Senator Bill Hagerty Believes Compelled Speech Is 'Liberty'; And Anyone Upset With Moderation Choices Should Be Able To Sue

from the we've-always-been-at-war-with-eastasia,-senator dept

Senator Bill Hagerty was just elected out of Tennessee to take over Lamar Alexander's old seat, and he's kicking off his tenure with a bang... of not just unconstitutional madness, but anti-Constitutional madness. And this from a guy who presents himself as a Constitutional originalist. But, of course, when it comes to nurturing culture wars, today's GOP apparently believes that they can throw the Constitution out the window... as long as they (1) claim they're owning the libs, and (2) pretend that they're tearing up the Constitution to save the Constitution.

In this case, Hagerty has put out a piece in the Wall Street Journal -- which will publish any anti-Section 230 screed no matter how factually challenged -- to talk about a new bill he's preparing that would force social media sites to host any and all speech by getting rid of Section 230 and making websites common carriers. Yes, Senator Hagerty is calling for compelled speech, and even more obnoxiously, he's doing it by claiming it is about "protecting liberty." The article is ridiculously entitled: Goodbye Section 230, Hello Liberty, though a more accurate title would be "Clueless Senator Wants To Take Away Internet Freedom."

Let's dig in.

For too long Americans have watched Big Tech trample on the principles of the First Amendment—free speech, freedom of thought and belief, free assembly and the open exchange of ideas. As more information is filtered through online platforms, the First Amendment is becoming a dead letter. That’s why I’m taking action to hold these corporations accountable.

So much nonsense in just one paragraph. First off, the 1st Amendment protects against government intrusions into speech, and so it's literally impossible for "Big Tech" to "trample on the principles of the First Amendment" unless they're being compelled to do so by government actors. Second, nothing "big tech" does harms "free speech, freedom of thought and belief, free assembly and the open exchange of ideas." You can still do that all over the internet. You just can't force one particular site to host your nonsense if they feel it violates their policies.

Republicans like Hagerty used to talk up the importance of private property rights, but apparently that goes out the window when Facebook decides it doesn't want Nazis and conspiracy theorists on its property any more.

Finally, "hold these corporations accountable" for what, exactly? They have every right to run their own private property the way they want to. They cannot be compelled to host speech they do not feel they wish to host.

Today, I’m introducing the 21st Century Foundation for the Right to Express and Engage in Speech Act (or the 21st Century FREE Speech Act), which would restore the Bill of Rights—rather than the whims of big companies—as the guide for what Americans can say or hear in today’s public square.

Amusingly, in searching for the actual text of this bill, I initially couldn't find anything. I could only find (1) this WSJ op-ed, and (2) Bill Hagerty promoting the bill on... Twitter and Facebook, two of the "big tech" platforms he complains are censoring his speech. Eventually I found a copy of the bill not on the government website where it should be posted, but on Scribd... yet another private social media company. I've uploaded a copy to Document Cloud for easier access.

However, for someone who has a law degree (does Vanderbilt offer refunds?), he sure seems confused about the Bill of Rights. The Bill of Rights protects against government intrusion of our rights -- and that includes the right not to have the government compel speech. This bill is not about "restoring the Bill of Rights" it's about violating it. Companies have always had the right to determine what speech is on their platform. It's why the NY Times won't ever publish my op-ed about how "Bill Hagerty Is A Bad Senator Who Hates The Bill of Rights."

The modern public square is dominated by ubiquitous platforms facing little meaningful competition. Instead of being accountable to consumers or voters, the companies that dominate communication today use opaque, inconsistent practices to control the information Americans get to see and discuss. As Justice Clarence Thomas noted in a recent Supreme Court opinion, common carriers—such as trains or phone networks, which are essential to everyday goings-on, connecting people and information—have historically been subject “to special regulations, including a general requirement to serve all comers” without discrimination. The same logic should apply today to Big Tech.

Each paragraph seems to stuff itself with more wrong than the previous one. First of all, if the issue is "little meaningful competition," then the answer should be to focus on increasing competition, not putting on even more regulations that would lock in today's largest players. But, of course, even the idea that they face "little meaningful competition" is laughable. As you start looking at just how many players there are in the realm of today's "public square," you've got Facebook (including Instagram and WhatsApp), YouTube, Twitter, Snapchat, Reddit, TikTok, Discord, Clubhouse, Medium, Substack, Imgur, Vimeo, DailyMotion and many, many more. And if none of those work for you, you can set up your own blog or your own website. Just the fact that in the past couple of years TikTok, Clubhouse, Zoom, Discord, and Substack and a bunch of others have all basically come out of nowhere and built up a huge audience certainly suggests that there remains plenty of openings for competition.

