The Wisconsin Supreme Court Gets Section 230 Right

from the careful,-clear,-cogent-analysis dept

We've written a few times about an unfortunate case out of Wisconsin. Someone used the Armslist platform to find a gun to buy and then killed people with it. This led to a lawsuit against Armslist seeking to hold it liable for this terrible crime, which then led to a ruling by the Wisconsin Court of Appeals that ignored two decades of Section 230 precedent to allow the lawsuit to go forward. Last year the Copia Institute filed an amicus brief urging the Wisconsin Supreme Court to review the Court of Appeals decision, and, after it granted that review, this year we filed another brief urging it to reverse the decision. This week it did.

The court of appeals held that 47 U.S.C. § 230 (2018), the federal Communications Decency Act of 1996, did not bar Daniel's claims against Armslist for facilitating Radcliffe's illegal purchase. We disagree, and conclude that § 230(c)(1) requires us to dismiss Daniel's complaint against Armslist. Section 230(c)(1) prohibits claims that treat Armslist, an interactive computer service provider, as the publisher or speaker of information posted by a third party on its website. Because all of Daniel's claims for relief require Armslist to be treated as the publisher or speaker of information posted by third parties on armslist.com, her claims are barred by § 230(c)(1). Accordingly, we reverse the decision of the court of appeals, and affirm the circuit court's dismissal of Daniel's complaint. [p. 2-3]

The decision was lengthy, and referenced a litany of cases interpreting Section 230, nearly all of which the Court of Appeals had earlier discounted. Like this one, Section 230 cases are often tough cases. Terrible things have happened, and there can be a tremendous, and completely reasonable, temptation by courts to find some way to provide a remedy. Even if it means trying to hold an Internet platform liable, and even if Section 230 should prevent them from doing so.

But as we pointed out in our briefs, there is always more at stake than just the case at hand. Whittling away at Section 230's important protection because one plaintiff may be worthy leaves all the other worthy online speech we value vulnerable. It is protected only when platforms are protected. When their protection is compromised, so is all the speech they carry. Which is why it is so important for courts to resist the emotion stirred by instant facts and clinically apply the law as it was written, so that instead of helping just one person it will help everyone.

Which is what the Wisconsin Supreme Court has now done. As we recently saw recently with the Herrick v. Grindr case, another case with grotesque facts but claims that fell easily within Section 230's intended purview, plaintiffs often try to "artfully plead" around Section 230 to make their complaint seem like something other than trying to hold a platform liable for what another has said online. And like the Second Circuit did there, here the Wisconsin Supreme Court also refused to allow Section 230 to be circumvented.

"[W]hat matters is not the name of the cause of action . . . what matters is whether the cause of action inherently requires the court to treat the defendant as the 'publisher or speaker' of content provided by another." Barnes, 570 F.3d at 1101-02. In other words, "courts must ask whether the duty that the plaintiff alleges the defendant violated derives from the defendant's status or conduct as a 'publisher or speaker.'" Id. at 1102. This rule prevents plaintiffs from using "artful pleading" to state their claims only in terms of the interactive computer service provider's own actions, when the underlying basis for liability is unlawful third-party content published by the defendant. Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir. 2007); see also Kimzey, 836 F.3d at 1266 ("[w]e decline to open the door to such artful skirting of the CDA's safe harbor provision."). [p. 24]

Ultimately this decision joins nearly all the other major Section 230 decisions over the years where courts have been able to remain focused on that bottom line and recognize that Section 230 prevents these lawsuits. In fact, as part of its decision the Wisconsin Supreme Court even called out a sister state supreme court that had not.

More importantly, [in J.S. v. Village Voice Media Holdings] the Washington Supreme Court ignored the text of the CDA, and the overwhelming majority of cases interpreting it, by inserting an intent exception into § 230(c)(1). The Washington Supreme Court opined that "[i]t is important to ascertain whether in fact Backpage designed its posting rules to induce sex trafficking . . . because 'a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.'" J.S., 359 P.3d at 718 (citing Roommates.com, 521 F.3d at 1168). Underlying this statement is the implicit assumption that a website operator's subjective knowledge or intent may transform what would otherwise be a neutral tool into a "material contribution" to the unlawfulness of third-party content. As explained in Section II. C., however, this assumption has no basis in the text of § 230(c)(1). The relevant inquiry, regardless of foreseeability or intent, is "whether the cause of action necessarily requires that the defendant be treated as the publisher or speaker of content provided by another." Backpage.com, LLC, 817 F.3d at 19 (citing Barnes, 570 F.3d at 1101-02). [p. 27-28]

Unlike the Supreme Court in Washington, the Supreme Court in Wisconsin could see how the bigger picture required it not to read extra requirements into Section 230 that Congress had not put there. And so it has now joined most other courts that have let Section 230 do its job ensuring online speech can remain protected.

