Supreme Court Now Says That The Trademark Office Can't Reject 'Immoral Or Scandalous' Trademarks

from the well-fuck-yeah(tm) dept

This should have been pretty much a foregone conclusion after the Supreme Court's ruling two years ago in Simon Tam's case about The Slants trademark. In that case, the Supreme court ruled that part of the Lanham Act that said the government could deny trademarks on "disparaging" marks was an unconstitutional violation of the First Amendment. However, that ruling was a bit messy. The court agreed that the law was unconstitutional under the 1st Amendment, but had two different theories as to why, neither of which got a majority. So the specific law that said the PTO could reject "disparaging" marks was tossed, but technically other content-based restrictions, such as those for "immoral and scandalous" remarks remained on the books. So, pretty quickly that got challenged as well, and now the Supreme Court instead has said that's unconstitutional too.

The basic reasoning should be obvious: under the First Amendment, the government cannot be in the business of judging the appropriateness of content (for what it's worth, this is also why Senator Josh Hawley's silly bill is unconstitutional). Here, the majority decision, written by Justice Kagan, made pretty quick work of the ruling, basically just saying that the same thing that they said in the Tam case applies here as well.

If the “immoral or scandalous” bar similarly discriminates on the basis of viewpoint, it must also collide with our First Amendment doctrine. The Government does not argue otherwise. In briefs and oral argument, the Government offers a theory for upholding the bar if it is viewpoint-neutral (essentially, that the bar would then be a reasonable condition on a government benefit). See Brief for Petitioner 14–26. But the Government agrees that under Tam it may not “deny registration based on the views expressed” by a mark. Tr. of Oral Arg. 24. “As the Court’s Tam decision establishes,” the Government says,“the criteria for federal trademark registration” must be “viewpoint-neutral to survive Free Speech Clause review.” Pet. for Cert. 19. So the key question becomes: Is the “immoral or scandalous” criterion in the Lanham Act viewpoint-neutral or viewpoint-based?

It is viewpoint-based. The meanings of “immoral” and“scandalous” are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material “immoral”? According to a standard definition, when it is “inconsistent with rectitude, purity,or good morals”; “wicked”; or “vicious.” Webster’s New International Dictionary 1246 (2d ed. 1949). Or again, when it is “opposed to or violating morality”; or “morally evil.” Shorter Oxford English Dictionary 961 (3d ed. 1947). So the Lanham Act permits registration of marks that champion society’s sense of rectitude and morality, but not marks that denigrate those concepts. And when is such material “scandalous”? Says a typical definition, when it “giv[es] offense to the conscience or moral feelings”; “excite[s] reprobation”; or “call[s] out condemnation.” Webster’s New International Dictionary, at 2229. Or again, when it is “shocking to the sense of truth, decency,or propriety”; “disgraceful”; “offensive”; or “disreputable.” Funk & Wagnalls New Standard Dictionary 2186 (1944). So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society’s sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s “immoral or scandalous” bar.

The facial viewpoint bias in the law results in viewpoint-discriminatory application.

The ruling mocks the Government's position that some of the examples shown of the PTO rejecting marks were "mistakes," as well as the request to basically read the law entirely differently than it's written.

How, then, can the Government claim that the “immoral or scandalous” bar is viewpoint-neutral? The Government basically asks us to treat decisions like those described above as PTO examiners’ mistakes. See Brief for Petitioner 46. Still more, the Government tells us to ignore how the Lanham Act’s language, on its face, disfavors some ideas. In urging that course, the Government does not dispute that the statutory language—and words used to define it—have just that effect. At oral argument, the Government conceded: “[I]f you just looked at the words like ‘shocking’ and ‘offensive’ on their face and gave them their ordinary meanings[,] they could easily encompass material that was shocking [or offensive] because it expressed an outrageous point of view or a point of view that most members” of society reject. Tr. of Oral Arg. 6. But no matter, says the Government, because the statute is “susceptible of” a limiting construction that would remove this viewpoint bias. Id., at 7 (arguing that the Court should “attempt to construe [the] statute in a way that would render it constitutional”). The Government’s idea, abstractly phrased, is to narrow the statutory bar to “marks that are offensive [or] shocking to a substantial segment of the public because of their mode of expression, independent of any views that they may express.” Id., at 11 (emphasis added); see Brief for Petitioner 27–28. More concretely, the Government explains that this reinterpretation would mostly restrict the PTO to refusing marks that are “vulgar”—meaning “lewd,” “sexually explicit or profane.” Id., at 27, 30. Such a reconfigured bar, the Government says, would not turn on viewpoint, and so we could uphold it.

