Yes, A Domain Name Can Be Protected By The First Amendment

from the pay-attention... dept

Mon, Nov 19th 2012 7:46am — Mike Masnick

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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out_of_the_blue, 19 Nov 2012 @ 7:58am

"Commercial speech" protected only up to a point, Mike.
"commercial speech or a more vigorously protected form of speech" -- Not exactly your blanket "commercial speech is still protected by the first amendment." In common law, corporations are granted the right to exist, therefore obviously whatever a corp says is subject to limits.

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.

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Anonymous Coward, 19 Nov 2012 @ 8:01am

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's 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.

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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Anonymous Coward, 19 Nov 2012 @ 8:17am

He could start a company in Oklahoma and not actually be doing business in Texas, thus not in violation of Texas law.
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The Mighty Buzzard (profile), 19 Nov 2012 @ 8:18am

Re: "Commercial speech" protected only up to a point, Mike.
In common law, corporations are granted the right to exist, therefore obviously whatever a corp says is subject to limits.

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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Gwiz (profile), 19 Nov 2012 @ 8:26am

Re:
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.

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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silverscarcat (profile), 19 Nov 2012 @ 8:26am

Re:
I think you're just splitting hairs to be argumentative.
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mickey-me, 19 Nov 2012 @ 8:27am

so whats the poop on this
so when all is said and done - - did the Texas Guy get to keep the URL or did he have to give it up - - bottom line
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Anonymous Coward, 19 Nov 2012 @ 8:27am

Re:
Let me just add that the idea that a domain name itself can be constitutionally-protected speech is hardly new. The Second Circuit recognized as much, albeit in dicta, twelve years ago:
Further, the functionality of domain names does not automatically place them beyond the reach of the First Amendment. Although domain names do have a functional purpose, whether the mix of functionality and expression is �sufficiently imbued with the elements of communication� depends on the domain name in question, the intentions of the registrant, the contents of the website, and the technical protocols that govern the DNS.14 *586 Spence v. Washington, 418 U.S. 405, 409-10, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (�[T]he context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol.� (citation omitted)). Functionality and expression are therefore not mutually exclusive: for example, automobile license plates have a functional purpose, but that function can be served as well by vanity plates, which in a small way can also be expressive. Similarly, domain names may be employed for a variety of communicative purposes with both functional and expressive elements, ranging from the truly mundane street address or telephone number-like identification of the specific business that is operating the website, to commercial speech and even core political speech squarely implicating First Amendment concerns.

In short, while we hold that the existing gTLDs do not constitute protected speech under the First Amendment, we do not preclude the possibility that certain domain names and new gTLDs, could indeed amount to protected speech. The time may come when new gTLDs could be used for �an expressive purpose such as commentary, parody, news reporting or criticism,� comprising communicative messages by the author and/or operator of the website in order to influence the public's decision to visit that website, or even to disseminate a particular point of view. United We Stand Am., Inc. v. United We Stand Am. N. Y., Inc., 128 F.3d 86, 93 (2d Cir.1997) (citation omitted).
Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573, 585-86 (2d Cir. 2000).

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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Anonymous Coward, 19 Nov 2012 @ 8:33am

and the government will continue to do so because it doesn't give a toss about the rights of anyone and thinks it can do exactly as it pleases, regardless.
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Anonymous Coward, 19 Nov 2012 @ 8:42am

Re: Re:
Simple. It's the difference between seizing a domain name because the domain name itself is infringing or seizing it because it points to a website where infringement takes place.

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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Lowestofthekeys (profile), 19 Nov 2012 @ 8:50am

Re: Re: Re:
What about the dajaz1.com seizure? Wasn't that domain seized under the assumption that the site was engaged in criminal activity?

If the accusation for infringement was true, then why was the domain name released?
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Anonymous Coward, 19 Nov 2012 @ 8:52am

No wonder why Texas is dead last compared to all 50 other states and DC at stuff like employee compensation for injury.

"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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MrWilson, 19 Nov 2012 @ 8:56am

Re: "Commercial speech" protected only up to a point, Mike.
As the Buzzard pointed out, your first statement is a complete non sequitor.

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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Gwiz (profile), 19 Nov 2012 @ 9:04am

Re: Re: Re:
...no court ever even once has ever applied those extraordinary procedural safeguards when it's a case of simple piracy.

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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Paul Brinker, 19 Nov 2012 @ 9:12am

Names are protected
Its fairly simple, if all we did was assign a random number to the website, like you know an IP address. Where the number itself is fairly meaningless then its fair game for the gov to try and regulate numbers it does not like.

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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Anonymous Coward, 19 Nov 2012 @ 9:19am

Re: Re: Re: Re:
If someone has available a copy of "Harry Potter" on their website for people to download, an investigating agent can reliably determine that it's not constitutionally protected. All they need to do is contact the right holder and ask if the site is authorized or not. It's an objective, simple determination that doesn't turn on the whim of the investigating law enforcement officer. The extraordinary procedural safeguards that Mike is trying to apply here only kick in when the line between protected and unprotected is "dim and uncertain." There's nothing "dim and uncertain" in my "Harry Potter" example. If there were a colorable fair use argument, then the situation would be different. But that's not the case with simple piracy. You can disagree all you want, but the fact that no court ever has even once agreed with what Mike is arguing. The courts that have addressed the issue have explicitly said that prior restraint is not an issue when proprietary rights such as copyright are being enforced.
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The eejit (profile), 19 Nov 2012 @ 9:30am

Re: Re: Re: Re: Re:
So, please remind me again why people should obey proprietary "rights" over native "rights".

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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The eejit (profile), 19 Nov 2012 @ 9:32am

Re:
Try telling that to the DoJ.
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Josh in CharlotteNC (profile), 19 Nov 2012 @ 9:38am

Re: Re: Re:
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.

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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Anonymous Coward, 19 Nov 2012 @ 9:45am

Re: Re: Re: Re:
And since when is that an "easy" determination to make?

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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Gwiz (profile), 19 Nov 2012 @ 9:45am

Re: Re: Re: Re: Re:
All they need to do is contact the right holder and ask if the site is authorized or not.

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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Anonymous Coward, 19 Nov 2012 @ 9:54am

Re: Re: Re: Re: Re: Re:
Again, I'm describing the actual law, not presenting an argument for how it could be if it were different (which is what Mike does without admitting it). The Copyright Act even provides for ex parte seizures and injunctions because the prior restraint doctrine doesn't apply when it's copyright. Nobody is seizing instrumentalities of copyright infringement because of the messages and ideas being expressed, as is the case when it's obscenity.
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Josh in CharlotteNC (profile), 19 Nov 2012 @ 9:58am

Re: Re: Re: Re: Re:
All you guys can do is point to a couple outliers and pretend like that's the norm.

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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Gwiz (profile), 19 Nov 2012 @ 10:18am

Re: Re: Re: Re: Re: Re: Re:
I wish one of these cases would make it to SCOTUS, really.

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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Digitari, 19 Nov 2012 @ 11:04am

Re: "Commercial speech" protected only up to a point, Mike.
OOTB is a fucking freetard and ADMITS it

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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Anonymous Coward, 19 Nov 2012 @ 11:08am

Re: Re: Re: Re: Re: Re: Re: Re:
SCOTUS? There hasn't even been a single district court to pass on the issue. We're years away from the Supreme Court chiming in.
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Gwiz (profile), 19 Nov 2012 @ 11:14am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
We're years away from the Supreme Court chiming in.

So I'm impatient, what can I say.
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btr1701 (profile), 19 Nov 2012 @ 11:20am

Re: Re:
> Try telling that to the DoJ.

What does the DoJ have to do with this?
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Karl (profile), 19 Nov 2012 @ 11:58am

Re:
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.

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:

The HUGE POINT that you consistently seem to gloss right over without any explanation is the fact that when the primary thing being seized is not potentially protected speech, the First Amendment does not bar its seizure absent a prior adversary hearing.