Filed Under: cda 230, intermediary liability, section 230, wisconsin
Companies: armslist

Foxconn's Wisconsin 'Factory' Is An Even Bigger Joke Than Everybody Thought

from the words-are-but-wind dept

We've been covering for a while how Paul Ryan's once-heralded Foxconn factory deal in Wisconsin quickly devolved into farce. The state originally promised Taiwan-based Foxconn a $3 billion state subsidy if the company invested $10 billion in a Wisconsin LCD panel plant that created 13,000 jobs. But as the subsidy grew the promised factory began to shrink further and further, to the point where nobody at this point is certain that anything meaningful is going to get built at all.

Last October, reports emerged clearly illustrating the ever-shrinking nature of the deal. They also highlighted how Foxconn was effectively just using nonsense to justify its failure to follow through, showing that while the company hadn't built much of anything meaningful in the state, it was still routinely promising to deploy a "AI 8K+5G ecosystem" in the state to somehow make everything better. Shockingly, that mish-mash of buzz words is effectively meaningless.

Fast forward to this week, and reporters who've been visiting the state to determine the progress of the project continue to find its even lamer than everybody had initially worried. One local politician effectively compares the scandal directly to the Fyre Festival, and the piece is littered with disappointment by locals who say the company is being aggressively secretive and often misleading. Even many of the "innovation hubs", which Foxconn promised would somehow be better than the ever-shrinking factory it originally proposed, are little more than empty buildings at this juncture:

I walked to the second building in Foxconn’s technology hub, down a street lined with lampposts mounted with speakers playing smooth jazz. At first, the six-story former bank seemed to be farther along. A yellow debris chute snaked out from a top window, and there were hardhats visible in the foyer in front of heavy circular vault doors. But there was also a sign in the window that said the building was for lease. I called the number and asked whether Foxconn was renovating the building, as it announced it would last summer. No, the person on the other end told me. The building never sold.

In short there have been endless promises but little to nothing of substance accomplished, all covered in a cloak of secrecy -- which isn't going over particularly well in Wisconsin. But for its part, Foxconn itself just keeps doubling down on meaningless jargon in the apparent hope that it will satisfy those concerned that taxpayer money may have been wasted on a glorified head fake:

Foxconn is building an AI 8K+5G ecosystem in Wisconsin because the positive impact we envision far surpasses that which can be achieved by building a factory or manufacturing site alone. We are creating Wisconn Valley, which will comprise an ecosystem, or a thriving community, of partner organizations that are intimately linked and interact with each other to develop technological solutions.

Again though, that's a combination of terms that sounds nifty, but is utterly meaningless (the only thing lacking is a fleeting reference to the blockchain). While Foxconn has convinced a few folks an "AI 8K+5G ecosystem" is a real thing, the general consensus of the piece is that the company bought numerous buildings to use effectively as props to justify its massive handout, but then failed to do anything of substance with the lion's share of them. Something will come from the massive subsidies being thrown in Foxconn's general direction, but whether it's more than glorified set dressing remains an open question.

Filed Under: boondoggle, factory, paul ryan, scott walker, subsidy, wisconsin
Companies: foxconn

Wisconsin's Overhyped Foxconn Deal Keeps Getting Lamer By The Week

from the pray-I-don't-alter-the-deal-further dept

Last year, you probably recall that former Wisconsin Governor Scott Walker signed a "revolutionary" deal: the state promised Taiwan-based Foxconn a $3 billion state subsidy if the company invested $10 billion in a Wisconsin plant that would create 13,000 jobs. Walker hoped the deal would finally help cement job growth that he had been promising supporters for years, and the press was quick to hype the plan without really focusing too much on the math, or Foxconn's history of not really living up to similar promises in countries like Vietnam, India, and Brazil.

Quietly buried under the blistering hype (greatly fueled by the Trump administration), groups like Wisconsin’s non-partisan Legislative Fiscal Bureau began to point out that it would take until 2043 for taxpayers to recoup the subsidy. And as the finer details of the plan began to emerge late last year, the $3 billion subsidy quickly ballooned to $4.1 billion, leading some to point out that the math no longer made sense at all and, with an unemployment rate of 3.2% and a $100,000 per job subsidy, it was technically impossible for the massive subsidy to ever be repaid (in jobs, walnuts, or anything else).