We've already responded to Clarence Thomas's bizarre unbriefed musings, but let's dig in a little deeper on this whole "common carrier" idea. The nature of common carriers is entirely different from the nature of social media. Common carriers tend to be (1) commodity style services (such that replacing one with another leads to basically the same service) that (2) transport goods/people/information from one place to another. Neither condition applies to social media. Every social media site is different from one another, and you can't just swap out one for the other. It's not a commodity style service. Indeed, since social media is about community, each site takes a different approach to try to attract the community they want. They're not offering up a utility style service. Second, they are (for the most part!) hosting content, rather than just transmitting it from one location to the other. If you're transmitting, then the arguments for common carrier regulations are stronger, but if you're hosting, it just doesn't make any sense.

Finally, I'm going to go out on a limb here and say that Bill Haggerty opposes net neutrality (these days, basically all Republicans do). Yet, with net neutrality (involving commodity services and data transport) there is a much stronger common carrier argument. So it's bizarre to see him suggesting this here where it does not make any sense. Indeed, in looking at the text of the actual bill, it explicitly excludes broadband providers! So, this just doubles down on how full of shit this bill is. It tries to impose common carrier obligations on those who don't meet the definition, but explicitly excludes the companies that do meet the definition and which are significantly less competitive than social media!

Unfortunately, our laws haven't kept pace with this technological reality. The statutes governing free speech and the free exchange of ideas online haven't been updated in a quarter-century. Since it was passed in 1996, Section 230 has been stretched from its original intent—the promotion of the free exchange of ideas online—into a license for companies like Facebook and Twitter to censor.

Again, the exact intent of 230, as explained multiple times by its co-authors, including Republican Chris Cox, was to encourage companies to actively moderate their websites to create family friendly communities. Hell, the bill itself was in response to the Prodigy ruling, in which a judge said that by doing any moderation, the "family friendly" Prodigy became liable for any content that was left up. Cox worried that this would fill the internet with garbage, and make it unusable by children, because websites would avoid any moderation. So, the paragraph above is just wrong historically.

In recent months, these platforms have effectively smothered newspaper stories that they found inconvenient for their loudest users’ preferred candidates.

This is not true. (1) They did not "smother" those newspaper stories, and the actions taken by the platforms got those stories much more attention. (2) The reasons those stories were stopped from sharing was due to legitimate concerns that they violated platform policies -- and had nothing to do with any "preferred candidate."

Big Tech companies have silenced mainstream American political figures, while leaving up Iran’s Supreme Leader Ali Khamenei’s account, even as he tweets hateful things, including calls to “eliminate Israel” and discussions of how to do so. These platforms have censored and editorialized with blatant political bias—writing progressive ideology into their content policies or scrubbing dissent against Covid lockdowns off their sites. Moderate and conservative viral content is suppressed. Twitter blocked the account of the New York Post over its reporting on Hunter Biden, while Amazon removed from its streaming service an acclaimed documentary on Justice Thomas during Black History Month. Implicit in these censorship practices is an apparent belief that Big Tech has the right to shape what Americans can learn and believe—a totalitarian concept that runs contrary to U.S. values.

There's a lot of selective cherry-picking in here that ignores tons of stories on the other side. It ignores the times the platforms have bent over backwards to give online trolls and rabble rousers extra space to avoid being called out for "bias." It ignores all the times the platforms have taken down people for other policy violations. And it reframes every one of these stories to avoid explaining why the content and users in question violated long standing policies that the platforms had in place for useful reasons.

My bill would (1) abolish Section 230, (2) treat Big Tech—defined as any interactive computer service platform with more than 100 million active monthly users world-wide—like a common carrier that must provide reasonable, nondiscriminatory access to all consumers, and (3) prohibit political censorship by Big Tech.

(1) Would lock in the power of big tech by making it nearly impossible for newcomers to be able to withstand the legal liability of hosting 3rd party content -- which would directly undermine Hagerty's own claims of how the real problem is a lack of competition. (2) Would, again, lock in those big providers and guarantee that those sites become unusable as they would fill sites with spam, hate, harassment, bigotry, porn, and more. (3) Would violate the 1st Amendment.

Other than that, Senator, have you got any other stupid ideas?

