Another (partial) win for the First Amendment, the ACLU, and American citizens. The Ninth Circuit Court of Appeals has overturned a decision forbidding the photography of CBP officers at border crossings. (h/t Mitra Ebadolahi)
The CBP seems to have a problem respecting the First Amendment rights (along with several other rights) of American citizens when engaged in its border patrolling and protecting. This same appeals court recently allowed the heavily-harassed citizens of an Arizona border town to move forward with their First Amendment lawsuit against the agency, ruling that the CBP acted arbitrarily when dealing with protesters and activists documenting checkpoint activity. The record clearly showed the CBP removed people it didn't like from its imaginary zone of exclusion while allowing other random citizens more aligned with the CBP's open harassment of American citizens to venture inside the ad hoc DMZ to harass citizens documenting harassment.
This lawsuit centers on allegations CBP officers confiscated cameras and phones of people documenting border checkpoint activity and destroyed photos and videos. Here are the narratives of the two plaintiffs, taken from the Appeals Court decision [PDF]:
On the afternoon of April 19, [Ray] Askins stood at the intersection of First Street and Paulin Avenue on the U.S. side of the border, near the shoulder of the streets and immediately in front of the park. He was approximately 50–100 feet from the exit of the secondary inspection area, and he had not crossed the border or otherwise passed through border security to reach his location. Standing in the street, Askins took three or four photographs of the exit of the secondary inspection area. Multiple CBP officers approached Askins on the street to demand he delete the photographs he had taken. When Askins refused, the officers threatened to smash his camera, then searched and handcuffed him, confiscated his property, and detained him inside a secondary inspection area building. Askins was released after approximately twenty-five to thirty-five minutes and his property was returned, at which time he discovered that CBP had deleted all but one of his photographs of the exit of the secondary inspection area.
[...]
[Christian] Ramirez observed male CBP officers at a security checkpoint below inspecting and patting down only female travelers. Concerned that the officers might be acting inappropriately, Ramirez observed the checkpoint from the bridge for ten to fifteen minutes and took approximately ten photographs with his cellphone camera. Ramirez and his wife were approached by men who appeared to be private security officers. The men ordered them to stop taking photographs. The officers also demanded their identification documents, which Ramirez refused to provide as they had already passed through border inspection. The officers radioed for backup as Ramirez and his wife walked away, and at the bottom of the bridge, Ramirez was met by five to seven CBP officers. The CBP officers questioned Ramirez, and, without Ramirez’s consent, a CBP officer confiscated Ramirez’s cellphone and deleted all of the photographs Ramirez had taken from the bridge. A U.S. Immigration and Customs Enforcement officer confiscated the Ramirezes’ passports and walked away, leaving Ramirez surrounded by the CBP officers. After ten to fifteen minutes, their documents were returned to them and the Ramirezes were allowed to leave.
Both plaintiffs allege the CBP's practices violate the First Amendment. They are not seeking to photograph the inside of buildings or other sensitive areas not visible to the public eye, but rather border checkpoints where inspections and questioning are performed in public, completely visible to passersby. The CBP somehow believes what happens in public can't be documented by the public.
The district court decided to take the CBP up on its irrational argument, tossing aside logic to embrace the agency's claims about the super-secret nature of national security activities performed out in the open, visible to the unadorned eye. The appeals court says this isn't the way things are done. The lower court should not have lifted the government's burden of proof onto its own shoulders and carried it home for it.
The district court found that the CBP policies survived strict scrutiny because of “the extremely compelling interest of border security” and the government’s general interest in “protecting United States territorial sovereignty.” To this, the government adds that the CBP policies serve compelling government interests in protecting CBP’s law enforcement techniques and the integrity of on-going investigations; protecting the privacy of travelers, suspects, and sensitive digital information; ensuring the safe and efficient operation of the ports of entry; and protecting against terrorist attacks. In conclusory fashion, the district court held that the policies were the least restrictive means of serving these interests.
These conclusions are too thin to justify judgment for the government on a motion to dismiss. [...] It is the government’s burden to prove that these specific restrictions are the least restrictive means available to further its compelling interest. They cannot do so through general assertions of national security, particularly where plaintiffs have alleged that CBP is restricting First Amendment activities in traditional public fora such as streets and sidewalks.
The decision does not hand the plaintiffs a complete victory. It does shift the burden of proof back on the government and instructs the lower court to allow the case to proceed to see if the government can actually offer up anything supporting its random time/place restrictions that border on total violation of established First Amendment principles. The appeals court seems inclined to believe the CBP cannot simply forbid photography of publicly-viewable enforcement activities by members of the public. We'll have to see what the lower court does on remand, considering it already granted the government a free pass once, because National Security > Established Constitutional Rights, apparently.
Here's one that might create a bit of a stir. The history of the 20th century and maximalist, ever expanding copyright is often associated with one particular company: Disney. I mean, the 1998 Copyright Term Extension Act (CTEA) is regularly called the "Mickey Mouse Protection Act" and Tom Bell once created this lovely Mickey Mouse Curve showing how copyright terms always seemed to expand just before the original movie starring Mickey, Steamboat Willie was about to enter the public domain:
This pattern might finally (miraculously) end this year -- but not because Disney has become enlightened. Rather, it's mainly because Disney's lobbying influence is not what it once was, and SOPA seemed to make both Congress and the legacy entertainment industry realize that they would almost certainly lose another such fight on an issue like this (not that there weren't attempts to slip provisions into trade agreements that had the potential to expand copyright terms).
However, it does seem notable -- as first spotted by Eriq Gardner at The Hollywood Reporter -- that Disney has now been put in the possibly awkward position of complaining about "overzealous copyright holders," and talking about the importance of user rights and fair use to protect free speech and the First Amendment. No, really.
Disney, of course, owns ABC. Back in May (though the complaint appears to incorrectly state March), ABC aired a two-hour program entitled The Last Days of Michael Jackson. The Michael Jackson Estate was not pleased and sued for copyright infringement. The complaint itself is quite a read. It completely mocks the program in question:
Although titled The Last Days of Michael Jackson, the program did not
focus on Michael Jackson’s last days. Rather, it was simply a mediocre look back at
Michael Jackson’s life and entertainment career. A Rolling Stone review described
the program as “offer[ing] little in the way of new revelations or reporting and at
times seems heavy on armchair psychoanalysis and unsupported conjecture.” The
magazine was being too generous. The program contained nothing “in the way of
new revelations or reporting.”