Worse, as the project moved along and subsidies ballooned, the scale of the project began to shrink. An excellent report at The Verge last October noted how the original plan for a 20 million square foot factory that would build 10-foot by 11-foot panels for 75-inch TV screens, slowly shrunk to a Generation 6 plant that only produces 5-foot by 6-foot glass panels, and with original plans for $10 billion worth of investment (Foxconn's original promise) also shrinking to a $2.5 billion investment. Walkers response to the dubious deal was, it should be noted, that critics should "suck lemons":

"There’s a whole lot of people out there scrambling to try and come up with a reason not to like this,” he said in July of last year. “They can go suck lemons. The rest of us are going to cheer and figure out how we are going to get this thing going forward.” Several weeks later, he called the deal a “once-in-a-lifetime opportunity” that will be “transformational” for the state. “These LCD displays will be made in America for the very first time, right here in the state of Wisconsin."

About that. This week, a Reuters report revealed that the original plan for a massive factory bringing 13,000 jobs to the region had changed yet again. Now, Foxconn executives claim, there will be no factory or manufacturing jobs at all. While Wisconsin might get an engineering office, even that doesn't sound all that certain according to Foxconn executives:

"Now, those plans may be scaled back or even shelved, Louis Woo, special assistant to Foxconn Chief Executive Terry Gou, told Reuters. He said the company was still evaluating options for Wisconsin, but cited the steep cost of making advanced TV screens in the United States, where labor expenses are comparatively high.

“In terms of TV, we have no place in the U.S.,” he said in an interview. “We can’t compete."

Rather than a focus on LCD manufacturing, Foxconn wants to create a "technology hub" in Wisconsin that would largely consist of research facilities along with packaging and assembly operations, Woo said. It would also produce specialized tech products for industrial, healthcare, and professional applications, he added.

“In Wisconsin we’re not building a factory. You can’t use a factory to view our Wisconsin investment,” Woo said.

And instead of the 5,200 new jobs that were supposed to arrive before the end of 2020, the Reuters report is now saying those numbers will be closer to 1,000. Maybe? Who knows. Given its expertise in this subject, it's hard to believe Foxconn didn't realize all of this from the start, since the market hasn't magically shifted in just a year or two. Also keep in mind that while the project shrinks, taxpayer money has already been spent preparing for the factory's construction, including the demolition of some homes previously on the target site.

Given the incredible shrinking nature of this project it's also unclear (especially if you've listened to the excellent Reply All podcast on this subject) why anybody would believe anything being said now about this ever-devolving boondoggle.

Filed Under: factories, lcds, scott walker, subsidies, suckers, wisconsin
Companies: foxconn

In Which We Warn The Wisconsin Supreme Court Not To Destroy Section 230

from the not-just-fosta dept

One of the ideas that we keep trying to drive home is that the Internet works only because Section 230 has allowed it to work. Mess with Section 230, and you mess with the Internet. FOSTA messed with it statutorily, but it isn't just Congress that can undermine all the speech and services that depend on Section 230's protection for the platforms that enable them. Courts can mess with it too.

While it's bad enough when courts get questions of whether Section 230 applies wrong at the trial court level, the higher the court, the more potentially destructive the decision if the court decides to curtail its protection. On the other hand, the higher the court, the more durable Section 230's protective language becomes when the decision gets it right. This post is about one of those cases where the future utility of Section 230 hangs in the balance, and where we hope that the Wisconsin Supreme Court, the highest court in the state, gets it right and finds it applies to the platform being sued -- and therefore all other platforms that depend on its protection.

We've written before about this case, Daniel v. Armslist. As with a lot of the litigation challenging Section 230 it was one of those "bad facts make bad law" sorts of cases. In this case an estranged husband, against whom there was a restraining order, bought a gun from an unlicensed seller who had advertised through the Armslist site. Notably it does not appear that the sale was necessarily illegal – in Wisconsin unlicensed dealers apparently do not have to run background checks – nor was the sale fully transacted on the site (the actual purchase was made in a McDonalds parking lot). Of course, even if the sale had been illegal, or fully brokered via the site, Section 230 should still have insulated the platform, but here the Section 230 inquiry should be much more straight forward: the lawsuit alleging that Armslist negligently designed a site that facilitated a third party's speech – in this case, the speech offering the gun for sale – should have been barred by Section 230.

