Georgia Sees Florida & Texas Social Media Laws Go Down In 1st Amendment Flames And Decides... 'Hey, We Should Do That Too'

from the oh-knock-it-off dept

Having seen both Florida and Texas have their "you can't moderate!" social media laws tossed out as unconstitutional (wasting a ton of taxpayer money in the process) you might think that other state legislatures would maybe pump the brakes on trying the same thing. No such luck. There are efforts underway in a bunch of states to pass similarly unconstitutional laws, including Utah, Indiana, Wisconsin, Ohio (not to mention states like New York pushing in the opposite extreme of requiring moderation). The latest to enter the fray is Georgia with its Common Carrier Non-Discrimination Act, with an astounding 24 ignorant co-sponsors who apparently hate the 1st Amendment.

The law is dead on arrival for a wide variety of reasons, but as you might have guessed from the name seeks to just randomly declare social media (and only social media) as "common carriers" and saying they can't "discriminate" (and by "discriminate" they mean, "take down content from Nazis.") The "declarations" on this bill are nonsense disconnected from reality.

Each person in this state has a fundamental interest in the free exchange of ideas and information, including, but not limited to, the freedom of others to share and receive ideas and information, regardless of their religious, political, or social beliefs or affiliations;

Yes, free speech means that you can say whatever you want, but it does not allow you to commandeer other's property to do so. Because if it does, I'm demanding that the Georgia General Assembly read each day's Techdirt posts into the official record every day. Otherwise, according to these silly, silly legislators, I'm being censored for my views.

As the Supreme Court of the United States has recognized, large social media platforms are the 'modern public squares'

Neat attempt to elide the context of that statement, which was about the state banning people from social media, and not at all about the state forcing social media not to take down spam, trolls, and abuse.

In offering their services to all and providing a basic service to our economic, political, and social lives, social media platforms function as common carriers, are affected with a public interest, and are central public forums for public debate;

Social media platforms with the largest number of users are common carriers by virtue of their market dominance;

Except they don't. Common carrier is not just a magic phrase you get to say as you wave a magic wand. It requires that the service actually be a common carrier -- which means providing commodity-like, interchangeable services to transport goods or data from place a to place b. That's not what social media does.

Anyway, the key clause in the bill is the part that says that social media sites, now declared to be common carriers, are not allowed to take down any content based on their beliefs or political affiliation, among other things.

(a) A common carrier shall not censor or discriminate against a user, a user's expression, or a user's ability to receive the expression of another person based on:

(1) The viewpoint of the user or another person;
(2) The viewpoint represented in the user's expression or another person's expression;
(3) A user's geographic location in this state or any part of this state; or
(4) The actual or perceived race, color, ethnicity, religion, religious beliefs, political beliefs, political affiliation, national origin, sex, gender, sexual orientation, or disability of a user or another person or of a class of users or a class of other persons.

So, under this standard, you cannot ban anyone for being a Nazi ("political affiliation") or for calling for jihad ("religious beliefs"). So that's just great.

Perhaps someone should point out that under this law, no social media website could "ban critical race theory." It would also make it impossible for Trump's new social network, TRUTH Social, to live up to its promise to make its site "family friendly."

Anyway, as if to demonstrate how this bill is exceedingly performative, and not serious at all, it looks like someone (probably a telco lobbyist) pointed out that under this bill, if it applied to broadband providers would create net neutrality. But for nonsense reasons, Republican politicians have decided that net neutrality is evil -- even though broadband providers actually do fit the traditional classifications as a common carrier, so the bill explicitly says it does not apply to broadband ISPs:

'Social media platform' means an internet website or application that is open to the public, allows a user to create an account, and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or images.

Such term does not include an:

(A) Internet service provider or provider of broadband services;

So, the things that are not common carriers are declared common carriers, and the things that are common carriers are declared not common carriers.

People of Georgia: stop electing ignorant buffoons.

At least it doesn't have a theme park exemption, I guess.

Filed Under: 1st amendment, common carrier, content moderation, florida, georgia, texas

Harrison Greenbaum Latest Trick: Having Paul Levy Respond To Criss Angel's Thuggish Legal Threat

from the don't-try-this-at-home dept

Last week, we wrote about how entertainer/magician Criss Angel sent a ridiculous threat letter to comedian/magician Harrison Greenbaum after Harrison created a parody website/menu gently mocking Criss Angel's bizarrely named restaurant, CABLP. Greenbaum had announced on Twitter that he wasn't going to stand for this kind of bullying, and apparently he made the very smart decision to have Public Citizen Litigation Group lawyer Paul Levy respond on his behalf. If you've been reading Techdirt for any length of time, you should probably know that if you're on the receiving end of a letter from Paul Levy, you've probably done something very dumb. But, damn, Paul's letters are just so entertaining -- you can just picture the grin on his face as he writes these. And I'm not going to mention all the puns/references to magic, because I'll let you spot them all on your own.

It opens up pretty much as you'd expect: this is the situation, your client sent a dumb letter demanding ridiculous things, and no, my client isn't going to cave to your demands:

I write in response to your January 3, 2022 demand letter on behalf of your clients, Christopher Nicholas Sarantakos, a/k/a/Criss Angel, and unidentified companies, contending that a parody menu created by Harrison Greenbaum and posted on the internet using the domain name CablpRestaurant.com infringed your clients’ copyright and trademark. Your demand letter insists that Greenbaum stop making fun of your client’s menu and that he transfer the domain name to certain unnamed clients that you promise to identify later. As I now explain, Greenbaum is completely within his rights under well-established precedent, both under the copyright and trademark laws and the First Amendment, and he is not going to take any of the steps that you demand.

Then a little background on the situation, with the little zinger of a link to a news article about how basically everyone is baffled by the name of Angel's restaurant:

First, the facts. Your individual client is, as your letter noted, a well-known magician; in addition, he has, apparently through the unidentified companies, opened a restaurant called Criss Angel Breakfast, Lunch and Pizza, using his professional name; they have chosen eatblp.com and cablp.com as the restaurant’s domain names (the latter points to the former). Greenbaum is a magician, but is also an established comedian and professional comedy writer. Greenbaum regularly satirizes the state of magic and other magicians; this year, your client was one of several magicians who received the homage of being featured in his comedy. As one part of this year’s jokes, Greenbaum made fun of your clients’ restaurant by creating a parody of the menu and posting it online using the domain name CablpRestaurant.com. The name of your clients’ restaurant had already been widely pilloried in the industry, see Schwartz, Is Criss Angel’s ‘Cablp’ the Worst Restaurant Name of All Time?, (May 20, 2021), https://www.vice.com/en/article/3aqdqj/is-criss-angels-cablp-the-worst-restaurant-name-of-all-time. Greenbaum’s approach was more lighthearted. Not one of the other targets of Greenbaum's jokes has ever threatened to sue over them.

