Cathy Gellis 's Techdirt Comments

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  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 06:30am

    It absolutely was a lawsuit dreamed up by cynical, hateful people. HOWEVER...

    It absolutely was a lawsuit dreamed up by cynical, hateful people. HOWEVER, if the Court manages to refuse to take the bait to codify their hate and instead focuses just on the speech angle, the irony is that it could produce a decision that will ultimately help better protect everyone's rights (including those who need to be able to speak out against discrimination).

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 06:27am

    The copyright issue actually cuts the other way

    "The webdesigner isn’t expressing the views of the client in the same way that they don’t own the copyright to the material if they were commissioned to do the design as work for hire. The typesetter is not exercising editorial discretion, they are doing work for hire. It can be creative work but it’s not editorial discretion. The typesetter isn’t speaking." Unless clearly specified in the contract, the web designer WOULD own the copyright in the website. In fact, people get copyright in their web designs all the time because law recognizes them as expressive enough to qualify. So if it is expressive enough to qualify for copyright, how could it not also be expressive enough to get First Amendment protection? (And even if the contract did make it a work for hire, it would only give the client the copyright, not obviate the copyrightability, because copyright law still inherently sees websites as expressive.)

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 06:16am

    CO law

    I don't think the law itself is so limited. Some justices did explore whether the law might be ok if she really was selling a cookie cutter website that people could buy and customize, and maybe the answer is yes, because at that point she's done all the expression she's going to do and no more. Like, if an author sells a book that the customer doodles on, the author wouldn't have standing to object to being associated with the message of the doodle. But here the plaintiff fears being forced to continue to create more expression, so it would be more like being able to force a ghostwriter to continue to write a book for you.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 06:08am

    EXPRESSIVE services

    The key in this case is that she doesn't want to provide EXPRESSIVE services to all of her clients. That expressive nature of what she's being asked to do is the key, and what differentiates it from other right of association cases. (People - justices included - do get bogged down with questions of whether other acts, like seating in a restaurant or baking a cake is inherently expressive, and those questions are more thorny. But this one - making a website - should be easy, and thus not implicate right of association at all, as those other cases are more likely to because their expressive quality is less clear.)

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 06:01am

    The replies here seem to have it

    "The 'expression' argument further doesn’t hold water because the job a web designer is being hired for is generally not to write the message on the site it is to provide help with formatting and display of that message and provide the tools for the customer to write it or transcribe it themselves." The crux of the issue (and the one that makes this case so important for issues we discuss here at Techdirt) is whether building a website is an inherently expressive act, or simply non-expressive labor. If the latter, then maybe the right to free exercise of religion or free association would matter to the disposition of this case. But the real issue in this case is how much we need the Court to recognize it as the former. Not just for this case, but for every other attempt by government to regulate our online speech.

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 05:56am

    You missed a key paragraph

    See "And it is indeed ripe: while some have criticized the pre-enforcement challenge of the Colorado law, because ordinarily a plaintiff can only challenge a law that has already caused an injury, standing doctrine has long recognized how constitutionally untenable it would be to allow laws to create expressive injury and then have the courts say “oops.” When it comes to free expression, pre-enforcement challenges are often necessary and therefore permitted. While some justices fretted at oral argument that the pre-enforcement challenge left only a sparse record for review, it is independently important for the Supreme Court not to be deterred by the posture of this case and to reaffirm the ability to bring pre-enforcement challenges of laws that threaten free expression."

  • On the post: The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

    Cathy Gellis ( profile ), 09 Dec, 2022 @ 05:54am

    No, it's not

    That hypo implicates the right of association, and I suggest (see the "red herring" paragraph in particular) that's not the applicable analytical framework for this particular case, in part because that's where the justices who are more ok with discrimination are likely to do real damage if they rule this way. It will be much better to protect the discriminated if they steer clear of this issue, which isn't necessary to reach here anyway.

  • On the post: Vosburg V. Putney, Leg Amputations, And The Overly-Censorial DMCA Notice

    Cathy Gellis ( profile ), 06 Apr, 2022 @ 09:45pm

    Back to the future

    It is not a decision that is an artifact of its time, which is why they still teach this case when teaching torts even in the 21st century, because the principle is applicable. It's also not clear the court (or anyone) back then knew it was a problem with bone sepsis. That was speculation made by a friend with medical knowledge when I recounted the case to him.

  • On the post: The State Of The World, And Why We Need Section 230

    Cathy Gellis ( profile ), 02 Mar, 2022 @ 12:22pm

    Several points

    It's not insulting. It's the upshot of what you point out. I can't tell you how many Europeans speak of "balancing" speech. And I don't think it's unfair to think that any approach that allows speech to ever be subordinated like that is an approach that reflects limits in how much it is valued. Also, re: WWII, I disagree, mostly. There was some tech investment that came from the military and went through schools that then affected what tech businesses were spawned (ex: HP). But there are also differences in corporate laws, employment law, and other ancillary law that bear on how easy it is to launch a start-up in the US and EU. (But the liability protection differences also matter a lot.)

