Court Says City Of Baltimore's 'Heckler's Veto' Of An Anti-Catholic Rally Violates The First Amendment

from the fearing-for-the-people-who-aren't-the-people-responding-to-the-other-people dept

One of the more common violations of the First Amendment is viewpoint discrimination. When entities run into speech they don't like, they often steamroll Constitutional rights in their hurry to shut this speech down.

The government is allowed some time and place restrictions on speech, but it is very limited in its options. To expand these options, government entities will often say things about "public safety" to justify their incursion on people's rights. These justifications rarely justify the overreach.

Maybe these things happen because governments (incorrectly, in some cases) assume those whose rights have been abridged won't sue. Maybe they happen because governments assume nebulous "public safety" concerns won't be examined thoroughly if they are sued. Or maybe they just assume that, because they're using the public's money to both violate rights and defend against accusations of rights violations, none of this really matters because it isn't any particular government employee's money at stake.

That brings us to this case [PDF], where a Maryland federal court has ruled the government had no justifiable reason to shut down a "prayer rally." What it did have were some unjustifiable reasons, which were mainly related to the speakers and the kind of speech the government expected to be uttered… I mean, if it hadn't unconstitutionally shuttered the event. (via Courthouse News Service)

Here's some brief background by the court, which doesn't highlight the most likely trigger: alt-right figurehead Milo Yiannopoulos, who has been banned from [name a social media platform].

St. Michael’s, a non-profit organization, “is a vocal critic of the mainstream Catholic Church,” including the United States Conference of Catholic Bishops (“USCCB”). Plaintiff seeks to hold the prayer rally and conference to criticize the Church, particularly with respect to child sexual abuse committed by members of the clergy, and it wants to do so on a date that coincides with the USCCB’s Fall General Assembly. The USCCB plans to meet from November 15 – 18, 2021 at the Waterfront Marriott Hotel (“Hotel”), a private facility located near Pier VI.

On or about August 5, 2021, weeks after plaintiff had paid a $3,000 deposit to SMG for use of the Pavilion, SMG, on instruction of the City, notified St. Michael’s that plaintiff could not rent the Pavilion. The City cited safety concerns linked to some of the people who were identified as speakers at the event.

Given the average government's "for the children" protestations whenever it plans to violate rights, you'd think a rally criticizing a religious entity infamous for sexual abuse of children would be right up its rhetorical alley. You'd assume wrong -- not if its "allies" include people the elected officials of Baltimore find noxious. (That list includes Yiannopoulos, former Trump advisor Steve Bannon, and Newsmax commentator Michelle Malkin.)

St. Michaels sued, alleging First Amendment violations. The court (unsurprisingly) agrees. First, it notes a similar rally by the same group in 2018 which resulted in no acts of violence or any other threats to public safety. Nevertheless, city officials insisted this time would be different.

Michael Huber, Mayor Scott’s Chief of Staff, avers that the discussions between SMG and St. Michael’s “came to the attention” of the City in July 2021. In particular, the City learned that St. Michael’s planned a rally featuring speakers “known for encouraging violent actions that have resulted in injuries, death, and property damage.” In the City’s view, some of the speakers would “provoke a strong reaction and raise the potential for clashes and disturbances,” given the “very real potential [that the speakers] would use [the rally] to incite violence and public disruption.”

While it's true some of the threat matrix may have changed following an unprecedented attack on the Capitol building in Washington, DC by so-called conservatives apparently hoping to negate a peaceful presidential election, no previous experience with this group should have led city officials to this conclusion. And, while the forum being rented was privately-owned, the city has some say in the issuance (and, in this case, rescinding) of contracts. When it interceded -- for internally inconsistent reasons -- it violated the plaintiff's rights.