Then there's the obligatory "lemme explain to you how parody works" part:

Your letter says that Greenbaum has “publicly admitted that [he] intentionally [is] infringing” and “admit[s] that [he] illegally registered” the domain name, but this sleight of hand will not deceive federal judges. Greenbaum has openly proclaimed the registration of the domain name and the publication of the parody; he did not admit that anything of this was illegal or intentionally infringing, not surprising given that his speech is lawful and could not possibly cause confusion about source or sponsorship. The parody menu uses many of the same dish names as your clients’ menu does, but Greenbaum has replaced your client’s food descriptions with humorous references of his own. Each of your clients’ prices ends in .99 (such as $4.99 or $12.99), but on the parody menu, most of the prices are absurdly high (starting at $66.99 and going up to $4801.99), while others are absurdly or low (pizza for $1.99). In addition, both the top and bottom of the menu are larded with disclaimers making clear that the page is a joke, not Angel’s own restaurant page. Before the menu begins, the following appears: “THIS IS VERY OBVIOUSLY A PARODY. IF YOU WOULD LIKE TO ACCESS CABLP’S REAL MENU, CLICK HERE” (and the word “HERE” is hyperlinked to your clients’ actual menu). Next to your clients’ restaurant logo, featuring the encircled A with the letters blp, Greenbaum placed the word “(NOT).” At the bottom, among the other parody signals is the caption, “THIS IS A PARODY AND NOT THE REAL MENU, I MEAN, C’MON, YOU ALREADY KNEW THAT, RIGHT?,” and below that Greenbaum urged his readers to donate to your client’s foundation, the Johnny Crisstopher Foundation, providing two hyperlinks to the page on your client’s web site that appeals for donations to that charity. Moreover, Greenbaum has included “THIS IS A PARODY (DUH!)” in the title tag, which will appear when the parody page begins to show up in search rankings as the Streisand Effect takes hold.

Then, the legal stuff, that basically says "your threatening schtick may work on those unfamiliar with the law, but Paul Levy knows the law."

You contend that this parody and the domain name violate your client’s trademark rights, but the law has already sawed that claim in half. First of all, Greenbaum has made an entirely noncommercial parody of your clients’ menu, and his speech about your client is entirely opinion; to the extent that it is factual, it is truthful. His domain name truthfully identifies his web site as being about your clients’ restaurant. Truthful speech and opinions are protected by the First Amendment, and that will be his first line of defense. Indeed, in the Ninth Circuit, where your client lives, as well as in many other circuits, such noncommercial uses are not subject to scrutiny under the trademark laws. Bosley Medical v. Kremer, 403 F.3d 672 (9th Cir. 2005); Radiance Found., Inc. v. N.A.A.C.P., 786 F.3d 316, 322 (4th Cir. 2015) (citing cases).

More specifically, many decisions of the federal courts of appeals—including the Ninth Circuit—preclude the use of trademark law to stop the use of domain names in the form www.trademark.com for noncommercial web sites about the trademark holder. In addition to Bosley, these cases include Utah Lighthouse Ministry v. Foundation for Apologetic Information & Research, 527 F.3d 1045 (10th Cir. 2008); Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005); Nissan Motor Co. v. Nissan Computer Co., 378 F.3d 1002 (9th Cir. 2004). TMI v. Maxwell, 368 F.3d 433 (5th Cir. 2004); and Taubman v. WebFeats, 319 F.3d 770 (6th Cir. 2003). See also Lamparello and Lucas Nursery and Landscaping v. Grosse, 359 F.3d 806 (6th Cir. 2004) (cyberquatting law cannot be invoked to cancel domain names for critical web sites about the trademark holder); Utah Lighthouse, supra (same); Lamparello, supra (same). Even Houdini could not wriggle out of those constraints if the case proceeds in the Ninth Circuit.

In the Second Circuit, your claim would have to be one of initial interest confusion, which “requires a showing of intentional deception.” Savin Corp. v. Savin Group, 391 F.3d 439, 462 (2d Cir. 2004), citing Bihari v. Gross, 119 F. Supp.2d 309, 319 (S.D.N.Y.2000); and BigStar Entm’t, v. Next Big Star, 105 F. Supp.2d 185, 207 (S.D.N.Y.2000). Greenbaum’s disclaimers are strong evidence of his lack of deceptive intent. Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 556 (5th Cir. 1998); Fischer & Frichtel Custom Homes v. Fischer Mgt., 2021 WL 1750174, at *6 (E.D. Mo. May 4, 2021); Smith v. Wal-Mart Stores, 537 F. Supp. 2d 1302, 1338 (N.D. Ga. 2008); Virginia Polytechnic Inst. v. Hokie Real Estate, 2011 WL 926862, at *13 (W.D. Va. Mar. 15, 2011). Your implicit initial interest confusion argument cannot prevail on the facts of this case, considering the many prominent “THIS IS A PARODY” statements. Moreover, because Greenbaum has played off your client’s mark as part of an artistic or literary performance, the artistic relevance standard of Rogers v. Grimaldi, 875 F.2d 994, 1000 (2d Cir. 1989), provides a strong defense for Greenbaum’s use.

The threat letter also included a copyright claim which was so dumb we didn't even mention it in our original article, but Levy wasn't going to let that slide either:

Your claim of copyright infringement does not levitate your threat of litigation into the realm of the plausible. You do not specify which client owns the alleged copyright, but searching the register for copyrights registered by Sarantakos himself, I see that although he has registered the copyright in a number of his works, it does not appear that his menu is one of them. Such registration is a necessary predicate for an infringement suit. 17 U.S.C. § 411. Indeed, one might question whether the menu is original enough to support a claim of copyright; but if it is, Greenbaum has made fair use. The use is both non-commercial and transformative, providing strong support on the first fair use factor. Greenbaum’s use will in no way interfere with the market for your client’s use, hence the fourth factor also favors Greenbaum. The menu is a factual description of the food available for purchase at your clients’ restaurant, which gives them little support on the second fair use factor. And Greenbaum has only used the basic format of the menu as well as a few of the food categories—the least original part of the work—while substituting his own humorous food descriptions and even some parody food categories, so the third factor favors Greenbaum as well.

And then the closing, which contrary to what that famous movie says, is not called "the prestige," but this works either way:

Greenbaum would prevail whether you sued him in federal court in Las Vegas or in New York, and proceeding under the UDRP would not enable your client to pull a rabbit out of his hat. If you initiate a UDRP proceeding, we will seek a declaratory judgment of noninfringement, and invoke the stay provisions of the URDP so that Greenbaum can defend his First Amendment rights in federal court.

Or, you can just allow your claims to pull a disappearing act. Otherwise, Greenbaum will stand up for his rights rather than complying with your demands.

Anyway, Paul Levy's greatest magic trick is making thuggish legal bullies crawl into a little ball of despair and (if they have any sense at all) disappear.

On a separate note, I will mention that earlier this week, Criss Angel actually released a touching short documentary film about his young son who has been battling cancer (for what it's worth, as mentioned in Levy's letter, in Greenbaum's parody menu, he directed people to the foundation Angel set up, the Johnny Crisstopher Foundation). I recommend watching the film and it's nice to see how much time and effort Angel is putting into trying to help kids with cancer. He deserves praise for that. But it seems pretty silly to wipe away that kind of goodwill with thuggish legal threats over someone making a good-natured parody over your silly restaurant menu.

Filed Under: copyright, criss angel, free speech, harrison greenbaum, menu, parody, paul levy, threats, trademark
Companies: cablp restaurant

Small Nebraska Town Pays $16,000 To Resident It Attempted To Sue Into Silence

from the 2,300-residents-being-woefully-mismanaged dept

You most likely have never heard of Ord, Nebraska. There's no reason you should have. Obviously, the town's government would prefer you've heard of it, but it's impossible to be well-informed about every small town in a country the size of the United States. Here's how the town government pitches its wares:

Ord is a vibrant town of 2,300 residents nestled in the scenic North Loup Valley on the eastern edge of the Nebraska Sandhills. Recognized in publications that include the New York Times and National Public Radio, Ord and the Valley County community is genuine and progressive with a wealth of business opportunities, a full spectrum of recreation excitement, and good old-fashioned home-town living.