It also digs deep on Disney's well-known history for maximalism:
Disney’s media business depends on its intellectual property and, more
specifically, the copyrights it holds in its well-known characters, motion pictures,
music, and the like. Disney has never been shy about protecting its intellectual
property. Indeed, its zeal to protect its own intellectual property from infringements,
real or imagined, often knows no bounds.
a. Disney has threatened to sue independent childcare centers for
having pictures of Mickey Mouse and Donald Duck on their walls, forcing
them to remove all pictures of Mickey or Donald—and other
anthropomorphized mice or ducks—rather than face ruinous litigation from
one of the world’s largest corporations.
b. Disney once sued a couple on public assistance for $1 million
when they appeared at children’s parties dressed as an orange tiger and a blue
donkey. Apparently, these costumes cut too close to Tigger and Eeyore for
Disney’s tastes.
c. Disney takes a very narrow view of copyright law’s “fair use”
doctrine. For example, just a few years ago, it sent DMCA takedown notices
to Twitter, Facebook, and other websites and webhosts, when consumers
posted pictures of new Star Wars toys that the consumers had legally
purchased. Apparently, Disney claimed that simple amateur photographs of
Star Wars characters in toy form infringed Disney’s copyrights in the
characters and were not a fair use.
It's hard to deny any of the above. And thus, the complaint, with a healthy dose of snark, notes Disney's fairly blatant hypocrisy:
Like Disney, the lifeblood of the Estate’s business is its intellectual
property. Yet for some reason, Disney decided it could just use the Estate’s most
valuable intellectual property for free. Apparently, Disney’s passion for the
copyright laws disappears when it doesn’t involve its own intellectual property and
it sees an opportunity to profit off of someone else’s intellectual property without
permission or payment.
It claims "at least thirty different copyright works" were used without permission. These included clips from songs and music videos, concert footage and the Jackson Estate's own documentary footage. So now Disney has answered and finds itself, quite incredibly, arguing against overzealous copyright holders and about the importance of protecting the First Amendment from being harmed by excessive copyright claims. Literally.
This case is about the right of free speech under the First Amendment, the
doctrine of fair use under the Copyright Act, and the ability of news organizations
to use limited excerpts of copyrighted works—here, in most instances well less than
1% of the works—for the purpose of reporting on, commenting on, teaching about,
and criticizing well-known public figures of interest in biographical documentaries
without fear of liability from overzealous copyright holders.
I agree with everything in that paragraph. I'm just shocked that it's Disney stating this. Disney is not the most credible defender of the First Amendment and fair use. Nor is it the most credible defendant to be yelling about overzealous copyright holders. Throughout the answer to the complaint Disney insists that its uses of the Michael Jackson works "were included in the Documentary on a transformative and fair use basis."
Without having seen the documentary, it's impossible to say whether or not the uses truly qualify as fair use, though the argument that they are sounds reasonable. But the idea that Disney is the one fighting for fair use and against overzealous copyright holders remains stunning and bizarre. I'd like to believe this is Disney coming to its senses and making amends for the century of harm its done thanks to copyright, but it seems much more likely that this is just an opportunistic defense of fair use, and the company remains firmly in the camp of supporting ever expanding copyrights.
I wonder how Disney would feel if someone showed up to future hearings in the case wearing an unauthorized Mickey Mouse costume?
Eugene Volokh has tracked down another questionable defamation court order targeting Google with a delisting demand. The plaintiff doesn't appear to be abusing the legal process -- he may not understand the request the judge granted is unconstitutional -- but the whole thing seems more than a little weird.
The court papers make clear that the order is targeted largely at a Chicago Tribune blog post by columnist Eric Zorn about a police assault on [Greg] Malandrucco and his friend Matthew Clark; the column contains photos of the two men with injuries to their faces. (The order was issued July 6, but I found it, with the help of the invaluable Lumen Database, only a few days ago, and just got the court documents; the order has apparently not been written about anywhere else.) Google has apparently not complied, and Malandrucco has asked Judge Jablonski to hold Google in contempt of court; the hearing on that will be held Aug. 17. Indeed, the request for the contempt sanctions, filed July 25, seems to have been accelerated by a remark by the judge at a hearing on July 24: "The concern that the court has is that there is not compliance with the [July 6] order."
So, this doesn't necessarily seem like the normal courtroom runaround where someone's trying to slide an unconstitutional order past a judge. The targeted content isn't the normal "disparaging" content people tend to want vanished, but rather an article about an altercation with cops in which the cops come out looking the worst.
But Greg Malandrucco wants it gone… or at least delisted. This follows a string of DMCA takedown notices issued by Malandrucco claiming the selfie he took is his intellectual property and can't be used without permission. (Matthew Clark appears to make the same claim in the single DMCA notice he sent out.) Malandrucco appears to have applied pressure elsewhere, resulting in this weird bit of redaction in the Chicago Maroon's coverage which removes Malandrucco's name from the post. (Matthew Clark's name remains.)
Google, understandably, has not delisted this blog post. First off, the use of the photo is clearly fair use and is used in an article discussing a topic (alleged police brutality) of significant public interest. Malandrucco may have a personal interest in seeing this post delisted (he claims it has harmed his reputation and affected his income), but that doesn't mean his personal interests override the rights of others. (As is noted by Volokh, any attempt to drag copyright into this is doomed to fail since this isn't a federal court case.)
But even under the specifics of the state laws invoked, the order is doomed to fail.
To start with the substantive law, there was no evidence that the material is defamatory -- the picture is apparently accurate. It is not actionable under the "disclosure of private facts" tort, since that tort does not apply to newsworthy material, and the picture of a victim of police brutality that illustrates a post about the brutality is newsworthy.
Malandrucco's complaints in the cases argue that the picture is causing emotional distress, but speech on matters of public concern (which would certainly include pictures of police brutality) cannot lead to liability for intentional infliction of emotional distress (see Snyder v. Phelps).
As for the damages claimed by Malandrucco, they're still unproven. And from what's been seen of the case so far, there's no reason to believe Malandrucco's case is so close to winnable that an injunction is warranted because of the odds of "substantially prevailing" are high. The injunction was issued without any input from Google or the Chicago Tribune -- both of which received nearly identical orders (but with a key error in the Tribune order, which fails to actually order the Tribune to remove that URL).
What makes this all that much weirder is Malandrucco sued the Chicago PD for police brutality and won. He openly discussed this case on newscasts and multiple websites. For a few years, he was an activist engaged in fighting excessive police force. Now, he simply wants it all to go away. The problem is he can't just erase his past because he's no longer engaged in the same activities. What happened to him was newsworthy and he was instrumental in ensuring he and his lawsuit victory stayed visible. Volokh's post contains links to several sites where he appeared, noting with dismay they've all decided to voluntarily strip his name from these posts at his request.
So, it may be Malandrucco doesn't know the law or realize the Constitutional implications of his request. Or maybe he knows and just doesn't care. But the judge sure as hell should know and it appears he's more than willing to tapdance all over the First Amendment to assist in Malandrucco's vanishing act.
