A Blaze of Glory? The legal history behind flag burning as free speech

A Blaze of Glory? The legal history behind flag burning as free speech

Happy July 4th!  Perhaps nothing else symbolises America’s Independence Day quite like the American flag, also known as “Old Glory.” So what better day to consider the fascinating legal history which surrounds burning the American flag in protest?

This is my second blog post dedicated to exploring important United States Supreme Court cases on free speech. The first post, Regulating the Raunchycovered the basics of free speech protected by the First Amendment, together with the regulation of pornography under Miller v. California (1973). This post covers the history of flag protection in the United States, and the cultural shifts that led to Texas v. Johnson (1989).

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Unrest followed by Unity: the Revolutionary War and Civil War

Adopted on 14 June 1777, the American flag represents an incredibly wide variety of concepts, sentiments, and political positions. For many in the United States and abroad, the flag symbolizes normatively “good” things in Western culture, such as democracy, freedom, liberty, and self determination.

When considering why the American flag is such a potent symbol, it might be helpful to consider that the U.S. Civil War (1861-1865) not only revived that patriotic attachment to the flag, but expanded and intensified it, fostering a spirit of reverence and devotion (National Museum of American History). By the late 1800’s, flag protection movements had swept across the country in reaction to perceived commercial misappropriation on the one hand, and politically motivated abuse of the flag on the other. 

By 1932, each State had adopted some form of flag protection legislation, which prohibited “publicly mutilating, trampling, defacing, defiling, defying or casting contempt, either by words or by act, upon the flag” (emphasis added).

The Vietnam War was a watershed moment for political protests.

Following the Second World War, American prosperity and patriotism boomed. But by the 1960’s however, the counterculture movement began, marked by widespread revolution against established norms and conventions. In particular, the increasing unpopularity of the Vietnam war led many to question the infallibility of American foreign policy. After American bombing campaigns against North Vietnam intensified in 1965, small uprisings of peace activists and intellectuals on university campuses soon gained national prominence.

Anti-Vietnam war demonstrators burn the flag in Central Park, 1967.

1984: Counterculture against Ronald Reagan.

The Youth International Party or “Yippies” were one such offshoot of the countercultural revolutionaries of the free speech and anti-war movements of the 1960s. During the 1984 Republican National Convention in Dallas, Texas, the Yippies and like-minded groups protested against President Reagan, including his administration’s involvement in Grenada and Nicaragua.

Dozens of protesters were arrested, including Gregory Lee Johnson, whose participation during the protests involved the burning of an American flag. “We wanted to do as much as possible to puncture the whole chauvinistic, Rambo-istic atmosphere around that convention,”  Johnson later recalled.

Johnson was therefore charged with violating Texas Penal Code 42.09(a)(3), which prevented the desecration of a venerated object, including the American flag, if such action were likely to incite anger or offense in others. Johnson was initially sentenced to one year in jail, and assessed a $2,000 fine. After a series of appeals, the case was brought before the Supreme Court for final adjudication in 1989.

The decision and legal reasoning behind Texas v Johnson

In a 5-4 decision, the Supreme Court held that Johnson’s conviction for flag desecration was inconsistent with the First Amendment, which states inter alia that “Congress shall make no law abridging the freedom of speech.” Of course, the act of burning something is not written or spoken speech (also known as “pure speech”). So how can burning the flag possibly be construed as speech protected by the First Amendment?

The Court held that where the medium or conduct itself is the message, it is a special form of protected speech, known as “symbolic speech.” Put differently, symbolic speech is a nonverbal communication that takes the form of an action, in order to communicate a specific belief or position. 

To be considered symbolic speech, the action in question must be a form of expressive conduct. This requires: (1) that the individual intended to communicate a message, and (2) that the audience was likely to understand the communication.