In addition to not discriminating against political opinions their employees personally dislike, social-media companies should be required to provide basic consumer transparency regarding their products, given that many Americans rely on them for news and information. The 21st Century FREE Speech Act would require platforms to disclose their content management and moderation practices to users, so that consumers can understand and better manage the information they receive.

Every one of these websites already has publicly accessible user policies and releases transparency reports. But if being a website that Americans "rely on for news and information" is the characteristic here -- will this bill also require that Fox News release a transparency report regarding how it chooses which stories and which guests to put on air? Or nah?

The 21st Century FREE Speech Act would abolish Section 230 in favor of a liability protection framework that marries that section’s original intent with the practical implications of the enormous technological change that has ensued over the past 25 years. Liability protection would remain in place for third-party speech and family-friendly moderation of specifically defined obscene or lewd content, without providing limitless special protection for platforms’ own speech and viewpoint censorship. This legislation provides the liability protection necessary to spur continued innovation, without giving companies carte blanche to censor speech on political, religious, or other grounds.

Oh, I see. You're creating a policy that treats different speech differently. Which is pretty clearly not allowed under the 1st Amendment. You must have learned about it at law school.

Ultimately, the 21st Century FREE Speech Act is about promoting free speech, thought and exchange of ideas.

Compelling speech -- including abuse, hate, and harassment -- is the opposite of promoting free speech.

As Justice Oliver Wendell Holmes Jr. , put it in a 1919 Supreme Court opinion concerning the censorship issue of his day, the prosecution of printers of an anti-U.S. leaflet during World War I: “The theory of our Constitution” is that “the ultimate good desired is better reached by free trade in ideas” and “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

And yet, your bill would kill off this market, and refuse to allow private companies to create spaces where speakers feel free to say what they want.

This freedom to think, discuss and determine one’s own beliefs is the foundation of American liberty and opportunity. Washington can’t allow Twitter and Facebook to eliminate these freedoms. We owe it to our children and grandchildren to ensure they are preserved.

And this bill does the opposite of that. We also owe our children and grandchildren not to have Congress mock the 1st Amendment with bills like yours.

As for the actual bill, it's even dumber than I expected. It limits moderation protections to a very narrow class of content, and then puts ridiculous (easily unconstitutional) limits on those. It says you can only moderate "obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, or unlawful" content. At first, I thought this meant that all spam must be allowed, but in the clarifications, the bill notes that spam can be moderated as "harassing" content... which is bizarre.

The bill also includes a ridiculous private right of action, that would allow any user to sue any website if the person is "aggrieved" by a moderation choice, and can ask a court to get an injunction, barring the moderation decision and award $500. Holy shit. Every single website would immediately shut down their comments (including ours). This is wildly unconstitutional. For all of Hagerty's high and mighty talk about the 1st Amendment, this is a massive infringement upon the 1st Amendment rights of anyone operating a website (not to mention their own private property rights).

There have been so many bad and unconstitutional attempts to change and reform 230, but this one is just completely disconnected from reality. The people of Tennessee deserve better. Elect better Senators, people.

Filed Under: 1st amendment, bill hagerty, common carriers, compelled speech, content moderation, free speech, net neutrality, private property, section 230

ICE Performs Warrantless Raid Of Private Farm; Draws Heat From State And Federal Officials

from the 'rule-of-law,'-my-ass dept

A recent ICE raid of a New York farm made national headlines thanks to the agency's apparent disregard for the Fourth Amendment, among other things. The show of force, coupled with the lack of Constitutional compliance, presented ICE as ruthless enforcers of the law. But there's not much respect for the "rule of law" contained in these actions, no matter how the current administration -- with its emphasis on expelling foreigners from the US -- presents itself.

John Collins was standing outside the milk house at his dairy farm this morning when he heard yelling coming from inside. He ran in, he says, and saw his worker, Marcial de Leon Aguilar, pinned up against the window by armed men.

The men did not identify themselves and were screaming at Aguilar, Collins said.

"I run and say, 'What the hell is going on in here?'" Collins said.

Then the men told Collins they were officers with Immigration and Customs Enforcement. He asked them for a warrant or some paperwork to explain what they were doing. They had none, he said, so he ordered them to get off his property and leave Aguilar alone.

As this happened, Collins said, Aguilar's children watched. They were waiting nearby for the school bus to come. Collins said the officers put Aguilar in handcuffs and took him across the rural road to their vehicles. At least seven officers had come onto the small farm, Collins said.

