Senator Steve Daines Decides To Spit On The 1st Amendment Again: Wants To Ban Moderation Of Politicians

from the politicians-aren't-a-protected-class-steve dept

I'm beginning to think that Montana Senator Steve Daines really, really doesn't like the 1st Amendment. Instead, he likes to wrap himself in a faux American flag as he pretends to be patriotic, while attempting to stamp out the rights the 1st Amendment provides to Americans. Last week, we wrote about his attempt to amend the Constitution (specifically, chipping away at the 1st Amendment), to make flag burning illegal.

This week, he decided to just spit on the 1st Amendment itself and introduce yet another unconstitutional social media moderation bill that would amend Section 230. Called the "Preserving Political Speech Online Act," the bill does a few different things, but the key one seems to be... to make politicians like himself a special protected class. Because, Senators like himself, worth over $30 million, clearly are an oppressed class.

There's some stuff about how if you take political advertisements from some candidates you have to take them from all candidates. But the really sketchy stuff is in how it modifies Section 230. It would change Section (c)(2) -- the part of Section 230 that is rarely relied upon, regarding "good faith" blocking of content -- such that the "otherwise objectionable" bit is deleted, and replaced with "threatening or promoting illegal activity." It would also remove the line that sites are protected for blocking material "whether or not such material is constitutionally protected."

Of course, this misunderstands the nature of both Section 230 (and how (c)(1) already protects most moderation) and the 1st Amendment, which already protects most content moderation editorial choices as well. But, then Daines has to take it a step further and make absolutely sure his bill is blatantly unconstitutional. Because it also adds in a prohibition on certain types of moderation. It says you can no longer moderate "political speech." Apparently Daines wants to make sure all Nazis are protected when they promote fascism. His bill would add in this bit of unconstitutional garbage:

PROHIBITION OF BAD FAITH BLOCKING AND SCREENING.—

‘‘(i) IN GENERAL.—For purposes of subparagraph (A)(i), it shall not be considered good faith for a provider of an interactive computer service to block, censor, or screen material on the grounds of race, color, religion, sex, national origin, or political affiliation or speech

Now, race, color, religion, sex, and national origin are already protected classes. Political affiliation is not. Nor should it be. And, flat out saying that you're regulating speech here should have raised all of the 1st Amendment alarm bells possible. But it did not. Because this is not a serious attempt at serious policy making from a serious person. This is grandstand culture warrioring from a silly politician with nothing better to do than rile up an ignorant, silly base.

Amusingly, there's an exemption on that stuff for a website that is "dedicated to a specific issue, policy, belief, or viewpoint." So... if you set up a site specifically for Nazis, you can now ban people who don't support fascism. But the webhost hosting the Nazi focused site, which is open generally to the public, cannot ban the Nazi website. Is that really what Daines wants?

And, left unsaid so far, is that all of this is based on a total myth that anyone is being moderated for their political viewpoints. They are not. People are being moderated for violating policies such as by spreading mis- and disinformation, harassing others, trolling others, and other such general mayhem. No one is being moderated for supporting any standard political viewpoints. It's a myth that fools like Steve Daines embrace because to admit the truth would be to admit that their most vocal supporters are ignorant rubes and assholes.

Filed Under: 1st amendment, flag burning, free speech, political speech, politicians, protected class, section 230, steve daines

Florida Tells Court: Actually, It's Section 230 That's Unconstitutional (Not Our Social Media Law)

from the florida-man-does-florida-man-things dept

As you'll recall, Florida's social media bill was declared unconstitutional by a federal judge a couple weeks ago. The state has already moved to appeal that decision, so we'll have to see how the judges on the 11th Circuit feel about all of this. However, apparently the case in the lower court is still moving forward in some way (I had assumed that after the preliminary injunction and appeal that the case would be stayed until the appeal was decided, but apparently not? Understanding civil procedure is an impossibility).

Earlier today Florida filed its response to the lawsuit, which is... not much. It's basically this sentence over and over again:

This paragraph contains legal conclusions that do not require a response. Defendants deny any remaining allegations in this paragraph.