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Joey Johnson (left) and his lawyer, William M. Kunstler – a civil rights activist known for his politically unpopular clients

The Supreme Court agreed that Johnson burned an American flag as a political demonstration that coincided the Republican party’s renomination of Ronald Reagan for President. The expressive, overtly political nature of Johnson’s action was both intentional and overwhelmingly apparent. At his trial, Johnson explained that he burned the flag because “a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time.”

The Court found that Texas’ focus on the precise nature of Johnson’s expression violated the principle that the government may not prohibit expression simply because it disagrees with its message. This core doctrine of American free speech is not dependent on the particular mode or method in which one chooses to express an idea.

The judgment concluded with what I consider to be a particularly powerful point made by Justice Brennan:

We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. The flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength.

The Impact of the Supreme Court’s decision. 

It is important to note that the Supreme Court however did not say that the government was prohibited from regulating symbolic speech. State legislatures can indeed constrict symbolic speech, provided that the law both: (1) reflects an important interest unrelated to suppressing the actual message (i.e., the law prohibits the non-communicative aspects of the act in question) and (2) is narrowly tailored to that substantial government interest. 

Because flag protection statutes in 48 of the 50 States did not meet this test, the decision in Texas v Johnson effectively invalidated those laws.

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Gregory “Joey” Johnson holds a flag, June 1989. (AP Photo/David Canto via the Smithsonian)

Lingering controversy

Although Texas v Johnson was decided 30 years ago, public sentiment regarding the treatment of the US flag remain controversial as ever.

Shortly after his election in 2016, President Donald Trump tweeted that “Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!” And only two weeks ago (15 June 2019) Trump tweeted that he was “All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!”

While it is true that burning the flag is seen by many as provocative and disrespectful, the right to do so in certain circumstances is protected by settled law. As Justice Brennan said: “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.” On that final note, if you happen to see an American flag on this 4th of July, spare a thought for its special role in shaping and reaffirming our rights of free speech!

Regulating the Raunchy? A look at free speech and obscenity under Miller v. California

Regulating the Raunchy? A look at free speech and obscenity under Miller v. California

One of the most interesting aspects of being a technology lawyer is that it necessarily requires a strong understanding of Internet regulation and digital rights, including the right to express yourself online.  As such, free speech is one of my favourite areas of legal history and theory.  Coincidentally, two major US Supreme Court cases regarding free speech were decided on this day —  21 June!

This post takes a look at one of them: Miller v. California [1973].  In a later post, I’ll explore a second landmark free speech case decided on 21 June: Texas v. Johnson [1989].

The Constitution in Court.  

Most people know that the First Amendment of the US Constitution protects freedom of speech. However, it’s actually a bit more complicated than many would guess. In its entirety, the First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Putting the aspects regarding religion, assembly, and petitions to one side, what this Amendment essentially does is prohibit the government from prohibiting freedom of speech. But what does that look like in practice?

Of course, we cannot travel back in time to 1789 to ask James Madison what he meant when he drafted the Bill of Rights. Instead, American Courts have over time developed various methodologies to apply modern facts to something written 230 years ago.

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Miller v. California – to what extent can the government regulate porn, and why should we care?

The case of Miller v. California, 413 U.S. 15 (1973) concerns pornography and whether or not the government is allowed to regulate obscene material. Marvin Miller was the owner/operator of a California mail-order business specializing in pornographic films and books. When his company’s brochures were sent to and opened by a restaurant owner in Newport Beach, California, the restaurant owner called the police. Miller was subsequently arrested and charged with violating California Penal Code § 311.2, which is paraphrased below:

Every person who knowingly sends into California for sale or distribution, or in this state possesses, prepares, publishes, with intent to distribute or to exhibit to others, any obscene matter is guilty of a misdemeanor.

The jury at Miller’s trial in State court had been instructed to consider the pornographic materials in question, and determine if they were “obscene.” The jury decided that they were, and Miller was found guilty. Because he objected with the way in which the jury had arrived at this conclusion, he appealed the decision to the Supreme Court.