(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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Anonymous Coward, 19 Nov 2012 @ 11:59am

Re: Re: Re:
procedural safeguards of a prior adversarial hearing are only needed when the line between protected and unprotected speech is "dim and uncertain"

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:

If a State seeks to impose a restraint of this kind, it must provide strict procedural safeguards, Freedman v. Maryland (1965), including immediate appellate review, see Nebraska Press Assn. v. Stuart (1975) (BLACKMUN, J., in chambers). Absent such review, the State must instead allow a stay. The order of the Illinois Supreme Court constituted a denial of that right.

Yeah, that's the Illinois Nazis.
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Anonymous Coward, 19 Nov 2012 @ 12:21pm

Re: Re:
In fact, I suspect that person was you.

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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Anonymous Coward, 19 Nov 2012 @ 12:33pm

Re: Re: Re: Re:
That was an injunction prohibiting marching or distributing pamphlets because of the message being conveyed. Enjoining such marching or pamphleteering is classic prior restraint. That has nothing to do with whether presumptively protected materials or instrumentalities can be seized without a prior adversarial hearing. You're mixing up doctrines.
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Anonymous Coward, 19 Nov 2012 @ 12:50pm

Re: Re: Re: Re: Re:
You're mixing up doctrines.

The doctrine is that of prior restraint.

Anyhow, the line is:

Elwood: Illinois Nazis.
Jake: I hate Illinois Nazis.

Nothing dim or uncertain about it.
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Anonymous Coward, 19 Nov 2012 @ 1:04pm

Re: Re: Re: Re: Re: Re:
The Court has said that when the determination between constitutionally protected and unprotected speech is "dim and uncertain," as is the case with obscenity, then the leaving such a determination to the whim of a law enforcement officer is a prior restraint. This has nothing to do with injunctions or licensing schemes, which is a separate branch of the doctrine. The issue is how much process must occur before materials or instrumentalities may be seized. When it's copyright, ex parte seizures via warrants based on mere probable cause are sufficient.
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Anonymous Coward, 19 Nov 2012 @ 1:09pm

Re: Re: Re: Re: Re: Re:
Show me this: Find one court ever that has said, because of the prior restraint doctrine, a prior adversarial hearing is needed before allegedly infringing materials or instrumentalities can be seized. You cannot. Yet, I can find several courts that explicitly say that the prior restraint doctrine does not apply when the issue is copyright. Why do you think that is? You have to look at the REASONING behind the doctrine--the extraordinary procedural safeguards are only needed when the determination that the speech at issue is not constitutionally protected is difficult to make. Such is not the case when it's copyright, hence no need for extraordinary procedures. It's really simple.
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Anonymous Coward, 19 Nov 2012 @ 1:29pm

Re: Re: Re: Re: Re: Re: Re:
I can find several courts that explicitly say that the prior restraint doctrine does not apply when the issue is copyright.

The Eleventh Circuit disagrees:

PER CURIAM:

It is manifest that the entry of a preliminary injunction in this copyright case was an abuse of discretion in that it represents an unlawful prior restraint in violation of the First Amendment.

... [W]e have concluded ... that the district court ... ruling amounts to an unlawful prior restraint in violation of the First Amendment. Accordingly, we VACATE forthwith ...
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Anonymous Coward, 19 Nov 2012 @ 1:47pm

Re: Re: Re: Re: Re: Re: Re: Re:
That's not a case of simple copyright infringement. There, the defendant had a viable fair use argument, which does invoke the First Amendment and would cause prior restraint concerns. You have not, and cannot, find a court that says prior restraint is an issue when it's simple piracy (and not fair use).

Said the Eleventh Circuit:
The case before us calls for an analysis of whether a preliminary injunction was properly granted against an alleged infringer who, relying largely on the doctrine of fair use, made use of another's copyright for comment and criticism. As discussed herein, copyright does not immunize a work from comment and criticism. Therefore, the narrower question in this case is to what extent a critic may use the protected elements of an original work of authorship to communicate her criticism without infringing the copyright in that work. As will be discussed below, this becomes essentially an analysis of the fair use factors. As we turn to the analysis required in this case, we must remain cognizant of the First Amendment protections interwoven into copyright law.
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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Anonymous Coward, 19 Nov 2012 @ 1:59pm

Re: Re: Re: Re: Re: Re: Re: Re:
I suspect you know this already, but you just happened to have picked out the ONLY court to have recognized the prior restraint issue when fair use is on the table--there are dozens of courts saying that it's not prior restraint even when it's possibly fair use. Regardless, none of that applies when it's simple piracy. Thoughts?
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Anonymous Coward, 19 Nov 2012 @ 2:02pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Throw in fair use and the issue is different and prior restraint is on the table.

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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Anonymous Coward, 19 Nov 2012 @ 2:14pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I take your nonanswer as admittance that you can't find one single court applying the prior restraint doctrine to simple piracy. When the issue is simple piracy, a reliable determination can be made that the speech in question is not constitutionally protected. That's why it's not prior restraint.
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Anonymous Coward, 19 Nov 2012 @ 2:32pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It's fairly unprecedented for any court to attempt to suppress publication of a word or short phrase on copyright grounds.

Without even a copyright registration for the offending word, this seems more like Cohen v California territory.
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Anonymous Coward, 19 Nov 2012 @ 2:39pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
With the domain name seizures, the alphanumeric characters of the domain name itself are irrelevant. It's not being seized because the domain name itself is infringing, it's being seized because it points to a website where infringement takes place. Regardless, you have yet to acknowledge that there are no extraordinary procedural safeguards when the issue is simple piracy. Care to comment on that?
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Anonymous Coward, 19 Nov 2012 @ 2:49pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Care to comment on that?

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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Anonymous Coward, 19 Nov 2012 @ 2:58pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Not sure what you refer to by the Second Circuit, but the fact remains that prior restraint doctrine does not apply in cases of simple piracy.
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Josh in CharlotteNC (profile), 19 Nov 2012 @ 3:06pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It's not being seized because the domain name itself is infringing, it's being seized because it points to a website where infringement takes place.

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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Anonymous Coward, 19 Nov 2012 @ 3:08pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Not sure what you refer to by the Second Circuit

The United States Court of Appeals for the Second Circuit.

Maybe you need to do some more research?
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Anonymous Coward, 19 Nov 2012 @ 3:10pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I understand what the Second Circuit is, but I don't understand what they said that you're referring to. You cited the Eleventh Circuit earlier. Is that what you mean? And if anyone needs to do more research, it's you. You don't appear to understand the reasoning behind the prior restraint doctrine. If you did, you'd understand when extraordinary procedural safeguards are needed and when they're not.
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Anonymous Coward, 19 Nov 2012 @ 3:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
when extraordinary procedural safeguards are needed and when they're not
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Anonymous Coward, 19 Nov 2012 @ 3:36pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Your point?
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Alana (profile), 19 Nov 2012 @ 4:17pm

Re: Re: Re:
*cough*megaupload*cough*
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Karl (profile), 19 Nov 2012 @ 6:51pm

Re: Re: Re:
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.

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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Karl (profile), 19 Nov 2012 @ 8:41pm

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it's still not constitutionally protected speech at issue since it's the license that permits it.

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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G Thompson (profile), 19 Nov 2012 @ 9:31pm

Re: "Commercial speech" protected only up to a point, Mike.
Wow, I mean wow..

The absolute awesome construction of your sentences leaves Vogon poets aghast at your majestic usage of the English language.
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G Thompson (profile), 19 Nov 2012 @ 9:51pm

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Actually if I allow a whole range of books from a .com (or other registered US domain name) that I own and operate from here in Australia which might include such books by George Orwell, Mark Twain (Autobiography and newspaper Articles), F. Scott Fitzgerald (The Great Gatsby) and many moree that investigator you describe would have NO fucking authority to destroy my domain name even though those books are infringing on US works. Why? because its legal in Australia to distribute those Public Domain titles.. Just Awsk Project Guttenberg.