Good news, Ord officials: your town is about to be recognized in even more publications, but not for its vibrancy or its allegedly "progressive" community. Instead, the town will be recognized for being the home of government officials who can't handle the heat that comes with holding a public office. Being in a position of power, however limited, means having to be the bigger person. And that's what town leaders failed to do when faced with a minor annoyance. (h/t Volokh Conspiracy)

Town resident Guy Brock likes writing letters to town government officials. The Ord government -- including the local police chief -- didn't like receiving this constant stream of letters. So, the town sued Brock, seeking a restraining order forbidding him from writing to government officials. The town, unsurprisingly, lost this lawsuit. Having been made aware (possibly for the first time) that prior restraint is a First Amendment violation, the town dropped the suit.

Brock sued back, alleging First Amendment violations by the town government. The court agreed with Brock's arguments and refused to extend qualified immunity to the defendants. In September of last year, a federal court handed Brock a win by denying the town's attempt to get the lawsuit dismissed. The court [PDF] was extremely unamused by all of this. It had nothing good to say about any of the participants in this legal action. The judge first went after town officials, who never should have engaged in the actions they took that ultimately resulted in this federal lawsuit:

[J]ust because this case will be permitted to proceed doesn't mean it ought to. All of the people involved with this lawsuit should regret being here. To begin with, nearly every public official draws the attention of critics and cranks who have opinions they insist on sharing. This Court has no shortage of its own pen pals. But rather than accept that as one of the privileges of public service, the defendants decided to pursue a lawsuit that asked a county court to impose a prior restraint on the plaintiff's speech.

Then the court went on to benchslap the plaintiff, the more-vibrant-than-most Guy Brock:

The plaintiff, for his part, prevailed in that case, and for his part could have been content with having his First Amendment rights vindicated by that victory—but instead, he's filed another lawsuit in response, despite facing no current peril.

The court apparently wasn't pleased with this interruption of its schedule.

This Court's docket is full of cases genuinely implicating lives, livelihoods, and liberty—but instead of addressing those claims, the Court finds its attention diverted by having to referee this squabble. It is tempting to turn this car around and go straight home. But of course, as long as the parties intend to keep it up, the Court is duty-bound to preside, so instead, the Court proceeds to the merits.

This undersells the case and places far too much blame on the person whose rights were violated. This case involves liberty. Town officials sought to engage in prior restraint and failed. But a dismissed county lawsuit is hardly a deterrent. The town should realize there are consequences to these actions, which is what Brock was hoping to achieve with his federal civil rights lawsuit.

The federal court made it clear Brock should prevail, even if it has yet to render a final decision.

Here, Brock has alleged that in response to his letter-writing, the defendants brought legal action against him. In the resulting lawsuit, the City sought to permanently limit Brock's speech and also requested monetary damages, attorney fees, and costs. Brock further alleges that he was "forced to retain counsel at his own expense in order to defend his rights to speak freely and petition his government." Taking these facts as true, Brock has sufficiently established that the defendants' actions caused him to suffer a concrete injury. It can also be plausibly inferred that a person of ordinary firmness would be chilled from further petitioning city officials once facing civil liability and the threat of monetary damages. (Nor would it be unreasonable to conclude that a lawsuit expressly meant to prevent Brock from petitioning was, in fact, meant to deter him from petitioning.)

The officials -- the mayor and the town legal rep who met and decided to sue Brock over his letter writing -- cannot rely on qualified immunity to escape this lawsuit.

At the time the lawsuit was filed, it was clearly established beyond debate that citizens have a right to be free from intentional, retaliatory conduct by the government in response to protected petitioning.

[...]

Further, the precedent of this Circuit clearly established that citizens have a right to be free from government officials engaging the machinery of the government to lodge baseless proceedings against them for exercising their right to petition.

With a presumptive win on the merits for Brock and the attendant stripping of immunity, the town has decided to stop blowing residents' taxes on prior restraint and arguing against residents' interests by continuing to fight Brock's lawsuit. It's now going to blow residents' money on paying Brock for violating his rights.

At a hearing in December, Brock and a representative for the town's insurance carrier, Oak Creek Insurance, told U.S. Magistrate Judge Cheryl Zwart they had reached the $16,000 amount to release Brock's claims and the city's defenses and to dismiss the case.

The best use of the town's money would have been to never try to stop Brock from writing letters to town officials. And while the court might have felt Brock's lawsuit was a waste of its time, it certainly wasn't for Brock. He hired a lawyer to combat the town's unconstitutional lawsuit, forcing him to spend money he wouldn't have if the town government had decided to be the grown-up in the room, rather than respond petulantly. Walking away from the county court dismissal would have given the town an unearned victory of sorts -- one in which it succeeded in harassing a resident and forcing him to spend money to defend his rights. The federal court allowing this lawsuit to move ahead was all it took to force the town to engage in more meaningful contrition and make residents aware just how much it costs them when their representatives screw up.

Filed Under: 1st amendment, free speech, guy brock, nebraska, ord

Pennsylvania Court Reverses Student's Expulsion Over A Snapchat Post, Reminds School Students Still Have Rights

from the disrupting-school-disruption dept

Do you want cheer fucked? Because this is how you get cheer fucked.

No less than the highest court in the land said the off-campus speech of students is subject to the First Amendment, not the whims of school administrators who feel ways about online stuff. A cheerleader expressing her displeasure with school related activities posted a litany of f-bomb-laden complaints to Instagram, resulting in her being summarily dismissed from the cheer team. The Supreme Court said "fuck cheer" is protected speech, no matter how school administrators felt about it.

Students' constitutional rights don't disappear just because they're students. This point has been driven home several times by courts, most famously by the Supreme Court's 1969 Tinker decision, which stated:

It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

And yet schools continue to argue otherwise. But these arguments are unavailing, as this recent Pennsylvania state court decision [PDF] points out. Penncrest High School expelled G.S. (a minor referred to only by their initials) for posting a band's lyrics to Snapchat. Despite the fact G.S. did this off-campus during non-school hours, the school felt compelled to punish him for it.

Here's how the school's stupidity began, as recounted by the Pennsylvania court.

On April 1, 2018, G.S. used his personal smartphone to post the following on Snapchat, where he had 60 to 65 followers, including 4 or 5 other School District students:

Everyone, I
despise everyone!
Fuck you,
eat shit,
Blackout,
the world is a graveyard!
All of you, I
will fucking
kill off all of
you! This is
me, this is
my, snap!

As attuned as schools are to the neverending threat of shootings, it's understandable the school might have been concerned by this post, which -- taken at face value -- appears to threaten fellow students with death. Context matters, but all context was apparently ignored by the school.

Though G.S. did not tag his post as such, the words it contained were copied from “Snap,” a song by the death metal band Spite. The only alteration G.S. made in his post to the excerpted lyrics was to add several exclamation points. G.S. did not direct this post toward any particular person or group and did not tag any other Snapchat users in it, nor did he put up this post at a time when he was involved in school-related activities. Rather, he posted while at an Easter Sunday celebration with his extended family in New Jersey.

Other students noticed the post and tagged in the school student body while reposting screenshots of the Snapchat message. Then parents got involved, notifying the Pennsylvania State Police, visiting the barracks to talk directly with troopers as well as sending emails to PSP officers. Not long after that, G.S. was visited by state troopers. His parents weren't home so the troopers left and approached the assistant district attorney, seeking permission to arrest G.S. for issuing terrorist threats. Troopers called school administrators and informed them they were looking to bring charges against G.S.

Finally, G.S.'s parents were contacted and informed of the criminal proceedings. G.S. and his parents voluntarily went to the State Police barracks so G.S. could be questioned. G.S. admitted to making the post but told troopers it was just a quote from a band and not intended to threaten or harm anyone. None of that mattered. The DA told troopers to move forward with criminal charges. G.S. was arrested and taken to a juvenile detention center.

