Yes, A Domain Name Can Be Protected By The First Amendment
from the pay-attention... dept
A year and a half ago, we wrote about a lawsuit from a lawyer in Texas, John Gibson, who is an expert in workers' comp issues in the state. He -- quite reasonably -- set up a blog at the URL TexasWorkersCompLaw.com. Shouldn't be a big deal, right? Wrong. It seems that Texas has a law that you can't use the words "Texas" and "Workers' Comp" together. Seriously. The law explicitly says that anyone advertising Texas Workers' Comp law help "may not knowingly use or cause to be used... any term using both 'Texas' and 'Workers' Compensation' or any term using both 'Texas' and 'Workers' Comp';"After he received a cease & desist letter, he sued, claiming the law was a First Amendment violation. We had missed the news that the district court had dismissed the case, but that doesn't matter now, since the appeals court has brought the case right back (hat tip to Paul Keating for the news). The district court's dismissal was based on the rather simplistic analysis that the domain was commercial speech. The appeals court, however, feels there's much more worth looking at here, noting that commercial speech is still protected by the first amendment.
As with many new issues involving the Internet, the proper method of analysis to determine whether a domain name is commercial speech or a more vigorously protected form of speech is res nova. A domain name, which in itself could qualify as ordinary communicative speech, might qualify as commercial speech if the website itself is used almost exclusively for commercial purposes.While this case is interesting in its own right, the fact that the court acknowledges that domains themselves are a form of speech certainly raises significant questions about the Constitutionality of the federal government seizing domain names -- and arguing that there are no First Amendment issues raised, since they're not pulling down the websites behind them. The domains themselves are a form of speech and the government is seizing them with no notice or adversarial hearing.
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Filed Under: domain name, first amendment, free speech, john gibson, texas, workers comp
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"Commercial speech" protected only up to a point, Mike.
2nd, that also takes the base from under your blithee assertion that "The domains themselves are a form of speech and the government is seizing them with no notice or adversarial hearing." -- Besides that when engaged in (meaning charged: one doesn't get to keep and use profits from) criminal activity it can and should be seized.
Click here for Mike "Streisand Effect" Masnick!
http://en.wikipedia.org/wiki/Streisand_effect
Help make Mike the #1 quipper on the net! -- Click one for The Quipper!
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Re: "Commercial speech" protected only up to a point, Mike.
This is obvious how, exactly? This would have made an excellent sarcastic comment but as a statement of logic it falls flat. It entirely lacks any means of tying your assertion to your conclusion.
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Re: "Commercial speech" protected only up to a point, Mike.
Your second statement ignores that there haven't been charges in many of the domain seizure cases, and if there are, they come after the seizure and without adversarial hearings. No criminal activities were determined in the dajaz1 scenario. Just a year of free speech violation by the government.
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Re: "Commercial speech" protected only up to a point, Mike.
http://www.techdirt.com/articles/20111208/12500917012/riaa-doesnt-apologize-year-long-blog-cen sorship-just-stands-its-claim-that-site-broke-law.shtml
HA HA HA HA HA HA HA HA HA HA HA
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Re: "Commercial speech" protected only up to a point, Mike.
The absolute awesome construction of your sentences leaves Vogon poets aghast at your majestic usage of the English language.
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The government seizure of domain names has nothing to do with the alphanumeric characters making up the domain name itself, so your point makes no sense. You're conflating several separate issues.
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Please explain yourself.
When I type http://dvdscollection.com/ into my browser it is redirected to an government warning (MF Eagles!!) page. How exactly does that not have anything to do with the characters I typed?
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The point Mike is trying to make is that if a domain is presumptively protected speech then it can't be seized without a prior adversarial hearing. That argument misses the mark. The rule isn't that presumptively protected speech always means a prior adversarial hearing. That's only the case when the determination of whether some material is constitutionally protected speech is difficult to make. If Mike took an hour or so to read the line of cases from Marcus v. Search Warrants to Fort Wayne Books v. Indiana, he'd see that the Supreme Court is explicit that the extraordinary procedural safeguards of a prior adversarial hearing are only needed when the line between protected and unprotected speech is "dim and uncertain." Such is the case, e.g., when it's obscenity, where the determination is difficult and subjective. When the difference between constitutionally protected and unprotected speech is easy to make, such as with simple piracy, there is no need for the prior adversarial hearing. This is why--and Mike never once that I know of has ever acknowledged this fact--no court ever even once has ever applied those extraordinary procedural safeguards when it's a case of simple piracy.
Anyway, the government's domain name seizures have nothing to do with the words in the domain name itself. Nobody cares if the site is called "rojadirecta.org" or "nothingtoseehere.com." They were seized as instrumentalities of crime, since they were being used as a tool to help people infringe.
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If the accusation for infringement was true, then why was the domain name released?
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Ahh. I've seen this argument before. I don't buy for the simple fact that there is no such thing as "simple piracy".
It's not like pornographic material- you cannot "know it when you see it" since you really have no idea of the copyright status of the work or if it's fair use. And with the internet, it could be a completely legal use in a different country, like perhaps Spain.
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Moreover, your "Harry Potter" example has already been done. Investigaitn "agents" simply sent a blind DMCa notice in place of, y'know, talking to their marketing department.
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Simple to ask, sure. Not so simple to actually determine if the work is authorized or not. Heck, based on recent domain seizures the rights owners don't even know what they actually hold rights to. If that is the only basis, then it's not good enough. Seizures involving speech require a higher bar. I'm not really sure why you argue against this, even if it is current law at this point - it shouldn't be.
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With something like a domain name that is so obviously protected speech in of itself and the fact that a domain name is the effective gateway to web pages which have already been declared speech by the courts, I can't see why the Court wouldn't rule an ex parte seizure of a domain name to be a First Amendment violation. This seems like common sense stuff to me in our brave new digital world.
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So I'm impatient, what can I say.
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If they did remove my domain name and re-point it to some moronic sight full of Eagles and other propaganda (and propaganda is EXACTLY what it is) then they would be committing a criminal offence ... yes not just civil.
Oh and under the US law, in this situation there is no fair use argument, but it is NOT even piracy.. why? Because it's legal to do this in my country. And Project Gutenberg do this every single day, and believe me they are NOt authorised via your US license holders to distribute the items like you suggest.
So your analogy fails. Next
hmmmm shades of Roja hey?
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And since when is that an "easy" determination to make?
The copyright holders seem to screw it up regularly. Viacom/Youtube. Dajaz1. Countless bogus DMCA notices. List of "rogue" sites featuring completely legal and authorized sites.
If it is so easy, why are the people who should know what is infringing or not so hopelessly inept at it?
They were seized as instrumentalities of crime, since they were being used as a tool to help people infringe.
I don't remember HBO having "The Wire" gagged, even though it could be used as a tool to direct people on where to go to acquire drugs (there were some recognizable Baltimore locations known to be such). Nor do I see newspapers being gagged if they report on (with details) similar such things.
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All you guys can do is point to a couple outliers and pretend like that's the norm. Sorry, but the criteria are simple and objective, and there is no risk that the determination will turn on the whim of the investigating officer. And even in an outlier like dajaz1.com, where MAYBE there was a license for SOME of the works, it's still not constitutionally protected speech at issue since it's the license that permits it.
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Even if they are outliers (they're not) my point stands. If it so easy that a mistake could not be made - then no mistakes would be made. Yet they are. So it is not very easy - and hence seizing speech without an adversarial hearing should not be permitted.
Sorry, but the criteria are simple and objective, and there is no risk that the determination will turn on the whim of the investigating officer.
Keep spouting off things even you have to know are outright falsehoods. Your spin sucks worse today than the Republican Study Committee's.
And even in an outlier like dajaz1.com, where MAYBE there was a license for SOME of the works, it's still not constitutionally protected speech at issue since it's the license that permits it.
Dajaz1 did not have a single unauthorized work available. Zero. Zilch. Nada. Unless you have some evidence to the contrary?
Or would you like to address the other point I made about other speech not being seized when it could be considered as helping someone commit (more serious) crimes?
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This is another howler of a statement that you keep repeating.
The freedom of expression is an inalienable right, one that is protected from government intrusion by the First Amendment. By default, all speech is protected speech. Exceptions to First Amendment protections can be made, but only if they further a "substantial" or "compelling" public interest - one that overrides the infringement upon free speech rights. (In the case of copyright, it is the general public benefits from the creation and distribution of expression, and the entirely-theoretical belief that copyright acts as an "engine of free expression.")
So, no. A license does not "permit" First Amendment protection. The determination that the speech is infringing creates an exception to the First Amendment. There are about a dozen limitiations on exclusive rights, and well-defined boundaries to the scope of those rights; and if the speech is outside copyright's scope, or exempted from restriction by those limitations, then it is fully protected by the First Amendment. Similarly, authorization does not "permit" the speech; it determines that it is not infringing - hence the "infringement exception" to the First Amendment never applied, and the speech was always just as protected as any other speech.