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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techflaws (profile), 19 Nov 2012 @ 10:33pm

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Your point repeating "simple piracy"?
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techflaws (profile), 19 Nov 2012 @ 10:35pm

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The DOJ thinks their jurisdiction applies worldwide.
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Anonymous Coward, 20 Nov 2012 @ 5:42am

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Read the line of cases starting with Marcus v. Search Warrants. The issue has to do with the historical use of general warrants. The Fourth Amendment was created to get rid of them, requiring instead specificity. If an agent gets a warrant to seize allegedly obscene materials, that agent becomes a censor because they get to decide what's obscene and what isn't. Such is not the case with simple piracy, where the agent can make a reliable determination that something is infringing. Reliable determination means it's not a general warrant and the extraordinary procedural safeguards aren't needed. The part you're missing is the Fourth Amendment general/specific warrant angle.
The Bill of Rights was fashioned against the background of knowledge that unre-stricted power of search and seizure could also be an instrument for stifling liberty of expression. For the serious hazard of suppression of innocent expression inhered in the discretion confided in the officers authorized to exercise the power.
Marcus v. Search Warrants, 367 U.S. 717, 719 (1961).

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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Anonymous Coward, 20 Nov 2012 @ 5:44am

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If the First Amendment protected your posting "Harry Potter" on the internet, then there would be no need for a license to do so. It's really simple. Under your view, everyone can post whatever copyrighted works they want, even without a license, since the Amendment protects them. It doesn't work that way.
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Gwiz (profile), 20 Nov 2012 @ 7:20am

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Under your view, everyone can post whatever copyrighted works they want, even without a license, since the Amendment protects them. It doesn't work that way.

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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Anonymous Coward, 20 Nov 2012 @ 7:29am

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If the actual law were that copyright infringing materials and instrumentalities could only be seized after an adversarial hearing, then why can't Karl, Mike, or anyone else find even one single court that has ever said so? Seizures in copyright cases have been happening for decades and decades, the Copyright Act even provides for seizures and temporary restraining orders, yet not once--once--has any court ever suggested that a prior adversarial hearing is needed.
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Anonymous Coward, 20 Nov 2012 @ 7:38am

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Here's an appellate court saying the extraordinary procedural safeguards aren't needed even though it was presumptively protected speech being seized (in the counterfeiting context):
Boggs argues that special procedures established by the Supreme Court under the First Amendment protecting books and films in obscenity cases apply with equal force to his artwork. The Supreme Court has indeed held law enforcement officers to a higher standard when presumptively expressive materials are involved be-cause of the risk of prior restraint and censorship. Boggs suggests that the Secret Service should have met more stringent warrant requirements and that he should have been granted a prior adversarial hearing before an independent judicial offi-cer. We disagree.

The cases Boggs cites are all obscenity cases, where significant judgment was needed to determine if the seized materials violated community standards. We need not determine the range of cases to which additional protection would apply. We simply hold that on the facts before us, they do not. The important First Amendment concerns advanced by the Supreme Court in the obscenity cases are not present to the same extent here. Boggs's artwork is designed to look like money. While some judgment is needed on the part of the officers charged with enforcing the counterfeiting statutes, the inquiry is not inherently content-based and thus poses little risk of acting as a prior restraint on expressive materials.
Boggs v. Rubin, 161 F.3d 37, 40-41 (D.C. Cir. 1998) (internal citations omitted).

Here's another appellate court saying the same thing in dicta (in the child pornography context):
The district court, relying primarily on Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989), agreed with Camfield that the voluntary surrender plan was unconstitutional. In Fort Wayne Books, an obscenity case, the Supreme Court acknowledged that obscene speech is unprotected by the First Amendment, but it recognized that, to avoid the risk of prior restraint on speech, the government must use �rigorous procedural safeguards� before it may remove from public circulation expressive materials, including movies, which it considers obscene. Id. at 62, 109 S.Ct. 916. Specifically, the Court held that �[w]hile a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.� Id. at 63, 109 S.Ct. 916. This is because the legal determination of obscenity, which requires an evaluation of the presumptively protected material under the three-part test set forth in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), is properly left to a court for resolution through an adversarial hearing where both sides may be heard rather than to a police officer acting individually or, for that matter, a judge acting ex parte. Adopting this rationale here, the district court held that the OCPD's complete removal of The Tin Drum from public access without a prior judicial adversarial hearing as to whether the movie contains child pornography ran afoul of the First and Fourteenth Amendments.

As an initial matter, we do not necessarily agree with the implication that compliance with Fort Wayne Books is always required whenever the government seeks to remove suspected child pornography from public access. Like obscenity, child pornography is �a category of material outside the protection of the First Amendment.� Ferber, 458 U.S. at 763. However, child pornography differs from obscenity in two important respects. First, child pornography is afforded even less constitutional protection than obscenity. See Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (states may outlaw private possession of child pornography even though Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), held that states may not constitutionally prohibit private possession of obscene material); Ferber, 458 U.S. at 764�65, 102 S.Ct. 3348 (states may regulate child pornography even if material is not obscene under three-part Miller test). Second, as courts have noted in the context of probable cause determinations, the difficulty encountered in determining whether material is obscene often is absent when determining whether material contains child pornography. See United States v. Kimbrough, 69 F.3d 723, 727�28 (5th Cir.1995) (�Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison [to the legal determination of whether expressive material is obscene], is a factual determination that leaves little latitude to the officers.�). See also United States v. Simpson, 152 F.3d 1241, 1247 (10th Cir.1998) (�the words �child pornography� �need no expert training or experience to clarify their meaning� �) (quoting United States v. Layne, 43 F.3d 127, 132�33 (5th Cir.1995)); United States v. Koelling, 992 F.2d 817, 822 (8th Cir.1993) (�Most minors look like minors and most adults look like adults, and most of the time most law enforcement officers can tell the difference.�); American Library Ass'n v. Barr, 956 F.2d 1178, 1192 (D.C.Cir.1992) (�However hazy the line between obscenity and protected speech, the line between eighteen years old and under is not �dim and uncertain.� �); United States v. Hurt, 808 F.2d 707, 708 (9th Cir.1987) (�Any rational adult person can recognize sexually explicit conduct engaged in by children under the age of 16 when he sees it.�). These �child pornography holdings demonstrate that [unlike cases involving obscenity,] courts do not require more rigorous procedural safeguards or an adversarial hearing prior to seizure when law enforcement officers have objective and non-evaluative criteria by which to make their determinations.� Boggs v. Merletti, 987 F.Supp. 1, 8 (D.D.C.1997), aff'd on other grounds sub nom., Boggs v. Rubin, 161 F.3d 37 (D.C.Cir.1998). Therefore, while we do not decide the issue here, we note that the question of whether a prior adversarial hearing is required before the government may seize all copies of suspected child pornography is far different and significantly more difficult than the question of whether a prior adversarial hearing is required before the government may seize all copies of suspected obscenity.
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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Gwiz (profile), 20 Nov 2012 @ 7:43am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Question: If you were to place domain names on the same footing as printing presses would that caselaw still have the same impact on the domain seizures?
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Anonymous Coward, 20 Nov 2012 @ 8:32am

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I think that's a great analogy because both a domain name and a printing press are instrumentalities of creating and disseminating expressive materials, but not materials themselves. The key is to understand the context. If the printing press is being used to create allegedly obscene materials, then the extraordinary procedural safeguards would be needed to make sure those materials are really obscene. If it's being used for simple piracy, then an agent in the field can reliably make that determination so there's no need for the extra safeguards.
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Karl (profile), 20 Nov 2012 @ 10:02am

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If the First Amendment protected your posting "Harry Potter" on the internet, then there would be no need for a license to do so.

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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Gwiz (profile), 20 Nov 2012 @ 10:44am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
If it's being used for simple piracy, then an agent in the field can reliably make that determination so there's no need for the extra safeguards.

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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Anonymous Coward, 20 Nov 2012 @ 11:28am

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I get what you're saying, but in the context of the copyright infringement action the First Amendment is not relevant. Your defense is the license, not the First Amendment. Yes, the First Amendment protects your right to publish licensed works, but in an infringement action only the license would be at issue.