  • On the post: The State Of The World, And Why We Need Section 230

    Cathy Gellis ( profile ), 02 Mar, 2022 @ 04:31am

    Europe v US

    That's a common view but I don't think I quite buy it. I think a bigger reason for no 230 in, say, Europe, is that, at least in Europe, there was the ecommerce directive, which swallowed up all the oxygen, just good enough that there could be nothing better. I also don't think that culturally the EU has taken speech protection as seriously as in the US overall. It pays lip service to the idea, but is perfectly willing to throw it under the bus culturally and legally whenever the issues get sticky. (In the US we also sometimes do culturally, but the law is more hardened in favor of speech protection.) You may have a point about lawsuit frequency, but then again there are also conspicuously fewer European start-ups in Europe (although there several reasons for that).

  • On the post: Wherein The Copia Institute Tells The Eleventh Circuit That Florida's SB 7072 Law Violates Our Rights

    Cathy Gellis ( profile ), 17 Nov, 2021 @ 06:25pm

    Re: Re:

    230 protects platforms for liability arising from user-generated content. But the point the brief makes is that we need that protection both for when we're the platform, hosting others' user-generated content (such as in the comments), and also when we're the user spreading our message via other platforms, or even hosting user communities on other platforms, which all need Section 230 in order to be available to us.

  • On the post: Congress Tries To Ram The Ill-informed INFORM Bill Into The Must-pass NDAA

    Cathy Gellis ( profile ), 08 Nov, 2021 @ 05:14pm

    Re: Bit rot happens.

    ACTUALLY... While I appreciate the defense, the reality is that I have had training in print media. Then later became a blogger. THEN later became a lawyer... Should NDAA have been spelled out? Maybe. But not necessarily. The article isn't about the NDAA, and I didn't want to down out the technical details I did want to explain about INFORM with additional technical details that weren't necessary to understanding what's wrong with this bill. Plus when people do refer to the NDAA they often do by acronym, rather than by its full name. The only reason to mention it here is so people recognize it as one of these must-pass bills once news about it comes to the fore. But otherwise the NDAA is of little importance to this post.

  • On the post: Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

    Cathy Gellis ( profile ), 04 Nov, 2021 @ 08:29am

    Re: Re: Re: Re: Why should triggering a panic be legal?

    No, I'm sorry, but you'd have to leap over a lot of precedential language to find it illegal. For instance, it presumes too much to even complain the cry was false. You'd need more than that, like an indifference to the falsity, a la NY Times v. Sullivan.

  • On the post: Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

    Cathy Gellis ( profile ), 29 Oct, 2021 @ 09:03am

    Re: Re: Laugh Out Loud Out Loud

    https://www.youtube.com/watch?v=ohDB5gbtaEQ

  • On the post: Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

    Cathy Gellis ( profile ), 29 Oct, 2021 @ 07:42am

    Re: Re: Why should triggering a panic be legal?

    The issue is that even if it should be illegal, that question was never adjudicated. Holmes just made it up. And it's important to litigate it, before making it the rule, because as I and others have pointed out, you don't want a rule that will deter people from crying out when there really is a fire. In any case, you can argue that it should be the rule all you want. But the main point of the post is that it is absolutely wrong to suggest that it's what the rule IS.

  • On the post: Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

    Cathy Gellis ( profile ), 28 Oct, 2021 @ 12:15pm

    Re: This argument tends to remind me

    I get your point but don't agree that it's just a pedantic distinction. I don't think people cite the trope out of a general sense that perhaps certain speech SHOULD trigger some sort of consequence; I think they cite it because they think it DOES. And because they think it does, they can't understand why we can't just have some more regulation to punish other bad speech they think is similar. And so the regulatory conversation is not one about whether that should be that rule, but a more ignorant tug-of-war between those who think such regulation is absolutely already legally on the table and those who better understand the actual reality that it's not. Which means we can never have a useful conversation about what the regulation should be since we're not all on the same page about how much would need to change to get there (and also why that much change would likely be bad).

  • On the post: Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

    Cathy Gellis ( profile ), 28 Oct, 2021 @ 12:03pm

    Re:

    Thanks, fixed.

  • On the post: Why Section 230 'Reform' Effectively Means Section 230 Repeal

    Cathy Gellis ( profile ), 12 Oct, 2021 @ 11:52am

    Re:

    I meant literally "non-profit" organizations like Wikimedia, as opposed to for-profit commercial enterprises like Twitter.

  • On the post: Locast Shuts Down, As Yet Again A Bad Interpretation Of Copyright Law Makes The World Worse

    Cathy Gellis ( profile ), 08 Oct, 2021 @ 03:29pm

    Re:

    Following the law is asking for a lawsuit? The problem here isn't actually with the law; it's that the court ignored it and replaced it with its own different law instead.

  • On the post: Locast Shuts Down, As Yet Again A Bad Interpretation Of Copyright Law Makes The World Worse

    Cathy Gellis ( profile ), 08 Oct, 2021 @ 12:50pm

    Re: why would nbc,cbs, not want more people to view their advert

    That may be a consideration, but the explanation may instead be that they are trying to extract more money from cable retransmission agreements, and if there's a free alternative, then those deals will be less lucrative for them. In other words, it weakens their monopoly. Which is what this statutory provision expressly was going to do.

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