Editor: Clinton Fein


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Monday, December 21, 2009

Hear No Evil, See No Evil, Condemn No Evil

The latest issue of Index on Censorship magazine includes an interview with Jytte Klausen about her new book on the Danish cartoons crisis and why Yale University Press chose to publish it without any illustrations. Index on Censorship positions itself as Britain's "leading organisation promoting free expression."

With more than a touch of irony, Index on Censorship also elected to publish the interview without including the cartoons, instead publishing the board's decision not to publish the cartoons, and the sole but vigorous dissent of a board member, Kenan Malik.

Islamic scholar Reza Aslan, describing Yale’s original decision as “idiotic”, pointed
out that he has “written and lectured extensively about the incident and shown
the cartoons without any negative reaction”. And, as Jo Glanville, editor of
Index on Censorship, observed in an article in the Guardian earlier this year
critical of Random House, pre-emptive censorship often creates a
“self-fulfilling prophecy”. In assuming that an “offensive” work will invite
violence one both entrenches the idea that the work is offensive and helps
create a culture that makes violence more likely.

Back in February 2006, I made the decision, in my capcity as editor and publisher of, to publish all of the Danish cartoons.

Along with the following explanation

"The following 12 images were published in Denmark's Jyllands Posten newspaper, which
sparked the furor among Muslims globally. The reason they are being displayed
here is not to provoke, despite this site's name, but to allow our users to make
an informed evaluation themselves. For the same reasons, we published Nick
Berg's beheading and James Kirkup's poem. After two federal court cases, one
before the United States Supreme Court,’s hard fought commitment to
free speech – not an automatic guarantee, even in the West -- cost a lot in
terms of time, determination and resources.

We are not oblivious to the fact that religious and cultural differences are far more
complex than anything we could articulate in this small space, but our
fundamental belief is this. Freedom of expression is not reserved for those
wishing to express their religious beliefs, but also those who question

Author of The Jewel of Medina, Sherry Jones' response to Index on Censorship's decision on Redroom:
No Laughing Matter: Index on Censorship Censors Itself

Index of Censorship magazine: See No Evil

Index on Censorship board member, Kenan Malik's, dissent.

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Monday, October 12, 2009

Ralph Lauren: Impossibly Skinny, Impossibly Fashionable

Ralph Lauren: Impossibly Fashionable

Yep. Believe it or not, the Ralph Lauren model above has not been manipulated. At least not by me. By Ralph's fashion empire. He placed her in a slightly different context however. Note the body types though. Spot any differences?

I cannot believe in 2009 we still have to vomit our guts out, or slice off half our abdomens to fit into crappy clothes designed for holocaust victims. It's not just Ralph Lauren. The entire fashion industry seems to be fixated on perpetuating this bullshit. I hope Ralph Lauren comes after me. I'll have to gorge on laxatives to fit into one of his outfits to wear to court. Below would constitute my response: deals with a subjects of intense public concern. These subjects have been and are the subject of acute debate in the media. constitutes both a reference work and a visual commentary that is relevant and important to the debate. It is speech entitled to the greatest and strictest protection under the First Amendment to the Constitution of the United States.

As far as their trademark is concerned, I acknowledge those rights. However, protection for trademark rights under the Lanham Act is limited to protection against another's use of a designation to identify its business or in marketing its
goods or services in a way that causes a likelihood of confusion. Such trademark
rights do not override First Amendment rights.

Eat it Ralph. Or at least have your models eat it.

For more context:

Last month, Xeni blogged about the photoshop disaster that is this Ralph Lauren advertisement, in which a model's proportions appear to have been altered to give her an impossibly skinny body ("Dude, her head's bigger than her pelvis"). Naturally, Xeni reproduced the ad in question. This is classic fair use: a reproduction "for purposes such as criticism, comment, news reporting," etc.

