Rep. Thomas Massie Seems To Have Skipped Over The 1st Amendment In His Rush To 'Defend' The 2nd

from the unblock-people dept

This weekend, Representative Thomas Massie got an awful lot of attention for tweeting a picture of what I guess is his family holding a bunch of guns. It generated a bunch of outrage, which is exactly why Massie did it. When the culture war and "owning" your ideological opponents is more important than actually doing your job, you get things like that. Some might find it a vaguely inappropriate to show off your arsenal of weaponry just days after yet another school shooting, in which the teenager who shot up a school similarly paraded his weapon on social media before killing multiple classmates, but if that's the kind of message that Massie wants to send, the 1st Amendment and the 2nd Amendment allow him to reveal himself as just that kind of person.

However, as someone who continually presents himself as "a strict constitutionalist," it's odd that Massie seems to skip over the 1st Amendment in his rush to fetishize the 2nd. That's why the Knight First Amendment Institute at Columbia University has now sent a letter on my behalf to Rep. Massie letting him know that he is violating the 1st Amendment in blocking me and many others on Twitter.

To be honest, I had avoided tweeting about Massie's armory family portrait, because the whole thing was just such a blatant cry for attention. But then I saw that some other users on Twitter were highlighting that Massie was blocking them -- in some cases because they had tweeted at Massie a remixed version of the portrait, replacing the guns with penises. I made no comment on his photo, or his desperately pathetic desire to "own the libs" or whatever he thought he was doing. But I did tweet at him to inform him that under Knight v. Trump, he appeared to be violating the 1st amendment rights of those he was blocking.

He appears to meet the conditions laid out in that and other rulings on this issue. Massie is a government official, who uses his Twitter account for conducting official government business, and who is then blocking users based on their viewpoints.

In response to me pointing out that it violates the 1st Amendment for him to block people in this way... Rep. Massie blocked me.

Seems a bit ironic for a "strict Constitutionalist" to block someone for merely pointing out that public officials blocking someone via their official government accounts violates the 1st Amendment. But, I guess that's the kind of "strict Constitutionalist" that Rep. Thomas Massie is. One who will support just the rights he wants to support, and will quickly give up the other ones, so long as he can be seen to be winning whatever culture war he thinks he's waging.

This is pretty unfortunate. For all of Massie's other nonsense, he has actually been quite good in defending the 4th Amendment rights of the American public against surveillance. Perhaps he only believes in the even-numbered Amendments?

Either way, our letter points out that his actions appear to violate the 1st Amendment, and asks that he unblocks me and everyone else that he has chosen to block.

Multiple courts have held that public officials’ social media accounts constitute public forums when they are used in the way that you use the @RepThomasMassie account, and they have made clear that public officials violate the First Amendment when they block users from these fora on the basis of viewpoint. For example, the U.S. Court of Appeals for the Second Circuit reached this conclusion in Knight Institute v. Trump, and the U.S. Court of Appeals for the Fourth Circuit reached this conclusion in Davison v. Randall. The principles articulated in these cases apply here. In both of these cases, and in many others, courts have held that the First Amendment binds public officials who use their social media accounts in furtherance of official duties, and that public officials act unconstitutionally when they block individuals from these accounts on the basis of viewpoint.

Again, we ask that you unblock the Twitter account @mmasnick and any other Twitter accounts that have been blocked by you or your staff from the @RepThomasMassie account based on viewpoint.

Filed Under: 1st amendment, 2nd amendment, blocking, social media, thomas massie
Companies: knight 1st amendment institute

Protecting Judges Is Important, But They Don't Get To Throw Out The 1st Amendment For Themselves

from the just-saying dept

It's been said that any time a bill in a legislature is named after someone who died, you know there's going to be problems with the bill. That's because most of those bills are responses to truly horrific or tragic circumstances, but then our natural inclination is to go too far in diminishing the rights of the public in response to a single horrific scenario. This is, unfortunately, the case with the Daniel Anderl Judicial Security and Privacy Act of 2021. The events that precipitated the bill are, undeniably, awful and tragic. In the summer of 2020 an obviously mentally unwell lawyer, who had represented a client before US District Judge Esther Salas, went to her home, dressed as a FedEx delivery person, and shot and killed Judge Salas's son, Daniel Anderl (as well as shooting and injuring Salas' husband, Mark Anderl). The shooter then took his own life.

Obviously, everything about that story is horrific, and there are all sorts of things that it should lead us to think about regarding policies that protect human life and how we deal with things like mental health. But, rather than taking a bigger look at things, Congress set out to try to create a special class for protection: federal judges. And, yes, there are reasons to make sure that federal judges are safe, and it's perfectly reasonable to support the underlying goals of such a bill. But, this bill goes too far. The underlying setup in the bill is that it wants to hide personal information about judges at the request of those judges -- who are labeled (oddly) as "at risk individuals" in the law.

The law then bans "other businesses" from posting any information on an "at risk individual" (i.e., a judge) if that individual sends a request to take down the information:

No person, business, or association shall publicly post or publicly display on the internet personally identifiable information of an at-risk individual or immediate family if the at-risk individual has made a written request of that person, business, or association to not disclose the personally identifiable information of the at-risk individual or immediate family.

Again, the thinking here makes some amount of sense. A judge, who may reasonably fear that they are at risk from, perhaps, an unhappy party before them, wants to make sure that their information is not available. But there are a few problems with this. The list of "personally identifiable information" in the bill includes more than just home addresses. It includes things like "full date of birth." In other words, merely naming the birth date of a federal judge online can be barred if that judge decides he or she does not want that information online.

That's pretty clearly unconstitutional. I mean, we kind of already went through this in California, where a law was passed, ostensibly to fight "ageism" in Hollywood, that would ban sites like IMDb from posting the birthdate of actors. But the courts rightly tossed that out as unconstitutional.

This is basically the same thing. But because it deals with federal judges, not Hollywood actors, and is in response to a horrific murder, not an aging actor feeling snubbed, it raises questions about whether or not judges themselves (who are the specific beneficiaries of this law) will admit that it is equally unconstitutional.

The Free Law Project -- one of the most useful resources online for those following legal disputes -- is raising the alarm about this bill, noting that they also wish to help keep judges safe (we all do), but highlighting that this creates significant problems for a site like the Free Law Project.

I had spoken to some folks in DC about a month ago concerning this bill, and more or less heard that it was political suicide to oppose the bill. No one wants to look like they're opposed to protecting federal judges -- especially after the tragic events of last summer. And, it's completely understandable that Judge Salas is directly supporting the law. I cannot fault her for this, but it's also quite clear that the bill has significant 1st Amendment issues at the same time.

And, unfortunately, very, very few people seem willing to raise those constitutional problems, because no one wants to be seen opposing protecting federal judges in response to these events. But it's possible to believe that we should better protect federal judges... and that we can do so in a manner that does not fundamentally violate the 1st Amendment. As the Free Law Project notes, why are we not more focused on making the country safer for everyone, rather than creating a special class for Federal Judges that ignores the 1st Amendment?

Of course, the fear on top of all this is that, if this bill passes, even if it were challenged, would a federal judge -- effectively the only direct beneficiaries of the bill itself -- come out and admit to the constitutional problems with the bill? It's unclear to me how you could even have an impartial judicial analysis of the bill, as the people it protects are literally the only ones who can determine whether or not the bill is constitutional.

We should be able to protect not just judges, but everyone, without making websites like the Free Law Project illegal. And we should be able to speak out about the concerns of this bill without it being "political suicide." What happened to Judge Salas and her family is tragic. And there are ways to protect federal judges and everyone else better. But it shouldn't involve dumping our 1st Amendment rights in the process.

