In recent years, major media organizations have been lobbying Congress to enact legislation, the “Journalism Competition and Preservation Act,” requiring search engine providers to engage in a form of collective bargaining about the tax they would pay to media publishers for the privilege of providing links to their news articles, backed up by mandatory interest arbitration in which the thumb would be placed on the scales by simply assuming that the search engine companies could not refuse to provide links and would be required to pay something. The contention of the “News Media Alliance”  has been that the search engines take value (access to news reporting that is expensive to produce) and provide nothing in return.

I have never been persuaded by the arguments for this bill, so I have long argued against it (and Public Citizen has never taken a position). Yes, news is expensive to produce (especially quality news), and the pervasiveness of online advertising has destroyed a major source of the media’s former revenue stream. Moreover, journalism is a social good that is vital to our democracy, at the local level as well as nationally, and it needs to be supported somehow (I put my money where my mouth is – our own family gets two newspapers in the dead tree edition every morning, and we subscribe to other publications).

But it always seemed to me that search engines provide value to the media – traffic to media websites,. Beyond that I am troubled by the First Amendment implications of creating a modern version of the tort of “hot news misappropriation,” not to speak of the “compelled speech” implications of requiring search engine companies to provide links and payments to speakers whose content they might abhor.  (The proposed statute would make it illegal for search engines to deny links to any entity represented in the collective bargaining process).

And it is easy to see through the news media’s economic argument. Such simple devices as robots.txt, “noindex,” and password protection could wall off any news media web page from search engines. But no media companies were doing that, because they WANT the traffic delivered by search engines. So it has always been clear that the media recognized the value of being seen by search engines.

The Ugly Truth

And now they admit it.

Now that the media feel threatened by new AI Search tools, which would deliver whole paragraphs in answer to search engine queries, the media industry’s lies about the economics of their relationship with search engines have been revealed.

The New York Times carries a story this morning, “Publishers Gird for Threat from A.I.” that includes these revealing admissions.

“Content publishers have an uneven but largely reciprocal relationship with search engines. The search sites benefit from having trusted sources of information in the results, and the publishers benefit from the traffic to their sites that the search engines generate.

“Search traffic from Google accounts for half of overall visits, or more, to many sites, said Brian Morrissey, who writes The Rebooting, a media business newsletter.

‘Search has been the mainstay of the publishing business on the internet,’ he said.”

And then there is this

“Kyle Sutton, director of search and product at the newspaper publisher Gannett, said the relationship had, until now, been mutually beneficial.

‘While all search results are taking from our data and, from our perspective, crawling our content, aggregating our content, there is the return there of them driving traffic to our site,’ Mr. Sutton said. ‘So I think that relationship is kind of first and foremost what we want to see maintained.’”

It would be worth looking to past hearings on the JCPA to see whether Sutton (or anybody else from Gannett) has testified under oath in contradiction to these startling admissions.

Legislation for the Future

The Times story indicates that the longtime sponsors of the JCPA plan to reintroduce that bill this week, but why? The news media now admit that they like the status quo; the JCPA would disrupt it. Of course, members of Congress love their media endorsements, so their willingness to truckle to local media should not be underestimated. But it makes sense to put a hold on the JCPA and think about a different kind of legislation.

Unlike search snippets, the delivery of entire paragraphs implicates copyright, without any need to create a new cause of action. And either an economic or a statutory compromise may be needed to avoid years of litigation over whether the replication of entire paragraphs of copyrighted text qualifies as fair use. Those considerations can only be resolved after years of high-stakes litigation and damages awards, as lower courts decide cases, legal tests develop, circuits disagree, and the Supreme Court weighs in, perhaps more than once.

Search engine operators and media groupings may want to enter into negotiations about the forms of payment that are required when entire paragraphs are being copied. A statute embodying such standards might take the form of compulsory licensing and some system of assessing appropriate payments for use, not just to the news media but to other sources of substantial online content.

The standards that are set by such discussions could well influence the fair use analysis as applied to non-participants, comparable to the models that the “Best Practices” initiatives  pioneered by Peter Jaszi and his colleagues in American University’s Program on Information Justice and Intellectual Property  have set in several areas of the law. The compensation systems set by such negotiations might also establish a market standard for lost license fees to be awarded in copyright litigation.

Paul Alan Levy is an attorney for Public Citizen Litigation Group. This post originally appeared on its Consumer Law & Policy blog, and is reposted here with permission.

Background

First of all, corporations enjoy First Amendment protections, among other constitutional protections. Although some of my friends decry that proposition, given the Supreme Court’s current composition, that is not going to change during my lifetime. And the First Amendment protects the right to refuse to associate with speech one does not like. There is only so much that legislation could do to prevent companies like Twitter from controlling the speech that they allow.

Second, withdrawing or adapting the section 230 liability shield is one way to impose limits on platform’s adoption or implementation of their content control policies, perhaps, but there is no reason to think that any withdrawal that is likely to pass, and that would be constitutional (because it does not involve viewpoint discrimination), would be better than the current state of affairs. Moreover, that would be a very blunt instrument that could not easily be calibrated. I strongly support the principles of section 230, which allow online platforms to decide what speech they will allow on their platforms by protecting them against liability for speech that they carry (with very limited exceptions). They are not common carriers, like USPS or the PSTN’s. (Thus, Apple and Google could cabin Parler by threatening to deny it access to the App and Play Stores, and Amazon could deny Parler web hosting services, all on the ground that Parler failed to successfully enforce rules against advocacy of political violence. I find it mind-boggling that people who call themselves “conservative” are railing about the plug being pulled on a platform for the stated reason that it allegedly fails to block calls for political violence). And they are not government bodies, which are (largely) forbidden to engage in content discrimination, and especially viewpoint discrimination, in allowing or suppressing speech. Section 230, both as a legal principle but also as a social principle, not only allows platforms to tolerate speech that I find abhorrent, but also allows them to exclude speech that I detest, or speech that I adore.

