Puerto 80 Makes Its Argument For Why The Seizure Of Rojadirecta Was Unconstitutional
from the keep-watching-this-space dept
As you may recall, there are two parallel cases going on at the same time concerning Puerto 80 and its domains that the US government seized earlier this year. The first, as we discussed earlier, is the forfeiture procedure, which has been temporarily dismissed over a technicality (soon to be refiled). But perhaps more interesting is the appeal over the refusal of the government and the courts to return the domain prior to the forfeiture process beginning. Again, just for reference, the seizure process is first, and is (supposed to be) temporary, but the later forfeiture process is permanent. The district court effectively said that there was no First Amendment issue to be raised during the seizure process because, apparently, the court didn't think that trampling on one's First Amendment rights represents a substantial hardship.While the forfeiture process continues (with a short break), Puerto 80 also appealed the ruling during the seizure period, and the 2nd Circuit appeals court agreed to expedite that case. The hearing there is happening in a little over a week, and Puerto 80 has filed its brief in that appeal, which is embedded below. The summary is that they're focusing on the fact that this is prior restraint. Even if the content turns out to be infringing and unprotected, seizing it before that determination is made represents classic prior restraint:
...throughout its brief, the government assumes that the First Amendment does not protect any Rojadirecta content that the government claims links to infringing material. Not so. True, were the government ultimately to show at a hearing that the Rojadirecta web sites or certain content on those web sites infringed copyrights, that content would no longer be protected. But the very point of the prior restraint doctrine is that the government does not get to assume that speech is unprotected without first affording the speaker notice and an adversarial hearing on that issue. The government’s failure to afford either renders its acts here unconstitutional.Interestingly, Puerto 80 has chosen not to challenge the claim that violating the First Amendment does not represent a substantial hardship. I'm sure there are reasons for this -- and, indeed, the caselaw on "substantial hardship" suggests it may be limited -- but it still seems crazy to me to think that violating the First Amendment isn't automatically deemed a substantial hardship. Even if that's not how the courts have ruled, it seems like they should. The basic reasoning given in the filing is that if the seizure violates the First Amendment, whether or not it also was a "substantial hardship" is meaningless. So if they just show a First Amendment violation, the issue of substantial hardship is moot.
Under the government’s view of the Constitution, no First Amendment scrutiny is required in order for it to shut down a search engine, a website, a newspaper, or a printing press it believes is being used to violate the law—not just prior to a determination of the illegality of the content, but without ever having to prove that its owner violated the law. All it needs to do is assert that those sites are somehow facilitating infringement. The government’s theory would have allowed it to seize the New York Times issue that published the Pentagon Papers and destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of national security laws. And the Times would have had no opportunity to show that its speech was lawful. That is simply not the law. New York Times Co. v. United States, 403 U.S. 713 (1971) (effort to block publication of information alleged to violate the law in advance of legal hearing was an unconstitutional prior restraint).
Either way, Puerto 80 avoids that argument (and, indeed, chides the government for focusing on that issue, when it's not even part of the appeal).
It then, as expected, relies heavily on the ruling in Fort Wayne Books v. Indiana, which makes it clear that seizures that involve expressive speech need to meet a higher Constitutional standard. It also eviscerates Arcara v. Cloud Books, the favorite case of the government and those who support these seizures. As we've noted from the beginning, the court in Arcara is quite clear: the ruling simply does not apply to cases that involve legality of content itself, but only to other sorts of crimes (in this case, prostitution).
The filing is a good, quick read. Hopefully the panel finds it persuasive.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: first amendment, free speech, prior restraint, rojadirecta
Companies: puerto 80, rojadirecta
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Re:
Turn those pirates into sausage and feed them to the pigs! Reopen Auschwitz for them! /sarcasm
[ link to this | view in chronology ]
Substantial hardship is never moot, because it decides if the seizure is revoked immediately, or if the seizure stands until the end of all proceedings.
Their argument is also weak in the face of existing caselaw, which says that some protected speech may be harmed when unprotected speech is shut down. Their basic concept is trying to claim that no enough of the stuff was in violation to merit a shutdown, but that in itself admits that much of what was on the site was intended to violate copyright law - and the site owners knew it.