As an example: unless the works that were linked to on Dajaz1's site were infringing, they are fully protected under the First Amendment. Since they were not infringing (and since that was the only excuse to shut down the not even allegedly unprotected speech that was also on the site), there is absolutely no question whatsoever that the government suppressed nothing but protected speech when it shut down the site.
That you find such suppression acceptable shows how little you respect free speech. Or, at the very least, how willing you are to disregard it in order to persecute those you believe are pirates.
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Earlier you said: "Again, I'm describing the actual law, not presenting an argument for how it could be if it were different..."
This comment sounds like you are projecting how you think it should work, not the actual law.
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I'm really not sure how you can keep making this argument when the Dajaz1 and Rojo cases (and others) prove this to be demonstrably not true at all out in the real world. Those cases are proof enough that the agent in the field cannot always reliably make this determination.
Also, Josh asked earlier and you didn't respond. Do you have an actual legal definition of what constitutes "simple piracy"?
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Two quick things.
1. The seizures did not target anyone who posted "Harry Potter" on the Internet. They targeted blogs, search engines, and forums that linked to other sites that hosted "Harry Potter" on the Internet. The seizures did not block one single byte of infringing content; all of it was still available at the third-party site that hosted the content.
2. If that copy of Harry Potter is infringing, then I do not have a First Amendment right to post it, because infringement creates an exception to First Amendment protection. If that copy of Harry Potter is not infringing - whether through authorization, or because it is exempt from infringement for other reasons - then yes, I do have a First Amendment right to post it.
Under my view, everyone can post whatever works that are not infringing that they want, even without a license, because the First Amendment protects them. And yes, it does work that way.
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Read through those cases, Marcus v. Search Warrants especially, and read through the cites I gave you where courts said the extraordinary procedural safeguards are not needed when the determination is easy to make. That's the key.
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My defense is that it's not infringing. Perhaps I have a license; or perhaps I'm engaging in behavior that falls outside of the scope of copyright's exclusive rights.
For example: under Judge Posner's ruling in the FlavaWorks case, MyVidster was not doing anything that infringed on copyright. Now, by your argument, Posner could say "well, even though it's not infringing, it's not authorized, so I'll allow the preliminary injunction anyway." You honestly don't think that would raise First Amendment concerns?
And it does not alter the fact that the Federal Government blocked protected speech when it seized Dajaz1's domain name. If the government blocks authorized speech, it is blocking speech protected by the First Amendment. End of story.
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It is not remotely tangential. It is, in fact, the heart of the matter.
You are arguing that an ICE agent can examine the MyVidster site, determine "based on his training and experience" that there is probable cause that MyVidster is committing criminal copyright infringement, and seize the myvidster.com domain, holding it for months on end.
And that it wouldn't raise any prior restraint issues, because "the determination is simple and objective and can be made reliably by agents in the field." And that even if the agent's wrong, "it's still not constitutionally protected speech at issue since it's the license that permits" MyVidster's activities; their "defense is the license, not the First Amendment."
That is exactly what happened with the domain names that were seized by ICE for copyright infringement. The idea that this could not possibly raise prior restraint concerns, under the same First Amendment doctrine that produced CDT v. Pappert and Fort Wayne Books, is completely insane.
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National Socialist Party of America et al v Village of Skokie (1977) (per curiam) says nothing about some dim or uncertain line. Instead, it just says:
Yeah, that's the Illinois Nazis.
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The doctrine is that of prior restraint.
Anyhow, the line is:
Nothing dim or uncertain about it.
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The Eleventh Circuit disagrees:
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Said the Eleventh Circuit: Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1265 (11th Cir. 2001).
Throw in fair use and the issue is different and prior restraint is on the table. I said so above and what you're quoting only proves me right. But you still haven't proved me wrong. Nor can you.
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So a bare allegation of copyright infringement is not always sufficient to remove materials from circulation.
But you're arguing that as soon as someone yells "COPYRIGHT!" then that justifies seizing expression for which no one holds a copyright registration.
A domain name is expression—but no one may hold a valid copyright registration for a simple word or short phrase.
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Without even a copyright registration for the offending word, this seems more like Cohen v California territory.
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As far as I have been able to tell, the Second Circuit, in light of intervening Supreme Court precedent, has most recently decided to explicitly reserve the question.
Their reasoning has been constitutional avoidance—a doctrine with which I concur.
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The United States Court of Appeals for the Second Circuit.
Maybe you need to do some more research?
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How is this any less of a question of prior restraint?
Regardless, you have yet to acknowledge that there are no extraordinary procedural safeguards when the issue is simple piracy.
Since you keep using the phrase "simple piracy" could you clarify what that means from a legal perspective? Is it defined in some precedent? And who gets to determine which cases qualify under "simple piracy" as opposed to something with fair use defenses or something not so simple?
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You see the First Amendment issue come up more often in the trademark context, such as with "sucks" sites (e.g., "techdirtsucks.com"), and many courts have explicitly held that domain names can be protected speech under the First Amendment.
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I have personally debated people in these comments, who claimed that the domain seizures didn't violate the First Amendment because domain names aren't speech. For example:
(In fact, I suspect that person was you.)
As this case (and others) makes clear, domain names themselves are can be considered potentially protected speech in their own right. Thus, any kind of domain name seizure implicates First Amendment concerns to some degree. (To what degree is debatable.)
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That might have been me, Karl. You didn't link, so I can't tell, but that sounds like what I used to believe. My subsequent research on the point indicates that the test is not simply whether the speech is presumptively protected. The test identified by the Supreme Court is that extraordinary procedural safeguards are only necessary when the determination that speech is not constitutionally protected is difficult to make. If it's difficult to make, the extraordinary procedural safeguards are needed, and if it's not, they're not.
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I have just re-read the Ft. Wayne Books ruling. They specifically use the words "presumptively protected," as in: "Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films." They never once indicate that those safeguards are "only necessary when the determination... is difficult to make."
Nor have I ever seen this "necessity" expressed in any other First Amendment case.
Plus, the website seizures were hardly "simple piracy" cases. There are, by my count, at least three separate First Amendment issues to consider:
1. The ex parte seizure and redirection of the domain names themselves (which can be protected speech).
2. The ex parte blocking of links to content (often user-generated), based solely probable cause that the content on third-party sites was infringing.
3. The ex parte blocking of absolutely protected speech - news, reviews, blog posts, forum posts - that was also on those sites.
All of these issues have nothing to do with whether the determination of infringement was "difficult."
Also, as dajaz1 shows, even the appearance of "simple piracy" doesn't mean the determination isn't difficult to make.
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The Court held that "a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech." The reason? Because the line between obscene and nonobscene, and therefore unprotected and protected speech, is "finely drawn," calling for "sensitive tools."
So the Court explicitly says that the reason you need the safeguards is because the determination is difficult to make, leaving too much to the whim of the agent in the field. The warrants in that case "gave the broadest discretion to the executing officers" who made "ad hoc decisions on the spot” as to whether the materials were obscene "with little opportunity for reflection or deliberation."
The Court concluded "that discretion to seize allegedly obscene materials cannot be confided to law enforcement officials without greater safeguards than were here operative."
Two years later in Bantam Books v. Sullivan, the Court further developed the doctrine, reiterating that in the context of obscenity, the "complexity of the test" mandates that states are "not free to adopt whatever procedures it pleases for dealing" with allegedly obscene materials. Because the line between obscene and nonobscene, and thus unprotected and protected speech, is "dim and uncertain," states must employ procedures that "will ensure against the curtailment of constitutionally protected expression."]
And the whole line of cases leading up to Fort Wayne Books develop this further. See Stanford v. Texas, Freedman v. Maryland, Quantity of Copies of Books v. Kansas, Lee Art Theater v. Virginia, Heller v. New York, Roaden v. Kentucky, New York v. P.J. Video, and Fort Wayne Books v. Indiana.
The extraordinary procedural safeguards are needed only when the determination between protected and unprotected is difficult to make.
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Here's another appellate court saying the same thing in dicta (in the child pornography context): Camfield v. City of Oklahoma City, 248 F.3d 1214, 1226-27 (10th Cir. 2001).
There are others. Note how the court says that when the determination is easy to make, the extraordinary procedural safeguards are not needed.
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The question is not whether ex parte seizures of infringing copies require extraordinary safeguards. (Indeed, not one bit of infringing speech was blocked by the seizures.) The question is whether an ex parte seizure that results in non-infringing content being suppressed requires extraordinary safeguards.
