College Forgets How The First Amendment Works; Targets Its Own Student Newspaper With A Public Records Request

Free Speech

from the seems-like-it's-time-for-a-refresher-course dept

A California community college has discovered open records requests. It’s not receiving them, which would be normal. Instead, it’s filing them. And in doing so, it’s attempting to bypass the state’s journalist shield law by pretending the party it’s FOIAing is a public entity.

In an apparent attempt to regain narrative control of an incident involving the college’s administration and the student government, Southwestern College is seeking to obtain the recording of that event by the school’s student newspaper. The recording is of a student government election that was abruptly cancelled by the school’s president in May, apparently over a bogus Instagram post that suggested one group of students was going to engage in interracial violence.

The school was rebuffed when it swung by the newspaper to ask for a copy of this recording. So, it decided to go with plan B: a public records request.

As FIRE (Foundation for Individual Rights in Education) reports, the school is attempting to obtain something protected by the state’s shield law. The school is aware of this because the student newspaper told it as much when it asked the first time. So, it made an official request and appended a lot of garbage to its request in an attempt to talk the newspaper into believing it was subject to public records requests.

Less than a week later, the administration hand-delivered a second letter to the permanent adviser, now back from medical leave, incorrectly alleging that the newspaper was a government actor and thus subject to the California Public Records Act. Further, the Title IX director claimed that not producing the records was “subversion of the public’s right to access” in violation of the Society of Professional Journalists’ Code of Ethics.

It’s not.

The school is so so so very wrong. It has now received a letter [PDF] of its own from FIRE — crafted by Adam Steinbaugh — that enumerates the many ways the college screwed up. To begin with, the college’s interpretation of the state’s public records law gets everything backwards.

The novel theory underlying the District’s request—that student organizations are subject to the California Public Records Act (CPRA) because they are entities that are “part of the larger Southwestern Community College District” and are engaged in activities “funded by the College District, and produced by students”—finds no support in the CPRA.

The CPRA does not confer a public right to access records of private entities, but instead allows public access to public agencies.

The school’s belief the student newspaper is as “public” as the university where it resides is also wrong. As Steinbaugh notes, the paper is an auxiliary organization distinct from the college. If the school truly believed the paper was part of its public whole, it would have approached a separate office of the school’s administration to submit its public records request.

Furthermore, even if the school was right and the paper was subject to the state’s public record laws, the paper would still be well within its rights to withhold the recording. The paper’s First Amendment rights, along with the state’s shield law, would give it all the permission it needed to deny the request.

The deference afforded to journalists’ protection of confidential sources and unpublished information cannot be understated. There is a “paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters . . . .” Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 495 (C.D. Cal. 1981). Even leaving aside the considerable First Amendment right to resist government efforts to compel the release of unpublished information, as discussed below, California has elevated a journalist shield law in its state constitution. (Cal. Const., Art. I § 2 subd. (b).) 7 Similarly, California goes to great lengths to place barriers between student newspapers and their host institutions. (Ed. Code § 66301 subd. (a) & (f) (barring administrators from taking action to penalize students or faculty advisers for students’ protected expression).) Southwestern may not make an end-run around these barriers by resorting to an unorthodox application of the CPRA.

Steinbaugh also reminds the college to tread carefully now that it’s been told multiple times to GTFO. Retaliation against protected speech is a helluva tort and public college administrators cannot expect qualified immunity to save them if this turns litigious.

Filed Under: california, free speech, journalism, public records, shield law
Companies: southwestern college

Facebook To Start Handing User Info To French Government So It Can Start Punishing People For Being Stupid

Free Speech

from the terrorism-equations-DRINK! dept

In a move that’s indicative of the tech companies’ newfound willingness to roll over for overseas governments, Facebook will be handing user data to the French government to help it chase down people who’ve posted illegal words.

In a world first, Facebook has agreed to hand over the identification data of French users suspected of hate speech on its platform to judges, France’s minister for digital affairs Cedric O said on Tuesday.

France has criminalized hate speech, building on legislation that worked out oh so well in Germany. Facebook has already allowed French government censors to embed with the company’s moderation teams. Facebook.gov is no one’s idea of a better world, but there was always a chance French regulators might actually learn something from the experience: namely, that moderating content at scale isn’t easy and tends to cause collateral damage if performed the way multiple governments would prefer.

It appears little has been learned. Mark Zuckerberg’s recent meeting with France’s president may have little to with this, but Facebook has been historically cooperative with other demands from the French government. However, previous cooperation generally concerned terrorism investigations, not people engaging in criminalized ignorance.

The French government naturally seems pleased with Facebook’s decision to deliver hateful users into the hands of authorities.