But we cannot accept the Government’s proposal, because the statute says something markedly different. This Court, of course, may interpret “ambiguous statutory language” to “avoid serious constitutional doubts.”

Easy.

Except, of course, with this court, very little is easy. There are a bunch of concurring opinions, with some dissenting in part. Justice Alito kicks it off with a short concurring opinion bravely talking up the principles of free speech, before then insisting that Congress could still write a law to block "FUCT" because he, personally seems to feel such a word is too vulgar for society or something. It's... bizarre.

For the reasons explained in the opinion of the Court, the provision of the Lanham Act at issue in this case violates the Free Speech Clause of the First Amendment because it discriminates on the basis of viewpoint and cannot be fixed without rewriting the statute. Viewpoint discrimination is poison to a free society. But in many countries with constitutions or legal traditions that claim to protect freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has become increasingly prevalent in this country. At a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination. We reaffirm that principle today.

Our decision is not based on moral relativism but on the recognition that a law banning speech deemed by government officials to be “immoral” or “scandalous” can easily be exploited for illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.The registration of such marks serves only to further coarsen our popular culture. But we are not legislators and cannot substitute a new statute for the one now in force.

I have a fair bit of difficulty figuring out how Alito's argument in that latter paragraph could possibly be consistent with the 1st Amendment, but, hey, he's the Supreme Court Justice, and I'm not. Justice Roberts takes a slightly similar position, saying that it's fine to say the ban on "immoral" marks is unconstitutional, but surely "scandalous" is viewpoint neutral, because vulgarity. This, again, seems like a bizarre attempt at line drawing. Justice Breyer complains about the standard used in the majority ruling, calling it too rigid, and wants more of a balancing test (which, if I remember correctly, has mostly been rejected by the Court in 1st Amendment cases). Sotomayor, like Alito, worries that this will lead to a rush of vulgar and obscene trademarks:

The coming rush to register such trademarks—and the Government’s immediate powerlessness to say no—is eminently avoidable. Rather than read the relevant text as the majority does, it is equally possible to read that provision’s bar on the registration of “scandalous” marks to address only obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted legislative text by rendering it a reasonable, viewpoint-neutral restriction on speech that is permissible in the context of a beneficial governmental initiative like the trademark-registration system. I would apply that narrowing construction to the term “scandalous” and accordingly reject petitioner Erik Brunetti’s facial challenge

Again, I have trouble seeing how this makes any sense. And, frankly, if there is a mad dash to register vulgar trademarks, well, that only matters if those marks are valued in commerce. If people want to buy vulgar t-shirts or whatnot, that's kind of on them. It's not Congress' job to stop vulgar t-shirts, which should be fairly obvious from the 1st Amendment. At least the majority got it right.

Filed Under: 1st amendment, erik brunetti, fuct, immoral, lanham act, scandalous, supreme court, trademarks

Senator Hawley Proposes Law To Force Internet Companies To Beg The FTC For Permission To Host Content

from the say-what-now? dept

Senate newbie Josh Hawley has made it clear that he's no fan of big internet companies and has joined with others in suggesting that Section 230 is somehow to blame for whatever it is he dislikes (it mainly seems to be he thinks the public likes them too much). So now he's proposed a massively stupid and clearly unconstitutional bill, called the "Ending Support for Internet Censorship Act," to wipe out CDA 230 protections for large internet platforms. The proposal is shockingly dumb and so obviously unconstitutional it boggles the mind that Hawley is actually a constitutional lawyer.

