Tennessee Court Strikes Down Law Criminalizing Calling Political Candidates 'Literally Hitler'

from the literally-the-worst-law dept

Free speech keeps getting freer in Tennessee. The state was once home to a host of vexatious defamation lawsuits — including one where someone subjected to mild criticism sued a journalist over things someone else said. Thanks to the state’s new anti-SLAPP law, litigation is slightly less vexatious these days.

But there are still state laws posing threats to free speech by criminalizing stuff the First Amendment says is perfectly acceptable. Tennesseans for Sensible Election Laws (represented by Daniel Horwitz, whose work has made multiple headlines here at Techdirt) sued the state over a campaign law that made it a misdemeanor to publish false information about candidates.

The statute says this:

It is a Class C misdemeanor for any person to publish or distribute or cause to be published or distributed any campaign literature in opposition to any candidate in any election if such person knows that any such statement, charge, allegation, or other matter contained therein with respect to such candidate is false.

The plaintiffs argued the law effectively criminalized satire and hyperbole. It pointed out it risked prosecution if it distributed its campaign material, which used a word that literally no longer can be taken literally in every context: “literally.” From the decision [PDF]:

[T]he Complaint explains that the Plaintiff has described in its literature one State Representative as “Hitler”, who supported eugenics, i.e. state-sponsored chemical castration of convicted sex offenders. The Plaintiff’s analysis in its Complaint is that, “Because Representative Griffey is not, in fact, ‘literally Hitler,’ and because Tennesseans for Sensible Election Laws knows that Representative Griffey is not literally Hitler, Tennesseans for Sensible Election Laws’ campaign literature would violate § 2-19-142, thus subjecting members of Tennesseans for Sensible Election Laws to criminal prosecution carrying a sentence of up to thirty days in jail and/or a fine not to exceed $50.00.

Here’s the mailer the group says could get its members criminally charged:

The activist group says this is unconstitutional. It certainly seems to be, but the state’s Attorney General apparently believes prosecuting people for engaging in political speech isn’t a Constitutional issue. Here’s the opinion the state AG offered in support of the law:

A prosecution against a newspaper or other news medium under Tenn. Code Ann. 2-19-142 would not raise any constitutional objections…

This statement, made in 2009, has not aged well. The Constitutional challenge has arrived. And it’s victorious. The campaign focused criminal defamation law violates both the US Constitution and the state Constitution. And for several reasons (all emphasis in the original):

First, Tennessee Code Annotated § 2-19-142 punishes only false political speech in opposition to candidates for elected office, while permitting false speech in support of such candidates. Such viewpoint discrimination is incompatible with the First Amendment, and no compelling interest supports it.

Second, Tennessee Code Annotated § 2-19-142 exclusively penalizes false campaign literature opposing candidates seeking elected office, while permitting all other false campaign literature and all speech regarding noncandidates. Such content-based restrictions on speech similarly contravene the First Amendment.

Third, Tennessee Code Annotated § 2-19-142’s criminalization of “false” speech cannot be reconciled with the U.S. Supreme Court’s decision in United States v. Alvarez, 567 U.S. 709 (2012), which held that a statement’s falsity alone is insufficient to remove it from the ambit of protection guaranteed by the First Amendment.

Fourth, Tennessee Code Annotated § 2-19-142 is unconstitutionally overbroad because it prohibits a substantial amount of constitutionally protected speech, both in an absolute sense and relative to the statute’s legitimate sweep, and because a substantial number of instances exist in which § 2-19-142 cannot be applied constitutionally.

Fifth, by restricting speech based on its content, by proscribing protected speech, and by criminalizing political speech based on viewpoint, Tennessee Code Annotated § 2-19-142 contravenes the more expansive protections of article I, section 19 of the Tennessee Constitution.

The court declares the law a violation of both the First and Fourteenth Amendments. The plaintiffs are free to call candidates they feel align with Hitler’s beliefs “literally Hitler,” even when said candidates are, obviously, not the long-dead German chancellor known affectionately as the “worst person in the world.”

Filed Under: 1st amendment, campaign laws, campaign literature, false information, free speech, tennessee

The FCC Knows Trump's Social Media Order Is A Joke, But Fecklessly Pretends Otherwise

from the do-not-upset-dear-leader dept

We’ve mentioned at great length how Trump’s executive order to more heavily “regulate” social media is an unworkable joke. It attempts to tackle a problem that doesn’t exist (“Conservative censorship“) by attacking a law that actually protects free speech (Section 230), all to be enforced by agencies (like the FCC) that don’t actually have the authority to do anything of the sort. You can’t overrule the law by executive order or regulatory fiat, nor can you ignore the Constitution. The EO is a dumb joke by folks who don’t understand how any of this works, and it should be treated as such.

Instead, most press coverage of the move is still somehow framed as “very serious adult policy,” despite being little more than a glorified brain fart.

The FCC also knows the order is unworkable garbage that flies directly in the face of years of espoused (government hands off) ideology by Ajit Pai, Brendan Carr and friends. And yet, terrified of upsetting dear leader, Pai issued a totally feckless statement on Monday stating the EO would be pushed through the rule-making process, pretending as if this was all just ordinary, sensible tech policy:

This is, you’ll recall, the same guy who spent the last eight years insisting that fairly modest consumer protections governing telecom monopolies (net neutrality, privacy) was a vile example of “government run amok.” It’s the same guy whose entire policy platform revolves around the idea that hands off, limited government oversight universally results in near-mystical outcomes. The order to have the FCC regulate social media giants runs in stark contrast to nearly everything Pai professes to believe, including his adoration of free speech (since eliminating 230 would all but guarantee less of it). And yet he’s completely unwilling to make so much as a cautiously critical peep.

Even if Pai’s worried that he’ll just be replaced by Carr (whose somehow even worse about intellectual consistency) for showing the slightest shred of backbone, there are ways that Pai could express his disdain for this order without upsetting King Donald (perhaps just use big words). But Pai does nothing of the sort. He’s completely selling out everything he believes in to make Donald happy. Not only that, he attempts to frame the idea that we should shut down an idiotic assault on free speech before wasting everybody’s time as itself an attack on free speech.

As a result we’re wasting agency time and taxpayer resources (during a pandemic no less when 42 million Americans lack broadband, something actually under FCC authority) to pursue an inherently dumb and dangerous idea.

Now we move on to the next step in pretending this is real policy: opening the FCC comment system to 45 day of public comments. Except as we saw with the net neutrality repeal (in which the telecom industry used fake and dead people to support terrible and unpopular policy), the FCC doesn’t actually do much to prevent fraud or abuse. So anybody eager to see Silicon Valley saddled with additional regulatory oversight (like its ad competitors in telecom or K Street political operatives) are going to stuff the ballot box with nonsense, taking us further down the rabbit hole of pretending Trump’s EO is serious adult policy making.

In short we’ve got a garbage, unworkable proposal being shuffled through elaborate NTIA and FCC policy making system at taxpayer expense during a crisis, all “supported” by people too afraid of Donald Trump to show even the faintest hint of consistency or backbone. In other words, just another ordinary Monday in Washington.

Filed Under: ajit pai, commerce department, donald trump, executive order, fcc, free speech, ntia, public comments, section 230

Federal Court Can't See Any First Amendment Implications In Local Ordinance Blocking The Photography Of Children

from the I-guess-a-law-is-good-if-it-makes-something-illegal dept

You can’t always pick your fighter for Constitutional challenges. Sometimes you’re handed an unsympathetic challenger, which makes defending everyone’s rights a bit more difficult because a lot of people wouldn’t mind too much if this particular person’s rights are limited. But that’s not how rights work.

A pretty lousy decision has been handed down by a Minnesota federal court. A challenge of two laws — one city, one state — has been met with a judicial shrug that says sometimes rights just aren’t rights when there are children involved. (h/t Eric Goldman)

The plaintiff is Sally Ness, an “activist” who appears to be overly concerned with a local mosque and its attached school. Ness is discussed in this early reporting on her lawsuit, which shows her activism is pretty limited in scope. Her nemesis appears to be the Dar Al-Farooq Center and its school, Success Academy. Ness feels there’s too much traffic and too much use of a local public park by the Center and the school.

Here’s how she’s fighting back against apparently city-approved use of Smith Park:

Ness has taken it upon herself to document activity at site. That includes maintaining a public blog and Facebook page all about the “DAF/Success Academy controversy,” complete with photos and video of street traffic, kids being dropped off at school, and people otherwise going about their business.

Her legal representation in this lawsuit isn’t that sympathetic either.

