Judge Says Making It Harder To Exercise Free Speech Does Not Create Substantial Hardship

from the holy-what-now? dept

In a horrifically bad ruling on the attempt by Puerto 80 to get the US government to return its domain while it awaits a trial, a district court judge has decided that there's simply no First Amendment issue at all at this time because someone whose domain is seized by the US government can simply set up shop somewhere else:
"Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate...."
Yes, the judge is basically saying that the government can block speech so long as you can set up shop elsewhere. The judge cites no precedent for this, other than the judge's own interpretation of the law. Unfortunately, the Supreme Court argues the exact opposite in its Virginia State Pharmacy Board v. Virginia Citizens Consumer Council decision:
"We are aware of no general principle that freedom of speech may be abridged when the speaker's listeners could come by his message by some other means...."
In that decision, the court even specifically notes that "the recipients of the political publications in Lamont could have gone abroad and thereafter disseminated them themselves...," which is what Rojadirecta effectively had to do in changing domain names, and the Supreme Court makes clear that this is still a First Amendment violation.

This ruling is just on the question of whether or not the domain should be returned pre-trial. The judge does note that the First Amendment part can be challenged in the actual upcoming trial, but in the meantime, he's claiming that a clear violation of the First Amendment does not create "substantial hardship." That's quite a ruling and quite a diminishment of the basic principles of the First Amendment.

Separately, as the EFF points out, the judge did not even address the key point raised in Fort Wayne Books v. Indiana, that you cannot use mere "probable cause," in restricting speech, but that it requires a higher bar. The judge just ignores that point entirely. It's quite surprising, and you can bet this will be appealed.

In the meantime, the implications of this are huge and immensely troubling. The reasoning in the ruling means that anyone whose website is seized cannot claim a First Amendment violation at all, because they can just put up a site elsewhere. That's a massive dismantling of the First Amendment. Based on this ruling, and contrary to a long line of First Amendment cases, the government could seize the printing presses from a newspaper it doesn't like by saying that the publisher can just use someone else's. Yikes!

Filed Under: first amendment, free speech, prior restraint, rojadirecta, seized domains
Companies: puerto 80, rojadirecta


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  1. identicon
    Anonymous Coward, 6 Aug 2011 @ 10:35am

    Re: Re:

    You know Mike, I read an re-read your comment here very closely, because I think it is incredibly telling about the way you look at the laws and how you interpret the way they are written.

    The "substantial hardship" clause is specific. As the judge noted, it's "preventing the functioning of the business, preventing an individual from working, or leaving an individual homeless". Since the Rojo website is up and running right now, none of these parameters is met.

    Quite simply, whatever small free speech restriction that may occur doesn't rise to the level of "substantial hardship". In fact, considering that the Rojo websites are still up, that by itself proves that there may not even be any real first amendment issue.

    Remember also, and this is key: First amendment issues only apply to legal, protected speech, and not to illegal acts. You are aware of course that courts have ruled that a small amount of protected speech may be lost in order to take out unprotected, illegal speech.

    What concerns me is that you are so concerned about ANY suggestion of a loss of free speech that you think any of it is a hardship. Even in face of the law, you are willing to take such a stand, it makes me wonder where else you have put your thumb on the scale of justice to make it balance your way.

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