I count 142 such statements (roughly). When you get down to the defenses, they toss out a bunch, but the one that caught my attention is their sixth defense:

Insofar as 47 U.S.C. § 230 would render all or any portion of the Act unconstitutional, 47 U.S.C. § 230 is invalid and in violation of the First Amendment, the Tenth Amendment, and the principle of federalism.

The issue here is that while the law has been put on hold for violating the 1st Amendment, one of the other arguments is that even if it were constitutional (which it is not), it would be pre-empted by Section 230. We've discussed this in the past. Section 230 makes it clear that states cannot contravene federal law regarding moderation and if they do they're pre-empted. So, to counter that, Florida is now doing a "it's not our law that's unconstitutional, it's actually Section 230 that's unconstitutional!"

I guess we can add this to Donald Trump's recent Florida lawsuit that is also challenging the constitutionality of Section 230.

I doubt this particular challenge to Section 230 will end up getting very far, but it does seem notable as a case involving a state government arguing that Section 230 is, itself, unconstitutional under the 1st Amendment, 10th Amendment, and federalism. Of course, as the social media bill itself has shown, Florida does not exactly have a good track record for understanding what is, and what is not, a violation of the 1st Amendment. But, of course, when you have clueless Supreme Court Justices asking for cases challenging the constitutionality of Section 230, eventually we were going to get to this point.

Filed Under: 1st amendment, content moderatin, federalism, florida, pre-emption, section 230, social media

Fifth Circuit Sends Anonymous Cop's Lawsuit Againt Protest Organizer To The State's Top Court, Suggests Getting Injured Is Part Of The Job

from the ambulance-drivers-can't-be-ambulance-chasers dept

A decision that created a chilling effect on protected First Amendment activity is headed to yet another court to get the details sorted out.

It's been more than four years since an anonymous police officer sued over injuries they sustained while responding to a protest in Baton Rouge, Louisiana. The officer was struck in the face by a thrown chunk of concrete. Rather than recognize this was an unfortunate side effect of being in the law enforcement business, the officer sued activist DeRay Mckesson -- who decidedly did not throw the object that struck the officer.

The officer's argument was that Mckesson's organization of the protest, as well as his decision to lead protesters out to block the highway in front of the police station, made him at least indirectly responsible for the injuries the officer sustained.

Somehow this lawsuit and its ridiculous premise survived two passes by the Fifth Circuit Appeals Court, with its second decision noting how angry it was that it was forced to take another look at its inexplicable first decision: the one that said that Mckesson should have know that leading protesters out into a street would result in the injury of police officers.

By ignoring the foreseeable risk of violence that his actions created, Mckesson failed to exercise reasonable care in conducting his demonstration.

This twice-made decision was appealed and the Supreme Court said the Fifth Circuit got it wrong twice. However, it didn't necessarily affirm the right to protest and the right of protest leaders to be free of bullshit secondary liability claims. But it said the Fifth Circuit -- while not incorrect to raise the issue about liability under Louisiana state law -- should not have taken it on itself to define the contours of the state law and how it applied to Mckesson's actions in relation to the officer's injury.

The Fifth Circuit's third pass [PDF] follows the Supreme Court's instructions. It is sending this case to the Louisiana state Supreme Court to handle the open state law question. But it does so with some additional examination of applicable state laws that indicate the anonymous cop may find no one to sue by the time the state court is done examining it. And this is at least partly due to law blog Volokh Conspiracy and its titular creator, Eugene Volokh.