The trial court actually had gotten this question right and dismissed the case. Unfortunately a state appeals court in Wisconsin opted to ignore twenty-plus years of jurisprudence, as well as the statute's pre-emption provision, which would have directed such a finding, and reversed the trial court's original decision. Armslist then sought review by the Wisconsin Supreme Court, and we filed an amicus brief supporting their petition. One of the main points we made in the brief was how much stood to be affected if the decision was not overturned and Section 230's applicability in Wisconsin was now narrowed in ways Congress hadn't intended. After all, it isn't just Armslist in the crosshairs; it is all platforms everywhere, and all the speech and services they enable, in Wisconsin and beyond, that are threatened if platforms can no longer depend on Section 230's critical protection applying to them as it once had.

Fortunately the Wisconsin Supreme Court agreed to hear the case, and this week we filed yet another amicus brief in support of Armslist on the merits. It is similar to the previous brief, with the added example of how much the Copia Institute itself, and Techdirt in particular, depends on Section 230 remaining robust and effective. It relies on it as a user of other services -- for instance, to have its posts shared through social media -- and as a platform itself. There could not be a comments section on Techdirt -- or all the vibrant and insightful discussion found there -- without Section 230 protecting the site from liability for what commenters say.

It would be easy for the tragedy underpinning this case to cause the court to fixate on Armslist and the type of user content it intermediates. But Internet platforms come in all sorts of shapes and sizes, offering all sorts of services, and enabling all sorts of speech on all sorts of topics. And all of them will be affected by how the court resolves this particular case before it. So we hope our brief helps remind the Wisconsin justices of just how much is at stake.

Filed Under: cda 230, free speech, gun sales, intermediary liability, section 230, wisconsin
Companies: armslist

The Foxconn Wisconsin Deal Has Devolved Into A Pile Of Shifting Promises, Buzzwords, And Hype

from the prey-I-don't-alter-our-deal-further dept

Last year, you'll recall that Wisconsin Governor Scott Walker signed what at the time was treated as a revolutionary deal: the state promised Taiwan-based Foxconn a $3 billion state subsidy if the company invested $10 billion in a Wisconsin plant that created 13,000 jobs. Walker hoped that the deal would finally help cement job growth that he had promised his supporters for years, and the press was quick to hype the plan without really giving it too much thought. Quietly, Wisconsin’s non-partisan Legislative Fiscal Bureau was busy pointing out that it would take until 2043 for taxpayers to recoup the subsidy, though that obviously took second fiddle to the hype of bringing American jobs back from overseas to focus on cool new tech.

But as the details of the plan solidified by late last year, the $3 billion subsidy quickly ballooned to $4.1 billion, and some folks quietly began to notice that the math really didn't make much sense:

"Wisconsin currently has an unemployment rate of 3.2%, so they are only so many workers available locally. Realistically, the payback period for a $100,000 per job deal is not 20 years, not 42 years, but somewhere between hundreds of years and never. At $230,000 or $1 million per job, there is no hope of recapturing the state funds spent from taxes on the company and its workers."

Many now doubt whether the subsidy will ever pay for itself. This week, The Verge offered up a new piece dissecting the deal and it's well worth a read. It notes that while the scope of the subsidies Foxconn would receive slowly ballooned, the promised factory Foxconn was supposed to build kept shrinking in size and scope. Instead of building 10-foot by 11-foot panels for 75-inch TV screens, Foxconn would be building a Generation 6 plant that only produces 5-foot by 6-foot glass panels.

Instead of a 10.5 plant needing $10 billion in investment (Foxconn's original promise), the Gen 6 plant actually being built requires about a $2.5 billion investment. And still, the scope of the promised plant continued to shrink:

"But Foxconn officials also said that the company was still committed to a $10 billion investment and 13,000 jobs, adding it might eventually add a Gen 10.5 plant, but it would get there in “phases.” The phases were not spelled out.

Just seven weeks later, in late August, the company announced the plans had changed yet again — far more radically. Woo told the Racine Journal Times that Foxconn would never add a Gen 10.5 plant to its Racine campus, despite past statements, because by the time it was built, the market would be glutted by other manufacturers in China."