The bill is pretty straightforward, both in how it operates, and in how misguided it is. If you're a "big" internet platform -- defined as having more than 30 million "active monthly users" in the US or more than 300 million such users globally (or having over $500 million in revenue) -- then you automatically lose the protections of CDA 230. You can regain them by making a request to the FTC. In order to get them, you have to pay for an "audit" of your content moderation practices, and pro-actively "prove" via "clear and convincing evidence" that the practices are "politically neutral." Once the you do that, the FTC would "vote" on whether or not you could get CDA 230 protections, and they would only be granted with a "supermajority vote," which would mean at least four out of the five commissioners would have to vote for it. Since FTC Commissioners are always 3 to 2 in favor of the political party in the White House, that means any internet company that wants to get approval would need to get at least one commissioner of the non-Presidential party to vote for the immunity as well.

There's no way this survives constitutional scrutiny (if it actually becomes law, which seems unlikely). The First Amendment pretty clearly says that Congress can't create a law that (1) forces a company to get approval for its moderation practices and (2) judges content on whether or not it's deemed "politically neutral." Also, what the hell does "politically neutral" even mean? It doesn't mean anything. And, as for "clear and convincing evidence," tons of people have pointed to clear and convincing evidence that these platforms don't moderate based on political viewpoints, and yet we still have tons of people insisting they do. Nothing is going to convince some people that the platforms are actively targeting conservatives, no matter how many times evidence to the contrary is presented. Hawley has set up a purposefully impossible standard. As we've pointed out, many people still insist that Twitter deciding to kick off literal Nazis is "evidence" of anti-conservative bias. As NetChoice points out, Hawley's bill would require sites to host KKK propaganda just in order to obtain basic liability protections.

Is Josh Hawley truly arguing that any large website must cater to Nazis if it wants to allow public conversation? Because, damn, dude, that's a bold call.

This is from the guy who claims to be a "Constitutional Conservative"? Really? His current bio hypes up that he's a "leading constitutional lawyer" and talks about how he was one of the lead attorneys in the Hobby Lobby case, which was (in part) defending a company's right to use the First Amendment to refuse to obey certain laws that violated the religious beliefs of their owners. So, apparently, in that case, it's bad for the government to enforce rules for private businesses -- but for other kinds of companies, the government should force them to moderate content in a particular way? I mean, is Hobby Lobby forced to be "politically neutral" in the products it sells in its shops? You'd expect Hawley to be at the front of the line screaming about how awful that would be. Can you imagine the stink that Hawley himself would put up if Congress attempted to force Hobby Lobby to be "politically neutral" in its own actions?

Either way, this law is a non-starter, and once again shows that Hawley isn't legislating from any position of principle, but is grandstanding clearly unconstitutional ideas in the belief that self-identified "conservatives" hate the big internet companies these days, so any attack on them, no matter how dumb and unconstitutional, must be fine. As TechFreedom points out, this is little more than a fairness doctrine for the internet -- something conservatives have been against for decades. Incredibly, for all of the misguided and misleading complaints about how "net neutrality" was the "government takeover of the internet," Hawley's bill actually does a bunch of the things that opponents to net neutrality pretended net neutrality would do -- and yet, because it's politically expedient, you can likely bet that many of those who were against net neutrality will now support Hawley's ridiculous bill.

Filed Under: 1st amendment, cda 230, content moderation, ftc, josh hawley, politically neutral, section 230
Companies: facebook, google, twitter, youtube

Supreme Court Signals Loud And Clear That Social Media Sites Are Not Public Forums That Have To Allow All Speech

from the well-that's-a-nice-surprise dept

Last fall I wrote about the Supreme Court agreeing to hear a case that some argued would allow the Supreme Court to declare that social media sites were public forums thereby limiting their ability to block or ban certain users. A key argument brought forth by many who have been kicked off of various social media platforms is that under a strained reading of both the Pruneyard case (a very narrowly ruled case, establishing malls as public forums) and the Packingham case (which said states cannot create laws that ban people from the internet), is that social media platforms like YouTube, Facebook and Twitter are some sort of quasi-public forums, and therefore the 1st Amendment applies to them as state actors... and therefore they can't ban anyone or block content. This has never made much sense, and required a pretty twisted reading of those other cases -- but there was some thought that this new case might allow the Supreme Court to weigh in on the subject.