Third, the drafters of section 230 recognized that platforms would have content policies, and considered it desirable for them to have content policies. Indeed, you can’t run a platform without content policies. Anybody who has ever tried to moderate a discussion group will fully appreciate these considerations. And content moderation is HARD. The periodic “COMO” sessions addressing “Content Moderation at Scale” explored the difficulties through a series of hypotheticals. What became clear is that people of good will, even those with relatively common policy perspectives, trying to apply even the best of content policies, will get it wrong sometimes – and that is even if they have lots of time to evaluate a single statement.

It is inevitable that different platforms will take different stances about what speech they will tolerate and what speech they will exclude—in part because of the audiences at which they aim.

The Reasons for Banning Trump

Turning to Twitter, and to Trump in particular: Twitter has for many years had a variety of rules about speech that may and may not be posted to Twitter, which they call their trust and safety guidelines. This includes a ban on speech glorifying or promoting violence; it also includes a ban on false statements about the election. (Many years ago I was asked if I would be willing to be on their outside trust and safety council; I decided it would not be appropriate for me to do that for a number of reasons).

I have never been a fan of social media companies trying to assess the truth or falsity of factual statements, or the hurtfulness of opinions and rhetoric deployed there. The assumption of such a role is likely to lead to the suppression of voices that criticize the rich and powerful (that is, those who can afford to hire lawyers to file baseless lawsuits, or who can deploy government power to attack their critics), or on abusive law enforcement officials themselves. But Trump’s misuse of Twitter and other platforms to foment a violent attack on democratic elections has taken matters to another level.

In the weeks leading up to the attack by a mob of Trump supporters on the Congress, Trump used both tweets and other public communications to try to steal the election from his victorious opponents. At the same time, he tried to use his connections with officials in several states where he had lost to induce them to overturn his losses in those states. Then, with his campaign of frivolous litigation and threats to state election officials having come to naught, he and his mouthpieces escalated heir attack on democratic elections, encouraging his supporters to engage in a physical confrontation with members of Congress in an apparent effort to delay the certification of his electoral college loss. There is every reason to believe that many of the supporters who tried to storm the Capitol believed that they were acting at Trump’s behest, and some analyses suggest that Trump’s language was carefully calculated to encourage the supporters to use violence. My reading of the language leads me to conclude that the calls for violence were insufficiently expressed to make them indictable under the standards set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969), just as my view is that his threats to Georgia state election officials, on a recording, fell short of criminal threats or incitement.

Assuming, as I do, Trump cannot be held legally responsible for inciting the riot, he was still morally responsible for it. And even assuming, as I do, that he cannot be convicted for these communications, that doesn’t mean that a private company, unbound by First Amendment standards, would be unjustified in deeming them a gross violation of its policies against advocating or glorifying violence, and hence treating them as a proper basis for denying him a platform. Platforms are expected to withdraw the accounts of members of the public who repeatedly abuse their access to infringe copyright—indeed, the DMCA gives them a powerful legal incentive to do so. (In my legal practice, I have had to deal with web hosting services that were considering removal of consumer-friendly platforms that were receiving bogus claims othat my clients were hosting defamation or other tortious speech. Despite their section 230 protection, they often simply did not want to deal with the trouble).

In that context, it is no surprise that a platform cancelled the account of a politician who repeatedly abused his access to foment a riot. And Trump, after all, is wealthy enough, and remains powerful enough, to use other means to amplify his speech. Indeed, he has one mainstream news channel and several smaller ones that are dying to carry his speech.

But, at the same time, Twitter has allowed exceptions to those rules, and one very prominent exception is that senior government officials, particularly heads of state, are given more leeway on the theory that there is public interest in letting the public know what such people are saying. As a practical matter, Trump has had almost complete immunity from the sorts of restrictions that constrained other Twitter users. Much of what he has posted was a gross violation of Twitter’s rules, but he was allowed to get away with it. Note that Trump’s hold on the special exception is due to expire on January 20.

What I think has really happened is that, for a variety of reasons, Twitter decided to take away Trump’s special exception, and his ban — based on a range of past conduct — was the inevitable result of that change of position. Twitter has both taken away the special exception a few days early, and made its decision retroactive. Considering the way in which Trump managed to use his bully pulpit to incite a violent attack on Congress that was aimed at overturning a democratic election in which he was defeated, that seems to me to be within the range of understandable reaction.

Twitter’s Obfuscation

But the reasons that Twitter gave for its decision strike me as laughable – recall he was suspended for 24 hours, then allowed back on the condition that he delete certain tweets and stop violating the rules. He did delete the tweets in question, and to my mind nothing he did after being reinstated violated their rules. He gave appearance of trying to satisfy them.

Twitter’s blog post explaining the Trump ban, asserted that two Trump tweets violated their rules against glorifying violence. But the two posts they quoted did nothing to “glorify" violence” What this comes down to is that Twitter says Trump has been banned because some of his supporters (in unspecified instances) are allegedly reading his post-suspension tweets in various dangerous ways. And misreading what he said, I might add.

One of the tweets praised his supporters — the 75,000,000 voters who supported him. He called them patriots. He said they should be respected and should continue to have a loud voice. That does not encourage violence.

The other tweet said he won’t be at the inauguration. Yes, a break with tradition, but maybe the best response is, good riddance!

Twitter says (and some other reports have echoed these concerns) that there are plans for armed protests and another attack on the Capitol. That is of great concern. But Twitter does not say that Trump is involved in that planning or that he tweeted anything about them. I did notice in passing a report that, after his initial 12-hour suspension was lifted, Trump had retweeted some of those statements. But the report also said that Twitter had cited those retweets in its decision and plainly it has not, so the fact-checking of the report is suspect. I have not been able to locate the report. And, because the Twitter account has been deleted in its entirety, I can’t verify the report (and I have not been able to find any screenshots).

Now, when Twitter justifies its decisions by relying on tweets that do not, in actuality, violate its rules, it just tends to suggest that what it has done is arbitrary. And that is not useful.

What May Really Be the Reasons

It appears to me that Twitter’s official views on Trump’s status evolved very quickly in the past week. Although top executives felt that so long as he was president he should continue to enjoy his special exception, Twitter staff apparently were very much of a different opinion, and forcefully so. There was apparently a staff petition, and then a large intra-staff meeting, in which Twitter’s top executives were raked over the coals by their staff for their inaction against the Trump account. That may well have mattered.

