5th Circuit Cleans Up District Court’s Silly Jawboning Ruling About the Biden Admin, Trims It Down To More Accurately Reflect The 1st Amendment

Content Moderation

from the that's-much-better dept

We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:

The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.

Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.

The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).

But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.

Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.

The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.

As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:

Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”

Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.

So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.

The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.

Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:

According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.

Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.

Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.

He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.

So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.

The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?

Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions

It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):

That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.

But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.

For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.

So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:

Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.

So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:

That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive

Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.

Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”

So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.

One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:

Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”

So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.

The concern about the FBI is similar. The court seems to read things totally out of context:

Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.

But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.

And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.

Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”

Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.

So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.

Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.

Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.

Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.

Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.

Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.

So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.

But saying CISA, NIAID and the State Department didn’t cross the line is good to see.

And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:

The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.

Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.

The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.

The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:

Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture

That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:

That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.

So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.

And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.

The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).

So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.

But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.

That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).

Filed Under: 1st amendment, 5th circuit, biden administration, cisa, coercion, context, jawboning, joe biden, louisiana, missouri, persuasion, pressure, rob flaherty, section 230, state department, terry doughty, threats, white house

Court Tosses Arkansas Age Verification Law For Violating The 1st Amendment

Free Speech

from the two-down dept

Just after a judge granted an injunction against Texas’ adult content age verification law on 1st Amendment grounds, a judge in Arkansas did the same to that state’s social media age verification law. Trade organization NetChoice had challenged the law, and the court basically gave them a complete and total victory.

Just like the ruling in Texas, the opinion here is a good read. As with Texas, Arkansas relied on Tony Allen, who represents the age verification providers, to claim that the technology works great and the laws are fine. As in Texas, the court here is not convinced.

Also, as with Texas, the state in Arkansas had challenged the standing of the organization bringing the suit, and the court rejects that challenge. We’ll skip over the details because it’s just not that interesting. The important stuff is the 1st Amendment analysis.

First, the court looks to see if the law should be rejected on 1st Amendment grounds for being too vague (the Texas court talked about the vagueness issues, but didn’t rule on that point, only using the vague language to emphasize how the law was not narrowly tailored). Here, the court explains in detail how Arkansas’ law is way too vague:

Here, Act 689 is unconstitutionally vague because it fails to adequately define which entities are subject to its requirements. A “social media company” is defined as “an online forum that a company makes available for an account holder” to “[c]reate a public profile, establish an account, or register as a user for the primary purpose of interacting socially with other profiles and accounts,” “[u]pload or create posts or content,” “[v]iew posts or content of other account holders,” and “[i]nteract with other account holders or users, including without limitation establishing mutual connections through request and acceptance.” Act 689 at § 1101(7)(A) (emphasis added). But the statute neither defines “primary purpose”—a term critical to determining which entities fall within Act 689’s scope—nor provides any guidelines about how to determine a forum’s “primary purpose,” leaving companies to choose between risking unpredictable and arbitrary enforcement (backed by civil penalties, attorneys’ fees, and potential criminal sanctions) and trying to implement the Act’s costly age-verification requirements. Such ambiguity renders a law unconstitutional.

Amusingly, while Arkansas tried to claim it was obvious who was covered, NetChoice got a SnapChat exec to admit that he thought the company was not covered by the law until he heard one of the law’s co-sponsors say otherwise:

The State argues that Act 689’s definitions are clear and that “any person of ordinary intelligence can tell that [Act 689] regulates Meta, Twitter[,] and TikTok.” (Doc. 34, p. 20). But what about other platforms, like Snapchat? David Boyle, Snapchat’s Senior Director of Products, stated in his Declaration that he was not sure whether his company would be regulated by Act 689. He initially suspected that Snapchat would be exempt until he read a news report quoting one of Act 689’s co-sponsors who claimed Snapchat was specifically targeted for regulation.

For what it’s worth, the law is actually so vague that when we wrote about it after it was signed, we noted that it actually could be read to say that TikTok, SnapChat, and YouTube were all excluded. So, for the state to claim it’s obvious who’s covered is laughable.

Apparently, even Arkansas’s lawyers and its expert witness couldn’t agree on what the law covered (oops!):

During the evidentiary hearing, the Court asked the State’s expert, Mr. Allen, whether he believed Snapchat met Act 689’s definition of a regulated “social media company.” He responded in the affirmative, explaining that Snapchat’s “primary purpose” matched Act 689’s definition of a “social media company” (provided it was true that Snapchat also met the Act’s profitability requirements). When the Court asked the same question to the State’s attorney later on in the hearing, he gave a contrary answer—which illustrates the ambiguous nature of key terms in Act 689. The State’s attorney disagreed with Mr. Allen—his own witness—and said the State’s official position was that Snapchat was not subject to regulation because of its “primary purpose.”

Yeah, I’m gonna say your law is pretty damn vague when that happens. The court then details how other parts of the law are equally vague, including the lack of definitions of “predominant function” and “substantial function” which are both important in determining who the law applies to. Also this:

Act 689 also fails to define what type of proof will be sufficient to demonstrate that a platform has obtained the “express consent of a parent or legal guardian.” Id. at § 1102(a). If a parent wants to give her child permission to create an account, but the parent and the child have different last names, it is not clear what, if anything, the social media company or third-party servicer must do to prove a parental relationship exists. And if a child is the product of divorced parents who disagree about parental permission, proof of express consent will be that much trickier to establish—especially without guidance from the State.

And the judge notes that the state’s own expert, Mr. Allen, more or less admitted there was no clear way to determine who was a legal guardian for a child under the law.

Then we get to the 1st Amendment specifics. Here the court explores the same topic that a judge in California is currently considering with regards to California’s Age Appropriate Design Code. Namely: is an age verification mandate content-based or content-neutral?

As in California, Arkansas couldn’t resist giving up the ballgame, by effectively admitting that the goal of age verification is to suppress certain kinds of speech.

On the other hand, the State points to certain speech-related content on social media that it maintains is harmful for children to view. Some of this content is not constitutionally protected speech, while other content, though potentially damaging or distressing, especially to younger minors, is likely protected nonetheless. Examples of this type of speech include depictions and discussions of violence or self-harming, information about dieting, so-called “bullying” speech, or speech targeting a speaker’s physical appearance, race or ethnicity, sexual orientation, or gender. If the State’s purpose is to restrict access to constitutionally protected speech based on the State’s belief that such speech is harmful to minors, then arguably Act 689 would be subject to strict scrutiny

Thankfully, the judge shot down Arkansas’ attempt to say that this is no different than restricting kids access to a bar or a casino. As we’ve pointed out over and over again, there’s a big difference with social media, where you’re dealing with speech. That’s not the case with a casino or a bar. The judge agrees, calling that argument “weak.”

The State’s briefing analogized Act 689 to a restriction on minors entering a bar or a casino. But this analogy is weak. After all, minors have no constitutional right to consume alcohol, and the primary purpose of a bar is to serve alcohol. By contrast, the primary purpose of a social media platform is to engage in speech, and the State stipulated that social media platforms contain vast amounts of constitutionally protected speech for both adults and minors. Furthermore, Act 689 imposes much broader “location restrictions” than a bar does.

Somewhat hilariously, the judge cites an exchange he had with Arkansas’ lawyers before saying “clearly, the State’s analogy is not persuasive.”

THE COURT: Well, to pick up on Mr. Allen’s analogy of the mall, I haven’t been to the Northwest Arkansas mall in a while, but it used to be that there was a restaurant inside the mall that had a bar. And so certainly minors could not go sit at the bar and order up a drink, but they could go to the Barnes & Noble bookstore or the clothing store or the athletic store. Again, borrowing Mr. Allen’s analogy, the gatekeeping that Act 689 imposes is at the front door of the mall, not the bar inside the mall; yes?

THE STATE: The state’s position is that the whole mall is a bar, if you want to continue to use the analogy.

THE COURT: The whole mall is a bar?

THE STATE: Correct.

Your speech suppression law might just be unconstitutional when you’re admitting to a judge that the equivalent would be banning kids from an entire mall because there’s a bar within one restaurant.

Even though the court says that strict scrutiny almost certainly applies, it decided to test the law under intermediate scrutiny (which is what the state wanted) and finds that it still fails to pass 1st Amendment muster. With strict scrutiny, you have to show a compelling government interest and that the law is narrowly tailored to only limit the speech in question, and that there are no better alternatives. With intermediate scrutiny, the law still needs to be narrowly tailored to a significant government interest (rather than a compelling state interest), and the law has to be “substantially related” to reaching that objective, rather as narrowly tailored as strict scrutiny requires.

And, still, the Arkansas law fails. First off, the law clearly creates chilling effects:

It is likely that many adults who otherwise would be interested in becoming account holders on regulated social media platforms will be deterred—and their speech chilled—as a result of the age-verification requirements, which, as Mr. Allen testified, will likely require them to upload official government documents and submit to biometric scans.

And, finally, we see a discussion of the impact on kids’ free speech rights (remember, they have those as well). So many of these discussions forget that kids have rights as well, but the judge here remembered:

Act 689 bars minors from opening accounts on a variety of social media platforms, despite the fact that those same platforms contain vast quantities of constitutionally protected speech, even as to minors. It follows that Act 689 obviously burdens minors’ First Amendment Rights….

[….]

Neither the State’s experts nor its secondary sources claim that the majority of content available on the social media platforms regulated by Act 689 is damaging, harmful, or obscene as to minors. And even though the State’s goal of internet safety for minors is admirable, “the governmental interest in protecting children does not justify an unnecessarily broad suppression of speech addressed to adults.” Reno, 521 U.S. at 875; see also Brown, 564 U.S. at 804–05 (“Even where the protection of children is the object, the constitutional limits on governmental action apply.”).

What about how narrowly tailored the bill is? The judge is… not impressed, especially since the state cited sites that aren’t even subject to the law in defense of the law.