“This is huge news, it means that the judicial process will be able to run normally,” O told Reuters in an interview. “It’s really very important, they’re only doing it for France.”

By “normally,” O means “efficiently.” Government efficiency is the enemy of rights and civil liberties. US companies are doing no favor for users around the world by speeding up dubious prosecutions of questionable laws. While it’s natural to curry favor with the only entities powerful enough to make Facebook pay attention. It’s not just about user bases. It’s about locking smaller competitors into restrictive compliance regimes that they may not be able to handle.

But this isn’t the only stupid thing going on here. Supporters of Facebook’s generous kowtowing are letting dumb fall right out of their mouths and onto the pages of Reuters.

“It is a strong signal in terms of regulation,” said Sonia Cisse, a counsel at law firm Linklaters, adding that it was a world first. “Hate speech is no longer considered part of freedom of speech, it’s now on the same level as terrorism.”

What the actual fuck. Ignorant people saying ignorant things is not even close to equivalent of violent acts that kill and maim people just because they don’t agree with the terrorists or, worse, just because they’re there. While I understand that France’s protections for speech are not on par with the First Amendment, equating hate speech with terrorism is stupid and will end up costing stupid people their freedom, even if they’ve done nothing more than let everyone else know how stupid they are.

Filed Under: france, free speech, hate speech, privacy, surveillance
Companies: facebook

Russian Government Demands All Foreign Press Outlets Register For The Privilege Of Delivering News To Russia

Free Speech

from the get-in-the-sea,-Putin dept

The Russian government sure loves its registration. If anyone wants to do anything involving the written (and/or broadcasted) word in Russia, the government wants to know who you are. That makes it easier to find you should you displease the Russian government and/or its bear-riding autocrat.

It’s so great to be part of the new New World Order. Gone are the days of the Soviet Union and its direct control of the nation’s press outlets. We’re living in a new era of quasi-, mostly-mob-fueled-capitalism in Russia. And with it comes… the direct control of the nation’s press outlets.

The Russian government has demanded all bloggers register with the government in order to continue blogging. The government has also demanded all Wi-Fi networks be registered with the government. So it goes without saying all domestic press is registered with the government, but we’ll say it anyway since unregistered press outfits are being hit with hefty fines for not playing ball with their overlords.

That takes care of the domestic “problem.” But what about all those pesky extranationals whose printed words might be somehow troublesome to the Russian Republic? Well, Putin et al have a solution whipped up to keep dirty foreigners from apprising Russian citizens about the sad state of their country under its autocratic leadership.

Under the new law, media publications must obtain a permit and register their media outlet with Russian media watchdog, Roskomnadzor. […] The law was proposed to better regulate foreign media outlets who have contracts with local distributors. The new law is supposed to make sure all of these contracts are brought under the review of the state.

As expected, the new law has its critics, both foreign and domestic. And, as expected, the Russian government has not a single fuck to give about critics of its media control.

The new law governs all printed media distributed by non-citizens, bringing it in line with the domestic product. The fines, however, aren’t all that hefty (although exchange rates may make them particularly painful for some countries). They’re even less hefty if foreign press outlets refuse to pay them, which seems like a totally legitimate option when faced with illegitimate use of government power.

Those with deeper pockets should pay the nominal fees (which range from $23 to $470, depending on the size of the corporation) and keep pumping info not directly controlled by the Russian government into the eyeballs and brains of Russian citizens. Those that can’t pay the fees — or are willing to stand on principle — should continue to do the same thing, only without cutting checks to a lousy government that can’t stand having an informed populace.

As for American tech companies, they too should extend a digital middle finger to Roskomnadzor when it starts demanding content the Russian government finds offensive be removed or blocked. You’re not the boss of me is the operative phrase here and it should be delivered as frequently — and as petulantly — as possible.

Filed Under: free speech, journalism, news, registration, russia

Supreme Court Now Says That The Trademark Office Can't Reject 'Immoral Or Scandalous' Trademarks

Free Speech

from the well-fuck-yeah(tm) dept

This should have been pretty much a foregone conclusion after the Supreme Court’s ruling two years ago in Simon Tam’s case about The Slants trademark. In that case, the Supreme court ruled that part of the Lanham Act that said the government could deny trademarks on “disparaging” marks was an unconstitutional violation of the First Amendment. However, that ruling was a bit messy. The court agreed that the law was unconstitutional under the 1st Amendment, but had two different theories as to why, neither of which got a majority. So the specific law that said the PTO could reject “disparaging” marks was tossed, but technically other content-based restrictions, such as those for “immoral and scandalous” remarks remained on the books. So, pretty quickly that got challenged as well, and now the Supreme Court instead has said that’s unconstitutional too.