Let's be clear: I know that many people -- perhaps entirely reasonably -- really, really dislike Julian Assange and Wikileaks. For some people that feeling has been there for years. For others it's related directly to the role that Wikileaks played in helping to release hacked emails designed to impact the 2016 election. There certainly appears to be plenty of evidence that, at the very least, Wikileaks was in contact with Russian operatives and made plans to try to get and release documents at times that would have the maximum impact on the election. As I've said over the years, I don't have much respect for Assange who, among other things, often appears to be a total hypocrite. However, I have also made clear that prosecuting him and Wikileaks for doing nothing more than publishing leaked documents would set a horrible precedent. I feel similarly about the DNC's silly lawsuit as well.
The DOJ has apparently has been trying to indict Assange for more than 8 years now with nothing to show for it yet. In large part, this is because what Wikileaks has done is really no different than what any news publication does when publishing leaked documents. There may be laws against leaking certain documents to the press, but the First Amendment completely bars lawsuits against the recipients of leaks then publishing them.
This is in the news again as reports are brewing that Ecuador is expected to withdraw asylum for Assange, possibly handing him over to British officials, who may in turn hand him over to the US. When I discussed this on Twitter recently, a bunch of people responded angrily that Assange deserves to be in jail because of his role in the 2016 election. But when pressed to explain how what he did was any different than the NY Times or CNN in publishing leaked documents, people go quiet -- or the say something silly like "but those other news orgs are based in fact." But, that's a silly argument. First of all, nothing that Wikileaks has published has been shown to be false or faked (the DNC made some claims to that effect but no one ever presented any evidence or pointed to any faked documents). Second, given the propensity of some -- including the President of the United States -- to argue that the NY Times, CNN, the Washington Post and others are "fake news," do we really want to be setting the precedent that if you publish something false you can get prosecuted for it?
The case raises a number of important press freedom questions: Where should courts draw the line between source-building and "conspiring"? What activities could implicate a journalist in a source's illegal behavior? Would putting a SecureDrop link soliciting leaks count as illegal conspiracy? And if a reporter asked for documents on an individual while indicating that they think the person deserves to be exposed, would that count as shared motive, or is the only truly protected activity passively receiving leaks, like radio host Vopper?
"There is a spectrum that run on one side from someone dropping a plain manila envelope, to the other extreme where you actually steal the documents yourself," said David McCraw, deputy general counsel for The New York Times. "The line in the middle is still being determined by the courts."
David Bralow, an attorney with The Intercept, added, "It's hard to see many of WikiLeaks' activities as being different than other news organizations' actions when it receives important information, talks to sources and decides what to publish. The First Amendment protects all speakers, not simply a special class of speaker."
Some will argue that Assange should be prosecuted for conspiring with the Russians, but again let's see what actual evidence there is to support such a claim. And, as we see above, what counts as "conspiring" is pretty important here. Tons of news sites now use SecureDrop or similar means to recruit sources and documents. Is that "conspiring"? Because if it is, that's a huge blow to press freedom.
Even if you hate Assange and Wikileaks, please take a moment to consider how a prosecution of him for publishing documents, even if they were taken by nefarious means by a hostile foreign government, would set an absolutely terrible precedent for press freedom in America.
So, yesterday the House Judiciary Committee did what the House Judiciary Committee seems to do best: hold a stupid, nonsensical, nearly fact-free "hearing" that serves as nothing more than an opportunity for elected members of Congress to demonstrate their ignorance of an important topic, while attempting to play to their base. This time, the topic was on the content filtering practices of Facebook, Twitter and Google. Back in May there was actually a whole one day conference in Washington DC on this topic. The Judiciary Committee would have been a lot better served attending that than holding this hearing. I'd recommend not wasting three hours of your life watching this thing, but if you must:
The shortest summary would be that some Republican members of Congress think that these websites censor too much conservative speech, and some Democratic members of Congress think that they don't censor enough other speech (including hoaxes and conspiracy theories)... and almost no one wants to admit that this is not even remotely an issue that Congress should be concerned about. There's a narrative that has been picked up by many that insist that social media platforms are unfairly censoring "conservatives." There is basically zero evidence to support this. Indeed, a thorough analysis of the data back in March by Nieman Labs and Newswhip found that conservative-leaning sites get much, much, much more engagement on Facebook than liberal-leaning sites.
But, never let facts get in the way of a narrative. Since that seems to be the way many hyperpartisan sites (at either end of the spectrum) deal with these things, Congress is helping out. The only bit of sanity, perhaps bizarrely, came from Rep. Ted Lieu, who reminded everyone of the importance of free markets, free speech and the fact that private platforms get to decide how they manage their own services. Considering that Republicans often like to claim the mantle of being the "small, limited government" party who wants the government's hands out of business regulation, the fact that most of the hearing involved Republicans screaming for regulating internet platforms and a Democrat reminding everyone about the importance of a free market, capitalism and free speech, it really was quite a hearing. Lieu's remarks were some of the rare moments of sanity during the hearing -- including defending Facebook leaving Alex Jones' conspiracy theories on its site. Let's start with that high point before we dive into the awfulness. His comments come at about 2 hours and 10 minutes into the video:
... we're having this ridiculous hearing on the content of speech of private sector companies. It's stupid because there's this thing called the First Amendment. We can't regulate content! The only thing worse than an Alex Jones video is the government trying to tell Google... to prevent people from watching the Alex Jones video. We can't even do it if we tried. We can't even do any legislation out of this committee. And we're having this ridiculous second installment hearing after the first hearing about Diamond and Silk not getting enough likes on Facebook.
He then went on to ask questions "so the American public understands what a dumb hearing this is." And those questions -- again -- seemed like the kinds more expected from supposedly "free market" conservatives. Specifically he asked the companies if they were private companies aiming to maximize profits for shareholders. And he wasn't doing that to show that companies were evil, he was doing that to show that that's how the free market works. He followed up with this:
I noticed all of you talked about your own internal rules. Because that's what this should be about. You all get to come up with your own rules. But not because government tells you what to do. Or because government says you have to rule this way or that way. And the whole notion that somehow we should be interfering with these platforms from a legislative, governmental point of view is an anathema to the First Amendment. And really it's about the marketplace of ideas.
Kudos to Rep. Lieu. This is the kind of speech that you'd normally expect to hear from a "small government" conservative who talks about respecting the Constitution. But, in this case, it's a Democrat. And it's shameful that others (on both sides of the aisle) weren't making the same point. Instead, there was a ton of pure nonsense spewed from the Republicans at the hearing. It's hard to fathom that the following statements were made by people we've actually elected to our legislative body. There were so many dumb statements made that it's difficult to pick out just a few.
Let's start with Rep. Steve King, who has made quite a name for himself saying and repeating bigoted nonsense. Starting at about an hour and five minutes in the video, King seemed particularly concerned about traffic to Gateway Pundit, a site famous for trafficking in utter nonsense.