Additionally, Twitter was facing intense pressure on Capitol Hill and in the public arena to be more forceful about Trump’s incitement of the attach on the Capitol, and I believe they were genuinely concerned that, left with his Twitter account, he might well have used it to incite further violence on January 17 (Q being the 17th letter of the alphabet) and January 20. Not because the two tweets did that, but because the guy is out of control. The explanatory blog post refers to the covert planning for January 17 and January 20 repeat attacks, and I think it is quite possible that Twitter was worried that Trump might abuse his privileges. I wish the company had just said that (comparable to Facebook’s explanation) and said that, in retrospect, they had decided that its initial sanction for Trump’s previous violations of its rules was not sufficiently severe.

Perhaps More Cynical Explanations

First: Both Twitter and Facebook have cut back on Trump knowing that he is not going to have the powers of the presidency much longer, and that, indeed, both the White House and, soon, both Houses of Congress are going to be in Democratic hands. Just as they went out of their way to propitiate conservatives who claim (falsely) that social media companies discriminate disproportionately against conservatives, while those conservatives ran the Senate and the White House, these companies don’t want to be adverse to the new power in DC.

Second, and this is a related point: Trump liked to talk about how much benefit he derived from his Twitter account, but the converse is also true: Twitter has profited enormously from Trump’s account, which creates enormous controversy and hence draws many eyes to Twitter where they will see ads. A number of people in the tech sector have been saying that the situation has simply evolved to the point where the benefits that Twitter was getting from hosting @realDonaldTrump were getting to be greatly exceeded by the costs.

Third: One exception to section 230 immunity is for speech that violates the federal criminal laws. Some people have suggested that federal law enforcement officials may have reached out to Twitter to warn that if its facilities are used to incite more riots in Washington DC, such as on January 17 and January 20, it might face grand jury scrutiny. Now, to my mind the First Amendment’s Brandenburg standard would likely bar prosecution for mere passive hosting of prosecutable incitement; the Brandenburg standard requires not just incitement of imminent lawless conduct, but intent to incite imminent lawless conduct, and passive hosting of speech of which the host is not aware does not involve intent. But the possible exposure without section 230 immunity, and needing to rely only on the First Amendment, might well have been a chastening factor.

Paul Alan Levy is a free speech litigator in Washington DC

One of the hard lessons that I have learned over my years of practice is that, although some lawyers believe that they can increase the in terrorem effect of a complaint or a demand letter by piling on claims, the net effect of adding silly assertions can be to make things worse for your own client and not better. That may be true as well of the demand letter recently sent by David Vance Lucas of Bradley Arant Boult Cummings on behalf of their client, ProctorU.

Criticisms and Demand Letter

The saga begins with a faculty association at the University of California at Santa Barbara, which heard about a potential problem with the data-sharing policies of ProctorU, a business that provides internet-based test monitoring services. The group took a look at the ProctorU privacy policies and did not like what they saw ? in their view, it provided too little specificity about the limitations on data-sharing, and no protection for the data in the event that ProctorU were to go into bankruptcy or merge, possibly without restrictions on use of the data. And online discussions by students subject to ProctorU monitoring have shared a variety of concerns about the creepy nature of ProctorU?s interventions; the students were plainly worried about the attending possibility of data accumulation. The faculty association voiced its concerns in a letter to the leadership of the University of California at Santa Barbara, urging them to stop using ProctorU and to avoid using ?any other private service that either sells or makes students? data available to third parties.? The letter was discussed in a story in the school?s student newspaper.

It is apparently ProctorU?s position that the faculty association?s concerns are overwrought. I have no opinion about that dispute. But instead of simply saying so, ProctorU hired attorney Lucas, who sent a blistering demand letter to the faculty group, accusing it of defamation, of linking to ProctorU?s web site without permission (so what?), of copyright and trademark infringement, of a bad faith violation of the federal anti-cybersquatting law (ACPA), and of willfully interfering with efforts to mitigate civil disruptions stemming from the COVID-19 pandemic. Without quite meeting the faculty criticisms, the letter provided a restatement of the ProctorU privacy policy from a sanitized perspective, and on that basis demanded that the faculty group stop its ?misrepresentation and misstatement? of the privacy policies; retract the complaints; and agree never to use ProctorU?s ?family of marks and copyrighted materials.? In subsequent correspondence, Lucas has demanded that each member of the faculty group?s board sign a groveling letter in which they would have to take personal responsibility for the group?s criticisms, admit that many of statements for which they would be taking personal responsibility were false, endorse Lucas? unproven assertions about his client?s privacy practices, and retract both the letter and the request that USCB stop using its services.  It is my firm belief that Lucas's letter and followup emails, and especially the demanded retraction letter, had the intended effect of terrifying the faculty group, if only because they know how much it can cost to hire lawyers even when you have done nothing wrong  — until they started hearing that pro bono representation could be a significant possibility.

The Federal Law Claims Are Completely Bogus

My immediate reaction to this letter was to feel uncertain about whether ProctorU had any valid defamation claims, but my attention was drawn quickly to the contentions about federal intellectual property law, all of which are nonsensical.

First, the copyright claims. Lucas argues that by repeating some of the language from the privacy policy in their letter, the faculty group infringed the copyright in the privacy policy. One thing that is decidedly odd about this copyright claim is that, at the same time that Lucas is claiming improper copying, he is claiming that the letter misstated the privacy policy. Either the letter contains exact quotes or it doesn?t. But beyond that, any language taken from the policy is plainly fair use ? when you are criticizing a written text, you often have to quote the text being criticized. And beyond that, my search of the copyright database did not identify any copyright registrations by ProctorU.  So it would have to register before suing, and failure to register previously would be fatal to any monetary claims besides actual damages. Those would be copyright damages, not damage to reputation. Hard to believe there is any copyright injury here.