The basic reasoning should be obvious: under the First Amendment, the government cannot be in the business of judging the appropriateness of content (for what it’s worth, this is also why Senator Josh Hawley’s silly bill is unconstitutional). Here, the majority decision, written by Justice Kagan, made pretty quick work of the ruling, basically just saying that the same thing that they said in the Tam case applies here as well.

If the ?immoral or scandalous? bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine. The Government does not argue otherwise. In briefs and oral argument, the Government offers a theory for upholding the bar if it is viewpoint-neutral (essentially, that the bar would then be a reasonable condition on a government benefit). See Brief for Petitioner 14?26. But the Government agrees that under Tam it may not ?deny registration based on the views expressed? by a mark. Tr. of Oral Arg. 24. ?As the Court?s Tam decision establishes,? the Government says,?the criteria for federal trademark registration? must be ?viewpoint-neutral to survive Free Speech Clause review.? Pet. for Cert. 19. So the key question becomes: Is the ?immoral or scandalous? criterion in the Lanham Act viewpoint-neutral or viewpoint-based?

It is viewpoint-based. The meanings of ?immoral? and?scandalous? are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material ?immoral?? According to a standard definition, when it is ?inconsistent with rectitude, purity,or good morals?; ?wicked?; or ?vicious.? Webster?s New International Dictionary 1246 (2d ed. 1949). Or again, when it is ?opposed to or violating morality?; or ?morally evil.? Shorter Oxford English Dictionary 961 (3d ed. 1947). So the Lanham Act permits registration of marks that champion society?s sense of rectitude and morality, but not marks that denigrate those concepts. And when is such material ?scandalous?? Says a typical definition, when it ?giv[es] offense to the conscience or moral feelings?; ?excite[s] reprobation?; or ?call[s] out condemnation.? Webster?s New International Dictionary, at 2229. Or again, when it is ?shocking to the sense of truth, decency,or propriety?; ?disgraceful?; ?offensive?; or ?disreputable.? Funk & Wagnalls New Standard Dictionary 2186 (1944). So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society?s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. ?Love rules?? ?Always be good?? Registration follows. ?Hate rules?? ?Always be cruel?? Not according to the Lanham Act?s ?immoral or scandalous? bar.

The facial viewpoint bias in the law results in viewpoint-discriminatory application.

The ruling mocks the Government’s position that some of the examples shown of the PTO rejecting marks were “mistakes,” as well as the request to basically read the law entirely differently than it’s written.

How, then, can the Government claim that the ?immoral or scandalous? bar is viewpoint-neutral? The Government basically asks us to treat decisions like those described above as PTO examiners? mistakes. See Brief for Petitioner 46. Still more, the Government tells us to ignore how the Lanham Act?s language, on its face, disfavors some ideas. In urging that course, the Government does not dispute that the statutory language?and words used to define it?have just that effect. At oral argument, the Government conceded: ?[I]f you just looked at the words like ?shocking? and ?offensive? on their face and gave them their ordinary meanings[,] they could easily encompass material that was shocking [or offensive] because it expressed an outrageous point of view or a point of view that most members? of society reject. Tr. of Oral Arg. 6. But no matter, says the Government, because the statute is ?susceptible of? a limiting construction that would remove this viewpoint bias. Id., at 7 (arguing that the Court should ?attempt to construe [the] statute in a way that would render it constitutional?). The Government?s idea, abstractly phrased, is to narrow the statutory bar to ?marks that are offensive [or] shocking to a substantial segment of the public because of their mode of expression, independent of any views that they may express.? Id., at 11 (emphasis added); see Brief for Petitioner 27?28. More concretely, the Government explains that this reinterpretation would mostly restrict the PTO to refusing marks that are ?vulgar??meaning ?lewd,? ?sexually explicit or profane.? Id., at 27, 30. Such a reconfigured bar, the Government says, would not turn on viewpoint, and so we could uphold it.

But we cannot accept the Government?s proposal, because the statute says something markedly different. This Court, of course, may interpret ?ambiguous statutory language? to ?avoid serious constitutional doubts.?

Easy.

Except, of course, with this court, very little is easy. There are a bunch of concurring opinions, with some dissenting in part. Justice Alito kicks it off with a short concurring opinion bravely talking up the principles of free speech, before then insisting that Congress could still write a law to block “FUCT” because he, personally seems to feel such a word is too vulgar for society or something. It’s… bizarre.

For the reasons explained in the opinion of the Court, the provision of the Lanham Act at issue in this case violates the Free Speech Clause of the First Amendment because it discriminates on the basis of viewpoint and cannot be fixed without rewriting the statute. Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be ?immoral? or ?scandalous? can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.The registration of such marks serves only to further coarsen our popular culture. But we are not legislators and cannot substitute a new statute for the one now in force.