Their first amendment argument also sets precedent regardless, because if the courts accept their argument (even if it rules for or against it), it is a clear indication that overseas websites are in fact subject to US law. At this point, Roja actually appear to be painting themselves into a corner, by admitting that they are subject to US law.
[ link to this | view in chronology ]
Re:
Their argument is also weak in the face of existing caselaw, which says that some protected speech may be harmed when unprotected speech is shut down. Their basic concept is trying to claim that no enough of the stuff was in violation to merit a shutdown, but that in itself admits that much of what was on the site was intended to violate copyright law - and the site owners knew it.
Why would they believe that their content violated laws when they had already won a number of lawsuits? How is this weak when they are just saying they never had a hearing on the matter? (This is the main point of their argument, as I read it)
[ link to this | view in chronology ]
Re: Re:
It comes back to the same problem. Spain is one of the most open countries in the EU when it comes to piracy, allowing plenty of things that would not be allowed anywhere else. If the site was ONLY available in Spain, these rulings would have some value. But Roja clearly knew that their site was being used by people outside of Spain (and operated in English... not Spanish for many things), so whatever rulings they got in Spain isn't worth a lot. If anything, it should be a good indication that they were aware, and that only local rulings made them "legal".
You and I both know that this sort of site wouldn't last long in the US (or almost any other country). So if they are trying to hide behind Spanish court rulings, they should be aware that they only apply to Spanish citizens, not the rest of the world.
[ link to this | view in chronology ]
Re: Re: Re:
Replace "Spanish" with "US" there and you'll see the flip side of the argument. The US is trying to assert jurisdiction over a Spanish site.
The site might be accessed by some US people, but it is not a US site, and the domain seizure affects everyone, not just the US users.
By putting something on the Internet, you are NOT subjecting yourself to the rules of every single jurisdiction on the planet, just because anyone can access it, or just because a country has the technical means to disable the site. Imagine if the UK decided to put a filter on a French blog coming in through a transatlantic cable because they didn't like something they said about the Queen. Or if the Russians decided that since some things were going through their satillites, they were going to make sure that any site critical of their policies would instead be redirected to the KGB site.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Spain is one of the countries in the Western EU least serviced by legal options and so "piracy" is often the only option for people wanting to access content.
Fixed it for the morons out there.
" So if they are trying to hide behind Spanish court rulings, they should be aware that they only apply to Spanish citizens, not the rest of the world."
Why do the immoral content creators of the US hide behind US laws? They know they are violating Sharia law and should be punished by Iranian and Afghan courts for breaking their moral codes since citizens of those countries can also access this immoral content.
Really?
[ link to this | view in chronology ]
Re:
The argument is being made in terms of the United States Constitution which also doesn't apply outside of the USA.
I'm not intimately up to date with US case law regarding prior restraint though I do know that US courts generally frown on it. That and the information included that the US Courts have rules that it takes more than a link to demonstrate infringement isn't new either.
I am alarmed that the United States seems to think that infringement is serious enough that it needs to break its own laws as well as centuries of case law, precedent and practice it inherited from England to seize first, ask questions later while denying the owner of the asset the right to appear and defend themselves in open court. It appears that some law officials and courts have forgotten there's more to the old saw about open court being "not only that justice is done but that it is seen to be done" than a nice little phrase that they can ignore now and then. It's vital to ensure that authority does not exceed it's bounds and become tyranny. Copyright and I.P. laws just are not worth the corrosion and corruption of the legal system in this way.
[ link to this | view in chronology ]
Re:
You (or other A.C.'s, I don't know which) keep saying this, and it keeps being false.
Existing caselaw does not say that some form of protected speech may be harmed when unprotected speech is shut down. In fact, existing case law says the opposite: that laws targeting unlawful speech must be as narrowly tailored as possible to target only that speech, and not protected speech.
[ link to this | view in chronology ]
This is what happens in a tyranny.
[ link to this | view in chronology ]
Their argument is that the government can't just assume that the speech is protected or unprotected without an adversarial hearing. Which is what we have been arguing here all along. Seizures involving speech need to meet a higher Constitutional standard.
Their basic concept is trying to claim that no enough of the stuff was in violation to merit a shutdown, but that in itself admits that much of what was on the site was intended to violate copyright law - and the site owners knew it.
I don't believe they are arguing that at all. My take is that they believe that the legality or illegality of the content should be determined prior to seizure. As for admitting intent, you are stretching here, remember they were declared legal in Spain.