Although the Supreme Court ultimately vacated the earlier jury verdict and remanded the case back to the California Superior Court, the matter became a landmark decision and the basis for what is now known as the Miller Test.

Writing the majority opinion, Chief Justice Burger reaffirmed in Miller that obscenity can be regulated by the government, because it is “unprotected speech.” Referring to Roth v United States (1957) and other similar cases, Justice Burger explained that obscenity was not within the area of constitutionally protected freedom of speech either under the First Amendment, or the Due Process Clause of the Fourteenth Amendment. “In the light of history,” Justice Brennan had said in Roth, “it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.”

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Legal Fun Fact:  The first conviction for obscenity in Great Britain occurred in 1727. Edmund Curll was convicted for publishing erotic fiction titled “Venus in the Cloister or The Nun in her Smock” under the common law offence of disturbing the King’s peace. 

Now that we are clear that the First Amendment does not protect obscenity, the next question is obviously therefore: what is obscenity?  

In Miller, Justice Burger acknowledged the inherent dangers of regulating any form of expression, and said that “State statutes designed to regulate obscene materials must be carefully limited.” As a result, the Supreme Court was tasked with confining “the permissible scope of such regulation to works which depict or describe sexual conduct.”

This brings us to Burger’s three-part test for juries in obscenity cases. Obscenity is now defined as something: (1) the average person, applying contemporary community standards, would find appeals to a prurient interest; (2) which depicts or describes, in a patently offensive way, sexual conduct; and (3) whether the work lacks serious literary, artistic, political, or scientific (or “SLAPS”) value. In short, obscenity must satisfy as the prurient interest, patently offensive, and SLAPS prongs.

The Miller test changed the way courts define obscenity, and accordingly, what does – or does not – deserve protection as “free speech.”  

This Miller obscenity test overturned the Court’s earlier definition of obscenity established in Memoirs v Massachusetts (1966). In Memoirs, the Court had decided that obscenity was material which was “patently offensive and utterly without redeeming social value.” Furthermore, the Memoirs decision made clear that “all ideas having even the slightest redeeming social importance have the full protection of the guaranties [of the First Amendment]”.

By adopting the Miller decision, the Supreme Court departed from Memoirs in favour of a more conservative and narrow interpretation of the types of speech which qualify for First Amendment protection. Rather than considering obscenity as simply that which is “utterly without redeeming social value” of any kind, obscenity is now a subjective standard. This offers wider discretion to State legislatures and police agencies, as well as prosecutors and jurors, to decide whether material is “obscene” under local community standards.

Not everyone agrees!  Unsurprisingly, the Miller decision was a narrow one, and split the Court 5-4.

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Chief Justice Burger wrote the majority opinion, with Justice Douglas penning the dissent.

Justice William O. Douglas wrote the dissent and, at the risk of sounding like a total legal geek, I highly suggest taking a quick read of it! One of my favourite excerpts is as follows:

The idea that the First Amendment permits government to ban publications that are “offensive” to some people puts an ominous gloss on freedom […] The First Amendment was designed “to invite dispute,” to induce “a condition of unrest,” to “create dissatisfaction with conditions as they are,” and even to stir “people to anger.” The idea that the First Amendment permits punishment for ideas that are “offensive” to the particular judge or jury sitting in judgment is astounding. 

Nevertheless, despite the dissent and criticism, the Miller test remains the federal and state standard for deciding what obscene. However, the rise of the Internet has complicated matters, not least because the concept of “community standards” is difficult to define given how interconnected we are today.

What do you think? After nearly 50 years, should the Supreme Court reconsider what “obscenity” means? Is the Miller Test due for an update?

Do Neo-Nazis have a right to privacy?

Do Neo-Nazis have a right to privacy?