I have a fair bit of difficulty figuring out how Alito’s argument in that latter paragraph could possibly be consistent with the 1st Amendment, but, hey, he’s the Supreme Court Justice, and I’m not. Justice Roberts takes a slightly similar position, saying that it’s fine to say the ban on “immoral” marks is unconstitutional, but surely “scandalous” is viewpoint neutral, because vulgarity. This, again, seems like a bizarre attempt at line drawing. Justice Breyer complains about the standard used in the majority ruling, calling it too rigid, and wants more of a balancing test (which, if I remember correctly, has mostly been rejected by the Court in 1st Amendment cases). Sotomayor, like Alito, worries that this will lead to a rush of vulgar and obscene trademarks:

The coming rush to register such trademarks?and the Government?s immediate powerlessness to say no?is eminently avoidable. Rather than read the relevant text as the majority does, it is equally possible to read that provision?s bar on the registration of ?scandalous? marks to address only obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted legislative text by rendering it a reasonable, viewpoint-neutral restriction on speech that is permissible in the context of a beneficial governmental initiative like the trademark-registration system. I would apply that narrowing construction to the term ?scandalous? and accordingly reject petitioner Erik Brunetti?s facial challenge

Again, I have trouble seeing how this makes any sense. And, frankly, if there is a mad dash to register vulgar trademarks, well, that only matters if those marks are valued in commerce. If people want to buy vulgar t-shirts or whatnot, that’s kind of on them. It’s not Congress’ job to stop vulgar t-shirts, which should be fairly obvious from the 1st Amendment. At least the majority got it right.

Filed Under: 1st amendment, erik brunetti, fuct, immoral, lanham act, scandalous, supreme court, trademarks

Senator Hawley Proposes Law To Force Internet Companies To Beg The FTC For Permission To Host Content

Free Speech

from the say-what-now? dept

Senate newbie Josh Hawley has made it clear that he’s no fan of big internet companies and has joined with others in suggesting that Section 230 is somehow to blame for whatever it is he dislikes (it mainly seems to be he thinks the public likes them too much). So now he’s proposed a massively stupid and clearly unconstitutional bill, called the “Ending Support for Internet Censorship Act,” to wipe out CDA 230 protections for large internet platforms. The proposal is shockingly dumb and so obviously unconstitutional it boggles the mind that Hawley is actually a constitutional lawyer.

The bill is pretty straightforward, both in how it operates, and in how misguided it is. If you’re a “big” internet platform — defined as having more than 30 million “active monthly users” in the US or more than 300 million such users globally (or having over $500 million in revenue) — then you automatically lose the protections of CDA 230. You can regain them by making a request to the FTC. In order to get them, you have to pay for an “audit” of your content moderation practices, and pro-actively “prove” via “clear and convincing evidence” that the practices are “politically neutral.” Once the you do that, the FTC would “vote” on whether or not you could get CDA 230 protections, and they would only be granted with a “supermajority vote,” which would mean at least four out of the five commissioners would have to vote for it. Since FTC Commissioners are always 3 to 2 in favor of the political party in the White House, that means any internet company that wants to get approval would need to get at least one commissioner of the non-Presidential party to vote for the immunity as well.

There’s no way this survives constitutional scrutiny (if it actually becomes law, which seems unlikely). The First Amendment pretty clearly says that Congress can’t create a law that (1) forces a company to get approval for its moderation practices and (2) judges content on whether or not it’s deemed “politically neutral.” Also, what the hell does “politically neutral” even mean? It doesn’t mean anything. And, as for “clear and convincing evidence,” tons of people have pointed to clear and convincing evidence that these platforms don’t moderate based on political viewpoints, and yet we still have tons of people insisting they do. Nothing is going to convince some people that the platforms are actively targeting conservatives, no matter how many times evidence to the contrary is presented. Hawley has set up a purposefully impossible standard. As we’ve pointed out, many people still insist that Twitter deciding to kick off literal Nazis is “evidence” of anti-conservative bias. As NetChoice points out, Hawley’s bill would require sites to host KKK propaganda just in order to obtain basic liability protections.

Is Josh Hawley truly arguing that any large website must cater to Nazis if it wants to allow public conversation? Because, damn, dude, that’s a bold call.

