong is the encryption? As Senator Al Franken wrote in memos sent to Samsung and LG, “It remains unclear, however, how this data is treated after it is captured . . . Whether [third parties] cooperate with Samsung to ensure the protection of this highly sensitive information.”[12] The questions of how consumer data is transferred, to whom is it transferred, and how it is used could be endless, yet at this point there are no clear answers, and there is little indication that any electronics company wants to transparently set the record straight. Without the power to see through your own TV, the paths your data travels and the places it arrives are anybody’s best guess, and companies like Samsung need to do more than vague descriptions of protection and privacy policies.

Why should they have to? Senator Franken offers a seemingly personhood-related justification: “Consumers must be able to make informed decisions about whether and with whom they share that information . . . And they must be assured that when the information is shared that it will receive the utmost protection.”[13] This seems common sense: it is your info, and you should be able to knowledgably determine where it goes. Also, the pervasiveness of the internet may require greater protection of a constitutional, albeit minimal, right to informational privacy to curtail impermissible dissemination of personal data.[14] Further, Federal Trade Commission chairwoman Edith Ramirez is particularly concerned with the enormous risks posed to user privacy and security  “without businesses adopting security by design; engaging in data minimization rather than logging everything they can; and being transparent about the data they are collecting — and who else they want to share it with . . . .”[15]

There are not enough safeguards in place to protect the personal information once it has been reasonably recorded, there is not enough transparency provided to consumers so they can see for themselves where their data is going, and there are no incentives in place for companies to be any less opaque. Furthermore, as one author describes, these problems represent the struggles “to achieve such rigorous privacy standards on the current Internet,” and the internet is just going to keep growing and growing at a pace likely much faster than our lawmakers.[16] The Samsung SmartTV is just a singular example that the law has failed to keep up with the proliferation of technology into every facet of our daily lives and adequately protect our information’s privacy, and indicates the dangers as we approach the critical mass of connected devices.

[1] Caleb Denison, You Can Stop Whispering: Your Samsung Smart TV Isn’t Spying On You, Digital Trends (Feb. 9, 2015), http://www.digitaltrends.com/home-theater/samsung-tvs-arent-spying-eavesdropping-listening/.

[2] See Jared Newman, Shhh! Your Smart TV is Eavesdropping On You, TechHive (Feb. 9, 2015, 8:43 AM), http://www.techhive.com/article/2881653/shhh-your-smart-tv-is-eavesdropping-on-you.html.

[3] Samsung Privacy Policy–SmartTV Supplement, http://www.samsung.com/sg/info/privacy/smarttv.html.

[4] Stephanie Mlot, Samsung: Our TVs Are Not Listening to Living Room Chatter, PC Mag (Feb. 10, 2015, 5:50 PM), http://www.pcmag.com/article2/0,2817,2476583,00.asp.

[5] Id.

[6] Andrew Nusca, How Apple’s Siri Really Works, ZDNet (Nov. 3, 2011, 9:00 PM), http://www.zdnet.com/article/how-apples-siri-really-works/.

[7] Natasha Lomas, Today in Creepy Privacy Policies, Samsung’s Eavesdropping TV, TechCrunch (Feb. 8, 2015), http://techcrunch.com/2015/02/08/telescreen/.

[8] Samsung, Samsung Smart TVs Do Not Monitor Living Room Conversations, SamsungTomorrow (Feb. 10, 2015), http://global.samsungtomorrow.com/samsung-smart-tvs-do-not-monitor-living-room-conversations/.

[9] Id.

[10] Id.

[11] Id.

[12] Stephanie Mlot, Senator Probes Samsung, LG Over Smart TV Privacy, PC Mag (Feb. 12, 2015), http://www.pcmag.com/article2/0,2817,2476661,00.asp.

[13] Id.

[14] See generally Elbert Lin, Prioritizing Privacy: A Constitutional Response to the Internet, 17 Berkeley Tech. L.J. 1085, 1091-118 (2002).

[15] Natasha Lomas, What Happens to Privacy When the Internet is in Everything?, TechCrunch (Jan. 25, 2015), http://techcrunch.com/2015/01/25/what-happens-to-privacy-when-the-internet-is-in-everything/.

[16] Id.