However, Ralph Lauren's marketing arm and its law firm don't see it that way. According to them, this is an "infringing image," and they thoughtfully took the time to send a DMCA takedown notice to our awesome ISP, Canada's Priority Colo. One of the things that makes Priority Colo so awesome is that they don't automatically act on DMCA takedowns. Instead, they pass them on to us and we talk about whether they pass the giggle-test.

This one doesn't.

Cory Doctorow, The criticism that Ralph Lauren doesn't want you to see!,, Octber 6, 2009

Dude, her head's bigger than her pelvis.

Xeni Jardin, Ralph Lauren opens new outlet store in the Uncanny Valley,, September 29, 2009

When Ralph Lauren tried to remove a creepily retouched advertisement from the net, was it embarrassed by graphic design woes, or by a cutting hatchet job by an unknown prankster?

It's obvious by now that Ralph Lauren *hates* being mocked. They hate being mocked so much that they ordered their attack lawyers to send letters trying to fool ISPs into pulling an "infringing" advertisement featuring a ridiculously skinny model (in fact, our posting of the image was fair use, not infringement; Ralph Lauren's takedown notices are bogus and they should know better).

It's also obvious that the photo of Filippa Hamilton used in the Ralph Lauren advertisement was digitally manipulated. But we still have three questions: 1) who, exactly, gave Ms. Hamilton the Olive Oyl physique? 2) If the photo was manipulated after it appeared in the advertisement, why didn't Ralph Lauren's law firm make mention of that in their silly DMCA takedown notice? and 3) Where's the original advertisement?

Mark Frauenfelder, Searching for the skinny on Ralph Lauren ad,, October 8, 2009

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Monday, September 07, 2009

Anonymity: Social responsibility, civility...or fear?

An article in the New York Times, China Web Sites Seeking Users’ Names, reveals a new intrusion by Chinese authorities. This argument against anonymity has been made here in the United States as well. Recently Google revealed the name of a formerly anonymous blogger who had dared to call former model, Liskula Cohen, a skanky ho. The outed blogger, Rosemary Port, has threatended to file a $15 million lawsuit against Google. While most attorneys think she stands little chance of winning, most of the coverage I read appeared largely unsympathetic to Port's privacy claims. But back to China...

... in early August, without notification of a change, news portals like
Sina, Netease, Sohu, and scores of other sites began asking unregistered users
to sign in under their real names and identification numbers, said top editors
at two of the major portals affected. A Sina staff member also confirmed the

The editors said the sites were putting into effect a
confidential directive issued in late July by the State Council Information
Office, one of the main government bodies responsible for supervising the
Internet in China.

The new step is not foolproof, the editors
acknowledged. It was possible for a reporter to register successfully on several
major sites under falsified names and ID and cellphone numbers.

Does government regulation represent an incursion on free speech and individual
privacy, or are we truly unable to manage this stuff ourselves

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Monday, August 17, 2009

Cry My Diluted Swastika

Clinton Fein: Cry My Diluted Swastika, August 2009

As the rhetoric heats over healthcare reform, the swastika has taken center stage. The problem is that no one knows whether the once dreaded symbol is being used to identify the target or the perpetrator. And therein lies the danger.

We live in toxic times.

The increasing displays of vitriolic calls to violence, fueled by frothy-mouthed commentators like Glenn Beck, Lou Dobbs, Michelle Malkin and Rush Limbaugh, and condoned – if not exacerbated – by cowardly elected officials are menacing and troubling.

The tone of discourse that America saw during the Presidential election, unbridled anger and blatant racism stirred by politicians like Sarah Palin was finally overshadowed by the media’s shift in focus once Barack Obama won the election.

As the world rejoiced in a President with a beautiful, intelligent wife, adorable young daughters and the ability to string a sentence together without sounding like a village idiot, the racists and the haters stewed and simmered. The seeming dissipation did not last long however, despite the media’s love fest with Obama, and although critics on the right loudly condemned Obama’s economic stimulus package before the ink had even dried, they strained credibility, covered only by Fox News and right wing blogs.