This resulted in immediate backlash from prominent New York government officials. Governor Andrew Cuomo sent an angry letter [PDF] to the agency chastising it for its apparent refusal to respect Constitutional protections.

Your agency's aggressive claims of upholding the rule of law belie the fact that the pattern of conduct and blatant constitutional violations committed by both agents in the field and regional leadership actually reflect a readiness to sink to lawlessness.

[...]

The persistent failure of your agents to properly identify themselves or produce required documentation to conduct lawful searches and arrests is illegal and creates significant risk of harm to all New Yorkers, including law enforcement who have also been left unaware of your activities within the communities they are entrusted to protect.

NY Senator Kirsten Gillibrand followed the governor's letter with a demand for a federal investigation.

Unbelievably, ICE thinks its actions -- a warrantless raid conducted on private property -- are Constitutional.

Agents were within their rights to be on the farm and did not need a warrant, ICE spokesperson Khaalid Walls told [Vice Media's Eoin Higgins] in an email. The agency said that its actions were justified because de Leon-Aguilar's wife Virginia, who is enrolled in the Alternatives to Detention program, which allows her to stay out of immigration detention while she goes through immigration court proceedings, had missed a number of appointments.

"After having missed several scheduled reporting dates," said Walls, "the resident was deemed to be out of compliance with the terms of the program, necessitating a home visit, which does not require a judicial warrant."

This is wrong. First of all, the raided farm was private property. Even if a home visit was in order, the home resided on property owned by someone else. This wasn't a rental property with only a door separating residents from the outside world. And this was no "home visit." The plainclothes ICE officers showed up, trespassed on private property, and effected an arrest. No permission to enter was sought and no warrant was presented.

ICE can't honestly say it doesn't need warrants to perform these actions. Its own training manual (published by Unicorn Riot) stresses the need for warrants. Searches still require warrants, even if they're looking for illegal activity. ICE can search businesses for illegal workers, but it still needs "Blackie's" warrants (named after a 1981 case brought against the INS), which allow the government to search for people, rather than property. There is no known warrant exception to intrude on private land to search for illegal workers. ICE may feel the Alternatives to Detention program gives it the right to search homes occupied by members of the program (and it does), but when the home resides on property owned by a US citizen, the barrier to entry remains a search warrant. The immigrant arrested in this case had proper documentation to work and resided in a house owned by John Collins on the Collins' property. To reach the house, ICE had to enter private property owned by someone ICE had zero interest in: a legal resident and American citizen.

The lawsuit that's certain to follow this intrusion will sort out the Constitutionality of ICE's actions. At this point, they appear completely unconstitutional, but qualified immunity and the good faith exception may allow the agency to escape liability for the actions of its officers.

Filed Under: 4th amendment, andrew cuomo, ice, immigration, john collins, kirsten gillibrand, marcial de leon aguilar, new york, private property, warrants

School Suspends Students For Playing With Airsoft Guns In Their Own Yard

from the a-new-high-in-low dept

How did we get to the point where activities conducted on someone's private property can somehow fall under the jurisdiction of a public school? The short version is this: concerns about actual criminal activity on school grounds led to tighter controls being built into policies. A few school shootings upped the ante and provoked disproportionate reactions from several legislators. And just in case no one felt the new weapon and violence policies erected to prevent the unpreventable weren't being taken seriously enough, the government "helpfully" tied these new rules to federal funding.

"Playing it safe" just isn't good enough anymore. Every administrator is compelled to err on the (uber-ridiculous) side of caution because to do otherwise might result in angry parents, or worse, the loss of federal funding. Anything that bears a slight resemblance to a gun is treated as the real thing -- a weapon powerful enough to kill someone -- even if that "weapon" is a Pop Tart, four fingers and a thumb or drawn on a piece of paper.

The illogical extremes seen in these earlier incidents has been surpassed by Larkspur Middle School of the Virginia Beach School District. Apparently, you don't even have to bring your "weapon" onto school property to be suspended for "possession, handling and use of an Airsoft gun."

Three Virginia Beach seventh graders learned their fates Tuesday morning when they were suspended for shooting airsoft guns on private property.

During a hearing with a disciplinary committee Tuesday morning, Aidan Clark, Khalid Caraballo and a third friend were given long-term suspensions in a unanimous vote. The suspensions will last until June, but a hearing will be held January 27 to determine if they will be allowed back in school sooner.

Here's a little backstory:

Like thousands of others in Hampton Roads, Caraballo and Clark play with airsoft guns. The boys were suspended because they shot two other friends who were with them while playing with the guns as they waited for the school bus September 12.