The American Freedom Law Center, which claims that “the battle for America’s soul is being waged in the courtrooms across America” against “secular progressives and Sharia-advocating Muslim Brotherhood interests,” is co-counseling the case. The Southern Poverty Law Center calls that organization’s co-founder David Yerushalmi an “anti-Muslim activist” and “a leading proponent of the idea that the United States is threatened by the imposition of Muslim religious law, known as Shariah.”

Her lawyer says this has nothing to do with the school’s religious affiliation. Her co-counsel, David Yerushalmi, disagrees.

In a statement, he says Ness’ predicament is just “another example of encroachment on our liberties when Islam is involved.”

Ness became involved when the mosque opened its school and obtained a Conditional Use Permit for Smith Park that allowed students to use it during school days. Ness believes the permit is being violated on a daily basis by students’ “excessive” use of park facilities that makes it “impossible” for nearby residents to use it at the same time.

To document these supposed violations, Ness has approached children in the park and parked across the street to take photographs/record DAF students using the park. She had two run-ins with local law enforcement before filing her lawsuit. After the most recent law enforcement encounter, Bloomington police attempted to charge Ness with felony harassment, but the Hennepin County Attorney’s office declined to bring charges against her. Bloomington prosecutors also declined to prosecute Ness.

Ness sued, claiming the laws cited infringed on her Constitutional rights and that the ongoing threat of prosecution has resulted in her curtailing her documentation of park use by the school.

The problem is the laws. Ness’ behavior is problematic but it shouldn’t be criminally problematic. First, the state’s harassment law — as quoted in the court’s opinion [PDF] — does not require prosecutors to prove intent.

Subdivision 1. Definition. As used in this section, “harass” means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.

Subd. 1a. No proof of specific intent required. In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.

Then there’s an additional ordinance — one put in place by the city of Bloomington after Ness’ two run-ins with the local PD — that criminalizes Ness’ documentation of park activities.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child’s parent or guardian.

This is amazingly broad. It criminalizes journalism and the recording of criminal acts by minors. This revision appears to have been crafted solely to target Ness and her activism. Ness was also a frequent commenter at Bloomington city council meetings until filing this lawsuit.

The court says Ness has no standing to challenge the laws. According to the judge, she does not face a credible threat of prosecution. The decision cites the two refusals to prosecute, as well as prosecutors’ statements on the issue.

Ness claims she intends to monitor an issue—the non-compliant use of DAF’s facilities and the use of Smith Park—by filming and photographing the activity in the physical vicinity of DAF, which may include filming and photographing people. Compl. ¶¶ 36, 47, 70, 71; Ness Decl. ¶¶ 6, 18, 28. Ness does not claim a desire to surveil individuals or track their location by filming or photographing them once they leave DAF’s neighborhood. As Ness herself has stated, “I try to make this as not about people . . . . It’s not specifically about an individual. It’s about the City collectively not doing their job.” Jones Decl. Ex. 1 at 18:49–18:53. Thus, as the County Attorney and the City both acknowledge, Ness’ intended conduct is not proscribed by the Harassment Statute because she is not tracking or monitoring a particular individual.

But then the court goes on to quote police officers’ implicit threats of arrest as evidence Ness won’t be subjected to further law enforcement scrutiny or prosecution.

Ness relies on the police report from the incident, which states that Officer Meyer “asked [Ness] to stop filming,” and that “Ness was advised that she could be charged with harassment if the parents and principal felt intimidated by her actions.” Compl. ¶ 54. However, the bodycam footage of the encounter establishes that Sgt. Roepke expressly told Ness “this is a public place, . . . you have a right to . . . take pictures in a public place or video or, or anything like that. There’s not an issue with that. . . . [B]ut if you’re doing it in a means to intimidate them or to harass them, then it becomes a problem.” Jones Decl. Ex. 3 at 1:50. Sgt. Roepke also told Ness “if you want to take some pictures, come and take some pictures and then move on.” Id. at 7:50. When Ness described the August 2019 encounter to Detective Bloomer months later during her interview, Ness stated that Sgt. Roepke “clarified” Ness’ conduct was not harassing behavior, and told her to “be careful and read the statute.” Jones Decl. Ex. 5 at 36:22–36:43. The police report of the August 2019 incident, particularly when viewed together with Sgt. Roepke’s statements and Ness’ own recollection of the incident, does not rise to the level of a credible threat of prosecution. Ness’ decision to chill her speech, after being told by Sgt. Roepke that she had a right to take videos and that her conduct was not harassing behavior, was not based on an objectively reasonable fear of prosecution.

Unfortunately, this supposedly “unreasonable” fear of prosecution stems directly from the law, making it a lot more reasonable than the court says. Prosecutors do not have to prove intent. And, as the officer stated clearly, all it would take is for subjects of Ness’ recordings to feel harassed. It doesn’t matter whether or not Ness intended to harass anyone. That’s pretty open-ended and that makes her fear of prosecution a lot more reasonable.

The court agrees Ness has standing to sue the city of Bloomington over its ban on filming children.

The City Defendants argue that “[e]ven if Ness had standing to sue, her facial challenge to the ordinance under the first Amendment would fail.” City Defs.’ Mem. Supp. Mot. Dism. [Docket No. 68] at 10 (emphasis added). However, the City Defendants’ briefing does not include an argument for why Ness might lack standing to challenge the City Ordinance. Ness’ intended conduct will include photographing and filming children in a City park without parental consent. This conduct is proscribed by the City Ordinance, and the City has not disavowed an intent to charge Ness with violating the City Ordinance if she were to engage in this conduct. Under these circumstances, Ness’ decision to chill her speech due to the existence of the City Ordinance is objectively reasonable. Ness has standing to challenge the City Ordinance.

But it says she has nothing to sue about because the ordinance does not affect her First Amendment rights.

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral.

Neutral, except as to the content of the recordings, which is what’s targeted by the city’s ban. But the court says the definition of “content” hinges on what the speech conveys, rather than what it contains.

Ness also points out the ordinance is unconstitutional because it fails to do what it purports to do: protect children from being recorded. The court disagrees, saying the ordinance is adequate enough to achieve its aims.

Ness argues that the City Ordinance is underinclusive because if a person takes a step outside a City park and films children from the street, the City Ordinance will not be violated. Ness contends this underinclusiveness undermines the City’s claimed interest in protecting children’s privacy and preventing them from being exploited or intimidated. However, requiring would-be recorders to collect images from a distance, rather from inside a City park, makes it less likely that a child in the park will feel frightened or that the child’s identity will be ascertainable. Thus, the City’s important government interest in protecting children is not undermined by allowing a person to record children from just outside a City park’s boundaries.

Finally, the judge says the ends justify the means. The judge appears to believe laws are “narrowly tailored” if they accomplish what they set out to do.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Sure, and the city’s attempts to achieve other interests would undoubtedly be more effective if the Constitution didn’t exist. But it does. And the court is supposed to be a check against government overreach, not an enabler of government efficiency.

The lawsuit is dismissed. The court says Ness can film kids from outside of the park’s boundaries without fear of prosecution. Of course, this is what Ness was doing when she was approached by officers who told her to “take her photos” and “move on.” Even if Ness complies with the terms of the ordinance the city appears to have passed just to stop her from doing what she was doing, she still faces the possibility of being subjected to further police action. And even if prosecutors refuse to press charges, there’s still the hassle of the arrest, and the loss of time and freedom during the detainment. These harms aren’t imaginary. The law written to make it more difficult for one Bloomington resident to engage in documentation of perceived permit violations stays on the books.

Most people will probably be fine with this outcome. After all, it mainly affects someone whose interest in park usage seems to be primarily motivated by bigotry. This is all but confirmed by her choice (or acceptance) of the American Freedom Law Center’s legal representation. But bad people can still raise legitimate Constitutional complaints. This isn’t a victory for Bloomington. It’s a loss for its residents who are subject to a badly written law. Even if they have no desire to violate the ordinance, the law can still be wielded against citizens engaged in legitimate activities (like news gathering), thanks to this court’s support.

Filed Under: 1st amendment, activist, children, free speech, photography, privacy, sally ness

ProPublica Releases NYPD Discipline Records Its Union Thought It Had Talked A Court Into Keeping Secret

from the lololololoooooooooooool dept

Forty-five years after a law was passed in New York allowing public agencies to withhold employees’ disciplinary records from the public, it was finally taken off the books by the state’s legislature. The law — known by its statute number “50-a” — hadn’t really been an obstacle to the limited transparency begrudgingly extended by the NYPD until the department suddenly decided it was no longer interested in sharing information about disciplined officers with journalists.

The decision to start following the letter of the law occurred in 2016. Four years later, the state legislature erased it, making these records accessible again. The Police Benevolent Association (PBA) — one of two NYPD unions — sued to block the release of records created by the city’s Civilian Complaint Review Board (CCRB). The PBA secured a temporary restraining order earlier this month, blocking the release of these records. The federal judge also forbade the ACLU from releasing documents it had already obtained until the PBA’s appeal has been addressed.