To begin with, the connection between these harms and “social media” is ill defined by the data. It bears mentioning that the State’s secondary sources refer to “social media” in a broad sense, though Act 689 regulates only some social media platforms and exempts many others. For example, YouTube is not regulated by Act 689, yet one of the State’s exhibits discussing the dangers minors face on “social media” specifically cites YouTube as being “the most popular online activity among children aged 3–17” and notes that “[a]mong all types of online platforms, YouTube was the most widely used by children . . . .”…

Likewise, another State exhibit published by the FBI noted that “gaming sites or video chat applications that feel familiar and safe [to minors]” are common places where adult predators engage in financial “sextortion” of minors. See State’s Hearing Exhibit 6. However, Act 689 exempts these platforms from compliance. Mr. Allen, the State’s expert, criticized the Act for being “very limited in terms of the numbers of organizations that are likely to be caught by it, possibly to the point where you can count them on your fingers. . . .”

The state tried to justify this by pointing to a NCMEC (National Center for Missing and Exploited Children) article that listed out the “most dangerous” sites, but the judge questioned the data here:

During the hearing, the Court observed that the data in the NCMEC article lacked context; the article listed raw numbers but did not account for the amount of online traffic and number of users present on each platform. The State’s attorney readily agreed, noting that “Facebook probably has the most people on it, so it’s going to have the most reports.” But he still opined that the NCMEC data was a sound way to target the most dangerous social media platforms, so “the highest volume [of reports] is probably where the law would be concentrated.”

Frankly, if the State claims Act 689’s inclusions and exemptions come from the data in the NCMEC article, it appears the drafters of the Act did not read the article carefully. Act 689 regulates Facebook and Instagram, the platforms with the two highest numbers of reports. But, the Act exempts Google, WhatsApp, Omegle, and Snapchat— the sites with the third-, fourth-, fifth-, and sixth-highest numbers of reports. Nextdoor is at the very bottom of NCMEC’s list, with only one report of suspected child sexual exploitation all year, yet the State’s attorney noted during the hearing that Nextdoor would be subject to regulation under Act 689.

Ouch!

Also this:

None of the experts and sources cited by the State indicate that risks to minors are greater on platforms that generate more than $100 million annually. Instead, the research suggests that it is the amount of time that a minor spends unsupervised online and the content that he or she encounters there that matters. However, Act 689 does not address time spent on social media; it only deals with account creation. In other words, once a minor receives parental consent to have an account, Act 689 has no bearing on how much time the minor spends online. Using the State’s analogy, if a social media platform is like a bar, Act 689 contemplates parents dropping their children off at the bar without ever having to pick them up again. The Act only requires parents to give express permission to create an account on a regulated social media platform once. After that, it does not require parents to utilize content filters or other controls or monitor their children’s online experiences

It kinda sounds like those drafting these laws (1) have no idea what they’re talking about and (2) don’t much care to find out.

The judge is equally unimpressed by the point of parental permission for account signups:

The State’s brief argues that “requiring a minor to have parental authorization to make a profile on a social media site . . . . means that many minors will be protected from the well-documented mental health harms present on social media because their parents will have to be involved in their profile creation” and are therefore “more likely to be involved in their minor’s online experience.” (Doc. 34, p. 19). But this is just an assumption on the State’s part, and there is no evidence of record to show that a parent’s involvement in account creation signals an intent to be involved in the child’s online experiences thereafter.

The court even points out that the UK’s (very problematic!) Online Safety Bill seems to be “more consistent” with US Supreme Court precedent than Arkansas’ law is.

Consider the differences between Act 689 and the UK’s Online Safety Bill. Mr. Allen, who worked on the UK legislation, testified that the UK’s main concern was preventing minors from accessing particular content, whereas Arkansas will require age verification at the time of account creation, regardless of the content. It appears the UK’s approach is more consistent with Supreme Court precedent than Arkansas’s approach. In Packingham, the Court observed that it was possible for a state to “enact specific, narrowly tailored laws” targeted to “conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor”; but it would be unconstitutional for a state to unduly burden adult access to social media

End result: Arkansas’ law likely violates the 1st Amendment with vague language and its broad applicability beyond the very narrow interests of the state. And that would strip adults of their own 1st Amendment rights through chilling effects, as well as kids’ own rights to access information.

In sum, NetChoice is likely to succeed on the merits of the First Amendment claim it raises on behalf of Arkansas users of member platforms. The State’s solution to the very real problems associated with minors’ time spent online and access to harmful content on social media is not narrowly tailored. Act 689 is likely to unduly burden adult and minor access to constitutionally protected speech. If the legislature’s goal in passing Act 689 was to protect minors from materials or interactions that could harm them online, there is no compelling evidence that the Act will be effective in achieving those goals.

End result, the law cannot go into effect.

It seems that Thursday was a great day for the 1st Amendment, and a bad day for state legislatures pushing age verification (and the age verification provider lobbyists).

Filed Under: 1st amendment, access to information, age verification, arkansas, free speech, social media, tony allen
Companies: netchoice

Texas Ruling Shows You Can’t Regulate Online Pornography Like A Public Health Crisis

Free Speech

from the your-porn-addiction-isn't-real dept

A Texas federal district judge granted a preliminary injunction blocking the enforcement of a controversial age verification law set to enter force September 1.

The court determined that House Bill (HB) 1181 was overly broad, even in the narrowest interpretations, and violated the First Amendment and Section 230 of the Communications Decency Act of 1996. No brainer, as Mike described earlier today.

But what made HB 1181 alarming to adult industry firms and digital rights activists is how the sponsors of the legislation, religious Texas state lawmakers, tried to impose pseudoscientific claims of porn addiction into statute. At length, Senior U.S. District Judge David Alan Ezra outlined that the requirement of labeling porn sites with public health warnings in a fashion similar to how other federal and state laws require sites advertising alcoholic beverages and tobacco products doesn’t match the intent of protecting minors or the science. 

Some of you reading this will likely be enraged by this, but pornography consumption in the United States isn’t a public health crisis. Your porn addiction is not real. I make this statement because major medical groups and public health agencies the world over find little to no evidence of online sexual content being addictive. 

This isn’t to say that individuals who might struggle with pornography consumption aren’t experiencing a degree of distress. Too much of anything can be damaging for some, but these tendencies are more related to compulsive behavior and a lack of regulation of that behavior. And there is a fine line between addiction and compulsion that can easily be checked by the proper interventions. But to say that you are a porn addict or that pornography is a public health crisis in the same context as, say, obesity or drunk driving among minors is a misinformed assessment that derives from social settings, your political views, the role of religion in your life, and how you perceive the role of sexuality in the culture. Studies overwhelmingly dispel claims of the porn addiction hypothesis attributing the fact that the people who predominantly report this are subject to hyper-religious environments that feature patriarchal structures that demonize consensual sexual expression outside of procreational purposes. Anything outside of this is regarded as sinful and demonic to them. 

Clearly this is my own annotation of the ruling, but Judge Ezra recognizes the lack of scientific and medical consensus on the claims drafted in the law. 

House Bill 1181, in addition to requiring age assurance measures, requires adult entertainment sites such as Pornhub or xHamster to publish warnings ostensibly to warn minors of the supposed harms of pornography. A selection of these warnings feature the endorsement of the Texas Health and Human Services Commission. 

“Although these warnings carry the label ‘Texas Health and Human Services,’ it appears that the Texas of Health and Human Services Commission has not made these findings or announcements,” writes Judge Ezra. 

As already stated above, none of the major medical associations recognize any perceived public health harms from pornography. This goes toward additional sentiment that Ezra highlights, which include the fact that compelling a private enterprise to post government scripted communication that is unfounded and disputed is far-reaching. Ezra indicates that “the relaxed standard for certain compelled disclosures applies if they contain ‘purely factual and uncontroversial information.'” Or, in other words, the judge cites Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio and the ‘Zauderer standard’ that was discussed on a Techdirt podcast last year.

The Zauderer standard allows governments to compel certain commercial speech situationally without any violation of the advertiser’s First Amendment rights. Think of the compelled commercial speech tobacco product manufacturers have to place on their packs of cigarettes. Messaging is clear that smoking could kill people and is the leading cause of preventable death in the United States. “It is unreasonable to  warn adults about the dangers of legal pornography in order to protect minors. But even assuming this was a cognizable interest, Zauderer would still not apply,” the judge stated. He added that the requirement set out for the typeface and font size was burdensome, in addition to requiring messaging for a mental health helpline. 

“It does not assert a fact, and instead requires companies to post the number of a mental health hotline,” continues Ezra. “The implication, when viewers see the notice, is that consumption of pornography (or  any sexual material) is so associated with mental illness that those viewing it should consider seeking professional crisis help. The statement itself is not factual,  and it necessarily places a severe stigma on both the websites and its visitors.”

This speaks volumes. The ideological underpinnings of the law are clear and show very little basis in fact. 

Per the judge’s sentiments, such an attempt at compelling commercial speech for the supposed benefit of the general public is total bullshit. And, he recognizes that the health disclosure requirement frames information that is “factually disputed.” “Plaintiffs introduce substantial evidence  showing that Texas’s health disclosures are either inaccurate or contested by existing medical research,” Ezra concludes. 

Considering this information, it’s even clearer that you cannot regulate online pornography, or any type of protected form of expression, through the guise of public health and safety. This is simply a vehicle for moralistic paternalists looking to restrict and even censor forms of speech that they disfavor. 

That’s not how this works, Texas. 

Michael McGrady is the contributing editor at AVN.com. 

Filed Under: 1st amendment, age verification, compelled speech, disclosures, hb 1181, texas, transparency, zauderer
Companies: free speech coalition

Court Says Texas’ Adult Content Age Verification Law Clearly Violates The 1st Amendment

Free Speech

from the 1st-amendment-wins-again dept

One down, many more to go.

We’ve been talking a lot by the rush of states to push for age verification laws all over the world, despite basically every expert noting that age verification technology is inherently a problem for privacy and security, and the laws mandating it are terrible. So far, it seems that only the Australian government has decided to buck the trend and push back on implementing such laws. But, much of the rest of the world is moving forward with them, while a bunch of censorial prudes cheer these laws on despite the many concerns about them.

The Free Speech Coalition, the trade group representing the adult content industry, has sued to block the age verification laws in the US that specifically target their websites. We reported on how their case in Utah was dismissed on procedural grounds, because that law is a bounty-type law with a private right of action, so there was no one in the government that could be sued. However, the similar law in Texas did not include that setup (even as Texas really popularized that method with its anti-abortion law). The Free Speech Coalition sued over the law to block it from going into effect.

