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Posted on Jun 22, 2011
Tim DeChristopher: It’s—the environmental ethic is something that was a part of my upbringing. My parents were environmentalists when I was growing up in West Virginia; my mom was fighting the coal industry in the early days of mountaintop removal. So it’s certainly something that I grew up with, and that I’d been paying attention to for a while. And then it was while I was at the University of Utah studying the current situation, and also studying social movement history, when I started to see that just playing by the rules that are given to us by those in power, and that’s when I started taking it to a higher level, I think.
Peter Scheer: Well, thank you so much for making the time to speak with us.
Tim DeChristopher: Sure.
Peter Scheer: If you are as outraged as we are by the treatment of Tim DeChristopher, you can take part in a national day of solidarity across the country tomorrow, June 23—Thursday, June 23. Find out more at Bidder70.org.
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Joan Bertin: Well, thank you. I’m glad to be here.
Peter Scheer: The reason we’d like to talk to you is because of the U.S. 3rd Circuit Court of Appeals, which recently ruled that two students who’d created fake MySpace pages parodying their principals had been unfairly disciplined, and we’d like to use that as an opportunity to talk about student free speech in general. So, first of all, what was this court case and what are the particulars?
Joan Bertin: Well, there were two cases that were in Pennsylvania and therefore within the jurisdiction of the 3rd Circuit Court of Appeals. And they both went to the Appellate Court, and I think it was on the same day, two different panels of the 3rd Circuit reached opposite conclusions about how to analyze these cases. You’re right in your characterization; these were student-created MySpace or Facebook pages about principals; not flattering, shall we say. And so what the Court of Appeals did was decide to re-hear both of these cases before a full panel of the 3rd Circuit. And so they heard those cases re-argued together, and they recently issued two separate decisions, but this time decisions that are consistent with one another, and the decisions were issued on June 13.
Kasia Anderson: So, what were those decisions, and what kind of larger ramifications do you see them having in cases like this, for students and, I guess, it’s a form of online identity parody, or…?
Joan Bertin: Well, the whole question about how much schools could regulate what students do off-campus has become an increasingly important one. We know that there’s certain authority that’s granted to school officials when students are in school, and they’re in a relatively regulated environment and they can be told that they have to study a particular subject at a particular time, and that they don’t have a right under the First Amendment to say in their math class that they want to talk about the election. So free speech applies in a very particular way within the school environment. And that whole line is starting to get blurred as an awful lot of student speech takes place not in the school environment, but online and with students’ use of their own private computers or public computers, say, at the library. And courts have really been struggling with how far school officials are allowed to go in penalizing students for speech that occurs in this off-campus setting.
And there have been a number of cases in different courts of appeals, and they’re not entirely consistent, shall we say. But they do reflect an ongoing series of questions and concerns about the extent of school authority over the speech of young people who happen to be, also, students in their schools. What the 3rd Circuit decided was that if the speech did not pose a threat of a substantial disruption in the school, then there’s no justification for the school authorities to regulate it or to penalize students for that speech. They specifically noticed that because some speech that takes place off-campus involves sort of lewd or what you might call inappropriate language, that does not give the school grounds to discipline. Even though the school could discipline students for using that language in school, they can’t sort of have their long arm reach into somebody’s—as one of these cases involved, somebody’s grandmother’s computer, and tell the kid what he or she could say. And in both of these cases, the court held that there was really no evidence of substantial disruption or material interference—which is a kind of term of art—from the speech in question. And in one of the cases, the issue is whether or not school officials are correct in claiming that they feared a substantial disruption, and …
Peter Scheer: Well, they used—sorry to interrupt, but I just want to interject that school officials use all sorts of excuses to abuse the rights of children, and—[Laughs] not to be too extreme on the subject—but, you know, we …
Kasia Anderson: Is this touching a nerve for you, Peter?
Peter Scheer: Well, I’ll tell you, when I was in high school I helped start a children’s rights organization. And the United States is one of two countries—the United States and Somalia—that has not ratified the United Nations Convention on the Rights of the Child, which protects free speech. And you see this again and again with student newspapers, with dress codes, with this sort of issue, free expression in children is not protected as if they’re some, you know, deviant form of human being that isn’t yet mature enough to be able to be critical or think critically or express their views on the kind of education they’re getting. And it’s frankly absurd, if you ask me.