The two seventh graders say they never went to the bus stop with the guns; they fired the airsoft guns while on Caraballo's private property.

The bus stop in question is 70 yards away. Three days before the above incident (Sep. 9), a parent of one these students' friends placed a 911 call to report her concern about Caraballo's use of a fake gun on his own property.

A neighbor saw Khalid shooting the airsoft gun in his front yard. She told the dispatcher, "He is pointing the gun, and it looks like there's a target in a tree in his front yard". [The "target" the caller referred to is an actual target that comes with the Airsoft gun -- not a "target" as in "the person being shot at."]

The caller also knew the gun wasn't real and said so, "This is not a real one, but it makes people uncomfortable. I know that it makes me (uncomfortable), as a mom, to see a boy pointing a gun," she told the 911 dispatcher.

Issue #1: Who the fuck calls 911 to report being "uncomfortable?" Everyone knows, even children, that 911 is for emergencies only and not for reporting that you strongly feel a neighbor's kid shouldn't be playing with a fake gun on his own property. What's even worse about this busy-bodied, overweening "concern" is that her personal Neighborhood Watch & Comfortability Patrol didn't even keep her own child from playing with the (fake) gun-toting neighbor neighbors.

Ironically, that 911 caller's son was playing with Khalid and Aidan in the Caraballo front yard on September 12. There were six children playing in an airsoft gun war. "We see the bus come. We put the gun down. We did not take the airsoft gun to the bus stop. We did not take the gun to school," Khalid explained.

Aidan admits shooting the caller's son in the arm, and Khalid admits shooting another friend in the back.   "He knew we had the airsoft gun. He knew we were playing. He knew people were getting shot. We were shooting at the tree, but he still came and even after he was shot he still played," referring to the son of the 911 caller.

This 911 caller seems better suited to parenting other people's children, seeing as her son wandered into the "war zone" unattended.

Despite her call to 911, the police department found there was nothing much to get excited about, according to this statement from Virginia Beach police sergeant Adam Bernstein:

We understand that a number of juveniles possess air soft guns and have “airsoft gun” wars with each other, but as it relates to the city code referenced above, they are in violation of the code if the juveniles are not exercising “reasonable care”. Also keep in mind that this is not something that we proactively seek out to enforce. If we receive a complaint (such as in the case for which you are doing the story on), we will investigate the call for service and enforce it appropriately, i.e. warning or prosecution…

However, a few days later (Sep. 12), a "passing motorist" called the police to report a child with a gun chasing another child down the street "near a Larkspur bus stop." This call confirms that at least one of the students (Khalid Caraballo) did not leave his yard while playing with his airsoft gun.

" ... the white child appeared to have a gun, and he was chasing the other child ... when he saw me he kind of stuck it in his pants. I don't know if it was a toy or if they were playing," said the 911 caller in the Sept. 12 call.

The caller was speaking about 12-year-old Aidan Clark, who admits he ran off Caraballo's property into the street in front of Khalid's house.

"I ran and chased him. I aimed to shoot, and I saw a car on the right," Clark said.

"He looked directly at me and the black child kept on running," the 911 caller said.

Aidan was chasing a third child, who is African American and who was also suspended. Aidan says Khalid never left his property and none of the boys shot the guns while in the street.

Despite this being clearly out of its jurisdiction, the administration at Larkspur Middle School leapt into action, according to a letter sent to parents by principal Matthew Delaney.

In the course of the investigation, conducted in concert with a police officer and the school division Office of Safety and Loss Control, we identified the children who were firing pellet guns at each other and at people near the bus stop. Several students verified that they had been hit by pellets and had the marks to support their claims. In one instance, a child was only 10 feet from the bus stop and ran from the shots being fired but was still hit. Another student claimed to be shot in the back while running away during a previous incident Wednesday, Sept. 11. This child was also shot in the arm and head during Thursday’s incident. I contacted the school division’s Office of Student Leadership and School Board Legal Counsel for guidance. Because students were on their way to or at a school bus stop when they were struck by pellets, the school division has jurisdiction to take disciplinary actions against those students responsible for the disruption. There is an expectation that all students should be able to travel to and from school in the safest environment possible.

This statement leaves out a whole lot of details and relies heavily on Delaney's punishment-n-seriousness depiction of the events. According to the students, they were playing together. Delaney's wording makes it appear as though students were ambushed on their way to school. Either if they were, what happens outside of school isn't the school's jurisdiction, no matter what the legal counsel for the school board thinks. A school cannot assure that children are able to travel back and forth to school safely. The only environment it can even possibly control is the school bus.