Judge David Alan Ezra (who is technically a federal judge in Hawaii, but is hearing Texas cases because the Texas courts are overwhelmed) has issued a pretty sweeping smackdown of these kinds of laws, noting that they violate the 1st Amendment and that they’re barred by Section 230.

Given the rushed nature of the proceedings (the case was filed a few weeks ago, and the judge needed to decide before the law was scheduled to go into effect on Friday), it’s impressive that the ruling is 81 pages of detailed analysis. We’ll have a separate post soon regarding the judge’s discussion on the “health warnings” part of the opinion, but I wanted to cover the rest of the legal analysis, mostly regarding the 1st Amendment and Section 230.

However, it is worth mentioning Texas’ ridiculous argument that there was no standing for the Free Speech Coalition in this case. They tried to argue that there was no standing because FSC didn’t name a particular association member impacted by the law, but we’ve been over this in other cases in which trade associations (see: NetChoice and CCIA) are able to bring challenges on behalf of their member companies. The more bizarre standing challenge was that some of the websites that are members of the Free Speech Coalition are not American companies.

But, the judge notes (1) many of the members are US companies and (2) even the non-US companies are seeking to distribute content in the US, where the 1st Amendment still protects them:

Defendant repeatedly emphasizes that the foreign website Plaintiffs “have no valid constitutional claims” because they reside outside the United States. (Def.’s Resp., Dkt. # 27, at 6–7). First, it is worth noting that this argument, even if successful, would not bar the remaining Plaintiffs within the United States from bringing their claims. Several website companies, including Midus Holdings, Inc., Neptune Media, LLC, and Paper Street Media, LLC, along with Jane Doe and Free Speech Coalition (with U.S. member Paper Street Media, LLC), are United States residents. Defendant, of course, does not contest that these websites and Doe are entitled to assert rights under the U.S. Constitution. Regardless of the foreign websites, the domestic Plaintiffs have standing.

As to the foreign websites, Defendant cites Agency for Intl. Dev. v. All. for Open Socy. Intl., Inc., 140 S. Ct. 2082 (2020) (“AOSI”), which reaffirmed the principle that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.” Id. at 2086. AOSI’s denial of standing is distinguishable from the instant case. That case involved foreign nongovernmental organizations (“NGOs”) that received aid—outside the United States—to distribute outside the United States. These NGOs operated abroad and challenged USAID’s ability to condition aid based on whether an NGO had a policy against prostitution and sex trafficking. The foreign NGOs had no domestic operations and did not plan to convey their relevant speech into the United States. Under these circumstances, the Supreme Court held that the foreign NGOs could not claim First Amendment protection. Id.

AOSI differs from the instant litigation in two critical ways. First, Plaintiffs do not seek to challenge rule or policymaking with extraterritorial effect, as the foreign plaintiffs did in AOSI. By contrast, the foreign Plaintiffs here seek to exercise their First Amendment rights only as applied to their conduct inside the United States and as a preemptive defense to civil prosecution. Indeed, courts have typically awarded First Amendment protections to foreign companies with operations in the United States with little thought. See, e.g., Manzari v. Associated Newspapers Ltd., 830 F.3d 881 (9th Cir. 2016) (in a case against British newspaper, noting that defamation claims “are significantly cabined by the First Amendment”); Mireskandari v. Daily Mail and Gen. Tr. PLC, CV1202943MMMSSX, 2013 WL 12114762 (C.D. Cal. Oct. 8, 2013) (explicitly noting that the First Amendment applied to foreign news organization); Times Newspapers Ltd. v. McDonnell Douglas Corp., 387 F. Supp. 189, 192 (C.D. Cal. 1974) (same); Goldfarb v. Channel One Russia, 18 CIV. 8128 (JPC), 2023 WL 2586142 (S.D.N.Y. Mar. 21, 2023) (applying First Amendment limits on defamation to Russian television broadcast in United States); Nygård, Inc. v. UusiKerttula, 159 Cal. App. 4th 1027, 1042 (2008) (granting First Amendment protections to Finnish magazine); United States v. James, 663 F. Supp. 2d 1018, 1020 (W.D. Wash. 2009) (granting foreign media access to court documents under the First Amendment). It would make little sense to allow Plaintiffs to exercise First Amendment rights as a defense in litigation but deny them the ability to raise a pre-enforcement challenge to imminent civil liability on the same grounds.

Moving on. The judge does a fantastic job detailing how Texas’ age verification law is barred by the 1st Amendment. First, the decision notes that the law is subject to strict scrutiny, the highest level of scrutiny in 1st Amendment cases. As the court rightly notes, in the landmark Reno v. ACLU case (the case that found everything except Section 230 of the Communications Decency Act unconstitutional), the Supreme Court said governments can’t just scream “for the children” and use that as a shield against 1st Amendment strict scrutiny:

However, beginning in the 1990s, use of the “for minors” language came under more skepticism as applied to internet regulations. In Reno v. ACLU, the Supreme Court held parts of the CDA unconstitutional under strict scrutiny. 521 U.S. 844, 850 (1997). The Court noted that the CDA was a content-based regulation that extended far beyond obscene materials and into First Amendment protected speech, especially because the statute contained no exemption for socially important materials for minors. Id. at 865. The Court noted that accessing sexual content online requires “affirmative steps” and “some sophistication,” noting that the internet was a unique medium of communication, different from both television broadcast and physical sales.

It also points to ACLU vs. Ashcroft, which found the Child Online Protection Act unconstitutional on similar grounds, and notes that Texas’ law is pretty similar to COPA.

Just like COPA, H.B. 1181 regulates beyond obscene materials. As a result, the regulation is based on whether content contains sexual material. Because the law restricts access to speech based on the material’s content, it is subject to strict scrutiny

Texas also tried to argue that there should be no 1st Amendment protections for adult content because it’s “obscene.” But the judge noted that’s not at all how the system works:

In a similar vein, Defendant argues that Plaintiffs’ content is “obscene” and therefore undeserving of First Amendment coverage. (Id. at 6). Again, this is precedent that the Supreme Court may opt to revisit, but we are bound by the current Miller framework. Miller v. California, 413 U.S. 15, 24 (1973). 3 Moreover, even if we were to abandon Miller, the law would still cover First Amendmentprotected speech. H.B. 1181 does not regulate obscene content, it regulates all content that is prurient, offensive, and without value to minors. Because most sexual content is offensive to young minors, the law covers virtually all salacious material. This includes sexual, but non-pornographic, content posted or created by Plaintiffs. See (Craveiro-Romão Decl., Dkt. # 28-6, at 2; Seifert Decl., Dkt. # 28-7, at 2; Andreou Decl., Dkt. # 28-8, at 2). And it includes Plaintiffs’ content that is sexually explicit and arousing, but that a jury would not consider “patently offensive” to adults, using community standards and in the context of online webpages. (Id.); see also United States v. Williams, 553 U.S. 285, 288 (2008); Ashcroft v. Free Speech Coal., 535 U.S. 234, 252 (2002). Unlike Ginsberg, the regulation applies regardless of whether the content is being knowingly distributed to minors. 390 U.S. at 639. Even if the Court accepted that many of Plaintiffs’ videos are obscene to adults—a question of fact typically reserved for juries—the law would still regulate the substantial portion of Plaintiffs’ content that is not “patently offensive” to adults. Because H.B. 1181 targets protected speech, Plaintiffs can challenge its discrimination against sexual material.

And under strict scrutiny, the law… fails. Badly. The key part of strict scrutiny is whether or not the law is tailored specifically to address a compelling state interest, and not go beyond that. While the court says that protecting children is a compelling state interest, the law is not even remotely narrowly tailored to that interest:

Although the state defends H.B. 1181 as protecting minors, it is not tailored to this purpose. Rather, the law is severely underinclusive. When a statute is dramatically underinclusive, that is a red flag that it pursues forbidden viewpoint discrimination under false auspices, or at a minimum simply does not serve its purported purpose….

H.B. 1181 will regulate adult video companies that post sexual material to their website. But it will do little else to prevent children from accessing pornography. Search engines, for example, do not need to implement age verification, even when they are aware that someone is using their services to view pornography. H.B. 1181 § 129B.005(b). Defendant argues that the Act still protects children because they will be directed to links that require age verification. (Def.’s Resp., Dkt. # 27, at 12). This argument ignores visual search, much of which is sexually explicit or pornographic, and can be extracted from Plaintiffs’ websites regardless of age verification. (Sonnier Decl., Dkt. # 31-1, at 1–2). Defendant’s own expert suggests that exposure to online pornography often begins with “misspelled searches[.]”…

So, the law doesn’t stop most access to adult content. The judge highlights that, by the state’s own argument, it doesn’t apply to foreign websites, which host a ton of adult content. And it also doesn’t apply to social media, since most of their content is not adult content.

In addition, social media companies are de facto exempted, because they likely do not distribute at least one-third sexual material. This means that certain social media sites, such as Reddit, can maintain entire communities and forums (i.e., subreddits), dedicated to posting online pornography with no regulation under H.B. 1181. (Sonnier Decl., Dkt. # 31-1, at 5). The same is true for blogs posted to Tumblr, including subdomains that only display sexually explicit content. (Id.) Likewise, Instagram and Facebook pages can show material which is sexually explicit for minors without compelled age verification. (Cole Decl., Dkt. # 5-1, at 37–40). The problem, in short, is that the law targets websites as a whole, rather than at the level of the individual page or subdomain. The result is that the law will likely have a greatly diminished effect because it fails to reduce the online pornography that is most readily available to minors.

In short, if the argument is that we need to stop kids from seeing pornography, the law should target pornography, rather than a few sites which focus on pornography.

Also, the law is hella vague, in part because it does not consider that 17-year-olds are kinda different from 5-year-olds.