Filed Under: 1st amendment, at risk, daniel anderl, esther salas, free speech, intermediary liability, judges, liability, protecting judges
Companies: free law project

Texas Court Gets It Right: Dumps Texas's Social Media Moderation Law As Clearly Unconstitutional

from the nicely-done dept

Back in June we reported on how Florida's social media moderation bill was tossed out as unconstitutional in a Florida court. The ruling itself was a little bit weird, but an easy call on 1st Amendment grounds. It was perhaps not surprising, but still stupid, to see Texas immediately step up and propose its own version of such a bill, which was signed in September. We again predicted that a court would quickly toss it out as unconstitutional.

And that's exactly what has happened.

There was some whispering and concerns that Texas' law was craftier than the Florida law, and parts of it might survive, but, nope. And this ruling is actually more thorough, and more clear than the slightly jumbled Florida ruling. It's chock full of good quotes. The only thing that sucks about this ruling, honestly, is that Texas is definitely going to appeal it to the 5th Circuit court of appeals and the 5th Circuit is the craziest of Circuits and seems, by far, the most likely to ignore the basic 1st Amendment concepts in favor of some weird Trumpist political grandstanding.

However, for this brief shining moment, let's celebrate a good, clean ruling that vindicates all the points many of us have been making about just how batshit crazy the Texas law was, and how it was so blatantly an infringement on the 1st Amendment rights of websites. There are a bunch of pages wasted on proving that the trade groups who brought the lawsuit have standing, which aren't worth rehashing here beyond saying that, yes, trade groups for internet companies have the standing to challenge this law.

From there, the ruling gets down to the heart of the matter, and it's pretty straight forward. Content moderation is the same thing as editorial discretion and that's clearly protected by the 1st Amendment.

Social Media Platforms Exercise Editorial Discretion Protected by the First Amendment

Judge Robert Pitman cites all the key cases here -- Reno v. ACLU (which tossed out all of the CDA -- minus Section 230 -- as unconstitutional, but also clearly established that the 1st Amendment applies to the internet), Sorrell v. IMS Health (establishing that the dissemination of information is speech) and, perhaps most importantly, Manhattan Cmty. Access v. Halleck, the Justice Brett Kavanaugh-authored ruling we've highlighted many times for making it quite clear that private internet companies are free to moderate however they see fit. It also cites the key case that was instrumental to the ruling in Florida: Miami Herald v. Tornillo, which made clear the 1st Amendment protections for editorial discretion:

Social media platforms have a First Amendment right to moderate content disseminated on their platforms. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019) (recognizing that “certain private entities[] have rights to exercise editorial control over speech and speakers on their properties or platforms”). Three Supreme Court cases provide guidance. First, in Tornillo, the Court struck down a Florida statute that required newspapers to print a candidate’s reply if a newspaper assailed her character or official record, a “right of reply” statute. 418 U.S. at 243. In 1974, when the opinion was released, the Court noted there had been a “communications revolution” including that “[n]ewspapers have become big business . . . [with] [c]hains of newspapers, national newspapers, national wire and news services, and one-newspaper towns [being] the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events.” Id. at 248–49. Those concerns echo today with social media platforms and “Big Tech” all the while newspapers are further consolidating and, often, dying out. Back to 1974, when newspapers were viewed with monopolistic suspicion, the Supreme Court concluded that newspapers exercised “editorial control and judgment” by selecting the “material to go into a newspaper,” deciding the “limitations on the size and content of the paper,” and deciding how to treat “public issues and public officials—whether fair or unfair.” Id. at 258. “It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

There's also a fun bit for all the very silly people who keep insisting that social media websites are "common carriers" which could subject them to certain restrictions. The court says "nope," highlights how very different they are from common carriers, and moves on.

This Court starts from the premise that social media platforms are not common carriers. “Equal access obligations . . . have long been imposed on telephone companies, railroads, and postal services, without raising any First Amendment issue.” United States Telecom Ass’n v. Fed. Commc’ns Comm’n, 825 F.3d 674, 740 (D.C. Cir. 2016). Little First Amendment concern exists because common carriers “merely facilitate the transmission of speech of others.” Id. at 741. In United States Telecom, the Court added broadband providers to its list of common carriers. Id. Unlike broadband providers and telephone companies, social media platforms “are not engaged in indiscriminate, neutral transmission of any and all users’ speech.” Id. at 742. User-generated content on social media platforms is screened and sometimes moderated or curated. The State balks that the screening is done by an algorithm, not a person, but whatever the method, social media platforms are not mere conduits. According to the State, our inquiry could end here, with Plaintiffs not needing to prove more to show they engage in protected editorial discretion. During the hearing, the Court asked the State, “[T]o what extent does a finding that these entities are common carriers, to what extent is that important from your perspective in the bill’s ability to survive a First Amendment challenge?” (See Minute Entry, Dkt. 47). Counsel for the State responded, “[T]he common carriage doctrine is essential to the First Amendment challenge. It’s why it’s the threshold issue that we’ve briefed . . . . It dictates the rest of this suit in terms of the First Amendment inquiry.” (Id.). As appealing as the State’s invitation is to stop the analysis here, the Court continues in order to make a determination about whether social media platforms exercise editorial discretion or occupy a purgatory between common carrier and editor.

There's also a short footnote totally dismissing the fact that the Texas bill, HB20, tries to just outright declare social media sites as common carriers. That's not how any of this works.

HB 20’s pronouncement that social media platforms are common carriers... does not impact this Court’s legal analysis.

The judge briefly notes that social media is obviously different in many ways than newspapers, and that AI-based moderation is certainly a technological differentiator, but then brings it back around to basic principles: it's still all editorial discretion.

This Court is convinced that social media platforms, or at least those covered by HB 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content.

In fact, Texas legislators' and the governor's own hubris helped sink this bill by admitting in the bill itself and in quotes about the bill, how this is all about editorial discretion.

Indeed, the text of HB 20 itself points to social media platforms doing more than transmitting communication. In Section 2, HB 20 recognizes that social media platforms “(1) curate[] and target[] content to users, (2) place[] and promote[] content, services, and products, including its own content, services, and products, (3) moderate[] content, and (4) use[] search, ranking, or other algorithms or procedures that determine results on the platform.” Tex. Bus. & Com. Code § 120.051(a)(1)–(4). Finally, the State’s own basis for enacting HB 20 acknowledges that social media platforms exercise editorial discretion. “[T]here is a dangerous movement by social media companies to silence conservative viewpoints and ideas.” Governor Abbott Signs Law Protecting Texans from Wrongful Social Media Censorship, OFFICE OF THE TEX. GOVERNOR (Sept. 9, 2021), https://gov.texas.gov/news/post/governorabbott- signs-law-protecting-texans-from-wrongful-social-media-censorship. “Texans must be able to speak without being censored by West Coast oligarchs.” Bryan Hughes (@SenBryanHughes), TWITTER (Aug. 9, 2021, 4:34 PM), https://twitter.com/SenBryanHughes/status/ 1424846466183487492 Just like the Florida law, a “constant theme of [Texas] legislators, as well as the Governor . . . , was that the [platforms’] decisions on what to leave in or take out and how to present the surviving material are ideologically biased and need to be reined in.” NetChoice, 2021 WL 2690876, at *7. Without editorial discretion, social media platforms could not skew their platforms ideologically, as the State accuses of them of doing. Taking it all together, case law, HB 20’s text, and the Governor and state legislators’ own statements all acknowledge that social media platforms exercise some form of editorial discretion, whether or not the State agrees with how that discretion is exercised.

And then, once it's clear that moderating is the same as editorial discretion, it's easy to see how the bill's restrictions are a clear 1st Amendment problem. It does this, first, by highlighting the impossible choices the bill puts in front of social media companies, using the example of content about Nazis.