Their first amendment argument also sets precedent regardless, because if the courts accept their argument (even if it rules for or against it), it is a clear indication that overseas websites are in fact subject to US law. At this point, Roja actually appear to be painting themselves into a corner, by admitting that they are subject to US law.
No, I don't think that sets any precedent at all. If China seizes your property, filing a lawsuit with the US court means nothing.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re:
This flies in the face of general criminal prosecution in the US. Cars, houses, drugs, guns, and other items are often seized prior to trial, only on the good faith assertations of law enforcement that they are being used as part of a criminal enterprise. What Roja is attempting to say is that they should be allowed to continue their activities until the courts have ruled conclusively that they are illegal, even if they are illegal on their face (and the judge has indicated such).
"As for admitting intent, you are stretching here, remember they were declared legal in Spain."
I think this is the stretch. What they appear to be attempting to do is say "it's legal in our country, so everyone else has to follow our rules". That isn't how the world works. The best example is a place like the UK, where images of topless 16 year old girls were a page 3 feature of newspapers for years. Try running those same images in the US and see how it works out. If those papers were imported and actively sold in the US, they would be charged with child pornography. Roja is being somewhat less than honest if they think they can hide their actions behind a ruling in their own country, and expecting it to apply worldwide.
[ link to this | view in chronology ]
Re: Re:
So please explain to the class how if something is legal in your country, and you put it online, it somehow becomes subject to U.S. or any other countries laws.
Because That isn't how the world works. Yes that is why everybody thinks it is fair and just that a U.S. citizen is in jail for lese majeste in Thailand....oh wait no we all think that is ridiculous.
Just saying, if shariah law starts affecting my google image searches the cyber war is on! Or is the U.S. the only country allowed to cripple the internet?
[ link to this | view in chronology ]
Re: Re: Re:
It is the basic problem of the internet and the law - making the stuff available in those countries is akin to publishing in those countries (or at least distributing in those countries), and as such, you can be subject to their laws when dealing with their citizen.
When Roja's site is made available in the US and used by US citizens, it becomes at least in part subject to US law, at least for dealing with those citizens.
"Just saying, if shariah law starts affecting my google image searches the cyber war is on! Or is the U.S. the only country allowed to cripple the internet?"
I wouldn't be shocked, surprised, or in the least part offended if images that were offensive under those laws were blocked in countries which use those laws. In fact, if you try to obtain porn in most muslim countries online, you will discover it blocked.
See, the laws of those countries don't apply to you here - but they do apply in those countries.
[ link to this | view in chronology ]
Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re:
So moron, I understand the difference - but do you understand why it appears to be legal?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re:
.coms have "feet everywhere", so any country gets to seize any domain? i dont think you understand at all.
[ link to this | view in chronology ]
Re: Re: Re: Re:
You are a frigging moron, but any content you've ever created is probably visible in China, Iran and maybe even North Korea. Surely you won't mind yourself being subjected to their laws since you "made your content available" to them?
"In fact, if you try to obtain porn in most muslim countries online, you will discover it blocked."
No, you won't. You might find a filter that blocks the best known sites, or face the death penalty for trying to access it, but you will almost certainly find that people are able to access such content either way.
Reality is hard for you, isn't it?
[ link to this | view in chronology ]
Re: Re:
Cars, houses, drugs, guns, and other items are often seized prior to trial..
Yes, I am painfully aware of this. But, none of the items you listed have to do with speech. There is supposed to be a higher standard in regards to speech because it protected by the Constitution. That's the whole prior restraint argument.
I think this is the stretch. What they appear to be attempting to do is say "it's legal in our country, so everyone else has to follow our rules". That isn't how the world works. The best example is a place like the UK, where images of topless 16 year old girls were a page 3 feature of newspapers for years. Try running those same images in the US and see how it works out. If those papers were imported and actively sold in the US, they would be charged with child pornography. Roja is being somewhat less than honest if they think they can hide their actions behind a ruling in their own country, and expecting it to apply worldwide.
My comment was in regards to intent. The government basically dropped the "willfulness" part of their argument because they didn't think they could prove it.