And the answer is: yes, it does. Since you brought up child pornography (big surprise), it should be noted that government actions targeting child pornography, that also result in the removal of material that is not child pornography, have repeatedly found to be unconstitutional. For example:
In sum: yes, those "extraordinary procedural safeguards" are necessary in child pornography cases, too. And there is no doubt that it is far, far easier to determine whether something is child pornography, than it is to determine whether something is infringing. After all, an authorized MP3 on a filesharing site, looks no different than an infringing MP3 on a filesharing site.
Furthermore, ex parte intellectual property seizures have often been overturned for being overbroad - though almost always on due process grounds. Examples:
I'm sure I could dig up more, but you're the one with Lexis-Nexus access.
If there isn't a case where First Amendment overbreadth doctrine hasn't applied to copyright seizures, it's because I couldn't find even one copyright seizure case where speech that was not even allegedly infringing was suppressed. The ICE seizures are unprecedented in that regard.
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FYI, some courts agree with Camfield that it's easy, and some agree with CDT v. Pappert that it's not; there's a split on that issue. The courts you're citing are on one side of the issue, and there are courts, as I've cited, that are on the other. But you're missing the bigger picture which is that there is an analysis to be run to determine whether extraordinary procedural safeguards are needed. No court has ever applied those safeguards when it's copyright, and several courts have explicitly held that prior restraint doesn't apply when it's simple piracy.
Your cite to cases involving Rule 65 have nothing to do with prior restraints; those are due process issues.
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No, it does not. The passage I quoted said only that "if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." What matters is not whether it could be considered "simple and objective" to determine whether materials are unprotected. The only thing that matters is if the seizure results in the blocking of protected speech.
You're probably thinking of the Ashcroft decision, which I quoted above, and discuss next.
FYI, some courts agree with Camfield that it's easy, and some agree with CDT v. Pappert that it's not; there's a split on that issue.
There is not. The court in CDT was fully aware of Camfield when it made its decision:
That is likely the quote in CDT that you are thinking of. But even though they discuss it, the fact that it is not "simple and easy" to spot child pornography is not what decided prior restraint. The court continues: "Moreover, even if fewer protections were necessary [for child pornography than for obscenity], the ex parte, probable cause determination provided for in the Act is insufficient."
several courts have explicitly held that prior restraint doesn't apply when it's simple piracy.
No, they haven't. The "simple piracy" term comes from an article ("Toward a Fair Use Standard") by Judge Pierre Leval of the Second Circuit - not from any case law. It is cited in a footnote in Campbell v. Acuff-Rose, and (quoting that case) in Suntrust Bank v. Houghton-Mifflin. Both of which were fair use cases - and both of which found in favor of fair use. Here's the entirety of the footnote from Campbell:
As you can see, Leval was not even discussing prior restraint, and neither his article nor the court cases were even considering cases where protected speech was shut down along with infringing speech. And Leval was discussing preliminary injunctions, not ex parte seizures. None of this even suggests that "prior restraint doesn't apply when it's simple piracy."
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The district court says: So right there, the district court says that, in its opinion, since the determination of child pornography is difficult to make, the extraordinary procedural safeguards are needed.
And obviously the reverse is that if the determination is simple to make, as the APPELLATE COURT found it to be, then the extraordinary procedural safeguards aren't needed. You haven't said anything that rebuts what I quoted TWO APPELLATE COURTS as having said, namely, that when the determination is simple to make, there's no need for the extraordinary procedural safeguards. You've said nothing that rebuts what the Supreme Court itself said in Marcus and Bantam Books, as I quoted above, that the reason the extraordinary procedural safeguards are needed is BECAUSE the line between protected and unprotected is dim and uncertain, and leaving such determinations to officers in the field leaves too great the chance that the officer becomes a censor.
As far as "simple piracy" goes. That's my term. I wasn't referring to anything in particular. I'm talking about simple, wholesale piracy, such as (and I've given this example numerous times) offering "Harry Potter" in full for people to download on the internet. Simple piracy is my shorthand for "no viable fair use defense." If fair use is on the table, then so is prior restraint. But when it's simple piracy and there is no colorable fair use argument, there is no prior restraint.
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You found the part in CDT v. Pappert where the court addressed the argument that the determination of child pornography is easy to make. Good.
I've read it numerous times, so I knew it was there. But, thanks for the condescension.
So right there, the district court says that, in its opinion, since the determination of child pornography is difficult to make, the extraordinary procedural safeguards are needed.
It was one reason extra procedural safeguards are needed. You missed the last line, which is odd, since you quoted it: Even with the lower threshhold of difficulty, ex parte probable cause is not enough for seizure.
And obviously the reverse is that if the determination is simple to make, as the APPELLATE COURT found it to be, then the extraordinary procedural safeguards aren't needed.
I have no idea which Appelate Court you're referring to, since the Camden court did not say that. They said they "do not necessarily agree with the implication that compliance with Fort Wayne Books is always required," but that "we do not decide the issue here." Nor should they have, as they didn't need to: "Nevertheless, under the particular facts of this case, we agree with the district court that the voluntary surrender plan imposed an unconstitutional prior restraint on speech."
And you are missing the larger issue, which you have never addressed. The cases we are discussing are deciding whether it is prior restraint when only the allegedly unprotected materials themselves are taken out of circulation. That is not the only situation where prior restraint occurs.
Another situation - and the situation which without doubt applies to the seizures - is when the removal of unprotected speech also blocks innocent speech as a consequence. An ex parte seizure of copies of child pornography may or may not be prior restraint; but the blocking of an entire website of protected speech, due solely to probable cause that there is child pornography on it, most certainly is.
All speech restrictions must be narrowly targeted to block only the unprotected speech. It matters not one whit how easy it is to tell if the speech in question is unprotected; if the government's actions result in the blocking of unrelated, protected speech, then it is overbroad, and unconstitutional. As the Ashcroft court so succinctly put it, "The Government may not suppress lawful speech as the means to suppress unlawful speech."
As far as "simple piracy" goes. That's my term. I wasn't referring to anything in particular.
Then you're stating your opinion, not settled case law. Which is fine.
I'm talking about simple, wholesale piracy, such as (and I've given this example numerous times) offering "Harry Potter" in full for people to download on the internet.
If an agent of the copyright holder to "Harry Potter" authorized me to offer it in full for people to download on the Internet, then it is not "simple, wholesale piracy," it is fully protected speech. And if the government seizes it ex parte on mere probable cause, they have committed prior restraint.
And as the Dajaz1 case showed us, the determination that a work is unauthorized cannot reliably be done ex parte.
Furthermore, if you are talking about this kind of "simple, wholesale piracy," then you are not talking about the domain name seizures.
Not a single one of the websites whose domains were seized offered "Harry Potter" in full for people to download. Instead, they linked to other websites that offered "Harry Potter" in full for people to download. Or, in some cases, they inline-linked to already-existing streams at other websites.
So, the agents were not determining whether a particular copy of "Harry Potter" was infringing. They were making an ex parte judgement that merely linking to that content constituted criminal infringement. That is anything but "simple piracy." It is so far from simple, that you were arguing that it was inconceivable that this wasn't direct infringement, right up until the point that Judge Posner said you're wrong.
But, again, even if it was simple, it does not give the government license to shut down innocent speech as well. They simply don't have the right to do that.
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Nonetheless, I quoted the D.C. Circuit Court of Appeals, AS HOLDING the same thing. Let me quote it again: Boggs v. Rubin, 161 F.3d 37, 40-41 (D.C. Cir. 1998) (internal citations omitted).
So that is an appellate court explicitly holding that, even though it was the pretrial seizure of presumptively protected materials, the Fort Wayne Books line of cases did not apply and the materials could be seized. Why? Because the determination that they were counterfeit, and thus not protected, was simple to make and could be done reliably by an agent in the field.
And if you read the district court opinion that was being appealed, you'll find a lengthy discussion of exactly that point.
Can you please comment on this specifically? I want to know if you can read that opinion and admit that a court of appeals agrees with exactly what I'm saying.
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And by the way, you still have not acknowledged the quotes from Marcus and Bantam Books, that I supplied above, where the Supreme Court notes that the extraordinary procedural safeguards are needed BECAUSE the line between protected and unprotected is "dim and uncertain" in certain contexts. Can you comment on that too, please?
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1. The ex parte determination that particular materials are infringing, and that the infringer did so willfully, cannot be made ex parte. The difference between infringement and non-infringement (especially on the Internet) is not "a determination [that] can be made entirely on observation rather than evaluation." It is not one where "No 'subjective' determinations were required — all the factors can be established with the naked eye." It is not one where "Any law enforcement officer — or even a lay person [...] could make the necessary observations." (Boggs)
When it comes to criminal infringement, even cases of "simple, wholesale piracy" do not meet the Boggs standard. If someone "offered 'Harry Potter' in full for download" from a website, it is impossible to tell "made on the basis of mere observation" whether that copy is infringing or non-infringing, and whether the infringement is willful. The Dajaz1 case proved this, and it was also shown in Viacom v. Google (where allegedly infringing videos were in fact deliberately uploaded by Viacom themselves).