The State claims that social media platforms could prohibit content categories “such as ‘terrorist speech,’ ‘pornography,’ ‘spam,’ or ‘racism’” to prevent those content categories from flooding their platforms. (Resp. Prelim. Inj. Mot., Dkt. 39, at 21). During the hearing, the State explained that a social media platform “can’t discriminate against users who post Nazi speech . . . and [not] discriminate against users who post speech about the antiwhite or something like that.” (See Minute Entry, Dkt. 47). Plaintiffs point out the fallacy in the State’s assertion with an example: a video of Adolf Hitler making a speech, in one context the viewpoint is promoting Nazism, and a platform should be able to moderate that content, and in another context the viewpoint is pointing out the atrocities of the Holocaust, and a platform should be able to disseminate that content. (See id.). HB 20 seems to place social media platforms in the untenable position of choosing, for example, to promote Nazism against its wishes or ban Nazism as a content category. (Prelim. Inj. Mot., Dkt. 12, at 29). As YouTube put it, “YouTube will face an impossible choice between (1) risking liability by moderating content identified to violate its standards or (2) subjecting YouTube’s community to harm by allowing violative content to remain on the site.”

And thus:

HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment.

Why?

HB 20 compels social media platforms to significantly alter and distort their products. Moreover, “the targets of the statutes at issue are the editorial judgments themselves” and the “announced purpose of balancing the discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action held unconstitutional in Tornillo, Hurley, and PG&E.” Id. HB 20 also impermissibly burdens social media platforms’ own speech. Id. at *9 (“[T]he statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites.”). For example, if a platform appends its own speech to label a post as misinformation, the platform may be discriminating against that user’s viewpoint by adding its own disclaimer. HB 20 restricts social media platforms’ First Amendment right to engage in expression when they disagree with or object to content.

At this point, the court dismisses, in a footnote, the two cases that very silly people always bring up: Pruneyard and Rumsfeld. Pruneyard is the very unique shopping mall case, which has very limited reach, and Rumsfeld is about a university allowing or not allowing military recruiters on campus. Supporters of efforts to force websites to host speech point to both cases as some sort of "proof" that it's okay to compel speech, but both are very narrowly focused, and anyone relying on either is doing a bad faith "well, in these cases you could compel speech, so in this case obviously you can as well." But the judge isn't having any of it.

The Court notes that two other Supreme Court cases address this topic, but neither applies here. PruneYard Shopping Center v. Robins is distinguishable from the facts of this case. 447 U.S. 74 (1980). In PruneYard, the Supreme Court upheld a California law that required a shopping mall to host people collecting petition signatures, concluding there was no “intrusion into the function of editors” since the shopping mall’s operation of its business lacked an editorial function. Id. at 88. Critically, the shopping mall did not engage in expression and “the [mall] owner did not even allege that he objected to the content of the [speech]; nor was the access right content based.” PG&E, 475 U.S. at 12. Similarly, Rumsfeld v. Forum for Academic & Institutional Rights, Inc. has no bearing on this Court’s holding because it did not involve government restrictions on editorial functions. 547 U.S. 47 (2006). The challenged law required schools that allowed employment recruiters on campus to also allow military employment recruiters on campus—a restriction on “conduct, not speech.” Id. at 62, 65. As the Supreme Court explained, “accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when the host interviews and recruiting receptions.”

Even more importantly, the court rejects the transparency requirements in HB20. Again, this part was one that some people thought might slide through and be left in place. We've discussed, multiple times, how transparency on these issues is important, but that mandated transparency actually creates serious problems. The court, thankfully, agrees.

To pass constitutional muster, disclosure requirements like these must require only “factual and noncontroversial information” and cannot be “unjustified or unduly burdensome.” NIFLA, 138 S. Ct. at 2372. Section 2’s disclosure and operational provisions are inordinately burdensome given the unfathomably large numbers of posts on these sites and apps. For example, in three months in 2021, Facebook removed 8.8 million pieces of “bullying and harassment content,” 9.8 million pieces of “organized hate content,” and 25.2 million pieces of “hate speech content.” (CCIA Decl., Dkt. 12-1, at 15). During the last three months of 2020, YouTube removed just over 2 million channels and over 9 million videos because they violated its policies. (Id. at 16). While some of those removals are subject to an existing appeals process, many removals are not. For example, in a three-monthperiod in 2021, YouTube removed 1.16 billion comments. (YouTube Decl., Dkt. 12-3, at 23–24). Those 1.16 billion removals were not appealable, but, under HB 20, they would have to be. (Id.). Over the span of six months in 2018, Facebook, Google, and Twitter took action on over 5 billion accounts or user submissions—including 3 billion cases of spam, 57 million cases of pornography, 17 million cases of content regarding child safety, and 12 million cases of extremism, hate speech, and terrorist speech. (NetChoice Decl., Dkt. 12-2, at 8). During the State’s deposition of Neil Christopher Potts (“Potts”), who is Facebook’s Vice President of Trust and Safety Policy, Potts stated that it would be “impossible” for Facebook “to comply with anything by December 1, [2021]. . . [W]e would not be able to change systems in that nature. . . . I don’t see a way that we would actually be able to go forward with compliance in a meaningful way.” (Potts Depo., Dkt. 39-2, at 2, 46). Plaintiffs also express a concern that revealing “algorithms or procedures that determine results on the platform” may reveal trade secrets or confidential and competitively-sensitive information. (Id. at 34) (quoting Tex. Bus. & Com. Code § 120.051(a)(4)).

The Section 2 requirements burden First Amendment expression by “forc[ing] elements of civil society to speak when they otherwise would have refrained.” Washington Post v. McManus, 944 F.3d 506, 514 (4th Cir. 2019). “It is the presence of compulsion from the state itself that compromises the First Amendment.” Id. at 515. The provisions also impose unduly burdensome disclosure requirements on social media platforms “that will chill their protected speech.” NIFLA, 138 S. Ct. at 2378. The consequences of noncompliance also chill the social media platforms’ speech and application of their content moderation policies and user agreements. Noncompliance can subject social media platforms to serious consequences. The Texas Attorney General may seek injunctive relief and collect attorney’s fees and “reasonable investigative costs” if successful in obtaining injunctive relief. Id. § 120.151.

I'll just note that we had just mentioned that Washington Post v. McManus case earlier this week in calling out the Washington Post's hypocrisy in calling for mandatory disclosure rules for internet companies...

And Judge Pitman isn't done yet with the constitutional problems of HB20.

HB 20 additionally suffers from constitutional defects because it discriminates based on content and speaker. First, HB 20 excludes two types of content from its prohibition on content moderation and permits social media platforms to moderate content: (1) that “is the subject of a referral or request from an organization with the purpose of preventing the sexual exploitation of children and protecting survivors of sexual abuse from ongoing harassment,” and (2) that “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.” Tex. Civ. Prac. & Rem. Code § 143A.006(a)(2)–(3). When considering a city ordinance that applied to ‘“fighting words’ that . . . provoke violence[] ‘on the basis of race, color, creed, religion[,] or gender,”’ the Supreme Court noted that those “who wish to use ‘fighting words’ in connection with other ideas—to express hostility, for example, on the basis of political affiliation, union membership, or []sexuality—are not covered.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 391 (1992). As Plaintiffs argue, the State has “no legitimate reason to allow the platforms to enforce their policies over threats based only on . . . favored criteria but not” other criteria like sexual orientation, military service, or union membership. (Prelim. Inj. Mot., Dkt. 12, at 35–36); see id.