Earlier this month, a leftist art collective in Germany called the Centre for Political Beauty (Zentrum für Politische Schönheit or “ZPS”) launched a website to name and shame neo-Nazis. At soko-chemnitz.de, people were invited to examine photographs taken during this summer’s violent anti-immigration protests in Chemnitz, and in exchange for identifying suspected right-wing demonstrators, would receive a crowd-funded reward of at least €30. The twist? The image recognition database was a honeypot: a sophisticated hoax to induce neo-Nazis into identifying themselves.

This recent project gives rise to serious questions regarding the exploitation of personal data for illegitimate or unlawful purposes – even if those purposes are seen by many as socially or ethically justified.

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“Doxing” – a portmanteau of document (“dox”) and dropping – is a term used to describe publicly exposing someone’s real identity on the internet.

The Chemnitz Context

Known as Karl-Marx Stadt when it was part of the Soviet bloc, Chemnitz is an industrial city in eastern Germany with a population of about 250,000. After German reunification in 1990, the political and economic systems changed drastically as democracy and capitalism replaced the communist regime. Similarly, as thousands of East Germans relocated to the more prosperous West, expatriates and immigrants filled shortages in the labour market and made their home in East Germany. For the first time in decades, the East was forced to deal with the challenges posed by multiculturalism, immigration and globalism.

Such problems have only intensified in light of Chancellor Merkel’s more liberal migrant policy, which has seen an influx of those seeking asylum and refugee status. Accordingly, Eastern Germany has seen a significant surge in far-right populism and xenophobic protests. In 2017, nearly 25 per cent of the city’s residents voted for the far-right German nationalist party, Alternative for Germany (Alternative für Deutschland, orAfD”).

Tensions between “native” East Germans and immigrants made headlines again this August, when a German man was stabbed to death in Chemnitz. When police revealed that his two attackers were Kurdish (one from Iraq and the other Syria) far-right groups quickly organised anti-immigration protests. Nearly 7,000 people joined the demonstrations, which were marked by hate speech and violence against non-Germans. The swastika and other Nazi symbols, including making the Nazi salute, are banned in Germany.

The Honeypot

Known for its “activist art”, the ZPS uses satirical stunts, performance pieces and interventions to draw attention to various humanitarian issues. By way of example, the group designed a monument in 2010 to “memorialise” Western co-responsibility for the Srebrenica massacre. In 2017, they built a “Holocaust Memorial” in front of nationalist politician Björn Höcke’s house.

In the weeks following the Chemnitz protests, ZPS published pictures of far-right rioters online at soko-chemnitz.de, and asked visitors to “identify and denounce your work colleagues, neighbors or acquaintances today and collect instant cash!” The rewards started at €34 (£30) with special bonuses awarded for identifying photos of people who were police, or members of Germany’s domestic security agency, the Federal Office for the Protection of the Constitution (Bundesamt für Verfassungsschutz or BfV). While the ZPS had indeed previously identified over 1,500 individuals who participated in the protest, the real goal of the campaign was to get far-right sympathizers to search for and thereby name themselves.

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Gesucht: Wo arbeiten diese Idioten? / Wanted: where do these idiots work?

The honeypot design was simple. When visitors entered the website, they were presented with only 20 pictures at a time. Much to the delight of ZPS, Chemnitz protesters went straight to the site’s search bar to type in their own name and the names of fellow participants, to see if they’d already been named. The average visitor searched for the names of seven people.

In this way, the protesters “delivered their own entire network to ZPS without realising it. They told us more about themselves than publicly available sources ever betrayed.” ZPS founder Philipp Ruch claims that use of the website has created “the most relevant set of data on right-wing extremism that currently exists in Germany.”

The Controversy

The Special Commission Chemnitz site sparked a huge controversy in Germany for several reasons. Firstly, many questioned the legality of the website itself. Photos of demonstrators were uploaded without permission from the individuals pictured, an action which could potentially contravene German and European data protection law. Although no such private information other than photographs were revealed on soko-chemnitz.de,  users were asked to send in names, addresses, and names of employers of demonstrators. DeutscheWelle, Germany’s public international broadcaster, reported that “Germany’s data protection commissioner’s office said it was looking into whether the ZPS site was acting within legal limits.”