The statute’s tailoring is also problematic because of several key ambiguities in H.B. 1181’s language. Although the Court declines to rest its holding on a vagueness challenge, those vagueness issues still speak to the statute’s broad tailoring. First, the law is problematic because it refers to “minors” as a broad category, but material that is patently offensive to young minors is not necessarily offensive to 17-year-olds. As previously stated, H.B. 1181 lifts its language from the Supreme Court’s holdings in Ginsberg and Miller, which remains the test for obscenity. H.B. 1181 § 129B.001; Miller, 413 U.S. at 24; Ginsberg, 390 U.S. at 633. As the Third Circuit held, “The type of material that might be considered harmful to a younger minor is vastly different—and encompasses a much greater universe of speech—than material that is harmful to a minor just shy of seventeen years old. . . .” ACLU v. Ashcroft, 322 F.3d at 268. 7 H.B. 1181 provides no guidance as to what age group should be considered for “patently offensive” material. Nor does the statute define when material may have educational, cultural, or scientific value “for minors,” which will likewise vary greatly between 5-yearolds and 17-year-olds.

And even the “age verification” requirements are vague because it’s not clear what counts.

Third, H.B. 1181 similarly fails to define proper age verification with sufficient meaning. The law requires sites to use “any commercially reasonable method that relies on public or private transactional data” but fails to define what “commercially reasonable” means. Id. § 129B.03(b)(2)(B). “Digital verification” is defined as “information stored on a digital network that may be accessed by a commercial entity and that serves as proof of the identify of an individual.” Id. § 129B.003(a). As Plaintiffs argue, this definition is circular. In effect, the law defines “identity verification” as information that can verify an identity. Likewise, the law requires “14-point font,” but text size on webpages is typically measured by pixels, not points. See Erik D. Kennedy, The Responsive Website Font Size Guidelines, Learn UI Design Blog (Aug. 7, 2021) (describing font sizes by pixels) (Dkt. # 5-1 at 52–58). Overall, because the Court finds the law unconstitutional on other grounds, it does not reach a determination on the vagueness question. But the failure to define key terms in a comprehensible way in the digital age speaks to the lack of care to ensure that this law is narrowly tailored. See Reno, 521 U.S. at 870 (“Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment.”).

So the law is underinclusive and vague. But it’s also overinclusive by covering way more than is acceptable under the 1st Amendment.

Even if the Court were to adopt narrow constructions of the statute, it would overburden the protected speech of both sexual websites and their visitors. Indeed, Courts have routinely struck down restrictions on sexual content as improperly tailored when they impermissibly restrict adult’s access to sexual materials in the name of protecting minors.

The judge notes (incredibly!) that parts of HB 1181 are so close to COPA (the law the Supreme Court found unconstitutional in the ACLU v. Ashcroft case) that he seems almost surprised Texas even bothered.

The statutes are identical, save for Texas’s inclusion of specific sexual offenses. Unsurprisingly, then, H.B. 1181 runs into the same narrow tailoring and overbreadth issues as COPA….

[….]

Despite this decades-long precedent, Texas includes the exact same drafting language previously held unconstitutional.

Nice job, Texas legislature.

The court also recognizes the chilling effects of age verification laws, highlighting how, despite the ruling in Lawrence v. Texas saying anti-gay laws were unconstitutional, Texas has still kept the law in question on the books.

Privacy is an especially important concern under H.B. 1181, because the government is not required to delete data regarding access, and one of the two permissible mechanisms of age-verification is through government ID. People will be particularly concerned about accessing controversial speech when the state government can log and track that access. By verifying information through government identification, the law will allow the government to peer into the most intimate and personal aspects of people’s lives. It runs the risk that the state can monitor when an adult views sexually explicit materials and what kind of websites they visit. In effect, the law risks forcing individuals to divulge specific details of their sexuality to the state government to gain access to certain speech. Such restrictions have a substantial chilling effect. See Denver Area Educ. Telecomm. Consortium, Inc., 518 U.S. at 754 (“[T]he written notice requirement will further restrict viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the patently offensive channel.”).

The deterrence is particularly acute because access to sexual material can reveal intimate desires and preferences. No more than two decades ago, Texas sought to criminalize two men seeking to have sex in the privacy of a bedroom. Lawrence v. Texas, 539 U.S. 558 (2003). To this date, Texas has not repealed its law criminalizing sodomy. Given Texas’s ongoing criminalization of homosexual intercourse, it is apparent that people who wish to view homosexual material will be profoundly chilled from doing so if they must first affirmatively identify themselves to the state.

Texas argued that the age verification data will be deleted, but that doesn’t cut it, which is an important point in many other states passing similar laws:

Defendant contests this, arguing that the chilling effect will be limited by age verification’s ease and deletion of information. This argument, however, assumes that consumers will (1) know that their data is required to be deleted and (2) trust that companies will actually delete it. Both premises are dubious, and so the speech will be chilled whether or not the deletion occurs. In short, it is the deterrence that creates the injury, not the actual retention. Moreover, while the commercial entities (e.g., Plaintiffs) are required to delete the data, that is not true for the data in transmission. In short, any intermediary between the commercial websites and the third-party verifiers will not be required to delete the identifying data.

The judge also notes that leaks and data breaches are a real risk, even if the law requires deletion of data! And that the mere risk of such a leak is a speech deterrent.

Even beyond the capacity for state monitoring, the First Amendment injury is exacerbated by the risk of inadvertent disclosures, leaks, or hacks. Indeed, the State of Louisiana passed a highly similar bill to H.B. 1181 shortly before a vendor for its Office of Motor Vehicles was breached by a cyberattack. In a related challenge to a similar law, Louisiana argues that age-verification users were not identified, but this misses the point. See Free Speech Coalition v. Leblanc, No. 2:23-cv-2123 (E.D. La. filed June 20, 2023) (Defs.’ Resp., Dkt. # 18, at 10). The First Amendment injury does not just occur if the Texas or Louisiana DMV (or a third-party site) is breached. Rather, the injury occurs because individuals know the information is at risk. Private information, including online sexual activity, can be particularly valuable because users may be more willing to pay to keep that information private, compared to other identifying information. (Compl. Dkt. # 1, at 17); Kim Zetter, Hackers Finally Post Stolen Ashley Madison Data, Wired, Aug. 18, 2015, https://www.wired.com/2015/08/happened-hackers-posted-stolen-ashleymadison-data (discussing Ashley Madison data breach and hackers’ threat to “release all customer records, including profiles with all the customers’ secret sexual fantasies and matching credit card transactions, real names and addresses.”). It is the threat of a leak that causes the First Amendment injury, regardless of whether a leak ends up occurring.

Hilariously, Texas’ own “expert” (who works on age verification tech and is on the committee that runs the trade association of age verification companies) basically undermined Texas’ argument:

Defendant’s own expert shows how H.B. 1181 is unreasonably intrusive in its use of age verification. Tony Allen, a digital technology expert who submitted a declaration on behalf of Defendant, suggests several ways that age-verification can be less restrictive and costly than other measures. (Allen Decl., Dkt. # 26-6). For example, he notes that age verification can be easy because websites can track if someone is already verified, so that they do not have to constantly prove verification when someone visits the page. But H.B. 1181 contains no such exception, and on its face, appears to require age verification for each visit.

Given all that, the age verification alone violates the 1st Amendment.

With that, there isn’t even a need to do a Section 230 analysis, but the court does so anyway. It doesn’t go particularly deep, other than to note that Section 230’s coverage is considered broad (even in the 5th Circuit):

Defendant seeks to differentiate MySpace because the case dealt with a negligence claim, which she characterizes as an “individualized harm.” (Def.’s Resp., Dkt. # 27, at 19). MySpace makes no such distinction. The case dealt with a claim for individualized harm but did not limit its holding to those sorts of harms. Nor does it make sense that Congress’s goal of “[paving] the way for a robust new forum for public speech” would be served by treating individual tort claims differently than state regulatory violations. Bennett v. Google, LLC, 882 F.3d 1163, 1166 (D.C. Cir. 2018) (cleaned up). The text of the CDA is clear: “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). “[A]ny” state law necessarily includes those brought by state governments, so Defendant’s distinction between individual vs. regulatory claims is without merit.

The Fifth Circuit “and other circuits have consistently given [Section 230(c)] a wide scope.” Google, Inc. v. Hood, 822 F.3d 212, 220-21 (5th Cir. 2016) (quoting MySpace, 528 F.3d at 418). “The expansive scope of CDA immunity has been found to encompass state tort claims, alleged violations of state statutory law, requests for injunctive relief, and purported violations of federal statutes not specifically excepted by § 230(e).” Hinton v. Amazon.com.dedc, LLC, 72 F. Supp. 3d 685, 689 (S.D. Miss. 2014) (citing cases).

And while the court says 230 preemption might not apply to adult content websites that create and host their own content, it absolutely does apply to those that host 3rd party user-uploaded content.

Those Plaintiffs that develop and post their own content are not entitled to an injunction on Section 230 grounds. Still, other Plaintiffs, such as WebGroup, which operates XVideos, only hosts third-party content, and therefore is entitled to Section 230 protection.

Given all that it’s not difficult for the court to issue the injunction, noting that a violation of 1st Amendment rights is irreparable harm.

In short, Plaintiffs have shown that their First Amendment rights will likely be violated if the statute takes effect, and that they will suffer irreparable harm absent an injunction. Defendant suggests this injury is speculative and notimminent, (Def.’s Resp., Dkt. # 27, at 21–23), but this is doubtful. H.B. 1181 takes effect on September 1—mere days from today. That is imminent. Nor is the harm speculative. The Attorney General has not disavowed enforcement. To the contrary, her brief suggests a genuine belief that the law should be vigorously enforced because of the severe harms purportedly associated with what is legal pornography. (Id. at 1–5). It is not credible for the Attorney General to state that “[p]orn is absolutely terrible for our kids” but simultaneously claim that they will not enforce a law ostensibly aimed at preventing that very harm. Because the threat of enforcement is real and imminent, Plaintiffs’ harm is non-speculative. It is axiomatic that a plaintiff need not wait for actual prosecution to seek a preenforcement challenge. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). In short, Plaintiffs have more than met their burden of irreparable harm.

All in all this is a very good, very clear, very strong ruling, highlighting how age verification mandates for adult content violate the 1st Amendment. It’s likely Texas will appeal, and the 5th Circuit has a history of ignoring 1st Amendment precedent, but for now this is a win for free speech and against mandatory age verification.