The details of the case are a bit involved -- and you can read the original post for more details -- but the short version is that two producers were fired from a public access channel, Manhattan Neighborhood Network, for criticizing MNN. The two fired producers, DeeDee Halleck and Jesus Melendez, argued that this violated the 1st Amendment, because MNN was set up by New York City's government, as required by New York State. Thus, there was a strong argument that MNN was a public forum, given the state's role in creating it. The 2nd Circuit agreed that it was a public forum and MNN appealed to the Supreme Court, raising the specter that if the ruling were allowed to stand, it could end up being applied to the various social media platforms as well, creating quite a mess.

As I wrote in my post about it, this seemed like a stretch as well, since the state's role in creating MNN was a key factor here, and that was not at all true with social media platforms. I also thought that the Supreme Court would likely rule narrowly and avoid the issue of social media platforms altogether -- though, given the political climate, I feared that the Supreme Court would say something stupid on this and create a new mess. Instead, the ruling, which came out earlier this week, went in the opposite direction. While the ruling itself doesn't directly apply to social media, the Supreme Court actually reversed the 2nd Circuit ruling that declared MNN a public forum, and very strongly hinted that it's ridiculous to think social media platforms could be considered public forums. And, for all the so-called "conservatives" who have been the most vocal in promoting the theory that social media sites are public fora governed by the 1st Amendment, it might surprise them to find that it was the so-called "conservative Justices" who decided this one, with Kavanaugh writing the opinion, joined by Roberts, Thomas, Alito and Gorsuch -- and Sotomayor writing the dissent, joined by Ginsburg, Breyer and Kagan.

Indeed, hysterically, it appears that a key argument made by the majority to argue against a finding of a public forum is one from one of the "conservatives" currently suing a platform. Stay tuned for that tidbit. But first, the decision itself. I was wrong in expecting the court to uphold the 2nd Circuit's ruling (and my fear was that they would apply it in a way that was too broad). But Kavanaugh and the majority make it clear that they see public forum doctrine to be very, very, very limited. And it doesn't apply to a public access TV network, even one created by the state.

Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion.

The key to Kavanaugh's ruling is that to make a private entity a public forum, it needs to take over "powers traditionally exclusively reserved to the State." The "exclusively" part is what the majority focuses on.

It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.

The Court has stressed that “very few” functions fall into that category.... Under the Court’s cases, those functions include, for example, running elections and operating a company town.... The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity.

And, the majority says, running a TV station also does not qualify.

The relevant function in this case is operation of public access channels on a cable system. That function has not traditionally and exclusively been performed by government.

And that's pretty much the ballgame for those arguing for a public forum designation even for this public access channel created by the state. However, Kavanaugh does go further in highlighting why it would be ludicrous to argue that social media sites, for example, would qualify and be subject to the 1st Amendment. As the opinion notes, just hosting a forum for speech does not magically turn you into a government actor hosting a "public forum." And then Kavanaugh goes even further, directly saying that a private entity can moderate all they'd like:

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....

The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.”

And just to drive the point home:

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” ... Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” ... That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” ... The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property

This is less important to the point we're discussing here, but if you're wondering why the majority said that even when the state creates the public access channel by law, it does not become a public forum, Kavanaugh explains that this would open up way too many charges of other private entities that require government licensing being charged as a public forum:

Numerous private entities in America obtain government licenses, government contracts, or governmentgranted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities. As this Court’s many stateaction cases amply demonstrate, that is not the law.

And it is noteworthy that the majority opinion makes it clear that some public access channels, if actually operated by the government, could count as a public forum, subject to the 1st Amendment. It just doesn't think MNN meets that criteria.

Now, here's the ironic bit. Kavanaugh concludes the opinion with the following:

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment.

Cornell Law professor Michael Dorf found that first sentence that I bolded above a bit odd, as Kavanaugh doesn't quote that line, but just says "it is sometimes said." So he went hunting for where that quote originated, and it turns out that it originated with Dennis Prager.

