Monthly Archives: April 2012

Freedom Of Speech: What Is It And What Are The Limits?

6922226 s Freedom Of Speech: What Is It And What Are The Limits?Internet law attorney, Aaron Kelly, answers questions about free speech, its limits and the Internet.

What do speech, press, religion and petition freedoms afford us?

It’s a big question, but in short, the freedoms to speech, press, religion and petition guarantee that each citizen can express themselves safely and openly. It means we can speak up when we disagree with authorities; it means we can practice a religion of our own choosing without fear of persecution; it means that our media is able to report on government mistakes; it means we can gather, and en masse, let our collective voice be heard about things we’re unhappy about.

Are There Limits To Freedom Of Speech?

There are limits to freedom of speech, and those limits boil down to public safety and honesty. The classic example of unprotected speech is screaming fire in a crowded room when there is no fire, as the welfare of the citizenry becomes paramount. Protests require permits to ensure civil life; permits also ensure that proper safety requirements are met.

Freedom of Speech and Religion Can Be A Mine Field

As for religion, well, that’s a little more nuanced, as many religions have beliefs that are contradictory to secular law – but one thing is for sure, the courts do not like deciding about religious matters. Which may actually be a big news story pretty soon, as there are a couple of Scientology lawsuits in the works, wherein a few judges may have to walk that freedom of religion vs. secular law tight-rope.

Anonymous Defamation

As for Internet law and our basic freedoms of expression, the big issue these days is the matter of online defamation.  People are less careful about what they say online, which often results in defamation lawsuits. The anonymity the Internet affords presents another layer of litigation, as you first have to go through the process of uncovering the legal name of the defaming party…and many people use freedom of speech as a defense during this stage to block their name from entering the public record.

How long have people been trying to censor online content?

Easy, since the beginning. Well, maybe not Tim Burners Lee beginning, but for arguments sake, let’s just say that once the public merged onto “the information super highway” (remember when that was the phrase), people started to censor. In the early years, copyright infringement and defamation worked as effective litigation-based strategy for online censorship. And back then, before the DMCA, website operators were not protected….so yes, it happened quite a bit – and still does today.

What steps are needed to prevent online censorship?

I wish I had the answer! If I did, I’d be living la vida Gates. No, but in all seriousness, it’s a complicated question – as there are so many groups to take into account. Generally speaking, what we need are laws that both allow for Internet freedom and foster innovation.

SOPA  and PIPA = BAD

SOPA and PIPA were terrible; it would have been un-American to pass either. At this point in the game, instead of creating a flurry of new bills with the stated goal of “protecting American jobs” that really do nothing more than censor, we need to tweak extant Internet-related bills.

The more people start asking questions about online censorship, and voicing their displeasure with bad laws, the less likely a terrible bill will sneak by us. As the old saying goes, “power to the people.”

What are some common censorship targets?

Depends on where in the world you are. I wrote a story a couple of weeks ago about a guy who was charged with defamation for talking unkindly about the King of Thailand online. Now, nobody’s going to be jailed in the United States for criticizing the government (threatening government officials, however, will land you in hot water). Heck, many of the most successful Web outlets were built on government criticism. In the U.S., it’s mainly copyright infringement and defamation that lead to “censorship” issues.

Are Celebrities The Biggest Proponents of Censorship?

I was reading a report today about a recent online “censorship” case, involving the Twitter leak of Beyonce’s and Andre3000’s new single. An injunction was granted, Twitter complied, and the song was taken down. Some users are calling it censorship.

But the punch line is that it was actually BigBoi – Andre 3000’s partner – that was one of the people who “infringed” the song on Twitter. Which, well, just opens up another can of cultural-trend worms regarding the use of the Internet as a means of celebrity promotion, which then brings the whole legal idea of “right of publicity” to the fore again.

So, I guess it’s fair to say that celebrities may be the #1 culprit of wanting to censor the Internet these days. But, can you blame them? After all, their brands are their names and work. Not to sound like the flip-flopper, but there are two sides to the coin. It really does come down to a case by case assessment. Artists trying to protect their work, cool. Authorities trying to use laws to keep information of import from the public, not cool.

CISPA Explained By Internet Lawyer

Remember the PIPA and SOPA drama? Well, now we have the Cyber Intelligence Sharing Protection Act — commonly known as CISPA — yet another attempt to curtail cybercrimes. A proposed amendment to the National Security Act of 1947, CISPA was introduced in October 2011, and like SOPA and PIPA, is currently being tweaked and re-drafted to address public concerns.

Someone Explain This CISPA Thing In Plain English

D.C. Lawmakers have initiated H.R. 3523, CISPA. Its stated intent is a defense weapon in the battle to prevent cyber attacks against America. Unfortunately, Americans who live in America, don’t qualify for the protection from the American government.

What is the bottom CISPA line? Simply put, if the government suspects, or can justify its concerns, for an alleged cyber crime, it can step in, read and interpret your emails and act accordingly. It also allows ISPs and social media platforms to hand over to data to the government without penalty.

