Puerto 80 Makes Its Argument For Why The Seizure Of Rojadirecta Was Unconstitutional
from the keep-watching-this-space dept
While the forfeiture process continues (with a short break), Puerto 80 also appealed the ruling during the seizure period, and the 2nd Circuit appeals court agreed to expedite that case. The hearing there is happening in a little over a week, and Puerto 80 has filed its brief in that appeal, which is embedded below. The summary is that they're focusing on the fact that this is prior restraint. Even if the content turns out to be infringing and unprotected, seizing it before that determination is made represents classic prior restraint:
...throughout its brief, the government assumes that the First Amendment does not protect any Rojadirecta content that the government claims links to infringing material. Not so. True, were the government ultimately to show at a hearing that the Rojadirecta web sites or certain content on those web sites infringed copyrights, that content would no longer be protected. But the very point of the prior restraint doctrine is that the government does not get to assume that speech is unprotected without first affording the speaker notice and an adversarial hearing on that issue. The government’s failure to afford either renders its acts here unconstitutional.Interestingly, Puerto 80 has chosen not to challenge the claim that violating the First Amendment does not represent a substantial hardship. I'm sure there are reasons for this -- and, indeed, the caselaw on "substantial hardship" suggests it may be limited -- but it still seems crazy to me to think that violating the First Amendment isn't automatically deemed a substantial hardship. Even if that's not how the courts have ruled, it seems like they should. The basic reasoning given in the filing is that if the seizure violates the First Amendment, whether or not it also was a "substantial hardship" is meaningless. So if they just show a First Amendment violation, the issue of substantial hardship is moot.
Under the government’s view of the Constitution, no First Amendment scrutiny is required in order for it to shut down a search engine, a website, a newspaper, or a printing press it believes is being used to violate the law—not just prior to a determination of the illegality of the content, but without ever having to prove that its owner violated the law. All it needs to do is assert that those sites are somehow facilitating infringement. The government’s theory would have allowed it to seize the New York Times issue that published the Pentagon Papers and destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of national security laws. And the Times would have had no opportunity to show that its speech was lawful. That is simply not the law. New York Times Co. v. United States, 403 U.S. 713 (1971) (effort to block publication of information alleged to violate the law in advance of legal hearing was an unconstitutional prior restraint).
Either way, Puerto 80 avoids that argument (and, indeed, chides the government for focusing on that issue, when it's not even part of the appeal).
It then, as expected, relies heavily on the ruling in Fort Wayne Books v. Indiana, which makes it clear that seizures that involve expressive speech need to meet a higher Constitutional standard. It also eviscerates Arcara v. Cloud Books, the favorite case of the government and those who support these seizures. As we've noted from the beginning, the court in Arcara is quite clear: the ruling simply does not apply to cases that involve legality of content itself, but only to other sorts of crimes (in this case, prostitution).
The filing is a good, quick read. Hopefully the panel finds it persuasive.