Meanwhile, school officials continued to receive reports about the post. A district-wide message was sent out by the school, notifying parents that law enforcement was investigating a threat by a student.

This had an immediate effect. Despite being short on facts -- namely, the "threat" in G.S.'s post being copied from a band's song lyrics -- the missive from the school resulted in roughly a quarter of the student body being absent the following day. Those who did show up appeared "anxious and upset."

Outside of school, G.S. underwent a court-ordered psychological evaluation. That evaluation cleared G.S.

His [Snapchat post] is a duplication of emotionally charged lyrics found in a . . . song that, while disturbing in content and audio, represent a low level of threat to the community. Specifically, [G.S.] does not have the resources, motivation, or intent to carry out the threat. [...] His level of risk for future violent behavior is [l]ow.

G.S. was released and placed on house arrest. School administrators sent a letter to his parents informing them he would be suspended for ten days. Another letter followed, extending the suspension for three more days and stating criminal charges were being sought. Six days later, the school informed G.S.'s parents the district was seeking to expel him. Those proceedings proceeded, ignoring the facts that the post was composed of song lyrics, was not posted to threaten anyone, and G.S being cleared by a court-ordered psychiatrist.

The minor has the First Amendment and Pennsylvania's constitution on his side. The school has measurable disruption and potential criminal charges on its side. The court comes down on the side of the student.

First of all, it points out, the school is no longer welcome to argue the Snapchat post was a "true threat." It abandoned that argument during the expulsion proceedings.

Initially, we note that much of the School District’s argumentation is based upon its position that G.S.’ post constituted a true threat, as well as that it was both legally proper and factually justified for it to expel G.S. on that basis. [...] These positions, however, misapprehend the actual reasoning employed by the School District’s hearing officer in his August 13, 2018 report. As we have already mentioned, the hearing officer declined the opportunity to decide whether the offending post was a true threat; indeed, the hearing officer remarked that “it is not necessary in this matter to make [that] determination[.]” Instead, the hearing officer reasoned that the charges against G.S. should be and G.S. should be expelled, as well as that the School District could do so without violating G.S.’ free speech rights, because his post “materially disrupted class work, involved substantial disorder[,] and invaded the rights of others.”

So, it's down to "substantial disruption" versus the free speech rights of students who aren't on campus or engaged in school activities. And on that prong of free speech examination, the school has no case.

In this instance, G.S. did not explicitly target specific Penncrest students, let alone the broader School District community, and he posted at a time when he was neither at Penncrest nor engaged in school-related activities. Thus, G.S.’ post was unambiguously off-campus speech, regarding which the School District’s disciplinary reach was sharply circumscribed by both the First Amendment and Article I, Section 7. Given this, and no matter how objectionable the content of G.S.’ post may have been, it is evident that the School District markedly failed to clear the extremely high bar set by these constitutional provisions and, thus, could not punish him for the disruptions that occurred at Penncrest.

The school's arguments are bad, the court said. The school wants speech judged by its reaction, rather than its intent. That's not the way the law works.

Thus, the School District would have us evaluate the constitutional sanctity of disciplining students for disruptions caused by off-campus speech through an analytical framework that would assign great value to the societal response to such speech, but disregard the context in which it was uttered, as well as the intent of the speaker. We decline to accept the School District’s deeply problematic suggestion. Were we to do otherwise, the result would be to imbue public schools with the power to discipline their students for publicly expressing interests or sentiments that school administrators, faculty, or members of polite society considered execrable or simply did not understand, regardless of how, when, where, or why that expressive conduct occurred.

Public schools would consequently become de facto full-time censors, preventing children from making their own decisions about what aspects of popular culture are worthy of consumption or what beliefs should be held, and interfering with parental authority, through a constant potential for punishment that would hang over students like the Sword of Damocles. Such an expansion of governmental authority would do great harm to the expressive rights of individuals still “in the formative years…"

The expulsion and suspension are reversed. The First Amendment prevails and G.S.'s record will be stripped of the district's unconstitutional add-ons. Even minors have free speech rights and the school should have known this, given there's plenty of precedent on the books at all levels of the judicial system affirming these rights. The school fully earned this loss. Hopefully, it will accept this ruling and stop wasting the public's money attempting to undermine free speech rights.

Filed Under: 1st amendment, free speech, lyrics, pennsylvania, rights, schools

Sculptor Of Pillar Of Shame Announces It's Now Public Domain So That Anyone Can Make A Copy, As Chinese Authorities Seek To Destroy It

from the public-domain-to-the-rescue dept

Last fall we wrote about how Chinese officials were looking to remove the "Pillar of Shame," a sculpture by artist Jens Galschiøt that commemorates China's massacre of pro-democracy demonstrators at Tiananmen Square in 1989. The sculpture was erected at the University of Hong Kong in 1997, and now that China has been wiping out every last bit of freedom in Hong Kong, the statue has been targeted as well. In our post last fall, we noted that (1) Galschiøt was threatening legal action if the statue is damaged, and (2) activists were making 3D scans of the sculpture so that it can be replicated.

Of course, while Galschiøt can (without much leverage) threaten legal action against China for removing the statue, some realized that the unfortunate state of copyright law today means he might also threaten legal action against those making replicas and copies from those 3D images. Thankfully, Galschiøt himself recognizes how problematic that is, and after receiving a bunch of requests has signed official paperwork relinquishing his copyright on the Pillar of Shame, thus putting it into the public domain:

To DR News, Jens Galschiøt says that he has had so many inquiries that he finally had to make a signed declaration in which he relinquished the right to the production of the sculpture and in which it is stated that any profits should be given to the democracy movement.

“Normally, artists will not give their art commercially free, but I have done so because the art must come out. And the sculpture is a reminder of the massacre in Tiananmen Square, the democracy movement, and human rights,” Jens Galschiøt adds.

Galschiøt does not appear to be your typical copyleft activist, and certainly notes his concerns about doing this, but seems to say that, when considering the alternatives, this makes the most sense:

“I could probably spin a fair deal of gold on this if I wanted to. But I’m not particularly interested in money,” Jens Galschiøt says.

He admits that he has taken a risk by revoking his copyright protection on the sculpture and big corporations or private companies could potentially abuse that.

“Yes. I’ve laid down with the devil, but that’s how it is when you are suddenly involved in big politics. It can not be avoided and that’s fine. I exploit them and they exploit me. It’s a mutual “spanking”. But I actually do not feel this sculpture can be abused, because it is a symbol of keeping the memory of the massacre and Hong Kong alive,” Jens Galschiøt says and adds:

“The worst thing that could happen was if nothing happened and that no one cares about the “Pillar of Shame”.

The article separately notes that he is still seeking to get the sculpture (safely) back from Hong Kong, where it remains in danger of destruction.

In some ways, it seems absolutely ridiculous that people should need for the artist to "relinquish" his copyrights in a scenario like this, but it is the unfortunate nature of copyright law today. Given that, it's great to see the artist make such a decision, and recognize that the statement he is making is more likely to benefit not just himself but the larger world and society in the long run.

Filed Under: censorship, china, copies, copyright, hong kong, jens galschiot, pillar of shame, public domain, tananment square

Klobuchar's Silly Letter To Facebook Raises 1st Amendment Issues And Only Gives Ammo To Misinfo Peddlers That Facebook Is A State Actor

from the how-meta dept

Senator Amy Klobuchar really is taking to her role as the Senator most eager to set up a Ministry of Truth in the government. Klobuchar has always been terrible on tech/internet issues, but she's really taken it to a new level in the past year or so. Over the summer, she released a blatantly unconstitutional bill that literally would empower the Director of Health & Human Services to declare what counts as health misinformation and make social media websites liable for it (imagine how that would have played out under a Trump administration -- because Klobuchar apparently can't remember that far back).