Remember Dennis Prager? He was actually one of the first to file a lawsuit making the ridiculous claim that YouTube is a public forum, subject to the First Amendment (after YouTube put just a small percentage of his videos into "restricted mode" and Prager freaked out, claiming "anti-conservative bias" despite the fact that YouTube put a far higher percentage of videos on what most people would consider to be more "liberal" channels into the very same restricted mode). Prager's lawsuit was laughed out of court, but it is still cited all the time by people who claim (1) anti-conservative bias by the platforms, and (2) that platforms are a public forum, and therefore subject to the First Amendment. Indeed, this is from Prager's original complaint:

Despite their control and regulation of one of the largest forums for public speech and expression in California, the United States, and the world, Google/YouTube regulate and censor speech as if the laws governing free speech and commerce do not apply to it. In so doing, Defendants believe that they have unfettered, unbridled, and unrestricted power to censor speech or discriminate against public speakers at their whim for any reason, including their animus toward and political viewpoints of their public users and providers of video content, because Defendants are for profit organizations rather than governmental entities.

Google/YouTube are wrong. As the California Supreme Court has stated: “[t]he idea that private property can constitute a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks” has long been the law in California. Fashion Valley Mall, LLC v. N.L.R.B. (2007) 42 Cal.4th 850, 858. The United States Supreme Court also recognized more than a half-century ago that the right to free speech guaranteed by the First Amendment to the United States Constitution can apply even on privately owned property. One of the most important places to exchange and express views is cyberspace, particularly social media, where users engage in a wide array of protected First Amendment activity on any number of diverse topics. And because the “[i]nternet’s forces and directions are so new, so protean, and so far reaching,” however, the U.S. Supreme Court warned that the law must be conscious that what it says today about the characteristics of a forum or free speech medium may be obsolete tomorrow. See Packingham v. North Carolina, 137 S.Ct. 1730, 1735-38 (2017).

So, boy, is it ever ironic that in a Supreme Court ruling that completely and utterly debunks Prager's own legal theory, the "conservative" wing of the Supreme Court quotes (without citation) a line from Prager to defend why Prager is laughably wrong. That's delicious.

Oh, and just in case the folks arguing that social media is a public forum think the dissenting "liberal" judges might save them here, that's not going to fly either. From Sotomayor's dissent:

In addition, there are purely private spaces, where the First Amendment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views.... In these settings, there is no First Amendment right against viewpoint discrimination.

So, uh, yeah. If you're arguing that private platforms like Facebook, YouTube and Twitter are magically "public fora" even as the Supreme Court is rejecting that designation for a public access channel that was literally created by the state, suffice it to say that you're argument is not going to go very far.

Filed Under: 1st amendment, free speech, public forum, scotus, supreme court

Court: Arresting A Driver For Shouting 'Fuck You' Out The Window At A Nearby State Trooper Is Unconstitutional

from the because-duh dept

Slowly but surely, law enforcement officers are being made to understand that speech they don't like isn't illegal speech. I mean, several of them likely already know this but they're willing to roll the dice on a lawsuit rather than endure a minimal hit to their self-image.

This isn't to say it's a good idea to give cops the finger or tell them to go fuck themselves. This is just to say that doing these things isn't a crime. It's protected speech. Cops aren't obliged to serve and protect citizens. That's just a cool slogan to paint on the side of cruisers. But they are obligated to uphold Constitutional rights, which is something they seem to have a hard time doing.

Courts have reminded cops that flipping the bird isn't an arrestable offense. It's protected speech. They've also reminded cops that this is a form of protected criticism, as crude as it is. The very heart of First Amendment protections is the right of citizens to criticize their government. Sometimes criticism takes the form of a fleeting f-bomb from a passing vehicle.

Here's how this latest reminder starts, courtesy of the Eighth Circuit Court of Appeals [PDF]:

In 2015, Trooper Cross was performing a routine traffic stop on a van pulled to the shoulder of a busy five-lane highway in Fort Smith, Arkansas. From 50 feet away, Trooper Cross heard Thurairajah, who was driving by, yell “f**k you!” out of his car window. The van’s occupants were a mother and her two young children. Thurairajah was driving at about 35 miles-per-hour on the far lane of the road moving in the opposite direction. Trooper Cross observed the two children in the van react to the yell.