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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Anonymous Coward, 20 Nov 2012 @ 11:29am

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Simple piracy = wholesale copying. E.g., posting "Harry Potter" for anyone to download.
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btr1701 (profile), 20 Nov 2012 @ 12:08pm

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> The DOJ thinks their jurisdiction
> applies worldwide.

But this isn't an issue of federal law.
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Karl (profile), 20 Nov 2012 @ 12:10pm

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Note how the court says that when the determination is easy to make, the extraordinary procedural safeguards are not needed.

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:

The Act and Informal Notice process are not prior restraints in the traditional sense. They do not prevent speech from reaching the market place but remove material already available on the Internet from circulation. Alexander v. United States, 509 U.S. 544 (1993) ("The term 'prior restraint' describes orders forbidding certain communications that are issued before the communications occur.") However, they are administrative prior restraints as that term has been interpreted by the Supreme Court. According to the Court, "only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." Freedman v. Maryland, 380 U.S. 51, 58 (U.S. 1965). Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint. [...]

Based on the decision in Bantam Books and Fort Wayne Books, this Court concludes the procedural protections provided by the Act are inadequate. These cases require a court to make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation. Under the Act, a judge is only required to make a finding of probable cause, he can make this determination ex parte, and there is no requirement that the publisher or distributor receive notice or an opportunity to be heard.

- CDT v. Pappert

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. [...]

The 1988 Act created a civil forfeiture scheme. 18 U.S.C. � 2254. In addition to providing for forfeiture of "[a]ny visual depiction" of pornography involving minors, the provision authorizes forfeiture of any "[a]ny property, real, or personal, used or intended to be used to commit or to promote the commission" of the offense. Id. � 2254(a). Like the law at issue in Fort Wayne Books, the 1988 Act "allow[s] prosecutors to cast wide nets and seize, upon a showing that two obscene materials have been sold, or even just exhibited, all a store's books, magazines, films, and video-tapes - the obscene, those nonobscene yet sexually explicit, even those devoid of sexual reference." Id. at 937 (Stevens, J., concurring in part and dissenting in part). The section provides for seizure and forfeiture procedures according to customs laws and the Supplemental Rules for Certain Admiralty and Maritime Claims ("Admiralty Rules"). See id. � 2254(b), (d). For a number of reasons, the Court concludes that aspects of the civil forfeiture provision are unconstitutional.

Under this scheme, an authorized federal agent may seize property based on a showing of "probable cause," which for seizure purposes has been held to be "a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." United States v. Twenty-Two Thousand Two Hundred Eighty Seven Dollars,709 F.2d 442, 446-47 (6th Cir.1983) (citation omitted). A warrant may be issued by filing ex parte a complaint with the clerk of the court, who may in turn issue the warrant without referring the matter to a judge or magistrate. Admiralty Rule C(3). Thus, it is clear that a large amount of assets-books, printing presses, films, etc.-may be seized based solely on an ex parte showing of probable cause.18 The Supreme Court has clearly stated, however, that "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." Fort Wayne Books, 109 S.Ct. at 927. Indeed, the Supreme Court cases "firmly hold that mere probable cause to believe that a legal violation has transpired is not adequate to remove books or films from circulation." Fort Wayne Books, 109 S.Ct. at 929 (citing, e.g., Heller v. New York,413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973)). First Amendment material may not be taken out of circulation completely until there has been a "judicial determination of the obscenity issue in an adversary proceeding." Fort Wayne Books, 109 S.Ct. at 927 (quoting Heller, 413 U.S. at 492-93, 93 S.Ct. at 2794-95); see Marcus v. Search Warrant,367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). The First Amendment's presumption for expressive materials must apply whether the alleged offense is child pornography or obscenity.

- American Library Association V. Thornburgh

Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.

The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter. The Constitution requires the reverse. "[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted ... ." Broadrick v. Oklahoma, 413 U. S., at 612. The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.

In sum, �2256(8)(B) covers materials beyond the categories recognized in Ferber and Miller, and the reasons the Government offers in support of limiting the freedom of speech have no justification in our precedents or in the law of the First Amendment. The provision abridges the freedom to engage in a substantial amount of lawful speech. For this reason, it is overbroad and unconstitutional.

- Ashcroft v. Free Speech Coalition

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:

Thus, the district court abused its discretion in issuing the ex parte order of inventory and impoundment. The court was required to apply the standard provided in Fed.R.Civ.P. 65(b) for granting ex parte relief, because neither 17 U.S.C. Sec. 503(a) nor the Copyright Rules authorizes the copying of business records, which the district court's order permitted. Plaintiff did not make a sufficient showing of at least one prerequisite for obtaining an ex parte order under Fed.R.Civ.P. 65(b); namely, why notice should not have been required. Plaintiff did not sufficiently show that it was necessary to proceed ex parte and that there were no less extreme remedies available. Plaintiff's assertion that defendants would conceal evidence if given notice because defendants allegedly misappropriated trade secrets and infringed plaintiff's copyrights is insufficient to establish that notice to the defendants would have rendered fruitless further prosecution of the action. Because plaintiff failed to comply with Fed.R.Civ.P. 65(b), the district court's ex parte order of inventory and impoundment was an abuse of discretion. Therefore, the district court's order denying defendants' motion to vacate that ex parte order was, likewise, an abuse of discretion.

For the reasons stated, the district court's order denying defendants' motion to vacate the order granting plaintiff's request for immediate ex parte order of inventory and impoundment is REVERSED, and this case is REMANDED for further action consistent with this opinion. The district court is ORDERED to immediately return to defendants all items taken from defendants pursuant to the ex parte order of inventory and impoundment, including all photocopies and electronic copies made, but the district court may condition the return of these items by such safeguards as it deems necessary to prevent the secretion, alteration, or destruction of the returned items.

- First Technology Safety Systems v. Depinet

In June 1984, Mrs. Cho purchased twelve small plastic dolls from a wholesaler. Unknown to her, these dolls were similar to a copyrighted character called "Gizmo" in a Warner movie. The Chos were not familiar with either the movie or the characters. On June 27, 1984, a private investigator for Warner visited the store and purchased six of these small figures for $15. [...]

When Warner's investigator returned with news of his purchase, Warner's attorneys promptly prepared a complaint against Dae Rim and "John Doe", together with motion papers for what was designated a "Temporary Restraining Order, Seizure and Impoundment Order and Order to Show Cause for Preliminary Injunction and Accelerated Discovery." The complaint alleged that Warner owns copyrights for two characters in its movie "Gremlins", one called "Gizmo", the other called "Stripe", and that the defendants willfully and knowingly offered for sale, distributed and publicly displayed "various products" bearing the likenesses of both characters. [...]

Fed.R.Civ.P. 65 prescribes the method for securing preliminary injunctive relief, but specifically provides that "no preliminary injunction shall be issued without notice to the adverse party." While Rule 65 permits the grant of a temporary restraining order without notice, such an order, as is indicated by the very word "restraining", should issue only for the purpose of preserving the status quo and preventing irreparable harm and for just so long as is necessary to hold a hearing. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435 (1974). "The purpose of a temporary restraining order is to preserve an existing situation in statu quo until the court has an opportunity to pass upon the merits of the demand for a preliminary injunction." Pan American World Airways, Inc. v. Flight Engineers' Int'l Ass'n, 306 F.2d 840, 842-43 (2d Cir.1962). An order issued without notice directing an agent of plaintiff's attorney to search a defendant's premises, seize goods, documents and records and deliver them to the attorney, is not an order aimed at maintaining the status quo. See Punnett v. Carter, 621 F.2d 578, 582 (3d Cir.1980); United States v. Spectro Foods Corp., 544 F.2d 1175, 1180-82 (3d Cir.1976); Warner Bros. Pictures, Inc. v. Gittone, 110 F.2d 292, 293 (3d Cir.1940). [...]

For all of the foregoing reasons, we agree with Judge Wyatt that the seizure conducted by Warner's attorneys and their agents was improper. We also agree that the "search" conducted by the agents was not authorized by 17 U.S.C. Sec. 503, and that the "discovery" of defendants' documents and records without notice was not authorized by either section 503 or Fed.R.Civ.P. 34. See American Can Co. v. Mansukhani, 742 F.2d 314, 323-24 (7th Cir.1984).