The demand letter invokes the ACPA but it is hard to see why, other than to give Lucas an excuse to put the phrase "bad faith" into the letter (he mentions that statute?s ?bad faith factors,? none of which point in the direction of bad faith so far as I can see), and to threaten statutory damages and attorney fees. But the ACPA could have provided a remedy only if the faculty group had the registered or used  a domain name to place its communications online; it does not provide a remedy for mentioning the URL's of some pages within ProctorU?s own web site in the body of a text, or for linking to those pages. Moreover, quite a number of cases under the ACPA and the Lanham Act allow the use of trademarks in domain names for web sites that comment on the trademark holder, including Lamparello v. Falwell, Bosley Medical v. Kremer, and Taubman Company v. WebFeats (a wonderful account of that latter litigation, full of the quirky sense of humor that my client Hank Mishkoff maintained throughout the litigation, can be found at the Taubman Sucks web site). I should note that although the faculty group did not register a domain name for their letter about ProctorU, there are plenty of ProctorU domain names ready for the taking, each of which could be lawfully used for a campaign to criticize that company for hiring David Lucas to send this letter, or indeed for criticizing Lucas or his client's funders.

The trademark claims are equally faulty. First of all, under the doctrine of nominative fair use, trademarks can be used to identify the subject of a criticism, and injunctive relief imposed for the use of marks for criticism would run afoul of the First Amendment, as established in such cases as Nissan Motor Co. v. Nissan Computer Co., and CPC International v. Skippy, Inc.  Moreover, a number of cases, including Bosley and Taubman, cited above, hold that trademark claims may only be brought over commercial uses of trademarks, thus avoiding unnecessary conflict with the First Amendment. In a case called Radiance Foundation v. NAACP, the Fourth Circuit came awfully close to agreeing with that limitation, but confined itself to holding that the statutory language of the trademark laws must be read as being limited to regulation of uses that could properly be treated as commercial speech.

The faculty association's letter was not commercial speech. The letter seems to suggest that the UCSB faculty are worried about facing economic competition from ProctorU for their proctoring services. But apart from the fact that the mere possibility of an economic interest at play does not make speech commercial (for which see Nike, Inc. v. Kasky), the argument reflects a certain air of unreality. All of the college faculty that I know hate proctoring and do not want to spend their time on that task; when possible, they slough off this work on graduate students. They might, at the same time, have genuine concerns about student privacy.

Lucas? bio page at the Bradley Arant web site indicates that ?intellectual property? is among his practice areas. My initial assumption was that, being an IP specialist, he must have known how frivolous his trademark and copyright claims are. But as I started reading the IP cases listed on his bio page, it struck me that his IP practice may have been confined to patent law; if so, then his letter only reflects bumbling, not malice.

Even the Libel Claims Seem Spurious

Although it was the silly intellectual property claims that spurred my interest in this matter, the more I have thought about the libel side of the case, the less potent the claims have seemed to me. On its face, the strongest point in the demand letter is the contention that ProctorU never sells the data that accumulates ? and if that were true, and if the faculty letter had accused ProctorU of selling the data, that might well qualify as material falsity. But in fact the letter only complains that ProctorU shares the data with others; the only reference in the faculty letter to ?selling? is in the phrase quoted above: after urging that UCSB drop ProctorU, it also urges a more general policy: not to use ?this service or any other private service that either sells or makes students' data available to third parties.? There is no charge in the letter that I can see saying that ProctorU sells data.

The rest of the libel discussion in the demand letter is a big nothing. Lucas says this in his letter: ?Contrary to your misrepresentations, ProctorU does not sell or share any information it collects to any third parties.? But would Lucas make that assertion under oath? After all, just two paragraphs before that, his letter says, ?ProctorU only collects, uses and shares student personal information to provide its proctoring services . . . and to ensure the integrity of the tests it proctors.? And one paragraph before the denial, he says, ?ProctorU . . . transparently discloses all information that could be collected, used or shared, and specifically identifies the types of third parties with whom it shares student information.?  (all the emphasis is added).  Now, this admitted sharing may or may not be justified ? that is a matter of opinion ? but it is simply not false to say that ProctorU shares information with third parties. Not false unless Lucas?s own admissions are erroneous.

Without a claim of substantial falsity, ProctorU?s threat to sue for defamation falls apart. Lucas also tosses in the names of two more torts: intentional interference with existing and prospective business relations into his hopper. But without a sustainable claim of falsity, those tort claims cannot survive.

ProctorU?s disproportionate response to the faculty group?s criticisms make me wonder just what there is to hide about the company?s data-sharing practices. Lucas?s letter contains a number of broad and conclusory assurances about his client, but no proof. I have to wonder what discovery, or an investigation by state authorities proceeding with enforceable subpoenas, might reveal about just what data gets shared with what third parties, and under what circumstances and with what protections against further dissemination.

I have asked Lucas to justify his claims under both state and federal law, and he refused to respond, claiming that I would surely appreciate that he ?cannot address issues pertaining to a client with you? unless I told him that I was representing the faculty group.  (I have not yet decided about that).   No, I do not appreciate that he ?cannot? – I took it as a dodge by a lawyer who would rather not explain his misstatements about the law.  After all, he sent his demand letter not only to the faculty group but also to counsel for the University of California and for UCSB, as well as to the California Attorney General and to the U.S. Attorney for the Central District of California, the latter two with the pretense that the faculty?s letter is ?directly impacting emergency efforts to mitigate civil disruption across the United States.? Ah, yes, terrorism ? maybe he should ask them to invoke the PATRIOT Act against these faculty terrorists. (Some of the respondents to the Popehat Signal on this case  raised the question whether this is an unlawful threat of criminal prosecution).   But he has showed no compunction about providing his thoughts about the case to lawyers who do not represent the target of his threats.

Stop the Bullying of Critics

In sum, I see little merit to this demand letter, and the nasty character of the demand deserves a forceful response. My efforts to  engage Lucas in explaining his claims, and to get him to listen to reason, have failed.   So my suggestion to members of the public is that they communicate their views both to ProctorU itself and to Eastside Partners, a venture capital firm that has provided funding for this company. Three of the five members of the ProctorU board appear to work at Eastside Partners. So Eastside Partners could pull the plug on Lucas?s bullying, if it chose to do so.