Last week, she sent a ridiculous letter to Mark Zuckerberg demanding he explain Facebook Meta's handling of misinformation regarding the election. A dozen other Senators -- including many who have unfortunately long histories grandstanding against the internet -- signed on to the letter as well.

We write to express concern regarding Meta’s role in responding to the rise of online election- related misinformation and disinformation in the United States and the accompanying rise in divisive, hateful, and violent online activity that undermines confidence in the integrity of our elections. The false claim that the 2020 presidential election was stolen fueled a violent and deadly insurrection at the U.S. Capitol on January 6th. The misinformation and disinformation that led to insurrection as well as planning for the insurrection took place largely on online platforms, including Facebook.

Just imagine how much people would freak out if a Senator sent this kind of letter to Fox News -- whose false claims about this and many other things have, according to multiple reports, been significantly more responsible for helping such misinformation to be spread. People would, correctly, note the significant 1st Amendment concerns of legislators suggesting that the company did not "properly" handle their editorial discretion.

The letter goes on to demand answers to seven questions -- which, again, if equivalent questions had been sent to Fox News, people would rightly freak out about.

1. Why did Facebook disable controls after the election – including algorithmic controls to help stop the spread of disinformation and controls to limit the growth of groups that spread disinformation about the election results?
2. Why did Facebook disband its Civic Integrity Team as a standalone unit and disburse its employees to other teams? When was the decision to disband the team made and who made that decision?
3. What department or division of Meta is currently responsible for overseeing efforts to prevent the spread of election-related misinformation, disinformation, and violent rhetoric for Meta-owned platforms? How many full-time employees does this department or division have that are dedicated to tracking and countering election-related threats, including in non-election years?
4. Who is the senior-most Meta employee that directly oversees that department or division’s efforts?
5. What steps is Meta taking to ensure that Facebook users cannot evade the company’s safeguards to continue promoting claims that undermine election integrity and serve to intimidate voters and election workers?
6. How many times in the last year has Facebook proactively forwarded information concerning threats to election workers or election officials to relevant law enforcement organizations?
7. What steps is Meta taking now to protect the integrity of future elections from the spread of misinformation and disinformation, as well as to address violent threats against election officials and workers?

I mean, imagine sending a letter to Lachlan Murdoch and asking him what Fox News is doing to "protect the integrity of future elections from the spread of misinformation and disinformation." People would be furious about such an intrusion by government into the editorial practices of an organization. So why is it okay to do it with Facebook?

Even worse, this only helps to add more fodder to the grifter-brigade of Trumpists who are constantly filing silly lawsuits claiming that government demands to clean up misinformation and disinformation online somehow makes those companies state actors (which would then deny them the ability to basically do any moderation at all). Thankfully courts have been able to reject the silliest of these lawsuits so far, but the more that Senators like Klobuchar pressure companies to moderate in the way she wants them to, the stronger argument those grifters will have.

In other words, the only likely end result is creating a much worse situation. Grandstanding may be fun for Klobuchar and other Senators like Richard Blumenthal. It may get them headlines that are useful for their next campaign, and it may get them huzzahs from ultra-partisans online, but it's so incredibly short-sighted and backwards thinking. Stop this nonsense.

If you want to deal with misinformation, come up with an actual plan to counter it, and stop looking to ignore the 1st Amendment.

Filed Under: 1st amendment, amy klobuchar, content moderation, disinformation, jawboning, mark zuckerberg, misinformation
Companies: facebook

Confused Judge Grants Project Veritas' Prior Restraint Against The NY Times

from the that's-bad dept

This is so bizarre. Last month we wrote about how the incredibly hypocritical oafs at Project Veritas were, on the one hand, screaming about their own press freedoms (for potentially legitimate reasons) while simultaneously trying to get a prior restraint order against the NY Times using the famed press silencers at the censorial thuggish law firm Clare Locke. Somewhat incredibly, on Christmas Eve a New York Supreme Court judge granted the request.

At issue is that the NY Times apparently got access to some memos that Project Veritas's lawyer had sent to Project Veritas, apparently about how Project Veritas' brand of secret filming and selectively edited "journalism" might violate various laws. PV ran to court to stop the Times from publishing anything from the documents, and got a ridiculously broad order that could be read to say that the NY Times couldn't even continue reporting on PV. Incredibly, Project Veritas, whose entire genre of "reporting" revolves around obtaining information through deceit, claimed that the NY Times could be stopped under a law that allows for the "suppression of information improperly obtained." Can't see how that might come back to bite PV, now.

The NY Times rightly pointed out that this order was clearly prior restraint and unconstitutional under the 1st Amendment. The complicating factor here is that the censorial hypocrites at PV are suing the NY Times for alleged defamation, and claim that the information obtained by the NY Times reporters "relates directly" to the case at hand. The Times, on the other hand, pointed out that the information in the memos they obtained "have nothing to do with the subject matter in the underlying defamation action" and actually predate the PV video at issue in that case. More importantly, the NY Times noted (correctly!) that a news organization cannot be prevented from reporting on newsworthy info, even if that information is attorney-client privileged info, so long as they came by it via the news gathering process (i.e., not via discovery and the legal process in the lawsuit).

And, here, it's impossible that the documents were obtained via discovery because discovery hasn't even happened yet in the lawsuit.

But the judge, Charles Wood, says that Project Veritas "has met is burden of showing the subject memoranda were obtained by irregular means, if not both irregular and improper." The judge goes on a long digression about the importance of attorney-client privilege, but seems to totally miss the fact that it only matters with regards to being able to deny certain discovery requests, and that a third party news organization is simply not bound by the attorney-client privilege of a lawyer and a client if the material is obtained through their reporting.

The court then addresses the 1st Amendment issues here... by basically brushing them off and saying it's no big deal. It goes through a long discussion on prior restraint and how the Supreme Court has rejected attempts at prior restraint in the past, but then seems to think that attorney-client privilege trumps that. It's bizarre. Even more bizarre is a weird aside about how our smart phones "beep and buzz" with information the judge believes is unimportant.

In light of these principles of law, the court rejects the Times' position that Project Veritas' attorney-client communications are a matter of public concern. Undoubtedly, every media outlet believes that anything it publishes is a matter of public concern. The state of our nation is that roughly half the nation prioritizes interests that are vastly different than the other half. Our smart phones beep and buzz all day long with news flashes that supposedly reflect our browsing and clicking interests, and we can tune in or read the news outlet that gives us the stories and topics that we want to see. But some things are not fodder for public consideration and consumption. These memoranda, and hundreds of thousands of similar attorney-client privileged documents that are in homes, offices, and businesses in every village, town, and city in this nation are only between an attorney and a client, and it does not matter one bit who the attorney and the client are. While the content of the advice is irrelevant to this court's analysis, in this case, the subject memoranda here contain typical, garden variety, basic attorney-client advice that undoubtedly is given at nearly every major media outlet in America, including between the Times and its own counsel.

A client seeking advice from its counsel simply cannot be a subject of general interest and of value and concern to the public. It is not the public's business to be privy to the legal advice that this plaintiff or any other client receives from its counsel.

So, a few things about this. First of all, simply having a judge decide on his own whether or not a document is in the public interest raises its own 1st Amendment concerns, because it's substituting the judge's opinion for the news organization's editorial decision-making process -- and seems wide open to vast abuses to suppress speech. Judge Wood's own analysis here shows what a fraught 1st Amendment path he is taking.