Judge Wyatt made numerous findings of fact which led him to conclude that the action was conducted in a "vexatious", "oppressive" and "unreasonable" manner. 677 F.Supp. at 771-73. These factual findings were not clearly erroneous, and they fully supported Judge Wyatt's conclusions.
- Warner Bros. Inc. v. Dae Rim Trading, Inc., 877 F.2d 1120 (2d Cir. 1989)

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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Anonymous Coward, 20 Nov 2012 @ 12:36pm

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The court in CDT v. Pappert only shows that I'm right. There, the court entertained the state's argument that extraordinary procedural safeguards were not needed because the determination of child pornography was simple and objective. The stated pointed to the Tenth Circuit's dicta in Camfield that I posted at length above. There, the Tenth Circuit said that child pornography determinations are simple, and it cited several courts for the point. The court in CDT v. Pappert rejected the arguing, citing the case in the Supreme Court about computer generated child pornography (I can't remember the case name at the moment). There, in dicta, the Court said that one day the determination would be difficult to make since its getting more and more difficult to discern real from computer generated images. Thus, since the determination was difficult to make, the extraordinary procedural safeguards were needed. That's the exact analysis that needs to be applied. You look at whether the determination is easy to make.

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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Karl (profile), 20 Nov 2012 @ 1:02pm

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I get what you're saying, but in the context of the copyright infringement action the First Amendment is not relevant. Your defense is the license, not the First Amendment.

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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Anonymous Coward, 20 Nov 2012 @ 1:12pm

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Posner said on the limited record before him, myVidster was not likely to be found a contributory infringer. Once the record is fully developed, that could change. You're going off on tangents and not focusing on the prior restraint issue. None of that obviates the fact that extraordinary procedural safeguards aren't needed when it's simple piracy because the determination is simple and objective and can be made reliably by agents in the field. You have not shown that the seizures are prior restraints, and I'm explaining to you why the extraordinary procedural safeguards are not needed (and explaining the fact that they have never even once been applied in the context of simple piracy--a fact you can never seem to explain).
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Karl (profile), 20 Nov 2012 @ 8:42pm

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You're going off on tangents and not focusing on the prior restraint issue.

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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Karl (profile), 20 Nov 2012 @ 9:57pm

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The court in CDT v. Pappert only shows that I'm right.

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:

Defendant argues that fewer procedural protections are required for the removal from circulation of child pornography, as compared with obscenity, because the child pornography determination is easier than the obscenity determination. The Court rejects this argument. This argument is based on defendant�s position that Fort Wayne Books was distinguished in dicta by Camfield v. City of Oklahoma City, 248 F.3d 1214, 1227 (10th Cir. 2001). [...]

The court noted, however, that the appellant "does not cite, nor have we found, any cases which have held that the complete removal of suspected child pornography from public circulation without a prior adversarial hearing95 constitutes a prior restraint."

Camfield was decided before the Supreme Court�s decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Ashcroft affects this Court�s analysis of Camfield in two respects. First, the Supreme Court acknowledged in Ashcroft that virtual pornography is indistinguishable from real child pornography. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 254 (2002) ("Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging."). Second, the Court held that virtual child pornography can be protected speech. Both of these statements make a child pornography determination more difficult because a court now must assess whether the alleged child pornography is virtual. [...]

The Supreme Court�s opinion in Ashcroft undercuts the Camfield court�s assertion that an obscenity determination is more difficult than a child pornography determination.

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:

Because the fair use enquiry often requires close questions of judgment as to the extent of permissible borrowing in cases involving parodies (or other critical works), courts may also wish to bear in mind that the goals of the copyright law, "to stimulate the creation and publication of edifying matter," Leval 1134, are not always best served by automatically granting injunctive relief when parodists are found to have gone beyond the bounds of fair use. See 17 U. S. C. � 502(a) (court "may ... grant ... injunctions on such terms as it may deem reasonable to prevent or restrain infringement") (emphasis added); Leval 1132 (while in the "vast majority of cases, [an injunctive] remedy is justified because most infringements are simple piracy," such cases are "worlds apart from many of those raising reasonable contentions of fair use" where "there may be a strong public interest in the publication of the secondary work [and] the copyright owner's interest may be adequately protected by an award of damages for whatever infringement is found"); Abend v. MCA, Inc., 863 F. 2d 1465, 1479 (CA9 1988) (finding "special circumstances" that would cause "great injustice" to defendants and "public injury" were injunction to issue), aff'd sub nom. Stewart v. Abend, 495 U. S. 207 (1990).

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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Anonymous Coward, 21 Nov 2012 @ 5:32am

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The myVidster case is completely tangential. That case has NOTHING to do with the prior restraint doctrine. Neither party, nor neither court, ever mentioned prior restraint.
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Anonymous Coward, 21 Nov 2012 @ 5:43am

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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.

The district court says:
The Supreme Court's opinion in Ashcroft undercuts the Camfield court's assertion that an obscenity determination is more difficult than a child pornography determination. Based on the Court's guidance in Ashcroft and the measures taken by the OAG, this Court cannot conclude that fewer procedural protections are necessary before child pornography is removed from circulation than those that are required for obscenity. Moreover, even if *660 fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient.
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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Karl (profile), 21 Nov 2012 @ 9:23pm

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Weird. I wrote a post earlier, but apparently it got eaten somehow... oh, well.

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:
Moreover, even if fewer protections were necessary, the ex parte, probable cause determination provided for in the Act is insufficient.
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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Anonymous Coward, 22 Nov 2012 @ 3:46am

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Yes, the appellate court opinion in Camfield that I quoted was dicta, but it's clear that the court said that whether the extraordinary procedural safeguards are needed turned on the difficulty of determining whether the speech at issue was protected.

Nonetheless, I quoted the D.C. Circuit Court of Appeals, AS HOLDING the same thing. Let me quote it again:
Boggs argues that special procedures established by the Supreme Court under the First Amendment protecting books and films in obscenity cases apply with equal force to his artwork. The Supreme Court has indeed held law enforcement officers to a higher standard when presumptively expressive materials are involved be-cause of the risk of prior restraint and censorship. Boggs suggests that the Secret Service should have met more stringent warrant requirements and that he should have been granted a prior adversarial hearing before an independent judicial offi-cer. We disagree.

The cases Boggs cites are all obscenity cases, where significant judgment was needed to determine if the seized materials violated community standards. We need not determine the range of cases to which additional protection would apply. We simply hold that on the facts before us, they do not. The important First Amendment concerns advanced by the Supreme Court in the obscenity cases are not present to the same extent here. Boggs's artwork is designed to look like money. While some judgment is needed on the part of the officers charged with enforcing the counterfeiting statutes, the inquiry is not inherently content-based and thus poses little risk of acting as a prior restraint on expressive materials.
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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Anonymous Coward, 22 Nov 2012 @ 3:50am

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Here's the district court below (please read carefully, since it explains everything):
The events that transpired in Pittsburgh do require this court to consider whether proper Fourth Amendment procedural safeguards were followed prior to the seizure of Boggs' 2 presumptively expressive materials.2 In Pittsburgh, the Secret Service obtained warrants for Boggs' residence, person and studio; there is no dispute that both a �search� and a �seizure,� as those terms are commonly understood, occurred. The question for this court is whether the magistrate's authorization of the warrant afforded the proper rigorous procedural protections and was based on sufficient information so as to ensure against the unjustified suppression of legitimate First Amendment speech.5

When the subject matter of a search is expressive material, the potential for a seizure to act as a de facto prior restraint of that speech requires a more searching inquiry before issuing a warrant. �Thus, while it is the general rule under the Fourth Amendment that any and all contraband, instrumentalities and evidence of crimes may be seized on probable cause, it is otherwise when materials presumptively protected by the First Amendment are involved.� Fort Wayne Books v. Indiana, 489 U.S. 46, 63, 109 S.Ct. 916, 927�28, 103 L.Ed.2d 34 (1989) (recognizing the risk of prior restraint); see also Roaden v. Kentucky, 413 U.S. 496, 501, 93 S.Ct. 2796, 2799�2800, 37 L.Ed.2d 757 (1973) (�A seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.�); Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).