It may seem like an infringing copy, but "protected speech does not become unprotected merely because it resembles the latter" (ACLU v. Ashcroft).
2. That determination is relevant only to whether the seizure is a prior restraint of the allegedly unprotected materials themselves. It is not the only situation where extra procedural protections are required. Even if a determination of non-protection is trivially easy to make with the naked eye, the government does not have the right to also suppress innocent speech in the process.
The Boggs case you cited do not even suggest that the overbreadth doctrine would not apply, if the government had seized speech in addition to the unprotected speech.
And neither do Marcus and Bantam. They discuss the "ease of determination" only because the cases dealt with removal of specific books, and not of entire venues of speech. Had they done so, there's no indication that they would have contradicted this rule. In fact, the reason they discuss it is precisely because innocent speech should not be shut down along with unprotected speech:
- Marcus v. Search Warrant
- Bantam Books v. Sullivan
The "ease of determination" criteria is not a determination of prior restraint, but merely a specific instance of it. Prior restraint, generally, occurs with any speech restriction that also interferes with innocent speech.
This is universally held to be true:
- Ft. Wayne Books v. Indiana
- American Library Ass'n V. Thornburgh
- CDT v. Pappert
In other words, it is not enough to determine whether the speech that drew the legal remedy in the first place is unprotected. It is necessary to determine that all expressive conduct interrupted by the seizure is unprotected. This is exactly what Marcus and Bantam (and pretty much every prior restraint case ever) has said. Nothing you have quoted contradicts a word of this.
3. The seizures were not targeted at infringing copies. They were targeted at links to infringing copies on third-party websites. Thus, the government made an ex parte judgement that the links themselves, not the content, were criminally infringing.
Even if you disagree with me on Point #1, and believe that it is "simple" to determine whether a link goes to infringing content, that is not the end of it. The government made an ex parte determination that the act of linking constitutes criminal infringement. Since this is nowhere in the copyright statutes, and nowhere in the case law on criminal infringement, the government made an ex parte decision about the legality of an entire category of expressive behavior. This is simply not allowed under prior restraint doctrine.
And, of course, it's worth mentioning that ICE's determination flies in the face of Perfect 10 v. Amazon, and (later) of lava Works v. myVidster. So, clearly, determinations of this kind cannot be made ex parte.
Nothing that you have quoted has contradicted any of this.
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When it comes to criminal infringement, even cases of "simple, wholesale piracy" do not meet the Boggs standard. If someone "offered 'Harry Potter' in full for download" from a website, it is impossible to tell "made on the basis of mere observation" whether that copy is infringing or non-infringing, and whether the infringement is willful. The Dajaz1 case proved this, and it was also shown in Viacom v. Google (where allegedly infringing videos were in fact deliberately uploaded by Viacom themselves).
It may seem like an infringing copy, but "protected speech does not become unprotected merely because it resembles the latter" (ACLU v. Ashcroft).
Total nonsense. An agent contacts the right holder to find out whether the use is authorized. Simple, objective. It's simpler and more objective than the three-part determination in Boggs, which involved deciding whether something looked close to actual currency. With infringement, you don't look for close, you look for exact copy. No court has ever said that the determination of copyright infringement is difficult, because it's not. No court has ever applied extraordinary procedural safeguards to copyright, because the determination is easy.
2. That determination is relevant only to whether the seizure is a prior restraint of the allegedly unprotected materials themselves. It is not the only situation where extra procedural protections are required. Even if a determination of non-protection is trivially easy to make with the naked eye, the government does not have the right to also suppress innocent speech in the process.
The Boggs case you cited do not even suggest that the overbreadth doctrine would not apply, if the government had seized speech in addition to the unprotected speech.
Overbreadth doctrine is a completely separate First Amendment doctrine that has nothing at all to do with prior restraint.
And neither do Marcus and Bantam. They discuss the "ease of determination" only because the cases dealt with removal of specific books, and not of entire venues of speech. Had they done so, there's no indication that they would have contradicted this rule. In fact, the reason they discuss it is precisely because innocent speech should not be shut down along with unprotected speech:
We held in Roth v. United States, 354 U. S. 476, 354 U. S. 485, that "obscenity is not within the area of constitutionally protected speech or press." But, in Roth itself, we expressly recognized the complexity of the test of obscenity fashioned in that case and the vital necessity in its application of safeguards to prevent denial of "the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest."
- Marcus v. Search Warrant
Our insistence that regulations of obscenity scrupulously embody the most rigorous procedural safeguards, Smith v. California, 361 U. S. 147; Marcus v. Search Warrant, supra, is therefore but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks.
- Bantam Books v. Sullivan
The same test applies whether its materials or the instrumentalities used to produce those materials. You seem to think that criminals can insulate their tools by also using them for noncriminal purposes.
The "ease of determination" criteria is not a determination of prior restraint, but merely a specific instance of it. Prior restraint, generally, occurs with any speech restriction that also interferes with innocent speech.
This is universally held to be true:
The pretrial seizure of petitioner's bookstore and its contents in No. 87-470 was improper. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films. Here, there was no determination that the seized items were "obscene" or that a RICO violation had occurred. The petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the seizure order recited no more than probable cause in that respect. Mere probable cause to believe a violation has transpired is not adequate to remove books or film from circulation. [...]
While we accept the Indiana Supreme Court's finding that Indiana's RICO law is not "pretextual" as applied to obscenity offenses, it is true that the State cannot escape the constitutional safeguards of our prior cases by merely recategorizing a pattern of obscenity violations as "racketeering."
At least where the RICO violation claimed is a pattern of racketeering that can be established only by rebutting the presumption that expressive materials are protected by the First Amendment, that presumption is not rebutted until the claimed justification for seizing books or other publications is properly established in an adversary proceeding. Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order. Yet it remained to be proved whether the seizure was actually warranted under the Indiana CRRA and RICO statutes. If we are to maintain the regard for First Amendment values expressed in our prior decisions dealing with interrupting the flow of expressive materials, the judgment of the Indiana Court must be reversed.
- Ft. Wayne Books v. Indiana
Fort Wayne was an obscenity case, and the seizure occurred before there was a determination on the merits of actual obscenity. Thus, prior restraint. That doesn't refute that the test turns on the context. That case actually backs up my point, since the Court specifically calls for extraordinary procedural safeguards because the context is obscenity.
The key in determining the constitutionality of a law that 'spills over' from a legitimate governmental interest--such as the effort against child pornography--onto protected material is whether the legislation is 'narrowly drawn' to avoid as much interference with protected material as possible while furthering the legitimate governmental interest. Courts must be especially vigilant in scrutinizing broad legislative efforts that clearly burden protected First Amendment material in the name of attacking things not constitutionally protected. [...]
Under the forfeiture provisions, however, there is never any determination that the forfeited material is "obscene" — the laws provide for forfeiture of any property used in, to promote, or obtained from the commission of the offense, whether or not it is "obscene" material, First Amendment protected material, or non-expressive material.
Nonetheless, this Court can glean from the Fort Wayne Books opinion a clear proscription against pre-trial seizure of material protected by the First Amendment from a business that is primarily engaged in producing or selling expressive material. To allow pre-trial seizure of entire bookstores upon a showing that just two pieces of probably obscene material have been sold — as occurred in the Indiana case — offends the Supreme Court's holdings against unduly "interrupting the flow of expressive materials."
- American Library Ass'n V. Thornburgh
Again, pretrial seizure of obscene materials. Obscenity is different, because, as the Supreme Court explicitly said in Marcus and Bantam Books, it's a difficult determination to make.
In addition, the Act suppresses substantially more protected material than is essential to the furtherance of the government's interest in reducing child sexual abuse. Although the prevention of child exploitation and abuse is an state interest unrelated to the suppression of free expression, defendant has not produced any evidence that the implementation of the Act has reduced child exploitation or abuse. The Act does block some users' access to child pornography; however, the material is still available to Internet users accessing the material through ISPs other than the one that blocked the web site. [...] Although the inference could be drawn that making it more difficult to access child pornography reduces the incentive to produce and distribute child pornography, this burden on the child pornography business is not sufficient to overcome the significant suppression of expression that resulted from the implementation of the Act.
More than 1,190,000 innocent web sites were blocked in an effort to block less than 400 child pornography web sites, and there is no evidence that the government made an effort to avoid this impact on protected expression. [...] This burden on protected expression is substantial whereas there is no evidence that the Act has impacted child sexual abuse. Thus, the Act cannot survive intermediate scrutiny.
- CDT v. Pappert
The court there is applying overbreadth doctrine, which has nothing to do with prior restraint doctrine. You are mixing up doctrines and showing that you're quite confused.