Trooper Lagarian Cross should have let the story end there. At best, the story could have made it way back to the station with some embellishment and resentful commentary about ungrateful citizens and their big mouths. Instead, Trooper Cross did this:

Trooper Cross ended the traffic stop of the van and pursued Thurairajah, stopped him, and arrested him, citing Arkansas’s disorderly conduct law. Trooper Cross believed the shout constituted “unreasonable or excessive noise” under the law.

A stupid response to a stupid move. The arrestee spent several hours in jail before all charges were dropped. Thurairajah sued Trooper Cross and prevailed in the lower court. The trooper appealed. The Appeals Court doesn't have any good news for him.

Cross argued he was entitled to qualified immunity because he reasonably believed Thurairajah's "fuck you!" violated the law. The Appeals Court takes a not-so-subtle dig at the trooper's rationale when discussing his arguments.

In other words, Trooper Cross is protected by qualified immunity if a reasonable officer in his shoes would have reasonably believed, even if mistaken, based on objective facts, that Thurairajah was violating the disorderly conduct statute’s excessive noise prohibition by shouting the two-word insult from a moving vehicle with an unamplified human voice.

The hinting at the ridiculousness of the trooper's argument is followed by some case law, which shows there's nothing on the books backing the trooper's "reasonable officer" assertions.

Under the statute, the verbal content of Thurairajah’s yell is irrelevant. The statute does not penalize offensive speech, only unreasonable or excessive noise. Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision. To be sure shouting can form the basis of disorderly conduct. Those cases where shouting was part of a scenario that resulted in a finding of disorderly conduct, however, involved extended loud shouting and disruptive behavior or amplified sound. As the district court noted, context matters in analyzing the facts. In no case, has a two-word unamplified outburst constituted disorderly conduct.

It's not even close.

Thurairajah’s shout was unamplified and fleeting, no crowd gathered because of it, city traffic was not affected, no complaints were lodged by anyone in the community, business was not interrupted, nor were an officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was not an unreasonable or excessive noise.

That's the Fourth Amendment violation -- depriving the passing driver of his freedom with a completely bogus arrest. Then there's the First Amendment violation. Thurairajah claimed the arrest was a retaliatory response to his protected, two-word criticism of Trooper Cross. The court agrees.

First, Thurairajah’s profane shout was protected activity. See, e.g., Cohen v. California, 403 U.S. 15, 25 (1971) (holding where defendant walked through courthouse corridor wearing jacket bearing the words “F**k the Draft” in place where women and children were present and no showed no intent to incite disobedience to or disrupt the draft, state lacked power to punish defendant for underlying content of message the inscription conveyed). Second, Trooper Cross’s arrest was an action that would chill continued activity by a person of ordinary firmness. As we recognized in Hoyland, “there can be little doubt that being arrested for exercising the right to free speech would chill a person of ordinary firmness from exercising that right in the future.” And, according to a fair reading of Trooper Cross’s affidavit, the arrest was motivated, at least in part, by the content of the shout. Finally, as discussed above, Cross had neither probable cause nor arguable probable cause to arrest Thurairajah.

That's all four prongs of the free speech retaliation test. And there's no squeaking out of this, thanks to limited case law. Both rights were clearly established at the point Trooper Cross decided to terminate a traffic stop and arrest a passing driver for his drive-by f-bomb. Cross is headed back to the lower court to face the consequences of his stupid, retaliatory actions.

Filed Under: 1st amendment, 8th circuit, eric thurairajah, free speech, lagarian cross, police, retaliatory arrest

Released Warrant Shows SFPD Started Monitoring Journalist's Phone Weeks Before Officers Raided His Home

from the internal-investigations-weird-rn dept

More details have surfaced about the San Francisco Police Department's search of journalist Bryan Carmody's residence. The affidavits for the search of his house remain under seal, but the SFPD's police chief has already admitted these "lacked clarity." This strongly suggests the affidavits didn't mention Carmody's profession to avoid having them rejected for violating California's journalist shield law.

Some of this civil liberties-punching paperwork has been released. And it shows the SFPD spent several weeks monitoring Carmody's communications before deciding to bring the rights violations to his doorstep.

