How The Supreme Court's Recent Free Speech Ruling May Destroy Hollywood's Plans To Kick People Off The Internet

from the about-that... dept

Wed, Jun 21st 2017 10:46am — Mike Masnick

Earlier this week, we wrote about the details of the Supreme Court's ruling in Packingham v. North Carolina -- the case that said a North Carolina law that barred convicted sex offenders from using social media was unconstitutional. There were some good lines in the ruling, but this may be the most important:

Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind.... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with anInternet connection to “become a town crier with a voice that resonates farther than it could from any soapbox."...

In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.

As we noted in our original post, I expect that to be quoted in many other cases -- and a big one may be the ongoing attempts right now by the legacy entertainment industry to force ISPs to kick people off of their service based on accusations (not convictions) of infringement. Those cases, like this Packingham case, involve using a law to claim that people should be blocked from using the internet. And based on the quotes above, it seems quite likely that parts of the DMCA are clearly unconstitutional. The lawsuits -- mainly the BMG v. Cox ruling which is currently on appeal, and the more recent UMG v. Grande Communications (which follows the same basic outlines of the Cox case) -- involve arguing that 512(i) of the DMCA requires ISPs to kick users off their service entirely based on accusations of infringement. As we've explained, this already appears to be a twisted interpretation of 512(i), but now it appears there's a very reasonable chance that the Supreme Court could find 512(i) outright unconstitutional under the First Amendment for broadly blocking internet access in a way that harms free speech rights.

As noted by copyright professor Annemarie Bridy, this clearly could impact those other cases following this ruling:

Packingham is relevant to this conversation because it stands quite clearly for the proposition that broadly defined state-mandated limits on access to the Internet raise serious First Amendment issues. Packingham challenged the constitutionality of a North Carolina criminal statute prohibiting registered sex offenders from accessing “commercial social networking sites” on the Internet. In striking down the statute on First Amendment grounds, the Court emphasized the critical importance of the Internet in general, and social media platforms in particular, to everyday life in the “Cyber Age.” While the Court recognized a significant governmental interest in preventing use of the Internet for criminal activity, it held that North Carolina’s ban on social media access swept too broadly. Interestingly, the Court elected not to decide with precision how much of the Internet the challenged statute put off limits. It declined to say—because it didn’t think it had to—whether the statute’s prohibition reached sites like Amazon.com, Washingtonpost.com, and WebMD.com in addition to “commonly understood” social networking sites like Facebook, LinkedIn, and Twitter. The Court concluded that the statute couldn’t survive First Amendment scrutiny even if it were narrowly construed to cover only the social media platforms that everyone can agree are social media platforms. To put it another way, the statute’s prohibition was broad enough to offend the First Amendment even when narrowly construed to cover only parts of the Web.

Bridy doesn't go so far as to argue that Packingham means 512(i) is unconstitutional -- in fact, she notes that it's more limited than the North Carolina law that was struck down. But, she notes:

Packingham’s holding should serve as a reminder to lower courts interpreting section 512(i) that termination of access to the Internet implicates core First Amendment values: “While in the past there may have been difficulty in identifying the most important places (in the spatial sense) for the exchange of views, today the answer is clear. It is cyberspace.” Consequently, courts should consider it reasonable, and within the bounds of the DMCA safe harbor, for broadband providers to determine that “appropriate circumstances” for terminating a user’s access to the whole Internet for infringing copyright are very rare.

Harold Feld, from Public Knowledge, goes a bit further in his own analysis, arguing that when it comes to internet access providers, it seems clear that parts of 512(i) requiring termination, should be seen as unconstitutional, while also pointing out that to argue against this might mean Hollywood arguing that copyright infringement is somehow worse that child molestation.

Granted, Hollywood lobbyists and their wholly owned subsidiaries in Congress are capable of arguing with a straight face that copyright infringement is actually worse than child molestation and therefore the government purpose is sufficiently compelling to override all First Amendment concerns. And some judges, like the district court judge in the BMG v. Cox decision, would probably agree. (Read his opinion here to see if you agree.) But I’m doubtful that the majority of appeals court judges will agree. Whether or not one treats the majority opinion’s public forum analysis of social networks as “dicta” (which is legalese for “stuff in an opinion I don’t like so I don’t consider binding”), all 8 Supreme Court justices agreed that subscribers have a First Amendment right to access information and speak online, and that the government cannot prohibit a person from accessing content that has nothing to do with preventing repeat offenses — even when the repeat offense is child molestation, and the evidence arguably supported that child molesters were particularly prone to repetition.

