This curious case of the nude cyclist charged with public indecency may draw some heat. Judge Jerome LaBarre was the lucky (ha!) trial judge who drew this case.  Judge LaBarre reportedly ruled that 21-year old Bobby Hammond’s nude bike ride was protected speech and thus not punishable.

There may be a lot of ranting about this case. We’re going to hear about “activist judges.” Wouldn’t surprise me if some outraged citizens even targeted Judge LaBarre for ouster when he is up for re-election. It doesn’t help that young Mr. Hammond hardly sounds like a deep political protester.

Several things that are important and not widely understood. First, the Oregon Constitution’s guarantee on free expression is stricter that the free speech clause found in the U.S. Constitution’s First Amendment.  In Oregon, for example, the State constitution protects nude dancing as free expression. The judge’s task in this setting is to interpret the facts and apply the law. When we’re talking about constitutional rights like free speech, sometimes the results won’t be pretty to all.

The other thing is that regardless of Mr. Hammond’s lack of articulation in the linked radio interview, the Portlland-area bike community has actively “spoken” or protested on bikes for years. This includes annoying rides that tie up traffic. (”Annoying” is defined as something that bothers me, a middle aged guy who drives, walks and cycles.) The nude rides have also been part of the general protests against car culture.

But the most important thing about all this is that Judge LaBarre did exactly what any principled judge should do. He made a ruling based upon constitutional interpretation that is firmly imbedded in the history and text of the Oregon constitution. It is critcally important that we recognize and honor judges’ independence, even when we don’t agree with them. Because a judge who makes decisions based on political whims is a real danger to our society.

So yeah, on one level, this is another case for the “Keep Portland Weird” advocates and those compilers of zany court cases. But looking deeper, this is case that validates the power of the Oregon constitution and judicial independence. And while I’m not interested in having my family subjected to nude cyclists, it’s the right result.

David Sugerman

There is nothing surprising about Friday’s ruling by the U.S. Court of Appeals ruling that Myspace is immune from a lawsuit brought by a parent of a sexually abused child. In Doe v. Myspace, Inc., the Fifth Circuit ruled that the Communications Deceny Act, 47 USC Sec 230 (”CDA”) bars claims against providers like Myspace for damages that arise out of publication by providers of content supplied to the provider. For law geeks keeping score at home, the Court relied on CDA Sec 230(e)(3).

This is the whole preemption thing again. At least this is true preemption that was clearly intended by Congress, rather than a political agenda being pushed by an out-of-control administration.

But that’s not as interesting to me as how this ruling shines a light on censorship by web 2.0 providers like Facebook and Myspace. The CDA protects publishers of content. So why would Facebook remove posts that were critical of Career Education Corp? Facebook couldn’t be required to answer to claims under the CDA. So what gives?

I can’t see any other explanation other than web 2.0 providers play a kind of 3-card Monte with censorship rules. When faced with a liability lawsuit, they rightfully raise the CDA as a complete defense. Fine. That’s how Congress wrote the law. While I have trouble with the result in Doe, it’s about personal beliefs and nothing relating to the correct interpretation of the CDA. But when other interests demand the removal of content–like unflattering posts–the provider should stick to the same position.

To be sure, I’m not a big fan of the CDA’s grant of wide immunity. In pre-web days, publishers like newspapers could be held to answer for harm caused by defamation if they recklessly published untrue information. Personally, I would prefer that model so that web providers take some responsibility for content. But maybe I’m misguided on this particular issue.

Interestingly, there may come a time down the road where web 2.0 providers’ inconsistent actions create a different set of problems. I can foresee that lawyers representing future Doe families will have new and interesting arguments to get around the CDA if Facebook censors for its friends but doesn’t take similar steps for trolling sexual predators. I realize this last thought might be a little obtuse. Apologies. Untangling it would only lead to a long and dense post that would surely bore you to tears. You can thank me for being a self-censoring law geek….

David Sugerman