On April 7, 2009, a report released by the Department of Homeland Security Office of Intelligence and Analysis titled “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment,” was greeted with outrage by Republicans and naturally right wing extremists, who used it as a tool to warn against the President’s nefarious agenda to curtail both the First and Second Amendments.

The report included a caveat that “threats from white supremacist and violent antigovernment groups during 2009 have been largely rhetorical and have not indicated plans to carry out violent acts,” although the election of the first black President, a faltering economy and “the possible passage of new restrictions on firearms and the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks.”

The stated goal of the report – to “effectively deter, prevent, preempt, or respond to terrorist attacks against the United States” -- was irrelevant. From Joe Scarborough on MSNBC to the obvious suspects on Fox News and right wing blogs, the report was roundly criticized as nothing more than a slanderous attack against anyone opposed to Obama’s liberal, socialist agenda.

On June 10, 2009, 88-year-old white supremacist and vocal Holocaust denier, James von Brunn shot and killed Stephen T. Johns, a guard at the Holocaust Memorial Museum in Washington DC. Racist and anti-Semitic screeds were found in his car parked outside the museum. According to a court affidavit, a notebook was found with a handwritten note reading, "You want my weapons — this is how you'll get them. The Holocaust is a lie. Obama was created by Jews."

On May 31, 2009, Dr. George Tiller was assassinated as he attended a Sunday church service in Wichita, Kansas. Frequently targeted by extremists for willingness to perform late-term abortions, Dr. Tiller was gunned down by Scott Roeder, who has since become a darling of the radical and ironically termed “pro-lifers.” Jail visits have included prominent leaders of the anti-abortion movement, such as the Army of God, a fringe hate group that unapologetically and openly glorifies murder and violence against physicians, women and clinics in their purported defense of the unborn. And, of course, homosexuals.

Obama’s healthcare plan was the perfect catalyst to rile up anyone ideologically opposed to his policies, notably bitter McCain/Palin supporters – the same ones who were chanting “kill him, kill him” at pre-election rallies. Particularly after the fringe “Birthers” movement headed by Orly Taitz and Alan Keyes challenging Obama’s citizenship gained widespread support following support by CNN’s Lou Dobbs, was widely discredited after offering an easily refutable fake Kenyan birth certificate as evidence.

Astroturfing campaigns – namely well funded campaigns by industry lobbyists to appear as if they are grassroots efforts -- have turned town hall meetings into increasingly high-pitched battlegrounds. Egged on by groups with ties to insurance industry lobbyists, the “disruption” of town hall meetings continues to get more explosive by the day.

The strategy has been not to argue any counterpoint, but rather to drown out any other expression at all, and to ironically dismiss any criticism other than to bolster arguments that their First Amendment protections are being eroded. Fear mongers continue to propagate lies designed to play on the fears of those already scared, and who have yet to reconcile that a black man was elected President of the United Sates. Their America!

According to ABC News, the Secret Service has launched an investigation of a Maryland man who held a sign reading "Death to Obama" and "Death to Michelle and her two stupid kids" outside a town hall meeting this week.

The batty, barely coherent former half-term governor of Alaska, Sarah Palin, who excoriated late night TV host, David Letterman, for making a joke about her daughter being “knocked up,” (even though one of her daughters had indeed been), and daring to shine a public spotlight on her children, took to Facebook to attack Obama’s “death panels” that she irresponsibly and inaccurately alleged would kill her parents and child with Down Syndrome, using her defenseless child as nothing more than a political prop to foment fear, hatred and mistrust.

On Fox News, Glenn Beck claimed President Obama harbored a "deep-seated hatred of white people" and accused him of being "racist." Only after he simulated poisoning Speaker of the House, Nancy Pelosi, did advertisers begin bolting in droves; while Beck continues to spew his Rupert Murdoch funded hatred. Apparently UPS, HSBC, Visa, Pearle Vision and Broadview Home Security are still willing to affiliate themselves with this whack job. Visa, it’s everywhere you don’t want to be.