Sorry, if molesting minors doesn’t justify permanently kicking you off the Internet, downloading 3 advance copies of Transformers: The Last Knight shouldn’t either. Congress cannot require ISPs to terminate subscribers accused of downloading pirating material (which is what Section 512(i) amounts to) anymore than it can criminalize accessing the Internet after being accused of downloading pirated material. Nor do I expect Big Content to prevail by arguing that getting you thrown off your ISP isn’t blocking you from accessing the Internet, because of all the amazing broadband options you have to replace your loss of service. While America boasted thousands of dial-up ISPs in 1998 when the DMCA was passed, most folks are lucky to have a choice of two landline providers capable of providing reliable, always on broadband of sufficient quality to allow me to engage in all my protected First Amendment online activity.

There is the separate question of whether or not this ruling would also kill off 512(i) as it applies to service providers on the network (e.g., Facebook, Twitter, Techdirt, etc...) rather than internet access providers, such as Comcast, AT&T, etc. Feld thinks there is an argument that the opinion could be read to block such rulings as well:

Whether Packingham makes Section 512(i)’s requirement that all social media sites and other “covered entities” have termination policies for “repeat infringers” is somewhat less clear. Taking the majority analysis as actual opinion rather than “undisciplined dicta,” then the answer is clearly yes for major social network sites and platforms including — wait for it — Youtube. It’s kind of hard to argue that the largest online video platform, whose videos include some of the most important raw footage of critical events and which has become a central location for debate, doesn’t qualify as the kind of online public forum Kennedy described. Nor does it make much sense to say access to Facebook and Twitter are protected under the First Amendment while access to Youtube isn’t.

OTOH, I’m not sure the same analysis applies to cloud storage or other services that don’t share the attributes of a general public forum. And, of course, websites or services that are set up expressly to facilitate the exchange of infringing material don’t qualify for safe harbor protection anyway, so the hypothetical Doctor Evil Sing Along Piracy Exchange is already subject to liability.

Of course, none of this should apply to the platforms making decisions themselves over removing content or users from their own platforms (for which the platforms have their own First Amendment protections). Yet, I would not be at all surprised to see someone raise this issue in court, and argue that Packingham means that major social networks (Facebook, especially, but likely Twitter and YouTube as well) have no right to bar users. I think that would be a bad result, but the language in the Packingham ruling at least makes such a ruling a lot more plausible than it was last week.

The Packingham ruling is likely to have quite a lot of impact, and as predicted yesterday, I expect it to be quoted frequently in cases involving the internet over the next few years.

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Filed Under: 512i, copyright, copyright trolling, dmca, first amendment, free speech, supreme court, three strikes
Companies: bmg, cox, grande communications, rightscorp

40 Comments

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TKnarr (profile), 21 Jun 2017 @ 10:57am

I think the ruling might be usable to challenge blanket disconnection, but orders barring someone from accessing specifically sites offering pirated material would probably pass muster. That of course leads to other questions, including one that I haven't seen brought up much: the definition of "repeat infringer". I'd love to see someone contest disconnection on the basis that they have never been found to have infringed. Been accused of it yes, but anyone can accuse anyone of anything at any time and none of the accusations have gone through trial and been sustained.
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Roger Strong (profile), 21 Jun 2017 @ 11:35am

Re:
The copyright trolls justify demands for disconnection by labelling the accused REPEAT offenders.

But "repeat" just means that some senior citizen who has never heard of the show they're accused of downloading let alone BitTorrent... received a whole bunch of infringement claims in one night.
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Anonymous Coward, 21 Jun 2017 @ 11:47am

"Yet, I would not be at all surprised to see someone raise this issue in court, and argue that Packingham means that major social networks (Facebook, especially, but likely Twitter and YouTube as well) have no right to bar users. I think that would be a bad result, but the language in the Packingham ruling at least makes such a ruling a lot more plausible than it was last week."

I was thinking exactly this. I wonder if I could sue Breitbart to be unbanned so I can continue to comment on their articles.
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Anonymous Coward, 21 Jun 2017 @ 11:49am

Re:
s/articles/opinion pieces/
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Anonymous Coward, 21 Jun 2017 @ 11:50am

Justice Ginsburg
Note that Justice Ginsburg joined the majority opinion in this case—

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR , and KAGAN, JJ., joined.