Reposted (with permission) from the Public Citizen Consumer Law & Policy Blog

Presidential candidate Ben Carson said last month that he wants to keep the United States Department of Education in business, rather than dismantling it as many conservatives would like, because he wants to use it to receive and then investigate reports of “extreme political bias” on college campuses. The example he has given of the need to which this proposal responds, most notably in an interview for Meet the Press, but also in a radio interview, is that a college student was supposedly threatened with discipline for refusing to comply with a professor’s instruction to “stomp on Jesus.” The notion of a federal inquisition into speech on college campuses trying to stomp out “political bias” is bad enough, but looking back at the facts of that incident, it appears to me as if Carson’s excuse for the inquisition is based on an apocryphal account.

The Student’s Claims and the Ensuing Media Storm

The incident arose after Ryan Rotela, a student at Florida Atlantic University, claimed that an adjunct professor had demanded during a class that the student “stomp on Jesus,” that several students had objected to the lesson, and that when Rotela was the only one to speak up about his objections, he was threatened with discipline. Fox News ran a story that included two brief excerpts of Rotela speaking on camera, and showed three smirking commentators putting their spin on the story. These accusations fit well with a standard narrative that universities show hostility to “traditional values,” with the added benefit that the adjunct professor was active in the local Democratic party; thus the contention supported a general attack on Democrats as well. The story exploded across the conservative blogosphere. Florida’s governor Rick Scott and its junior Senator, Marco Rubio, each promptly weighed in as well, siding with the student. The governor’s letter to the chancellor of the state university system said that he was “disappointed in the recent actions of . . . FAU faculty that raises significant questions over students’ rights and the lessons being taught in our classrooms,” and castigated the “professor’s poor judgement” in teaching a lesson that “was offensive, and even intolerant, to Christians.” The governor demanded a “report of the incident” and the adoption of university policies “to ensure that this type of ‘lesson’ will not occur again.” Considering that the university system is run by a board of governors that is largely appointed by the governor, FAU moved promptly to defuse the controversy, apologizing to the student, issuing a groveling public apology through a series of videos, and suspending the professor from his position and having his courses taught by a different professor.

A more sober voice weighed in as well — Greg Lukianoff, president of FIRE, who published a column at Forbes.com that expressed strong disagreement with the “idea of students at a public institution being required to stomp on the word Jesus,” as well as with “charging the student with an offense for complaining about the assignment.” Lukianoff said that the incident “highlights disturbing trends” involving a “double standard” in which putting Christian students on the defensive is par for the course while criticizing Muslims is condemned. And although many of my friends express misgivings about FIRE, charging it with attacks on academic freedom, my own experience with the group, including its treatment of some campus situations with which I am closely familiar, has been that its staff offer balanced and sober-minded approaches to the problems of free speech on campus. So the fact that Lukianoff supported the student’s complaint weighed strongly in my initial analysis.

The Other Side of the Story Emerges

But as I looked more closely at the Fox News report, and at the media stories that came after the Lukianoff column, I noticed some red flags. Poole said that he never told students to “stomp on Jesus.” Rather, he was following an exercise, recommended by the standard textbook used in his course, that had students write the word “J-E-S-U-S” on a piece of paper, put it on the floor and think about it for a moment, then step on the piece of paper. After many students hesitated to do so, students were invited to think about why they had hesitated, and Poole then led a discussion about the power of symbols. He stoutly denied having compelled any student to put his foot on the paper bearing the handwritten word “Jesus”; to the contrary, he said that he had specifically told the students that they were free not to do so. He also denied having punished the student for having refused to put his foot on the paper; to the contrary, he said that the student had threatened to hit him and that his only response was to file a report about that; the university issued a notice of intended discipline based on the student’s physical threat. And, he added, he himself was a devout Christian and had neither intended to disrespect strong Christian views nor punish any student for standing up for such views.

And looking at the one clip that I could find in which Rotela himself was speaking ? as opposed to his lawyer and his various advocates ? he never exactly said that the professor had, in so many words, told him to “stomp on Jesus.” The Fox News discussants all claimed Rotela himself has made that accusation, but Rotela himself only said this, in two tiny snippets edited together to make the network’s point: “if you were to stomp on the word Jesus it says that the word has no value . . . I’m not going to be sitting in a class having my religious rights desecrated.” The difference between telling students to “step” on a piece of paper, and telling them to “stomp on Jesus,” carries very different emotional connotations, and I began to wonder whether the story had been overly sensationalized and whether Lukianoff himself had been caught up in an unfair portrayal of the situation.

When I contacted Lukianoff to raise this possibility, he stood by his account of the situation, and indeed stressed his view that the lesson violated the principles of West Virginia State Board of Education v. Barnette, where the Supreme Court held that the First Amendment rights of public school students who belonged to the Jehovah’s Witnesses had been violated when the state required them, on pain of expulsion, to recite the pledge of allegiance. But Lukianoff also pointed me to a series of statements on FIRE’s web site that took a much more dispassionate view of the facts. Indeed, I was struck by the difference between the one-sided account that Lukianoff had given in his Forbes column and the evenhanded approach that FIRE had taken.

In particular, FIRE’s most complete statement about the case is headlined “Florida Atlantic ‘Jesus Stomp’ Case: A Screwup from Start to Finish.” It suggests on the one hand that the lesson in question raises serious questions under Barnette but at the same time that statements by FAU’s administration purporting to dictate that the lesson never be used again improperly trenched on academic freedom (but why? if the lesson violates the First Amendment, can the university not forbid its faculty from doing that?). As for the conflicting stories from Poole and Rotela, FIRE’s final statement notes that both sides had self-interested reasons for their own versions, but the organization is ultimately agnostic about what happened:

We’re unlikely to ever know for sure what actually happened in the encounter between Rotela and Poole. But there is one party that we can be virtually certain did the wrong thing, and that party is FAU.

If Rotela’s story is accurate, FAU charged him with a campus crime merely for vehemently complaining about a classroom assignment. For FAU to do so would be indefensible.

If Poole’s story is accurate, but FAU did not believe that Rotela’s conduct constituted a true threat, FAU should not have charged Rotela with threatening anyone. To do so would be indefensible.