It's a matter of Congressional record that Gateway Pundit, Mr. Jim Hoft, has introduced information into the record that in the span of time between 2016 and 2018, he saw his Facebook traffic cut by 54%. Could you render an explanation to that?
Um... what? How the hell is it of any concern to Congress whatsoever the traffic a single site gets? And, as we were just discussing recently, traffic to lots of news sites from Facebook has dropped massively as Facebook has de-prioritized news. In that post, we pointed out that Slate was self-reporting a drop in Facebook traffic over that same period of time of 87%. Based on that, why isn't King asking about Slate's traffic dropping? Perhaps because Gateway Pundit publishes the kind of nonsense King supports and Slate points out that King is a bigot?
And... isn't that, again, kind of the point of the First Amendment? To protect news sites from having Congress play favorites?
Incredibly, King then concludes his time by first claiming he's all for free speech and free enterprise, but wonders about turning social media sites into regulated utilities.
I'm all for freedom of speech and free enterprise and for competition and finding a way that we can have competition itself that does its own regulation, so government doesn't have to, but if this gets further out of hand, it appears to me that Section 230 needs to be reviewed, and one of the discussions that I'm hearing is 'what about converting the large behemoth organizations that we're talking about here into public utilities.'
Are we living in an upside down world? A Democrat is praising the free market, profits and free speech, and a Republican is advocating for limiting free speech and in favor of turning some of the most successful US companies into public utilities? What is even going on here?
Around an hour and 18 minutes, we get our old friend Rep. Louis Gohmert, who has a fairly long and extensive history of making the dumbest statements possible concerning technology issues. And he lived down to his usual reputation in this hearing as well. It starts off by him trying to play down the issue of Russian interference in elections, by claiming (?!?) that the Russians helped Truman get elected, and then claiming that Russians had helped basically every Democratic President get elected in the past 70 years. And then spent a long time trying to complain that the platforms wouldn't tell him if Chinese or North Korean intelligence services had also used their platforms. Remember, these companies were asked to come and testify specifically about Russian use of their platforms to interfere with the election and Gohmert stepped in with this insane "what about other countries, huh?" argument:
Gohmert: I need to ask each of you. You've been asked specifically about Russian use of your platforms. But did you ever find any indication of use of your platform, utilized by the Chinese, North Korea, or any other foreign country intelligence or agency of that country. First, Ms. Bickert?
Bickert/Facebook: I would note, Congressman, that we're not in North Korea or China. In terms of whether we've seen attacks on our services, we do have -- we are, of course, a big target -- we do have a robust security team that works...
Gohmert: Well, but that's not my question. It's just a very direct question. Have you found... You don't have to be in North Korea to be North Korean Intelligence and use... We have foreign government intelligence agencies IN THIS COUNTRY. So have... It seems to me you were each a little bit vague about "oh yes, we found hundreds" or whatever. I'm asking specifically, were any of those other countries besides Russia that were using your platform inappropriately? It should be a yes or no.
Actually, no, it shouldn't be a yes or no. That's a dumb and misleading question for a whole long list of reasons. Of course, lots of other intelligence agencies are using Facebook, because of course they are. But, the entire point of this line of questioning seems to be Gohmert trying to play down Russian use of the platform, which is... odd. Especially after he started out by praising the fact that maybe the Russians might help "our side" get elected going forward.
Bickert: I don't have the details. I know we work to detect and repel attacks...
Gohmert: I know that. But were any of them foreign entities other than Russia?
Bickert: I can certainly follow up with you on that.
Gohmert: SO YOU DON'T KNOW?!? You sure seemed anxious to answer the Democrats questions about RUSSIA's influence. And you don't really know of all the groups that inappropriately used your platform? You don't know which were Russians and which were other foreign entities?
No, that's not what she's saying at all. She's pretty clearly saying that this hearing was specifically about Russian influence and that's what she was prepared to testify on. She didn't say that Facebook can't tell Russians from other entities, just that the other entities aren't the ones accused of messing with the election and thus there isn't that much relevant right now. But that's quite a deflection attempt by Gohmert.
Let's move on to Rep. Tom Marino at about an hour and a half into the video. Marino seems to have a fairly bizarre understanding of the law as it concerns defamation. He focuses on the guy from Twitter, Nick Pickles, and starts out by reading a definition of "libel." Then he asks
Have any of you considered libel? Or do you think you are immune from it?
This is an incredibly stupid question. Twitter is clearly not immune from libel. Marino's line of questioning is an attempt to attack CDA 230, which provides immunity to Twitter from liability for defamatory statements made by its users. This is an important distinction that Marino conveniently ignores as he continues to bug Pickles.
Pickles: We have clear rules that governs what happens on Twitter. Some of those behaviors are deplorable and we want to remove them immediately... So, terrorist content is one example, where we now detect 95% of the terrorist accounts we remove...
Marino: Okay, I understand that sir. But how about... we in Congress, we put up with it all the time. I know we're public officials, same with people in the movies... but do you specifically look for and address... republication can be used in a defamation case. Do you look at libel and defamation content?
I don't even know what that means. Do you look at libel content? What? How does Twitter know if something is libelous? Especially against public officials? How is Twitter supposed to make that judgment when that's what courts are there to figure out? And, for what it's worth, Twitter has been known to abide by court rulings on defamatory speech in deciding to take down that content, but Marino seems to be asking if they make an independent judgment outside of the courts of what's libelous. Which is both crazy and impossible. Pickles makes a valiant effort in response, noting how Twitter focuses on its rules -- which is all that it's required to do -- but Marino clearly seems to want to attack CDA 230 and magically make Twitter liable for libelous content on its platform. After Pickles again explains that it focuses on its rules, rather than making judicial rulings that it cannot make, Marino puts on a dumb smirk and makes another dumb statement:
With all due respect, I've heard you focus on your rules about 32 times. DO. YOU. LOOK. FOR. LIBEL. OR. DEFAMATION. IN. YOUR. COMPANY'S. OPINION?
You can't "look for libel or defamation" like that. That's not how it works. Marino is a lawyer. He should know this. The Facebook and YouTube representatives neatly sidestep Marino's silly line of questioning by pointing out that when informed of legal rulings determining "illegal" speech, they take it down. Marino doesn't even seem to notice this very specific distinction and asks "where do you draw the line?"
At an hour and forty minutes, we have everyone's favorite, Rep. Lamar Smith, author of SOPA back in the day. He spews more utter nonsense claiming conservatives have been more negatively impacted by the moves of these social media companies, and then (bizarrely) argues that Google employees forcing the company not to help surveillance activity is somehow an attack on conservatives. Excuse me? Conservatives don't support the 4th Amendment any more? Say what? But the real craziness is this line:
Google has also deleted or blocked references to Jesus, Chick-Fil-A and the Catholic religion.