Furthermore, if we compare this ruling to the Pentagon Papers case, it seems to suggest that "garden variety, basic attorney-client advice" somehow can be subjected to prior restraint, whereas things that might "threaten national security" cannot be. And that... makes no sense at all. The 1st Amendment has a very narrow set of limited exceptions and "attorney-client privileged material" is not one of them.

Finally, while "typical, garden variety, basic attorney-client advice" may not be newsworthy in most cases, there absolutely are cases when they can be newsworthy and in the public interest and that includes the scenario in this very case -- where the advice raises significant legal concerns about the methods PV used to manufacture a story that received national attention and potentially had wider ramifications. But, again, the newsworthiness of that should be up to the news organization and not the state, or else you don't really have freedom of speech.

Judge Wood also seems to think (extremely incorrectly) that the 1st Amendment allows for a balancing test between the Constitution and NY state law. This is just wrong.

Here, the court's protective order does not act as impermissible prior restraint on the Times. As important as the First Amendment's protections against prior restraint is, on the present facts, the erosion of attorney-client privilege is a far more imminent concern.

Hilariously, given that this effort is to protect Project Veritas, the judge cites another case that suggests "hit and run journalism" gets less 1st Amendment protections:

'Hit and run' journalism is no more protected under the First Amendment, than speeding on a crowded sidewalk is permitted under a valid dirver's license.

This is a very weird quote from a strange 1979 case but if you think more carefully about it, the statement makes no sense at all.

Either way, the NY Times has already said that it will be appealing this decision (confusingly for those not deeply enmeshed in these issues, NY's "Supreme Court" is effectively the district court level in the state, so its rulings can be appealed):

I would be amazed if, on appeal, this blatant prior restraint is not tossed out as a violation of the 1st Amendment.

Filed Under: 1st amendment, attorney-client privileged material, charles wood, prior restraint
Companies: ny times, project veritas

Robert Reich Loses The Plot: Gets Basically Everything Wrong About Section 230, Fairness Doctrine & The 1st Amendment

from the dude,-no dept

I still find myself somewhat amazed at how otherwise intelligent people seem to lose their entire minds over the fact that there's a fair bit of misinformation out there. Robert Reich is not a dumb guy, but like so many these days, he seems to work himself up in a lather about things he doesn't seem to understand. He has an opinion piece at the Guardian about his suggestions to restore American democracy... and apparently part of that is throwing out the 1st Amendment. Which is, you know, quite a choice. I won't comment on his first and third suggestions (voting rights and money/politics) because those aren't my areas of expertise, but when he dips his toe into Section 230 and misinformation, I have to point out that everything Reich writes in this piece is so far beyond wrong that it would need to ask directions just to get back into the vicinity of "just kinda wrong."

The second step is to constrain big anger emanating from social media, Fox News, and other outlets. There are two ways to do this without undermining freedom of speech.

Hmm. So, I've been among those who have pointed out that the actual evidence has shown repeatedly Fox News is a much more important vector of misinformation than social media, but at least I recognize you can't do anything about that legally, because of the 1st Amendment. So I'm curious how Reich thinks he's going to do this without infringing on the 1st Amendment (spoiler alert: he's not going to do that, he's just going to ignore the 1st Amendment). Also, it's kinda weird how he lumps social media and Fox News together, since they're very different, and, as such, require very, very different strategies to counteract. If Reich spoke to an expert rather than pontificating out of ignorance he might have learned that.

Revoke Section 230 of the Communications Act, which now protects digital media providers from liability for content posted by their users even if that content is harmful, hateful or misleading. There is no continuing justification for this legal protection, particularly at a time when the largest of these providers have become vast monopolies.

I mean, this is just beyond clueless. Perhaps he missed the famed NY Times correction (that it has run verbatim multiple times)?

I mean, anyone with even a passing familiarity with the 1st Amendment knows that "harmful, hateful, or misleading" speech is protected by the 1st Amendment (there is a tiny, tiny, tiny exception, for a very, very narrow form of "harmful" speech -- that which meets the Brandenburg standard -- but that wouldn't apply here and 230 wouldn't help either for that exception). All 230 does is help get these frivolous lawsuits tossed out procedurally earlier, which is a huge benefit.

Also, that last line is particularly stupid: Section 230 protects all websites that host 3rd party content and users who share that content. The fact that a very small number of those companies are large changes nothing about that.

Even worse, if Reich knew even the first thing about the history of Section 230, he'd realize how totally blinkered and backwards this suggestion is. Section 230 is what allows websites to experiment with better ways to stop disinformation. Section 230 came about because of a lawsuit whereby a website was found liable for information it left up because it moderated other content. So if you get rid of 230, sites that moderate face more legal liability. That means some of them will decide the better approach is not to moderate at all, which would better protect those sites given the history of the law in this area.

Reich's second suggestion is no better.

Create a new “fairness doctrine” requiring that all broadcasters, including cable, cover issues of public importance in ways that present opposing perspectives. This will be difficult to enforce, to be sure, but it would at least affirm the nation’s commitment to holding broadcasters to a higher standard than merely making money.

Again this shows a total ignorance of the fairness doctrine, including how it worked in practice and the legal basis under which it was allowed to exist. It can't cover cable. That's not even an open question. Under the doctrine that (narrowly!) allowed the fairness doctrine to apply to broadcast TV, the Supreme Court made it pretty clear that this was only constitutional because broadcasters were using limited spectrum that came from the government. That's not true of cable.

And, again, Reich should maybe learn something about the history of the fairness doctrine -- which scared broadcasters away from taking on controversial topics -- and meant less coverage of things like civil rights.

Also, would this mean CNN would now need to present the Trumpian side of every story? Why would anyone want that? Any story about the benefits of COVID vaccines needs to be balanced with a vaccine denier? That's ridiculous. And unconstitutional.

What's incredible is that with both of these, Reich insists that neither of these would "undermine freedom of speech." Except both would do exactly that. Removing the ability of websites to moderate freely is an attack on free speech rights, and in the case of the fairness doctrine, the Red Lion case explicitly highlights how applying it to something like cable is a blatant attack on the 1st Amendment.

Maybe Reich's ideas on the other suggestions in the piece are better -- but they're so fundamentally flawed on the area I know about, it leads me to believe that Reich has turned into one of those guys who spreads misinformation. Ironically, in Reich's own fantasy world, he should probably be held liable for that.

Filed Under: 1st amendment, cable news, democracy, fairness doctrine, free speech, misinformation, robert reich, section 230, social media

No, The Arguments Against Florida's & Texas' Content Moderation Bills Would Not Block All Internet Regulations

from the let's-not-be-silly dept

Let me be clear upfront: I'm a huge fan and supporter of the Knight First Amendment Institute at Columbia University. After all, just last week, that organization stepped up to defend my rights after Representative Thomas Massie decided to trample on them. The Knight Institute was also the publisher for my Protocols, Not Platforms paper, and their guidance and editorial support with that paper were tremendously helpful. I've been involved in a few other projects with them as well, and have found every one of them worthwhile.

But, I have to admit that I'm perplexed by an argument the Institute has been putting forth, including in an amicus brief regarding Florida's unconstitutional social media law, and more recently in the pages of the NY Times, arguing that while the laws in both Florida and Texas are clearly unconstitutional, that the 1st Amendment arguments by the internet company trade groups go too far, and would create wider problems for the internet.

I think the argument is incorrect -- and it seems somewhat odd for a "First Amendment Institute" to be arguing that the 1st Amendment does not, in fact, protect editorial discretion. There is, of course, some more nuance to the argument, but the NY Times piece summarizes the argument here:

The companies are correct that the two laws discriminate against certain platforms based on their perceived political views — and two federal district courts have enjoined the laws pending appeal. What’s concerning is that the companies have made arguments that go much further.