In other words, it is not enough to determine whether the speech that drew the legal remedy in the first place is unprotected. It is necessary to determine that all expressive conduct interrupted by the seizure is unprotected. This is exactly what Marcus and Bantam (and pretty much every prior restraint case ever) has said. Nothing you have quoted contradicts a word of this.
You're mixing up two doctrines, quite severely so. Marcus and Bantam Books did not say that because though weren't overbreadth cases, they were prior restraint cases.
3. The seizures were not targeted at infringing copies. They were targeted at links to infringing copies on third-party websites. Thus, the government made an ex parte judgement that the links themselves, not the content, were criminally infringing.
Which has zero to do with prior restraint doctrine. The tangents and mixing of doctrines is not helpful.
Even if you disagree with me on Point #1, and believe that it is "simple" to determine whether a link goes to infringing content, that is not the end of it. The government made an ex parte determination that the act of linking constitutes criminal infringement. Since this is nowhere in the copyright statutes, and nowhere in the case law on criminal infringement, the government made an ex parte decision about the legality of an entire category of expressive behavior. This is simply not allowed under prior restraint doctrine.
You're trying to argue the merits of the case and challenge the probable cause determination on the merits. I get that. But please, those are tangential to the issue of law that I'm trying to discuss with you, which is the prior restraint doctrine. Can we focus just on this one doctrine?
Nothing that you have quoted has contradicted any of this.
Because frankly it's a jumbled mess that has little to do with the simple point that I'm trying to make, which is that whether the pretrial seizure of presumptively protected materials based upon mere probable cause is a prior restraint turns on the context and the difficulty of the determination.
Can you please focus on only that? It's really frustrating to discuss things with you when you come back with really huge posts with long quotes and a bunch of all-over-the-place arguments. Can we take things one point at a time?
Do you agree or disagree that whether such pretrial seizures are prior restraints turns on the difficulty of the determination? If you disagree, do you nevertheless agree or disagree that the district court and appellate court in Boggs said explicitly that it did?
Can we start there? I'd really like to discuss this with you, but I think we need to take it one step at a time. Thanks, and hope your Turkey Day was enjoyable.
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Now my question is this, even if the above is true, why do you argue for it so strenuously? Even if it is true, wouldn't a reasonable person who believes in the basic tenets that our country and legal system were founded upon realize that it really isn't working the way it should in light of the protected speech that was impacted in the Dajaz1 case and others? Wouldn't a reasonable person argue that it needs to be fixed to avoid such situations like Dajaz1?
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It is "backed up with case law": Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 626 (9th Cir. 2003). Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999). Bosley v. Wildwett.com, 310 F.Supp.2d 914, 930-31 (N.D. Ohio 2004).
Now my question is this, even if the above is true, why do you argue for it so strenuously? Even if it is true, wouldn't a reasonable person who believes in the basic tenets that our country and legal system were founded upon realize that it really isn't working the way it should in light of the protected speech that was impacted in the Dajaz1 case and others? Wouldn't a reasonable person argue that it needs to be fixed to avoid such situations like Dajaz1?
The intersection of the First Amendment and Copyright Act is one of my primary interests. The constitutional issue is more important to me than the underlying policy issues, though those are interesting too, of course. I enjoy the nuances of the doctrine.
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The problem I have is when you make the leap to removing hundreds instances of possibly protected speech based on the determination of infringement of a single work. Only the alleged infringing work would be protected by the Fair Use doctrine. The rest would be in limbo without a defense at all. I simply cannot believe that it doesn't constitute prior restraint for the remainder of the works not specifically mentioned in an indictment.
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The agents did contact the rightsholders (or who they thought were the rightsholders), in the Dajaz1 case. They were wrong. Even leaving aside the vast amounts of innocent speech on that site, the seizure of the materials specified in the affidavit would be a prior restraint.
If it were "simple" and "objective," the mistake wouldn't have been made. It was. The fact that it actually happened proves that you're wrong.
No court has ever said that the determination of copyright infringement is difficult, because it's not.
The court in Suntrust did say that, actually. It was a fair use case, but all the same, it shows that copyright infringement is not as "simple" or "objective" as you'd like to think. They didn't say that in the case of "simple piracy," but the case law never dealt with situations where unauthorized material was indistinguishable from authorized material. Such as it is in cases where the material is a digital file.
That determination is anything but "easy." It is, in fact, the very reason the DMCA safe harbors exist. It is extraordinarily difficult for any third party to determine whether a copy is infringing or not on the Internet. It is not any easier for ICE to determine it, than it is for Google.
Overbreadth doctrine is a completely separate First Amendment doctrine that has nothing at all to do with prior restraint.
Perhaps I'm using "overbreadth" improperly. There is no explicit "overbreadth doctrine" in case law; it's kind of a shorthand for all manner of speech restrictions that also burden innocent speech. For instance, the "narrowly tailored" and "least restrictive means" tests of strict scrutiny, and the "incidental restriction [...] is no greater than is essential" test from O'Brien, both seem to be examples of "overbreadth." But Marcus v. Search Warrant also seems to be an "overbreadth" case if read literally: "Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees." Yet Marcus is generally considered a prior restraint case.
So, as near as I can determine, the "overbreadth doctrine" is simply an instance of prior restraint. At the very least, that is the case when talking about ex parte seizures. As the court said in CDT v. Pappert: "Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." Ft. Wayne Books also used the term: "The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here."
The same test applies whether its materials or the instrumentalities used to produce those materials. You seem to think that criminals can insulate their tools by also using them for noncriminal purposes.
When those "noncriminal purposes" are "the flow of expressive materials," then yes, those "tools" are "insulated" from ex parte seizure based on probable cause. The courts in Ft. Wayne Books v. Indiana, and American Library Ass'n V. Thornburgh, made this uniquivocably clear.
Also, the ICE seizures did not seize any tools used to produce infringing content, nor did they claim to.
Again, pretrial seizure of obscene materials.
Neither Fort Wayne Books nor American Library Association were dealing with the pretrial seizure of obscene materials. The Fort Wayne Books case dealt with the seizing of an entire bookstore. The American Library Association case had an entire section detailing how the seizure rules, specifically, were unconstitutional, precisely because "the laws provide for forfeiture of any property used in, to promote, or obtained from the commission of the offense, whether or not it is 'obscene' material, First Amendment protected material, or non-expressive material."
Focusing solely on the obscenity issue, while completely ignoring everything else, is utterly ludicrous.
Obscenity is different, because, as the Supreme Court explicitly said in Marcus and Bantam Books, it's a difficult determination to make.
Marcus and Bantam were quoting Speiser v. Randall, which was not an obscenity case. It may be helpful to read that section of the Speiser case:
They were not talking about obscenity, but all speech restrictions generally. No matter what the speech restirction, they are all "finely drawn" and require "sensitive tools." The problem may be heightened when the determination of non-protection is difficult to make; but it never disappears altogether.
[Me:] The seizures were not targeted at infringing copies. They were targeted at links to infringing copies on third-party websites. Thus, the government made an ex parte judgement that the links themselves, not the content, were criminally infringing.
[You:] Which has zero to do with prior restraint doctrine.
Of course it does. Even ignoring the "overbreadth" issue, if the links to infringing content were not criminally infringing, then the government was putting a prior restraint on the links themselves.
Moreover, it is not irrelevant, since the ex parte determination was whether the links were infringing. Determining that the content that the links led to was infringing, is not remotely the same as determining that linking to that content is criminally infringing. That determination is the very definition of "dim and uncertain."
Do you agree or disagree that whether such pretrial seizures are prior restraints turns on the difficulty of the determination? If you disagree, do you nevertheless agree or disagree that the district court and appellate court in Boggs said explicitly that it did?
It depends on what you mean by "such pretrial seizures." I'm going to call such seizures "ex parte seizures, based only on probable cause that specific instances of speech are unprotected," since that's the issue under discussion. This discussion is not about pretrial seizures that occur after an adversarial hearing.
Now that we're clear:
1. Whether such seizures of only the allegedly unprotected speech, are prior restraints of that allegedly unprotected speech, probably turns on the difficulty of the determination. (I'm not quite willing to grant it as a bright-line rule.) But here, the test from both Boggs and the child pornography cases, is whether that determination can be made on observation alone.
2. Whether such seizures that also block innocent speech, are prior restraints of the innocent speech, has absolutely nothing to do with the difficulty of the determination. Even if the determination is obvious from observation, an ex parte seizure may not block innocent speech as a consequence. Whether you choose to call this "overbreadth" or "prior restraint," either way it is unconstitutional.
For example, the government could not seize a domain name ex parte because of child pornography residing on it. When Operation Protect Our Children mistakenly seized the domains for 84,000 websites for allegedly hosting child pornography, it was unconstitutional, even if you apply the Camfield standard.
