Public Unions, Product Labels, and the Abuse of First Amendment ‘Rights’

Mouth_II_by_KW_stock-1024x756The case being argued at the Supreme Court today, Friedrichs v. California Teachers Association, is yet another activist conservative bid to use the First Amendment to enlarge economic rights.

The case poses the question of whether union collective bargaining involves the kind of expressive speech that employees should not have to support.  It’s long been the law (since the Abood case) that employees have a First Amendment right not to be compelled to support union political speech.  Collective bargaining is something different.  So the question raised is whether union speech involving contracts (e.g., tenure for teachers) is so close to political speech that it raises the same concerns?  Even though this case involves public unions and government employers, it is clear from the Right to Work and other amicus briefs that the attack is a broader one on unions.

Far away, in a different corner of First Amendment law, a similar question is arising.  It’s long been the law that government can require noncontroversial and factual product labeling without running afoul of the First Amendment rights of manufacturers.  Industry is now challenging product labeling laws on the grounds that the labels (e.g., GMO) are too controversial — ideological speech of the kind that government must not compel products to speak.  Again, the issue is at what point expression becomes so ideological or political such it implicates sacred First Amendment speech rights.  Conservative think tanks like the Washington Legal Foundation and the Cato Institute are intentionally pushing on this line to constrain government action and expand business rights.

The Supreme Court invited the Friedrichs challenge.  It will undoubtedly soon hear a product labeling case.  If the Court in Friedrichs decides that collective bargaining counts as ideological speech, expect more disclosure requirements to go the same way and fall to the putative free speech rights of corporations.

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news law event

WHEN: Friday, February 19, 2016 from 11:00 AM to 2:00 PM (EST) – Add to Calendar

WHERE: Archibald Stevens Alexander Library, 169 College Avenue New Brunswick, NJ 08901


Rutgers Institute for Information Policy & Law (RIIPL), the New Jersey Press Association, the NJ Chapter of the Society of Professional Journalists, and the Center for Cooperative Media will present “What’s New in NJ Media Law?

The Rutgers Institute for Information Policy & Law will introduce its News Law Project, and attendees will also learn about emerging legal issues and policy changes on everything from drones to police body cameras and more.

11:00 AM – Welcome and Introduction: Professor Philip Napoli, Media + the Public Interest Initiative, The Rutgers School of Communication & Information

11:15 AM – Professor Ellen P. Goodman presents RIIPL’s News Law Project, with funding from the Geraldine R. Dodge Foundation

11:30 AM – PANEL 1: Current Issues in NJ Media Law – OPRA, Defamation, Who is a journalist? (Bring Your Questions)

Thomas J. Cafferty, NJPA General Counsel, Gibbons Law, PC; Bruce S. Rosen, McCusker, Anselmi, Rosen, & Carvelli, PC; Eli Segal, Pepper Hamilton, LLP

12:30 PM – LUNCH

1:00 PM – PANEL 2:  Emerging Issues – Drones, Bodycams, Stingrays (Bring Your Ideas)

Jennifer Borg, General Counsel, North Jersey Media Group/The Record; Mickey Osterreicher, National Press Photographers Association; and Mike Rispoli, Free Press

General Admission: $20   Student Admission: $12   Lunch Provided

Posted in News

NYT Editorial Underestimates Risk to Freedom of Expression of Proposed New European Privacy Law

nyt editorial

The EU’s proposed new privacy law would codify and expand the Right to Be Forgotten (RTBF) decision of 2014, Google Spain v AEPD and Mario Costeja González.  It would require some range of Internet platforms to remove content that allegedly infringes on the privacy rights of individuals.  This range of platforms definitely includes search engines, which already have to comply with RTBF procedures, but also might include social networks like Facebook.  It depends on whether they are considered “data controllers” when individuals post private information about themselves or others.

The New York Times Editorial Board laments that the new law would require Internet platforms to disappear (technically, de-index or delist) content requested to be removed pending a decision about whether the requests are valid.  “Disturbingly, news organizations and other websites would not have an opportunity to object to those immediate removals and might not even have a change to protest permanent deletions.”

What The Times misses is that this is ALREADY the state of RTBF compliance.  Only individuals whose requests to delist information are refused have the right to appeal.  Publishers cannot appeal a decision to disappear their content.  Nor does the public deprived of potentially newsworthy information have any rights.  This is because the appeal is to Data Protection Authorities, which are responsible for privacy, not for freedom of expression. Although the RTBF seeks to be sensitive to the tradeoffs between individual privacy and freedom of expression, the mechanics of implementation leave it entirely to unaccountable private parties to effectuate the balance.

All the incentives are to remove content because there is no penalty or even review of delisting decisions.  For that reason, it’s not surprising that Google grants 42% of all delisting requests even under the current law, which is milder than what the new EU privacy law contemplates.   Frankly, it would not be surprising if that number climbed much higher.  The problem is not just that content is disappeared — there may be good reason to delist content that injures privacy interests and has no public interest value.  The problem is that neither the publishers nor the public knows why  choices are being made to disappear content.  Academics documented in an open letter to Google on the one-year anniversary of the RTBF decision the kinds of data that Google and other intermediaries should release.  This would be information in the aggregate and with no personally identifying information.  It’s not clear whether the intermediaries are even collecting this data; they sure aren’t releasing it.  Google’s transparency report provides very little information about why it makes delisting decisions, and almost all of it is anecdotal.

If the EU adopts its new privacy law, it should include transparency requirements so that we know how private intermediaries are being enlisted to shape our information environment.

Posted in News

Professor Ellen P. Goodman launches News Law Project


With funding from the Geraldine R. Dodge Foundation, we have launched the RIIPL News Law Project.  There is a crisis and opportunity in journalism.  As established news organizations shrink, new digital ventures are expanding.  But these new ventures often lack the in-house legal resources that the larger press organizations enjoy.  The RIIPL News Law Project seeks to help fill that gap by providing an FAQ on some of the most common newsgathering questions that journalists face.   Rutgers Law students, working under the supervision of Professor Ellen P. Goodman, are providing this guidance, focusing on New Jersey and applicable Third Circuit law.  This is not legal advice, but general plain English guidance to help journalists think through risks and rights.  In addition to helping journalists, the project trains aspiring lawyers in media law issues so that they are better prepared upon graduation to provide legal assistance in the field.  FAQ users are invited to register, share their own experiences, and pose additional questions on the site.

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