For instance, they contend that the courts should extend to social media platforms exactly the same very broad First Amendment protections that have been afforded in the past to newspapers. They also argue that any law that burdens their exercise of “editorial judgment,” however minimally, should be deemed unconstitutional. These arguments are deeply misconceived and would, if the courts agree with them, pre-empt even laws that do not share the Florida and Texas laws’ fundamental defects.

The truth is that social media platforms are like newspapers in some ways but not others. Like other media organizations, social media companies sometimes make decisions about which content to publish, and they sometimes add their own voices to public discourse — as they do when they attach labels to users’ posts. When the companies engage in these activities, they are exercising the kind of editorial discretion that the Supreme Court has protected against government interference again and again.

But social media platforms are different from newspapers in important ways. They are primarily vehicles for others’ speech, rather than their own. They do not exercise close curatorial control over the content they publish. They do not take responsibility for the content they publish in the same way that newspapers do — and the law does not require them to. There is also an incredible disparity in scale between (many) social media platforms and newspapers. Over the course of a day, the newspaper you are reading publishes a couple of hundred articles, but the big platforms publish hundreds of millions of posts.

Everything stated here is clearly true, but it's a garden path kind of argument. It points out an undisputable true point, followed by an undisputable true point, followed by an undisputable true point... and then makes a huge logical leap, but hopes you miss it because you're nodding along with all of the logical points before that.

Whether or not social media platforms are "different" than newspapers in some ways and the "same" as newspapers in some ways is not the issue, and it's weird for the Knight Institute to key in on that. What matters is whether or not the activity itself is protected by the 1st Amendment -- and any sort of moderation of hosted content on a platform (even at scale) is clearly about expressive choices, and thus protected by the 1st Amendment.

It's really the next paragraph that has me the most perplexed:

Florida and Texas contend that these kinds of differences mean that social media companies are outside the protection of the First Amendment. That is clearly wrong. But the First Amendment should apply differently to social media companies than it does to newspapers, because social media companies and newspapers exercise editorial judgment in different ways.

Yes, social media companies and newspapers exercise editorial judgment in different ways. And that's what's so important about the 1st Amendment protections afforded to both. It's because of the 1st Amendment, preventing government from getting involved in such editorial choices that allows things as diverse as newspapers in one area and social media websites in another area to exist. They are exercising their editorial judgment in different ways because the 1st Amendment allows them too -- and suggesting that social media shouldn't qualify for the same level of protection seems totally antithetical to the entire point of the 1st Amendment itself.

And then the argument from Knight takes a big logical leap that I think is just wrong. It argues that the internet companies' argument would prevent all types of other regulations, including privacy regulations:

But the companies’ arguments would make it almost impossible for legislatures to enact carefully drawn laws that protect the integrity of the digital public sphere. They would make it difficult for legislatures to impose even modest transparency requirements on the companies, to require the companies to share data with academic researchers or to require them to provide explanations to users whose posts are removed or whose accounts are suspended. They would also make it difficult for legislatures to pass straightforward privacy laws limiting the information companies can collect and how they can use it.

Of course, whether any particular legislative proposal is constitutional will turn on its specifics. If the courts accept the companies’ arguments, however, many legislative proposals worth considering will be dead on arrival.

But that's almost certainly incorrect. It would only be true if those regulations did, in fact, interfere with the editorial decision making process. And we already have some privacy laws in place that don't seem to do that. The transparency argument also strikes me as a strange one for Knight to be making. While I support Knight's efforts to defend against Facebook's ridiculous threats to academic researchers, mandating transparency does, in fact, raise very real 1st Amendment issues.

We've discussed this before, in noting that transparency is super important, but mandating transparency is dangerous. Just to put this in context, if the government sought to pass a law that "mandated" transparency for newsrooms regarding their editorial choices, people (including the Knight Institute, I imagine) would be up in arms over a clear intrusion on 1st Amendment rights. Part of the 1st Amendment's protections means that those making the editorial decisions shouldn't have to disclose their reasons for every possible decision -- as that can only serve as a method of intimidating such newsrooms.

Having spent a lot of time with people who work in trust and safety and content moderation, such mandated transparency would be incredibly detrimental to the jobs they do as well. I'm all for figuring out more ways to encourage companies to be transparent about certain aspects of their decision making, but when the government is demanding it, it can and will be abused. It will be used to pressure companies according to the whims of whoever is in power. And if it's not carefully calibrated, such transparency will be abused. I've noted before that the only times anyone has demanded "transparency" about our own moderation here at Techdirt are trolls who are mad and who want to game the system -- and want better insight into how to troll better. Now imagine how that works when the "trolls" are running the government. It wasn't that long ago that we had exactly that.

This is why the 1st Amendment must protect against such laws -- not because "social media is different," but because this is how the 1st Amendment works.

The argument about privacy laws seems confusing as well. Obviously, there could be some privacy laws that have a serious impact on the 1st Amendment. In the EU, obviously, we've seen the rollout of the GDPR with its "right to be forgotten," which would never pass 1st Amendment scrutiny in the US. But, not every privacy law would include such restrictions on speech, and none of this means that it would be effectively impossible to pass privacy laws in the US. It would only do so if those privacy laws clearly intruded on 1st Amendment protected editorial discretion and rights.

In other words, nothing in the arguments for the social media companies against the Florida and Texas laws is expanding 1st Amendment doctrine, as the team at Knight implies, but rather just asking that the 1st Amendment continue to be applied in the same way it always has been -- protecting editorial discretion.

Now, it is true that some companies have tried to abuse the 1st Amendment to protect against certain legislation. Famously, Verizon has argued that net neutrality violated its 1st Amendment rights. But that claim was rejected, showing that the courts have little problem distinguishing actual 1st Amendment issues with ones that may be cooked up to protect business models.

The Knight Institute does amazing work most of the time, but I think it's gone somewhat off the reservation here, and in doing so is making an argument that would actively weaken, not strengthen the 1st Amendment and our free speech rights.

Filed Under: 1st amendment, content moderation, privacy, regulation, social media, transparency

Canada Strikes Again: Allows Lawsuit Against Twitter To Proceed Over Speech Of Twitter Users

from the not-this-again dept

Canada, despite being our friendly neighbor to the north, has been known to have some not great laws regarding speech. Over the years, we've covered a few too many distressing lawsuits that attack speech, including by going after intermediaries rather than the speakers themselves. While sometimes (but not always), Canadian courts eventually get to the right decision, it's often many years later, and after a whole lot of censorial nonsense.

It's happening yet again. A Canadian businessman, Frank Giustra, is mad at Twitter. He's really mad at some idiots on Twitter who claimed he was somehow tied into Pizzagate because he's done some philanthropic work with the Clinton Foundation, but it's turned into a lawsuit against Twitter itself -- because silly people continually want to go after the intermediary, rather than the speaker. Obviously, in the US, any such case would be dead in the water, because common sense, the 1st Amendment, and Section 230 would all protect Twitter. Unfortunately, Canadian courts have none of those three to rely on. So, back in 2019, Giustra sued Twitter in Canada, and not the silly people who may have actually defamed him. Because why go after the actual speakers, when you can go after the tools they use?

Twitter had argued that Canada has no jurisdiction over the case, and it should be filed in California (where it would be tossed out immediately). Unfortunately, earlier this year, a court sided with Giustra over Twitter and now the appeals court has now ruled that Giustra's lawsuit against Twitter can move forward, upholding the original decision. The full ruling is difficult to read without repeatedly wanting to scream about how dumb it is, but that's what happens when you have no real intermediary liability protections, and people want to go after websites instead of actual speakers.