Without question, the City reacted to a perceived safety concern arising from past use of inflammatory remarks by some of the rally speakers. In thwarting the rally, the City essentially invoked or relied on the heckler’s veto. And, in doing so, it exercised complete, unfettered discretion; it acted on an ad hoc basis, without any standards. Further, it has presented somewhat shifting justifications for its actions, with little evidence to show that the decision was premised on these justifications.

As to the matter of discretion, the City apparently has unbridled discretion to determine whether, when, and how to intervene in bookings of the Pavilion. The record before the Court indicates that the process used here was entirely ad hoc. After plaintiff’s plans came to the attention of the City, the City decided to intervene with SMG, requiring SMG to terminate negotiations with St. Michael’s. No policies, guidelines, or procedures have been brought to the attention of the Court providing any factors or systematized approach governing the City’s actions here. As far as the Court is aware, none exist.

As the court notes, the main concern the city had appeared to be about those who would show up and protest the St. Michael's protest, rather than the supposed "incendiary" participants working with St. Michael's. That only adds to the list of ways the city violated the First Amendment.

The City’s invocation of a heckler’s veto also raises serious concerns that its decision was motivated by viewpoint discrimination. Huber cited the prospect of counter protestors when explaining the City’s decision. And, at the hearing, counsel for the City placed considerable weight on the City’s concerns as to counter protestors and the disruption and potential violence that might ensue. In other words, the City seems to have based its decision on the anticipated reaction of counter protestors, which is precisely the “persistent and insidious threat[s] to first amendment rights” discussed in Berger, 779 F.2d at 1001…

This is not an acceptable justification for regulating speech.

And more along those same lines:

As the Ninth Circuit put it in Seattle Mideast Awareness Campaign, although this concern might receive less weight outside of a traditional or designated public forum context, it is still relevant when “used as a mere pretext for suppression expression” based on viewpoint. This includes, for example, “where the asserted fears of a hostile audience reaction are speculative and lack substance.”

Such is the case here. The City cannot conjure up hypothetical hecklers and then grant them veto power.

St. Michael's gets its injunction against the City of Baltimore. The show will go on. The City violated the group's rights when it decided the people who didn't secure the venue were so potentially dangerous the speakers who rented the venue shouldn't be allowed to speak. A heckler's viewpoint is indistinguishable from viewpoint discrimination in situations like these. The city decided in favor of one viewpoint (the counterprotesters [a.k.a., the hecklers] and decided the other viewpoint (St. Michael's) had no right to be heard.

Filed Under: 1st amendment, baltimore, catholic church, free speech, michelle malkin, milo yiannopoulos, prior restraint, rally, steve bannon
Companies: st. michael's

Chicago Court Gets Its Prior Restraint On, Tells Police Union Head To STFU About City's Vaccine Mandate

from the please-don't-make-me-side-with-this-asshole dept

The Chicago PD -- fronted by the Chicago Fraternal Order of Police (FOP) [itself fronted by John Catanzara, "one of the most frequently-disciplined officers in the history of the Chicago PD"] -- is fighting the city of Chicago's vaccine mandate.

Yes, the thin blue line between criminals and the safety of the public has decided it will not stand between the spread of the virus and the safety of the public. Or, indeed, the safety of its officers, apparently. As COVID-19 continues to kill more officers five times faster than gunfire, Chicago PD officers have decided they'd rather die from something preventable than receive a vaccine.

Disgraced-officer-turned-police-union-president John Catanzara is the one making the most noise about the city's mandate and is weaponizing the PD's lack of self-care against the mayor and the city itself.

Officers in Chicago had a deadline of midnight Thursday to disclose their vaccine status to the city or be placed on unpaid leave, Catanzara said. Lightfoot said the city would take the weekend to check with officers who haven't complied before putting them on unpaid leave, and that she didn't think that would happen Saturday or Sunday. Lightfoot said officers should report for duty until they're told by supervisors that they've been placed on leave.