As the rhetoric heats, the swastika has taken center stage. The problem is that no one knows whether the once dreaded symbol is being used to identify the target or the perpetrator.

An astonishing editorial on healthcare reform in the Washington Times, laced with Nazi imagery, titled “No 'final solution,' but a way forward,” saw fit to inform readers of Nazi Germany’s Aktion T4 program in which “children and adults with disabilities, and anyone anywhere in the Third Reich was subject to execution who was blind, deaf, senile, retarded, or had any significant neurological condition, encephalitis, epilepsy, muscular spasticity or paralysis.”

Demonstrators both inside and outside town hall meetings hold up signs depicting Obama as Hitler, and his attempts to reform healthcare as a giant step in his radical socialist, communist fascist agenda, seemingly unaware of the inherent differences among socialism, communism and fascism.

On August 5, 2009, Speaker of the House, Nancy Pelosi suggested the opponents at town hall meetings were there as a result of astroturfing. “They’re carrying swastikas and symbols like that to a town meeting on healthcare." Brian Baird , a Washington Democrat who has received death threats, later apologized for accusing health care opponents at town halls of a “lynch mob mentality” and their “close to Brownshirt tactics.”

The same week, radio-host Rush Limbaugh, told his listeners: “Adolf Hitler, like Barack Obama, also ruled by dictate." He also stated; “"There are far more similarities between Nancy Pelosi and Adolf Hitler than between these people showing up at town halls to protest a Hitler-like policy."

Limbaugh told Washington Examiner's Byron York, “I've been listening to the left compare George W. Bush to Hitler for eight years. I've been listening to Democrats and the left compare conservatism to Nazis my whole career. This time I responded. In kind, by comparing the radical left policies of the Nazis to today's radical left leadership of the Democrat (sic) Party.”

Limbaugh’s comment is possibly the only intelligent remark he’s made over this whole fracas. That the left likened George Bush, and his policies, to Hitler is true. As an artist, I personally made frequent references to similarities to policies of the Bush administration and those of the Nazi Party.

The fundamental difference is that the left’s opposition to the wars in Iraq and Afghanistan, the constitutional desecration wrought by the Patriot Act, eavesdropping and spying outside the purview of FICA courts, black sites conducting torture on foreign soil, the politicization of the Department of Justice, extraordinary rendition and a host of other flagrant violations of the constitution were not masking a real and dangerous racism. And comparing those to Nazi regime tactics is not that difficult. Indeed, it may alienate some, or leave little room for meaningful debate or for others, trivialize the Nazi’s murderous rampage.

The coverage on the left by the likes of Rachel Maddow and Keith Olbermann, point to the Nazi rhetoric as a disturbing trend in a rise of hate speech. Seeking to criticize Obama as a Nazi, whether through imagery or rhetoric, is speech firmly protected by the First Amendment. Nazi comparisons, not matter how distasteful to some, are not the same as inciting people to violence, expression that the First Amendment does not protect.

Protestors at town hall meetings, like William Kostric, carrying signs with the same quote that Timothy McVeigh had on his T-shirt when arrested, packing unconcealed 9-mm Smith and Wesson handguns (actions protected by both the First and Second amendments respectively), are a lot more alarming than those hurling Nazi accusations, to be sure, but are still protected. And, more so than under the previous administration. As USA Today reported in 2006, “months before the 2004 election, dozens of people across the nation were banished from or arrested at Bush political rallies, some for heckling the president, others simply for holding signs or wearing clothing that expressed opposition to the war and administration policies.”

During the Presidential campaign, a man with a Star of David atop his head, admitting he doesn't want a black man as president hanged an Obama effigy in his front yard. An act mimicked by an unidentified protester at an anti-Obama healthcare rally in Salisbury, Maryland, where freshman Democrat Frank Kratovil was hung in effigy, the protestor smilingly posing with his handiwork, reminiscent of photographs of lynchings from the South, where such disturbing imagery was used to send postcards.

