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. icon
    Karl (profile), 7 Aug 2011 @ 6:12pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Now, if you wanted to, I guess you could argue that the standard somehow violates free speech, but considering the law has been on the books for a long while and nobody has had any success down that road, I would say that the challenge would likely be meaningless and would likely fail.

    How so? Every time administrative prior restraint of protected speech was challenged, it succeeded. (Ft. Wayne Books v. Indiana, CDT v. Pappert, Ashcroft v. ACLU, etc.)

    Substantial Hardship is the standard for handing back a seized property or item before the completion of the full court case / trial / whatever.

    But not the only standard. The judge would have easily been within his rights to examine the prior restraint issue. He chose to simply ignore it, and focus solely on the "substantial hardship" requirement.

    I am not against first amendment rights. But I do understand that the courts have already allowed that some protected speech may be hurt in the process of taking legal action against unprotected, illegal speech.

    If you really were "not against" First Amendment rights, you would realize that no court has ever said this. In fact, they've said exactly the opposite: that any laws against unlawful speech must be "narrowly tailored" to impact only that speech. Anything more is "overbroad," and unconstitutional.

    I doubt that the chat board of a pirate website was filled with people discussing the weather, so I am pretty comfortable that significant illegal speech was happened.

    Wait, so now discussing sporting events is "illegal speech"? I guess that's what you must mean, since there were not even any allegations that the forums were being used for infringement.

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