There's also some good language in here for those who keep insisting that setting (often arbitrary) size barriers or carveouts on these laws is perfectly fine. Not so if they lead to discriminatory impact on venues for speech:

HB 20 applies only to social media platforms of a certain size: platforms with 50 million monthly active users in the United States. Tex. Bus. & Com. Code § 120.002(b). HB 20 excludes social media platforms such as Parler and sports and news websites. (See Prelim. Inj. Mot., Dkt. 12, at 17). During the regular legislative session, a state senator unsuccessfully proposed lowering the threshold to 25 million monthly users in an effort to include sites like “Parler and Gab, which are popular among conservatives.” Shawn Mulcahy, Texas Senate approves bill to stop social media companies from banning Texans for political views, TEX. TRIBUNE (Mar. 30, 2021), https://www.texas tribune.org/2021/03/30/texas-social-media-censorship/. “[D]iscrimination between speakers is often a tell for content discrimination.” NetChoice, 2021 WL 2690876, at *10. The discrimination between speakers has special significance in the context of media because “[r]egulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 659 (1994). The record in this case confirms that the Legislature intended to target large social media platforms perceived as being biased against conservative views and the State’s disagreement with the social media platforms’ editorial discretion over their platforms. The evidence thus suggests that the State discriminated between social media platforms (or speakers) for reasons that do not stand up to scrutiny.

And, of course, everyone's favorite: HB 20 is unconstitutionally vague.

First, Plaintiffs take issue with HB 20’s definition for “censor:” “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.” Tex. Civ. Prac. & Rem. Code § 143A.001(1). Plaintiffs argue that requiring social media platforms to require “equal access or visibility to” content is “hopelessly indeterminate.” (Prelim. Inj. Mot., Dkt. 12, at 37) (quoting id.). The Court agrees. A social media platform is not static snapshot in time like a hard copy newspaper. It strikes the Court as nearly impossible for a social media platform—that has at least 50 million users—to determine whether any single piece of content has “equal access or visibility” versus another piece of content given the huge numbers of users and content. Moreover, this requirement could “prohibit[] a social media platform from” displaying content “in the proper feeds”

There are some other drafting oddities that the Judge calls out including this one:

HB 20 empowers the Texas Attorney General to seek an injunction not just against violations of the statute but also “potential violations.” Tex. Civ. Prac. & Rem. Code § 143A.008. Unlike other statutes that specify that the potential violation must be imminent, HB 20 includes no such qualification. See, e.g., Tex. Occ. Code § 1101.752(a) (authorizing the attorney general to seek injunctive relief to abate a potential violation “if the commission determines that a person has violated or is about to violate this chapter”). Subjecting social media platforms to suit for potential violations, without a qualification, reaches almost all content moderation decisions platforms might make, further chilling their First Amendment rights.

As in the Florida case, the court here notes that even if there were some reason under which the law should be judged under intermediate, rather than strict, scrutiny, it would still fail.

HB 20 imposes content-based, viewpoint-based, and speaker-based restrictions that trigger strict scrutiny. Strict scrutiny is satisfied only if a state has adopted ‘“the least restrictive means of achieving a compelling state interest.”’ Americans for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2383, 210 L. Ed. 2d 716 (2021) (quoting McCullen v. Coakley, 573 U.S. 464, 478 (2014)). Even under the less rigorous intermediate scrutiny, the State must prove that HB 20 is ‘“narrowly tailed to serve a significant government interest.’” Packingham v. North Carolina, 137 S. Ct. 1730, 1736 (2017) (quoting McCullen, 573 U.S. at 477). The proclaimed government interests here fall short under both standards.

It's not even a difficult call. It's the kind of "duh" explanation that made it easy for us to say upfront that this law was so obviously unconstitutional:

The State’s first interest fails on several accounts. First, social media platforms are privately owned platforms, not public forums. Second, this Court has found that the covered social media platforms are not common carriers. Even if they were, the State provides no convincing support for recognizing a governmental interest in the free and unobstructed use of common carriers’ information conduits. Third, the Supreme Court rejected an identical government interest in Tornillo. In Tornillo, Florida argued that “government has an obligation to ensure that a wide variety of views reach the public.” Tornillo, 418 U.S. at 247–48. After detailing the “problems related to government-enforced access,” the Court held that the state could not commandeer private companies to facilitate that access, even in the name of reducing the “abuses of bias and manipulative reportage [that] are . . . said to be the result of the vast accumulations of unreviewable power in the modern media empires.” Id. at 250, 254. The State’s second interest—preventing “discrimination” by social media platforms—has been rejected by the Supreme Court. Even given a state’s general interest in anti-discrimination laws, “forbidding acts of discrimination” is “a decidedly fatal objective” for the First Amendment’s “free speech commands.”...

And, the court practically laughs out loud at the idea that HB 20 was "narrowly tailored."

Even if the State’s purported interests were compelling and significant, HB 20 is not narrowly tailored. Sections 2 and 7 contain broad provisions with far-reaching, serious consequences. When reviewing the similar statute passed in Florida, the Northern District of Florida found that that statute was not narrowly tailored “like prior First Amendment restrictions.” NetChoice, 2021 WL 2690876, at *11 (citing Reno, 521 U.S. at 882; Sable Commc’n of Cal., Inc. v. FCC, 492 U.S. 115, 131 (1989)). Rather, the court colorfully described it as “an instance of burning the house to roast a pig.” Id. This Court could not do better in describing HB 20.

End result: injunction granted, the law does not go into effect today as originally planned. Texas will undoubtedly now appeal, and we can only hope the 5th Circuit doesn't muck things up, as it's been known to do. Depending on how this plays out, as well as how the 11th Circuit handles the Florida case, it's possible this could hit the Supreme Court down the road. Hopefully, both the 11th and the 5th actually take heed of Justice Kavanaugh's words in the Halleck case, and choose to uphold both district court rulings -- and we can get past this silly Trump-inspired moral panic attack on the 1st Amendment rights of social media platforms -- the very same rights that enable them to create spaces for us to speak and share our own ideas.

Filed Under: 1st amendment, content moderation, florida, hb20, section 230, social media, strict scrutiny, texas
Companies: ccia, netchoice

Hypocrite Grifters Project Veritas Scream About Press Freedom, Then Run To Court To Silence The NY Times

from the not-how-it-works dept

So, just yesterday we wrote about how the FBI's raid of Project Veritas's founder and a few associates was concerning from a press freedom standpoint -- and that you should be concerned even if you believe that Project Veritas are a bunch of dishonest grifters. However, beyond being a bunch of dishonest grifters -- who still deserve press freedoms -- it appears that Project Veritas are also a giant bunch of hypocrites.

All week they've been grandstanding about press freedoms... while at the same time they hired the law firm of Clare Locke -- a firm that brags about silencing the press -- to try to silence the NY Times. Incredibly, so far it has worked. Project Veritas and Clare Locke successfully got a judge in NY to issue a ridiculously broad order requiring that the NY Times delete information it had in its possession and then stop reporting on certain aspects of Project Veritas' behavior.

This is straight up prior restraint.

ORDERED that, until such time as this Court resolves the order to show cause, defendant The New York Times shall immediately sequester, protect, and refrain from further disseminating or publishing any of plaintiff Project Veritas’ privileged materials in the possession of The New York Times, or its counsel, and that The New York Times and its counsel shall cease further efforts to solicit or acquire plaintiff Project Veritas’ attorney-client privileged materials.

The prohibition on distributing materials is concerning enough, but the demand that they "cease further efforts to solicit or acquire" material about Project Veritas is literally banning reporting. That's clearly a 1st Amendment violation. Basically every lawyer that Law & Crime spoke to notes that this is blatant prior restraint.

Libby Locke from Clare Locke (who once insisted to me that anti-SLAPP laws harmed people) put out a statement that misrepresents the law to the point of being laughable:

“A prior restraint is just that—a restraint before publication. Here, The Times already published Veritas’ attorney-client privileged communications, and the interim order and more permanent relief sought are narrowly tailored to that misconduct,” Locke told Law&Crime in an email. “Moreover, even if this were a prior restraint (it is not), there are certain circumstances where the law permits a court to enjoin the publication of materials before it happens—including, for example, by a protective order in litigation between litigants to prevent the use and dissemination of attorney-client protected materials. And this is no greater restraint on speech than the myriad protective orders the Times has been subject to in other litigation proceedings.”