The specifics of the law aren’t all that specific, though. The verbiage is vague but does contain allowances for Congress to permit authorities to bypass current online privacy exemptions. If passed, “Big Brother” will be able to monitor, censor and disrupt any online communication it deems upsetting to the government or private parties.

Why People Are Concerned About CISPA

A spokesperson for the Center for Democracy and Technology, Kendall Burman, says several cybersecurity bills are currently being considered by Congress. Her concerns are for the provisions within CISPA that could negatively impact the open Internet. At this point, CISPA has been formally introduced, referred and reported and is expected to be voted upon within the coming weeks.

CISPA’s authors claim the bill’s intention is to thwart baddies by sharing certain cyber threat intelligence and information between cybersecurity entities and the intelligence community.

While the threat of cyber attacks is a fear-inducing reality, CISPA, by design, allows the government to act upon arbitrary evidence. [sarcasm]Not that the government has ever acted upon paranoiac fear or without rationale or solid logic…but it could happen, right?[/sarcasm]

Two Online Advocates Advocate Dissension

According to a press release issued by the Center for Democracy and Technology, CISPA gives Internet Service Providers the right to forward your private communications and any related info straight to the U.S. government. Privacy protection and controls are ignored and damned in the process. The existing CISPA verbiage does not specify exactly which government agencies the ISPs could or should be disclosed to. However, the CDT’s concern is that the National Security Agency and/or the Department of Defense’s Cyber-command would be the expected recipient.

Another Internet advocacy group, the Electronic Frontier Foundation, has also expressed their concerns for CISPA and its potential impact on the future of the Internet. They’re vehemently against CISPA’s complete lack of consideration for individual privacy. CISPA contains very few restrictions on what information can be collected or the manner in which it is used. If a company can make a convincing claim that its actions were motivated by “cybersecurity purposes”, they can do their invasive surgery and cut into the privacy of any individual.

If You Can’t Say Something Nice About the Government, Don’t Say Anything At All!

Consider this: under the CISPA law, companies like Twitter, Google, AT&T and Facebook could forward your confidential info off to the Pentagon if they’re pressured by the government. As long as the government can claim suspicion of wrongdoing on your part and construe it as threatening, your info is now their info. That evaluation was confirmed by the Congressional Research Service, a nonpartisan branch of the Library of Congress. Their summation concludes that any efforts to disrupt, degrade or destroy a network or system of a private entity or government entity is all Washington needs to peruse your communiqués at will.

In other words, if you create a post, express an opinion or make a comment that is considered derogatory towards the government or elected official, that could be construed as an attempt to degrade the government.

The Likelihood Of CISPA Passing

CISPA has already received the support of over 100 House representatives. Unfortunately, their blanket support of CISPA blatantly ignores the impact it will have on the everyday online life of everyday citizens.

Burman added that once CISPA becomes more aware of the impending statute, and better understands its implications, their voices will be heard loudly. However, she was cautious to express her concern that Americans better get on this one soon to avoid a privacy disaster. CISPA is not nearly as user-centric as SOPA and PIPA was; this will affect everybody who uses the Internet, not just the entertainment aspect but the whole Internet experience.

Starting A Business In Arizona: Legal Steps

As a child, I stood in awe of the skyscrapers of metal and glass that were home to some of the world’s biggest corporations. Today, I’m equally amazed by the small businesses that drive our nation’s economy. And to support those companies, I started a law firm that helps individuals legally do business in Arizona.

The success of a business is rooted in its foundation, and like a tree, a business is only as strong as its roots. So in order to firmly supplant your business in its particular niche, it’s important to understand the different options you have when forming a business.

In Arizona there are several choices to consider when starting a new business in Arizona:

Limited Liability Companies (LLC)
General Partnerships
Limited Liability Partnerships (LLP)
C-Corporations (C-Corp)
S-Corporation (S-Corp)

Each of these entities have their advantages and disadvantages. Let’s take a look at each.

Business in Arizona: Limited Liability Companies (LLC)

A Limited Liability Company, or an LLC, is a type of business that is “separate and apart” from its owners (also known as members). An LLC affords its owners corporate-like protection from personal liability, but retains simplicity and flexibility in how it operates.

Limiting personal liability is one of the most enticing factors of choosing an LLC, as it can shield the personal assets of an owner if creditors ever try to collect on the debts of the business.

The flexibility of forming an LLC is also enticing, as there are no requirements for annual reports, annual fees, or meeting minutes. It’s also easier to distribute profits and management duties under an LLC.

And perhaps most enticing about an LLC is that they’re exempt from federal taxes imposed on the LLC as a separate entity, thus eliminating the double taxation problem.

Business in Arizona: General Partnerships

A general partnership is made up of two or more partners who are both responsible for the business. Each partner shares the assets, liabilities, and management responsibilities. Unlike a corporation, it does not require any formal filing or registration to exist. It merely takes two or more persons joining together to own and operate a business.

The caveat: it can end just as easily as it began.

The death of any of the partners, or the desire to force dissolution by any partner, can end the business.