San Francisco police obtained a warrant to search a freelance journalist’s phone records and were authorized to “conduct remote monitoring” on the phone more than two months before a controversial raid on his home and office, according to documents released Friday.

Officers executed the warrant on Bryan Carmody’s phone records on March 1 — the first of seven search warrants obtained in the investigation into who leaked him a report on the Feb. 22 death of Public Defender Jeff Adachi.

There's no extended affidavit attached to the warrant [PDF], but the short description of the investigation makes no mention of Bryan Carmody's line of work. All it does is claim Carmody is suspected to be involved in the theft of the leaked police report detailing public defender Jeff Adachi's death.

Nature of investigation: Mr. Carmody is being investigated as a co-conspirator in the theft of the San Francisco Police report, involving the death investigation of Jeff Adachi. The criminal investigation focuses on the conspiracy to commit a crime, the theft of a police report, and the willful obstruction of justice.

This part of the warrant says the SFPD is only seeking phone records spanning two days in February. But on the next page, the court authorizes ongoing "remote monitoring" of Carmody's phone "until the conclusion of the investigation." This includes signals produced in "locations not open to the public or visual surveillance."

This warrant wasn't handed to the SF Chronicle by the court or the SFPD, but rather by Bryan Carmody, who was finally notified of this particular search three months after it happened.

The warrant also shows the SFPD had Carmody in its sights long before most of the public was aware he was the source of the leaked death report obtained by other reporters. As the Chronicle's article points out, the first public statement on Carmody's involvement came during a Board of Supervisors meeting in April in which the city's public defender's office revealed this information. The phone monitoring warrant was granted on March 1st, only days after news stations published the leaked document.

Every new development makes the SFPD look worse. The department may not be making the hole any deeper at this point, but its prior groundwork has proven to have created a far deeper hole than early estimates indicated.

Filed Under: 1st amendment, 4th amendment, bryan carmody, free speech, raids, sfpd, warrant

Supreme Court OKs Retaliatory Arrests For Engaging In Protected Speech

from the a-police-state-is-a-team-effort dept

The Supreme Court has declared it's cool with cops engaging in retaliatory arrests… just as long as they have the probable cause to do so. Given the thousands of obscure laws we've been cursed with by legislators, most law enforcement officers will be able to find some way to shut up someone by putting them in cuffs. (Whatever they're wrong about can be salvaged by the good faith exception.)

In this case, plaintiff Russell Bartlett was arrested after not talking to police and telling other winter festival attendees to not talk to the police. The officer who arrested Bartlett claimed Bartlett was drunk and disorderly, hence the supposedly-justified arrest. Here's the background, as summarized in the Supreme Court's opinion [PDF]:

Respondent Russell Bartlett was arrested by police officers Luis Nieves and Bryce Weight for disorderly conduct and resisting arrest during “Arctic Man,” a raucous winter sports festival held in a remote part of Alaska. According to Sergeant Nieves, he was speaking with a group of attendees when a seemingly intoxicated Bartlett started shouting at them not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account, claiming that he was not drunk at that time and did not yell at Nieves. Minutes later, Trooper Weight says, Bartlett approached him in an aggressive manner while he was questioning a minor, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. When Bartlett stepped toward Weight, the officer pushed him back. Nieves saw the confrontation and initiated an arrest. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive and claims that he was slow to comply because of a back injury. After he was handcuffed, Bartlett claims that Nieves said “bet you wish you would have talked to me now.”

In effect, Trooper Nieves was arresting Bartlett for talking about not talking to the police and, I guess, for not talking to Nieves when Bartlett was telling festival attendees to not talk to Trooper Nieves. Trooper Weight is a boxing tier I'm not familiar with.

The Ninth Circuit Appeals Court agreed with Bartlett, finding that probable cause does not excuse retaliatory arrests. The government protested, stating the opposite. Unfortunately, the Supreme Court agrees with the government insistence that retaliatory arrests are excusable with probable cause. In addition, it says that plaintiffs in these cases bear the burden of proving other people haven't been arrested if they plan to make assertions about a law enforcement officer's actions.

Because States today permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations—whereas such arrests were privileged only in limited circumstances when §1983 was adopted—a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. An unyielding requirement to show the absence of probable cause in such cases could pose “a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Lozman, 585 U. S., at ___. Thus, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.