This statement is stunning in its own way. First, it is wrong about prior restraint (and misstates the full extent of the order). Again, Law & Crime spoke to a lawyer who knows better:

Former federal prosecutor Mitch Epner, who has consulted with media organizations on First Amendment and copyright issues and is now of counsel with Rottenberg Lipman Rich PC, told Law&Crime in a phone interview that Project Veritas’s counsel has it wrong on the meaning of prior restraint—and that’s just what this order is.

“Even though it’s only an interim order, it is clearly a prior restraint, and it strikes at the very heart of the First Amendment protection of the U.S. to publish,” Epner said in a phone interview.

As for Locke’s definition, Epner said: “It is not the way people understand the term prior restraint.”

“It is a restraint of what can be published before there has been a ruling on the merits,” he noted.

Furthermore, the rest of Locke's comments are stunning in that she more or less admits that prior restraint is fine in the second part.

But, there's a much bigger point here. This is Project Veritas demanding that a media organization not publish content that it had received. Project Veritas. An organization whose entire existence is based around trying to obtain material it's not supposed to have or by honey trapping and surreptitiously recording people. What kind of fucked up organization would try to set a precedent that could then easily be turned around and used against its own practices?

The NY Times is very, very likely to appeal, and a NY appellate court is likely to toss this out very, very quickly -- and hopefully the court provides Justice Charles Wood with a strong talking to about prior restraint and the 1st Amendment. Justice Wood should know this already -- because it's one of the most basic things about the 1st Amendment that every judge should know, but also because the NY Times told him directly in a letter filed earlier in the day.

Plaintiff’s proposed Order to Show Cause requests, among other things, that the Court enter an order directing The Times to “refrain from further disseminating or publishing” information that Project Veritas asserts, without evidence, that The Times obtained improperly. Such an order is, on its face, the paradigmatic example of an unconstitutional prior restraint. See, e.g., Alexander v. United States, 509 U.S. 544, 550 (1993) (“Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.”); Organization for a Better Austin v. Keefe, 402 U. S. 415 (1971) (vacating order “enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois” as impermissible prior restraint); Vance v. Universal Amusement Co., 445 U. S. 308, 311, 317 (1980) (per curiam) (striking down, on prior restraint grounds, Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction prohibiting future exhibition of films that had not yet been found to be obscene); Porco, 116 A.D.3d at 1266.

Before the imposition of such a draconian and disfavored restriction, The Times should have the opportunity to be heard. The Times therefore respectfully requests that the Court hold in abeyance Plaintiff’s request to enter an Order to Show Cause in order to permit The Times to file a response in opposition to Plaintiff’s request no later than November 24, 2021. As our forthcoming opposition will make clear, Plaintiff’s request is factually and legally deficient. The request lacks merit and seeks relief that the Court cannot and must not grant.

Rather than do that, Justice Wood just granted Project Veritas' blatantly censorial demands.

I still think that Project Veritas's own rights deserve protecting, and remain concerned about the FBI raid. But Project Veritas is no defender of free speech itself. It is a censorial, thuggish, grifting, hypocritical organization and everything it does should be seen through such a lens.

Filed Under: 1st amendment, freedom of the press, injunction, journalism, libby locke, prior restraint, reporting
Companies: clare locke, ny times, project veritas

Wherein The Copia Institute Tells The Eleventh Circuit That Florida's SB 7072 Law Violates Our Rights

from the sticking-it-to-everyone-to-stick-it-to-facebook dept

We've talked a lot about the Florida law SB 7072 that attempts to regulate social media platforms. In broad strokes, it tries to constrain how at least certain Internet platforms moderate their platforms by imposing specific requirements on them about how they must or may not do so. That law is now being challenged in court. The district court enjoined it, and Florida has now appealed to the Eleventh Circuit to have the injunction overturned. This week the Copia Institute joined others in filing amicus briefs in support of maintaining the injunction.

As we told the told the court, the Copia Institute wears two hats: One hat we wear is as commentators on the issues raised by the intersection of technology and civil liberties, which laws like Florida's impact. Meanwhile, the other hat is the one we wear by sitting at this crossroads ourselves, particularly with respect to free speech.

To operate Techdirt, the Copia Institute needs robust First Amendment protection, and also Section 230 protection, to both convey our own expression and to engage with our readers, including in our comments section. Unfortunately the Florida law impermissibly targets both sets of rights. And this constitutional and statutory incursion affects every Internet platform, and all the user speech they facilitate, including us and ours, even if we don't all fall directly into its crosshairs.

The Florida law's enforcement crosshairs are especially arbitrary, ostensibly targeting companies with very high revenue, or very large audiences, unless, of course, they happen to also own a theme park… But one thing we told the court is that the specific details don't really bear on the law's overall constitutional and statutory defects. Part of the reason is because if Florida could pick these arbitrary criteria, which might not apply to certain platforms, another state could pass a law with different criteria that would reach more, and then these platforms would still be left having to cope with a fundamentally impermissible law.

Also, it's not clear that even small entities like ours might not be able to attract the larger audiences the Florida law describes since that's at the very heart of what we try to do as an enterprise: have reach and influence. The point of the First Amendment is to make it possible for outlets like ours to connect with readers – only thanks to laws like this, we could end up punished with onerous regulation we couldn't possibly comply with should we succeed. And that sort of punitive deterrence to expression is not something the First Amendment, or even Section 230, permit.

But even if Techdirt could remain safe from the reach of a law like this, it would still hurt us if it hurt other platforms, because we need the help of other platforms to help our message get out too. Indeed, the whole point of the Florida law is ostensibly to help people use these other platforms to get their messages out. Only the upshot is that the law does the exact opposite by salting the regulatory earth so that no platform can safely exist to help users do that.

Filed Under: 11th circuit, amicus brief, comments, florida, free speech, moderation, section 230, social media

[UPDATED]: Myanmar's Military Junta Sentences American Journalist To Eleven Years In Prison

from the and-it's-coming-back-to-take-away-the-rest-of-his-life dept

[UPDATE]: Well, that was quick. Fenster has been released, which hopefully indicates Myanmar's unelected government is discovering it's a bad idea to pick fights with most of the rest of the world. However, I'm sure it will continue to brutalize its own citizens because those advocating for their rights on a local level won't have the leverage of the US State Department. Here's the statement by the US Secretary of State Antony Blinken celebrating Fenster's unexpected release:

We welcome the release of American journalist Daniel Fenster from prison in Burma, where he was wrongfully detained for almost six months. I commend Ambassador Tom Vajda and his team at U.S. Embassy Rangoon, Special Presidential Envoy for Hostage Affairs Roger Carstens, the expertise of Consular Affairs and the dedicated partners, including Governor Bill Richardson, who helped facilitate Danny’s release.

We are glad that Danny will soon be reunited with his family as we continue to call for the release of others who remain unjustly imprisoned in Burma.

[Original article continues below:]

An American journalist is just one of many victims of a coup that overthrew Myanmar's actual elected government and replaced it with the country's military, which had claimed the election its favored party didn't win had been, in effect, stolen. No election irregularities were discovered, but that didn't matter much to the military, which had the might (but not the right) to seize power.

Along with the new government came new rules. Many of those targeted opponents and critics of the unelected government. Plenty of those targeted were journalists. Newspapers that had been at least tolerated under the previous regime were now deemed illegal operations.

One of those caught in the new government's net was American-born journalist Danny Fenster. Fenster wrote for a news outlet the coup perpetrators declared illegal shortly after they took power. Thumbing its nose at sanctions imposed on it by dozens of countries, the government hauled Fenster into its kangaroo court and decided the actual facts were too inconvenient to be given any credence by the prosecution.

Much of the prosecution’s case appeared to hinge on his being employed by Myanmar Now, another online news site, that was ordered closed this year. But Fenster left his job at Myanmar Now in July last year, joining Frontier Myanmar the following month.