A four-foot wide swastika painted over the sign at congressman, David Scott's Smyrna, Georgia office stood out from some of the hyperbolic signage at town hall meetings. A "Blue Dog" Democrat, David Scott is black, and a member of the Congressional Black Caucus. Unlike Nazi references related to Obama or Pelosi, the painting of a swastika on the premises of a black man has that unmistakable message that crosses that First Amendment line. As unmistakable as a fiery cross.

For the right wing extremists, neo-Nazi’s, resurgent Ku Klux Klan members and others harboring racist sentiments, comparing Obama to Hitler is blasphemous. Imagery of Obama as a Nazi must irk neo-Nazis and white supremacists as much as it did Hitler when Leni Riefenstahl’s cameras captured the beauty and grace of athlete Jesse Owens at the 1936 Berlin Olympics.

It’s not the people holding signs comparing Obama to Hitler that America needs to be worried about. Fueled and fed by commentators, politicians and the media, it’s the ones whose racist hatred is being masked by more sinister, less obvious expression. Like heathcare.

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Tuesday, March 17, 2009

Free Speech is Sacred

A well reasoned, and articulate criticism of the UN's decision to even contemplate a resolution banning religious criticism, by Pat Condell.

Thursday, June 21, 2007

June 2007 FAP Newsletter

“At a time when access to information, and free speech and press freedom are all under attack, First Amendment Project should be cherished and supported as an essential resource, both for independent journalists and the community at large.”
Sarah Olson, independent journalist

Acclaimed independent print and radio journalist Sarah Olson found herself on the witness list in the Army’s court martial proceedings against Lt. Ehren Watada. Olson was one of the first journalists to interview Lt. Watada, the officer who criticized the Iraq War and who would later refuse to deploy to Iraq. The Army charged Lt. Watada with “conduct unbecoming an officer” based on his statements to Olson and others, and Olson was served a subpoena to testify at the court martial. First Amendment Project represented Olson pro bono.

“Thanks to their superlative advice, I had access to the full range of information I needed in order to make what amounted to a very personal decision,” said Olson. The subpoena was ultimately withdrawn without Olson having to testify.


"First Amendment Project’s commitment to free speech and justice is unparalleled. Without their invaluable and pro-bono assistance I would likely still be in jail today. I am eternally grateful for the help and guidance they provided."
-- Josh Wolf, independent journalist/blogger

When freelance journalist/documentarian/blogger, Josh Wolf, was finally released from federal prison after 228 days of confinement, First Amendment Project was at his side. Wolf had been held in contempt of court for refusing to comply with a federal court subpoena calling for his testimony and unpublished video of a protest.

First Amendment Project joined Wolf’s legal team as he appealed the contempt order, and stayed with him during his confinement – which served as the longest confinement of a journalist on contempt charges in recent U.S. history. First Amendment Project took the lead in securing Wolf’s release after the federal government dropped its demand that Wolf testify before the grand jury.

Since 1992, First Amendment Project has provided pro bono legal representation to independent journalists such as Sarah Olson and Josh Wolf who lack the financial and legal backing of a major media organization. First Amendment Project has also represented numerous activists, advocates, artists and other nonprofit organizations who either have been sued for exercising their free speech and free press rights or file lawsuits to enforce their rights to speak, publish, and access governmental records and proceedings.

First Amendment Project is the only nonprofit organization in the country dedicated to providing free legal services exclusively on free speech and free press issues.

First Amendment Project relies on private donations to continue to offer free legal services to this constituency that would otherwise be without legal representation. We need your help so that we can continue to help others.

Please make a donation today. To celebrate our successes in this first half of 2007, First Amendment Project is asking its supporters to sign up for recurring donations of at least $4 a month. Your $4 a month donation will go a long way to helping First Amendment Project promote free speech and free press rights. Click here to sign up right now.

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Friday, June 01, 2007

Fair Use and Copyright

"Professor Eric Faden of Bucknell University provides this humorous, yet informative, review of copyright principles delivered through the words of the very folks we can thank for nearly endless copyright terms."

For more information:

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