Constitutional Rights in Collision
Ari Symons introduced today's speaker, Rebecca Connolly a partner in the law firm of Grunsky, Ebey, Farrer and Howell. Ari shared that she and Rebecca have been friends and professional associates for many years. They both worked together in the Santa Cruz County DA's office where Rebecca was Assistant DA. The topic of Rebecca's talk was: Political Speech and the First Amendment.
Rebecca did her undergraduate work at Cal and received her J. D. from UC Davis in 1989. Before coming to Santa Cruz she clerked for Federal judges in San Jose and Los Angeles. A significant portion of her practice at Grunsky has been trying cases in Federal court related to First Amendment issues. She described her talk as "Constitutional Law Lite" on 1st amendment topics and she thankfully did a great job of keeping the dialog on this very complex legal topic on the lay side of the spectrum.
Some of her recent clients have included: the City of Watsonville (a high-profile helmet law case), Starbucks, UCSC vs. the "tree sitters" and the Republican National Committee in an Ohio case. Each interesting cases in their own right, she deftly made the point that the 1st amendment's guarantee to freedom of expression comes up can be applied is some very unexpected ways and often can be in conflict with other constitutional rights.
The first case Rebecca presented was one that pits the so-called "fair use" doctrine against established copyright protections; the Shepard Fairey "HOPE" image of Barack Obama and the question of who owns it. Everyone from the original freelance photographer Mannie Garcia, to the Associate Press, to Fairey (who claims "fair use"), to the Smithsonian (who owns one of the 350 originals) to the DNC, to the Obama campaign have made claims of ownership.
With the rapid evolution of technology, including the internet and other new media formats and outlets, the clash between Intellectual Property rights vs. the public right to use content in the public domain (i.e., practice free speech) has become a very hot legal realm.
Another IP vs. "fair use" case that Rebecca was involved with was the defense of the RNC in Ohio for using a 20 second snippet of a Jackson Brown song ("Running on Empty") as part of a campaign piece. Brown had not given permission to the RNC and claimed infringement. The RNC's defense is based on "fair use" and is further complicated by the fact that its ad was considered political speech. Rebecca explained that of all the types of "protected free speech", political speech is among the most highly regarded and protected forms.
This was an engaging and at times at times complicated (especially at 7:45 am!) presentation on a very interesting and relevant topic. We thank Ms. Connolly for enlightening us and providing an example of how vital yet necessarily pliable the U.S. constitution remains.