Prosecution witnesses testified that they were informed by a letter from the Information Ministry that its records showed that Fenster continued to be employed this year by Myanmar Now.

Both Myanmar Now and Frontier Myanmar issued public statements that Fenster had left the former publication last year, and his lawyer said defense testimony, as well as income tax receipts, established that he works for Frontier Myanmar.

The prosecution was going to get what it wanted. It threw everything it could at him and got all of it to stick.

The court found him guilty on Friday of spreading false or inflammatory information, contacting illegal organizations and violating visa regulations, lawyer Than Zaw Aung said.

Those charges alone will lock this journalist up for eleven years in a hard labor prison. But the newly non-elected government of Myanmar isn't through making its point to critics, journalists, dissidents, and members of opposition parties. The government wants to put Danny Fenster away for life.

Fenster, the managing editor of the online magazine Frontier Myanmar, is still facing additional terrorism and treason charges under which he could receive up to life in prison.

The US State Department has condemned this prosecution by Myanmar's military government. We'll see how much that condemnation will actually matter in the coming weeks.

The Burmese military regime’s sentencing of U.S. journalist Danny Fenster is an unjust conviction of an innocent person. The United States condemns this decision. We are closely monitoring Danny’s situation and will continue to work for his immediate release.  We will do so until Danny returns home safely to his family.

That's where Fenster was headed when he was arrested -- at the airport, hoping to fly home and see his family. Now he's being used as a test case for the newly installed government's power. It's staring down most of the rest of the world at this point and waiting to see who will blink first.

It's still dangerous everywhere for journalists, especially those who put their own lives and liberty at risk to provide reporting in areas where governments directly control press outlets and subject those not under its control to massive amounts of oppression.

Filed Under: danny fenster, free speech, journalism, myanmar

Hong Kong Government Now Directly Censoring Films In Hopes Of Shutting Down Protest-Related Documentaries

from the PUT-ON-A-HAPPY-FACE dept

The Chinese-run Hong Kong government is still finding more ways to suppress criticism. A new, very broad national security law pretty much criminalized protests or criticism of the Chinese government's long list of intrusions and impositions into Hong Kong's self-governance. The law allowed the regular police to become the internet police and the police state to become official with the appointment of law enforcement officials to prominent national security oversight positions.

Silencing journalists and critics was only the beginning. There are several ways the government can be criticized but those options are drying up. Rules were imposed that shut down art displays in Hong Kong, targeting anything the government felt might be "endangering national security" -- a phrase that means anything critical of the Chinese government or its appointees in the Hong Kong government.

This form of censorship has been expanded to cover other creative expressions not previously directly targeted by the national security law.

Hong Kong's legislature passed a new film censorship law on Wednesday to "safeguard national security," though critics say it will dampen creativity in its world famous movie industry and further reduce freedoms in the former British colony.

This law gives Hong Kong's chief secretary the ability to revoke film licenses if the works offend the Chinese government. It also subjects violators to HK$1 million fines and up to three years in prison. This is going to cause problems for Hong Kong's film industry, which now must engage in self-censorship under the threat of imprisonment.

But the primary target of the new law isn't Hong Kong's commercial filmmakers. It's the documentarians who have covered long-running protests of the Chinese government's intrusions.

The biggest impact of the new censorship law, several say, will be on Hong Kong’s status as an international film hub and the city’s rich catalogue of lauded, thoughtful and often political films. Last week’s law allows Hong Kong’s security chief, John Lee Ka-chiu, to ban the screening of existing films if he determines they threaten national security. The one most often cited as a likely target is the 2015 film 10 Years, a dystopian and rather prophetic imagining of Hong Kong’s future, but there are many others.

“We have so many films critical of governments, especially from before 1997 when we were still a colony of Britain,” says the Inside the Red Brick Wall film-maker.

Unfortunately, the new law doesn't really change much for those documenting protests and other anti-government activities. The targeting of other forms of art earlier in the year made it clear filmmakers would next be subjected to the ever-expanding national security law. Most filmmakers covering anti-government activities have already gone underground, working anonymously to document the always-getting-worse state of affairs in Hong Kong. Others have left the country entirely, realizing the situation is unlikely to ever improve.

Censorship like this may serve the purpose of allowing the government to continue getting worse without having to physically observe unhappy constituents expressing their displeasure through protests, creative works, or online comments. But it doesn't actually make anyone like the government. It just forces them to hide their hatred a bit better. Some governments might find this act counterproductive, as it only creates more well-hidden enemies. But once a country decides it's going to engage in this level of censorship, it has also decided it doesn't need to answer to anyone, least of all the people who are now just doing time in the Hong Kong wing of the Chinese police state.

Filed Under: censorship, china, documentaries, free speech, hong kong, national security, protests

Fifth Circuit Appeals Court Strips Immunity For Officers Who Arrested A Journalist For Asking Questions

from the and-that's-why-they-play-the-courtroom-games dept

The Fifth Circuit Court of Appeals has finally found some law enforcement officers not worthy of qualified immunity. The First and Fourth Amendment violations were too egregious to be ignored, even with a lack of precedential decisions on point to work with.

In January 2018, Laredo (Texas) police officers arrested a local journalist -- Priscilla Villareal, a.k.a. Lagordiloca -- for asking a couple of questions of (and receiving a couple of answers from) another Laredo PD officer. Villareal doesn't work for any local press outlet. Instead, she broadcasts directly to 120,000 Facebook followers, often adding commentary to ongoing events.

The local cops don't like her. So, they decided to have her arrested under Texas Penal Code §39.06(c), which says:

A person commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he solicits or receives from a public servant information that:

(1) the public servant has access to by means of his office or employment;  and

(2) has not been made public.

Here's what happened, as recounted by the Fifth Circuit opinion [PDF]:

In April 2017, Villarreal published a story about a man who committed suicide. The story identified the man by name and revealed that he was an agent with the U.S. Border Patrol. Villarreal first uncovered this information from talking to a janitor who worked near the scene of the suicide. She then contacted LPD Officer Barbara Goodman, who confirmed the man's identity.

The following month, Villarreal published the last name of a family involved in a fatal car accident in Laredo. She first learned the family's identity from a relative of the family who saw a video that Villarreal had posted. Again, Villarreal contacted Officer Goodman, and again, the officer verified this information.

Rather than deal with the loose-lipped employee, the Laredo PD secured two arrest warrants six months after the second publication, alleging two separate violations of this law. Supposedly Villareal had violated this law by "gaining more followers" after publication of this info. Yes, the Laredo PD alleged she did it for the clicks. Villareal found out about these warrants and turned herself in. She was detained at the county jail following this additional indignity:

During the booking process, Villarreal saw LPD officers taking pictures of her in handcuffs with their cell phones. The officers mocked and laughed at her.

The charges were tossed two months later.

Villarreal filed a petition for a writ of habeas corpus in the Webb County district court. In March 2018, a judge granted her petition and held that § 39.06(c) was unconstitutionally vague. The government did not appeal.

Villareal sued the officers who arrested her. The lower court said it looked like some rights may have been violated but not in a way any officer had tried before. Qualified immunity was awarded even though the law used to arrest her had been rejected as unconstitutional by a judge. The lower court believed the cops had no way of knowing they shouldn't use a bad law to punish a journalist they didn't like.

The Appeals Court sees it differently. This was such a clear violation of rights it doesn't even matter that there's no on-point precedent.

After discussing precedent (and precedent involving clear rights violations that also lacked courtroom precedent), the Fifth Circuit arrives at this conclusion:

The point is this: The doctrine of qualified immunity does not always require the plaintiff to cite binding case law involving identical facts. An official who commits a patently “obvious” violation of the Constitution is not entitled to qualified immunity.