Frankly, I have no idea why you're so heavily on the government's side. Pretrial seizures are often granted, but ex parte seizures are an extraordinary remedy that is supposed to be applied only in exigent circumstances. The government would lose nothing whatsoever if they were required to hold an adversarial hearing before seizing the domains. There is really no justification at all for the ex parte process, and I have absolutely no idea why you're willing to constrict prior restraint doctrine in order to defend them.
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The persistent argument that Freedman v Maryland is somehow limited solely to obscenity just won't wash.
Not only does Village of Skokie (1977) (linked above) apply Freedman outside the obscenity context, but it cites Nebraska Press v Stuart (1975) (BLACKMUN, J., in chambers).
Going back further, Carroll v Princess Anne (1968) also extended Freedman outside the obscenity context.
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It's not limited to obscenity, it just comes up most often in the jurisprudence in the obscenity context. As Professor Monaghan observed in his seminal article: Henry P. Monaghan, First Amendment "Due Process", 83 Harv.L.Rev. 518 (1970).
The dangers of a censorship regime are particularly acute in the obscenity context, where the speech at issue is evaluated because of the message or ideas it contains. Moreover, distinguishing obscene from merely pornographic is difficult to do, applying the three-part test from Miller.
None of that applies when it's simple piracy. As the Supreme Court noted in Campbell, "in the vast majority of cases, an injunctive remedy is justified because most infringements are simple piracy." Copyright laws operate differently than other speech restrictions, and the dangers of censorship are not present. This is why the Court applies mere rational basis scrutiny to substantive copyright laws instead of heightened scrutiny as it does to other speech restrictions, such as obscenity laws.
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You're being either inaccurate or misleading - again. See my explanation earlier about what the court actually said in Campbell.
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Addendum: As I said above, the Campbell court was quoting Leval, "Toward a Fair Use Standard." Here's the quote from Leval, put in context:
Leval was talking about injunctions issued after an actual finding of infringement. No mention of the ex parte process. Not even the hint of a suggestion that "none of that applies when it's simple piracy."
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Injunction thus follows as a matter of course upon a finding of infringement. In the vast majority of cases, this remedy is justified because most infringements are simple piracy.
Leval was talking about injunctions issued after an actual finding of infringement. No mention of the ex parte process. Not even the hint of a suggestion that "none of that applies when it's simple piracy."
I appreciate you finding the whole quote. That the Supreme Court pulled it partly out of context indicates to me that it should be understood in the new context that the Court has used it in--not the context they purposefully discarded, which is what you suggest as a method of interpretation.
Nonetheless, you've pulled it out of context yourself. Here's the whole paragraph: He's merely talking about irreparable harm, which is one of the factors balanced when a court decides to issue an injunction or not. He's stating the old rule, that irreparable harm can be presumed if there is a likelihood of infringement. That used to end the inquiry, but the new rule that's catching on is that the plaintiff actually has to show irreparable harm--it's not to be presumed. That's what the court said in a patent case, and courts are applying that to copyright. Not all courts yet, I don't think, but at least courts of appeal have said so (IIRC).
Anyway, that's one of the differences between the an ex parte seizure and an injunctive relief. The seizure works on a probable cause basis while an injunction is a balance of equitable factors, where chance of success on the merits is but one factor.
Nonetheless, the quote both in and out of context only supports what I've been saying. If there was a significant risk of prior restraint in the copyright context, then the Supreme Court would not be so eager to point out the propriety of an injunction when it's a case of simple piracy. Remember, if the context was obscenity, preliminary injunctions would be prior restraints. Here, the Court is noting that they are rightfully enjoined, even in the context of a preliminary injunction where there has only been a possibly very weak showing of success on the merits. And this is where I think your being unfamiliar with the procedural law works against you. You seem to think that the court is talking about there having been made a final determination of infringement--such as with a permanent injunction. But that's not what Judge Leval and the Court is referring to. Leval article is discussing preliminary injunctions as well, saying that such injunctions issue as a matter of course once infringement has been shown. But you have to keep in mind the standard. When it's a preliminary injunction, it just means that one factor, plaintiff's likelihood of success on the merits, favors the plaintiff. This determination is usually made before discovery even commences, so the court has little record to base the decision off of. So it's anything but a final determination. And yet, the Supreme Court saw no problem with injunctions issuing as a matter of course when it appears to be simple piracy. That only backs me up.
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Or I'm being truthful and you're just wrong. Yes, the Court was not talking about prior restraint. But if injunctions in a case of simple piracy would amount to a prior restraint, why would the Supreme Court say that an injunctive remedy is appropriate? If such injunctions were prior restraints, the Court would have warned against their usage.
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I simply cannot have these conversations with you where you attempt to deal with several issues at once. It's unproductive and a waste of time. I'm happy to discuss things at the granular level, but I think we need to proceed step by step. As such, I'm going to ignore most of what you wrote so we can stay focused on one thing. Let's finish with one thing before we jump to the next thing. Suffice it to say that I think that pretty much every single thing you have typed is wrong. The only way I can ever demonstrate this to you is to go one point at a time. I hope you understand.
Me: Do you agree or disagree that whether such pretrial seizures are prior restraints turns on the difficulty of the determination? If you disagree, do you nevertheless agree or disagree that the district court and appellate court in Boggs said explicitly that it did?
You: It depends on what you mean by "such pretrial seizures." I'm going to call such seizures "ex parte seizures, based only on probable cause that specific instances of speech are unprotected," since that's the issue under discussion. This discussion is not about pretrial seizures that occur after an adversarial hearing.
Pretrial means before a trial on the merits. Thus, an ex parte application for a seizure warrant occurs pretrial. So does a motion for a temporary restraining order or a preliminary injunction. Preliminary injunctions, while pretrial, are not ex parte. So the distinction that you are trying to make, that pretrial means ex parte, is not correct. Some pretrial hearings are ex parte and some are not. You seem to think that a pretrial hearing that is not ex parte, such as in the context of a motion for a preliminary injunction, are somehow less likely to be prior restraint. I don't think the case law makes that distinction--the Court has said the same procedural safeguards are needed when it's an ex parte seizure as when it's a pretrial injunctive motion.
That said, you still have not answered my question. Do you agree that the courts in Boggs both indicated that whether the pretrial seizure of presumptively protected speech was a prior restraint depended on the context, since in some contexts, such as counterfeiting at issue there, the determination between protected and unprotected is simple and objective?
Let's get past this single point before we move to the next one.
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The distinction is tremendously important when talking about prior restraint. All of the cases that we are talking about deal with ex parte seizure orders based on probable cause.
And that's what happened with the domain name seizures. If the court had allowed an adversarial hearing (not necessarily a trial) prior to the seizures, we would be having an entirely different conversation.
The case law dealing with pretrial seizures (or TRO's or injunctions) after an adversarial hearing simply are not relevant to the seizures. If you're talking about the seizures, you must limit the case law to cases dealing with ex parte seizures.
I was never talking about "pretrial" seizures in this entire thread, because it's irrelevant. And I believe I've always been explicit about the distinction.
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1. Whether such seizures of only the allegedly unprotected speech, are prior restraints of that allegedly unprotected speech, probably turns on the difficulty of the determination. (I'm not quite willing to grant it as a bright-line rule.) But here, the test from both Boggs and the child pornography cases, is whether that determination can be made on observation alone.
2. Whether such seizures that also block innocent speech, are prior restraints of the innocent speech, has absolutely nothing to do with the difficulty of the determination. Even if the determination is obvious from observation, an ex parte seizure may not block innocent speech as a consequence. Whether you choose to call this "overbreadth" or "prior restraint," either way it is unconstitutional.
For example, the government could not seize a domain name ex parte because of child pornography residing on it. When Operation Protect Our Children mistakenly seized the domains for 84,000 websites for allegedly hosting child pornography, it was unconstitutional, even if you apply the Camfield standard.
Let me respond to this, as I think I can save us some time. I understand what you're saying in (1). I'm glad you now admit (I believe this is a first) that the test may turn on the difficulty of the determination. But it's (2) where you lose me. You're trying to invent some hybrid argument whereby an instrumentality that is otherwise seizable pretrial suddenly becomes not seizable if it's also used for protected speech--speech that could never be suppressed regardless. In other words, you're arguing that even if materials suspected to be infringing could be seized pretrial consistent with the First Amendment, the instrumentalities used to facilitate that infringement can also be seized pretrial, but only if they are not also used for protected speech. Where did you get this idea? Can you cite any court that has said protected uses insulate an instrumentality like this? I sincerely doubt it.
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And now you've lost me about the whole "pretrial" vs. "ex parte" thing. Your whole argument has been about how difficult it is to make the determination ex parte. I mean, that was the entire debate in the Boggs and Camfield cases.
By the way - the determination of prior restraint in (1), often does turn on the difficulty of determining protected vs. unprotected materials ex parte. But that determination is not the only reason for extra safeguards; they arise from "the larger principle that the freedoms of expression must be ringed about with adequate bulwarks" (as Bantam put it). So that may not the only thing that determines prior restraint in such cases.