This is from the guy who claims to be a “Constitutional Conservative”? Really? His current bio hypes up that he’s a “leading constitutional lawyer” and talks about how he was one of the lead attorneys in the Hobby Lobby case, which was (in part) defending a company’s right to use the First Amendment to refuse to obey certain laws that violated the religious beliefs of their owners. So, apparently, in that case, it’s bad for the government to enforce rules for private businesses — but for other kinds of companies, the government should force them to moderate content in a particular way? I mean, is Hobby Lobby forced to be “politically neutral” in the products it sells in its shops? You’d expect Hawley to be at the front of the line screaming about how awful that would be. Can you imagine the stink that Hawley himself would put up if Congress attempted to force Hobby Lobby to be “politically neutral” in its own actions?

Either way, this law is a non-starter, and once again shows that Hawley isn’t legislating from any position of principle, but is grandstanding clearly unconstitutional ideas in the belief that self-identified “conservatives” hate the big internet companies these days, so any attack on them, no matter how dumb and unconstitutional, must be fine. As TechFreedom points out, this is little more than a fairness doctrine for the internet — something conservatives have been against for decades. Incredibly, for all of the misguided and misleading complaints about how “net neutrality” was the “government takeover of the internet,” Hawley’s bill actually does a bunch of the things that opponents to net neutrality pretended net neutrality would do — and yet, because it’s politically expedient, you can likely bet that many of those who were against net neutrality will now support Hawley’s ridiculous bill.

Filed Under: 1st amendment, cda 230, content moderation, ftc, josh hawley, politically neutral, section 230
Companies: facebook, google, twitter, youtube

Supreme Court Signals Loud And Clear That Social Media Sites Are Not Public Forums That Have To Allow All Speech

Free Speech

from the well-that's-a-nice-surprise dept

Last fall I wrote about the Supreme Court agreeing to hear a case that some argued would allow the Supreme Court to declare that social media sites were public forums thereby limiting their ability to block or ban certain users. A key argument brought forth by many who have been kicked off of various social media platforms is that under a strained reading of both the Pruneyard case (a very narrowly ruled case, establishing malls as public forums) and the Packingham case (which said states cannot create laws that ban people from the internet), is that social media platforms like YouTube, Facebook and Twitter are some sort of quasi-public forums, and therefore the 1st Amendment applies to them as state actors… and therefore they can’t ban anyone or block content. This has never made much sense, and required a pretty twisted reading of those other cases — but there was some thought that this new case might allow the Supreme Court to weigh in on the subject.

The details of the case are a bit involved — and you can read the original post for more details — but the short version is that two producers were fired from a public access channel, Manhattan Neighborhood Network, for criticizing MNN. The two fired producers, DeeDee Halleck and Jesus Melendez, argued that this violated the 1st Amendment, because MNN was set up by New York City’s government, as required by New York State. Thus, there was a strong argument that MNN was a public forum, given the state’s role in creating it. The 2nd Circuit agreed that it was a public forum and MNN appealed to the Supreme Court, raising the specter that if the ruling were allowed to stand, it could end up being applied to the various social media platforms as well, creating quite a mess.

As I wrote in my post about it, this seemed like a stretch as well, since the state’s role in creating MNN was a key factor here, and that was not at all true with social media platforms. I also thought that the Supreme Court would likely rule narrowly and avoid the issue of social media platforms altogether — though, given the political climate, I feared that the Supreme Court would say something stupid on this and create a new mess. Instead, the ruling, which came out earlier this week, went in the opposite direction. While the ruling itself doesn’t directly apply to social media, the Supreme Court actually reversed the 2nd Circuit ruling that declared MNN a public forum, and very strongly hinted that it’s ridiculous to think social media platforms could be considered public forums. And, for all the so-called “conservatives” who have been the most vocal in promoting the theory that social media sites are public fora governed by the 1st Amendment, it might surprise them to find that it was the so-called “conservative Justices” who decided this one, with Kavanaugh writing the opinion, joined by Roberts, Thomas, Alito and Gorsuch — and Sotomayor writing the dissent, joined by Ginsburg, Breyer and Kagan.

Indeed, hysterically, it appears that a key argument made by the majority to argue against a finding of a public forum is one from one of the “conservatives” currently suing a platform. Stay tuned for that tidbit. But first, the decision itself. I was wrong in expecting the court to uphold the 2nd Circuit’s ruling (and my fear was that they would apply it in a way that was too broad). But Kavanaugh and the majority make it clear that they see public forum doctrine to be very, very, very limited. And it doesn’t apply to a public access TV network, even one created by the state.

Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion.

The key to Kavanaugh’s ruling is that to make a private entity a public forum, it needs to take over “powers traditionally exclusively reserved to the State.” The “exclusively” part is what the majority focuses on.

It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.

The Court has stressed that ?very few? functions fall into that category…. Under the Court?s cases, those functions include, for example, running elections and operating a company town…. The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity.