In the meantime our attention has been drawn to a separate aspect of Louisiana law, the Professional Rescuer’s Doctrine, that could be dispositive. That doctrine, put succinctly, is a judge-made rule that “essentially states that a professional rescuer, such as a fireman or a policeman, who is injured in the performance of his duties, assumes the risk of such an injury and is not entitled to damages.” Gann v. Matthews, 873 So. 2d 701, 705 (La. App. 1st Cir. 2004) (citation and internal quotation marks omitted). The parties disagree as to whether this doctrine bars Officer Doe from recovering. See Mckesson Suppl. Br., Dec. 18, 2020, Doc. No. 00515679716; Doe Suppl. Br., Dec. 18, 2020, Doc. No. 00515678655. We have found limited guidance from the opinions of the Supreme Court of Louisiana on how this doctrine might apply to the particular facts of this case. Because we find this to be a close question of law, which also raises a significant issue of state policy, we further take this opportunity to respectfully elicit guidance on this issue from the Supreme Court of Louisiana.

The Fifth Circuit provides a link to the Volokh Conspiracy post raising this issue, one that called the as-yet-unraised local legal doctrine a "certain win" for Mckesson.

That's where things stand now. Hopefully, the state Supreme Court will remind this officer that the flipside of having a lot of government-granted power is assuming the risks that come with the position. The ability to quell and/or contain protests comes with the possibility of injury. And when it's impossible to discover who actually threw the projectile that resulted in injury, the acceptable response isn't suing protest organizers, unaffiliated protest movements, and Twitter hashtags.

Filed Under: 1st amendment, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, police, protests

Court To Judge Roy Moore: You're Not Defamation-Proof, But This Contract You Signed Sure Is

from the always-read-the-fine-print dept

Judge Roy Moore -- former Senate hopeful and twice-removed-for-misconduct Alabama Supreme Court justice -- has lost his lawsuit against satirist Sacha Baron Cohen. Having agreed to be on the receiving end of some satire (albeit not knowingly), Roy Moore sued Cohen after falling victim to a prank in which Cohen (performing as his character General Erran Morad) waved an electric wand he claimed could detect sexual predators. The wand beeped while close to Roy Moore.

The bit was, of course, a reference to the cascade of sexual misconduct allegations that rained down on Roy Moore during his run for a Senate seat. Moore claimed that he never would have agreed to this if he hadn't been duped by Cohen and his production team into thinking he was actually in New York City to receive a prestigious award for his "strong support of Israel." Moore also claimed the pedophile wand beeping in his presence was defamation -- and $95 million of it at that.

Well, it isn't defamation and if there was any duping (and there was), Roy Moore agreed to it. The New York federal court handling the lawsuit brought by Moore and his wife, Kayla, has dismissed the case with prejudice, using both contract law and the First Amendment to do so.

Moore's claims fail because he signed a Standard Consent Agreement (SCA) in which he agreed to do (and, more importantly, not do) several things. Because this agreement was willingly signed, all three of Roy Moore's claims (infliction of emotional distress, fraud, defamation) have already been waived.

Here's the court [PDF] spelling it out the details Moore apparently failed to read when he signed the agreement:

Not only does the SCA set forth a clear waiver of any claims “related to the Program,” but the contract even enumerates certain waived claims, including the very three pleaded in this case. Paragraph 4 of the SCA reads:

[Judge Moore] specifically, but without limitation, waives, and agrees not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or anyone associated with the Program, which are related to the Program or its production, or this agreement, including, but not limited to, claims involving assertions of . . . (h) infliction of emotional distress (whether allegedly intentional or negligent), . . . (m) defamation (such as any allegedly false statements made in the Program), . . . (p) fraud (such as any alleged deception about the Program or this consent agreement) . . . .

Moore did have the presence of mind to strike through a portion of the contract related to sexual behavior, but it doesn't help him.

Confronted with these unambiguous waivers of his only causes of action, Judge Moore turns to language he apparently struck through in another provision of Paragraph 4, which concerns an entirely different potential cause of action, “intrusion or invasion of privacy.” SCA ¶ 4(f). With this modification, the provision reads that Judge Moore waives any claims related to the Program

involving assertions of . . . (f) intrusion or invasion of privacy (such as any allegedly sexual-oriented or offensive behavior or questioning) . . . .