Here’s the strange thing: the New York branch of the ACLU isn’t a party to this suit. The PBA sued the city and mayor over the records. The ACLU is going to fight the bizarre order from Judge Katherine Polk Failla. But ProPublica also has a copy of these records. And it’s not going to bother with speaking to Judge Failla. After all, it’s not a party to this lawsuit either. The temporary restraining order the PBA obtained is permanently worthless.

Today, we are making this information public and, with it, providing an unprecedented picture of civilians’ complaints of abuse by NYPD officers as well as the limits of the current system that is supposed to hold officers accountable. We’ve published a database that lets you search the police complaints so you can see the information for yourself. Data experts can also download the data.

The database doesn’t include everything obtained from the CCRB. It only includes information on officers who’ve had at least one substantiated allegation against them. Even so, the data set includes 4,000 officers, more than 10% of the NYPD’s workforce.

There are more caveats as well, but they don’t make the NYPD look any better. The data set is further limited by the CCRB’s reach, which has been deliberately limited by the NYPD itself.

Investigators are often not able to reach conclusions on cases, in significant part because they must rely on the NYPD to hand over evidence, such as footage from body-worn cameras. Often, the department doesn’t do so, despite a legal duty to cooperate with CCRB investigations.

On top of that, the term “exonerate” is used very loosely by the CCRB. In some cases, the CCRB was able to substantiate claims of abuse but found that the abusive acts were actually permitted by the NYPD’s lax guidelines on force deployment.

Even with all the limitations, it’s still possible to detect patterns of abusive behavior by certain officers. As ProPublica notes, more than 300 officers have at least five substantiated allegations. A small group of officers are apparently angling for union leadership positions.

Thirty-four officers have had 40 or more allegations against them.

This release by ProPublica is a major step towards the transparency the NYPD has spent years fighting. It provides some insight into the NYPD’s disciplinary issues. While the records may only cover a small percentage of the total force, the high number of substantiated allegations against a number of still-employed officers makes it clear it takes an incredible amount of abuse before one of New York’s finest finds themselves out of a job. As ProPublica notes, you’re more likely to end up out of a job if you expose an officer’s record of abuse. Compare the fate of the leaker to that of the uniformed killer of Eric Garner:

The city investigator who revealed the existence of the officer’s record was forced to resign in 2017; the officer himself wasn’t fired until 2019.

The best part of this is that the records are now public and there isn’t anything the PBA — or the NYPD officers it represents — can do about it. This release was probably inevitable, what with the repeal of 50-a. But rather than having to sit through rounds and rounds of motions and appeals, the public has access to records the NYPD would have never released on its own.

Filed Under: ccrb, discipline records, free speech, journalism, nypd
Companies: aclu, propublica

NTIA Follows Trump's Unconstitutional Order To Request The FCC Review Section 230

from the there-are-problems dept

As we mentioned on Friday, on Monday, the NTIA followed through on a key part of Trump’s executive order on Section 230, asking the FCC to weigh in on interpreting the law. Everything about this is crazy. The NTIA request was almost certainly written by a recently hired lawyer who has spent the last couple of years attacking Section 230. He’s also the same lawyer who sued Twitter on behalf of a white supremacist, and when I had reached out to him over email to ask him how that made sense under 230, insisted to me that Section 230 was a narrow statute that only applied if it was about protecting children. I can’t say for sure, but my email exchange with him suggested to me that he was wholly unaware of Section 230 prior to me asking about it. Either way, that case failed spectacularly, and Adam Candeub has spent the past two years attacking 230 on various panels. And now he’s deputy secretary at NTIA in charge of this issue.

The petition to the FCC is performative nonsense, just like the Executive Order that preceded it. The FCC has no authority over internet edge providers. It has no authority to interpret Section 230. That’s for the courts. And if Congress doesn’t like how the courts have interpreted the law, then it’s on Congress to change the law. The FCC has literally no authority at all to deal with this issue. And, you would think that since we’re living in an era where the current FCC, under Chair Ajit Pai, has been literally giving away whatever authority the FCC actually has regarding the area it does have oversight concerning (namely internet access providers), that it would take a similar hands off approach to the NTIA request. Unfortunately that doesn’t seem likely.

Pai has remained basically silent on this issue since the executive order came out. His fellow Republican Michael O’Rielly has suggested it’s probably unenforceable gibberish. However, the third Republican on the Commission, Brendan Carr, has spent the last few months gloating and tweeting Trumpian nonsense about how “big tech” is censoring conservatives and something must be done (that this is 100% diametrically opposed to his views on regulating broadband access providers is not something he thinks you should concern yourself with — this is a Trumpian world we’re living in and so all that seems to matter regarding regulatory control is which companies you like and which you don’t like).

Carr published a hilariously ridiculous plan to regulate big internet companies in Newsweek to coincide with the NTIA petition, which he knew was coming. He claims — hilariously incorrectly — that the success of big internet is not because of the free market, which he as a good Republican has to pretend to support, but rather through “crony capitalism” like… Section 230. In fact, he flat out misleads everyone in claiming that Google abused its power to shut down the comments of The Federalist because it’s a conservative publication. Carr ignores that Google did the same thing to us, even though he knows they did it to us, because I told him about it and he follows me on Twitter.

But to argue that 230 is crony capitalism is to ignore facts (apparently, a Carr specialty). Section 230 does not favor any particular company. It applies equally to all websites, including small ones. Indeed, our empirical study showed that 230 helped create more competition, not less.

On the Democratic side, Commissioner Jessica Rosenworcel seems to be alone in being willing to call bullshit on this ridiculous NTIA petition:

Section 230 has been called ?the twenty-six words that created the internet,? and it has helped free expression flourish online for decades. Like most things with the internet, it has its supporters and detractors. It has those who want to see it continue in its current form and others who want to adjust it to reflect the realities of the current digital age. But if you look far and wide, you won?t find a community that believes having the FCC use Section 230 to regulate speech online is the way to go.

Still, the Administration is insisting. Remember, at the highest level of our government we?ve had rants about social media bias and accusations that certain companies are stifling speech. But the First Amendment is not present to protect the President from media. It?s present to protect media from the President. Nonetheless, those rants eventually found their home in an Executive Order?which brought this issue to the FCC.

As a Commissioner, I don?t think we should take the bait. While social media can be frustrating, turning the FCC into the President?s speech police is not the answer. The FCC needs to reject this effort to deploy the federal government against free expression online. In fact, if we honor the Constitution, we will do so immediately.

I worry my colleagues at the FCC won?t. I also worry that this petition is not just about changing the law. Because any legal expert worth their salt will tell you that changing the law like this is not the job of a regulatory agency like mine. It?s the job of Congress. I think the NTIA knows that. But even just proposing something like this has consequences. Governments that threaten to chill speech can discipline private sector actors without changes in law ever becoming necessary. So what we have here is an invitation from the President for the FCC to chill online speech and organize it in his favor. We need to reject this loud and clear.

Kudos to Commissioner Rosenworcel for being willing to speak out so clearly and forcefully on this silly dog and pony show for an insecure President. It’s too bad that the Commissioners on the other side of the political spectrum haven’t been willing to say things this clearly, and you have someone like Carr who seems all too willing to suck up to the President on this unconstitutional attack on free speech.

And it is unconstitutional. Our post last week dug into the many, many reasons why it’s unconstitutional, but at the simplest level it’s this: it’s an attempt to pressure internet companies to leave up speech that is supportive of the President, no matter how false or how dangerous that content might be. That’s not what the government is supposed to be doing.

The NTIA’s petition reads like it was written in an alternate universe that is divorced from reality. It pretends that the FCC needs to regulate speech to protect free speech, which is not how any of this works. The petition misrepresents the law, the same way that Trumpists have been misrepresenting Section 230 in court, including this silly claim:

These platforms function, as the Supreme Court recognized, as a 21st century equivalent of the public square.

And then it has a footnote pointing to the Packingham ruling ignoring that that ruling is saying simply that the government cannot pass laws that kick people offline, and does not say that companies can’t kick racists and assholes off of their own platforms. Indeed, in the more recent Halleck case, the Supreme Court made it abundantly clear that it does not consider social media to be a state actor subject to such regulations. For NTIA to pretend otherwise is ridiculous, and shows just how biased this petition is.

As for the specific requests, it wants the FCC to do the following:

• clarify the relationship between 230(c)(1) and (c)(2);
• explain the meaning of ?good faith? and ?otherwise objectionable? in section 230(c)(2);
• specify how the limitation on the meaning of ?interactive computer service? found in section 230(f)(2) should be read into section 230(c)(1); and,
• explicate the meaning of ?treated as a speaker or publisher? in section 230(c)(1).