Filed Under: 1st amendment, adult content, age verification, chilling effects, hb 1181, pornography, preemption, privacy, section 230, standing, state laws, texas
Companies: free speech coalition

State Governments Can’t Resist The Siren Song Of Censorship

Free Speech

from the that-hasn't-worked-in-over-a-century dept

The states have gone rogue. In the last year alone, at least nine states enacted internet censorship laws. And more legislators are promising to take up the cause. But these laws are directly at odds with the First Amendment’s command that the government shall not abridge the freedom of speech. 

Undeterred, states passed laws restricting who can access social media, erecting barriers for how to access social media, and even restricting what speech can be displayed. 

The states have defended these unconstitutional laws by claiming the laws don’t regulate speech. Instead, the states say they are regulating conduct. But this claim rests on a narrow interpretation of what speech is that was rejected long ago. The First Amendment broadly protects expression regardless of medium.  Movies, video games, and the internet all fall under the First Amendment’s protection. In fact, the First Amendment even protects expressive acts like flag burning. Given the First Amendment’s broad scope, simply recasting speech as conduct will not save an unconstitutional law.

Unfortunately, many states are unmoved by these facts. As though entranced by a siren, they continue on their path toward censorship. When governments perceive a threat, whether real or imagined, they act to combat it. When they believe the threat comes from speech, they seek to suppress it in the name of safety. Yet, the First Amendment forbids them from indulging this impulse.  

But that impulse is strong. And when confronted with an obstacle, the government looks for a way around it. To evade the First Amendment, governments characterize their laws as “privacy protections,” “conduct regulations” or as restrictions of access to “places.” Upon closer examination, however, none of these justifications hold water. 

For example, California presents its Age-Appropriate Design Code as a privacy regulation. Yet, the law imposes obligations on websites to deploy algorithms, designs, and features in a certain way or face fines. Of course, algorithms, features, and designs are the means by which websites develop, display, and disseminate speech. 

Arkansas contends that its Social Media Safety Act regulates social media as a “place.” Arkansas seeks to keep minors out of this place just like it restricts their access to bars and casinos. But there is a fundamental distinction between social media and a bar or casino. Social media sites are speech sites. They are designed to facilitate the creation, consumption, and distribution of speech. Bars and casinos, by contrast, are not. 

When challenged, both Arkansas and California refused to concede that their laws are censorial. In fact, California boldly proclaimed that its law has “nothing to do with speech.” In both cases, the government’s entire position depends on courts ignoring reality and the crucial role algorithms and social media play in creating, curating, and disseminating online speech. Fortunately, courts are not so naive.

Indeed, accepting these rationalizations would require a sudden, total departure from a century of First Amendment jurisprudence. Such a departure would be drastic, but we can catch a glimpse of what such a narrow, restricted view of speech would look like by examining the early “moving pictures” industry.

In the early twentieth century, movies were sweeping the nation. But they were so new that it was difficult to square them with the common sense understanding of speech. Believing that movies were not a form of speech, several states erected censorship boards to restrict their dissemination. 

Ohio passed its Moving Picture Censorship Act in 1913. The law armed the board of censors with the authority to pass judgment on all movies brought into the state. The censors were tasked with approving only “moral, educational, or amusing and harmless” movies. The Mutual Film Corporation challenged the law and argued that it violated the freedoms of speech and publication under the Ohio Constitution. 

The U.S. Supreme Court upheld the censorship law. The Court said that movies were not covered under the right to speak, write, or publish. Movies were “mere representations of events, of ideas and sentiments [already] published and known, vivid, useful and entertaining no doubt, but *** capable of evil.”

Put simply, movies were different. They were impersonal affairs. The audience had no opportunity to interact with the cast members as they might after a theatrical production or speech. Similarly, audience members were not presented with a copy of the script to read, flip through, or take home as they could by purchasing a book or newspaper. Given these differences, movies were readily distinguishable from the sort of speaking, writing, and publishing familiar at the time. 

The Court latched on to these differences and adopted a narrow conception of speech. Given the ubiquity of movies today, we understand that the differences between movies and books are superficial.  We know that movies are expressive and protected by the First Amendment. But the Court was not armed with its own subsequent, robust case law on the subject. And while the narrow view of speech arose from a decision based on Ohio’s constitution, it held sway over the Court’s subsequent First Amendment decisions for the next few decades.

However, in Burstyn v. Wilson, the Court revisited the issue of movie censorship; it repudiated Mutual Film and its narrow view of speech. The Court said that freedom of expression was the rule. There was no need to make an exception for movies because “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary.” In the years since Burstyn, the Court’s decisions confirmed that Mutual Film was an aberration and incompatible with free speech. Its subsequent decisions applying the First Amendment to video games and the internet firmly established that free speech applies across mediums. Leaving no room for doubt, the Court reaffirmed its commitment to a broad view of speech this term when it said that online and offline speech protections are coextensive.

Mutual Film and its narrow view of speech are obsolete. Any medium for communication—new or ancient—is entitled to First Amendment protection. Half-hearted attempts to pass off speech regulations as something else will not survive a legal challenge. When legislators choose to regulate speech in spite of the First Amendment, they do so at their own risk. 

Unfortunately, this is exactly how many states are approaching internet regulations today. As though still enamored by Mutual Film, some legislators seem determined to treat the internet like a movie from 1913 and restrict content (or access to it) if it is not “moral, educational, or amusing and harmless.” But government oversight of content is censorship. And attempts to impose censorship under an obsolete framework will find no purchase in court. These measures must fail. And they will.

Paul Taske is Litigation Center Policy Counsel for NetChoice, who has been active in challenging many of these laws.

Filed Under: 1st amendment, arkansas, california, censorship, free speech, internet, social media, states

Fifth Circuit Denies Immunity To Detective Who Arrested A Man For A Satirical Facebook Post

Free Speech

from the just-because-you're-not-laughing-doesn't-mean-it's-not-a-joke dept

Law enforcement officers just don’t seem to have a sense of humor. Sure, they may laugh when they beat, humiliate, or otherwise violates citizens’ rights, but they can’t seem to take a joke when it’s pointed in their direction.

Not being able to recognize an obvious joke has ensured two members of the Rapides Parish (Louisiana) Sheriff’s Department will have to face the lawsuit brought by Waylon Bailey, who was arrested for an obvious joke he posted to Facebook.

Here’s the post that got Bailey arrested, and now has forced Detective Randell Iles and Sheriff Mark Wood to return to court following the stripping of their qualified immunity. From the Fifth Circuit Appeals Court decision [PDF]:

Bailey lives in Rapides Parish in central Louisiana. On March 20,2020—during the first month of the COVID-19 pandemic—he posted thison Facebook:

Bailey intended the post as a joke and did not intend to scare anyone. The “hashtag” “#weneedyoubradpitt” referenced the zombie movie World War Z, starring Brad Pitt. Bailey included the hashtag to “bring light to the fact that it was a joke.” He was bored during the COVID-19 lockdown and used Facebook to keep in touch with friends and “make light of the situation.”

In case you can’t see or read the embed, Bailey’s post says this:

SHARE SHARE SHARE ! ! ! !
JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH “THE INFECTED” SHOOT ON SIGHT….Lord have mercy on usall. #Covid9teen #weneedyoubradpitt

Any reasonable person would have recognized this as a joke. But far too many law enforcement officers are far from reasonable, even if they continually argue they are when they’re slapped with civil lawsuits. An actually reasonable officer would ignore this.

The officers involved in this lawsuit weren’t reasonable:

Shortly after Bailey posted, Detective Randell Iles was assigned by the Rapides Parish Sheriff’s Office (RPSO) to investigate. Iles’ supervisors were concerned that the post was a legitimate threat; Iles testified at his deposition that he thought that the post was “meant to get police officers hurt.” Iles looked at the post and the comments and concluded that Bailey had committed “terrorizing” in violation of Louisiana Revised Statute § 14:40.1. Iles had no information regarding anyone contacting RPSO to complain about the post or to express fear, or if any disruption had occurred because of the post.

If there was a “threat,” it was the one attributed to the Sheriff’s Office by Bailey. There certainly wasn’t any threat expressed by Bailey himself. And, as the detective testified, no one in the parish appeared to feel “threatened” by the joke post. Armed with all of this nothing, the Sheriff’s Office sprung into action.

Without seeking an arrest warrant, Iles and numerous RPSO deputies went to Bailey’s house and arrested him. According to Bailey, he was working in his garage when as many as a dozen deputies with bullet proof vests and weapons drawn approached him and ordered him to put his hands on his head, after which Iles told him to get on his knees and handcuffed him. While Bailey was handcuffed, one of the deputies (not Iles) told him that the “next thing [you] put on Facebook should be not to fuck with the police” and the deputies laughed.

Oh. My mistake. The officers did have a sense of humor.

Anyway. Moving on:

Iles advised Bailey of his rights, took a brief statement, and told him he was being charged with terrorizing. Bailey told Iles that the Facebook post was a joke and apologized. In a supplemental investigative report completed after the arrest, Iles recounted that Bailey told him he had “no ill will towards the Sheriff’s Office; he only meant it as a joke.” Bailey deleted his Facebook post after Iles told him that he could either delete it himself or the RPSO would contact Facebook to remove it.

After all of this was done, Detective Iles decided it might be time to make this a bit more lawful. He filled out an affidavit listing probable cause for the arrest he had already performed. And he did this — as he told the court — by using Bailey’s post as evidence and ignoring Bailey’s own statements about it being a joke (and his subsequent deletion of the post) during the warrantless arrest.

This was followed by the RPSO celebrating this unlawful arrest with a post on its own Facebook page. It did not, however, deliver a follow-up post about the “terrorism” charges being dropped by the DA because (duh) they were completely unsupported by anything even approaching probable cause.

Bailey sued. The officers asked for immunity. The lower court somehow found in favor of the officers, dismissing Bailey’s lawsuit with prejudice.

That’s completely wrong, says the Fifth Circuit Appeals Court. And this is coming from a court that sides more frequently with law enforcement officers than any other appeals court in the land.