Judge Moore contends that this alteration somehow modifies the entire SCA to permit him to bring the causes of action alleged in the Complaint. The Court disagrees. The modification to Paragraph 4(f) of the SCA at most reflects an agreement of the parties to exempt from waiver an intrusion or invasion of privacy claim based on “any allegedly sexual oriented or offensive behavior or questioning.” But Judge Moore has not brought such a claim. And the modification does not pertain to the three causes of action—defamation, intentional infliction of emotion distress, and fraud—that Judge Moore in fact has pleaded.

That does it for Moore's claims. He explicitly agreed to not do the thing he's did: sue Baron Cohen for IED, fraud, and defamation. The court says the contract is enforceable under New York law, which means Moore is completely out of luck.

However, his wife -- Kayla Moore -- did not sign this agreement. But her claims of defamation are foreclosed by the First Amendment, which not only protects satire, but very heavily protects commentary on issues of public interest. Even if the assertion (which was made mainly by inference and some very suspect beeping from a very suspect electronic device) is possibly injurious, the question is whether anyone would take Cohen's satirical mockery as an assertion of fact.

In light of the context of Judge Moore’s interview, the segment was clearly a joke and no reasonable viewer would have seen it otherwise. The segment began with an absurd joke (i.e., “Gen. Erran Morad” boasting about once killing a suicide bomber with an iPad 4, but luckily he had purchased AppleCare), followed soon by footage of numerous news reporters commenting on the accusations brought against Judge Moore. At this point, it should have been abundantly clear to any reasonable viewer that Defendants were using humor to comment on those accusations, rather than making independent factual assertions or even remarking on the truth or accuracy of the allegations. The actual interview of Judge Moore then became even more absurd. No reasonable viewer would have interpreted Cohen, in his over the-top “Erran Morad” character, waving a wand that supposedly detects enzymes emitted by pedophiles in the vicinity of Judge Moore as stating facts about Judge Moore. Nor would a viewer have reasonably believed that this gadget—which “Erran Morad” contended also was able to detect hidden tunnels used by terrorists—doubled as a device that also could detect enzymes secreted by pedophiles.

The other context that matters is the subject matter:

Cohen’s conduct during the interview with Judge Moore was related to press reports of accusations against Judge Moore of sexual misconduct involving young females, with this media coverage occurring while Judge Moore was campaigning for the U.S. Senate. The episode at issue began with footage of news agencies reporting these accusations against Judge Moore, followed by a clip of a public endorsement of Judge Moore’s candidacy. These matters are of public concern and are therefore protected by the First Amendment.

That does it for this lawsuit, at least for the moment. It has been dismissed with prejudice. The decision can be appealed but Moore can't do a bit of editing and mount another attempt to sue Cohen for these claims.

Getting suckered never feels good but being publicly embarrassed is rarely actionable. And when you're already traveling the path of the pariah, it's pretty tough to argue you've lost $95 million in reputation to someone who appealed to your ego, knowing it would likely blind you to the obvious.

Filed Under: 1st amendment, contracts, defamation, free speech, kayla moore, roy moore, sacha baron cohen, satire

Sixth Circuit Says School Board Can't Boot People From Meetings Just Because It Doesn't Like What They're Saying

from the seems-like-an-obvious-conclusion-but-here-we-are dept

Just because government officials may not like the tone of the criticism they're receiving doesn't mean they can use their government power to mandate civility. That's the determination of the Sixth Circuit Appeals Court, which has struck down part of an Ohio school board's rules of (public) engagement.

Following a school shooting in 2016, the Madison (OH) Local School District came up with a preventative plan -- one that involved allowing school staff to carry concealed weapons. This didn't play well with some parents. It also didn't play well with some of the district's students, who staged a walkout to protest gun violence. Following the discipline of those students, some residents decided to attend a school board meeting to express their feelings about the rule change and the punishment of students for their expressive speech.