If you may recall, Justice Ginsburg authored the court's opinion in Eldred (2003) and Golan (2012), and dissented from the court's opinion in Kirtsaeng (2013). Which is to say —in short— Justice Ginsburg's record on copyright is rather unfortunate.
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Anonymous Coward, 21 Jun 2017 @ 12:00pm

Re: Justice Ginsburg
Of course, I won't speculate as to whether Mr Trump may have an opportunity to nominate Justice Ginsburg's replacement. However, she was born in 1933 , and is now 84 years old.
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Anonymous Coward, 21 Jun 2017 @ 12:44pm

Re:
Reading Breitbart is actually banned by the Eighth Amendment.
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TKnarr (profile), 21 Jun 2017 @ 1:31pm

Re: Re:
Exactly. The terminology the copyright maximalists are using has long-established meaning in the legal system, and I'd like to see them jerked sharply back into legal reality by a defendant going "They're basing their entire argument on my having been found to have infringed repeatedly, yet there's nothing in the record showing I've been found to have infringed even once. If they can't cite the actions where a court reached a finding of infringement, I'd like this action dismissed.".
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Anonymous Coward, 21 Jun 2017 @ 1:32pm

If an ISP has been stripped off its safe haven protection like Cox has with the case against them by Rightscorp then does this ruling still protect Cox from having to disconnect people even though they have been stripped off their safe haven protection?
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Anonymous Coward, 21 Jun 2017 @ 1:36pm

Re:
I meant to say against BMG not Rightscorp.
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Anonymous Coward, 21 Jun 2017 @ 1:40pm

Re:

... does this ruling...?

From the conclusion in Harold Feld's post (which was linked above):

The Federal Court of Appeal for the 4th Circuit has before it Cox’s appeal from the District Court decision in BMG v. Cox. Although briefing in that case is now complete (my employer Public Knowledge filed an Amicus Brief in support of Cox), Cox can still file a supplementary letter raising the Packingham issues.

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Roger Strong (profile), 21 Jun 2017 @ 2:12pm

Re: Re: Justice Ginsburg
So, not even old enough to be off copyright.
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That One Guy (profile), 21 Jun 2017 @ 2:41pm

Re:
The fact that they are basing their demands off of accusations of infringement should have been all it took to laugh them out of court.

There could be a discussion about fitting penalties for actual 'repeat infringers', those that have been found guilty of copyright infringement multiple times, but they aren't even getting to that point, and instead are insisting that an accusation of guilt be treated as equivalent to a finding of guilt. To say that their argument is absurd is to do a great disservice to the word, with 'insane' probably fore fitting.
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Anonymous Coward, 21 Jun 2017 @ 2:45pm

So apparently it's perfectly alright to strip a convicted felon's 2nd Amendment rights --for life if desired-- but don't dare touch his 1st Amendment rights.

It seems some Constitutional Amendments are more "equal" than others in the eyes of the Supreme Court. Perhaps society would be safer if pedophiles were allowed to have guns, while being banned from internet access. We saw just how much of a repeat offender that Weiner pervert turned out to be.
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Anonymous Coward, 21 Jun 2017 @ 2:47pm

it's about time someone started to stand against Hollywood and the entertainment industries before they destroy so much more than they are giving! the world can do without them but not without all the things they are trying to have removed! how any government and court can be so stupid as to allow an industry that revolves around make believe to take control of so much at the expense of so many, is totally beyond me!!
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Anonymous Coward, 21 Jun 2017 @ 2:49pm

Of course the 1st amendment doesn't protect illegal speech.
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Anonymous Coward, 21 Jun 2017 @ 2:52pm

Re:
Where is the "I'm not sure if that is satire?" button?
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Roger Strong (profile), 21 Jun 2017 @ 3:23pm

Re:

It seems some Constitutional Amendments are more "equal" than others in the eyes of the Supreme Court.

This seems reasonable in that if you think your 2nd amendment rights were unjustifiably taken away, you should absolutely be able to use your 1st amendment rights to protest.

But if you think your 1st amendment rights were taken away, you should NOT be able to use your 2nd amendment rights to protest.