The Brandenburg requirements are not met here. At most, Bailey “advocated” that people share his post by writing “SHARE SHARE SHARE.” But his post did not advocate “lawless” and “imminent” action, nor was it “likely” to produce such action. The post did not direct any person or group to take any unlawful action immediately or in the near future, nobody took any such actions because of the post, and no such actions were likely to result because the post was clearly intended to be a joke. Nor did Bailey have the requisite intent to incite; at worst, his post was a joke in poor taste, but it cannot be read as intentionally directed to incitement.

[…]

On its face, Bailey’s post is not a threat. But to the extent it could possibly be considered a “threat” directed to either the public—that RPSO deputies would shoot them if they were “infected”—or to RPSO deputies— that the “infected” would shoot back—it was not a “true threat” based on context because it lacked believability and was not serious, as evidenced clearly by calls for rescue by Brad Pitt. For the same reason, Bailey did not have the requisite intent to make a “true threat.”

If it wasn’t incitement or a true threat, it was what, class? That’s right: protected speech. And if it’s protected speech, well… law enforcement has no constitutional business arresting someone for engaging in protected speech.

But before we even get to that, there’s the Fourth Amendment, which requires probable cause to arrest someone. No probable cause here, says the Fifth.

The relevant facts and circumstances known to Iles at the time of the arrest were: (1) his supervisors asked him to investigate the post; (2) the content of the post itself; (3) Bailey was the author; (4) the comments below the post; (5) Bailey’s statement to Iles that he meant the post as a joke and had no ill will toward RPSO; (6) nobody reported the post to law enforcement; and (7) the general social conditions during the early onset of the COVID-19 pandemic.

These facts and circumstances are not sufficient for a reasonable person to believe that Bailey had violated the Louisiana terrorizing statute. The statute’s requirement that the communication have “an immediacy element concerning the false information” is lacking. Moreover, “causation of ‘sustained fear’ is clearly an essential element of this part of the statute.” Here, however, there were no facts that would lead a reasonable person to believe that Bailey’s post caused sustained fear. No members of the public expressed any type of concern. Even if the post were taken seriously, it is too general and contingent to be a specific threat that harm is “imminent or in progress.” Nor would a reasonable person believe, based on these facts, that Bailey acted with the requisite “specific intent” to cause sustained fear or serious public disruption.

If no “reasonable person” would believe this post to be incitement or a true threat, then it naturally follows no reasonable officer would believe the same thing.

No immunity on the Fourth Amendment claim for the detective:

Iles appears to argue that the law was not clearly established, and that he is therefore entitled to qualified immunity, because there is no Fifth Circuit precedent addressing warrantless arrests pursuant to the Louisiana terrorizing statute. But Bailey does not have to identify such a case to defeat qualified immunity.

First, it is beyond debate that “[a] warrantless arrest without probable cause violates clearly established law defining an individual’s rights under the Fourth Amendment.” Second, whether it was “objectively reasonable” for Iles to believe there was probable cause is “assessed in light of legal rules clearly established at the time of the incident,” which includes the statute’s text and state case law interpreting it.

As explained above, at the time of the incident the text of the terrorizing statute and state case law interpreting it made it clear that there was no probable cause here. Tellingly, while Bailey cites to multiple Louisiana cases supporting his interpretation of the statute, Iles cites to no Louisiana case law interpreting the statute otherwise.

No immunity on the First, either.

Based on decades of Supreme Court precedent, it was clearly established that Bailey’s Facebook post did not fit within one of the narrow categories of unprotected speech, like incitement or true threats. […] Thus, when Iles arrested Bailey, he violated Bailey’s clearly established First Amendment right to engage in speech even when some listeners consider the speech offensive, upsetting, immature, in poor taste, or even dangerous. See, e.g. Hustler Mag., Inc., 485 U.S. at 54; Herceg, 814 F.2d at 1021–24. The district court erred in concluding otherwise.

Detective Iles is now seeing this lawsuit returned to the lower court, giving him a chance to waste the parish’s money for a third time. The first misspent tax dollars funded Detective Iles’ desire to see Bailey arrested for a joke — an arrest that involved several members of the Sheriff’s Office. The second blowing of tax dollars were spent in defense of the indefensible. The final expenditure will be the settlement that should arrive in the near future, given that Iles is back on the hook for rights violations. Three times the money spent; zero actual crimes prosecuted. And that’s a whole lot to pay for someone who was apparently born without a functioning sense of humor.

Filed Under: 1st amendment, 5th circuit, free speech, louisiana, mark wood, qualified immunity, randell iles, rapides parish, rapides parish sheriff's office, satire, waylon bailey

Montana’s Response To Lawsuits Over Laughably Unconstitutional TikTok Ban Is To Say That TikTok Is The Equivalent Of ‘Cancer-Causing Radio’

Free Speech

from the speech-doesn't-cause-cancer dept

As you’ll recall, Montana passed a law earlier this year to ban TikTok (and ban mobile app stores from offering TikTok for download). The bill has lots of problems, not the least of which was that Montana Attorney General Austin Knudsen flat out told the NY Times that the purpose of the bill was to censor speech that parents were complaining about:

Mr. Knudsen, a Republican, said his team had received scores of complaints from parents about TikTok content referring to drugs, suicide or pornography. As the state’s legislative session approached this year, his office began looking at the idea of fully banning the app.

Montana’s governor Greg Gianforte knows the bill is unconstitutional, because he originally asked the legislature to change the bill so that it applied to more platforms rather than just directly targeting TikTok. But the legislature didn’t take him up on it, and he still signed the bill.

Almost immediately, a bunch of TikTok users sued to stop the law from going into effect. The following week TikTok itself sued.

Knudsen — who gave that “of course we’re trying to ban protected speech” answer above — is now in charge of defending the lawsuits, and he’s filed basically the same memorandom in opposition to both cases. And, as is all too often the case in these types of lawsuits, Knudsen seems to see this as a political document, rather than a legal one.

Which is to say, whoooo boy, is there a whole lotta nonsense in here. There’s a lot of fussing and prattling on about China and the “C.C.P.” and how evil they are, without much attempt to address the underlying question of how the hell do you get away with banning an entire app. The 1st Amendment arguments are… ridiculous.

The First Amendment leaves Montana “no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972). But SB419 doesn’t prohibit certain messages, ideas, subject matter, or content. It prohibits the use of a product in Montana.

This is “we’re not banning speech, we’re just smashing your printing press.” That argument has never been supported, and even things like special taxes on newspapers have been deemed to violate the 1st Amendment for it being retaliatory based on speech.

From there, Knudsen claims that there’s no 1st Amendment protection in “the enforcement of a public health regulation…” and then proceeds to try to argue that banning TikTok is all about health, and not about speech (even though Knudsen has clearly stated otherwise).

And, from there, Knudsen pulls out the “cancer-causing radio” comparison:

Were it otherwise, Montana would be powerless to ban a cancer-causing radio merely because that radio also transmitted protected speech, or to ban sports-betting apps merely because those apps also shared informative videos teaching their users the intricacies of sports gambling. The targeted harms—preventing cancer, illegal gambling, or data-gathering by a hostile foreign state—are inherently nonexpressive and thus subject to Montana’s plenary police-power regulations. Overlaying them with expressive conduct—radio communications or instructive videos—doesn’t change that calculus.

But… TikTok is not cancer-causing. And, this comparison makes no sense. I know that it’s a common fallacy among the moral panic set to compare social media to poisons, but speech is not a poison, or something you ingest. The main issue with Knudsen’s comparison here is that if there were “cancer-causing radios,” it wouldn’t be the speech part that is causing the cancer, nor would the ban on such radios be targeted at stopping the speech.

But here, the issue that Knudsen himself admitted, is that it’s very much the “speech” that “parents” are complaining about which resulted in Knudsen crafting this bill. That matters. If you care about the 1st Amendment.

Hilariously, Knudsen then tries to claim that this move, banning all of TikTok across the entire state, is limited in a manner that could survive intermediate scrutiny. First of all, the law should be judged under strict scrutiny, but even if it were under intermediate scrutiny, that requires the law to be about an important government interest regulated in a narrowly tailored way.

There is nothing narrowly tailored about this. It bans the app flat out for everyone in the state. That’s not narrowly tailored:

Finally, SB419’s restrictions are “no greater than is essential” to furthering Montana’s interest in protecting Montanans’ data privacy.

No one actually believes that. You want to narrowly “protect Montanans’ data privacy,” then pass a privacy law regarding the transfer of data, not ban an entire app by name.

SB419 is narrowly drawn. It doesn’t ban all “online platform[s] that enable users to create, share, and view videos and other forms of content.” TikTok.Br.2. Rather, it “eliminate[d] the exact source of the evil it sought to remedy.” City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 808 (1984). Plaintiffs’ cases are inapposite. SB419 is like the school-uniform policy in Jacobs—it regulates one channel of internet expression but leaves all others untouched. Thus, it’s not a blanket prohibition on creating, sharing, and viewing videos on every internet-based application in the same way that Plaintiffs’ cases banned the speakers’ preferred medium entirely.

So this is a fun twist. Knudsen is claiming that because they just banned one company, that shows it’s not about banning speech. But… they’re missing which speech is being talked about here. It’s banning TikTok’s speech.

No one would take seriously the argument that Knudsen could shut down one newspaper in the state because other newspapers exist, or because the internet exists. But that’s the crux of Knudsen’s argument here. “We can shut down anyone’s speech we want, so long as there are other ways of speaking.”

There’s a lot more in there, but it’s… not a very strong argument. One hopes the court will recognize that.

Filed Under: 1st amendment, austin knudsen, free speech, intermediate scrutiny, montana, tiktok ban
Companies: tiktok

‘Free Speech Absolutist’ Elon Musk Suggests He’s Going To Sue George Soros… For His Free Speech Advocating For Certain Laws

Free Speech

from the that's-not-how-any-of-this-works dept

There is no space for nuanced discussion about reality any more, as it seems that nonsense floods the zone. So, please try to follow along here as there needs to be some nuance to finally get down to the details of this issue. It’s nonsense, piled on top of nonsense, piled on top of nonsense, which ends with Elon Musk suggesting he’s going to sue George Soros for… advocating for laws that Elon doesn’t like (for what it’s worth, I’m pretty sure the laws being talked about are problematic, but the details aren’t clear, and there’s no law against advocating for bad laws).