Again, none of these are within the FCC’s authority, and even if they were they have no binding or persuasive power at all. The courts have already ruled on these issues for the most part, and there’s little to clarify here. If Congress was upset about the court’s interpretations, it’s had nearly 25 years to clarify and it has not. There is no role here for the executive branch, let alone an independent agency tasked with overseeing broadband access and public spectrum, not regulating the internet.

The FCC should listen to Rosenworcel and tell the administration “that’s not our job, and you shouldn’t even ask.”

Filed Under: ajit pai, brendan carr, donald trump, executive order, fcc, free speech, jessica rosenworcel, michael o'rielly, ntia, section 230

Court Blocks Federal Officers From Attacking, Arresting Reporters Covering Protests In Portland

from the seems-like-this-should-have-been-obvious dept

A surge of federal agents swept into Portland, Oregon in response to ongoing protests in the city. The city hadn’t asked for federal help, but help arrived anyway. And it wasn’t much help. The blend of federal agents — drawn from the CBP, US Marshals Service, and ICE — rolled onto the streets in unmarked vehicles. Out of these vehicles sprang agents dressed like soldiers, wearing no markings clearly identifying the officers or the agency they represented. Residents were taken off the street to unknown locations for questioning. They were later released and given no paperwork that informed them who had detained them or for what reason.

This federal intervention was immediately greeted by several lawsuits, including one filed by Oregon’s Department of Justice. One set of plaintiffs has already secured a temporary restraining order against the federal government. (h/t Mike Scarcella)

Portland journalists sued the DHS — along with the Portland Police Bureau, US Marshals Service, and the city itself — over attacks on journalists and neutral observers by law enforcement officers. The federal agencies were added to the lawsuit shortly after they added themselves to mix in early July.

The court has granted the restraining order, finding that the government’s actions pose a threat to multiple Constitutional rights. There’s a history of violence against journalists by federal agents, detailed here in the court’s order [PDF].

On July 15, 2020, Plaintiff Justin Yau, while carrying photojournalist gear and wearing clothing clearly identifying him as press, asserts that he was targeted by a federal agent and had a tear-gas canister shot directly at him. At the time he was fired upon, he was taking pictures with his camera and recording with his cell phone while standing 40 feet away from protesters to make it clear that he was not part of the protests. In addition, late July 19th or early July 20th, Declarant Nathan Howard, a photojournalist who has been published in Willamette Week, Mother Jones, Bloomberg Images, Reuters, and the Associated Press, was covering the Portland protests. He was standing by other journalists, and no protesters, as federal agents went by. The nearest protester was a block away. Mr. Yau held up his press pass and repeatedly identified himself as press. A federal agent stated words to the effect of “okay, okay, stay where you are, don’t come closer.” Mr. Yau states that another federal agent, who was standing immediately to the left of the agent who gave Mr. Yau the “okay,” aimed directly at Mr. Yau and fired at least two pepper balls at him at close range.

Declarant Jungho Kim is a photojournalist whose work has been published in the San Francisco Chronicle and Ca/Matters, among others. He wears a neon yellow vest marked “PRESS” and a white helmet marked “PRESS” in the front and rear. He has covered protests in Hong Kong and California. He has experience with staying out of the way of officers and with distinguishing himself from a protester, such as by never chanting or participating in protest activity. He had never been shot at by authorities until covering the Portland protests on July 19, 2020. During the protest, federal agents pushed protesters away from the area where Mr. Kim was recording. He was around 30 feet away from federal agents, standing still, taking pictures, with no one around him. He asserts that suddenly and without warning, he was shot in the chest just below his heart with a less lethal munition.Because he was wearing a ballistic vest, he was uninjured. He also witnessed, and photographed, federal agents firing munitions into a group of press and legal observers.

Unbelievably, the federal government testified that it was unwilling to cease its violent acts towards journalists.

The Federal Defendants intend to keep dispersing journalists and legal observers. See ECF 67 at 20 (arguing that allowing journalists and legal observers to remain “is not a practicable option”). The actions by the federal agents described by Plaintiffs are part of a pattern of officially sanctioned conduct. The Federal Defendants argue that such conduct is necessary to protect federal property.

The government is begging for a restraining order and the court is more than willing to oblige. As it points out, the government is basically saying it is going to continue to do harm to people exercising their rights.

Plaintiffs, however, are not breaking any laws — to the contrary, they are engaging in constitutionally protected First Amendment activity. It is one thing to ask citizens to obey the law in the future to avoid future alleged harm. But it is quite another for the Federal Defendants to insist that Plaintiffs must forgo constitutionally protected activity if they wish to avoid government force and interference.

Here’s another one of the government’s rejected pitches: let us violate their rights and they can sue us later. Not an option, says the court.

The Federal Defendants also argue that Plaintiffs have legal remedies available, such as bringing a civil rights action or a lawsuit under the Federal Tort Claims Act, and thus a forward-looking equitable remedy is not appropriate. Backward-looking claims for money damages, however, would not provide the relief Plaintiffs are seeking. Plaintiffs desire access and the ability to exercise their First Amendment rights to observe and report on government misconduct.

Every one of the federal government’s arguments fail here. And for very good reason: every argument sucks. The court knocks them down one-by-one.

The Federal Defendants argue that Plaintiffs have an alternative location, because they can watch from a few blocks away. This argument is without merit. Federal agents are using tear gas, which decreases visibility, and the protests are at night. Reporting from a few blocks away is not a viable alternative location.

The Federal Defendants also argue that closure is essential because allowing some people to remain after a dispersal order is not practicable and is unworkable. This argument is belied by the fact that this precise remedy has been working for 21 days with the Portland Police Bureau. Indeed, after issuing the first TRO directed against the City, the Court specifically invited the City to move for amendment or modification if the original TRO was not working, or address any problems at the preliminary injunction phase. Instead, the City stipulated to a preliminary injunction that was nearly identical to the original TRO, with the addition of a clause relating to seized property. The fact that the City never asked for any modification and then stipulated to a preliminary injunction is compelling evidence that exempting journalists and legal observers is workable.

And there it is: federal officers are blocked from arresting or physically harming reporters and observers. Reporters are not bound by orders to disperse. The government is forbidden from seizing any recording equipment unless the person is suspected of a criminal act. And if it does that, there’s a long set of rules for how seizures must be documented and what steps must be followed before the government can gain access to the content of seized devices.

This is probably the best part of the entire order — something that makes it clear federal officers aren’t going to get away with playing dumb when they start violating reporters’ rights.

Because the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity in any action brought against any individual employee, officer, or agent of the Federal Defendants under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), notice of this Order must be widely disseminated.

The government may be rethinking its “well, they can just sue for rights violations” argument. Walking into a lawsuit effectively naked is no federal officers’ idea of a good time. For the foreseeable future, the federal government will have to play by the rules it set: respecting the rights it supposed to be guaranteeing.

Filed Under: 1st amendment, dhs, dispersal, free speech, journalism, journalists, portland, restraining order

The First Amendment Bars Regulating Political Neutrality, Even Via Section 230

from the the-1st-amendment-and-section-230 dept

At the end of May, President Trump issued an Executive Order demanding action against social media sites for “censoring” conservatives. His Department of Justice made a more specific proposal in mid-June. Clearly coordinating with the White House, Sen. Josh Hawley introduced a bill that same morning, making clear that his “Limiting Section 230 Immunity to Good Samaritans Act” is essentially the administration’s bill — as called for in the May Executive Order. The administration is expected to make its next move next week: having NTIA (an executive agency controlled by Trump loyalists and advised by a former law professor intent on cracking down on tech companies) ask the FCC to make rules reinterpreting Section 230 to do essentially the same thing as the Hawley bill. These two approaches, both stemming from the Executive Order, are unconstitutional for essentially the same reasons: they would put a gun to the head of the largest social media websites, forcing them to give up editorial control over their services if they want to stay in business.

The First Amendment would not allow Congress to directly require websites to be politically “neutral” or “fair”: the Supreme Court has recognized that the First Amendment protects the editorial discretion of websites no less than newspapers. Both have the same right to decide what content they want to carry; whether that content is created by third parties is immaterial. Hawley’s bill attempts to lawyer over the constitutional problem, using an intentionally convoluted process to conceal the bill’s coercive nature and to present himself as a champion of “free speech,” while actually proposing to empower the government to censor online content as never before.