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Members of the ZPS always wear black face paint during during public appearances, to symbolize the “soot of German history”. The group’s fundamental mission statement is that “the legacy of the Holocaust is rendered void by political apathy, the rejection of refugees and cowardice. It believes that Germany should not only learn from its History but also take action.”

Beyond the textual or purely legalistic overtures of data protection law violations, the website elicits serious concerns over whether doxing private individuals is ever justified. Much has been written about the free speech rights of those who promote abhorrent ideologies. Those with a more libertarian perspective on free speech will insist that Nazi speech must be defended because it is so especially controversial. But what about the right to privacy?

In his article entitled Why it’s important to name the Nazis, journalist David Perry argued that identifying those whose pictures appear online attending a public rally is justified. Neo-Nazi protesters are people intending to do or to advocate harm, and have therefore surrendered their right to anonymity. The right to freedom of expression does not extend to a right of social impunity. One could also consider that view that as such protests occurred in a public space, any reasonable expectation of privacy was materially lacking.

But in the European —and notably, German— context, rights to privacy are especially treasured given the history of both Nazi and Communist security service tactics. These regimes demonstrated in the most heinous ways possible that collection of personal information can lead to harm. The idea of encouraging and paying private individuals to “out” their friends, neighbours and colleagues —even if for a seemingly noble cause—does not sit well with many Europeans today. Interior Minister Roland Wöller went so far as to say that the ZPS website “endangered social cohesion”.

Consider the distinction between how the United States and Germany “name and shame” sex offenders. The United States was the first country to establish a national sex offender registration and notification system in 1994. By contrast, Germany has no national sex offender registration legislation, nor a public notification system. This perhaps illustrates the extent to which Germans value the protection of individual privacy, even where those individuals have committed criminal or otherwise morally reprehensible acts.

The soko-chemnitz.de project forces upon the public an uncomfortable question: do neo-Nazis have a right to privacy? Those who say “no” would likely choose to identify and denounce the Chemnitz protesters as potentially dangerous far-right radicals. In so doing, one could take comfort in having participated in some sort of righteous, anti-Nazi resistance movement. But at what cost? Doxing campaigns have gone terribly wrong in the past, and errors in identification can led to irreparable emotional and reputation damage, or even job loss and suicide. On the other hand, refusing to participate in the campaign could arouse suspicions that one sympathizes or even identifies with the Nazi ideology.

As a piece of political performance art, soko-chemnitz.de was certainly provocative. But it is also politically significant. Coverage of the website forced people to consider their own personal prioritisation of ideals associated with a democratic society: to what extent should we protect privacy, expression, freedom from interference, security, liberty, trust…? It’s a predicament as old as political philosophy itself, and an increasingly uncomfortable balancing act to achieve in today’s world of hyper-surveillance and social media. Perhaps this was the disquieting, satirical reminder the ZPS was hoping to convey all along.

 


*Note on soko-chemnitz.de

ZPS has replaced its original soko-chemnitz website with a splash page explaining the honeypot campaign. You can visit earlier archives of the page using the Wayback Machine. This is what the website looked like on 4 December 2018, absent the images of individuals, which have since been deleted.

Facebook and Privacy: cases, reports and actions in Europe

Facebook and Privacy: cases, reports and actions in Europe

A list of European enforcement action, official legislative (Parliamentary) reports, and cases concerning Facebook with respect to data protection and privacy. This is a work in progress, last updated November 2018.

Data Protection Commissioner (Ireland) v Facebook Ireland Limited, Maximillian Schrems [Case C-311/18]

  • Jurisdiction: European Union, Ireland
  • Status: Case still in progress
  • Authority:  Court of Justice of the European Union
  • Keywords: EU Data Protection Directive (95/46/EC); EU/US Privacy Shield; Fundamental Rights

Continue reading “Facebook and Privacy: cases, reports and actions in Europe”

From stealing to kneeling, what do NFL player contracts say about “bad” behavior?