I'm going to call time out here and note [citation needed] on that one, Smith. Google pretty clearly shows me results on all three of those things. I've been trying to figure out what the hell he's referring to, and I'm guessing that Smith -- in his usual Smithian nonsensical way -- is confusing Google for Facebook, and Facebook's bad filter that initially blocked a page about "Chick-fil-Appreciation Day," and some Catholic church pages. The "Jesus" blocking is also Facebook and was in reference to an ad for a Catholic university.
All of these examples were not, as Smith implies, evidence of "liberal bias" on behalf of Facebook, but rather evidence of why it's so problematic that governments are putting so much pressure on Facebook to magically filter out all of the bad stuff. That's not possible without making mistakes. And what happens is that you set up guidelines and those guidelines are then handed to people who don't have nearly enough time to understand the context, and sometimes they make mistakes. It's not bias. It's the nature of trying to moderate millions of pieces of content every damn day, because if they don't, these same idiots in Congress would be screaming at them about how they're letting the bad content live on. I mean, it's doubly ridiculous for Smith to use the Jesus example as even the guy who bought the ad, the university's web communications director, specifically said that he didn't believe it had anything to do with bias, but was just a bad decision by an algorithm or a low level staffer.
Finally (and there are more, but damn, this post is getting way too long) we get to Rep. Matt Gaetz. At around an hour and 55 minutes into the hearing, he suddenly decides to weigh in that the First Amendment and CDA 230 are somehow in conflict, in another bizarre exchange between Gaetz and Twitter's Pickles.
Gaetz: Is it your testimony or is it your viewpoint today that Twitter is an interactive computer service pursuant to Section 230 sub c(1).
Pickles: I'm not a lawyer, so I won't want to speak to that. But as I understand, under Section 230, we are protected by that, yes.
Gaetz: So Section 230 covers you, and that section says "no provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another"... is it your contention that Twitter enjoys a First Amendment right under speech, while at the same time enjoying Section 230 rights?
Pickles: Well, I think we've discussed the way the First Amendment interacts with our companies. As private companies we enforce our rules, and our rules prohibit a range of activities.
Gaetz: I'm not asking about your rules. I'm asking about whether or not you believe you have First Amendment rights. You either do or you do not.
Pickles: I'd like to follow up on that, as someone who is not a lawyer... I think it's very important...
Gaetz: Well, you're the senior public policy official for Twitter before us and you will not answer the question whether or not you believe your company enjoys rights under the First Amendment?
Pickles: Well, I believe we do, but I would like to confirm with colleagues...
Gaetz: So what I want to understand is, if you say "I enjoy rights under the First Amendment" and "I'm covered by Section 230" and Section 230 itself says "no provider shall be considered the speaker" do you see the tension that creates?
There is no tension there. The only tension is between the molecules in Gaetz's brain that seemed to think this line of nonsensical argument makes any sense at all. There is no conflict. First, yes, it's obvious that Twitter is clearly protected by both the First Amendment and CDA 230. That's been established by dozens of court rulings with not a single ruling ever holding otherwise. Second, the "tension" that Gaetz sees is purely a figment of his own misreading of the law. The "no provider shall be considered a speaker" part, read in actual context (as Gaetz did earlier) does not say that platforms are not speakers. It says that they are not considered a speaker of other people's speech. In fact, this helps protect free speech by enabling internet platforms the ability to host any speech without facing liability for that speech.
That helps protect the First Amendment by ensuring that any liability is on the speaker and not on the tool they use to distribute that speech. But Twitter has its own First Amendment rights to determine what speech it decides to keep on its site -- and which speech it decides not to allow. Gaetz then, ridiculous, tries to claim that Pickle's response to that nonsensical response is somehow in conflict with what Twitter's lawyers have said in the silly Jared Taylor lawsuit. Gaetz asks Pickles if Twitter could kick someone off the platform "for being a woman or being gay." Pickles points out that that is not against Twitter's rules... and Gaetz points out that in the Taylor case, when asked the same question, Twitter's lawyers stated (1) that Twitter has the right to do so but (2) never would.
Again, both Pickles and Twitter's lawyers are correct. They do have that right (assuming it's not a violation of discrimination laws) but of course they wouldn't do that. Pickles wasn't denying that. He was pointing out that the hypothetical is silly because that's not something Twitter would do. Twitter's lawyers in the case were, correctly, pointing out that it would have the right to do such a nonsensical thing if it chose to do so, while also making it clear it would never do that. Again, that's not in conflict, but Gaetz acts as if he's "caught" Twitter in some big admission.
Gaetz falsely then claims that Pickles is misrepresenting Twitter's position:
Right but it is not in service of transparency if Twitter sends executives to Congress to say one thing -- that you would not have the right to engage in that conduct -- and then your lawyers in litigation say precisely the opposite.
Except that's not what happened at all. Pickles and the lawyers agreed. At no point did Pickles say that Twitter did not have "the right" to kick people off its platform for any reason. He just noted that it was not a part of their policy to do so, nor would it ever be. That's entirely consistent with what Twitter's lawyers said in the Taylor case. This is Gaetz making a complete ass out of himself in completely misrepresenting the law, the constitution and what Twitter said both in the hearing and in the courthouse.
Seriously, people, we need to elect better Representatives to Congress. This is embarrassing.
A federal judge has decided unconstitutional prior restraint is the best way to handle a clerical screwup. An injunction request, filed under seal, has been granted, resulting in the LA Times deleting information it obtained legally from a US federal court's website.
A plea agreement the government reached with Glendale police detective John S. Balian was accidentally made public on PACER, where it was scooped up by the LA Times. Information from that plea agreement appeared in its July 14th article on Balian. That information has now been removed from its website and replaced with this note:
5:15 p.m.: This story has been updated to remove references from the filed plea agreement, which was ordered sealed by a judge but publicly available Friday on the federal court’s online document database. The changes were made to comply with an order issued Saturday by a U.S. federal judge. The Times plans to challenge the order.
The information Balian's lawyer wanted removed lives on at the Internet Archive, where an unedited version of the post still resides. The effectiveness of this order may have blunted by the internet's ability to remember things people want forgotten, but the order is still an abuse of judicial power. This is the bulk of the information targeted by the court order.
John Saro Balian, 45, pleaded guilty to one count each of soliciting a bribe, obstruction of justice and making false statements to federal investigators as part of a plea agreement he reached with prosecutors. The document was ordered to be filed under seal but appeared on PACER, a public online database for court documents.
According to the agreement, filed in U.S. District Court, Balian agreed to cooperate with federal authorities by responding truthfully and completely in interviews and court proceedings. He is scheduled to be sentenced in September, when prosecutors are expected to recommend a reduced sentence.