Instead of directly meddling with how websites moderate content, Hawley’s bill relies on two legal sleights of hand. The first involves Section 230 of the Communications Decency Act of 1996. That law made today’s Internet possible — not only social media but all websites and services that host user content — by protecting them from most civil liability (and state criminal prosecution) for content created by third parties. Given the scale of user-generated content — with every comment, post, photo and video potentially resulting in a lawsuit — websites simply could not function if Section 230 did not immunize them not just from ultimate liability but from the litigation grindstone itself. Hawley knows that all sites that host user content depend on Section 230, so he’s carefully crafted a bill that turns that dependence against them — to do something the First Amendment clearly forbids: to force them to cede editorial control over their services. (Here’s a redline showing how Hawley’s bill would amend Section 230.)

Second, Hawley claims that his bill “protects consumers” by holding companies to their promises. In reality, it defines “good faith” so broadly that “edge providers” would face a constant threat of being sued under consumer protection and contract laws for how they exercise their editorial discretion over user content. Given the fines involved ($5,000/user plus attorneys’ fees), a single court decision could bankrupt even the largest tech company.

No one should have any illusion about what Hawley’s bill really does: use state power to advance a political agenda. The bill’s complicated structure merely masks the elaborate ways it violates the First Amendment. Conditioning 230 immunity on opening yourself up to legal liability under consumer protection law is a Rube-Goldberg-esque legal contraption intended to do what the First Amendment clearly forbids: forcing websites to host user-generated content they find objectionable.

How the Hawley Bill Works

Section 230(c)(1) says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” These have been called the The Twenty-Six Words That Created the Internet. When websites and services are sued for third party content they host, Section 230 allows them to cheaply get lawsuits against them thrown out with a motion to dismiss. Consequently, lawsuits are far rarer than they would be in a world without 230. Section 230(c)(1) ensures that those who create content are the ones to be sued. Courts resolve nearly all 230 cases under this provision.

Republicans have insisted angrily that all of Section 230 was intended to depend on a showing of good faith, including political neutrality; however, the plain text of the statute is clear. Only Subsection 230(c)(2)(A) requires such a showing — and the statute’s operative language doesn’t mention neutrality. As Justice Neil Gorsuch recently declared, “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” Bostock v. Clayton County, 590 U.S. ___ (2020). By proposing to amend Section 230(c)(1) to require both good faith and neutrality, Trump’s DOJ and Hawley both concede that the President’s Executive Order and other Republican clamoring for immediate legal action are simply wrong about the current state of the law.

The real aim of Hawley’s bill is to force the largest social media services to change how they treat content that serves the “MAGA” political agenda — e.g., not labeling Trump’s tweets, allowing far-right provocateurs to engage in bannable conduct, treating Diamond and Silk or Gateway Pundit as the journalistic equivalents of The New York Times. The bill is almost perfectly tailored to do just that while avoiding damage to smaller, alternative social networks favored by conservative activists for their “anything goes” approach to content moderation.

Hawley’s bill applies only to “edge providers”: websites or services with 30+ million annual unique users, or more than 300 million unique global users, in the past year, and more than $1.5 billion in global revenue. To maintain 230(c)(1) protections, they would have to attest to “good faith” — essentially, political neutrality — in their content moderation practices. Thus, an edge provider has to choose between two litigation risks: If it “voluntarily” exposes itself to suit for the “fairness” of its content moderation, it cedes editorial control to judges and regulators. If it surrenders Section 230 protections, it risks being sued for anything its users say — which may simply make it impossible for them to operate.

Trump’s Executive Order asks the Federal Communications Commission to collapse Section 230’s three distinct immunities into a single immunity dependent on “good faith” — and then define that term broadly to include neutrality and potentially much more. The Hawley bill does roughly the same thing by requiring large “edge providers” to promise “good faith.” Both would change the dynamics of litigation completely: A plaintiff with a facially plausible complaint would (1) prevail on a motion to dismiss, (2) get court-ordered discovery of internal documents and depositions of employees to assess “good faith” (however that term is expanded), and (3) force the company to litigate all the way through a motion for summary judgment. Whether or not the plaintiff ultimately wins, this pre-trial phase of litigation is where the defendant will incur the vast majority of their legal costs — and where plaintiffs force settlements. Multiply those costs of litigation, and settlement, times the millions or billions of pieces of content posted to social media sites every day and you get “death by ten thousand duck-bites.” Fair v. Roommates, 521 F.3d 1157, 1174 (9th Cir. 2008). That’s why Judge Alex Kozinski (a longtime conservative champion once short-listed for the Supreme Court) declared: “section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.” Id.

Having to prove good faith to resolve litigation would kill most social media websites, which exist to host content by others. Ironically, it’s possible that the best established social media sites with the biggest legal departments might cope; they might even be grateful that Hawley’s bill had made it impossible for new competitors to get off the ground. At the same time, if (c)(1) is no longer an immunity from suit but merely a defense raised only after great expense, websites across the Internet would simply turn off their comments sections.

Today, Section 230 doesn’t define “good faith.” Courts assessing eligibility for the 230(c)(2)(A) immunity have defined the term narrowly. See e.g., BFS Fin. v. My Triggers Co., No. 09CV-14836 (Franklin Cnty. Ct. Com. Pl. Aug. 31, 2011) (allowing antitrust claims); Smith v. Trusted Universal Standards in Elec. Transactions, 2011 WL 900096, at *25–26 (D.N.J. Mar. 15, 2011). Hawley’s bill would add a five-factor definition of “good faith” in a new Subsection 230(c)(3). These factors would give plaintiffs ample room to declare that an edge provider had been politically biased against them. Inevitably, courts would have to analyze the nature of third-party content, comparing content that had been removed with content that had not in order to judge overall patterns.

To maintain 230 protections, an edge provider must also agree to pay up to $5,000 damages to users if it is found to have breached its (compelled) promises of “neutrality.” Three hundred million users times $5,000 is $1.5 trillion dollars, exceeding the entire market cap of Google. The bill also adds attorneys fees, threatening to create a cottage industry of litigation against edge providers. The mere threat of such massive fines will fundamentally change how websites operate — precisely Hawley’s goal.

Perhaps most important is what the bill doesn’t say: unlike Trump’s Order, Hawley’s bill doesn’t directly call on the FTC or state AGs to sue websites for bias. But make no mistake; his bill would weaponize federal and state consumer protection laws to allow politicians to coerce social media into favoring their side of the culture wars. The FTC might hesitate to bring such suits, because of all the constitutional problems discussed below, but multiple Republican attorneys general have already made political hay out of grandstanding against “liberal San Francisco tech giants.” They would surely use Hawley’s bill to harass edge providers, raise money for their campaigns, and run for governor — or Senate.

A New Fairness Doctrine — with Even Greater First Amendment Problems

The Original Fairness Doctrine required broadcasters (1) to “adequately cover issues of public importance” and (2) to ensure that "the various positions taken by responsible groups" were aired, thus mandating the availability of airtime to those seeking to voice an alternative opinion. President Reagan’s FCC abolished these requirements in 1987. When Reagan vetoed Democratic legislation to restore them, he noted that “the FCC found that the doctrine in fact inhibits broadcasters from presenting controversial issues of public importance, and thus defeats its own purpose.”

The Republican Party has steadfastly opposed the Fairness Doctrine for decades. The 2016 Republican platform (re-adopted verbatim for 2020) states: “We likewise call for an end to the so-called Fairness Doctrine, and support free-market approaches to free speech unregulated by government.” Yet now, Hawley and Trump propose a version of the Fairness Doctrine for the Internet that would be more vague, intrusive, and arbitrary than the original.

In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Supreme Court struck down a 1913 state law imposing a version of the Fairness Doctrine on newspapers that required them to grant a “right of reply” to candidates for public office criticized in their pages. The Court acknowledged that there had been a technological “revolution” since the enactment of the First Amendment. The arguments made then about newspapers, as summarized by the Court, are essentially the same arguments conservatives make about digital media:

The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion…. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. The First Amendment interest of the public in being informed is said to be in peril because the ‘marketplace of ideas’ is today a monopoly controlled by the owners of the market.

Id. at 250. And yet, the court struck down the law as unconstitutional because:

a compulsion to publish that which “‘reason’ tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.

Id at 256. “Government-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate.’" Id. at 257. Critically, the Court rejected the intrusion into the editorial discretion “[e]ven if a newspaper would face no additional costs to comply,” because:

A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.

418 U.S. at 258. The Trump/Hawley Fairness Doctrine would impose the very same intrusion upon editorial judgments of edge providers. In addition, determining whether a website has operated “fairly” would be “void for vagueness since no editor could know exactly what words would call the statute into operation.” Id. at 247.

The Supreme Court upheld the Fairness Doctrine for broadcasters in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), but only because the Court denied broadcasters full First Amendment protection: “Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards.” The same arguments have been made about the Internet, and the Supreme Court explicitly rejected them.

