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TOILET TIRADE: A person's home may still be his or her castle, but it remains
to be decided in court if that means you get to curse loudly at the "throne"
even when your moat is backing up.
Dawn Herb told The Times-Tribune of Scranton, Pa., that on Oct. 11 her toilet
"was overflowing and leaking down into the kitchen and I was yelling (for my
daughter) to get the mop." She isn't certain exactly which words she used — in
my view, whatever she said was entirely appropriate to the situation — but
apparently they were loud, offensive and disturbing enough to gain the attention
through an open window of her next-door neighbor. Who happens to be a local
The off-duty officer is reported to have asked Herb to keep it down, but when
curses continued to cascade over these particular battlements, he called the
police and Herb was charged with disorderly conduct. Herb says she will plead
Expressing oneself loudly in the privacy of one's home would seem to come
under — well under, in fact — the protections for free speech. And beyond
the legalities of whether or not some particular words may reach a prosecutorial
level, a closed window on the receiving side of the fence may seem a more
appropriate "First Amendment-friendly" solution than calling in government
forces to regulate the tirade of a neighbor that is wafting into the open air
from inside her house.
As my colleague and First Amendment Scholar David Hudson notes, profanity is
protected by the First Amendment unless it crosses into a narrow category of
fighting words — face-to-face personal insults that would likely provoke
violence — or is uttered as part of a true threat. Time and again, courts have
held that profanity is protected speech for adults in a general citizen
SHIELD LAW: News organizations and long-time defenders of the First Amendment
are hailing the Oct. 16 passing in the U.S. House of what could be the first
federal protection for reporters wishing to keep secret their confidential
sources. Those same groups and advocates are urging the U.S. Senate to act in
the face of a threatened White House veto and criticism from Justice Department
and agencies charged with keeping government secrets and carrying out
There's one significant element in the proposed law that may well represent
the "half-a-loaf-is-better-than-none" school of compromise and lawmaking. The
Senate version of a shield law, which has received committee approval and is
awaiting full chamber action, offers this expansive view of a journalist: in
essence, anyone engaged in the regular dissemination of information to the
public. This House-adopted bill would add a qualifier to that definition — "for a substantial portion of the person's livelihood or for substantial
financial gain" — that would seem to eliminate many bloggers, also known as
I am uncomfortable in general with confidential sources, given their overuse
and misuse by some journalists through the years. But national polling results
by the First Amendment Center of the public and journalists, as well as surveys
by other groups, show that both groups see an occasional need for confidential
sources for some stories.
The public is better-served when journalists disclose fraud, corruption and
abuse of power by those in government as a result of information provided by
those who, without confidentiality, would not come forward for fear of damage to
reputation, career or family. But there's no requirement in the First
Amendment's protection of a free press that it apply only to those for whom
journalism provides a "substantial portion" of their income, or that anyone get
"substantial financial gain" as a result of exercising that particular
Such a broad definition likely would doom the proposed law, raising the
specter that "everyone" might claim to be a journalist when subpoenaed to
testify about a confidential source. But it would seem a hearing to determine
the issue of "substantial" compensation or gain might just as easily consider
the purpose of the revealing story or blog — and as such stick closer to the
undefined provision for a free press in the First Amendment.
HOME RUN: Yet another court (this one in St. Louis, a three-judge panel of
the 8th U.S. Circuit Court of Appeals) has held that sports statistics are in
the public domain, neither the property of the league or of individual players.
Good news for fantasy baseball fans, in terms of fees to pay for opportunities
to follow the games in detail. Bad news for those hoping to charge for licensing
and image rights.
The stakes are no small thing: Close to $2 billion a year by some estimates.
But in a less-financial sense, the court's ruling was a larger victory for those
who consider publicly accessible news and information — as opposed to scripted
performances and work products like speeches and books — to be outside the realm
of fees and legal permissions.
In an era of increasing control by leagues, teams and individual owners over
pre-game and on-the-field access, data and personnel, the 8th Circuit ruling
represents a unique court order of "play ball" without a following "and pay
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