[ link to this | view in chronology ]
Re: Re:
That and it took only a glance or two to figure out that there was a LOT of poetic license being used there to characterize these girls (women, actually) as 16. Some were characterized as 14. When push came to shove, as it did a few times in England, the papers were able to produce properly signed model releases were the aged ranged from 18 to 29. They just looked young. The page 3 mania died off when high speed internet appeared. Ironically, while technially illegal in the US at the time you could get hard core kiddie porn in the adult book stores right across the street from the Pike St Fish Market in Seattle without having to do more than look in the window.
If Roja's servers were located in Spain the issue of seizure would probably never have happened as US law enforcement agencies have no jurisdiction there and, like a lot of the EU, the Department of Homeland Security isn't even recognized as a law enforcement agency. The only way Roja's servers could have been legally seized is if they were physically located within the United States or one of its territories and possession.
I agree with you when you say that it appears to you as what Roja is claiming is that it's legal (apparently) to have a link leading to infringing content in Spain and therefore the rest of the world has to follow their rules. Now, if the rest of us could just convince the United States that just because it's illegal to do that in the USA (and even that is questionable, it seems) doesn't mean that's how the rest of the world operates or has to operate.
[ link to this | view in chronology ]
Re: Re: Re:
[citation needed] - I call bullshit on this one.
[ link to this | view in chronology ]
Re: Re: Re: Re:
May we have a citation on the 16 year old page 3 girls?
[ link to this | view in chronology ]
They can't sue the government claiming that it's causing them a substantial hardship, and then when the court rejects that argument, claim on appeal that really this is about the First Amendment and not a substantial hardship. They're really blowing this, IMO. Procedurally, I don't see how the Second Circuit can even reach the merits of the First Amendment claim. It's simply irrelevant to the type of petition they chose to file. It's like suing your neighbor for running over your dog, and then arguing about whether their fence encroaches your property. It's irrelevant. You can certainly sue your neighbor over the fence, but it's got nothing to do with running over your dog--the claim you in fact did bring.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Honestly, both sides--Lemley et al. and Frey et al.--haven't been making a lot of sense throughout this case. Each side has a new theory of the case each time they file some new brief.
[ link to this | view in chronology ]
Seizure of speech materials, or in this case shutting down of a means of speech, is held to a much higher standard than seizure of physical property. Please complete First Amendment Law 101 before spouting off analogies that make no sense.
[ link to this | view in chronology ]
Re:
Quite simply, the judge is the case has already stated that it would be pretty dishonest for Roja to claim that their intended business is infringement, and as such, it is pretty hard for them to claim much in the way of first amendment protection for said illegal activities. Looking at the site, on it's face alone, it is clear that it's intention is to help people infringe, and to help people obtain infringing material / feeds. Those are activities that are clearly outside of US law, and so whatever higher standards you think should be applied still don't cover the illegal activity.
Please complete First Amendment Law 101 before spouting off analogies that make no sense.
[ link to this | view in chronology ]
Re: Re:
But the entire point here is that the government does NOT just get to decide that without an adversarial hearing. It can be "clear" that I did not pay my rent. That doesn't mean my landlord - or the government - gets to seize my bank account and never go to trial. He doesn't even get to kick me out of the apartment I am living in and HE owns without that hearing.
The government has never even CHARGED the site with anything. How long has it been since the seizures, again? At some point, don't you think they should actually have to prove something in a setting where the other side gets to raise a defense? Or at least officially charge them with it?
Surely you aren't saying that the government can seize any website just because they claim something is going on, without ever having to prove it?
[ link to this | view in chronology ]
Re: Re:
The higher standard for seizing protected speech materials is that in most cases there must be notice and an opportunity to be heard before a seizure is made. If a seizure is made before a hearing, which does happen from time to time, there must be a prompt judicial adversarial review of the seizure; at which time there is a strong presumption that the prior restraint is unconstitutional.
As for child porn sites being shut down, it's ridiculous to try to justify seizing an entire domain for sometimes linking to allegedly-infringing sports broadcasts by saying it's okay to shut down child porn sites. Most of the time, child porn sites aren't shut down by the government, but by the ISP's or hosting providers, so the First Amendment doesn't apply.