Business in Arizona: Limited Liability Partnership

Limited Liability Partnerships, or LLPs, combine elements of corporations and partnerships. An LLP provides some protection to its partners from personal liability. Unlike a general partnership, there are formal requirements and annual reports that must be filed. Profits from the LLP are distributed among the partners for tax purposes.

Limited Partnerships (LP’s) are similar to LLPs, except the partners are generally not liable for the debts of the partnership so long as they are restricted in how they are managing the business. In effect, a Limited Partner provides capital and receives a share of the profits, but does not participate in direct management of the business.

Business in Arizona: C-Corporation

A C Corporation (“C-Corp”) is what many of us think of when we hear the word “corporation”. A C-Corp is made up of an unlimited number of shareholders, and there are no restrictions on the types of owners. The C-Corp is managed by its officers, who report to the C-Corp Board of Directors. Generally, shareholders are not personally liable for the obligations of the corporation.

As you can see, a C-Corp is very formal and requires annual Shareholder and directors meetings. C-Corps also subject to double taxation and significant governmental regulation.

Business in Arizona: S-Corporation

An S-Corp is an entity that elects to be taxed under sub-chapter S of the Internal Revenue Code. Like a C-Corp, it is a legal entity and has shareholders. Unlike a C-Corp, however, an S-Corp can’t have more than 100 shareholders who must be U.S. residents, nor can it be owned by other C-Corps, trusts, LLCs, or partnerships. Under most circumstances, an S-Corp pays no income taxes and the corporations income or loss is passed through to the stockholder.

One of the biggest disadvantages to an S-Corp, similar to a C-Corp, is that it is very formal. An S-Corp must be approved by the IRS, and it must hold annual meetings of shareholders and directors.

Final Thoughts

This article is meant to provide a broad overview of the types of business entities available. One entity may be more appropriate than the other for your circumstances. When approached with the choice of an entity, it is important to seek the advice of a competent business formation attorney, like Daniel Warner, that can guide you through the process.

Two Famous Defamation Cases

Time to talk about a couple of famous defamation cases.

First the Internet came, then an increase in defamation lawsuits followed. The anonymity of cyberspace was — and still is — too tempting for some, and mom’s advice about saying nothing if you have nothing nice to say seemed to go the way of rotary phones.

Today, most defamation cases involve an online statement, review website, a tweet, or a facebook post. So we thought it would be fun to take a “Wayne’s World” trip, and look back at a couple of famous defamation cases from a pre-tech time.

Famous Defamation Case #1: Hamilton v. Cosby, 1733

Back in Ben Franklin’s day, William Cosby served as the British governor of New York. The revolution-ready residents didn’t care for ol’ Bill; probably because he was accused of rigging the 1734 elections and pocketing people’s taxes.

Then New York Weekly Journal editor, John Peter Zenger, was on “team anti-Cosby,” and stirred Cosby’s ire by printing anonymous flame articles about the Governor. Wanting to exact revenge, Cosby demanded that he be allowed to perform the ultimate repudiation of Zenger and publicly burn copies of the NYJ (dun, dun, dun!). The assembly, however, denied Cosby. Being a fan of totalitarianism, Bill simply got one of his buddies, Justice DeLancey, to revoke Zenger’s attorney’s license and imprison Zenger. Easy-peasy.

Benjamin Franklin heard about the then famous defamation case in New York and dispatched, Andrew Hamilton — tout suite — to represent Zenger. On behalf of Zenger, Hamilton argued that “truth should be an absolute defense against libel charges” — a judicial principle which still applies in many libel lawsuits today.

And yep, Andrew Hamilton won the old-school, yet famous defamation case of Cosby v. Zenger.

Famous Defamation Case #2: Hustler Magazine, Inc. v. Falwell, 1988

Back in the 80s, when Gordon Gecko was a guy to admire and the Lower East Side had yet to be gentrified, Hustler Magazine published a satirical ad for Campari. The Hustler ad was a satire of a popular Campari promotion. In the ersatz ad, Hustler used a picture of fundamentalist Protestant minister, Jerry Falwell, which included a picture of a bottle of Campari and a font very similar to the font used in the actual magazine advertisement for the liquor.

The phony ad was made to look like an interview with Falwell. The title, designed to be a double entendre, was “Jerry Falwell Talks About His First Time.” Much to the chagrin of the Rev., the responses purported to be Falwell’s, were of a sexual nature involving he and his mother. The “first time” concept became all about his first sexual experience in an outhouse with his mother and a bottle of Campari.

In the contents section of the magazine, the phony Campari ad was listed as a “fiction ad and personality parody.” At the bottom of the page, below the ad, was printed the disclaimer “ad parody—not to be taken seriously.”

Falwell sued for invasion of privacy, libel and for intentional infliction of emotional distress. The jury decreed Flynt innocent of the libel charge but awarded Falwell $150,000 for the charge of intentional infliction of emotional distress.

Flynt subsequently appealed to the Fourth Circuit. They declined Flynt’s appeal to rehear the case. Flynt then went to the Supreme Court. The Supreme Court found that Falwell, being a public figure, was open to parody and satire. Furthermore, the ad didn’t claim to make any statements that were implied as fact. The Supreme Court reversed the Fourth Circuit judgment.

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