“Have Your Cake and Eat It Too?”: The Overreaction to the “Eavesdropping” Samsung Smart Television By Jason Malone

 “Have Your Cake and Eat It Too?”: The Overreaction to the “Eavesdropping” Samsung Smart Television

By Jason Malone

Last week, several media outlets reported that Samsung’s smart televisions “eavesdrop” on its owners.[1] Quickly, hysteria broke out among smart television owners about possible breaches of privacy from unknown individuals who were listening to their every word through, of all things, the television. Besides, if one can’t trust his or her television to keep their deepest and darkest secrets private, who in the world can be trusted?

Surprisingly, the hysteria was caused largely by Samsung. In its privacy policy settings for its smart televisions, Samsung advised smart television owners that their conversations could be sent to third parties.[2] “Please be aware that if your spoken words include personal or other sensitive information, that information will be among the data captured and transmitted to a third party through your use of [v]oice [r]ecognition,” Samsung’s policy reads.[3] Honestly, Samsung could have better phrased the policy to avoid the backlash.

However, upon a review of how the voice recognition technology really works, consumers will find that the Samsung smart televisions work in a fashion that should calm the anxiety of owners of the televisions. First, the smart televisions are actually “listening” to you, but the televisions are not recording or reporting words that are said. The Samsung smart televisions are “listening” for a limited number of the specific commands such as “change the channel” or “increase the volume.”[4] These commands are not stored or transmitted.[5] Unless one of the factory-programmed commands are spoken, the television remains “inactive”; once one of the commands is spoken, the television becomes “active.”[6] Once the television is “actively” listening, the user is notified by the presence of a large microphone in the middle of the television screen and a loud “beeping” noise.[7]

Furthermore, the smart televisions’ push-to-talk feature is not that different from the technology used in Apple’s Siri. Television owners can use the feature on the remote to search for items on the Internet using the television’s browser. The words spoken while using this feature is sent to a third-party speech-to-text translation company.[8] However, unlike Apple or Google (who handle the speech-to-text translation using their own servers), Samsung uses a third-party company to handle its speech-to-text translation.[9] Samsung does not sell or store this information.[10]

After reflecting on the response to the Samsung smart televisions, the backlash truly isn’t isolated to the Samsung TVs. After all, the voice recognition features can actually be turned off by the television owner. This backlash is more connected to some people’s constant worry about encroachment into their privacy. This fear will likely continue to grow with rapid advancements in technology that effect the manner people communicate, receive information, and enjoy entertainment. Granted, privacy is one of the freedoms that Americans most enjoy and take pride in, and by no means am I vouching for Americans to totally forfeit their privacy in any way. I do think that a “man’s home is his castle.”

However, I am making a practical observation: when it comes to some forms of technology, you may not be able to “have your cake and eat it too.” Without making too broad of a generalization, generally those who purchase a smart TV do so in order to take advantage of the very features (i.e. voice recognition, Internet capability) that make the television popular among the masses. These people believe that the utility of such a television is high. These same people must also realize that such features just don’t “magically” work on the television; artificial intelligence may not be to the point where televisions can actually “think” on their own. Also, implementing the technology into the televisions could be costly. Therefore, if the owner truly wants to benefit from the features on the television, he or she also has to accept the fact that current technology dictates that another party will have to be involved. In the very worst case, the TV owner could speak private or sensitive information that would be sent to the third party. The speak-to-talk feature may determine that it is a search and return search results.

I am sure that there will always be some people who feel uncomfortable with the technology because of its ability to possibly be compromised and misused, especially after the revelation of the NSA spying scandal. However, this argument can be made for several other technological advancements that have improved life. Simply put, the prospective television owner has to the weigh pros and cons of the technology. This rationale applies to several other areas of technology. As for me, I will continue to enjoy Siri and other forms of voice recognition technology.

[1]E.g. David Goldman, Your Samsung TV is eavesdropping on your private conversations, CNN Money (February 15,2015),http://money.cnn.com/2015/02/09/technology/security/samsung-smart-tv-privacy/index.html?section=money_latest.

[2] Id.

[3] Id.

[4] David Goldman, Samsung says its eavesdropping TV works like Siri, CNN MONEY (February 15, 2015), http://money.cnn.com/2015/02/10/technology/samsung-eavesdropping-tv/index.html?section=money_topstories.

[5] Id.

[6] Id.

[7] Caleb Denison, You Can Stop Whispering: Your Samsung Smart TV is Not Listening to You, Digital Trends (February 15, 2015), http://www.digitaltrends.com/home-theater/samsung-tvs-arent-spying-eavesdropping-listening/.

[8] Id.

[9] Id.

[10] Id.

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