Even when the government gets involved, your argument that it's okay to seize child porn sites without notice still fails, because the prior restraint doctrine allows for prior restraints as long as there is a prompt post-seizure judicial hearing. But child porn site operators don't ask for these hearings because they know they will lose, because child pornography is defined by statute (see 18 USC § 2256(8), among others), and is not protected by the First Amendment. If the government seized a domain or a bunch of servers for distributing child porn, any prior restraint challenge--whether pre- or post-seizure--would thus fail. The fact that nobody ever challenges the seizures and forces the court to hold a hearing (because they know they would lose on the "protected or not protected" point) and rule essentially "The pre-hearing seizure was okay with the First Amendment because only unprotected child porn was seized" doesn't mean that they couldn't invoke the procedural requirements for prior restraints if they wanted to. The absence of challenge does not mean that challenge isn't possible.
For example, if the government seized a site without a notice, for allegedly distributing child porn, and the site operators claimed that their materials weren't child porn--e.g. if they claimed their materials were virtual child porn, which is protected speech; or if they wanted to make the (likely unsuccessful) argument that the government shut down too much protected speech in the course of shutting down unprotected child porn speech; the First Amendment would require a post-seizure prior restraint hearing. The government would then be required to prove that the materials seized weren't protected and that any incidental seizure of protected speech was constitutionally acceptable.
What the government CAN'T do is do what it did to Roja: seize a domain name without notice and then play keep-away for months, never file any kind of civil or criminal case to back up the initial seizure, then say that they can keep the domain anyway based solely on the initial accusation even when the accusation turns out to have no evidentiary or legal support.
What Roja is arguing is classic First Amendment jurisprudence: "You can't seize our domain without telling us; and if you do, you have to have a really good reason and give us an opportunity to have a quick hearing on the merits of why you seized it in the first place. You didn't do that, and if we'd had a hearing you'd have lost. So we want our domain back."
[ link to this | view in chronology ]
Re: Re: Re:
Moreover, they are taking a risk here that the judge rules against them (and likely will, because this is only a substantial hardship hearing, not the full case), and also turns around and pokes all sorts of holes in their prior restraint arguments. By needlessly giving this judge the chance to express an opinion on the subject, they risk having their main defence pretty much shot down before they even get to try it in the full case.
It seems to be even more foolish than running a Spanish based site in English, and then claiming it isn't aimed at the US market.
[ link to this | view in chronology ]
Re: Re: Re: Re:
Of course, it's can't be aimed at the hundreds of thousands of English ex-pats living in Spain. It has to be aimed at you entitled bastards. Got it.
[ link to this | view in chronology ]
Is it a sleight of hand? Not sure if I am remembering correctly, but didn't the judge tell Roja at a different hearing that it wasn't the time for the First Amendment argument (when really should have been heard then). Perhaps that are bringing it up now, because the Judge wouldn't hear it then?
[ link to this | view in chronology ]
Re:
This is a response to average_joe, Dec 9th, 2011 @ 10:57am
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
So, if they prove it's prior restraint, is that in itself enough to be construed as substantial hardship?
As a non-lawyer that seems like it should be, but I really don't know what other legal precedents have said concerning this.
[ link to this | view in chronology ]
Re: Re: Re:
[ link to this | view in chronology ]
Re: Re: Re: Re:
Thanks for that. :)
[ link to this | view in chronology ]
Clarification
Puerto 80 are running two separate cases. The first case under seizure law is to apply to have their domains returned. The second case is about how they are a lawful Spanish business and these domains should not have been seized in the first place.
Puerto 80 lost their first case where the "substantial hardship" aspect was the sticking point. They have now appealed this ruling and are trying again. Under seizure law they are in a weak position and are giving it their best shot.
They are of course arguing that this seizure is a First Amendment violation. If this is, or not, is besides the point when there needs to be a court case first to prove if it is or not. The claim then is that ICE have violated prior restraint by seizing this domain causing a First Amendment violation before their right to protect their speech has been heard in court.
The problem here (and what Puerto 80 are missing) is that the release of seized goods need to be returned based on seizure law. That is what the judge is there for. So their only hope is to argue that this violation of the First Amendment and lack of prior restraint creates a "substantial hardship". Then even if they did the judge could simply rule that this is not what they were thinking about when this law was made.
So their easy domain return is unlikely to happen and they can next plead all the First Amendment violations and lack of prior restraint in their main case. They are just fighting and even if battle is lost it is important that the War is won.
[ link to this | view in chronology ]
Re: Clarification
[ link to this | view in chronology ]
Sounds like the lawyers understand the First Amendment issues and you don't.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]