From stealing to kneeling, what do NFL player contracts say about “bad” behavior?

Three times each year, two professional American football teams journey across the pond to play against each other in the NFL London Games. This weekend however, four players from the Jacksonville Jaguars made headlines for something they did off the field. They were arrested under suspicion of fraud by false representation for attempting to leave a nightclub without paying the £50,000 ($64,000) bar tab.

According to ProFootball Talk, expensive bottles of champagne and vodka were sent to the players’ table. They thought someone else was paying, and were surprised to learn that they were expected to pay. The bill was settled hours after the arrest, and the players were released with no further action taken by police. “There was definitely a misunderstanding,” said Barry Church, one of the players arrested. “We handled it as a private matter within the team, and we’ll just go from there.”

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Despite their fame and talent, at the end of the day, professional athletes are capable of making mistakes just like the rest of us. But unlike the rest of us, sports stars are often contractually obligated to maintain a positive reputation.

The NFL has had a formal policy addressing off-field conduct since 1997. The current 2014 Personal Conduct Policy prohibits physical violence, illegal possession of a gun or drugs, and cruelty to animals – remember Michael Vick and his dogfightingBut the policy also prohibits anything “that undermines or puts at risk the integrity of and public confidence in the NFL.” Even if a player’s conduct does not result in a criminal conviction, the NFL can impose fines, suspension, or even banishment from the league.

In addition to the NFL Policy, individual player contracts also contain “morality clauses.” Also known as a “moral turpitude clause” or “bad boy clause”, this permits an employer to end the contractual relationship if the employee’s conduct breaches the moral expectations laid out in the employment or endorsement agreement. For my overview of the history and use of morality clauses more generally, see Morality Clauses in Talent Contracts.

The 2012 contract between Arian Foster (“Player”) and the Houston Texans (“Club”) is available online thanks to a (fascinating) IPO filing with the Securities and Exchange Commission. Clauses regarding Foster’s behaviour and conduct included:

  • Player agrees to give his best efforts and loyalty to the Club, and to conduct himself on and off the field with appropriate recognition of the fact that the success of professional football depends largely on public respect for and approval of those associated with the game. 
  • If at any time, in the sole judgement of Club, Player has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract.
  • Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the integrity and good character of NFL players.

“Meaning Transference” and marketing magic

You might be wondering why a football team should care about the off-field behaviour of its players. As long as the guy can run the ball or block a tackle, who cares if he’s arrested for trying to skip out on a bar tab. Right? Wrong.

Consider for a moment the amount of money teams and companies invest in employment contracts and endorsement agreements. By way of example, Russell Wilson earned $2 million during his first three seasons with the Seattle Seahawks. In 2015, the Hawks rewarded their quarterback with a renewed contract worth nearly $90 million. Wilson also gets $10 million a year from his deals with Bose, Nike, and Alaska Airlines. On the other side of the country, the New York Giants’ wide receiver Odell Beckham Jr is earning about $10 million over four years. But the real kicker is that Nike recently signed him for the biggest shoe endorsement ever, worth $25 million over five years.

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“Seattle’s hometown airline” Alaska Airlines “couldn’t be more proud of Seattle’s football hero, Russell Wilson.” Thanks to Wilson’s impressive skill and wholesome image, they even made him their CFO! Chief Football Officer, that is.

Meaning Transference is a social theory which posits consumers “transfer” the perceived ideals, credibility and reputation of celebrities to the associated product or service being sold (Grant McCracken). Because negative perceptions can also transfer, a company will want to distance themselves if a celebrity behaves badly. Essentially, morality clauses protect the team or company’s public image from the athlete’s potential scandals. In practice, this could mean suspending or terminating the contract, which could cost the athlete thousands – or potentially millions – of dollars.