And, the majority says, running a TV station also does not qualify.

The relevant function in this case is operation of public access channels on a cable system. That function has not traditionally and exclusively been performed by government.

And that’s pretty much the ballgame for those arguing for a public forum designation even for this public access channel created by the state. However, Kavanaugh does go further in highlighting why it would be ludicrous to argue that social media sites, for example, would qualify and be subject to the 1st Amendment. As the opinion notes, just hosting a forum for speech does not magically turn you into a government actor hosting a “public forum.” And then Kavanaugh goes even further, directly saying that a private entity can moderate all they’d like:

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine….

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it ?is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.?

And just to drive the point home:

In short, 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.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. ?The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.? … Benjamin Franklin did not have to operate his newspaper as ?a stagecoach, with seats for everyone.? … That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be ?to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.? … The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property

This is less important to the point we’re discussing here, but if you’re wondering why the majority said that even when the state creates the public access channel by law, it does not become a public forum, Kavanaugh explains that this would open up way too many charges of other private entities that require government licensing being charged as a public forum:

Numerous private entities in America obtain government licenses, government contracts, or governmentgranted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities. As this Court?s many stateaction cases amply demonstrate, that is not the law.

And it is noteworthy that the majority opinion makes it clear that some public access channels, if actually operated by the government, could count as a public forum, subject to the 1st Amendment. It just doesn’t think MNN meets that criteria.

Now, here’s the ironic bit. Kavanaugh concludes the opinion with the following:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment.

Cornell Law professor Michael Dorf found that first sentence that I bolded above a bit odd, as Kavanaugh doesn’t quote that line, but just says “it is sometimes said.” So he went hunting for where that quote originated, and it turns out that it originated with Dennis Prager.

Remember Dennis Prager? He was actually one of the first to file a lawsuit making the ridiculous claim that YouTube is a public forum, subject to the First Amendment (after YouTube put just a small percentage of his videos into “restricted mode” and Prager freaked out, claiming “anti-conservative bias” despite the fact that YouTube put a far higher percentage of videos on what most people would consider to be more “liberal” channels into the very same restricted mode). Prager’s lawsuit was laughed out of court, but it is still cited all the time by people who claim (1) anti-conservative bias by the platforms, and (2) that platforms are a public forum, and therefore subject to the First Amendment. Indeed, this is from Prager’s original complaint:

Despite their control and regulation of one of the largest forums for public speech and expression in California, the United States, and the world, Google/YouTube regulate and censor speech as if the laws governing free speech and commerce do not apply to it. In so doing, Defendants believe that they have unfettered, unbridled, and unrestricted power to censor speech or discriminate against public speakers at their whim for any reason, including their animus toward and political viewpoints of their public users and providers of video content, because Defendants are for profit organizations rather than governmental entities.

Google/YouTube are wrong. As the California Supreme Court has stated: ?[t]he idea that private property can constitute a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks? has long been the law in California. Fashion Valley Mall, LLC v. N.L.R.B. (2007) 42 Cal.4th 850, 858. The United States Supreme Court also recognized more than a half-century ago that the right to free speech guaranteed by the First Amendment to the United States Constitution can apply even on privately owned property. One of the most important places to exchange and express views is cyberspace, particularly social media, where users engage in a wide array of protected First Amendment activity on any number of diverse topics. And because the ?[i]nternet?s forces and directions are so new, so protean, and so far reaching,? however, the U.S. Supreme Court warned that the law must be conscious that what it says today about the characteristics of a forum or free speech medium may be obsolete tomorrow. See Packingham v. North Carolina, 137 S.Ct. 1730, 1735-38 (2017).

So, boy, is it ever ironic that in a Supreme Court ruling that completely and utterly debunks Prager’s own legal theory, the “conservative” wing of the Supreme Court quotes (without citation) a line from Prager to defend why Prager is laughably wrong. That’s delicious.

Oh, and just in case the folks arguing that social media is a public forum think the dissenting “liberal” judges might save them here, that’s not going to fly either. From Sotomayor’s dissent:

In addition, there are purely private spaces, where the First Amendment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views…. In these settings, there is no First Amendment right against viewpoint discrimination.

So, uh, yeah. If you’re arguing that private platforms like Facebook, YouTube and Twitter are magically “public fora” even as the Supreme Court is rejecting that designation for a public access channel that was literally created by the state, suffice it to say that you’re argument is not going to go very far.

Filed Under: 1st amendment, free speech, public forum, scotus, supreme court

Court: Arresting A Driver For Shouting 'Fuck You' Out The Window At A Nearby State Trooper Is Unconstitutional

Free Speech

from the because-duh dept

Slowly but surely, law enforcement officers are being made to understand that speech they don’t like isn’t illegal speech. I mean, several of them likely already know this but they’re willing to roll the dice on a lawsuit rather than endure a minimal hit to their self-image.