Plaintiff contends that for the government to seize his art en masse, as occurred in Pittsburgh, the government was required to first secure judicial approval in an adversary hearing on notice. As authority for this proposition, plaintiff cites Fort Wayne Books, 489 U.S. at 63, 109 S.Ct. at 927�28. However, this court finds that the concerns triggering the need for the pre-seizure adversary hearing in that and similar cases are not present in the Pittsburgh seizure.

Fort Wayne Books, along with Roaden, Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), Huffman v. United States, 470 F.2d 386, 392 (D.C.Cir.1971) and the other cases cited in support of plaintiff's argument that additional process is demanded for warrants covering expressive materials have one common thread�they are obscenity cases. The probable cause determination in such cases centers around whether the subject of the potential seizure violates an obscenity statute. This court agrees that obscenity cases do provide a good starting point for the analysis that the court is undertaking here, as they present the paradigm situation in which presumptively expressive materials are routinely seized, raising the specter of prior restraints and censorship pending prosecution.

The analogy is not a perfect one, however. The rationale behind requiring special procedures (such as in camera review or adversary hearings on notice) before authorizing a seizure pursuant to an obscenity statute is that a determination as to whether a photo, film or book is obscene (and therefore unprotected) versus only pornographic (and therefore protected) is inherently subjective. �Because the line between protected pornographic speech and obscenity is dim and uncertain, a State is not free to adopt whatever procedures it pleases for dealing with obscenity, but must employ careful procedural safeguards to assure that only those materials adjudged obscene are withdrawn from public commerce.� Fort Wayne Books, 489 U.S. at 79, 109 S.Ct. at 936 (citations omitted); see also Roth v. United States, 354 U.S. 476, 488, 491, 77 S.Ct. 1304, 1310�11, 1313�14, 1 L.Ed.2d 1498 (1957) (recognizing the complexity inherent in determining whether materials are obscene). �The line between speech unconditionally guaranteed and speech which may be legitimately regulated, suppressed or punished is finely drawn. The separation of legitimate from illegitimate speech calls for ... sensitive tools.� Marcus, 367 U.S. at 730�31, 81 S.Ct. at 1715�16. If obscenity seizures were to be authorized on nothing more than an officer's affidavit, the affiant would have substantial, if not exclusive power to make the difficult determination as to whether the material in question taken as a whole, appeals to the prurient interest in sex, or portrays in a patently offensive way, sexual conduct specifically defined by the applicable state law. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). For a magistrate or other judicial officer to make a probable cause determination based merely on the bald affidavit of a police officer presents too much of a possibility that the subjective impression of that police officer will act as a prior restraint on protected speech. It is the evaluative aspect and sensitivity inherent in making an obscenity determination that requires a magistrate to have more that the officer's word at his or her disposal. �When presumptively protected materials are sought to be seized, the warrant requirement should be administered to leave as little as possible to the discretion or whim of the officer in the field.� Zurcher v. Stanford Daily, 436 U.S. 547, 564, 98 S.Ct. 1970, 1980�81, 56 L.Ed.2d 525 (1978).

The difficulty encountered in determining whether materials are obscene is not present when determining whether materials might violate counterfeiting statutes. While an obscenity determination requires evaluation, a counterfeiting determination requires only observation. The seizures in the instant case were executed based upon potential violations of Chapter 25 of Title 18 of the United States Code. To make a finding of probable cause that the relevant statutes were being violated, the issuing magistrate needed to be convinced of only three facts: 1. that the bills were made or executed in whole or in part after the similitude of United States obligations, 18 U.S.C. � 474 para. 5; 2. that the bills were color reproductions, 18 U.S.C. � 504(1); and, 3. that they were more than three-fourths or less than one and one-half the size of actual United States currency, id. No subjective� determinations were required�all the factors can be established with the naked eye. Any law enforcement officer�or even a lay person�who has average familiarity with United States currency could make the necessary observations of similarity, size and color to conclude that Boggs Bills potentially violate the counterfeiting statutes at issue. The concern underlying *8 the additional process for obscenity warrants�that a law enforcement officer will use his or her own internal definition of �prurient interest� or �patently offensive� to restrain speech based upon a mere dislike of the speech�is practically nonexistent here. The criteria that renders something as counterfeit does not require reaching a legal conclusion, but rather a factual one. When a determination can be made entirely on observation rather than evaluation, the traditional warrant requirement is sufficient, even when presumptively protected materials are at issue.

Perhaps the most apt analogy to the instant case is not obscenity seizures, but rather warrants issued in child pornography cases where a determination of potential violations of applicable law can be made on the basis of mere observation. The courts have held that probable cause determinations in the child pornography area can be made solely on the basis of affidavits even though potentially expressive speech could be restrained when the affiant is wrong. �Identification of visual depictions of minors engaging in sexually explicit conduct, in comparison [to the legal determination as to whether materials are obscene], is a factual determination that leaves little latitude to the officers.� United States v. Kimbrough, 69 F.3d 723, 727�28 (5th Cir.1995); United States v. Koelling, 992 F.2d 817, 822 (8th Cir.1993) (noting that while there is some chance of a mistaken seizure, generally, �most minors look like minors and most adults look like adults, and most of the time most law enforcement officers can tell the difference.�); United States v. Smith, 795 F.2d 841 (9th Cir.1986). The child pornography holdings demonstrate that courts do not require more rigorous procedural safeguards or an adversarial hearing prior to seizure when law enforcement officers have objective and non-evaluative criteria by which to make their determinations. Similarly, in order to demonstrate probable cause in support of the Boggs warrant, all that had to be ascertained was that the bills were in the likeness of United States currency, that they were in color, or that they were of an impermissible size. Such objective criteria obviate the necessity for anything more than the standard Fourth Amendment inquiry required for issuance of a warrant.

Substantial deference is given to a magistrates' determination that probable cause exists. Massachusetts v. Upton, 466 U.S. 727, 733, 104 S.Ct. 2085, 2088, 80 L.Ed.2d 721 (1984); United States v. Vaughn, 830 F.2d 1185, 1187 (D.C.Cir.1987); United States v. Desantis, 802 F.Supp. 794, 803 (E.D.N.Y.1992) (noting that a magistrate's finding of probable cause is in and of itself a factor tending to uphold the validity of a warrant). It is this court's conclusion that the information contained in Secret Service Agent Thomas Abraham's Affidavit in Support of Application for Search Warrant (�Abraham Affidavit�) provided a legally sufficient basis for the magistrate to issue the warrant authorizing the Pittsburgh search and seizure. In a November 20, 1992 conversation, Boggs admitted to Abraham that, pursuant to �Project Pittsburgh,� he had printed $1 million of Boggs Bills and that he would circulate them in Pittsburgh over the next two years. Abraham Affidavit � 17. Having seen Boggs Bills before�specifically, the fifteen Boggs Bills taken in Wyoming�Abraham was able to conclude that they were �sufficiently similar to genuine bills that they satisfy the test of similitude� in violation of 18 U.S.C. � 474 para. 5, that they were color reproductions, and that they were approximately the same size as genuine bills, in violation of 18 U.S.C. � 474, para. 6 and 18 U.S.C. � 504 (printing of photographic likenesses). Abraham Affidavit � 18. This court also holds, based on the above analysis, that the affidavit was, by itself, a legally adequate basis upon which the magistrate could make the probable cause determination. As the warrant was supported by probable cause and did not require additional procedural protections prior to its issuance, this court holds that the Pittsburgh seizure did not violate plaintiff's First Amendment rights.
Boggs v. Merletti, 987 F. Supp. 1, 6-8 (D.D.C. 1997) aff'd sub nom. Boggs v. Rubin, 161 F.3d 37 (D.C. Cir. 1998).

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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Karl (profile), 22 Nov 2012 @ 1:43pm

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We're still talking at cross-purposes here. There are at least three issues here which you are completely ignoring.