If Poole’s story is accurate, and if FAU really believed that Rotela was making a true threat to hit Poole, FAU should not have dropped the threat charge against Rotela simply for public relations reasons. To do so would be indefensible.

FAU’s mishandling of the threat charge against Rotela can’t be defended. The only real dispute is over which indefensible action FAU took.

What Really Happened in the “Stomp on Jesus” Incident?

But if this incident is to be Ben Carson’s stump-speech example of the need for federal administrators to go on a hunt for cases of “extreme political bias,” it is worth going back to figure out what really happened back in the spring of 2013. I am especially grateful to DeAndre Poole; Hiram Sasser, the Liberty Institute lawyer who represented Rotela; Scott Jaschik, who reported on the incident for Inside Higher Education; and at least initially FIRE President Greg Lukianoff, for the time they took to answer my questions. I spoke to others whose names I am not free to mention.

In sum, although I can agree with FIRE that we cannot know “for sure” what happened, my investigation led me to conclude that this was not a case of bias against traditional Christian values, and not a case in which a student was punished for standing up for his religion. Rather, it is a case in which a professor was unfairly railroaded by media outlets, bloggers and elected officials who rushed to speak when they heard only one side of the story, and who was then thrown under the bus by the university. The case should not be any excuse for a conservative politician to start sending federal administrators out on a witch-hunt for “political bias” on campus.

First, for several reasons, I think it is quite unlikely that Poole punished Rotela for refusing to participate in the lesson. The most important reason for this conclusion is that punishing the student for objecting to stepping on the paper would have made no sense in the context of the purpose of the lesson. The written lesson plan stated:

This exercise is a bit sensitive, but really drives home the point that even though symbols are arbitrary, they take on very strong and emotional meanings. Have the students write the name JESUS in big letters on a piece of paper. Ask the students to stand up and put the paper on the floor in front of them with the name facing up. Ask the students to think about it for a moment. After a brief period of silence, instruct them to step on the paper. Most will hesitate. Ask why they can’t step on the paper. Discuss the importance of symbols in culture.

This lesson cannot succeed if all the students docilely step on the paper, if none of them object to the instruction. So what reason would Poole have had to punish non-participants? Moreover, Poole has characterized himself as a committed Christian (indeed the lesson’s author, Jim Neuliep, has a B.A. from a Methodist-affiliated university and teaches at a Catholic college). Would a religious Christian punish a student for refusing to step on Jesus?

For somewhat similar reasons, I am inclined to credit Poole’s assertion that he did not use the word “stomp” in speaking with the students. It is the word “step,” not “stomp,” that is recommended by the lesson plan, and Poole was plainly following this lesson plan. His own religious feeling could well have led him to use the less forceful word; Poole denied using the word “stomp”; and I have not found anyplace where Rotela himself said that the professor used that word; from what I have seen, Rotela only used that word in characterizing what he had been asked to do. Indeed, one of the original media reports from 2013 characterized Rotela himself as saying that Poole had told him to “step on” the piece of paper, but also quoted him as having proceeded to talk about what it means to “stomp on something.” (Unfortunately, there is no working link from this article to Rotela’s actual interview.) Similarly, both the letter from Governor Scott and the letter from Senator Rubio use the word “step” rather than “stomp” to describe the lesson to which Rotela objected. I asked Rotela’s former attorney whether Rotela said that Poole used the word “stomp” rather than “step,” and he did not remember specifically.

I also conclude from my investigation that Poole expressly told students that it was up to them whether they stepped on the paper or not — they were not coerced into doing so. Poole said he had issued this disclaimer, and I could not find any contemporary statement by Rotela disputing that claim. Moreover, during my investigation I was able to identify a student who was in the class that day (at his request, I am withholding his name) and he remembered Dr. Poole specifically making clear the voluntary nature of the “stepping on” act. (This student did not recall whether Poole said “step” or “stomp.”) Rotela’s former counsel Hiram Sasser told me that my conversation with him was the first time he had heard about Poole’s claim that he gave this sort of express disclaimer, but at the same time Sasser made clear that, after the University complied with Rotela’s demand to have his record cleared, he felt that battle had been won, and he stopped playing close attention to the ensuing controversy.

It is harder to form a clear judgment about one other fact — whether Rotela in fact made threatening statements and gestures. According to an interview with an education blog, Poole’s account was as follows:

[Rotela] said repeatedly, “How dare you disrespect someone’s religion?””

After class, the student came up to [Poole], and made that statement again, this time hitting his balled fist into his other hand and saying that “he wanted to hit me.” While the student did not do so, Poole said he was alarmed and notified campus security and filed a report on the student.

Similar statements appear in the summary of Poole’s interview with the faculty Academic Freedom Committee. I have not found any contemporaneous accounts of Rotela personally disputing Poole’s reports about his actions, but it appears that one of the students in the class was taken aback by whatever Rotela may have said to Poole after class, in that he sent Poole a note that took pains to distance himself from whatever it was that Rotela said and/or did: “I am at loss for words regarding what happened tonight. I just want to make clear I do not share the same views as my colleague . . ..”

Moreover, although the Liberty Institute claimed, on Rotela’s behalf, that the threat assertion was just an after-the-fact excuse and that Rotela never “threatened” anyone, Rotela’s counsel was unable to comment specifically on either the gestures or the specific statements that Poole attributed to Rotela; he did remember that Rotela was angry. And the Liberty Institute’s account of the case was misstated in other respects. Liberty Institute’s website states, for example, “While several other students in the class were also upset by the ‘lesson,’ only one was brave enough to say ‘no.'” The student whom I located told me that many of the students were unwilling to step on the paper; thus Rotela was not the “only one brave enough to say ‘no,'” But Rotela does appear to be the only one who thought Dr. Poole had done anything wrong by conducting that lesson: when a representative of the faculty’s Academic Freedom Committee visited the class (by then being taught by a different professor), during Dr. Poole’s suspension to ascertain how students felt about the controversy, she reported that every student who spoke about the subject expressed support for Dr. Poole, that a petition supporting him was circulated and so far as she could tell, “all students in attendance signed the petition.” The petition, in turn, stated that nobody else in the class was “offended” by the lesson. The report includes a detailed account of what Poole told the committee in an interview; Poole told me that this account basically reflects his recollections of the incident. I am told by a source close to the committee that the University barred the committee from meeting with Rotela as part of its investigation. That is too bad, from my perspective, because it means we lack any detailed report of his contemporary recollections.