This isn’t to say it’s a good idea to give cops the finger or tell them to go fuck themselves. This is just to say that doing these things isn’t a crime. It’s protected speech. Cops aren’t obliged to serve and protect citizens. That’s just a cool slogan to paint on the side of cruisers. But they are obligated to uphold Constitutional rights, which is something they seem to have a hard time doing.

Courts have reminded cops that flipping the bird isn’t an arrestable offense. It’s protected speech. They’ve also reminded cops that this is a form of protected criticism, as crude as it is. The very heart of First Amendment protections is the right of citizens to criticize their government. Sometimes criticism takes the form of a fleeting f-bomb from a passing vehicle.

Here’s how this latest reminder starts, courtesy of the Eighth Circuit Court of Appeals [PDF]:

In 2015, Trooper Cross was performing a routine traffic stop on a van pulled to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard Thurairajah, who was driving by, yell “f**k you!” out of his car window. The van’s occupants were a mother and her two young children. Thurairajah was driving at about 35 miles-per-hour on the far lane of the road moving in the opposite direction. Trooper Cross observed the two children in the van react to the yell.

Trooper Lagarian Cross should have let the story end there. At best, the story could have made it way back to the station with some embellishment and resentful commentary about ungrateful citizens and their big mouths. Instead, Trooper Cross did this:

Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas’s disorderly conduct law. Trooper Cross believed the shout constituted “unreasonable or excessive noise” under the law.

A stupid response to a stupid move. The arrestee spent several hours in jail before all charges were dropped. Thurairajah sued Trooper Cross and prevailed in the lower court. The trooper appealed. The Appeals Court doesn’t have any good news for him.

Cross argued he was entitled to qualified immunity because he reasonably believed Thurairajah’s “fuck you!” violated the law. The Appeals Court takes a not-so-subtle dig at the trooper’s rationale when discussing his arguments.

In other words, Trooper Cross is protected by qualified immunity if a reasonable officer in his shoes would have reasonably believed, even if mistaken, based on objective facts, that Thurairajah was violating the disorderly conduct statute’s excessive noise prohibition by shouting the two-word insult from a moving vehicle with an unamplified human voice.

The hinting at the ridiculousness of the trooper’s argument is followed by some case law, which shows there’s nothing on the books backing the trooper’s “reasonable officer” assertions.

Under the statute, the verbal content of Thurairajah’s yell is irrelevant. The statute does not penalize offensive speech, only unreasonable or excessive noise. Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision. To be sure shouting can form the basis of disorderly conduct. Those cases where shouting was part of a scenario that resulted in a finding of disorderly conduct, however, involved extended loud shouting and disruptive behavior or amplified sound. As the district court noted, context matters in analyzing the facts. In no case, has a two-word unamplified outburst constituted disorderly conduct.

It’s not even close.

Thurairajah’s shout was unamplified and fleeting, no crowd gathered because of it, city traffic was not affected, no complaints were lodged by anyone in the community, business was not interrupted, nor were an officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was not an unreasonable or excessive noise.

That’s the Fourth Amendment violation — depriving the passing driver of his freedom with a completely bogus arrest. Then there’s the First Amendment violation. Thurairajah claimed the arrest was a retaliatory response to his protected, two-word criticism of Trooper Cross. The court agrees.

First, Thurairajah’s profane shout was protected activity. See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971) (holding where defendant walked through courthouse corridor wearing jacket bearing the words “F**k the Draft” in place where women and children were present and no showed no intent to incite disobedience to or disrupt the draft, state lacked power to punish defendant for underlying content of message the inscription conveyed). Second, Trooper Cross’s arrest was an action that would chill continued activity by a person of ordinary firmness. As we recognized in Hoyland, “there can be little doubt that being arrested for exercising the right to free speech would chill a person of ordinary firmness from exercising that right in the future.” And, according to a fair reading of Trooper Cross’s affidavit, the arrest was motivated, at least in part, by the content of the shout. Finally, as discussed above, Cross had neither probable cause nor arguable probable cause to arrest Thurairajah.

That’s all four prongs of the free speech retaliation test. And there’s no squeaking out of this, thanks to limited case law. Both rights were clearly established at the point Trooper Cross decided to terminate a traffic stop and arrest a passing driver for his drive-by f-bomb. Cross is headed back to the lower court to face the consequences of his stupid, retaliatory actions.