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:

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 "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

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

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

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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Tex Arcana (profile), 22 Nov 2012 @ 4:21pm

:rolleyes: only in TexASS...
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Anonymous Coward, 23 Nov 2012 @ 6:30am

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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).

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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Gwiz (profile), 23 Nov 2012 @ 8:34am

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AJ (I assume), it's obvious that you believe that the detrmination of what you refer to as "simple piracy" is a cut and dried easy thing to do and represents no prior restraint on protected speech. You also obviously believe that this is backed up with case law.

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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Anonymous Coward, 23 Nov 2012 @ 10:10am

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You also obviously believe that this is backed up with case law.

It is "backed up with case law":
We have held that First Amendment concerns in copyright cases are subsumed within the fair use inquiry. In other words, if the use of the alleged infringer is not fair use, there are no First Amendment prohibitions against granting a preliminary injunction.
Elvis Presley Enterprises, Inc. v. Passport Video, 349 F.3d 622, 626 (9th Cir. 2003).
We have repeatedly rejected First Amendment challenges to injunctions from copyright infringement on the ground that First Amendment concerns are pro-tected by and coextensive with the fair use doctrine.
Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166 F.3d 65, 74 (2d Cir. 1999).
Furthermore, it is well-settled law that the prior restraint doctrine is inapplicable in cases where one's proprietary interests are at stake, such as infringements of copyright or trademark.
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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Gwiz (profile), 23 Nov 2012 @ 11:04am

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From a cursory glance at the three cases you cited, those all appear to be cases concerning an individual work. And it's understandable how the court could claim that the Fair Use doctrine would offset the First Amendment concerns in a case involving only one work. The work was likely infringing, thus not protected speech. Fair enough, less of a prior restraint concern there.

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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Gwiz (profile), 23 Nov 2012 @ 5:30pm

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"Indictment" might not be the correct word there. IANAL, so I don't always get the procedural terminology right. Seizure Order maybe?
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Karl (profile), 23 Nov 2012 @ 6:35pm

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Total nonsense. An agent contacts the right holder to find out whether the use is authorized. Simple, objective.

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:

It is true that, in the present case, the appellees purport to do no more than compute the amount of the taxpayer's liability in accordance with the usual procedures, but in fact they have undertaken to determine whether certain speech falls within a class which constitutionally may be curtailed. As cases decided in this Court have abundantly demonstrated, the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. Thomas v. Collins, 323 U. S. 516; cf. Yates v. United States, 354 U. S. 298. The separation of legitimate from illegitimate speech calls for more sensitive tools than California has supplied. In all kinds of litigation, it is plain that where the burden of proof lies may be decisive of the outcome. Cities Service Oil Co. v. Dunlap, 308 U. S. 208; United States v. New York, N.H. & H.R. Co., 355 U. S. 253; Sampson v. Channell, 110 F.2d 754, 758. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value -- as a criminal defendant his liberty -- this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt. Tot v. United States, supra. Where the transcendent value of speech is involved, due process certainly requires in the circumstances of this case that the State bear the burden of persuasion to show that the appellants engaged in criminal speech. Cf. Kingsley Books, Inc., v. Brown, supra.

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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Anonymous Coward, 24 Nov 2012 @ 12:33am

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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.

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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Anonymous Coward, 24 Nov 2012 @ 9:29am

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The persistent argument that Freedman v Maryland is somehow limited solely to obscenity just won't wash.

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:
It is in the obscenity area that the courts have been most concerned with procedural matters. There the Supreme Court has fashioned a series of specific rules designed to prevent insensitive procedural devices from strangling first amendment interests. The Court has found itself developing a comprehensive system of �procedural safeguards designed to obviate the dangers of a censorship system.�
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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Anonymous Coward, 24 Nov 2012 @ 9:48am

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Karl--

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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Anonymous Coward, 24 Nov 2012 @ 10:32am

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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.

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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Anonymous Coward, 24 Nov 2012 @ 1:33pm

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You're posting too many facts and logical statements. That's not what this site is about.
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Karl (profile), 24 Nov 2012 @ 3:09pm

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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.

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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Karl (profile), 24 Nov 2012 @ 4:43pm

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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.

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:
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. [...]

For a number of reasons, the Court concludes that aspects of the civil forfeiture provision are unconstitutional. [...]

Under this scheme, an authorized federal agent may seize property based on a showing of "probable cause," which for seizure purposes has been held to be "a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." [...] Thus, it is clear that a large amount of assets � books, printing presses, films, etc. � may be seized based solely on an ex parte showing of probable cause. [...]

Accordingly, the Court GRANTS in part the plaintiffs' motions for an injunction and for summary judgment on this issue, declares 18 U.S.C. � 2254(b) and (d) to be unconstitutional, and enjoins the defendants from enforcing the seizure or forfeiture provisions unless there has been a prior adversarial proceeding.

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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Karl (profile), 24 Nov 2012 @ 4:49pm

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As the Supreme Court noted in Campbell, "in the vast majority of cases, an injunctive remedy is justified because most infringements are simple piracy."

You're being either inaccurate or misleading - again. See my explanation earlier about what the court actually said in Campbell.
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Karl (profile), 24 Nov 2012 @ 5:04pm

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See my explanation earlier about what the court actually said in Campbell.

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:

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."
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Karl (profile), 24 Nov 2012 @ 5:47pm

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Many the cases I've quoted say that "instrumentalities" cannot be seized if that seizure results in "interrupting the flow of expressive materials."

Oh, and let's not leave out CDT v. Pappert. I quoted it already, but apparently you didn't see this:

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.

The Act requires ISPs to block child pornography "residing on," as well as "accessible through," their service. The overblocking only occurs with respect to filtering utilized to block child pornography accessible through an ISP's service. The overblocking problem is not encountered when an ISP removes content residing on its service because an ISP can remove such content without affecting any other content.

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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Anonymous Coward, 26 Nov 2012 @ 7:59am

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There is a branch of the prior restraint doctrine that deals with ex parte warrants, and there is a branch that deals with injunctions. Both are technically "pretrial," but both are different doctrines. I don't think the difference is as great as you think, though. A preliminary injunction and an ex parte seizure are possibly a prior restraint if the context is obscenity. If the context is copyright, neither is prior restraint.
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Anonymous Coward, 26 Nov 2012 @ 8:03am

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Have you even read anything I wrote in this entire discussion?

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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Anonymous Coward, 26 Nov 2012 @ 8:06am

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You're being either inaccurate or misleading - again. See my explanation earlier about what the court actually said in Campbell.

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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Anonymous Coward, 26 Nov 2012 @ 8:07am

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The court said, explicitly, that if blocking unprotected materials accessible through its service results in "overblocking," such blocking cannot survive First Amendment scrutiny.

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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Anonymous Coward, 26 Nov 2012 @ 9:45am

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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:

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:
Legal rhetoric has dulled thought on the injunction remedy. It is a venerable maxim that irreparable injury is "presumed" in a case of copyright infringement. [FN115] 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. Successful fabric designs, fashion accessories, toys, and videos instantly spawn parasitic industries selling cheap copies. These infringers incur no development cost, no advertising expense, and little risk. They free-ride on the copyright owner's publicity, undercut the market, and deprive the copyright owner of the rewards of his creation. Allowing this practice to flourish destroys the incentive to create and thus deprives the public of the benefits copyright was designed to secure. It is easy to justify enjoining such activity. In fact, the presumption of irreparable harm is probably unnecessary. It merely simplifies and reduces the cost of proving what could be shown without a presumption.
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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Karl (profile), 26 Nov 2012 @ 1:43pm

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I'm going to reply to all your quotes here, if you don't mind.

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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Anonymous Coward, 26 Nov 2012 @ 4:21pm

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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.

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:
We reverse, however, the judgment in No. 87�470 sustaining the pretrial seizure order.

In a line of cases dating back to Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), this Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as �obscene.� In Marcus, 63 *63 and again in A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), the Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a �procedure �designed to focus searchingly on the question of obscenity.� � Id., at 210, 84 S.Ct., at 1725 (quoting Marcus, supra, 367 U.S., at 732, 81 S.Ct., at 1716). See also, e.g., Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968).