Is the school actually taking the position that it's responsible for students' safe transit at any point between school and home? If so, then every parent whose kid is injured in any way while walking or biking to school has a valid claim against the school. That surely can't be what Delaney or his legal counsel want.

This should have been left where it was originally -- with the police if they felt like following up on the situation. The public streets are theirs to police. If it happened entirely in someone's yard, this should have been left up to the parents/property owners. Instead, administration decided to extend its territory solely for the purpose of enforcing its own stupid policies.

More from Delaney:

As the principal of Larkspur Middle School, I am responsible for the safety of students and will take all appropriate actions to ensure that the students using the pellet guns are appropriately disciplined and held responsible for their conduct. It is my sincere hope that they will learn important life lessons; the most important being that there will be consequences when they do things that can result in harm to another person.

This isn't the lesson you're teaching, Mark. You're teaching that every action a students takes, whether truly harmful or not, has the possibility of being severely punished by self-appointed, state-sponsored "saviors" like yourself, people who think nothing of damaging children's futures in order to assert and extend their authority.

Khalid and two other students have been suspended for possibly an entire year for shooting pellets at other students -- students that may have been actively and voluntarily playing with the suspended "shooters." Does adding a damaging long-term suspension to their transcripts seems like a fair tradeoff for some ultimately harmless pellet gunplay that occurred entirely off-campus (and on private property)? If so, your sense of proportion is severely out of whack, Mark.

Even more:

This was a dangerous situation that involved the intervention of law enforcement, the Office of Safety and Loss Control and our school administration.

Bullshit, Matthew. You're lying. Nothing was "dangerous." No one "intervened." Someone reported something to the police who reported it to you. The incident was over. It occurred before school, off school grounds and was entirely over by the time you decided to teach these students some "life lessons." This is you adding some spin in order to make it sound as though you've somehow averted a future tragedy with your swift, harsh overreaction. But the only thing you've done is shown everyone that you have no fear of extending your reach and expanding your jurisdiction.

The school board has issued a statement backing Principal Delaney's decision while going out of its way to take a swing at the press and detail Khalid Caraballo's disciplinary record (and has been "helpfully" provided in jpeg format).

We live and work in an era when school safety is foremost in everyone's mind. Yet somehow student safety has taken a back seat in the intense media coverage of this case. This is not an example of a public educator overreaching. This was not zero tolerance at all. This was a measured response to a student safety threat. A school principal took firm steps to ensure weapons didn't make their way into his school and that children didn't have to endure being shot at with a pellet gun as they walked to their bus stop...

All of that might be considered to be true if the final decision from the school board didn't state that the students were being suspended for "possession, handling and use of an Airsoft gun" -- something that did not occur on school property. So, it was definitely overreach, and the possibility of being suspended for an entire year for something that occurred outside of school sure sounds like an overreaction.

The school board's letter continues, detailing Khalid Caraballo's disciplinary record (which includes "increasingly aggressive behavior including harassment, bullying and fighting that resulted in injuries") in order to justify its decision to claim public streets and private yards as its jurisdiction. While this lends more credence to the suggestion that these kids were ambushing students on their way to the bus stop, it doesn't change the fact that the location where these events occurred is the jurisdiction of local law enforcement -- and ultimately, a problem to be handled by the police and parents of the children.

Daniel Edwards, chairman of the school board, states that he can discuss Caraballo's previous discipline problems because his parents signed a waiver. (None of the other students are mentioned by name in this report.) But his parents maintain they never gave him the permission to do so.

His parents told 10 On Your Side they are upset by that and said they signed a waiver for the school system to talk to WAVY about the airsoft incident only.

Edwards wraps up the letter by bemoaning the press and its "sensational" coverage of the incident.

Thankfully, no one was seriously hurt in this latest incident, but they could have been. Had a child been injured either by a weapon or as a result of fleeing the scene, the school may have been the subject of a different kind of news story; one that included accusations of turning a blind eye toward student safety. We hope that people will look beyond the sensational media reports and recognize that fact.

If you think you're going to be roasted no matter what decision you make, maybe you should make fewer lousy decisions. Kicking these students out of school doesn't change the fact that they live close to the bus stop and could easily return to attacking other students (if that's what actually happened). All this decision has done is made these three kids "not your problem," at least not until next January. And all that means is they're right back where they started -- in public streets and private property -- not your problem. If the media chooses to excoriate you because someone got injured on private property or public walkways, that says more about the media than anything else. But their overreaction doesn't justify one of your own.