"If we suspect the numbers are true and we get a large number of our members who stand firm on their beliefs that this is an overreach, and they're not going to supply the information in the portal or submit to testing, then it's safe to say the city of Chicago will have a police force at 50% or less for this weekend coming up," Catanzara said. "That is not because of the FOP, that is 100% because of the mayor's unwillingness to budge from her hard line. So whatever happens because of the manpower issue, that falls at the mayor's doorstep."

The city apparently takes this threat seriously. It has asked a Cook County (IL) court for an injunction to block the FOP from speaking out against the vaccine mandate, which covers all city workers. The FOP has sued right back, seeking an injunction blocking the city from enforcing the mandate. In the meantime, the PD itself has cancelled all vacation and time off requests to ensure staffing once the mandate goes into effect.

The resistance against the mandate is inexplicable, given the alarming number of law enforcement deaths the virus has caused. Law enforcement agencies demand tougher laws and increased funding every time there's a spike in officer deaths at the hands of suspected criminals. But when it's a preventable disease doing the killing, cops would rather go jobless than be inoculated.

This resistance is being led by a man who's mostly known for violating rights and running his mouth. If Catanzara truly speaks for the Chicago PD rank-and-file, perhaps a 50% layoff isn't a bad idea, especially if the city can restock with new officers who aren't already accustomed/resigned to the PD's long history of brutality, violence, rights violations, and nonexistent oversight. Then again, you'd think the rank-and-file would want to continue trying to get a handle on increasing gun violence in the city, given the oft-stated concerns about public safety.

But none of that makes this an acceptable interim outcome. The litigation crossfire has resulted in an additional violation of rights.

A judge late Friday issued a temporary restraining order against the Chicago police union president, prohibiting him from making public statements that encourage members not to report their COVID-19 vaccine status to the city.

Cook County Circuit Judge Cecilia Horan ruled there was potential irreparable harm if local Fraternal Order of Police President John Catanzara persisted in making such statements. City attorneys argued they were tantamount to him advocating “sedition” and “anarchy” because he was directing members to disobey an order from their superiors.

Catanzara's agitating may be aggravating and annoying but it is not "sedition" or "anarchy." His statements may run contrary to the city's wishes but he should be free to make them. He has not actually called for strike (which is forbidden by the PD's contract) but rather suggested officers' should refuse requests for vaccination status and memorialize these interactions via body cam if possible. Catanzara has also speculated that more than half the police force will no longer be employed if a COVID vaccination is a job requirement. This court order appears to be prior restraint -- something impermissible even with the city's obvious interest in ensuring the safety of its employees.

That being said, maybe Chicago police officers should do the thing they're always telling citizens to do: comply, comply, comply. If it appears rights are being violated, members of the public are expected to take their lumps first and sue about it later. That's what the PD should do here: supply the PD with their vaccination status and get aggrieved later -- that's if they care at all about being the thin blue line standing between the innocent public and violent criminals.

Filed Under: chicago, covid, free speech, police unions, prior restraint, vaccine mandate, vaccines
Companies: chicago fop

LinkedIn (Mostly) Exits China, Citing Escalating Demands For Censorship

from the UNSUBSCRIBE dept

Less than week from its horrendous decision to help China's censorship apparatus keep Chinese residents from accessing the accounts of American journalists, LinkedIn has announced it will no longer be offering the full-featured version of its quasi-social media platform in the country. (via the BBC)

Specifically cited in senior vice president Morak Shroff's announcement is China's escalating censorship demands, albeit in a bit more non-specific terms. It also acknowledges Microsoft and LinkedIn made a calculated decision to do business with a government that had the power to shut it down (or run it off) if LinkedIn failed to satisfactorily acquiesce.

Our decision to launch a localized version of LinkedIn in China in February 2014 was driven by our mission to connect the world's professionals to make them more productive and successful. We recognized that operating a localized version of LinkedIn in China would mean adherence to requirements of the Chinese government on Internet platforms. While we strongly support freedom of expression, we took this approach in order to create value for our members in China and around the world. We also established a clear set of guidelines to follow should we ever need to re-evaluate our localized version of LinkedIn in China.