When the Court struck down Congress’ first attempt to regulate the Internet, the Communications Decency Act (everything except Section 230), it held: “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). The Court has since repeatedly reaffirmed this holding. While striking down a state law restricting the purchase of violent video games, Justice Scalia declared: "the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.” Brown v. Entertainment Merchants Assn., 564 U.S. 786, 790 (2011). In short, Red Lion represented an exception, and even that exception may not survive much longer.

Social Media Aren’t Public Fora, So the First Amendment Protects Them

The President’s Executive Order attempts to sidestep the Supreme Court’s consistent protection of digital speech by claiming that social media are effectively “public fora” and thus that the First Amendment limits, rather than protects, their editorial discretion — as if they were extensions of the government: “It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech.” The Order also cites the Supreme Court’s decision that shopping malls were public fora under California’s constitution in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).

But Justice Kavanaugh, leading the five conservatives, explicitly rejected such arguments last year: “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). Pruneyard simply doesn’t apply to social media.

Trump’s Order cites the Supreme Court’s recent decision in Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (social media “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard”), but omits the critical legal detail: it involved a state law restricting the Internet use of convicted sex offenders. Thus Packingham changed nothing: the First Amendment still fully protects, rather than limits, the editorial discretion of website operators under Miami Herald and Reno.

Hawley’s Bill Imposes an Unconstitutional Condition

Hawley’s bill turns on one underlying legal claim more than any other: that Section 230 is a special privilege granted only to large websites, and withholding it does not violate the First Amendment. The factual claim is false: the law applies equally to all websites, protecting newspapers, NationalReview.com, FoxNews.com and every local broadcaster from liability for user comments posted on their website in exactly the same way it protects social media websites for user content. The legal claim is also wrong.

The Supreme Court has clearly barred the government from forcing the surrender of First Amendment rights in order to qualify for a benefit or legal status. In Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205 (2013), the Court said that the government couldn’t condition the receipt of AIDS-related funding on the recipients’ adoption of a policy opposing prostitution (a form of compelled speech). Much earlier, in Speiser v. Randall, 357 U.S. 513, 518 (1958), the Court made it clear that denying a tax exemption to claimants who engage in certain forms of speech effectively penalizes them for that speech — essentially fining them for exercising their First Amendment rights.

Using Section 230 to coerce social media companies into surrendering their First Amendment rights is no different. Consider how clearly the same kind of coercion would violate the First Amendment in other contexts. Pending legislation would immunize businesses that re-open during the pandemic from liability for those who might be infected by COVID-19 on their premises. Suppose the bill included a provision requiring such businesses to be politically neutral in any signage displayed on their stores — such that, if a business put up, or allowed a Black Lives Matter sign, they would have to allow a “right of reply” in the form of a sign from “the other side.” The constitutional problem would be obvious and in no way ameliorated by the “voluntary” nature of the immunity program.

Social Media Companies Can’t Be Forced to Risk Being Associated with Content They Find Objectionable

The case against unconstitutional conditions and public forum status is even clearer for websites than it would be for retailers or shopping malls, for two reasons. First, social media companies are in the speech business, unlike businesses whose storefronts might incidentally post their own speech or host the speech of others. Reno makes clear that websites enjoy the same First Amendment right as newspapers, and “[t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.” Miami Herald, 418 U.S. at 258.

Second, Pruneyard emphasized that shopping malls could “expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand.” But users will naturally assume speech carried by a social network reflects their decision to carry it — just as Twitter and Facebook have been attacked for not removing President Trump’s tweets or banning him from their services.

Disclaimers may actually be less effective online. Consider the three labels Twitter has applied to President Trump’s tweets (the first two of which provoked the issuance of his Executive Order).

The first example not only fails to clearly “disavow any connection with the message,” it is also ambiguous: it could be interpreted to mean there really is some problem with mail-in ballots.

Similarly, Twitter applied a “(!) Manipulated Media” label to Trump’s tweet of a video purporting to show CNN’s anti-Trump bias. Twitter’s label is once again ambiguous: since Trump’s video claims that CNN had manipulated the original footage, the “manipulated media” claim could be interpreted to refer to either Trump’s video or CNN’s. Although the label links to an “event” page explaining the controversy, the warning only works if users actually click through. It’s far from clear to many users that the label is actually a link that will take them to a page with more information.

Finally, when Trump tweeted, in reference to Black Lives Matter protests, “when the looting starts, the shooting starts,” Twitter did not merely add a label below the tweet. Instead, it hid the tweet behind a disclaimer. Clicking on “view” allows the user to view the original tweet:

And yet Twitter has still been lambasted for not taking the tweet down completely, a decision interpreted by some as an acceptance of the validity of such an extreme position.

Further, disclaimers risk creating increased liability; indeed, they may trigger lawsuits from scorned politicians. For example, labeling (and hiding) Trump’s tweets provoked issuance of the Executive Order. In the end, the only truly effective way for Twitter to disavow Trump’s comments would be to ban him from their platform — precisely what the Hawley bill aims to deter.

In this sense, the Trump/Hawley version of the Fairness Doctrine is hugely more intrusive than the right of reply in the original Fairness Doctrine; it puts edge providers in the doubly unconstitutional position of (a) hosting content they do not want to host and (b) being afraid even to label it as content they find objectionable.

Why the Hawley Bill’s Good Faith Requirement Violates the First Amendment

To maintain 230 immunity, edge providers would be required to promise to moderate content in “good faith” — which the Hawley bill defines very loosely as “honest belief and purpose…fair dealing standards, and…[no] fraudulent intent” — in other words, political neutrality (and more). The bill adds this to Section 230’s list of exceptions: “Nothing in this section shall be construed to impair or limit any claim for breach of contract, promissory estoppel, or breach of a duty of good faith.’’ Thus, an edge provider’s compelled “promises” could be enforced by the Federal Trade Commission, state AGs, or private plaintiffs under various federal and state consumer protection laws and common law contract theories. These enforcement mechanisms raise slightly different legal issues, but they all violate the First Amendment in essentially the same way: state action interfering with edge providers’ exercise of editorial discretion.

Consumer Protection Law Can’t Police “Fairness” Claims

Republicans used to oppose weaponizing consumer protection laws against media companies. In 2004, MoveOn.org and Common Cause asked the FTC to proscribe Fox News’ use of the slogan “Fair and Balanced” as a deceptive trade practice. Republican Chairman Tim Muris responded pithly: “I am not aware of any instance in which the [FTC] has investigated the slogan of a news organization. There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.”

Similarly, the Hawley bill would necessarily embroil the FTC, state AGs, and judges in “evaluating the content … at issue.” Media companies aren’t exempt from consumer protection or antitrust laws, but the First Amendment makes suing them for how they exercise their editorial discretion extremely difficult, if not impossible — which is why the FTC has never attempted to police marketing claims about editorial practices the way it polices marketing claims generally.

As Chairman Muris noted, general statements about “fairness” or “neutrality” simply are not verifiable. This is why the Ninth Circuit recently dismissed Prager University’s deceptive marketing claims against YouTube. Despite having over 2.52 million subscribers and more than a billion views, this right-wing producer of “5-minute videos on things ranging from history and economics to science and happiness,” sued YouTube for “unlawfully censoring its educational videos and discriminating against its right to freedom of speech.” Specifically, Dennis Prager alleged that roughly a sixth of the site’s videos had been flagged for YouTube’s Restricted Mode, an opt-in feature that allows parents, schools and libraries to restrict access to potentially sensitive (and is turned on by fewer than 1.5% of YouTube users). The Ninth Circuit ruled:

YouTube’s braggadocio about its commitment to free speech constitutes opinions that are not subject to the Lanham Act. Lofty but vague statements like "everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories" or that YouTube believes that "people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities" are classic, non-actionable opinions or puffery. See Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1053 (9th Cir. 2008). Similarly, YouTube’s statements that the platform will "help [one] grow," "discover what works best," and "giv[e] [one] tools, insights and best practices" for using YouTube’s products are impervious to being "quantifiable," and thus are non-actionable "puffery." Id. The district court correctly dismissed the Lanham Act claim.

Prager Univ. v. Google LLC, 951 F.3d 991, 1000 (9th Cir. 2020). Websites can’t be sued today for making statements that may sound like offering neutrality — contrary to Republican claims that they should be, and Trump’s call for such lawsuits in this Executive Order. The Hawley bill implicitly concedes this point.

But simply forcing edge providers to be more specific in their claims about neutrality will not overcome the ultimate constitutional problem. Puffery includes “claims [which] are either vague or highly subjective.” Sterling Drug, Inc. v. FTC, 741 F.2d 1146, 1150 (9th Cir. 1984) (emphasis added). It would be difficult to imagine a more subjective marketing claim than one about “good faith,” “neutrality” or “fairness.” Ultimately, the reason consumer protection law does not attempt to police marketing claims about neutrality is not their lack of specificity but their subjectivity.