Filed Under: overreaction, private property, schools, suspension

Why Trader Joe's Suing Pirate Joe's May Be Bad News For Ownership

from the secondary-markets-are-important dept

If you live near a Trader Joe's, you're probably well aware of the cult-like following these stores have. Hell, I'll admit that probably 50% of the stuff in our pantry comes from Trader Joe's and I could probably drive to either of the two near my house (we're almost exactly halfway between them) blindfolded. But now it looks like Trader Joe's is being something of a trademark bully, suing the interestingly named "Pirate Joe's" store in Vancouver, British Columbia. There are no Trader Joe's stores in Canada, and entrepreneur Michael Hallatt realized that this was a market opportunity. He regularly drives across the border, fills up his panel truck with goodies from Trader Joe's in the US, drives back across the border and sells it at a decent markup in his shop. He suggests he's spent somewhere around $350,000 at Trader Joe's over the past two years, making him one of their best customers (and possibly their best overall customer). And they sued him, claiming trademark infringement.

Now, some are reacting emotionally to this, like Laura Heller from Forbes, who comes down on the side of Trader Joe's, but mainly because it's an emotional reaction. For example, part of the reason why she supports Trader Joe's is because of this:

And finally, there’s the problem of pirated goods in general. Luxury brands regularly police pirated goods and employ legal tactics to stem the tide of faux or illegally obtained goods. Comparing cookie butter to Louis Vuitton may seem silly, but it’s the company’s currency and carries value in the marketplace.

Except these aren't pirated goods. They're not counterfeits. They're legally purchased and resold. And that's legal. When you buy something, it means you own it, and you're supposed to be able to resell it on the secondary market. That's actually a rather important part of our economy.

Thankfully, it appears that many legal experts have been pointing out that Trader Joe's has no case. The SF Gate article linked above quotes a trademark lawyer who doesn't see much of a case for TJs:

"I don't think Trader Joe's really has a chance, suing here in the U.S.," said lawyer Greg Owen, a trademark, copyright and unfair competition expert with Owen, Wickersham & Erickson, an intellectual property firm in San Francisco.

If Trader Joe's had sued in Canada, or if Pirate Joe's were operating in the United States, the claim might be more viable, said Owen, who reviewed the lawsuit and motion to dismiss. He added, however, that the first-sale doctrine, which Hallatt is fond of citing and which lets people resell what they've bought, is more nebulous when perishable items are involved.

"On the flip side, Trader Joe's is certainly benefiting from Hallatt purchasing the products," Owen said. "They're making money off him."

Similarly, lawyer William Peacock, writing over at Findlaw explains why TJs has little chance of succeeding based on both venue (suing in the US) and the fact that you can resell what you've purchased. But, Peacock, like Owen, wonders why TJs would ever go after such a good customer:

The case presents a number of interesting questions, but here is the most important one: what is Trader Joe's problem? Hallatt buys their products at retail cost and sells them in a market that they haven't yet entered. They benefit financially from the arrangement. And if they do expand across the border, their normal retail prices, which are lower than his re-retail prices, would drive him out of business in a Vancouver minute.

Finally, law professors Kal Raustiala and Chris Sprigman, over at Freakonomics, have pointed out not just how ridiculous this lawsuit is, but how it could have a real impact on personal freedoms in terms of private property and the right to resell what you've purchased:

If TJ’s has the right to stop PJ’s from reselling their products, then any trademark owner might assert a similar right. Ford could sue Carmax for reselling Fords. Prince (the sports gear company, not the musician) could sue Play It Again Sports for reselling Prince tennis racquets. And if this were true, a trademark law that is aimed at preventing consumer confusion will be preventing something else entirely – competition.

Frankly, it's a ridiculous lawsuit on all sorts of levels, and one hopes that the court recognizes the legal arguments, rather than the half-baked emotional ones. Trademark law is supposed to be about preventing consumer confusion, but there isn't any here. Pirate Joe's (amusingly changed to Irate Joe's after the lawsuit started) isn't trying to fool or confuse anyone. They're totally upfront about the situation. There's a demand in the Vancouver market, and Trader Joe's isn't serving it. So, Hallatt's got a truck and he's willing to use it to help both Trader Joe's sell more, and the people of Vancouver get Trader Joe's goods. Where's the problem?