We refined that approach further in our subsequent decisions. Most importantly, in Heller v. New York, 413 U.S. 483, 492, 93 S.Ct. 2789, 2794, 37 L.Ed.2d 745 (1973), the Court noted that �seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding.� As a result, we concluded that until there was a �judicial determination of the obscenity issue in an adversary proceeding,� exhibition of a film could not be restrained by seizing all the available copies of it. Id., at 492�493, 93 S.Ct., at 2794�2795. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. Ibid.; see **928 New York v. P.J. Video, Inc., 475 U.S. 868, 874�876, 106 S.Ct. 1610, 1614�1616, 89 L.Ed.2d 871 (1986).

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. Lo�Ji Sales, Inc. v. New York, 442 U.S. 319, 326, n. 5, 99 S.Ct. 2319, 2324 n. 5, 60 L.Ed.2d 920 (1979). It is �[t]he risk of prior restraint, *64 which 64is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials� that motivates this rule. Maryland v. Macon, supra, 472 U.S., at 470, 105 S.Ct., at 2782. These same concerns render invalid the pretrial seizure at issue here.
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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Karl (profile), 28 Nov 2012 @ 9:35pm

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I'm getting tired of this, as we're not getting anywhere.

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:

The statutes' allowance for such blanket suppression of entire bookstores and theaters necessarily violates the second and third Freedman standards as well. Unlike the precise measure approved in Kingsley Books, these statutes make no provision for prompt adversarial review and, more fundamentally, bypass any comprehensive obscenity adjudication. Similarly, the final requirement of Freedman � that prior restraint before judicial review be strictly limited in duration � clearly prohibits the indefinite seizure and permanent forfeiture of materials never afforded judicial review at all.

We reiterate that for purposes of these Freedman guidelines, as distinguished from our analysis of the statutes' operation as substantive prior restraints, it is irrelevant whether the suppressed materials in fact represent protected or unprotected speech. Even if every item seized from these bookstores might ultimately be adjudged obscene, the seizure orders and any subsequent forfeiture judgments would still be unconstitutional due to these procedural irregularities. [...]

Our analysis of these statutes under the substantive prior restraint doctrine has revealed that the sweeping remedies they afford are for most purposes patently unconstitutional. [Italics in original.] Some courts in considering the constitutionality of nuisance abatement statutes and similar measures as applied to obscenity have avoided the constitutional problem by means of a limiting construction of the statute, simply holding the statute inapplicable to obscenity as a predicate offense. This avenue is not open here, as the statutory scheme before us explicitly creates a predicate offense of obscenity. At best, we could limit the operation of these statutes to the seizure and forfeiture of particular items alleged and subsequently adjudged to be obscene. However, consideration of the procedural requirements of the prior restraint doctrine indicates that grave constitutional problems would even so continue to plague this application of the statutes. The attempt to preserve the statutes' constitutionality by a narrowing construction, therefore, would be an unnecessarily tortuous exercise, creating a provision anomalous in relation to the overall operation of the RICO/CRRA statutes. Moreover, the eviscerated version of the acts as applied to obscenity would add nothing to the prosecutorial tools now afforded by our criminal obscenity statute. We will not ascribe to the legislative intent such an absurd result. Accordingly, we conclude that the seizure orders against these defendants and the statutes' application to obscenity generally must be characterized as both substantively and procedurally unconstitutional under the prior restraint doctrine: as prior restraints of protected speech, or as impermissible procedures for restraining speech which may or may not be protected.
- 4447 Corp. v. Goldsmith
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Anonymous Coward, 29 Nov 2012 @ 11:21am

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You literally found the only reported case in the U.S., both state and federal, that uses the phrase "substantive prior restraint doctrine." LOL! That opinion was vacated by the state supreme court, which in turn was overruled by the U.S. Supreme Court in Fort Wayne Books. And in Fort Wayne, the Court does not discuss the "substantive prior restraint doctrine" because there is no such thing. The Supreme Court defines the doctrine, not some state appellate court that got overruled. The court there is mistaken about many things, and they are making the same confusing mistake that you are. Prior restraint doctrine looks to the adequacy of the procedures used. Period. There is no application of scrutiny or anything like that.
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Karl (profile), 29 Nov 2012 @ 2:43pm

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I'm still not so sure why you're so insistent about this. There is no question that "prior restraint" applies to substantive analysis as much as procedural analysis.

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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Anonymous Coward, 29 Nov 2012 @ 5:32pm

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A substantive analysis looks at the relationship between the means and the ends. The higher the level of scrutiny, the closer the means and ends must fit together. There's three levels of scrutiny: rational basis, intermediate, and strict. The question asked is whether the statute passes the applicable level of scrutiny. That has nothing to do with prior restraint, which looks only at the procedures used to enforce the statute and asks whether they sufficiently protect First Amendment concerns.

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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Anonymous Coward, 29 Nov 2012 @ 5:43pm

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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.

Yep. It quoted O'Brien when doing the substantive analysis, assessing the fit between the means and ends:
The Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); see generally Dunn v. Blumstein, 405 U.S., at 342-343, 92 S.Ct., at 1003.8 Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what Chicago tolerates from labor picketing, the excesses of some nonlabor picketing may not be *102 controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses �can be controlled by narrowly drawn statutes,� Saia v. New York, 334 U.S., at 562, 68 S.Ct., at 1150, focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter. Chicago's ordinance imposes a selective restriction on expressive conduct far �greater than is essential to the furtherance of (a substantial governmental) **2294 interest.� United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Far from being tailored to a substantial governmental interest, the discrimination among pickets is based on the content of their expression. Therefore, under the Equal Protection Clause, it may not stand.
That's a substantive analysis. The Court DID NOT do a separate prior restraint analysis.
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Anonymous Coward, 29 Nov 2012 @ 5:50pm

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You know, one day I hope that rather than claiming I don't understand the law and trying to explain to me things that you are clearly quite confused about, you'll instead thank me for all the time I spend actually explaining the law to you.

I can dream anyway.
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Anonymous Coward, 29 Nov 2012 @ 8:10pm

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Let me just add that substantive analysis depends on the context. This is generally speaking:

(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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Karl (profile), 30 Nov 2012 @ 12:24am

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You know, one day I hope that rather than claiming I don't understand the law and trying to explain to me things that you are clearly quite confused about, you'll instead thank me for all the time I spend actually explaining the law to you.

Well, we'll cross that bridge when we come to it.
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Karl (profile), 30 Nov 2012 @ 12:36am

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That's a substantive analysis. The Court DID NOT do a separate prior restraint analysis.

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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Anonymous Coward, 30 Nov 2012 @ 5:07am

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Well, we'll cross that bridge when we come to it.

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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Anonymous Coward, 30 Nov 2012 @ 5:30am

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The court did not do a separate procedural analysis. Nonetheless, it certainly was a prior restraint analysis.

No, Karl. IT WAS NOT. Let's look at the relevant passage again, taking it apart phrase by phrase:
The Equal Protection Clause requires that statutes affecting First Amendment interests be narrowly tailored to their legitimate objectives. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); see generally Dunn v. Blumstein, 405 U.S., at 342-343, 92 S.Ct., at 1003.8 Chicago may not vindicate its interest in preventing disruption by the wholesale exclusion of picketing on all but one preferred subject. Given what Chicago tolerates from labor picketing, the excesses of some nonlabor picketing may not be *102 controlled by a broad ordinance prohibiting both peaceful and violent picketing. Such excesses �can be controlled by narrowly drawn statutes,� Saia v. New York, 334 U.S., at 562, 68 S.Ct., at 1150, focusing on the abuses and dealing evenhandedly with picketing regardless of subject matter. Chicago's ordinance imposes a selective restriction on expressive conduct far �greater than is essential to the furtherance of (a substantial governmental) **2294 interest.� United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Far from being tailored to a substantial governmental interest, the discrimination among pickets is based on the content of their expression. Therefore, under the Equal Protection Clause, it may not stand.
(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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