Ultimately, the determination of prior restraint turns on whether the seizure suppresses protected speech. That's why I said "probably." There may be cases I haven't heard of (or future cases) where that's not the deciding factor.
But it's (2) where you lose me. You're trying to invent some hybrid argument whereby an instrumentality that is otherwise seizable pretrial suddenly becomes not seizable if it's also used for protected speech--speech that could never be suppressed regardless. In other words, you're arguing that even if materials suspected to be infringing could be seized pretrial consistent with the First Amendment, the instrumentalities used to facilitate that infringement can also be seized pretrial, but only if they are not also used for protected speech. Where did you get this idea? Can you cite any court that has said protected uses insulate an instrumentality like this? I sincerely doubt it.
Have you even read anything I wrote in this entire discussion? Many the cases I've quoted say that "instrumentalities" cannot be seized if that seizure results in "interrupting the flow of expressive materials."
In case you missed it, Ft. Wayne Books said this explicitly: "Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved."
And - yet again - here's some relevant passages from American Library Association ruling:
I have never, ever, ever seen a single case that held that innocent speech can be blocked by an ex parte determination of probable cause that unrelated speech is unprotected. On the other hand, both Ft. Wayne Books and American Library Association explicitly prohibit such seizures.
As is clear from both cases, it is different when the siezure is done following an adversarial hearing, but we were never discussing that situation.
And what do you mean by "speech that could never be suppressed regardless?" If the government seizes or blocks innocent speech, then that speech is suppressed. That is the entire basis of every First Amendment case, ever.
Seriously, it's like you're speaking Klingon or something.
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Oh, and let's not leave out CDT v. Pappert. I quoted it already, but apparently you didn't see this:
The court said, explicitly, that if blocking unprotected materials accessible through its service results in "overblocking," such blocking cannot survive First Amendment scrutiny.
You can't do away with that ruling simply by renaming "blocking unprotected materials accessible through its service" to "seizing instrumentalities used to facilitate unprotected speech." If either one results in "overblocking," it's unconstitutional.
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And as soon as a court is applying any level of scrutiny, you know they're not talking about prior restraint. You're mixing up the doctrines again.
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I have. You're mixing up so many different things that I find it impossible to have a coherent discussion with you. This is why I'm saying that I'll go over things one point at a time.
I have never, ever, ever seen a single case that held that innocent speech can be blocked by an ex parte determination of probable cause that unrelated speech is unprotected. On the other hand, both Ft. Wayne Books and American Library Association explicitly prohibit such seizures.
Neither one of those cases says what you think as neither one says that an instrumentality that could otherwise be seized upon mere probable cause all of the sudden can't be touched until after a full trial on the merits just because it's also used for protected speech.
I'm happy to go through this stuff with you at the subatomic level, but we need to do little itty-bitty baby steps. You just want to jump to the punchline.
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A preliminary injunction and an ex parte seizure are possibly a prior restraint if the context is obscenity.
There is a big difference between injunctions and ex parte seizures, even in obscenity cases. For example, in my current residence of Massachusetts, state obscenity law allows for preliminary injunctions pending trial. Seizure of the material, however, cannot happen until after a trial on the merits.
Neither one of those cases says what you think as neither one says that an instrumentality that could otherwise be seized upon mere probable cause all of the sudden can't be touched until after a full trial on the merits just because it's also used for protected speech.
You're building a straw man. I never once in this thread suggested that a full trial on the merits is necessary. And you're right, neither did CDT, Ft. Wayne Books, or American Library Association.
Instead, they said that an instrumentality that could otherwise be seized upon mere probable cause all of the sudden can't be touched until after an adversarial hearing just because it's also used for protected speech. And they said so unequivocably.
But if injunctions in a case of simple piracy would amount to a prior restraint, why would the Supreme Court say that an injunctive remedy is appropriate?
More straw man arguments. I never said an injunctive remedy would amount to prior restraint. I have always said, and am saying, that an ex parte seizure based upon probable cause is unconstitutional prior restraint, if that seizure "interrupt[s] the flow of expressive materials" (in the words of Fort Wayne Books v. Indiana).
And as soon as a court is applying any level of scrutiny, you know they're not talking about prior restraint. You're mixing up the doctrines again.
In that case, so is the court in CDT v. Pappert: "if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." CDT v. Pappert, Fort Wayne Books v. Indiana, and Bantam Books v. Sullivan were all prior restraint cases. Moreover, without applying some kind of First Amendment scrutiny, how on Earth would you determine if a seizure is prior restraint or not?
The term "prior restraint" is a lot broader than you seem to think it is. Generally, the distinction is between "prior restraint" and "subsequent punishment." For example: "While we may have given a broader definition to the term 'prior restraint' than was given to it in English common law, our decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments" (Alexander v. U.S.). When I use the term "prior restraint," I am using it in exactly the same way that the courts do in all those cases: an unconstitutional restraint on speech, that is not a subsequent punishment. Most First Amendment cases are prior restraint cases.
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I was thinking of the Vance case, where the Supreme Court said that a preliminary injunction was constitutionally inadequate because an adequate determination had not been made. What matters though for prior restraint purposes is the procedures used. A licensing system can prevent films from ever being exhibited in the first place so long as it employs adequate procedures. A regular preliminary injunction hearing would be inadequate. But one could devise a system where there was extra procedures used before such an injunction issued, making it constitutional. So it's not a matter of preliminary injunction = constitutional or not. What matters is the procedures involved.
You're building a straw man. I never once in this thread suggested that a full trial on the merits is necessary. And you're right, neither did CDT, Ft. Wayne Books, or American Library Association.
Instead, they said that an instrumentality that could otherwise be seized upon mere probable cause all of the sudden can't be touched until after an adversarial hearing just because it's also used for protected speech. And they said so unequivocably.
You're reading into it more than is there. The Court also said that presumptively protected materials can't be seized, but that's only true when the seizure is content-based and there's not enough procedures involved since the determination between protected and unprotected is difficult to make. When the materials in question can be seized without it being a prior restraint, then so can the instrumentalities. You're reading of that sentence takes it out of context and is facile.
More straw man arguments. I never said an injunctive remedy would amount to prior restraint. I have always said, and am saying, that an ex parte seizure based upon probable cause is unconstitutional prior restraint, if that seizure "interrupt[s] the flow of expressive materials" (in the words of Fort Wayne Books v. Indiana).
And you've already admitted that the test is more nuanced than that overly-facile reading. We're just going in circles here. Remember when you read Boggs and agreed that, despite the clear language to the contrary in Fort Wayne Books, the very language you cite now, presumptively protected materials could nonetheless be seized ex parte. Having conceded that point, you're inventing some new argument that relies on the very words you agreed were not literally true in other contexts.
That the context was obscenity and that the safeguards are needed because it was obscenity is abundantly clear. You're ignoring the context and the line of cases going back to Marcus. You're ignoring the entire reasoning behind the doctrine to arrive at your conclusion. Look at the whole section in context: Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 62-64 (1989).
Your pulling things out of context. The Court is clearly talking about obscenity. Marcus, Quantity of Books, Lee Art, Heller, P.J. Video, Lo-Ji Sales, Macon. Every case cited is an obscenity case. What the Court is saying is that if presumptively protected materials are involved, and it's obscenity or even some other similar situation where extraordinary procedural safeguards are needed, then neither materials or instrumentalities can be seized without adequate procedures. They are not saying, as you read it, that the procedures always apply to instrumentalities when those instrumentalities are used for speech that is even conceded to be protected (and can never be suppressed).
In that case, so is the court in CDT v. Pappert: "if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." CDT v. Pappert, Fort Wayne Books v. Indiana, and Bantam Books v. Sullivan were all prior restraint cases. Moreover, without applying some kind of First Amendment scrutiny, how on Earth would you determine if a seizure is prior restraint or not?
Prior restraint looks at whether the procedures are constitutionally adequate vis-a-vis the First Amendment. Statutes are not challenged on their substance. When a court is applying rational basis or heightened scrutiny, that's a substantive challenge. Prior restraint is a procedural challenge. Two separate doctrines.
The term "prior restraint" is a lot broader than you seem to think it is. Generally, the distinction is between "prior restraint" and "subsequent punishment." For example: "While we may have given a broader definition to the term 'prior restraint' than was given to it in English common law, our decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments" (Alexander v. U.S.). When I use the term "prior restraint," I am using it in exactly the same way that the courts do in all those cases: an unconstitutional restraint on speech, that is not a subsequent punishment. Most First Amendment cases are prior restraint cases.
And any court applying, say, intermediate scrutiny, to a statute is not doing a prior restraint analysis. They're doing a substantive analysis of the statute, not a procedural one. Prior restraint has nothing to do with applying levels of scrutiny.