In theory, the FTC might be able to base a deception case on certain very clear, objective claims about editorial practices; that category of deception, however, would be narrow — the use of human moderators to evaluate particular pieces of content or to decide which topics are “trending,” or the application of community standards to elected officials, for example. These deception cases would do little to address the complaints of conservatives, and even such narrow complaints might be unconstitutional.

Consumer Protection Law Can’t Police Non-Commercial Speech

The FTC can police marketing claims for being misleading to the extent they “propose a commercial transaction.” Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557,561 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976). Community standards documents do much more than that: they are essentially statements of values, comparable to Christian retailer Hobby Lobby’s statement that the company is committed to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”

Such statements are non-commercial speech, which is fully protected by the First Amendment under strict scrutiny even when it is misleading. United States v. Alvarez, 567 U.S. 709 (2012). To overcome strict scrutiny, the government must show that the bill is (1) necessary to address a compelling government interest (2) to which the law is narrowly tailored, and (3) that the government uses the least restrictive means possible to address that interest. Reed v. Town of Gilbert, 576 U.S. 155, 163, 171 (2015). In Miami Herald, the court noted that Florida’s interest in “ensuring free and fair elections” was a “concededly important interest,” but had to yield to the “unexceptionable, but nonetheless timeless, sentiment that liberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper." 418 U.S. at 260. The bill also fails on the second two prongs of strict scrutiny,

If the Hawley bill passes, the Trump Administration will undoubtedly argue that edge providers’ community standards are ads for their services. But when speech has commercial aspects that are “inextricably intertwined” with other fully protected speech, that speech is generally fully protected. Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 783 (1988). For example, corporate statements endorsing Black Lives Matter receive First Amendment protection even when embedded in marketing claims.

Courts are generally reluctant to label content as commercial speech because that denies the speech full First Amendment protection. Although community standards and terms of service may “refer[] to a specific product,” they in no way resemble traditional advertising — two of the factors courts assess in drawing the line between commercial and noncommercial speech. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983). The third factor, the profit motive — which Hawley harps on in his public statements — is not dispositive: “If a newspaper’s profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position—would be subject to regulation if it could be established that they were conducted with a view toward increased sales.” Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 385 (1973) (emphasis added).

Pittsburgh Press makes clear that statements about the way publishers exercise their editorial discretion are fundamentally different from statements about the health benefits of drug products, for example.

Even if a court decided to treat community standards as commercial speech, the government would still face an uphill battle. “The party seeking to uphold a restriction on commercial speech carries the burden of justifying it,” Bolger, 463 U.S. at 71, n. 20, and “must demonstrate that the harms it recites are real, and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, 507 U.S. 763, 771 (1993). Because the government’s interest in regulating commercial speech lies in its misleading or false nature, it would have to show that statements about a website’s editorial practices are misleading. General claims about “fairness,” however, are simply not verifiable.

Why the Government Can’t Compel Disclosures about Editorial Policies

Compelling edge providers to change what they say about their community standards violates the First Amendment even apart from enforcement of such claims. As a condition for maintaining 230 protection, the Hawley bill requires edge providers to (1) “describe any policies … relating to restricting access to or availability of [user-generated] material” and (2) “promise that the edge provider shall … design and operate the provided service in good faith.” The first requirement seems hands-off: it does not directly dictate what an edge provider’s terms of service must say. But this is simply a trick of clever drafting: this requirement does not need to be specific, because the second requirement (“good faith”) will, in practice, govern both. The two inquiries will collapse into one, allowing complaints about both the fairness of content moderation practices as compared to community standards, and the adequacy of those standards.

As a result, companies would (1) make their community standards as opaque or unspecific as possible and (2) minimize transparency about content moderation generally (e.g., avoiding public statements or reporting on content removals). But relying on “good faith” does not solve the compelled speech First Amendment problem.

Suppose that, instead of suing to enforce Fox News’ “Fair and Balanced” slogan in 2004, Congressional Democrats had proposed a bill like Hawley’s: just replace “community standards” with “editorial standards” and apply the bill to cable programming networks over a certain size. It would be obvious that the government cannot compel traditional media companies to “describe any policies … relating to [selection] of [programming] material.”

By contrast, the government may (and does) compel food manufacturers to disclose ingredient lists and nutritional information. The First Amendment permits such mandates because they apply to statements of objective fact, not the disclosure of opinions. This is why the seemingly simple age-based ratings systems for video games and movies have evolved as purely private undertakings. Behind each label is an editorial judgment, an opinion, about how to apply rating criteria. The government can compel neither the rating system overall, nor specific disclosures about the contents of specific films, nor disclosure of the rating methodology. By the same token, it cannot compel websites to disclose their editorial methodologies, whether implemented by humans or algorithms. Brown, 131 S. Ct. at 2740.

The Hawley Bill Is Designed to Chill the Exercise of Editorial Discretion

The Hawley bill proposes four criteria for assessing a website’s “good faith.” The first two concern “selective enforcement,” whether by humans or algorithms. But what purports to be a regulation only of marketing claims would actually, inevitably embroil regulators and/or judges in evaluating the editorial discretion of edge providers — conduct that would clearly qualify for the full protection of the First Amendment as non-commercial speech under Miami Herald. Twitter’s alleged political bias in applying its community standards is no more actionable under consumer protection law than would be Fox News’ political bias in its editorial policies.

The third criterion — “the intentional failure to honor a public or private promise made by, or on behalf of, the provider” — appears to preserve consumer protection claims, but its aim is significantly broader. In Barnes v. Yahoo!, Inc., 565 F.3d 560 (9th Cir. 2009), the court allowed the plaintiff’s suit against Yahoo! to proceed. Barnes sued the company for failing to stop her ex-boyfriend from posting revenge porn. The court ruled that the company had essentially waived its Section 230 immunity when its Director of Communications promised the plaintiff she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.”

This promissory estoppel theory was limited to the particular facts of that case: a clear promise made directly to a specific user. The Hawley bill’s “public or private promise” language could be read to allow plaintiffs to set aside Section 230 immunity and sue edge providers for far more general statements about content moderation practices that would never qualify for promissory estoppel. By holding companies to every past statement, the Hawley bill aims to stop companies from changing their content moderation policies over time as new challenges emerge — a critical dimension of any company’s editorial discretion.

The fourth criterion — “any other intentional action taken by the provider without an honest belief and purpose, without observing fair dealing standards, or with fraudulent intent” — seems tailor-made for a law school exam on the “void for vagueness” standard. In particular, it is considerably more expansive than the narrow standard the Supreme Court set forth in Central Hudson Gas Elec. v. Public Serv. Comm’n, 447 U.S. 557 (1980), for regulating commercial speech: “there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.” In other words, the Court allows the regulation of commercial speech only because of its effects, not its intent. Applying a subjective, rather than an objective standard, would make litigation significantly easier. Thus, this criterion would not be constitutional even if it were applied solely to commercial speech. But as we have already seen with the Fox News example, there would be no way to apply this standard “without evaluating the content … at issue,” as FTC Chairman Muris put it.

The Bill Unconstitutionally Targets Specific Websites

The bill applies to “edge providers,” defined as providers of a website, mobile application or web application with more than $1.5 billion in global revenue and more than 30 million U.S. users or more than 300 million global users, that have accessed the site by any means in the past year. This tailors the bill to apply to just a handful of services: Google (Alphabet), Apple, Facebook (including Instagram and Whatsapp) and Amazon (the so-called “GAFA”) as well as Twitter, eBay, Microsoft, Apple, and TikTok (because the revenue threshold is global). Reddit, Flickr, and Etsy would meet the user thresholds but not the revenue thresholds. Wikipedia wouldn’t be covered because it’s a non-profit.

What may at first seem like a sensible way to focus the effect of the bill actually creates a host of problems. First, it’s possible that, despite posing an existential threat to “Big Tech” companies, Hawley’s bill could actually protect them from competition. By penalizing smaller market entrants for getting too big, Hawley’s bill creates an incentive for small players to get bought-out by their “big tech” counterparts before crossing Hawley’s size threshold — big companies better equipped to handle the legal risks Hawley’s bill would create.

The bill’s scope raises three distinct constitutional problems. First, singling out a small group of websites provides further reason for applying stricter scrutiny. “Minnesota’s ink and paper tax violates the First Amendment not only because it singles out the press, but also because it targets a small group of newspapers…. And when the exemption selects such a narrowly defined group to bear the full burden of the tax, the tax begins to resemble more a penalty for a few of the largest newspapers than an attempt to favor struggling smaller enterprises.” Minneapolis Star, 460 U.S. at 591-92. Applying taxes only to large newspapers “poses a particular danger of abuse by the State.” Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987).