Let’s start here: we’re extremely skeptical of any sort of “hate speech law.” This is not because we like hate speech, far from it. But as we’ve reported again and again and again, in practice hate speech laws are frequently abused by the powerful to punish the powerless and marginalized. We’ve long argued that there are better ways to deal with hate speech than criminalizing it. Shun it, shame it, diminish it’s power, counter it, etc.

Of course, in the age of social media, some very, very silly people consider attempts to do the latter the equivalent of censorship. That is, when a private company chooses to de-prioritize hateful speech, they claim that this is the same thing as the government “censoring” it. But nothing is farther from the truth. The government cracking down on hate speech is a free speech issue. A private company refusing to host or promote hate speech is a way for them to use their own speech to condemn such speech. It is a quintessential “more speech” type of response.

One of the people who has a long history of misrepresenting private companies expressing their own free speech rights of association as the equivalent of government censorship is a nonsense peddler named Michael Shellenberger, one of the hand-picked nonsense peddlers that Elon gave some of his “Twitter Files” to, allowing them to completely misrepresent things. Shellenberger, who has a long career peddling complete and utter nonsense, took to the job perfectly, and so completely misunderstood things in the Twitter Files that he ridiculously claimed that FBI was paying Twitter to censor accounts.

The truth was nothing of the sort, and anyone with even the most basic understanding of the law and basic facts could explain it to you (as far as I can tell, Shellenberger has yet to retract or correct his false statements on this). What he was actually reporting on were investigatory requests for data under a 2703(d) request (which require a court order or a warrant, depending on the type of data sought). These are requests for customer communications or records, not for taking down information. That law says that when the government makes a 2703(d) request, the government needs to reimburse the service provider “for such costs as are reasonably necessary and which have been directly incurred in search for, assembling, reproducing, or otherwise providing such information.”

Now there are lots of concerns about the 2703(d) program, and we (unlike the nonsense peddlers who are screaming today) have been calling out the problems with that program for at least a decade. But we’re focused on what the program actually is, not some made up idea that this is “the FBI paying Twitter to censor.”

Shellenberger has continued to peddle more nonsense about social media content moderation, a concept he does not seem to understand one bit, falsely accusing researchers who study information flows of being part of a “censorship industrial complex” and a bunch of other ridiculous stuff. But, of course, a bunch of very silly people eat this nonsense up and believe every word of it, because why not?

Not surprisingly, Shellenberger these days has a very popular Substack where his nonsense is often published. He probably makes more money each week from subscribers than Techdirt makes in a year, because we deal in facts, not nonsense, and facts don’t seem to pay as well.

Anyway, on his Substack, he had another reporter publish an article with the headline “Soros-Funded NGOs Demand Crackdown on Free Speech as Politicians Spread Hate Misinformation.” The article is behind a paywall, so I have no idea what it’s actually referring to. It is entirely possible that Open Society (which is funded by Soros) is advocating for hate speech laws, but the parts that are available to read are just a lot of fluff about whether or not hate is on the rise in Ireland, not the specific laws or what the various NGOs are advocating for.

So maybe Open Society NGOs are supporting hate speech laws. If true, that would be bad, as we’ve described above (and for years here on Techdirt) how such laws are prone to abuse and don’t do much to stop actual hate. But, of course, Soros is free to spend his money as he wishes, and the NGOs he funds are free to advocate for whatever laws they want. That’s part of their free speech.

Anyway, here’s where we finally get around to Elon Musk, who saw this story being promoted… and claimed he’s going to sue over it.

That’s Elon responding to a Shellenberger tweet. Shellenberger’s tweet says:

Politicians & George Soros-funded NGOs say “hate incidents” are rising, but they’re not. The data show the opposite: higher-than-ever and rising levels of tolerance of minorities. The reason they’re spreading hate misinformation is to justify a draconian crackdown on free speech.

So… first off, an increase in “levels of tolerance of minorities” (which is, by itself, an odd way to frame this) is not mutually exclusive with “rising hate incidents.” Both things could be true. I don’t know what points are being conveyed in the article itself (again, paywall), but the Irish police have published stats saying that “hate crimes” and “hate related incidents” went up from 2021 to 2022.

That’s not to say those stats are trustworthy. Also, hate speech and hate crime are not the same thing.

None of that means that Irish politicians aren’t overhyping the matter. They may well be. They may also be pushing for laws that intend to stifle free speech. I’m sure some are, because politicians all over the world seem to keep doing that. And it’s possible that Open Society funded NGOs are supporting some of those laws. And, as frustrating as that may be to us, it’s still very much allowed because of free speech.

Yet, then we have Elon jumping in to respond to Shellenberger’s already questionable claim by saying:

Exactly.

X will be filing legal action to stop this. Can’t wait for discovery to start!

There’s a lot to break down in this short tweet. What is he saying “exactly” about? And what kind of legal action is he filing?

But, first, let’s just make this point that I’ve made before, but is important to make again. It’s pretty common when lawsuits are threatened for some people to say something along the lines of “can’t wait for discovery,” which generally just shows that they have no idea how any of this works. Many people seem to think that “discovery” is some magical process by which all your dirty laundry gets aired publicly.

That is… rarely the case. First off, while discovery is a total pain for basically everyone involved, discovery is (generally) limited to issues directly dealing with the legal issues at hand. Parties may seek a lot more, and those on the other side may push back on those requests. But, more importantly, most of the time, what’s handed over in discovery never sees the light of day. Sometimes there are direct limits on what parties can share publicly, and often the only bits of discovery that become public are what’s revealed as the case moves towards trial (if it gets that far). People who are “eager” for discovery are… usually disappointed.

And, of course, in theory, any such “legal action” would take place in Ireland, which seems to have fairly similar discovery rules as the US, such that any discovery has to be “relevant and necessary” to the claims at hand.

Which brings us to the big question: who is he suing and for what? Many people (perhaps reasonably?) interpreted Musk’s statement to mean he was going to sue Soros. But, of course, he has no standing whatsoever for that, and the only thing he could possibly sue Soros over was for his advocacy (and funding), both of which would be protected speech. If the implication is that Elon is going to sue Soros for his free speech, that will (yet again!) raise questions about Elon’s actual commitment to “free speech.”

Perhaps a more charitable explanation here is that Elon actually means he’d be suing in Ireland (or, perhaps more likely, in the European Court of Justice?) to block any such law should it pass. But… that would require the details of the law to understand what the issue was. And, if that was the plan, then it’s difficult to see what sorts of “discovery” he’s expecting to get access to.

And, sure, if Ireland passes a really bad law, I do hope that exTwitter challenges it in court. But that’s got nothing to do with Soros, and I don’t see how discovery is going to be even remotely meaningful.

Of course, even if his plan really is to challenge the eventual Irish law (should it ever become law), it’s pretty clear from the replies to his tweet, that most of his gullible fans think he’s talking about suing Soros directly for his speech… and they’re ridiculously claiming that this shows how much Elon supports free speech. It’s possible that Elon recognizes that his confusingly worded tweet implies one thing when he really means another, though he hasn’t tried to correct the misperception at all. Or, of course, he really thinks that he’s going to sue Soros for exercising his own free speech, and his idiot fans are insisting that suing someone for their own speech is support of free speech.

Filed Under: discovery, elon musk, free speech, hate speech, ireland, michael shellenberger
Companies: twitter, x

Jordan’s King Approves Bill That Criminalizes Online Anonymity, Publication Of Police Officers Names/Photos

Free Speech

from the King-Control-Freak dept

Jordan will never be mistaken for a human rights haven. The State Department’s assessment of the kingdom of Jordan’s human rights environment is, at best, extremely dismal.

Significant human rights issues included credible reports of: torture and other cruel, inhuman, and degrading treatment or punishment by government authorities; arbitrary arrest and detention; political prisoners or detainees; arbitrary or unlawful interference with privacy; serious restrictions on freedom of expression and media, including harassment and intimidation of journalists, unjustified arrests or prosecutions of journalists, censorship, and enforcement of and threat to enforce criminal libel laws; serious restrictions on internet freedom; substantial interference with the freedom of peaceful assembly and freedom of association, including overly restrictive laws on the organization, funding, or operation of nongovernmental organizations and civil society organizations; inability of citizens to elect their executive branch of government or upper house of parliament; lack of investigation of and accountability for gender-based violence, including but not limited to domestic or intimate partner violence, sexual violence, and other harmful practices; violence or threats of violence targeting lesbian, gay, bisexual, transgender, queer, or intersex persons; and significant restrictions on workers’ freedom of association, including threats against labor activists.

That definitely explains why the ruler of Jordan, King Abdullah II, would sign a bill making this hideous environment even worse. (It also possibly explains why NSO Group chose to sell its spyware to this country. The Israeli-based malware firm has definitely shown a predilection for hawking surveillance tech to human rights abusers.)

King Abdullah II is adding to residents’ misery with the passage of new law that’s supposed to somehow unify the nation by giving the government even more ways to punish people for saying or doing things the government doesn’t like.

The King of Jordan approved a bill Saturday to punish online speech deemed harmful to national unity, according to the Jordanian state news agency, legislation that has drawn accusations from human rights groups of a crackdown on free expression in a country where censorship is on the rise.

The measure makes certain online posts punishable with months of prison time and fines. These include comments “promoting, instigating, aiding, or inciting immorality,” demonstrating ”contempt for religion” or “undermining national unity.”

There’s nothing quite like tying a chosen religion to a non-representative form of government. When you do that, you can start writing laws that define “morality” or “unity” in self-serving ways without having to worry about getting your legislation rejected by people actually willing to serve their constituents or rejected by courts as blatantly illegal violations of guaranteed rights.

The country’s government apparently assumes the humans it presides over have no rights. So, they’ll be subject to arrest and possible imprisonment for saying things the government doesn’t like. On top of that, they can expect to be punished for attempting to protect themselves from this punishment, or for being so bold as to point out wrongdoing by law enforcement.

It also punishes those who publish names or pictures of police officers online and outlaws certain methods of maintaining online anonymity.