That's subject to JFK's warning: "Those who make peaceful revolution impossible will make violent revolution inevitable." Should this warning not be heeded, constitutional amendments DO become equal... in their irrelevance.
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TKnarr (profile), 21 Jun 2017 @ 3:26pm

Re:
Well, yes, because to be illegal speech it first has to be found to be outside the scope of the 1st Amendment's protection. And the Court sets a fairly high bar for that.
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Anonymous Coward, 21 Jun 2017 @ 4:36pm

Re:
And what, exactly, is illegal speech?
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Anonymous Coward, 21 Jun 2017 @ 6:35pm

Re: Re:
He's trying to steer the discussion into piracy, but of course that misses the point entirely. The ruling wouldn't gut any existing antipiracy laws, just those that take away Internet access. But don't expect the concern troll to admit that.
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Anonymous Coward, 21 Jun 2017 @ 7:14pm

Re: Re:

And what, exactly, is illegal speech?

US v Stevens (2010) —

"From 1791 to the present," … the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." These "historic and traditional categories long familiar to the bar," — including obscenity, defamation, incitement, and speech integral to criminal conduct — are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem."

(Citations omited)

That decision, holding the statute at issue in the case to be facially overbroad, went 8 – 1, with Justice Alito the sole dissenter.

"Historic and traditional categories long familiar to the bar."
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Anonymous Coward, 21 Jun 2017 @ 7:34pm

Re: Re: Re:

"Historic and traditional categories long familiar to the bar."

In US v Alvarez (2012), a plurality opinion by Justice Kennedy, joined by Chief Justice Roberts, and Justices Ginsburg and Sotomayor, further reminded us that—

[T]he Court has acknowledged that perhaps there exist "some categories of speech that have been historically unprotected ... but have not yet been specifically identified or discussed ... in our case law."

(Quoting Stevens).

Justices Breyer and Kagan, while concurring in the judgment in Alvarez, rejected “a strict categorical analysis” in that case.
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Anonymous Coward, 21 Jun 2017 @ 9:23pm

What is illegal speech? [was Re: Re: Re: ]

And what, exactly, is illegal speech?

"Historic and traditional categories long familiar to the bar."

To perhaps address your question in an alternative —more oblique— style, Justice Kennedy's Packingham opinion cites the per curiam opinion in Brandenburg v Ohio (1969) for the proposition:

Specific criminal acts are not protected speech even if speech is the means for their commission.

That's less of a direct answer to your question than the Stevens categories. Otoh, Packingham is the recent opinion.

At any rate, you have a good question there, one that merits a deep answer.
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Anonymous Coward, 21 Jun 2017 @ 11:36pm

Re: What is illegal speech? [was Re: Re: Re: ]
The result is someone who uses the internet for criminal acts is not protected speech. Thus 512 i and the 1st amendment get along nicely.
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Talmyr (profile), 22 Jun 2017 @ 2:53am

Re:
Whilst it can seem unfair, subject to the whole "well-regulated militia" thing that doesn't apparently mean what it says, I'd be far more concerned about the issue of felons losing ther rights to vote in perpetuity. _That_ is far more restrictive to a functioning democracy.
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Anonymous Coward, 22 Jun 2017 @ 5:40am

You're again slyly asserting that legal fictions allowed to exist for profit in public marketplace have superior right to "natural persons",
in this quote: "Of course, none of this should apply to the platforms making decisions themselves over removing content or users from their own platforms (for which the platforms have their own First Amendment protections)."

But legal fictions are not superior to "natural persons" and must abide by the whole of corporate regulation. -- Oh, sure, they get away with vastly too much, but then so did the King of England until Americans stood up and said GO TO HELL. You and Mitt Romney can't explicitly say that corporations are even "persons", no support among the 99%.

As for the rest, don't be so gleeful. SC view of First Amendment is so elastic or tight as needs for any given case. Wouldn't be much further to say that people can't be disconnected for ANY reason, including not paying. Courts won't take this so broadly, and it's already okayed if narrowed.