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I would, however, like to rebut this:
Prior restraint looks at whether the procedures are constitutionally adequate vis-a-vis the First Amendment. Statutes are not challenged on their substance. When a court is applying rational basis or heightened scrutiny, that's a substantive challenge. Prior restraint is a procedural challenge. Two separate doctrines.
Not at all. There is such a thing as substantive prior restraint, just as there is procedural prior restraint. There are many cases where this is explicit.
The Indiana Appeals Court gives a pretty good overview of this:
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I mean, one of the hallmark prior restraint cases - New York Times v. United States - involved substantive, not procedural, First Amendment analysis.
The most famous quote about prior restraint, ever, comes from Bantam Books v. Sullivan: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." The cases they list as "prior restraint" cases are: Near v. Minnesota; Lovell v. City of Griffin; Schneider v. New Jersey; Cantwell v. Connecticut; Niemotko v. Maryland; Kunz v. New York; and Staub v. City of Baxley. The court in Bantam was absolutely correct: every single case involved prior restraint. As far as I can tell, all of those involved substantive, not procedural, First Amendment analysis.
Also, Police Dep't. of Chicago v. Mosley was without question a prior restraint case; it was substantive, and moreover quoted U.S. v. O'Brien directly. Ditto for R.A.V. v. City of St. Paul.
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I mean, one of the hallmark prior restraint cases - New York Times v. United States - involved substantive, not procedural, First Amendment analysis.
No, the Court did not do a substantive analysis of the statute, testing the fit between its means and ends. The Court did not apply any level of scrutiny--rational basis, intermediate, or strict--to the statute. The Court affirmed the holding of the D.C. Circuit, which had held that the government did not satisfy its burden of proving that publication "would gravely prejudice the defense interests of the United States or result in irreparable injury to the United States." An injunction would have been a true prior restraint on speech, since it would have prohibited speech from being published without adequate justification. The Court held that a preliminary injunction would be a prior restraint because there had not been an adequate determination that the speech at issue was unprotected. The procedures were inadequate = prior restraint. That analysis had nothing at all to do with looking at the statute that was being enforced and discussing whether its means and ends were sufficiently related as one would do in a substantive analysis.
The most famous quote about prior restraint, ever, comes from Bantam Books v. Sullivan: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." The cases they list as "prior restraint" cases are: Near v. Minnesota; Lovell v. City of Griffin; Schneider v. New Jersey; Cantwell v. Connecticut; Niemotko v. Maryland; Kunz v. New York; and Staub v. City of Baxley. The court in Bantam was absolutely correct: every single case involved prior restraint. As far as I can tell, all of those involved substantive, not procedural, First Amendment analysis.
None of those cases established which test it was applying to the substantive law--rational basis, intermediate, or strict--and then considered whether the means and ends were sufficiently close for constitutional purposes. They were prior restraints because they allowed for the restraint of speech to occur before there was a sufficient showing that the speech was unprotected, i.e., the procedures employed were not sufficiently tuned to First Amendment concerns. But none involve declaring a statute to be a prior restraint because it failed a means-ends substantive analysis
So I think you should think of this way:
(1) If the court decides which level of scrutiny to apply (rational basis, intermediate, or strict) and then tests the fit between the means and ends, that's a substantive analysis.
(2) If the court looks at the adequacy of the procedures involved before speech is taken out of circulation (licensing scheme, seizure warranting scheme, injunctive scheme), that's a prior restraint analysis.
You're mixing up the two rather severely. Hope this helps.
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(1) Equal protection analysis when the statute creates distinctions between groups. Suspect groups get strict scrutiny and quasi-suspect groups get intermediate scrutiny. All others get rational basis scrutiny.
(2) Substantive due process analysis when the statute impinges on implied liberty interests. Fundamental rights get strict scrutiny. All others get rational basis scrutiny.
(3) First Amendment analysis when the statute impinges on freedom of speech or press. Content-based restrictions get strict scrutiny and content-neutral restrictions get intermediate scrutiny. (Copyright gets rational basis scrutiny since it is not a restriction on speech for First Amendment analysis--the Court treats it as sui generis.)
Hope this helps. If a court is discussing "narrow tailoring" or "government interests" or "means and ends," then that court is doing a substantive analysis.
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Yep. It quoted O'Brien when doing the substantive analysis, assessing the fit between the means and ends: That's a substantive analysis. The Court DID NOT do a separate prior restraint analysis.
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The court did not do a separate procedural analysis. Nonetheless, it certainly was a prior restraint analysis.
Or do you think that the statute, as it stood, was not a prior restraint on protected speech? If not, then we have nothing to talk about - since it clearly was a speech restriction prior to a determination that the speech was unprotected, thus (by definition) a prior restraint. If you want to argue otherwise, then feel free to proselytize about free speech doctrine with the pair of llamas in your turkey farm in Pennsylvania.
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No, Karl. IT WAS NOT. Let's look at the relevant passage again, taking it apart phrase by phrase: (1) "The Equal Protection Clause" means that this is not prior restraint analysis because equal protection has nothing to do with prior restraint. Two completely separate and distinct doctrines.
(2) "narrowly tailored to their legitimate objectives" is s CLASSIC substantive analysis, assessing the fit between means and ends. "Narrow tailoring" = means. "Legitimate objectives" = ends. That this is not a prior restraint analysis literally could not be more clear and self-evident.
(3) "Chicago may not vindicate its interest" refers to the governmental interests, i.e., the ENDS. This is ends-means analysis.
(4) "the wholesale exclusion of picketing on all but one preferred subject" refers to the MEANS. This is means-ends analysis. It could not be any clearer.
(5) "may not be *102 controlled by a broad ordinance prohibiting both peaceful and violent picketing" is discussing the means as part of the means-ends analysis.
(6) "excesses ‘can be controlled by narrowly drawn statutes" refers to the means, again.
(7) "restriction on expressive conduct far ‘greater than is essential to the furtherance of (a substantial governmental)" refers to the means being a poor fit to the ends. This is means-ends analysis.
(8) "Far from being tailored to a substantial governmental interest" refers to means-ends. "Tailored" = means. "substantial governmental interest" = ends.
(9) "under the Equal Protection Clause, it may not stand" refers to equal protection means-ends analysis which has nothing whatsoever to do with prior restraint analysis.
Sorry, Karl, but you just aren't listening to me. I know you think you know it all--but you aren't even in the ballpark if you think that passage reflects prior restraint analysis. Most law students take 1 maybe 2 constitutional law classes. I've taken EIGHT, scoring in the top of the class in each one. I know what I'm talking about. You do not. At all. I'm telling you the answer. I'm not guessing on this. I'm not making it up. I know it, I understand it, I've learned it, I live and breath it. I'm giving you the correct answer. That passage has nothing whatsoever even in the slightest to do with prior restraint.
Or do you think that the statute, as it stood, was not a prior restraint on protected speech? If not, then we have nothing to talk about - since it clearly was a speech restriction prior to a determination that the speech was unprotected, thus (by definition) a prior restraint. If you want to argue otherwise, then feel free to proselytize about free speech doctrine with the pair of llamas in your turkey farm in Pennsylvania.
Yes, it was a speech restriction. No, the Court did not apply the prior restraint doctrine. You need to understand that speech restrictions can be analyzed under several separate and distinct doctrines:
(1) prior restraint challenge analyzing adequacy of procedures
(2) substantive challenge analyzing fit between means and ends
(3) substantial overbreadth challenge analyzing the sweep of the statute
(4) vagueness challenge analyzing whether statute is clearly defined.
All of these analyses sound in First Amendment, but EACH ONE IS A SEPARATE AND DISTINCT ANALYSIS. Whether the statute in Mosley was a prior restraint misses the point I'm making. Mosley was not a prior restraint case, and the Court did not do any prior restraint analysis. You cannot point to even one sentence in that case that represents the Court doing a prior restraint analysis. That is classic substantive means-ends analysis, as I demonstrated phrase by phrase. And if you can't accept that, let's go word by word. Seriously, Karl, it gets really old talking to a brick wall that acts like he knows it all but is in fact utterly and completely confused. I'm happy to spend hours and hours discussing things with you, explaining to you what I have learned and know. But you need to give me just one inch of thanks from time to time. Drop the "I know it all about complex constitutional law doctrines" attitude. You don't. You're clueless.
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I can dream anyway.
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Well, we'll cross that bridge when we come to it.
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I spend *a lot* of time patiently explaining things to you about which you are deeply confused and clueless. If you could give me even one inch of gratitude for a change, I'd appreciate it.
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What does the DoJ have to do with this?
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> applies worldwide.
But this isn't an issue of federal law.
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so whats the poop on this
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"Sure we have workers compensation laws, but you're not allowed to talk about it in Texas, especially to the people who are actually eligible for workers compensation"
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Names are protected
However the name is not a index number, its a name that is related to a number.
The appeals court feels the same way.
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