That principle should have precluded dismissal of the various constitutional claims presented here. Just as it is obvious that Mary Anne Sause has a constitutional right to pray, it is likewise obvious that Priscilla Villarreal has a constitutional right to ask questions of public officials. Yet according to her complaint, Defendants arrested and sought to prosecute Villarreal for doing precisely that—asking questions of public officials.

This is not just an obvious constitutional infringement—it’s hard to imagine a more textbook violation of the First Amendment.

The Court hammers this point home:

If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well.

[...]

If freedom of the press guarantees the right to publish information from the government, then it surely guarantees the right to ask the government for that information in the first place.

[...]

Put simply: If the government cannot punish someone for publishing the Pentagon Papers, how can it punish someone for simply asking for them? See New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam).

The Appeals Court wonders what the Laredo police officers were thinking, which means it also wonders what the lower court was thinking when it chose to award them qualified immunity.

So it should be patently obvious to any reasonable police officer that the conduct alleged in the complaint constitutes a blatant violation of Villarreal’s constitutional rights. And that should be enough to defeat qualified immunity.

But but but but but we used a law, said the officers. Oh my no, says the court. It's a terrible law. Doesn't count.

We do not grant qualified immunity where the official attempts to hide behind a statute that is “‘so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.’”

Cue pop culture reference from an underwhelming sequel:

It should be obvious to any reasonable police officer that locking up a journalist for asking a question violates the First Amendment. Indeed, even Captain Lorenzo, the stubborn police chief in Die Hard 2, acknowledged: “Now personally, I’d like to lock every [expletive] reporter out of the airport. But then they’d just pull that ‘freedom of speech’ [expletive] on us and the ACLU would be all over us.” Die Hard 2 (1990).

Captain Lorenzo understood this. The officers in Laredo should have, too.

If the law was so bad it resulted in a First Amendment violation, arresting Villareal using the law was obviously (altogether now, officers) also a Fourth Amendment violation.

As explained above, a reasonably well-trained officer would have understood that arresting a journalist for merely asking a question clearly violates the First Amendment. “A government official may not base her probable cause determination on an ‘unjustifiable standard,’ such as speech protected by the First Amendment.” Mink v. Knox, 613 F.3d 995, 1003–04 (10th Cir. 2010) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)). See also Swiecicki v. Delgado, 463 F.3d 489, 498 (6th Cir. 2006) (“[A]n officer may not base his probable-cause determination on speech protected by the First Amendment.”).

The same goes for the Fourteenth Amendment claim. Villareal pointed out no other journalists have been arrested under this law for asking questions and receiving answers from police officers or PD employees. Just because other journalists may have approached the PD's spokesperson rather than speaking directly to their PD source doesn't make any difference. That claim can move forward as well.

No qualified immunity for the officers. They will have to face these claims, as well as conspiracy claims. And, as a bonus, the Texas State Attorney has been notified the state has an unconstitutional law on the books and will need to get that fixed ASAP.

Sometimes you don't need precedent to strip immunity. Sometimes -- even in the Fifth Circuit -- the facts are so obvious even a bunch of petty police officers should have recognized that targeting a critic with a terrible law would be unconstitutional. These officers chose to seek warrants anyway, possibly under the presumption that abusing their power would be greeted with sustained claims of qualified immunity. And that plan worked… right up until it didn't.

Filed Under: 1st amendment, 4th amendment, 5th circuit, asking questions, citizen journalism, journalism, laredo, law enforcement, police, priscilla villareal, qualified immunity, texas

Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

from the fire-in-a-theater dept

It keeps coming up, the all-too-common, and all-too-erroneous, trope that "you can't shout fire in a crowded theater." And it shouldn't, because, as a statement of law, it is completely wrong. It's wrong like saying it's legal to rob a bank. Or, perhaps more aptly, it's wrong like saying it's illegal to wear white after Labor Day. Of course such a thing is not illegal. It's a completely made-up rule and not in any way a reflection of what the law on expression actually is, or ever was. And it's not without consequence that so many people nevertheless mistakenly believe it to be the law, and in so thinking use this misapprehension as a basis to ignore, or even undermine, the otherwise robust protection for speech the First Amendment is supposed to afford.

This post therefore intends to do two things: explain in greater detail why it is an incorrect statement of law, and also how incorrectly citing it as the law inherently poisons any discussion about regulating online speech by giving the idea of such regulation the appearance of more merit than the Constitution would actually permit. Because if it were true that no one could speak this way, then a lot of the proposed regulation for online speech would tend to make more sense and also raise many fewer constitutional issues, because if it were in fact constitutional to put these sorts of limits on speech, then why not have some of these other proposed limits too.

But the "fire in a crowded theater" trope is an unsound foundation upon which to base any attempt to regulate online speech because it most certainly is NOT constitutional to put these sorts of limits on speech, and for good reason. To understand why, it may help to understand where the idea came from to end up in the public vernacular in the first place.

Its origins date back to a little over a century ago when the Supreme Court was wrestling with several cases involving defendants having said things against government policy. In particular, President Wilson wanted the United States to enter what eventually became known as World War I, and he wanted to institute the draft in order to have the military necessary to do it. He got his way and these decisions have become part of our history, but at the time they were incredibly contentious policies, and people spoke out against them. The government found this pushback extremely inconvenient for generating the public support it needed. So it sought to silence the loudest voices speaking against it by prosecuting them for their messages.

In the case of Schenck v. U.S., the defendants had been distributing flyers encouraging young men to resist being drafted. Yes, maybe sometimes you could say such things, the Court decided in upholding their convictions, but sometimes circumstances were such that such expression was no longer permissible. And the standard the Court used for deciding whether it was permissible or not was whether the speech presented a "clear and present danger."

But this was a decision that has since been repudiated by the Court. Even Justice Oliver Wendell Holmes, who himself had written the decision, soon came to believe that the standard he articulated in Schenck for what speech could be punished reached too much speech, and he said as much in his dissent in the subsequent Abrams v. U.S. case, which was another one where the defendants were being prosecuted for ostensibly interfering with the government's wartime policy.

Over time the rest of the Court joined him in the view that the First Amendment protected far more speech than its earlier decisions had allowed. Today the standard for what speech can be proscribed is the much narrower one articulated in Brandenburg v. Ohio, which said that speech can only be prosecuted if it is intended to incite "imminent lawless action" (read: a riot). It didn't mean provocative speech that might inflame feelings (even the speech of a KKK member was protected) but something far more precipitous. It is still left room for some speech to be unprotected, but this more restrained standard is much less likely to prohibit too much speech, as the standard from the Schenck decision had.

In the wake of this later jurisprudence limiting what speech can be punished we can today more easily see, in hindsight, how the Schenck decision let the government suppress way too much speech, which is why the courts have moved away from it. For instance, war, and even the draft, remain controversial issues, but we now expect to be able to speak against them. Moving away from Schenck has made it easier to intuitively understand that the public has the right, and must have the right, to speak against the powerful, including the government. Even if well-intentioned in its actions the government may nonetheless be wrong to do what it wants to do, and what if those intentions are not noble? The greater the impact of the action the government wants to take, the greater the need to be able to speak against it – and often the greater the government impulse to shut that speech down.

But what's key for this discussion here is that, despite the obvious error of the Schenck decision, people are still quoting a part of it as if it were still good law, as if it were EVER good law, and as if the part they are quoting did not itself perpetuate the same fundamental mistake of Schenck and put too much speech beyond the reach of First Amendment protection – which creates its own danger.

Because it was in the Schenck decision where Justice Holmes included the casual mention about not being able to shout fire in a crowded theater. It was a line that itself was only dicta – in other words, it was never actually a statement of law but rather a separate musing used to illustrate the point of law the decision was trying to articulate. It wasn't what the case was about, or a statement that was in any other way given the robust consideration it should have been due if it were to truly serve as a legal benchmark. After all, what if the theater was actually on fire? Would saying so be illegal? Ironically, the people getting the law wrong by citing this line also tend to cite it incorrectly, because what is often omitted from the trope is that Holmes suggested the problem would only arise by "falsely" shouting fire. But even if this criteria were to be part of the rule, might not such a rule deter people from shouting alarm even if the theater was actually burning? Justice Holmes slipped that single line in the decision as a truth, but it was one he had only just suddenly conjured out of whole cloth. Nowhere did he address the implications of such a rule, or what it would mean when history mistook it as one.

