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
    Hugh Mann (profile), 5 Aug 2011 @ 1:23pm

    Yeah, not really . . . .

    Your newspaper analogy might work better if the printing press were owned by a car dealer, and the printing press was used to print a newsletter about the cars he's got for sale now and then. The court rightly called "bullshit" on the claim that a movie/TV download/streaming site was engaged in important First Amendment activity merely because there was an online forum as part of the web site. Should every web site now just slap up a forum and therefore be able to defeat on First Amendment grounds any interference with the operation of their site?

    Personally, I think the lost business argument is much stronger than the First Amendment argument, though the court pretty quickly dispensed with that, too.

    The court pointed out not only that the service COULD go elsewhere online, but actually HAD DONE SO, and, at least in the view of the court (which may have been wrong factually, but nobody's claiming the facts are wrong here), seemed to be plugging along, albeit perhaps not as strongly as before.

    Nobody was saying the users of the site were prohibted from engaging in their discussions. They just weren't able to do so at a place that was shut down because of a criminal investigation. If someone was running an illegal gambling operation in a building, and the cops shut it down, should the operator be able to raise a First Amendment defense against the shut-down, arguing that his patrons liked to gather in his building to discuss aspects of the horse races they were betting on?

    HM

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