As Ken White points out in his post on the subject, the granted injunction [PDF] appears to have been approved in whole by the presiding judge, who only added a couple of things to the proposed order before signing off on this violation of the First Amendment.
[B]ased on an emergency request from the defendant, with no prior opportunity to be heard, a federal judge ordered a major newspaper (1) not to write about the details of a federal plea agreement it had obtained lawfully, (2) not to write anything that "relies on, or is derived in any way" from the plea agreement, an incredibly broad and vague term that is extraordinarily chilling to speech about the case, (3) to take down any story it's already published, and (4) told the paper they can see the order, but not the application stating the legal and factual grounds for the order.
The LA Times is challenging the order, but it has to do it without access to all the facts. The application for the order was filed under seal, so it's likely the first time the paper will see what it's arguing against will be when it shows up in court to argue against the injunction.
Beyond the obvious First Amendment implications of granting such a broad order over information legally obtained by the LA Times, there's the question about the purpose it's supposed to serve. What's been "deleted" reveals little that probably couldn't be inferred by astute readers. Certainly the Times' article does provide more details than it would have without a copy of the plea agreement, but its other coverage -- along with the docket's publicly-available documents -- already strongly hinted that Balian had entered a plea agreement with the government.
The plea agreement isn't necessary to show his cooperation; reasonable observers can infer it as a strong likelihood. The plea agreement may also have included factual details about what Balian admitted to doing — prosecutors typically get cooperators to agree to a detailed set of facts to "lock them in" to a story. But that's the government's concern, not Balian's.
This sloppy decision by a federal judge now requires the LA Times to spend time and money overturning a clearly unconstitutional gag order. It's not a party to this case but has been put in the position of having to interject. Sure, it doesn't have to challenge this injunction, but if you don't stick up for your rights -- especially in an industry heavily-reliant on the First Amendment -- you're just ceding ground and signalling to others you're willing to delete information anytime an article's subject gets angry. The Times' appeal of the injunction should be successful but the greater point remains that it never should have had to do this in the first place.
UPDATE:Ken White reports (from the courthouse) that the judge has vacated the restraining order but still decided to say bad things about the LA Times choosing to publish information left exposed by a clerical error. This Twitter thread details the swift movements of Judge John F. Walter to reverse his horrendous decision before the 9th Circuit Court of Appeals had a chance to lambaste him for forgetting the First Amendment exists.
The Trump Administration -- much like the administration before it -- has declared war on leakers. The government prefers to selectively leak info using anonymous sources, but only the sort of leaks that serve its political/PR purposes. Everything else -- no matter how much the leaked info serves to better inform the public -- is the target of investigations and prosecutions.
Jeff Sessions claims this administration has opened three times as many leak investigations as Obama's. If so, it will rack up unprecedented numbers. Both the Obama administration and the Trump administration have decided it's OK to target journalists' communications to hunt down leakers, an act that strikes at the very heart of the First Amendment.
An indictment against James Wolfe, a longtime Senate Intelligence Committee advisor, was put together by harvesting emails and other private communications between Wolfe and various reporters. This document confirmed what was already suspected by Ron Wyden, who demanded late last year the DOJ turn over information on its targeting of journalists' communications.
The department’s response letter dated March 5, 2018, obtained by BuzzFeed News, listed instances from “January 2012 to the present.” Not included: the seizure of New York Times reporter Ali Watkins’ email and phone records.
The department’s letter to Wyden predated the revelation last month that investigators had seized Watkins’ records as part of an investigation into former Senate Intelligence Committee staffer James Wolfe. According to the Times, Watkins, a former BuzzFeed News reporter, learned in February via a letter from the Justice Department that her records had been seized — appearing to put her case within the timeframe identified by the Justice Department in its March letter to Wyden.
This is a glaring omission by the DOJ. It suggests the agency is deliberately covering up some of its forays into First Amendment territory. This letter was delivered to Wyden in early March, a few months prior to the indictment showing the DOJ had gone after more journalists' communications. None of those are listed in this response.
It could be the DOJ excluded Watkins from its response because it (supposedly) did not target her communications. Even if so, it omitted the other journalists caught up in the investigation of Wolfe, who very definitely appear to have had their communications seized.
If the DOJ is unwilling to correct the record, or at least explain why it excluded the Wolfe investigation from this report, this can only be seen as a bad faith response. It may have confirmed its surveillance of AP journalists that resulted in the greater restrictions on investigations involving journalists put into place by the last Attorney General, but if it can't honestly discuss more recent targeting of press members, there's no reason to believe it hasn't decided to ignore its self-imposed restrictions.
It's a weird time to be an American for many, many reasons, but the way the government and the public views and responds to public protests has to be among the very top on the list. Protests, for those of you who haven't bothered opening up a history book, are as American as apple pie, baseball, and drone strikes. Civic engagement via public demonstration is so central to the American idea that it is enshrined in the First Amendment, with rather limited wiggle room for government to bottle it up. It is also notable that the courts, including the Supreme Court, have ruled previously that anonymity is absolutely protected by the First Amendment as well. The EFF's page on anonymity makes it plain that this has long gone beyond the realm of online or digital speech.
The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A frequently cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:
Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.
Whoever, whether or not acting under color of law, while in disguise, including while wearing a mask, injures, oppresses, threatens, or intimidates any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, shall be fined under this title, imprisoned not more than 15 years, or both.
This represents a severe ratcheting up of the sentencing structures just for wearing a mask. Now, you may be saying that this bill is not targeting protesters, but those who break the law as described above. Except we have to place this bill in the context of reality. That context includes first that the language in the bill as what counts as a violation is overly broad (oppresses, threatens, or intimidates) and second that the government has shown itself to be enormously awful at not trying to criminalize peaceful protests it doesn't like. And, if anyone had any question as to what this bill is specifically intended to do, one need only look to the nickname Donovan gave it to conclude that this is as pure an attempt to make the infringement of speech as partisan as possible as can be found.
Section 1. Short title
This Act may be cited as the Unmasking Antifa Act of 2018.
Antifa, of course, being the favored bogeyman target from the political interests of those supporting the President, at least at the moment. And, sure, some protests where Antifa has participated in have gotten out of hand and criminal activities have taken place. We have laws for that. Using them as an excuse to specifically outlaw wearing a mask or face-covering while protesting is just plain stupid.
And pretty plainly unconstitutional. I would guess Donovan knows that, too, and is actually using this bill purely as a, shall we say... "virtue signal" to his constituents without having any expectations that it will both pass into law and defeat the immediate First Amendment challenges that will surely be thrown at it from many places. And, in case it isn't clear, playing those sorts of political games with free speech is about as scummy as it gets for a politician.