Filed Under: 1st amendment, 8th circuit, eric thurairajah, free speech, lagarian cross, police, retaliatory arrest

Republicans Blame CDA 230 For Letting Platforms Censor Too Much; Democrats Blame CDA 230 For Platforms Not Censoring Enough

Free Speech

from the which-is-it? dept

It certainly appears that politicians on both sides of the political aisle have decided that if they can agree on one thing, it’s that social media companies are bad, and that they’re bad because of Section 230, and that needs to change. The problem, of course, is that beyond that point of agreement, they actually disagree entirely on the reasons why. On the Republican side, you have people like Rep. Louis Gohmert and Senator Ted Cruz who are upset about platforms using Section 230’s protections to allow them to moderate content that those platforms find objectionable. Cruz and Gohmert want to amend CDA 230 to say that’s not allowed.

Meanwhile, on the Democratic side, we’ve seen Nancy Pelosi attack CDA 230, incorrectly saying that it’s somehow a “gift” to the tech industry because it allows them not to moderate content. Pelosi’s big complaint is that the platforms aren’t censoring enough, and she blames 230 for that, while the Republicans are saying the platforms are censoring too much — and incredibly, both are saying this is the fault of CDA 230.

Now another powerful Democrat, Rep. Frank Pallone, the chair of the House Energy and Commerce Committee (which has some level of “oversight” over the internet) has sided with Pelosi in attacking CDA 230 and arguing that companies are using it “as a shield” to not remove things like the doctored video of Pelosi:

But, of course, the contrasting (and contradictory) positions of these grandstanding politicians on both sides of the aisle should — by itself — demonstrate why mucking with Section 230 is so dangerous. The whole point and value of Section 230 was in how it crafted the incentive structure. Again, it’s important to read both parts of part (c) of Section 230, because the two elements work together to deal with both of the issues described above.

(c) Protection for ?Good Samaritan? blocking and screening of offensive material

(1) Treatment of publisher or speaker
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.

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of?

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

It’s these two elements together that make Section 230 so powerful. The first says that we don’t blame the platform for any of the actions/content posted by users. This should be fairly straightforward. It’s about the proper application of liability to the party who actually violated the law, and not the tools and services they used to violate the law. Some people want to change this, but much of that push is coming from lawyers who just want the bigger pockets to sue. It involves, what I’ve referred to as “Steve Dallas lawsuits” after the character in the classic comic strip Bloom County, who explains why you should always focused on suing those with the deepest pockets, no matter how tangentially they are to the law violating.

But, part (2) of the law is also important. It’s the part that actually allows platforms the ability to moderate. Section 230 was an explicit response to the ruling in Stratton Oakmont v. Prodigy, in which a NY state judge ruled that because Prodigy wanted to provide a “family friendly” service, and therefore moderated out content it found objectionable (in order to support that “family friendly” goal), it therefore became automatically liable for any of the content that was left up. But, of course, that’s crazy. The end result of such a rule would be either that platforms wouldn’t do anything to moderate content, which would mean everything would be a total free for all — and you couldn’t have a “family friendly” forum at all, and everything would quickly fill up with spam/porn/harassment/abuse/etc — or platforms would basically restrict almost everything to create a totally anodyne and boring existence.

The genius of Section 230 is that it enabled a balance that allowed for experimentation and this includes the ability to experiment with different forms of moderation. Everyone focuses on Facebook, YouTube and Twitter — which all take moderately different approaches — but having a Section 230 is also what allowed for the radically different approaches taken by other sites: like Wikipedia and Reddit (and even us at Techdirt). These use very different approaches, some of which work better than others, but much of which is community-dependent. It’s that experimentation that is good.

But the very fact that both sides of the political aisle seem to be attacking CDA 230 but for completely opposite reasons really should highlight why messing with CDA 230 would be such a disaster. If Congress moves the law in the direction that Gohmert/Cruz want, then you’d likely get many fewer platforms, and some would just be overrun by messes, while others would be locked down and barely usable. If Congress moves the law in the direction that Pelosi/Pallone seem to want, then you would end up with effectively the same result: much greater censorship as companies try to avoid liability.

Neither solution is a good one, and neither would truly satisfy the critics in the first place. That’s part of the reason why this debate is so silly. Everyone’s mad at these platforms for how they moderate, but what they’re really mad at is humanity. Sometimes people say mean and awful things. Or they spread disinformation. Or defamation. And those are real concerns. But there need to be better ways of dealing with it than Congress stepping in (against the restriction put on it by the 1st Amendment), and saying that the internet platforms themselves either must police humanity… or need to stop policing humanity altogether. Neither is a solution to the problems of humanity.

Filed Under: cda 230, censorship, content moderation, frank pallone, louis gohmert, nancy pelosi, section 230, ted cruz