Some have argued about the potential "health and safety" aspect, but it sounds like Hallatt mostly avoids perishables or heavily regulated products like alcohol (sorry, no Two Buck Chuck). And, as Raustiala and Sprigman note, local regulators can handle any health and safety regulations. Trader Joe's, in its filings, really tries to bend over backwards to claim some sort of sales "harm." It argues that people from Canada travel down to stores in the US to buy their products, but that's meaningless since Hallatt is doing the same thing, and opening them up to a wider market by including those who aren't willing to make the trip. TJ's response is that other shoppers who travel across the border are likely to buy more at TJs because (1) they have more selection and (2) they traveled across the border, so of course they'll buy more. No joke:

Furthermore, it is reasonable to infer that a Canadian customer making the trip to the United States is likely to make a bigger purchase of goods to make the trip worthwhile.

Under that argument, TJ's should make sure to put all of its stores as far away from where people live as possible. After all, don't they want the few people who make the trip to buy more to make it "worthwhile." Sometimes the arguments that lawyers come up with baffle me.

TJs also argues that if people have a bad experience with the food from Pirate Joe's they may blame Trader Joe's, but that seems unlikely and highly speculative on multiple levels. The products are still the same, they're just being sold on the other side of the border.

Anyway, you can read some of the back and forth in the legal filings we've pasted below. The biggest legal issue they're fighting over right now is the jurisdiction issue which (as mentioned above) also seems to favor Pirate Joe's pretty strongly. Suing in the US makes almost no sense, and the hoops that TJs has to jump through to make it work seem like a huge stretch. But, in the end, as everyone else is asking, this seems like a really dumb lawsuit on multiple levels, and if it somehow comes out in TJ's favor, in the long run, everyone loses out.

Filed Under: canada, first sale, michael hallatt, ownership, private property, property rights, reselling, trademark, us
Companies: pirate joe's, trader joe's

RIAA Law Lets Law Enforcement Ignore 4th Amendment, Search Private Property With No Warrants

from the the-infringement-police dept

One of my favorite historical stories that really demonstrates how a "legacy" industry can take regulatory capture to extreme lengths to protect their monopoly rights is the story of the French button-makers guild in 1666, as relayed by famed economic historian Robert Heilbroner:

The question has come up whether a guild master of the weaving industry should be allowed to try an innovation in his product. The verdict: 'If a cloth weaver intends to process a piece according to his own invention, he must not set it on the loom, but should obtain permission from the judges of the town to employ the number and length of threads that he desires, after the question has been considered by four of the oldest merchants and four of the oldest weavers of the guild.' One can imagine how many suggestions for change were tolerated.

Shortly after the matter of cloth weaving has been disposed of, the button makers guild raises a cry of outrage; the tailors are beginning to make buttons out of cloth, an unheard-of thing. The government, indignant that an innovation should threaten a settled industry, imposes a fine on the cloth-button makers. But the wardens of the button guild are not yet satisfied. They demand the right to search people's homes and wardrobes and fine and even arrest them on the streets if they are seen wearing these subversive goods."

It's not hard to see the RIAA or the MPAA in that description of the old guilds, and it seems like they're trying to take the comparison even further. As we covered back in May, the RIAA has been pushing really, really hard for California to pass a law that would allow for warrantless searches of private property, specifically of anyone involved in reproducing CDs or DVDs for "commercial" purposes. The RIAA was so cavalier about this, that a spokesperson even said: "I don't think the scope of the search is something a regulator needs to be worried about." In other words, no government oversight. Just go ahead and search private businesses.

This seemed to be so obviously against the 4th Amendment that it seemed ridiculous that anyone would seriously consider such a bill. So, of course, Governor Jerry Brown of California just signed it into law. The law decimates the 4th Amendment, and says that law enforcement has the right to search the premises of anyone making optical discs for commercial purposes, without any warning or warrant. Hell, even the state's own analysis of the bill warns that it's not sure that the bill "would stand up to constitutional scrutiny."

It's beginning to sound like the French button makers guild getting to enter your homes and closets to find those dreaded "non-compliant" buttons. It's getting so ridiculous that even those who are generally supporters of the RIAA/MPAA's positions are saying this bill goes way too far, noting that it grants way too much power to law enforcement (often at the urging of private industry) to go on "fishing expeditions" at companies they dislike. And let's not even get started on what kind of precedent it sets when you can so easily remove the Constitutional requirement for a warrant.

Filed Under: 4th amendment, private property, warrants
Companies: riaa