This strategy has enabled us to navigate the operation of our localized version of LinkedIn in China over the past seven years to help our members in China find a job, share and stay informed. While we’ve found success in helping Chinese members find jobs and economic opportunity, we have not found that same level of success in the more social aspects of sharing and staying informed. We’re also facing a significantly more challenging operating environment and greater compliance requirements in China. Given this, we’ve made the decision to sunset the current localized version of LinkedIn, which is how people in China access LinkedIn’s global social media platform, later this year.

This makes LinkedIn the last US-based social media service to exit the Chinese market. It was preceded by all the rest, which have either been blocked or voluntarily parted ways with the country. And this announcement doesn't mean LinkedIn is completely done with China. The post says it will offer a stripped down version called "InJobs," which will only contain users' contact information and job histories. It's just LinkedIn with all the "social" stuff removed, like the ability to share posts or articles.

That should reduce the number of censorship demands to near zero. But it's China, so demands will continue to be made. This slimmed-down version of LinkedIn still gives the government the option of vanishing accounts of people it doesn't like, making it more difficult for them to connect with potential employees and employers.

On the whole, it's a good decision by LinkedIn. The past few years have seen demands ramp up. And they've also seen LinkedIn's compliance rise to meet the demand. It's not a good look for a US tech company, no matter how enticing a market of a billion potential users is.

Filed Under: censorship, china, journalists, profiles
Companies: linkedin, microsoft

Court Tells Arkansas Troopers That Muting Anti-Cop Terms On Its Facebook Page Violates The 1st Amendment

from the criticizing-the-government-still-at-the-top-of-the-1st-Amendment-list dept

When government entities use private companies to interact with the public, it can cause some confusion. Fortunately, this isn't a new problem with no court precedent and/or legal guidelines. For years, government agencies have been utilizing Twitter, Facebook, Instagram, etc. to get their message out to the public and (a bit less frequently) listen to their comments and complaints.

Platforms can moderate content posted to accounts and pages run by public entities without troubling the First Amendment. Government account holders can do the same thing, but the rules aren't exactly the same. There are limits to what content moderation they can engage in on their own. A case involving former president Donald Trump's blocking of critics resulted in an Appeals Court decision that said this was censorship -- a form of viewpoint discrimination that violated these citizens' First Amendment rights.

A decision [PDF] from a federal court in Arkansas arrives at the same conclusion, finding that a page run by local law enforcement engaged in unlawful viewpoint discrimination when it blocked a Facebook user and created its own blocklist of words to moderate comments on its page. (h/t Volokh Conspiracy)

This case actually went in front of a jury, which made a couple of key determinations on First and Fourth Amendment issues. The federal court takes it from there to make it clear what government agencies can and can't do when running official social media accounts.

Plaintiff James Tanner commented on the Arkansas State Police's Facebook page with a generic "this guy sucks" in response to news about the promotion of a state trooper. That post was removed -- then reinstated -- by the State Police.

While that may have been a (temporary) First Amendment violation, the court says this act alone would not create a chilling effect, especially in light of the comment's reinstatement shortly after its deletion.

However, the State Police took more action after Tanner contacted the page via direct message with messages that were far more direct. In response to the State Police's threat to ban him if he used any more profanity in his comments, Tanner stated: "Go Fuck Yourself Facist Pig." For that private message -- seen by no one but Tanner and Captain Kennedy, who handled moderation of the State Police page -- Tanner was blocked. Kennedy compared the block of Tanner as the equivalent of "hanging up" on a rude caller.

The court disagrees. It's not quite the same thing. "Hanging up" on someone terminates a single conversation. What happened here was more analogous to subjecting Tanner to a restraining order that forbade him from speaking to state troopers or about them.