So Tim Cushing has just taken a peek at Supreme Court nominee Brett Kavanaugh's 4th Amendment rulings and Karl already looked at his questionable opinion concerning net neutrality (in which he argued (bizarrely) that what blocking content and services on a network is a 1st Amendment "editorial" decision by broadband providers). Of course, that's just one of his 1st Amendment cases. I wanted to look over some of Kavanaugh's other free speech related opinions. Ken "Popehat" White has done a pretty good job covering most of them, noting that for the most part, Kavanaugh takes a fairly strong First Amendment approach in the cases that come to him, and seems unlikely to upset the apple cart on First Amendment law in any significant way (if you want to see more of his opinions, this is a good place to start).
As Ken notes, there really isn't that much to comment on on most of those decisions, and Karl already wrote about the weird net neutrality one, but I did want to focus in on another First Amendment-adjacent case where I think Kavanaugh was incorrect: on the question of whether or not state anti-SLAPP laws apply in federal court. To be clear, by itself, this is really not a First Amendment question on its own, it's a question about what laws apply where. The case is Abbas v. Foreign Policy Group and Kavanaugh wrote the majority opinion which said that DC's anti-SLAPP law can not be used in federal court.
Ken is correct that this ruling does not suggest that Kavanaugh is not interested in protecting First Amendment rights. But, that still does not mean that Kavanaugh's ruling is correct. Ken notes that some other judges have agreed with Kavanaugh, but it's also worth pointing out that even more judges have disagreed with Kavanaugh. Indeed, most other circuits that have taken up this issue have ruled in the other way, and said that state anti-SLAPP laws can be used in federal court. The debate over this does not come down to a First Amendment issue, but rather the issue of whether or not an anti-SLAPP law is mainly "substantive" or "procedural." Substantive state laws apply in federal court, while procedural ones do not. Anti-SLAPP laws have elements of both procedural and substantive laws, which is why there are arguments over this. But for a variety of reasons, it seems clear to us (and to many other judges) that the substantive aspects of most anti-SLAPP laws mean they're perfectly valid in federal court.
If you read Kavanaugh's ruling, his explanation for his reasoning is... minimal. He calls the arguments in favor of the other side "creative," and some of them were. But on the meat of the question -- is DC anti-SLAPP law more procedural or substantive -- he basically just says he disagrees with courts that found otherwise, and agrees with the judges that agree with him:
...the defendants cite some other courts that have applied State anti-SLAPP acts’ pretrial dismissal provisions notwithstanding Federal Rules 12 and 56. See, e.g., Godin v. Schencks, 629 F.3d 79, 81, 92 (1st Cir. 2010); Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 168-69 (5th Cir. 2009); United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999); see generally Charles Alan Wright et al., 19 Federal Practice & Procedure § 4509 (2d ed. 2014). That is true, but we agree with Judge Kozinski and Judge Watford that those decisions are ultimately not persuasive.
Yes, but why? Kavanaugh does not really explain. And that's too bad, because the reasoning in those other courts is something that I do find pretty damn persuasive. Anti-SLAPP laws do have a procedural component, but they are primarily substantive in protecting the First Amendment rights of speakers. In particular, the Godin v. Schenks ruling gets into the weedy details of why the anti-SLAPP statute in that case does not bump up against or contradict federal procedures, while the Henry v. Lake Charles American Press ruling goes even further in highlighting the importance of protecting free expression:
Anti-SLAPP statutes such as Article 971 aim to curb the chilling effect of meritless tort suits on the exercise of First Amendment rights, and as the Supreme Court stated in Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Indeed, the Supreme Court has time and again emphasized the importance of First Amendment rights. See, e.g., Curtis *181 Publ'g Co. v. Butts, 388 U.S. 130, 165, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (Warren, C.J., concurring in the result) (noting "the fundamental interests which the First Amendment was designed to protect").... Article 971 thus provides for the avoidance of a trial that would imperil a substantial public interest. Indeed, as Article 971 embodies a legislative determination that parties should be immune from certain abusive tort claims that have the purpose or effect of imperiling First Amendment rights, "there is little room for the judiciary to gainsay its `importance.'"
Again, multiple courts have ruled this way as well.
At best, Kavanaugh argues that anti-SLAPP laws basically cover the same ground as federal procedure rules concerning motions to dismiss and motions for summary judgment. As he summarizes:
Federal Rules 12 and 56 answer the same question as the D.C. Anti-SLAPP Act, and those Federal Rules are valid under the Rules Enabling Act. A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.
But in the Godin case, the 1st Circuit does (what I believe is) a much more thorough analysis of the (admittedly different, but still similar) anti-SLAPP law in that case, and its relationship to Federal Rules 12 and 56, basically noting that the anti-SLAPP law covers different ground, and doesn't displace federal procedure:
Federal Rules 12(b)(6) and 56 are addressed to different (but related) subject-matters. Section 556 on its face is not addressed to either of these procedures, which are general federal procedures governing all categories of cases. Section 556 is only addressed to special procedures for state claims based on a defendant's petitioning activity. In contrast to the state statute in Shady Grove, Section 556 does not seek to displace the Federal Rules or have Rules 12(b)(6) and 56 cease to function. Cf. Morel, 565 F.3d at 24. In addition, Rules 12(b)(6) and 56 do not purport to apply only to suits challenging the defendants' exercise of their constitutional petitioning rights. Maine itself has general procedural rules which are the equivalents of Fed.R.Civ.P. 12(b)(6) and 56. See Me. R. Civ. P. 12; Me. R. Civ. P. 56. That fact further supports the view that Maine has not created a substitute to the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities.
Crucially, as the Godin ruling notes, anti-SLAPP laws change the burden of proof, and that is "substantive," meaning should be allowed in federal court:
Neither Fed.R.Civ.P. 12(b)(6) nor Fed. R.Civ.P. 56 determines which party bears the burden of proof on a state-law created cause of action. See, e.g., Coll v. PB Diagnostic Syst., Inc., 50 F.3d 1115, 1121 (1st Cir.1995). And it is long settled that the allocation of burden of proof is substantive in nature and controlled by state law. Palmer v. Hoffman, 318 U.S. 109, 117, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Am. Title Ins. Co. v. E.W. Fin. Corp., 959 F.2d 345, 348 (1st Cir.1992).
Further, Section 556 provides substantive legal defenses to defendants and alters what plaintiffs must prove to prevail. It is not the province of either Rule 12 or Rule 56 to supply substantive defenses or the elements of plaintiffs' proof to causes of action, either state or federal.[16]
Because Section 556 is "so intertwined with a state right or remedy that it functions to define the scope of the state-created right," it cannot be displaced by Rule 12(b)(6) or Rule 56
Even in the recent 10th Circuit ruling that says that New Mexico's anti-SLAPP law shouldn't apply in federal court (which Cathy Gellis argues convincingly was incorrectly decided), that case was very specific to the language of New Mexico's fairly weak anti-SLAPP law -- which didn't shift the burden of proof (taking away one of -- though not all -- of the key arguments that the crux of the anti-SLAPP is substantive rather than procedural).