The crux of any morality clause is how the “bad behaviour” is defined. Does a player kneeling during the American national anthem adversely affect the image of the NFL?

Given today’s heated political climate, it’s no surprise that professional athletes are increasingly voicing – or otherwise demonstrating – their opinions on social issues. In 2016, Colin Kaepernick of the San Fransisco 49’s started the trend of protesting police brutality and racial inequality, by kneeling during the national anthem at the start of games. Other players soon joined in, much to the ire of many football fans and prominent figures, including President Trump. That same year, Kaepernick was deemed the most hated player in the NFL.

Speaking to The Washington Postconstitutional law Professor Fred Smith Jr. described the anthem debate as a “clash of values which has become a very fraught issue in the American political imagination.” The NFL reacted to the situation by announcing a new policy in May of this year: players must either stand for the national anthem on the field or wait in the locker room. The policy was then shut down by the NFL’s labour union (NFLPA) only two months later.

As the NFL and the NFLPA continue to negotiate, “no new rules relating to the anthem will be issued or enforced”. However, introduction of the new rules in the first place demonstrates that the NFL is at least attempting to mitigate the perception that it is an unpatriotic organisation. It could be argued that from the NFL’s perspective, it is the result of the public’s perception that matters, and not the conduct itself. 

In spite of the furor and uproar, Nike made a risky decision in September to feature Colin Kaepernick in an advertising campaign. Despite some backlash and boycotts, the move paid off handsomely overall: Nike received valuable free publicity, and online sales and stock price skyrocketed. In this way, Kaepernick’s kneeling is both detrimental to one organisation (the NFL), as well as highly profitable for another (Nike).

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Nike released a controversial commercial featuring Colin Kaepernick, which hints at the embroilment over NFL players kneeling during the American national anthem.

Ultimately, it is critical to understand that morality clauses attempt to regulate something that is continually in flux. Opponents of morality clauses worry that the definition of what constitutes “immoral” or damaging activity could be too broad and subject to abuse by the employer. Smart sports stars and their lawyers will therefore do well to ensure that morality clauses are carefully negotiated and written precisely in order to protect their position – and their paycheques.

Chinese IPRs and Trade Wars

Chinese IPRs and Trade Wars

著作權 or Zhùzuòquán means “copyright” in Mandarin Chinese. Earlier this week, Chinese authorities kicked-off a campaign against online copyright infringement. Is this crackdown a response to increased pressure from foreign investors —and the Trump administration— for China to combat widespread piracy and counterfeiting?

The latest Jianwang Campaign Against Online Copyright Infringement was jointly launched by several government agencies including the National Copyright Administration of China, the Cyberspace Administration, and the Ministry of Public Security. It will target key areas for intellectual property rights (IPRs) including unauthorised republication of news and plagiarism on social media, broadcasting copyrighted content on video sharing apps, and setting up overseas servers to get around territorial restrictions. The campaign, which will last for at least four months, will also push internet service providers to enhance internal supervision systems.

Similar to the crackdown last September, the campaign is seen by many as an attempt to alleviate major concerns among foreign investors, including those in the United States. China’s lack of strong IPRs protection measures “frequently draw complaints from foreign investors and have been a long-standing focus of attention at annual talks with the US and Europe.”

The issue hit headlines again last autumn, when the Office of the United States Trade Representative led an official seven-month investigation into China’s intellectual property theft, under section 301 of the Trade Act of 1974. Bolstered by the USTR’s findings that “Chinese theft of American IP currently costs between $225 billion and $600 billion annually”, the Trump Administration imposed retaliatory tariffs on Chinese products in early July.

Pedestrians strolling past adverts for western companies in Shanghai. Photo: Tomohiro Ohsumi/Bloomberg

Considering 200 years of history: is “Chinese culture” to blame for copyright infringement?