Tanner profanely criticized the State Police for the deletion of his comments. That was protected speech, as "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987). That protection extends to saying "fuck you" to a police officer in person, Thuraraijah v. City of Fort Smith, Arkansas, 925 F.3d 979,985 (8th Cir. 2019), and the Court doesn't see a meaningful difference in the circumstances presented here. Plus, though profane, Tanner's private messages also criticized the actions the State Police took in response to his Facebook comments. The Court finds that the agency's decision to block Tanner was an adverse action that would chill a person of ordinary firmness from continuing in the activity.

[...]

The page administrators can, as Kennedy put it, hang up on Tanner's private messages. They can ignore them. They can delete them. The State Police may not, however, block Tanner from participating in its designated public forum based on his profane private messages. If the State Police had designated an area outside its headquarters as a place for citizens to stand and speak, the agency could not bar Tanner from doing so simply because he had cursed at a Trooper on the telephone.

Adding to the First Amendment violations was the Police's handcrafted blocklist, which added words and phrases not deemed offensive by Facebook's moderation rules. This was apparently unexpectedly revealed during discovery and the blocklist shows the agency engaged in automated viewpoint discrimination.

In addition to selecting a profanity filter setting, Facebook page administrators can also add specific words to a filter list. Corporal Head added the following words: "jackass", "pig", "pigs", "n*gga", "n*gger", "ass", "copper", and "jerk". Doc. 70-14 at ,r 15.

These terms blocked a couple of Tanner's last comments on the State Police page prior to the agency blocking his account completely. The court doesn't care for this at all.

First, it says the agency doesn't even know what content it's blocking because it has yet to obtain a list of terms/phrases blocked by Facebook's moderation efforts. Without this information, it can't definitively testify how much otherwise permissible speech is being blocked by proxy.

Far more troubling is the State Police's artisanal blocklist, which obviously aims to mute as much criticism of law enforcement as possible.

[T]here is no plausible explanation for the words "pig", "pigs"," copper", and "jerk" being on the State Police's list of additional bad words other than impermissible viewpoint discrimination.

This is an additional First Amendment violation, above and beyond what was affirmed by the jury's verdict.

The slang terms "pig", "pigs", and "copper" can have an anti-police bent, but people are free to say those words. The First Amendment protects disrespectful language. And "jerk" has no place on any prohibited-words list, given the context of this page, the agency's justification for having a filter, and the harmlessness of that word. Though some amount of filtering is fine in these circumstances, the State Police's current list of specific words violates the First Amendment.

Tanner wins. The State Police lose and will hopefully learn something from this remedial First Amendment class. Whatever judgment is rendered (Tanner was only asking for nominal damages in one count, but there are multiple allegations here), the State Police will have to pay. Qualified immunity has already been denied and the additional determinations made by the court make it extremely clear this was clearly established violation of Tanner's First Amendment rights.

Filed Under: 1st amendment, muting, police, social media

Right-Wing Commentator Dan Bongino Runs Into Florida Anti-SLAPP Law, Now Owes Daily Beast $32,000 In Legal Fees

from the pretty-expensive-way-to-get-laughed-out-of-court dept

Venue selection matters, as right-wing political commentator/defamation lawsuit loser Dan Bongino is now discovering. He sued the Daily Beast over an article about his apparent expulsion from the National Rifle Association's video channel, NRATV. After trying (and failing) to get a comment from Bongino about this ouster, reporter Lachlan Markay published his article, updating it later when Bongino decided he did actually want to talk about it.

An NRA spokesman did not respond to a request for comment. Bongino initially did not respond to numerous inquiries, but after publication he tweeted that news of his show’s demise was “fake news,” and promised to elaborate on his podcast.

He subsequently confirmed that “We Stand” is, in fact, ending, but suggested that the decision not to renew the show was his, not the network’s—a characterization questioned by one source familiar with the organization’s decision.