What happened in this case was that a bunch of stupid, ignorant people said ridiculously stupid stuff about Giustra online as part of the Pizzagate nonsense, a precursor to today's metastasized Q-anon conspiracy theory. Giustra was (understandably!) upset about this and alerted Twitter about how people were spewing nonsense about him. Twitter then actually took down the vast majority of the tweets in question, and made most of the rest unviewable in Canada. But then Giustra, who lives in both California and Canada decided to engage in some libel tourism, seeking out the friendliest jurisdiction to go after Twitter: and that's Canada. As the ruling itself notes:

In this case, Twitter submits, a careful examination demonstrates that the presumptive factor here does not point to any real relationship between the subject matter of the litigation and British Columbia as the forum. Whatever connection there may be between British Columbia and the subject matter of the complaint, Twitter asserts, it is anything but substantial.

In this regard, it points out that Mr. Giustra has a residence not only in West Vancouver, BC, but also one in Beverly Hills, California, and the tweets of which he complains were overwhelmingly posted by Americans about United States topics, particularly in reference to the 2016 US election and the connections between Mr. Giustra and the Clintons. Twitter says that Mr. Giustra’s pleadings did not single out British Columbia as a place of harm, and he filed no evidence that located any particular harm in British Columbia. In Twitter’s submission, the Sikhs for Justice case establishes that a plaintiff is obliged to lead evidence of harm to reputation in his chosen forum if he wishes to meet the case of a defendant who is seeking to rebut the presumption, and the judge erred in distinguishing that case as he did.

Twitter further asserts that, unlike the defendants in Haaretz (where jurisdiction was found not to have been rebutted), it did not choose to create content about the plaintiff. Twitter merely provided the platform and cannot reasonably be expected to be aware of the reputation and location of any given person mentioned on its platform. Moreover, contrary to the judge’s finding, Twitter maintains, the correspondence directed to Twitter on his behalf did not alert Twitter to concern about reputational harm in BC.

Giustra's response to this seems incredibly silly. He argues that because Twitter made the content available in Canada, that's enough to say it proactively was subjecting itself to Canadian libel laws. That's a completely nonsensical argument on a (mostly) borderless internet:

As to Twitter’s submission that it could not reasonably have been expected to be aware of the reputation or location of any particular person mentioned in tweets because it did not create the content, Mr. Giustra points out that Twitter chose to make the content of its platform available worldwide—including Canada—and must be taken to have understood that defamation law may expose it to jeopardy in jurisdictions other than California. Moreover, Twitter continued to publish defamatory tweets after Mr. Giustra and his lawyers brought them to its attention. From that point on, Twitter had actual knowledge of Mr. Giustra’s connection to British Columbia and Canada.

The court, playing to the home crowd, accepts Giustra's argument.

Here, Twitter submits, although the correspondence brought the existence of allegedly defamatory tweets to its attention, nothing in the communications suggested a connection with British Columbia. Consequently, in Twitter’s submission, it would not have known of Mr. Giustra’s connection to British Columbia, and would have no reason to expect to be sued in that jurisdiction.

In my view, there is no merit to this proposition. The correspondence in question comprised two letters from Mr. Giustra’s Toronto solicitors concerning “abusive Twitter posts”, and one letter with attachments directly from Mr. Giustra on the letterhead of Fiore Financial Corporation in Vancouver.

So, apparently the letterhead is key to putting you on notice that you might be dragged into a Canadian court.

Twitter further argued that California is clearly the more appropriate forum, but again, the Canadian court says Canada wins, basically just saying that the lower court did enough under the law to say that Canada was the right jurisdiction.

Then there's the important jurisdiction shopping point that Twitter raised. It highlighted to the court that such a case would clearly fail in the US, and thus it was only being brought in Canada to avoid that fate. The court here basically said that Twitter's free speech protections in the US... are even more of a reason that Canada is the proper venue. That's... eye-opening, but certainly fits with earlier rulings in which Canada has demanded US companies block content globally, with no concern to free speech considerations as applied to other countries.

A question arises as to whether the circumstance of Twitter’s immunity under US law is properly analysed as a question of applicable law, or of juridical advantage. The judge approached it primarily as a question of juridical advantage, and the parties argued it on that basis. But the judge also dealt with the effect of Twitter’s immunity in California as relevant to the factor of applicable law.

The court then says that because Canada has a much weaker and different intermediary liability protection law, it's as if Canada has its own Section 230.

As Twitter was at pains to point out, should it be obliged to proceed to trial in British Columbia, it will raise the defence that, in law, it cannot properly be considered a publisher of tweets read in British Columbia (or anywhere else) that it did not author or create, and accordingly will need to bring a number of witnesses to British Columbia to assist it in that regard.

This is the same defence that is afforded to it in California by the Communications Decency Act of 1996. The difference is that in California, Twitter will be in a position to have Mr. Giustra’s claim summarily dismissed on the basis of that defence, while in British Columbia, it will have only the opportunity to persuade a court that the defence is available to it on the merits. Consequently, as a substantive matter, the defence is notionally available in both jurisdictions. Procedurally, however, it is a defence that is arguable in British Columbia, but is bound to succeed in California. In this sense, it can be properly considered under the factor of juridical advantage.

As I understand Twitter’s argument, it does not really matter under which circumstance the matter of Twitter’s immunity is analysed. Either way, the effect of US law should be given little weight in the forum non conveniens comparative analysis and the judge’s approach offended the underlying principle of comity. I agree with Twitter to this extent: whether the matter of its immunity under US law should be considered as a circumstance of applicable law or juridical advantage need not be resolved on this appeal. It is a relevant circumstance, and one that must be considered in the context of comity.

Except, the fact that under 230 such cases are "summarily dismissed" is the key point of Section 230, procedurally ending silly mis-targeted cases before they get ridiculously expensive for the defendant. So, the Canadian's court's dismissal of this point as if it's only slightly different ignores the entire rationale for Section 230.

The court then flat out admits that under US law, courts would never enforce a ruling in Canada, but basically shrugs, and says that's no reason not to try:

While courts in the United States are prohibited from respecting and enforcing any order made against Twitter in Canada, that is not so of Canadian courts in relation to any order pronounced in the United States. As the Equustek Solutions Inc v Google Inc litigation demonstrated, the courts in the United States are legislatively prohibited from respecting the different constitutional and legal approach in Canada, notwithstanding our shared values.

But that does not make proceeding in British Columbia a pointless exercise, for Mr. Giustra would at least have the opportunity to obtain a judgment vindicating his reputation (see Banro at para 45)—an opportunity denied from the outset in California.

The advantage-disadvantage balance that Twitter relies on is accordingly unequal between the jurisdictions and tilts in favour of British Columbia. In BC, Mr. Giustra would have the opportunity to establish his claim and vindicate his reputation; in California he would not. But Twitter would be in a position to raise the defence of lack of publication in either jurisdiction. In British Columbia, it would be a matter of argument; in California, its success would be a foregone conclusion.

And thus, this silly case moves forward. It's possible that Twitter will still win in the end, but once again this ruling highlights just how important Section 230 is. It gets rid of these mistargeted, silly lawsuits upfront. Giustra remains free to sue the actual people who he claims defamed him. He has chosen not to do so, and instead focused on Twitter. That, alone, is silly, and it makes a mockery of common sense for Canadian courts to allow it to move forward.

Filed Under: canada, defamation, frank giustra, free speech, intermediary liability, jurisdiction, pizzagate, section 230, speech act
Companies: twitter