So… bring data, I guess.

There's a whole lot more to this opinion than the majority's. There's plenty of dissent. Justice Gorsuch both concurs and dissents, but gets right to the point when it comes to the legal ramifications of this ruling.

Mr. Bartlett contends that the officers’ retaliation against his First Amendment protected speech entitles him to damages under 42 U. S. C. §1983. For their part, the troopers insist that the fact they had probable cause to arrest Mr. Bartlett for some crime, or really any crime, should be enough to shield them from liability.

That is what the government argued. And that's exactly what was granted: literally any arrestable offense trumps citizens' First Amendment protections. This works out all too well for the government.

As Frank Zappa said, "The United States is a nation of laws, badly written and randomly enforced." Here's how Gorsuch puts it:

Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. And for good reason. History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

Gorsuch goes on to point out the statute governing lawsuits like these (§1983) -- civil suits alleging violations of rights by government employees -- says nothing about probable cause. All it says is that civil servants can be held personally liable for depriving citizens of "any rights, privileges, or immunities secured by the Constitution." Certainly, probable cause for an arrest might defeat Fourth Amendment claims since that's why there's a probable cause requirement for arrests in the first place, but it shouldn't be enough to instantly defeat claims of First Amendment retaliation. Applying this probable cause tests allows officers to get away with something they shouldn't.

The point of this kind of claim isn’t to guard against officers who lack lawful authority to make an arrest. Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason.

Justice Ginsburg's partial dissent also says this country has too many laws that can be too easily abused to establish precedent that any old probable cause will do.

Given the array of laws proscribing, e.g., breach of the peace, disorderly conduct, obstructing public ways, failure to comply with a peace officer’s instruction, and loitering, police may justify an arrest as based on probable cause when the arrest was in fact prompted by a retaliatory motive. If failure to show lack of probable cause defeats an action under 42 U. S. C. §1983, only entirely baseless arrests will be checked.

Sotomayor's dissent aligns itself with Gorsuch and the majority's mysterious decision to rewrite §1983 on the fly to add probable cause to the long list of ways government employees can dodge being held responsible for rights violations. Had the court restrained itself to a narrow decision and not placed an additional evidentiary burden on plaintiffs, this might have been OK. But it didn't and in reaching this broader conclusion, it has opened the door for SCOTUS-sanctioned abuse.

Were it simply an unorthodox solution to an illusory problem, the standard announced today would be benign. But by rejecting direct evidence of unconstitutional motives in favor of more convoluted comparative proof, the majority’s standard proposes to ration First Amendment protection in an illogical manner. And those arbitrary legal results in turn will breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence—and, in some cases, openly and unabashedly. These are costs the Court should not tolerate.

The standard the court has erected demands plaintiffs to provide evidence they are unlikely to ever obtain.

[T]he majority suggests that comparison-based evidence is the sole gateway through the probable-cause barrier that it otherwise erects. Such evidence can be prohibitively difficult to come by in other selective-enforcement contexts, and it may be even harder for retaliatory arrest plaintiffs to muster. After all, while records of arrests and prosecutions can be hard to obtain, it will be harder still to identify arrests that never happened. And unlike race, gender, or other protected characteristics, speech is not typically sorted into statistical buckets that are susceptible of ready categorization and comparison.

The impossibility of meeting this evidentiary bar, along with the broader proclamation that probable cause beats the First Amendment in nearly every situation, pretty much dead-ends future retaliatory arrest lawsuits. Cops may not be the best students of the law, but they're pretty quick to pick up on legal declarations that excuse abuses of their power.

Whatever momentum has been gained by legal decisions supporting the right of citizens to film police officers has just been undercut. We've already seen years of bullshit arrests for filming cops. This decision says officers are free to continue violating First Amendment rights if there's any conceivable law someone might be breaking while engaging in "protected" speech. We have too many laws on the books to give law enforcement officers this much deference in enforcing them, especially when Constitutional rights are on the line.

Filed Under: 1st amendment, 4th amendment, neil gorsuch, probable cause, retaliatory arrests, russell bartlett, sonia sotomayor, supreme court