Madison school district meetings are governed by the following "Public Participation Policy:"

Only Madison residents may participate, and they must limit their speaking time to three minutes. Participants must address the presiding officer, not Board members individually. The Policy authorizes the presiding officer to:

1. prohibit public comments that are frivolous, repetitive, and/or harassing;

2. interrupt, warn, or terminate a participant’s statement when the statement is too lengthy, personally directed, abusive, off-topic, antagonistic, obscene, or irrelevant;

3. request any individual to leave the meeting when that person does not observe reasonable decorum; [and]

4. request the assistance of law enforcement officers in the removal of a disorderly person when that person’s conduct interferes with the orderly progress of the meeting.

Plaintiff Billy Ison attended three meetings from March to May 2018. His May appearance resulted in the Board's actions that prompted this lawsuit. Here's how that evening went, according to the Sixth Circuit's opinion [PDF]:

A video of Billy Ison’s remarks there shows him turning to address the room and reading from a prepared speech, accusing the Board of “threaten[ing]” the school to punish the student protestors. He calls the Board’s justification offered at the prior meeting for punishing “a smokescreen intended to conceal their true motivation . . . to suppress all opposition to pro-gun views” and “push its pro-gun agenda.” And it depicts him accusing the Board of “taking a very strong position on guns” when it decided to arm staff.

The Board interrupted Billy twice during his remarks. First, [Board President David] French asked Billy not to use the word “threatening.” Second, after Billy accused the Board of concealing their “true motivation” for punishing students, another Board member asked him to stop “putting words in [the Board’s] mouth” and saying things “that are not facts.” French then asked Billy to stop and warned that if he continued, security would escort him out. Billy continued, finishing his speech while a security officer escorted him calmly from the room. In total, he spoke just under three minutes. As French later recalled the incident, Billy “was being basically unruly, not following the rules, being hostile in his demeanor.” He let Billy speak “until other people were starting to object and getting offen[d]ed by it.”

Ison sued, claiming the restrictions on speech were unconstitutional, enacted by the Board in hopes of stifling criticism. He argued the Supreme Court's recent decision involving the registration of disparaging trademarks prevents the government from targeting speech considered "abusive, personally directed, or antagonistic." The Appeals Court agrees with Ison's assertions.

In Matal, the Court struck down the Lanham Act’s prohibition on federal registration of trademarks that “‘disparage . . . or bring . . . into contemp[t] or disrepute’ any ‘persons, living or dead.’” 137 S. Ct. at 1751 (alterations in original) (quoting 15 U.S.C. § 1052(a)). Though split between two plurality opinions, all Justices agreed that the “anti-disparagement” clause discriminated based on viewpoint because “[g]iving offense is a viewpoint.” Id. at 1763 (Alito, J., opinion). The Iancu Court struck down another Lanham Act restriction on “immoral or scandalous” marks, finding it “permit[ted] registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts.” 139 S. Ct. at 2299. It reasoned that the act impermissibly “distinguishe[d] between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation.” Id. at 2300. In short, these cases stand for the proposition that the government may not censor speech merely because it is “offensive to some.”

That this was an attempt to limit criticism of the Board and its members was made even more obvious by the testimony of the Board Director, who testified that "giving offense" was sufficient enough to move the Board to prevent the person from speaking further. Given this testimony and the undisputed video recording of Ison's comments and ejection from the meeting, the Appeals Court says the Board's participation policy -- at least in terms of its restrictions on certain forms of speech -- is unconstitutional.

The restrictions on “antagonistic,” “abusive” and “personally directed” speech prohibit speech because it opposes, or offends, the Board or members of the public, in violation of the First Amendment.

The court notes that this is not a blessing for ad hominem attacks in limited public forums. Attacking ideas and issues is one thing. Personally attacking individuals is quite another. The court says restrictions on this form of speech would likely still be permissible in many cases.

But tossing people from meetings or otherwise silencing them for being critical of government officials and their decisions definitely isn't permissible. And the Board will likely end up having to rewrite this to be a whole lot less infringe-y and whole lot more specific by the time the lower court is done handling the administrative duties of deciding on a proper remedy.

Filed Under: 1st amendment, 6th circuit, free speech, school board