Although I have not yet obtained a copy of the actual report that Poole submitted after the confrontation with Rotela, Poole told me that he submitted it the very night of the class. Because Rotela did not complain to anybody at FAU about Poole until a couple of days after that, Poole?s complaint could not possibly have been a post-hoc invention, made up out of whole cloth to defend himself against Rotela’s already-made complaint. And I have also been told that the FAU authorities investigated what Poole had charged against Rotela, including by meeting with Rotela and explaining the complaint. Thus, although the disciplinary letter issued to Rotela did cite a provision in the code of student conduct which, as Lukianoff points out in his Forbes column, was facially overbroad, Rotela could have been under no illusions about whether the gist of the complaint against him was that he had threatened Poole physically.

But why, assuming that Rotela had actually threatened an instructor, would FAU’s top administrators back down on possible discipline of a student? One of the things Rotela’s counsel Hiram Sasser told me is a possible explanation. His most vivid memory of the case was how quickly the administration had caved into his demands on behalf of Rotela; he kept coming back to the point that it had been only 48 hours after they entered the case (which was after Rotela had initially gone to the press) that he met with university officials and received an oral apology. He mentioned as well that FAU might have been especially susceptible to public pressure because it was going through some other public relations disasters at the time. Certainly it is the strong impression of a senior faculty leader to whom I spoke that Poole had been “railroaded.” So it is quite possible that the university administration, having been hammered in the press and pressured by high elected officials, simply followed the path of least resistance by excusing the student and ignoring the interests of its adjunct professor. From a callous university administrator’s perspective, that’s the beauty of using adjuncts: they are so easily expendable!

In sum, however, it seems to me that there is no support for Ben Carson’s current claim, or for the contention back in 2013 by Fox News and Greg Lukianoff, that a student was threatened with suspension for “refusing to stomp on Jesus.”

Does the Mere Offering of the Lesson Pose Serious Concerns Under West Virginia v. Barnette?

When I first approached Lukianoff about his column, he stood solidly behind his reference to Barnette, but when I followed up with some detailed questions about his legal analysis, I found his responses oddly lacking. I pointed out that Barnette involved a command to schoolchildren, and I asked whether he could point to any situation where Barnette’s approach to the pledge of allegiance had ever been applied to college students. Teaching this lesson at the elementary school level might raise more serious concerns, but at the college level we expect students to be able to handle classroom activities that might challenge their faith as an initial gambit in a lesson. Indeed, the bewildered response of the textbook’s author to the media storm about the lesson is worth noting: Jim Neuliep said that in his thirty years of doing this lesson in his classes, the usual outcome is that the exercise leads students to reaffirm their faith, while at the same time learning about the power of symbols.

In any event, Lukianoff’s response to my question was that the “principles of Barnette,” such as granting First Amendment protection against compelled speech, had been applied beyond young students. At that level of generality Lukianoff’s response is surely accurate; but it does not speak to whether a request to participate in a ritual that poses challenges to religious belief can lawfully be given to college students.

And more to the point, I asked him to consider whether it was unlawful to give an instruction and depend on a student to assert his right not to participate. Barnette itself involved a statute that provided for the expulsion of any student who did not participate in the pledge, and criminal punishment for parents whose children did not attend school. But there are a variety of public events in which the audience is called upon to participate in the ritual of the pledge — or the singing of the national anthem — and it strikes me as highly unlikely that a member of the public could sue on compelled speech grounds. Indeed, there are cases involving the pledge of allegiance — the Newdow case comes to mind — where the free speech Barnette was distinguished on the ground that in those cases, the law does not require expulsion or other punishment of the student who objects to the ritual. As the Supreme Court held in Newdow’s case, “Consistent with our case law, the School District permits students who object on religious grounds to abstain from the recitation.” (I should be clear that when the pledge of allegiance includes the words “under God” it implicates Establishment Clause issues that are different from the compelled speech issues in Barnette.)

Certainly, when I was growing up on Long Island in the 1960’s, students who did not want to participate in the pledge of allegiance ritual had to speak up for themselves, even in high school; nobody suggested that we could sue the school district just because the homeroom teacher said, every morning, that it was time to stand for the pledge of allegiance.

Moreover here the instructor apparently expressly told the students that they were free not to participate. It is hard to see any non-frivolous argument for compelled speech in those circumstances. Lukianoff did not answer my questions about this problem with his Barnette argument; instead, he started to complain that my asking questions was imposing on his busy schedule.

But perhaps the best indication that the reference to Barnette in Lukianoff’s column was a bit of a makeweight is the fact that despite his passionate defense of the point, FIRE has not brought a single test case on this issue. The lesson is offered by a textbook that is widely assigned in courses across the country — when I did a Google search for “Neuliep syllabus” I found many courses, most of them at public universities, where the book is central to the class. I imagine that if FIRE really thought that merely offering this lesson posed a serious threat to free speech values, it would have no trouble lining up a test case. But FIRE told me this week that, to its knowledge, “we have not seen a comparable situation before or since.”

Investigating Extreme Political Bias on Campus

Even if Carson had found a good example of “extreme political bias” on a college campus, civil liberties advocates might shudder about the prospect of a president assigning federal officials to solicit complaints from students about political expression, then sending out apparatchiks to investigate the speakers and holding out the threat of pulling financial aid, research grants, and other forms of funding from the errant universities. A recent editorial on Reason’s website drew an analogy between efforts at the Education Department’s Civil Rights Division “putting unconstitutional limits on students’ free speech rights in the name of stopping sexual harassment” (a concern that I share) and Ben Carson’s call for inquisitions into offenses against his own sort of political correctness. It seems to me that promising witch hunts seeking to suppress political speech that is at odds with the viewpoint of a presidential candidate would be even more worrisome than regulations aimed at hate speech and the overbroad speech codes against which FIRE has been campaigning.