Of course none of this should really be surprising, especially given that Foxonn has made similar, magically-shrinking promises of similar ilk in countries like Vietnam, India, and Brazil. And this is all before you seriously consider the environmental impact of the arrangement, which many aren't. At this point, the fading promises have become almost comedic in nature (if you ignore taxpayers footing the bill for the kerfuffle). Vast plans to build a major panel manufacturer plant with thousands of new jobs have been replaced by hype, buzzwords, and nonsense:

"Even the Gen 6 panels might not be manufactured in Racine for long. “We are not really interested in television,” Woo told the newspaper, though he said the company wants to build America’s first thin-film transistor (TFT) fabrication, which can be used in LCD products. Rather, Woo said, workers at the Wisconsin plant will be focused on figuring out new ways to use Foxconn’s display, cellular, and AI technology, building out an “ecosystem” Woo calls “AI 8K+5G."

We've already noted that 5G is important but violently over-hyped, and this idea of an "AI 8K+5G ecosystem" is largely meaningless (they really should have thrown a blockchain reference in for good measure). A May 2018 poll of locals found that 66% doubted the deal would ever actually meaningfully benefit the local economy, and the plan isn't having anywhere near the impact on polling that Walker had hoped ahead of the midterms. At this rate, Wisconsin will be lucky to see a few thousand jobs in exchange for an investment most objective observers doubt will ever actually pay for itself.

Filed Under: crony capitalism, factories, jobs, scott brown, subsidies, wisconsin
Companies: foxconn

More Bad Facts Making More Bad Law, This Time In Wisconsin

from the thy-online-speaker's-keeper dept

A few weeks ago we, and others, filed an amicus brief in support of Airbnb and Homeaway at the Ninth Circuit. The basic point we made there is that Section 230 applies to all sorts of platforms hosting all sorts of user expression, including transactional content offering to rent or sell something, and local jurisdictions don't get to try to impose liability on them anyway just because they don't like the effects of those transactions. It's a point that is often forgotten in Section 230 litigation, and so last week the Copia Institute, joined by EFF, filed an amicus brief at the Wisconsin Supreme Court reminding them of the statute's broad application and why that breadth so important for the preservation of online free speech.

The problem is that in Daniels v. Armslist, the Wisconsin Court of Appeals had ignored twenty-plus years of prior precedent affirming this principle in deciding otherwise. We therefore filed this brief to support Armslist in urging the Wisconsin Supreme Court to review the Court of Appeals decision.

As in so many cases involving Section 230 the case in question followed an awful tragedy: someone barred from owning a gun bought one through the online marketplace run by Armslist and then shot his estranged partner. The partner's estate sued Armslist for negligence in having constructed a site where dangerous people could buy guns. As we acknowledged up front:

Tragic events like the one at the heart of this case often challenge the proper adjudication of litigation brought against Internet platforms. Justice would seem to call for a remedy, and if it appears that some twenty-year old federal statute is all that prevents a worthy plaintiff from obtaining one, it is tempting for courts to ignore it in order to find a way to give them that remedy.

Nonetheless, there was more at stake than just the plaintiff's interest. This case might look like a gun policy case, or a negligence case, but, like with Airbnb/Homeaway, this case was really a speech case, and laws like Section 230 that help protect speech are ignored at our peril because doing so imperils all the important expression they exist to protect.

The reason it was a speech case is that, as in the Airbnb/Homeaway case where someone was using the platform to say, "I have a home to rent," here someone had used the Armslist platform to say, "I have a gun to sell." Because these platforms only facilitate these narrow topics of expression it's easy to lose sight of what's getting expressed and instead focus on the consequences of the expression. But that's the problem with these cases: someone is trying to hold an Internet platform liable for the consequences of what someone said, and that's exactly what Section 230 forbids.

Tempting though it may be to try to find exceptions to that critical statutory protection, it is important to hold the line because Section 230 only works when it can always work. It wouldn't accomplish anything if platforms were only protected from certain forms of liability but still had to monitor all their users' content anyway. Congress recognized that such monitoring would be an impossible task and crippling to platforms' ability to remain available to facilitate users' speech. A major reason Section 230 exists is to protect speech from the corrosive effects these monitoring burdens would have on it. It is also why Section 230 does not let state and local jurisdictions impose their own monitoring burdens through the threat of liability, as the Wisconsin appeals court decision would do.

Thanks to local counsel Kathryn Keppel at Gimbel, Reilly, Guerin & Brown LLP for all her help getting this brief filed.

Filed Under: cda 230, free speech, guns, section 230, wisconsin
Companies: armslist

Police Chief Says He'll Decide Who Is Or Isn't A Real Journalist

from the anyone-disagreeing-will-be-put-on-the-'isn't'-list dept

Good news, citizens. The police are here to tell you who the real journalists are.