Admittedly, this is deep deep into the weeds on issues around federal procedure, but it is still disappointing that Kavanaugh went the other direction on the case and seems to wave off the fairly persuasive arguments that other judges have made by suggesting that somehow anti-SLAPP laws replace federal procedure. They do not.
Of course, the best away around even having this question be an open question is to have a federal anti-SLAPP law, but tragically Congress has so far failed to even seriously explore that whenever such bills have been introduced (and President Trump has certainly shown absolutely no interest in signing such a bill should it pass). As Ken notes in his piece, Kavanaugh does seem generally appreciative of anti-SLAPP laws in general, but feels that he can't allow DC's to be used in federal court for procedural reasons. That doesn't suggest that he is bad on free speech -- indeed, in that very same ruling he upholds the dismissal (with prejudice) of the defamation case at issue, just using the 12(b)(6) motion to dismiss process, rather than the DC anti-SLAPP rule.
And thus, I disagree with Kavanaugh's ruling on using DC's anti-SLAPP in federal court (as I disagree with his ruling on the 1st Amendment's applicability to net neutrality), but neither of those appear to diminish his general record as being strong on First Amendment issues.
Back when Verizon sued to overturn the FCC's fairly tepid 2010 net neutrality rules, the telco's lawyers threw every legal argument at the wall they could find, no matter how ridiculous they might be. One of those claims was that the FCC's rules somehow violated the company's First Amendment rights, a claim that Mike (and numerous other reporters at the time) properly eviscerated:
"Verizon is effectively arguing that if it chooses not to allow a certain service to exist online that is a form of expression. Think of it this way: say Verizon decided to block Skype, because Skype is eating into its local telephone business. According to Verizon, that decision is a form of expression and the government can't block that, since that "expression" is protected. The "newspaper" analogy that Verizon offers is completely specious, because the internet isn't a newspaper where there's a single publisher who chooses what goes in. The whole argument is ludicrous."
Telling Verizon that it can't abuse a lack of broadband competition to hinder certain services from working online is not a free speech issue, full stop. That said, painting Verizon as the victim when it's the company's own anti-competitive actions that were threatening small businesses and legitimate expression gives you a pretty solid grasp of the hubris of large, incumbent telecom operators.
Ultimately Verizon won the 2010 fight and had the rules scuttled due to FCC over reach (which is why Wheeler ultimately embraced Title II in 2015), but it had absolutely nothing to do with the ISP's First Amendment argument. Still, that argument played a starring role when ISPs again sued to overturn the FCC's tougher, 2015 rules. Comcast, AT&T, Verizon, and other major ISPs all again clung tightly to the flimsy First Amendment claim, despite even they knowing it was absurd and fundamentally unsound.
And again that didn't work out well for ISPs, with the U.S. Court of Appeals for the D.C. Circuit fully upholding the FCC's rules in 2016, the majority once again shooting down ISP claims that net neutrality protections violated ISPs' First Amendment rights. From the ruling (pdf):
"Because a broadband provider does not— and is not understood by users to—"speak" when providing neutral access to internet content as common carriage, the First Amendment poses no bar to the open internet rules."
ISPs lost again during their en banc appeal of the rules, where the same argument was shot down yet again by the majority. Again, because ISPs, which provide connectivity between the end user and the sites and content they want to access, are not speaking or exercising editorial control when they transmit data.
It should be reiterated that even ISPs like Comcast don't actually believe their argument that net neutrality tramples their First Amendment rights; the entire effort was just a "let's try everything and see what works" sort of affair. All ISPs have ever cared about in this argument is their ability to fatten revenues by further abusing an obvious lack of competition in broadband in creative new ways.
But it's worth noting at least one judge bought into the ISPs' flimsy claims that their First Amendment rights had been trampled, and that man was a certain Brett Kavanaugh (pdf), who Trump just nominated for the Supreme Court. In his dissent (pdf), Kavanaugh displays an absolutely stunning lack of fundamental common sense in parroting large ISP claims on the subject:
"Absent a showing of market power, the Government must keep its hands off the editorial decisions of Internet service providers. Absent a showing of market power, the Government may not tell Internet service providers how to exercise their editorial discretion about what content to carry or favor any more than the Government can tell Amazon or Politics & Prose what books to promote; or tell The Washington Post or the Drudge Report what columns to carry; or tell ESPN or the NFL Network what games to show; or tell How Appealing or Bench Memos what articles to feature; or tell Twitter or YouTube what videos to post; or tell Facebook or Google what content to favor."
Again, that's not just wrong it's aggressively incorrect. Something his fellow judges again made clear in their majority ruling:
"[N]o Supreme Court decision supports the counterintuitive notion that the First Amendment entitles an ISP to engage in the kind of conduct barred by the net neutrality rule—i.e., to hold itself out to potential customers as offering them an unfiltered pathway to any web content of their own choosing, but then, once they have subscribed, to turn around and limit their access to certain web content based on the ISP's own commercial preferences."
To be more explicit about the problems here, you can tell that Kavanaugh went wrong in the way he constantly refers to Verizon blocking services as "editorial" decisions, as if Verizon curates what internet you can and cannot see. That completely misunderstands the nature of an end-to-end internet, where access providers, such as Verizon, are merely connecting you to the wider network, not "editorializing" over what you get access to. All of the comparisons that Kavanaugh trots out -- Amazon, book stores, YouTube, etc. -- are entirely different. Those are all platforms in which those sites are literally hosting the content and thus have the right to allow or refuse how it is used. Verzion, on the other hand, is merely connecting people and not making "editorial" choices.
Kavanaugh's dissent was cribbed nearly word for word from large ISP lobbying efforts, including his proclamation that the rules weren't necessary thanks to "vibrant competition” in the broadband sector. And while few will focus much on net neutrality as the debate over Kavanaugh's nomination heats up, his willingness to mindlessly parrot false claims from one of the most-disliked and anti-competitive industries in America does speak well to overall character and likely future voting patterns.
And should Kavanaugh be officially confirmed, that obviously spells some serious trouble for all future efforts to restore net neutrality.
The Trump FCC's ham-fisted repeal is facing some legitimate looming legal challenges from small companies, consumer groups, and numerous state attorneys general, and given the FCC's bizarre and unethical behavior during the repeal, the legal assault has a good chance of succeeding. Granted that also means it has a non-insubstantial chance of this or other net neutrality fights landing before the Supreme Court, where it should be pretty obvious that Kavanaugh is likely to side with giant ISPs, the overwhelming, bipartisan public support for the rules be damned.