I should like to think that FIRE will also share this concern. I urge it to speak out on the subject.

As courts across the country have endorsed the rule that, under section 230 of the Telecommunications Act of 1996, 47 U.S.C. § 230, the hosts of blogs and message boards are immune from suit for content that others post to their sites, companies that want an easy way to suppress such criticisms have struggled to find ways to bring suit anyway.  Especially among commercial litigators with limited exposure to intellectual property law, the trendy way to evade section 230 is to allege that criticism using the name of a company “tarnishes” its trademark, or that criticism using the name of an individual violates the right of publicity.  Another popular way to evade section 230 is to charge the web host with being an “information content provider.”

In its recent attempt to enjoin Julia Forte, the operator of 800Notes.com and whocallsme.com, from carrying posts that criticized its telemarketing techniques as well as it s business model, Houlihan Smith & Company tried both tacks — it claimed tarnishment and right of publicity violations, and it pointed to Google search results that included negative statements about it in the search snippets for the two web sites and alleged that Forte must be putting its name, and derogatory words such as “fraud” and “scam,” into her title tags and description meta tags.  Houlihan actually got a temporary restraining order (TRO) at first, by coming into court without any notice and bamboozling the state court judge with a long sworn complaint and supporting affidavits.  But when Forte found a lawyer (me) and removed to federal court, the judge quickly saw through Houlihan’s bluster and refused to give an injunction.  But how it lost is of particular interest.    (I discuss the oral opinion and the plaintiffs’ arguments in greater detail on the Consumer Law and Policy Blog, with links to the relevant documents from both sides)

In part, Houlihan lost because the federal judge, Virginia Kendall, could actually read the HTML code and could see that the complaint was based on lies.  (Not one of those judges who “don’t know technology” as Mike recently discussed).   As she remarked at the outset of the preliminary injunction hearing, one of her specialties as federal prosecutor was child pornography, and because porn purveyors are champions at manipulating code, she had to learn about it.  So, although Forte had supplied an affidavit explaining how to read the HTML code, Judge Kendall just pulled up the code herself and read it, told plaintiffs’ counsel that she couldn’t see any trademarks or defamatory words in the code that was before her, and asked if they had any other proof.  They didn’t.

On the trademark claims, Judge Kendall also rejected the motion for a preliminary injunction, but interestingly she did it without mentioning the First Amendment or the doctrine of prior restraint.  She first noted that under trademark law, just as a trademark may be used by a reseller to truthfully identify the name of the product that is being sold, so a critic may use the name of the trademark holder to truthfully identify the name of the company being criticized.  And as defined by the federal trademark “dilution” statute, dilution law only forbids uses of trademarks that injure the reputation of the trademark; it does not apply to uses that injure the reputation of the business.  Otherwise, any plaintiff could evade section 230 immunity just by changing the label of a defamation claim and calling it a trademark claim.

Representing Forte, we were sorry not to have won on First Amendment and prior restraint grounds, but Judge Kendall’s ruling may actually have a broader impact, protecting other hosts of interactive discussion sites, for her discussion of trademark law.  At this point, Judge Kendall has only given an opinion from the bench, explaining why she was not granting a preliminary injunction (we have ordered the transcript).  But she indicated that she would be issuing a written opinion.  It could be worth waiting for.

Video Professor, a company well-known in these pages for its penchant for suing both its critics and message boards that hosted its critics, not to speak of trying to suppress competition by misusing trademark law, has apparently hit hard times, a TV station in Denver is reporting:

A person with knowledge of the situation told the 9Wants to Know investigators that Video Professor’s approximately 50 employees were called to a meeting Monday and told they were being placed on unpaid furlough.

Phones at Video Professor’s corporate office and customer service center were answered Thursday by an automated message notifying callers the offices were closed for the day and to call back at a later time.

A call to Video Professor’s CEO and pitchman, John Scherer, drew a return call from a company spokesman who would not answer questions or elaborate beyond a one-sentence statement: “The company is going through a reorganization that involves some temporary furloughs.”

Of course, every time it filed one of these cases it just drew more attention to consumer complaints about its sales practices, and stimulated journalists to look into the company. Video Professor rarely found such attention flattering, even in his hometown media.

Is there a lesson here? Did Video Professor spend so much on legal fees that it couldn’t improve its product sufficiently to satisfy the market?

Terry Heaton and Jeff Jarvis have commented recently on the conflicts of interest implicated by the adulatory coverage of the iPad in the New York Times and other media companies. They point first to the expectation that widespread adoption of the iPad will foster consumer adoption of a platform where media giants can show their content for a fee — thus enabling them to move more easily to a paywall revenue model.

Dan Gillmor shares these concerns, but notes an even more concrete conflict of interest — Apple’s advertising of the iPad consistently features a screenshot of the New York Times app, including of course the Times’ logo. Although Apple no doubt hopes to show that its device can be used to read the Times, surely attractive content to many of its target consumers, the image is also terrific advertising for the New York Times. Gillmor indicates that he has no doubt that Times’ reviewers truly believe the contents of their swooning coverage of the iPad, but argues that the benefit that the Times is receiving is a conflict of interest that ought to be overtly acknowledged and discussed by Times management. Yet, he reports, nobody from the Times has been willing to respond to his questions about the issue, such as whether the Times has received any compensation for the display of its logo on the iPad as shown in the ads. Gillmor raised these concerns a week ago, and the Times has yet to address publicly the possible conflict.

One may well wonder whether Apple or the Times has violated the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising. The placement of the Times’ logo in Apple’s ads is surely a thing of great value, and readers of the Times’ reviews might well want to take the provision of free advertising to the Times into account in deciding whether to give full credence to the objectivity of the Times’ news reports and reviews of the product. The benefit of having such advertising could well be a “material connection” that has to be disclosed both by Apple and by the Times under section 255.5 of the FTC Guides, as illustrated by Example 7.

Surely, what’s good for bloggers who praise products ought to be good for the New York Times and professional journalists.