Sheboygan's Police Chief, Chris Domagalski, corrects errors in a story circulating on social media this week, accusing his department of withholding information from the community. The story involved the arrest of a Sheboygan man facing several felony drug charges, resisting arrest, and biting an officer at Erie and North 14th Street.

[...]

Domagalski, armed with facts, and the law, spoke out about the accusations, encouraging the community to be very careful about where they get their news - saying "Because you have a website and a facebook page, does not make you a journalist. When you engage in repeated unethical conduct, your character is revealed, and people should weigh that in their decision about whether they rely on you for news."

This is true… partly. A website and a Facebook page does not automatically make someone a journalist. But having only a website and a Facebook page does not disqualify someone from being a journalist. There are plenty of journalists out there who've never written anything on a printed page. There are plenty of people committing journalism without ever intending to, and a lot of that revolves around requesting public records.

The journalist, who Chief Domagalski says isn't one, wrote an article about this arrest, suggesting the refusal to turn over recordings of the arrest was a sign of more widespread misconduct within the force.

There's not enough information out there to state definitively which side of the story is more credible. It must be noted there's no love shown for the unnamed "non-journalist" in this article's comment thread, suggesting someone who has aimed for muckraker but settled for constant annoyance.

Unfortunately, the writer for WHBL Radio seems inclined to consider only those who show tons of deference to police officials to be real journalists. Those that question the actions and motives of government entities are nothing more than non-journalist interlopers.

Some of that sentiment can be picked up in the first sentence of the second quoted paragraph:

Domagalski, armed with facts, and the law…

That's some credible stenography right there. Then again, someone without even a Facebook page or a website could have transcribed Domagalski's statement without pausing to infer the chief was wholly in the right.

There's more, though.

The Sheboygan Police Department has a number of different ways to communicate factual, verified information to the public, including services like Nixle, which will push information out as text messages or email, AND a service powered by LexisNexis, which provides real-time mapping of police calls within the city.   

They also maintain a social media presence on facebook and twitter, and communicate regularly with credible journalists in Sheboygan, who can accurately communicate important information about the community with the public.

Apparently, people employed by WHBL will also be determining who is or isn't a "credible journalist." Defined in these surrounding terms, it will be those who publish whatever the PD provides, even if it appears to contradict what has been captured on video or gleaned from public records.

I prefer my journalists to show distance, rather than deference, when covering controversial incidents involving public servants. And I don't give a damn if the journalists I read have nothing more than a Wordpress blog and a Muckrock account. What I find less than credible is coverage of police press conferences that read like low-key fan fiction -- especially ones that idolize authority figures while trotting out self-congratulatory prose. The police chief is implying he prefers deference in his journalists, and WHBL is only too happy to comply.

Filed Under: chris domagalski, free speech, journalism, police, sheboygan, wisconsin

North Carolina Passes An Entirely Misguided Restore Campus Free Speech Act

from the speech-is-speech dept

You will recall that we were just discussing a proposed law in Wisconsin that sought to do a number of things on college campuses, including limit the ability to protest and shout down controversial speakers, as well as mandating quite insanely that school administrations must "remain neutral" on the "controversial" topics of the day. It's a source of frustration for me that it's not immediately clear how bad an idea this is for any number of reasons. My two chief complaints about the law, built upon a legislative proposal from the Goldwater Institute, are how broad a range of topics this could conceivably cover and how it quite plainly seeks to favor one form of speech over another. Put simply, giving state governments oversight about which topics a university administration is allowed to opine while also mandating punishments for students who protest to shout down speakers is about as anti-free speech as it gets, even as the proponents of the legislation attempt to shroud themselves in that most sacred of American ideals.

Well, North Carolina also had a similar bill under consideration, and indeed the state went ahead and passed its Restore Campus Free Speech Act. When you travel to that National Review link and/or read the pull quotes below, keep in mind that these are the words of a supporter of the bill and someone, Stanley Kurtz, who worked on the original Goldwater proposal.

The North Carolina Restore Campus Free Speech Act achieves most of what the Goldwater proposal sets out to do. It ensures that University of North Carolina policy will strongly affirm the importance of free expression. It prevents administrators from disinviting speakers whom members of the campus community wish to hear from. It establishes a system of disciplinary sanctions for students and anyone else who interferes with the free-speech rights of others, and ensures that students will be informed of those sanctions at freshman orientation. It reaffirms the principle that universities, at the official institutional level, ought to remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself. And it authorizes a special committee created by the Board of Regents to issue a yearly report to the public, the regents, the governor, and the legislature on the administrative handling of free-speech issues.