Joan Bertin: Well, you know, it’s a difficult question because you can’t apply the same rule to kids who are 6 and kids who are 16. And there’s an expectation that there will be a continuum, in that as the child gets older and more mature, their rights will expand. But that is sort of a common-sense assumption that has not actually been reflected in the law, in my opinion.
Peter Scheer: Right. And that’s the similar reasoning to keep women from voting, and people of color from voting, and other people throughout American history. That they’re not critical enough in their thinking, they’re not logical enough, they’re not capable of making the correct decisions, right? Poor people, as well.
Joan Bertin: It’s not just schools that are restricting the rights, the speech rights of young people. It is parents, claiming total authority …
Peter Scheer: Absolutely.
Joan Bertin: … over what their children can see and do and read, who are an enormous source of censorship incidents that we deal with. Book censorship, book challenges in schools. There’s a case out in California where you are right now, or from California, having to do with the state’s attempt to regulate minors’ ability to purchase what are called violent video games. And again, these are being argued as if young people are, for lack of a better term, second-class citizens for purposes of the First Amendment. And frankly, that is pretty much where we’re coming from. And so the 3rd Circuit decision is a little bit of a refreshing change of pace, in that it acknowledges that young people really do have expressive rights, and that there’s a limit to how much the state can interfere with those rights.
Kasia Anderson: Well, that’s a good note to end on. I think that’s all we have time for, but thanks to Joan Bertin who is, once again, the executive director of the National Coalition Against Censorship. And I’m Kasia Anderson, and I’m with Peter Scheer, and thank you for your time.
Joan Bertin: You’re very welcome. I enjoyed it.
Peter Scheer: This is Truthdig Radio. Peter Scheer and Kasia Anderson speaking to Timothy Karr, the campaign director for Free Press and SaveTheInternet.com. He recently wrote a piece in The Huffington Post called “Is Apple Launching a Preemptive Strike Against Free Speech?” And I guess, Tim, the way to begin is to ask you: Are they?
Timothy Karr: Well, it would seem that they, maybe unintentionally, are doing that. They have applied for a patent for a device that, when pointed at cellphone cameras, in particular the iPhone, disables the video capture, disables the photo capture—basically disables the camera on your cellphone. And their original intention with this was to work with the entertainment industry, which is very concerned about people who go to live concerts and hold up their cellphone cameras to videotape a live performance, and then they put it out on YouTube. And so Apple thought, gee, wouldn’t it be great if you could put these devices up on the stage so that when people point their video cameras at the live rock concert, it turns off their camera. It beams an infrared beam that beams into your camera and has, encoded in that language, it actually shuts down your cellphone camera. And so that original intention, to work with the entertainment industry to try to control piracy, actually has more insidious applications should this technology fall into the hands of governments. I mean, look at the video that came out of the Middle East and North Africa over the last six months, where people on the streets are documenting abuses by security forces. And these videos have gone worldwide and really act as a check against further abuses by some of these governments. If these governments had the same device, they could simply mount them around public squares or even on the top of police vans and shut off video cameras when they move in to clear squares and to abuse protesters. So Apple needs to think of broader ramifications of this technology should they develop it and make it available around the world.
Kasia Anderson: Do you know, Tim, what this device is going to look like? Can we educate ourselves ahead of time and try to get one up on Apple, while we’re at it?
Timothy Karr: We don’t, because all that exists right now that we know of is the patent application. And in that application, they actually do have a diagram [Laughs], kind of a silly diagram that shows—it shows an iPhone being pointed at a stage, and atop the stage above the performers are these two square objects that are supposed to be the infrared emitters that will shut down your cellphone. So this is kind of like, you know, this is a—I call this a preemptive strike against free speech because what it really would do is it preempts people’s ability to actually document things on the street and share them with the world by simply shutting off their phones. And so if you thought you actually owned your smartphone, or you controlled your smartphone, think again: there’s technology out there that can actually take control of that device—or at least control of an aspect of that device, its camera function—and take it away from you.
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