A day later, NRATV released a statement saying the network “made every attempt to retain [Bongino] in 2019,” but did not elaborate on the negotiations.

Despite this update about the alleged voluntariness of the separation, Bongino sued The Daily Beast for defamation, commercial disparagement, and violation of Florida's Deceptive and Unfair Trade Practices Act. The local law likely explains Bongino's decision to sue in Florida, but it didn't help him here. In fact, it made things worse. The court dismissed [PDF] his lawsuit last August, declaring nothing about the article (and its insinuation Bongino was fired by the NRA) was defamatory.

Plaintiff “cherry picks [one word] in the [article] out of context.” To Plaintiff, “dropped” expresses that NRATV fired him. But the inquiry turns on “all the words used, not merely a particular phrase or sentence.” Not only does the article in its entirety convey that Plaintiff’s departure stemmed from corporate downsizing, it also cautions readers against accepting that NRATV initiated Plaintiff’s departure. For example, the article reflects that Plaintiff “suggested that the decision not to renew the show was his” and includes that NRATV did not “elaborate on the negotiations.” In effect, those words call to an average reader’s attention that negotiations were opaque. Those “cautionary terms” warrant more attention than the single word to which Plaintiff objects.

In short, even if the Court were to agree with Plaintiff that the “gist” of the article states that he was fired, the Court agrees with the reasoning set forth in the foregoing authority that the mere statement that an individual was terminated, without an insinuation of misconduct, does not constitute defamation. Because no reasonable interpretation of the article could be construed to suggest that Plaintiff was “dropped” for any reason other than fiscal decision-making, Plaintiff fails to establish that the article amounts to defamation.

And the federal court applied the state's anti-SLAPP law, which Bongino managed to trigger by filing a bullshit lawsuit targeting members of the press.

Because Plaintiff’s suit fails to state a claim for defamation, it was without merit under Florida Statute §768.295(3). And because Plaintiff’s suit “arose out of” Defendant’s news report, the second element—free speech in connection with a public issue—is also satisfied.

This means Bongino is going to pay for trying to silence unfavorable press coverage by suing about it. And the amount being charged back to Bongino's vexatious litigation account is large enough even someone making NRATV money (I mean, until 2019 anyway...) is going to feel it.

Bongino voluntarily dismissed the lawsuit after the initial ruling against him, even though the court gave him a chance to amend his complaint. But that's not going to keep him from having to pay the Daily Beast's legal fees, as the court points out in its fee-shifting order [PDF].

Defendant is the prevailing party within the meaning contemplated by Florida’s antiSLAPP statute. As previously discussed, the Court has already found as much. As Judge Maynard explains, the Court found that Plaintiff’s Complaint satisfied both prongs of the anti-SLAPP statute’s fee provision. See Fla. Stat. § 768.295(3). Furthermore, Florida law provides that a defendant can be—and often is—considered a prevailing party where a plaintiff voluntarily dismisses an action.

[...]

This is not a situation where Plaintiff voluntarily dismissed his Complaint with little to no litigation beforehand. The Court clearly ruled on the merits of Plaintiff’s claims, dismissed them— albeit, without prejudice, and found that the Complaint violated Florida’s anti-SLAPP provision. Plaintiff cannot create a run-around the anti-SLAPP statute’s mandatory fee provision by engaging in procedural gamesmanship.

The court also slaps Bongino for trying to raise jurisdiction issues once it was apparent he had lost in order to avoid being hit with a fee shift. If Bongino wanted the advantages of local laws to buttress his complaint, he's also subject to their downside when the laws he cherry-picked failed to pay out.

Lastly, for the first time in his Objections, Plaintiff asserts that the Court—or the Report and Recommendation—should not have applied Florida law in this diversity case based on Florida’s “most significant relationship test.” Objections to a Report and Recommendation are generally an improper avenue to raise arguments for the first time—especially where the entirety of this case was based on Florida’s defamation law and the Florida Deceptive and Unfair Trade Practice Act.