Because it is not the rule. It never was the rule. And it never, ever should be cited today as being the rule. From almost the moment it was judicially uttered it was already out of step with our understanding of what the First Amendment protects, and it has only gotten more and more detached as our understanding of the First Amendment's protection and purpose have gotten more precise. Modern jurisprudence has made clear that it is in only the rarest exception where freedom of speech can be impinged. It is therefore legally wrong to suggest otherwise, and even more legally ignorant to use this line to do it.

Perhaps more importantly, though, even if it were the rule, it shouldn't be. Even back in the day of firetrap theaters stuffed with flammable celluloid it was of dubious value as a rule proscribing speech because sometimes speech really needs to be said, and thus it is important – maybe even of critical importance – that such speech not be chilled. The same is no less true today. Indeed, the more contentious public discourse is, and the higher the stakes, the more important it is that everyone be free, and FEEL free, to express themselves. We can't have people too scared to speak against misuses of power because they might run afoul of someone deciding that certain ideas should not be said. Yet it's that fear of recrimination that often is what silences people more than any specific sanction. And it's that fear that deprives the public of any benefit of whatever they had to say.

Which is why our understanding of the First Amendment's protection has come to be far more broad and permissive than such a rule about crowded theaters would ever allow, because it is the only read of the Constitution that gives the First Amendment its true protective utility. When we speak of the law regarding free speech we speak of a law that understands it's better to have too much speech, including some that is valueless, than to risk losing the speech that has value. And it's a rule that applies just as much to speech online as off, as the Supreme Court also announced in Reno v. ACLU. All of our discussions about online speech should therefore start there, with that principle, and not around single throwaway lines from long discredited opinions that try to pretend that speech is ever so easily unprotected.

Filed Under: 1st amendment, fire in a theater, free speech

Massachusetts College Decides Criticizing The Chinese Government Is Hate Speech, Suspends Conservative Student Group

from the highly-educated-but-apparently-low-on-common-sense dept

A college has done something dumb and unconstitutional. Not all that surprising. Neither is the response, coming from Adam Steinbaugh and FIRE (Foundation for Rights in Education).

Emerson College may be a private university, but that doesn't mean it can just ignore the First Amendment. In fact, it says it won't ignore these rights, which obligates it to uphold them. This is Emerson College in its own words (archived link in case the college decides to disappear it):

As an institution dedicated to Communication and the Arts, the first amendment of the US Constitution is of high importance. The right to freedom of speech, freedom of press, freedom of political belief and affiliation, freedom from discrimination, freedom of peaceful assembly, and petition of redress or grievances is not only a right but a community responsibility.

[...]

The College encourages students to present ideas, express their individuality and culture, and be open to thoughts or life styles that differ from their own.

Truly inspiring. And Emerson College truly respects this right. Except when it doesn't.

Emerson College suspended a campus chapter of conservative student group Turning Point USA on Oct. 1 after members passed out stickers critical of China’s government.

The "conservative group" was Turning Point USA, one created and led by unfortunate human being Charlie Kirk and supported by people who think Charlie Kirk actually has anything useful to offer anyone.

No matter what anyone thinks about TPUSA (including me!), this response is not only overblown, but completely ignores the content of the stickers Emerson (and some of its students) got all investigatory about.

Under pressure from other student groups who accused TPUSA of anti-Asian bias and xenophobia, including the Emerson Chinese Student Association, the college launched an investigation into the group. In an Instagram video, the TPUSA chapter said the stickers are critical of the Chinese government, not the Chinese people.

On Oct. 1, the TPUSA chapter’s leaders received a letter from Julie Rothhaar-Sanders, Emerson’s director of community standards, stating that the college had launched a formal investigation of TPUSA under Emerson’s Bias-Related Behavior and Invasion of Privacy policies. While the investigation is active, TPUSA faces “interim action,” meaning the group is barred from normal activities, such as hosting events or reserving campus space for meetings.

Is this really "anti-Asian bias" and/or "xenophobia?" This is the sticker in question, which references a famous meme that originated in a multiplayer game:

If you can't see the picture, it features a little "Among Us" spaceman guy dressed in red with a hammer-and-sickle insignia. Underneath it is the phrase "China Kinda Sus." "Sus" being short for "suspicious."

Notably it does not say "Chinese people are sus" or "Orientals are sus" or anything else that suggests this sticker refers to anything but the country and, by extension, its government.

Is China kinda sus? You be the judge. It refuses to recognize Taiwan as a country, has turned Hong Kong's government into an extension of its own following months of pro-democracy protests, subjects its citizens to intrusive, omnipresent surveillance, censors its citizens and companies providing internet services, and is engaged in the ongoing persecution of certain minorities. That's all pretty "sus."

Yet, the college chose to believe this was actually an offensive thing to say and bypassed its own stated support for protecting First Amendment rights to limit TPUSA's activities on campus.

That has led to FIRE and Adam Steinbaugh not-too-gently reminding the college about First Amendment protections and the college's promise to respect these rights. This is from FIRE's letter [PDF]:

The stickers distributed at Emerson and elsewhere are critical of China’s government. They follow a long tradition of student protests on American college campuses criticizing foreign nations, whether those opposing South Africa’s apartheid or, more recently, the government of Israel.

Freedom of expression entails the right to criticize not only our own government, but those of foreign nations, even when that criticism is offensive to the “dignity” of those states or threatens to upend “vital national interest[s.]”

Even if the college is concerned about its obligations under Title VII, which requires it to investigate and respond to allegations of hostile student environments, this sticker ain't it.

First, the speech is not based on race, ethnicity, or national origin. The stickers do not invoke or traffic in stereotypes associated with people of Chinese descent or origin. Instead, the stickers are speech critical of China’s government. The stickers utilize the familiar emblem of the sole governing party of the country, superimposed over a video game character bearing the same red color of China’s flag. The sticker’s text (“China kinda sus”) refers to the name of the country, not its people. Criticism of a foreign government is not inherently criticism of the people it purports to represent, even if people who hail from, descend from, or support that particular nation find that criticism personally offensive.

Second, even assuming the stickers’ message was capable of being construed as speech based on race, ethnicity, or national origin, it does not rise to the level of peer-on-peer harassment as properly defined under the law.

If Emerson wants to stay out of the lawsuit defendant business, it will drop this investigation and reinstate TPUSA's rights and privileges. If it would rather continue to pretend that criticism of a foreign government is somehow harassment of the student body, it should probably give its legal counsel department heads up that it will be expected to defend the indefensible in the near future.

Oh, and even if you could make the argument that the combination of TPUSA and its stickers were problematic, Emerson took all this up a notch when its Twitter account started "hiding" any tweet that referenced China, including images of Winnie the Pooh. In case you don't recall, China has a longstanding policy of censoring images of Winnie the Pooh because its President, Xi Jinping, vaguely resembles the fictional bear.

So, yeah, an American college was literally hiding tweets in the identical manner as the Chinese government, to avoid upsetting the Chinese President. Of course, that only resulted in a lot more posts about Winnie the Pooh, nearly all of which Emerson College has hidden. It also blocked users who were tweeting Winnie the Pooh images. Kinda sus, actually. And really, doesn't live up to the promise of a college that "encourages students to present ideas, express their individuality and culture, and be open to thoughts or life styles that differ from their own."

Filed Under: 1st amendment, charlie kirk, china, free speech, hate speech, kinda sus, massachusetts, winnie the pooh, xi jinping
Companies: emerson college