It all sounds so reasonable until you actually think about the implications of the law. Let's address them in order.

To start, requiring a university to affirm the importance of free expression is the kind of pablum born from trying to establish that there is a problem where one doesn't actually exist. Does anyone imagine that polling the nation's universities on this question would result in some schools saying, "Meh, free expression isn't that big a deal"? Come on.

As for disinviting speakers that "members of the campus wish to hear from", let's talk about that. First, how many members of campus are we talking about? And how are we to gauge their interest? If some tiny college group wants to invite a controversial speaker to campus to speak, where 90% of the campus doesn't want them anywhere near the campus, the administration is simply supposed to keep its hands tied? Or are the numbers something different? All of this is unclear in the law, even as it happily neuters a school's ability to manage its own campus. Why is a state legislature a better arbiter of who belongs on campus than the school itself?

Then there are the disciplinary sanctions on students that "interfere with the free-speech rights of others". This is the really silly part, because it seeks to scholastically criminalize speech in order to protect speech. The proponents of this law will want to say that this refers to students rioting, or accosting would-be invited speakers, but there are already laws on the books to prosecute those crimes. Instead, this law seeks to punish students that attempt to shut down speaking engagements via peaceful protest, which is a form of speech. The law originally required mandatory suspension from school for students who are found to have violated the law twice. The universities beat that back and had it struck, but the proponents of the bill aren't even pretending that they aren't trying to stop anything other than the speech of students, while also detailing how its newly-created committee reports will be used to simply toss out adminstrators lovers of the law don't like.

Without the mandatory suspension for a second offense, the university could conceivably undermine the law through lax enforcement. Yet it’s not as simple as that. If the university refuses to discipline shout-downs in the wake of passage of this law, there will be consequences. For one thing, the annual report of the Board of Governors will either condemn the refusal to discipline, or the committee will itself be subject to public criticism. A negative report on the administrative handling of discipline would give the Board of Regents a reason to replace administrators, and legislators a reason to cut university funds.

Punishing "shout-downs"? That's a pretty bald-faced acknowledgement that this bill will curb the free speech of students in favor of the free speech of invited speakers. In other words, this bill cuts in only one direction: students that are paying to attend school now have less speech rights than guests invited onto the campus. If that doesn't immediately demonstrate how flatly gross this bill is, you need to recalibrate your sensors.

Look, I said this in the last post, but I'll say it again: anyone that wants to say that campuses today are not as open to outside or unpopular viewpoints as they once were or should be won't get anything other than agreement for me. I tend to think the problem is overstated in certain circles, but I do agree that campuses today are generally less open-minded than they should be. But the solution to that is to win the argument via speech, not to run crying to state legislatures to simply curb the speech of others.

Filed Under: campus, free speech, goldwater proposal, north carolina, wisconsin

Court Blocks Wisconsin Augmented Reality Permit Law From Being Enforced

from the augmented-legality dept

You will recall that earlier this year we discussed a lawsuit brought by the makers of a mobile augmented reality game entitled Texas Rope 'Em against the city of Milwaukee over an ordinance it had put in place requiring game developers to obtain a permit to function within the city. Aside from the $1,000 permit fee the ordinance put in place, the requirements to obtain the permit were both odious and laughably non-applicable to the makers of mobile games such as Texas Rope 'Em. Examples of these requirements include plans for garbage collection left by players, plans for on-site security to protect players, and estimates of "crowd sizes." For makers of augmented reality apps, none of these requirements make any sense. When the developer of the game, Candy Lab, cried foul over First Amendment concerns, Milwaukee County replied that the game maker is not entitled to First Amendment rights, arguing that the game wasn't expressive enough to warrant them.

Well, in the opening round of the legal action, Candy Lab is a heavy winner. The court has enjoined the city from enforcing the law until the outcome of the trial, while also including language in the order that makes it fairly clear where the court is going to rule on the First Amendment question.

Plaintiff has a reasonable likelihood of success on the merits of its claims under 28 U.S.C. § 1983 for violation of the First Amendment. Plaintiff will suffer irreparable harm if Defendants are permitted to enforce Section 47.03(3) of the Milwaukee County Code of General Ordinances, adopted in Resolution 16-637.