Then there's that every ISP has "Terms Of Service" which you've supposedly agreed to and thereby waive First Amendment right, besides to not operate a (torrent) server, be bound by some arbiter that ISP gets to pick, and so on.
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Anonymous Coward, 22 Jun 2017 @ 5:42am

Re: You're again slyly asserting that legal fictions allowed to exist for profit in public marketplace have superior right to "natural persons",
Side note: I've determined that Masnick keeps his threads locked down, because I had another session open while got this comment in, but didn't go through on latest topic, the Oliver suit.
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Anonymous Coward, 22 Jun 2017 @ 5:44am

Re: Re: You're again slyly asserting that legal fictions allowed to exist for profit in public marketplace have superior right to "natural persons",
Confirmed by going there directly to try yet again. Masnick just can't stand opposition.
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DannyB (profile), 22 Jun 2017 @ 6:12am

Re: Re:

The copyright trolls justify demands for disconnection by labelling the accused REPEAT offenders.

Maybe we need a new term: repeat perjurers.
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Anonymous Coward, 22 Jun 2017 @ 7:07am

Re: What is illegal speech? [was Re: Re: Re: ]
In your several replies to yourself, I do not see specific words or sentences that one is not allowed, by law, to verbalize.

There appears to be a general "if we do not like it" approach.
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Wendy Cockcroft, 22 Jun 2017 @ 8:09am

Re: Re: Re: You're again slyly asserting that legal fictions allowed to exist for profit in public marketplace have superior right to "natural persons",
I called him out to his e-face over UBI and haven't been banned or anything like that; we disagree and that's okay. Mike doesn't mind when people disagree with him as long as they are reasonable about it. I stated my case and provided reasons for my stance. I don't make wild accusations or insult him.
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Anonymous Coward, 22 Jun 2017 @ 8:20am

Re: Re: What is illegal speech? [was Re: Re: Re: ]

512 i and the 1st amendment get along nicely.

Certainly, we begin with the presumption that a legislative act comports with constitutional commands: The initial burden rests with the party challenging the constitutionality of the statute.
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Anonymous Coward, 22 Jun 2017 @ 8:55am

Re: Re: You're again slyly asserting that legal fictions allowed to exist for profit in public marketplace have superior right to "natural persons",
He's under orders to block illegal speech by nine mysterious figures in black robes. So unfortunately hands tied and all if that.
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Anonymous Coward, 22 Jun 2017 @ 9:33am

Presumptions [was Re: Re: Re: What is illegal speech?]

Certainly, we begin with the presumption that a legislative act comports with constitutional commands…

That presumption may be overturned, of course, upon an adequate showing.

Bantam Books v Sullivan (1963)

Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.

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Roger Strong (profile), 22 Jun 2017 @ 10:02am

Re: Re: Re: You're again slyly asserting that legal fictions allowed to exist for profit in public marketplace have superior right to "natural persons",

nine mysterious figures in black robes

The Nazgûl...? Oh those gosh-darned Ringwraiths, thwarting Anonymous Coward at every turn.
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Gwiz (profile), 22 Jun 2017 @ 10:09am

Re: Re: What is illegal speech? [was Re: Re: Re: ]

The result is someone who uses the internet for criminal acts is not protected speech. Thus 512 i and the 1st amendment get along nicely.

17 U.S. Code § 512 (i) "provides for the termination [...] of subscribers and account holders [...] who are repeat infringers". It says nothing about anyone who has been repeatedly accused of infringement via DMCA notices.

DMCA notices are not, in and of themselves, any sort of indication of guilt, they are simply accusations by the rights holders and may not even be sustainable claims.

Until a court has determined that a copyright infringement has occurred, the speech is protected by the First Amendment.

So if an ISP doesn't want to run afoul of the First Amendment, they should only terminate the accounts of those who have been found guilty of infringement, at least twice, in a court of law.
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Anonymous Coward, 23 Jun 2017 @ 1:11pm

Hollywood kicking people from the Internet. Sigh!
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The Wanderer (profile), 23 Jun 2017 @ 1:45pm

Re: Re: Re:
To be fair, what the accusers are doing is asking the court to find that the evidence shows that the accused has already infringed repeatedly - that is, in multiple distinct instances.

If the system were working properly, there wouldn't be anything inherently wrong with that. Unfortunately, as well established in other discussions, there are many reasons why the current system cannot really be reasonably claimed to be working "properly".
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Thad, 24 Jun 2017 @ 10:14pm

Re: You're again slyly asserting that legal fictions allowed to exist for profit in public marketplace have superior right to "natural persons",

not operate a (torrent) server

Which should be easy, because there's no such thing as a torrent server.
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