The king and his most immediate subservients want to be able to easily identify people in need of punishment for violating these new draconian measures. And they don’t want anyone pointing out who’s being tasked with handling arrests for this new list of speech crimes.

As with so many censorial laws are these days, it’s an amendment to an existing “cybercrime” bill — the sort of handy foundational material autocrats can use to justify increased domestic surveillance and widespread silencing/punishing of dissent.

Then there’s this, which makes you wonder why the State Department ever bothered taking a look at the human rights situation in Jordan in the first place.

The measure is the latest in a series of crackdowns on freedom of expression in Jordan, a key U.S. ally seen as an important source of stability in the volatile Middle East.

Come on, America. Make better friends. Buddying up with someone more closely aligned to the religion-based dictators surrounding him than the ideals that turned this country into the leader of the free world is never going to work out well.

Filed Under: anonymity, free speech, harmful to national unity, hate speech, jordan

Kansas Cops Raid Small Town Newspaper In Extremely Questionable ‘Criminal Investigation’

Journalism

from the sorry-about-the-boot-prints-on-your-rights dept

The free press is supposed to be free. That’s what the First Amendment means. Journalists have a long-acknowledged, supported-by-decades-of-precedent right to publish information that may make the government uncomfortable.

When cops start raiding press outlets, everyone takes notice. This isn’t how this works — not in the United States with its long list of guaranteed rights.

But that’s what happened at a small newspaper in Kansas, for reasons local law enforcement is currently unwilling to explain.

In an unprecedented raid Friday, local law enforcement seized computers, cellphones and reporting materials from the Marion County Record office, the newspaper’s reporters, and the publisher’s home.

Eric Meyer, owner and publisher of the newspaper, said police were motivated by a confidential source who leaked sensitive documents to the newspaper, and the message was clear: “Mind your own business or we’re going to step on you.”

The city’s entire five-officer police force and two sheriff’s deputies took “everything we have,” Meyer said, and it wasn’t clear how the newspaper staff would take the weekly publication to press Tuesday night.

While there’s still some speculation about the reason for this raid, this law enforcement action has at least accelerated the demise of the paper’s owner.

Stressed beyond her limits and overwhelmed by hours of shock and grief after illegal police raids on her home and the Marion County Record newspaper office Friday, 98-year-old newspaper co-owner Joan Meyer, otherwise in good health for her age, collapsed Saturday afternoon and died at her home.

She had not been able to eat after police showed up at the door of her home Friday with a search warrant in hand. Neither was she able to sleep Friday night.

She tearfully watched during the raid as police not only carted away her computer and a router used by an Alexa smart speaker but also dug through her son Eric’s personal bank and investments statements to photograph them. Electronic cords were left in a jumbled pile on her floor.

Sure, correlation is not causation, but one can reasonably expect that a law enforcement raid on an elderly person’s home — especially one who had just found out her paper had been raided by the same officers — would not result in an extended life expectancy.

Even if you ignore the death as being nothing more than the result of being 98 years old, you have to recognize the insane overreach that saw a newspaper’s offices raided, followed by a raid of the newspaper owner’s home.

In addition to these raids, officers also raided the home of vice mayor Ruth Herbel.

All anyone knows is what’s stated in the warrant application, as well as a recent bit of friction involving the paper, some leaked DUI records, and a local business owner.

According to Meyer, a retired University of Illinois journalism professor, the raid came after a confidential source leaked sensitive documents to the newspaper about local restaurateur Kari Newell. The source, Meyer said, provided evidence that Newell has been convicted of DUI and was driving without a license—a fact that could spell trouble for her liquor license and catering business.

Meyer, however, said he ultimately did not decide to publish the story about Newell after questioning the motivations of the source. Instead, he said, he just alerted police of the information.

“We thought we were being set up,” Meyer said about the confidential information.

That’s according to the paper’s co-owner, Eric Meyer. These raids were set in motion by information the newspaper didn’t even publish and despite the fact the Marion County Record informed law enforcement about the leaked info.

That’s one theory: that Kari Newell had enough pull to put the police in motion to silence a potential publisher of leaked info that, to this point, had not made the leaked information public.

There’s also another theory, which suggests something even more horrible than a local business owner weaponizing local law enforcement to keep their own misdeeds under wraps.

An interview with Eric Meyer by Marisa Kabas suggests this might have nothing to do with a local restaurateur’s alleged drunk driving. What may actually be happening here is local law enforcement attempting to silence reporting about… well, local law enforcement.

What has remained unreported until now is that, prior to the raids, the newspaper had been actively investigating Gideon Cody, Chief of Police for the city of Marion. They’d received multiple tips alleging he’d retired from his previous job to avoid demotion and punishment over alleged sexual misconduct charges.

And that’s a new wrinkle that makes everything worse. Raiding a newspaper, a newspaper owner’s home, and the home of the vice mayor over unpublished news about a local businessperson’s DUI problems is one thing. Performing these raids to prevent a small paper from publishing what it had discovered about the chief of police is quite another. The first is a horrible infringement of First Amendment rights. The latter is a hideous abuse of law enforcement powers.

According to the warrant, the cops are investigating a couple of crimes. One seems extremely unrelated to either theory: “Identify Theft.” That crime is described as expected: the use of another person’s identity to commit fraud. Nothing in either theory suggests anything like that was committed by the paper, its owners, or the vice mayor. There has been some talk that if you squint and cheat, you could conceivably argue that a possible method of checking Newell’s driver’s license could possibly, technically, violate the state’s identity theft law, but that is an extreme stretch, and still would not justify the full raid and seizures.

The other law cited in the warrant — K.S.A. 21-5839 — is the real problem here. The state law is pretty much the CFAA: a catch-all for “computer” crimes that allows law enforcement (if so motivated) to treat almost anything that might resemble a journalistic effort to gather facts as a crime against computers.

There’s a whole lot of vague language about “authorization,” which means opportunistic cops can use this law to justify raids simply because they did not “authorize” any release of information pertaining to either (a) DUI arrests or citations, or (b) the chief of police’s past history as an alleged sex fiend.

What’s on the record (such as it is) suggests these raids are the acts of officers seeking to protect one of their own: police chief Gideon Cody. The end result of the raids was the seizing of the means of (press) production. Reporters’ computers and phones were seized, along with the small paper’s server — seizures that appear to be designed to silence this press outlet. While ongoing silence would obviously protect the police department, as well as a business owner who may not want the wrong kind of press attention, Occam’s Razor suggests cops will always be far more interested in protecting themselves than taxpayers, no matter how (comparatively) rich they might be.

The Marion, Kansas Police Department has responded to the national outrage generated by its actions. And its official statement uses a whole lot of words to say absolutely nothing.

The Marion Kansas Police Department has has several inquiries regarding an ongoing investigation.

As much as I would like to give everyone details on a criminal investigation I cannot. I believe when the rest of the story is available to the public, the judicial system that is being questioned will be vindicated.

I appreciate all the assistance from all the State and Local investigators along with the entire judicial process thus far.

Speaking in generalities, the federal Privacy Protection Act, 42 U.S.C. §§ 2000aa-2000aa-12, does protect journalists from most searches of newsrooms by federal and state law enforcement officials. It is true that in most cases, it requires police to use subpoenas, rather than search warrants, to search the premises of journalists unless they themselves are suspects in the offense that is the subject of the search.

The Act requires criminal investigators to get a subpoena instead of a search warrant when seeking “work product materials” and “documentary materials” from the press, except in circumstances, including: (1) when there is reason to believe the journalist is taking part in the underlying wrongdoing.

The Marion Kansas Police Department believes it is the fundamental duty of the police is to ensure the safety, security, and well-being of all members of the public. This commitment must remain steadfast and unbiased, unaffected by political or media influences, in order to uphold the principles of justice, equal protection, and the rule of law for everyone in the community. The victim asks that we do all the law allows to ensure justice is served. The Marion Kansas Police Department will nothing less.

First off, the judicial system isn’t what’s being “questioned.” It’s the acts of this particular cop shop, which will always be far less impartial than the judges overseeing their cases. While we would like to know why these search warrants we’re granted, we’re far more interested in why law enforcement sought them in the first place.

The rest of this non-explanation is just CYA boilerplate. We all know how cops are supposed to behave. A cop frontmouth telling us that what we’re witnessing is nothing more than cops behaving they way we expect them to — while refusing to provide any specifics — means nothing at all until the facts come out. The problem is the Marion Police Department thinks the lack of facts means it should be given the benefit of a doubt, rather than recognize this is a situation it will need to fully justify if it expects to salvage what’s left of its eroding reputation.

Either way, what local law enforcement should have immediately recognized, long before the raids were carried out, is that this would draw national attention to these unconstitutional raids as well as give the Marion County Recorder a bunch of fans capable of offsetting the damage done by these blundering officers.

This is from Meyer, the paper’s surviving co-owner:

It is kind of heartwarming: One of the things that I just noticed was we got this incredible swelling of people buying subscriptions to the paper off of our website. We got a lot of them, including some—I’m not gonna say who they’re from—but one of them is an extremely famous movie producer and screenwriter who came in and subscribed to the paper all of a sudden. I mean, it’s like, why are people from Poughkeepsie, New York and Los Angeles, California and Seattle, Washington and, you know, all these different places subscribing to the paper?

But a lot of people seem to want to help, and we’ve had people calling, asking “where can I send money to help you?” And, well, we don’t need money right now. We just are gonna have a long weekend of work to do. But we’ll catch up.

No matter the reason for the raids, the cops fucked up. But it will take a lawsuit to hold them accountable for their actions. No one outside of the participating departments believes these actions were justified. No one believes these raids weren’t carried out for the sole purpose of protecting people in power, whether it was a local business owner or the local police chief. Everything about this is wrong. Hopefully, a court will set this straight, as well as require the PD to explain the motivation for its actions in detail, putting to rest the speculation these oversteps have generated.

Filed Under: 1st amendment, 4th amendment, cfaa, computer crimes, eric meyer, free press, free speech, gideon cody, hacking, identity theft, joan meyer, journalism, kansas, kari newell, marion pd, police raid, ruth herbel
Companies: marion county record