According to the 2017 Situation Report on Counterfeiting and Piracy in the European Union, China has long been recognised as the engine of the global counterfeiting and piracy industry. Whereas software piracy rates for the European Union are 28 per cent, analysts at BSA | The Software Alliance believe nearly 70 per cent of computers in China run unlicensed software.

In 2012, an article on Forbes explained that “IP protection will always be an uphill struggle in China and for companies doing business there,” as individual rights –including IPRs– may be at odds with traditional Chinese society. What support does that argument have?

Firstly, it’s important to note that IP is not an indigenous concept in China. Historically speaking, the lack of a strong IP regime can be traced to the early roots of China’s economic system, which emphasised agriculture and generally neglected large-scale commerce. Before the Opium War (1839-1842), foreign powers were unconcerned with the lack of IP protection in China primarily because there was little foreign investment there to protect in the first instance. Furthermore, the main European exports to China at the time were unbranded bulk commodities, and not technological innovations or creative works such as software, film, and music.

During the Chinese Revolution, Mao Zedong’s Communist Party abolished all legal systems in 1949. Throughout the Cultural Revolution of the 1960s and 1970s, China lacked any semblance of a functioning legal system. As per Communist political ideology, “Law” in China during this time was guided by general principles and shifting policies, rather than detailed and constant rules.

When chairman Deng Xiaoping adopted an open-door economic policy in the late 1970s, China’s trading partners were no longer restricted to the USSR and Soviet satellites, but instead now included Western countries. Several years later, the Communist party officially pronounced that the Cultural Revolution had been a grave error, and began to shift its economic and social reforms. To support its burgeoning and rapid economic development, China accordingly began to embrace a formal IPR strategy. When China joined the World Trade Organisation in 2001, it became bound by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

Enhancing the protection of intellectual property rights is a matter of overall strategic significance, and it is vital for the development of the socialist market economy.

—Li Keqiang, Premier of the People’s Republic of China

The Wall Street Journal further explains that, incentivised by the influx of foreign technology and media companies wishing to invest in China, IPR protection in the country has been rising steadily for the last decade. In 2006, there were approximately 6,000 copyright lawsuits: in 2016, that number had multiplied nearly 15 times over to 87,000 cases.

If Chinese IP law is increasingly comparable to European and American standards, why then does China continue to attract disapproval?  

Although the rate of unlicensed or “pirated” software in China is nearly 70 per cent, the piracy rates in Indonesia, Pakistan, Vietnam, Albania, Belarus, Ukraine, Bolivia, Algeria, Botswana, Zimbabwe and many others is much higher. However, because Chinese economy is behemoth, and uses an incredible amount of software, the value of such pirated software is over $6.5 billion.

Secondly, although true that Chinese IPR enforcement is catching up to U.S. and European standards, considerable weakness remains in the high levels of bureaucracy. For example, court decisions might apply on a provincial level rather than nationally, and judges often have different interpretations of the laws.

a farm in Altay Prefecture, China. 42 per cent of people in China live in rural communities. Photo: @linsyorozuya

Of China’s 1.5 billion residents, nearly 600 million live in rural communities. While central authorities may establish the laws and regulations, it is the local authorities tasked to implement those laws and regulations. It is therefore important to note that local protectionism probably constitutes the largest obstacle to cracking down on piracy in China.

Finally, from a sociological perspective, it could be argued that English-language media promotes an inaccurate portrayal of IP piracy as somehow rooted in Chinese culture and Otherness. To be fair, European and American copyright law is also plagued with intense debate and woeful inadequacies surrounding the evolution of online technologies.

IP is a complex area of law, and for a variety of reasons copyright is perhaps one of the most difficult areas to legislate. China still has a long way to come in respect of is IPR regime, a sentiment acknowledged by Beijing. However, the danger of perpetuating snippets and sound bites without adequate context is non-trivial. IPR policy affects United States foreign policy, and incorrect understanding the problem can lead to disruptions in international relations, or even trade wars.

 

featured image photo of Shanghai: @Usukhbayar Gankhuyag