Hawley’s bill poses a “danger of abuse” by focusing on only the largest social networks — all of the ones conservatives complain about being biased against them — while excluding sites with a laissez-faire approach to content moderation, where extremist right-wing content has been allowed to flourish, such as Reddit. The relatively high revenue threshold excludes Reddit as well as other popular social media sites like Yelp (business reviews), IMDB (movie reviews), Fandom (a hosting platform), and Pinterest. The user threshold also excludes smaller social networks that have become gathering places for the Alt Right, like Gab (1.8 million monthly users users) and Minds (1.25 million users total).

The bill might apply to websites for traditional media, but even this is difficult to predict. Websites the largest newspapers and cable channels all meet the monthly user threshold, but won’t qualify for the revenue threshold if separate corporate digital divisions are treated as the “edge providers” covered by the bill. In theory, it might be possible to “pierce the corporate veil” to argue that the parent companies’ revenue should be counted, but this is not what the bill says — which further suggests the bill is tailored to social media sites. In any event, including some large traditional media websites in its scope wouldn’t come anywhere near making the bill broad enough to avoid the concerns of Minneapolis Star or Arkansas Writers’ Project.

Second, the bill applies only to a particular subset of Internet media — websites, apps and services that host user content, not services like Netflix or non Internet media. On its own, this all but ensures that the bill would be subject to strict scrutiny — which it would surely fail. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (“Regulations that discriminate among media … often present serious First Amendment concerns.”); Minneapolis Star Tribune, Co. v. Minnesota Commr of Revenue, 460 U.S. 575, 583 (1983) (a tax applied only to newspapers).

Arguably, a bill that applied equally to all “interactive computer service providers” would be less problematic because it would not single out a “small group” of sites for what amounts to punishment. Abandoning user count or revenue thresholds would avoid the problem of retaliatory targeting, but additional First Amendment problems would remain.

Hawley’s Bill Would Backfire Against Conservatives

It’s impossible to anticipate, ex ante, the net effect of the law upon the decision-making of each social media service — i.e., whether they will do more or less moderation, and whether conservatives would actually benefit overall. The chief purpose of Section 230 was to avoid the “Moderator’s Dilemma,” created by Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995). The court held Prodigy more liable because it actively engaged in content moderation to create a “family-friendly” service. If edge providers fear that removing certain content may increase their legal risks, they will moderate less. On the other hand, they may calculate that more moderation will allow them to claim a more consistent approach.

That the same law could produce diametrically opposite results is not at all unusual in First Amendment jurisprudence. This is precisely the constitutional problem with vague laws: they are both unpredictable and highly subject to manipulation by those charged with enforcement.

Empowering the government to determine political neutrality cuts both ways. Discouraging edge providers from moderating incendiary or abusive speech from the right will have the same kinds of effects on the left. Democrats will just as easily claim “bias” when speech they like is removed. Consequently, social media sites will hesitate to take down content from Antifa or radical anti-police activists for fear that a Democratic FTCor state attorney general will sue them.

More generally, if Republicans start suing edge providers for failing to deliver on the claim of neutrality required by the new Hawley bill, you could count on Democrats — when they have the chance — to start suing social media operators for not living up to other provisions in their community standards. Consider Twitter’s Community Standards:

Twitter has made an editorial decision not to remove tweets posted by President Trump that seem to violate all of these prongs (minus the one about child sexual exploitation). The First Amendment clearly protects their right to make that decision, but if the government could hold a company to such statements about its editorial practices, as Hawley claims, without violating the First Amendment, why couldn’t a Democratic FTC make the same argument about Twitter not living up to its promise to enforce its community standards? Indeed, Facebook has been heavily criticized by groups on the left for failing to do more to take down racist content that may even incite users to violence.

For better or worse, the First Amendment prevents the government from forcing Facebook, Twitter or any other social media sites to change how they favor, disfavor, or remove user content. But if Hawley’s bill were somehow to pass now, it could just as easily be used by a Biden administration to pressure social media sites to take down right-leaning content in the years it would take for the complex legal questions outlined here to work their way through the courts.

The “Problem” for Republicans Isn’t 230, but the First Amendment

In the end, Republicans’ complaints aren’t really about Section 230, but about the First Amendment. Yes, Section 230 protects websites from liability for user content — “death by ten thousand duck-bites.” Roommates, 521 F.3d at 1174. While the Hawley bill and Trump’s Executive Order both make edge providers liable for what users say, this is only a means to an end; their real focus is not on the decision made by edge providers to host potentially unlawful content, but on their decision not to host content they deem objectionable. That decision is one the First Amendment protects as fully for websites as it does for newspapers or Fox News.

Trump, Hawley and other Republicans would do well to remember what President Reagan said when he vetoed legislation to restore the Fairness Doctrine back in 1987:

We must not ignore the obvious intent of the First Amendment, which is to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium, let alone in any particular journalistic outlet. History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.

Republicans should ask themselves: “WWRD—What Would Reagan Do?” The answer should, by now, be clear: “Congress shall make no law…”

Filed Under: 1st amendment, fcc, free speech, ftc, josh hawley, ntia, section 230, unfair practices

Philippines Senator Targets Critics With 'Cyberlibel' Law, Gets Hailed As A Son Of A Bitch By Thousands Of Citizens

from the reap-sow-repeat dept

The most dangerous cybercriminals in the Philippines are the ones who swear. When not locking up critics and journalists under the country’s “cyberlibel” law, government officials are sending the cops after people for not being sufficiently respectful.

The president of the country — Rodrigo Duterte — portrays himself as a fearless destroyer of criminals. He’s openly encouraged the extrajudicial killing of drug dealers and drug users. But the tough guy image is just that. The man can’t handle being criticized (see arrests of journalists above). When citizens start getting lippy, Duterte and his favored officials call in the cops to help them abuse a law whose sole reason for existence is to be abused by powerful people.

Just two months ago, a 41-year-old salesman was arrested for his Facebook post, in which he (accurately) described Duterte as “crazy” and an “asshole.” Under most definitions of libel, opinions such as these aren’t defamatory, especially when describing a public figure. Under the nation’s law, anything Duterte doesn’t like is considered to be libelous. The country’s cybercrime law codifies the president’s expansive and self-serving definition of this term.

Now, another public official — and a good buddy of Rodrigo’s — is abusing the same law to send law enforcement after another foul-mouthed critic. Sammy Westfall has more details at Vice:

Christopher “Bong” Go, a Philippine senator and a close confidante of Philippine President Rodrigo Duterte, has requested authorities investigate several of his critics under the country’s controversial cyberlibel laws, leading to several being subpoenaed—and to a chorus of even stronger criticism online.

In his statement to the press, Senator Go claimed he had been the “victim” of “fake news” and had tasked the National Bureau of Investigation with looking into some recent online besmirchment. One of several hit with government subpoenas was a college student accused of sharing a post “containing fake news against the Senator.”

The contents of the targeted posts were not revealed by Senator Go. The NBI says everyone’s due process rights will be respected, though.

NBI Cybercrime Division Chief Vic Lorenzo said that the subpoenas allow for the verification of the complaint and are part of the due process that allows the defendant to be heard and validated as the person who posted the material in question.

Yes, the accused will be provided the opportunity to agree they engaged in cyberlibel. Hopefully, this process involves telling the accused what they’re accused of, because it seems like that important detail has been overlooked by Go and the NBI.

In addition to the subpoenaed student, Rappler reported that another subpoena had been sent to another person by the same law firm. The person, who was not named, confirmed to Rappler that he also shared a post critical of Go.

Rappler noted that among three others who received similar subpoenas, none were told which post triggered the subpoena, nor were they told that Go was the complainant.

As Westfall reports, this is cyberlibel standard operating procedure. Seventeen Philippines residents were hit with cyberlibel subpoenas earlier this year. None of the recipients were informed which of their social media posts were considered criminally defamatory.

But if it’s libel Senator Go wants — under his fuzzy and convenient definition — citizens are more than willing to supply it.

By Friday morning, as news of the subpoenas spread, the hashtag #TanginaMoBongGo—which literally translates to “Son of a Bitch Bong Go”—was trending on Twitter, with netizens slamming the senator for what they characterized as his heavy-handed response to online criticism. By Friday evening, there were more than 65,000 posts with the tag.

That’s how the game is played, Senator. Be a jerk, get treated like one. Of course, citizens can’t haul Go up on charges, hide the details from him, and demand he make himself available to investigators. But they can make him increasingly miserable.

Filed Under: bong go, christopher bong go, cyberlibel, free speech, insults, philippines, rodrigo duterte