Now, the trial has been set for next Spring, but fortunately that timeline won't keep Candy Lab from doing its business in Milwaukee with the injunction now in place. Frankly, I'd be somewhat surprised if that trial ever occurs, given the courts clear indication that it sees the law as a First Amendment violation, or at least that Candy Lab is likely to win on the merits of that assertion.

Still, it's troubling that Milwaukee would have tried to put this lab into place to begin with. Frankly, where permitting schemes are often times revenue generators for municipalities, the requirements for the permit in this case seem almost perfectly designed to simply keep augmented reality apps out of the city entirely. Why? It's not like other cities in America, both larger and smaller than Milwaukee, have suffered significant headaches or damage as a result of the now panoply of AR games on the market.

And the claim that an AR game isn't speech-y enough to warrant free speech rights? That's just silly.

Filed Under: augmented reality, permits, pokemon go, property rights, texas rope 'em, wisconsin
Companies: candy lab

Wisconsin Speech Bill Tries To Keep Universities Neutral On Public Policy Debates, Which Is Batshit Crazypants

from the that's-not-how-free-speech-works dept

As you are likely already aware, there is something of a debate about debates that occur on college campuses these days. Amidst a climate of ultra-polarized politics, there have been several high profile incidents on college campuses involving a revolt by student bodies -- and, allegedly, outside troublemakers -- over specific speakers invited onto campus and topics opened for debate. In reaction to these revolts that generally end with colleges uninviting speakers, some states have decided to try to legislate against this sort of thing in the name of free speech. It's one of those unhappy circumstances in which everyone on every side appears to be wrong. Student revolts and petitions to uninvite speakers are themselves a form of speech and worthy of protection, even if that sort of thing is antithetical to the university experience and ultimately works counter to the aims of the students doing the revolting. Meanwhile, the uninvited and their supporters are shouting about censorship in a way that suggests their views must be tolerated without reaction, which is a complete misunderstanding of how free speech works. As for the politicians, the haphazard decision to legislate on matters of speech in this matter betrays a lack of understanding of how sacred our free expression laws are in America and the care with which any lawmakers ought to take on the topic.

For an example of that, we need only look to Wisconsin, where a bill is being considered in reaction to all of this that would essentially force universities to take no position on any current topic that can be seen as controversial. School administrators are rightly concerned about the laughably vague language in the bill.

The trouble comes from this section of the bill: “That each institution shall strive to remain neutral, as an institution, on the public policy controversies of the day, and may not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.”

While the bills’ scope is focused on public events involving invited speakers, there are a couple key questions here. University officials want to know how far this requirement “to remain neutral” extends. For example, the University of Wisconsin-Madison has spoken out against proposed bans on stem cell research on campus. Would the university run afoul of this law if it did so again?

It's a good and fair question, because once this legislative ball gets rolling, gravity is likely to tug it further down the path than supporters of the bill had originally intended. And it's worth reminding everyone considering supporting this bill that its words can cut both ways. Just because today we're talking about a topic a person on one end of the political spectrum cares about doesn't mean the other end can't use this law to force their views on campus in the same way. Whatever your political leanings, it's worth being concerned when government attempts to stifle the viewpoint of a school and its students.

And, of course, nobody is clear that this is limited even to speakers and public positions on campus, thanks to the overly broad language in the bill. When questioned, Jesse Kremer, who sponsored the bill, suggested that the legislation could also reach its spindly fingers into the classroom...

And although the bill is not focused on classrooms, Kremer suggested that such a student could potentially bring a complaint to a “Council on Free Expression” the bill would create—a body composed of leaders from each state school and two politicians.

...before going completely off the rails.

When one Democrat at a hearing asked Republican Representative and bill sponsor Jesse Kremer whether a geology professor would be allowed to tell a student who believed the Earth to be 6,000 years old that they are wrong, Kremer bristled. “The Earth is 6,000 years old. That’s a fact,” he said.

And here you see the problem. What one person claims to be fact is, in fact, plainly absurd. And a law that protects students or invited speakers from being told that it's absurd, either by the student body or the university, is a laughable law fit for the waste bin. If students and speakers are such innocent snowflakes that they cannot handle having their views ridiculed, then the university is no place for them. This too should cut both ways, of course, except that the students shouting down controversial speakers is itself a form of speech, whereas legislation neutering that same speech is censorious in the worst way.

Do students need to be more open minded on campuses today? Sure, I think that's fair. Should lawmakers with the barest grip on their own reality be legislatively forcing speakers onto campus as a consequence? Obviously not.

Filed Under: fair and balanced, first amendment, free speech, neutral, wisconsin