Here's the total Bongino now owes the Daily Beast.

Defendant is awarded its attorneys’ fees in the amount of $31,835.00, for which sum let execution issue.

Anti-SLAPP laws work. And Bongino's last-minute legal gamesmanship shows why a federal anti-SLAPP law is needed to create the deterrence only enjoyed in select areas of the country. When cases go federal, there's always a chance a federal court will decide a state law doesn't apply to the proceedings, which invites the sort of venue shopping seen here. That it didn't work out for Bongino is a hearty endorsement of the strength of the state's anti-SLAPP law, but a federal law would discourage Bongino-esque legal tactics elsewhere in the nation.

Filed Under: 1st amendment, anti-slapp, dan bongino, defamation, florida, free speech, journalism
Companies: daily beast, nra

North Carolina Sued By Flying Dog Brewery Over Regulatory Body Refusing To Allow Sales Due To 'Offensive' Label

from the it's-just-a-penis,-guys dept

Normally, when we talk about beer in these pages, we're typically talking trademark infringement issues. Because of the creative way those in the exploding craft brewing industry have gone about naming their brews and designing their labels, far too often this results in disputes between parties over what is too similar to what, or who's design is too close to another's. While this specific story doesn't involve trademark law or disputes, it does still exist due to the creative practice of labeling.

Flying Dog is a well known name in the craft beer industry. Not huge, but certainly not small, Flying Dog's labels have a certain aesthetic motif in the artwork that is easily recognizable. As part of the process for using those labels on cans and bottles of beer, the brewery has to gain a certificate of label approval from the ATF. It also then has to gain the approval for labels from individual state agencies as well. For its forthcoming "Freezin' Season" ale, Flying Dog was able to get the afore-mentioned approvals at both the federal and state levels in every case, except for North Carolina. There, the North Carolina Alcohol Beverage Control Board (ABC) denied approving the label, thereby disallowing Flying Dog to sell bottles within the state entirely. Why? Well...

Still having trouble figuring out what the problem is? Well, it's that little protrusion from between the outlined figure's legs. Is it a penis? Gasp! Maybe! Flying Dog hints that it's actually a little tail nubbin, but I'm not sure I believe them. Nor does that really matter, actually, since this beer label is absolutely constitutionally protected speech and the ABC's refusal to permit its sale in commerce not only serves as a violation of Flying Dog's speech rights, but also is prior restraint.

The offending label—like all Flying Dog beers—contains a distinctive cartoon image by illustrator Ralph Steadman, whose work with the Maryland-based brewery dates back to its roots in the gonzo-lands near Aspen, Colorado. It's not clear exactly what the state's regulators object to—though the naked, humanoid figure on the beer's label does sport a small appendage between its legs. Caruso says he suspects that "tail-like thing" is what triggered the ban.

"The regulation is, on its face, in constitutional 'bad taste,' as it is in clear violation of the First Amendment," attorneys for Flying Dog, including veteran First Amendment lawyers Greg Doucette and Marc Randazza, argue in court documents. They say banning the beer label is an unconstitutional viewpoint-based restriction on speech, similar to restrictions that the U.S. Supreme Court has repeatedly struck down.

It's hard to imagine what the counterargument in court will be, honestly. The puritanical viewpoint of North Carolina's ABC ought have no bearing on whether or not another entity's speech rights should be infringed. Given the approval for the label in literally every other state and the federal government, it's difficult to see how the state could even mount a serious case that there is anything offensive here.

Thine own eyes should have you reaching the same conclusion. Even if we assume that the depiction includes a small, cartoon penis, it's certainly not pornographic in nature. Nor is it detailed enough to warrant concern amongst anyone at all. It's just a tiny blip on the artwork of a beer label.

And, yet, it appears this is a regular thing in North Carolina.

This is not the first time that North Carolina's beer regulators have attempted to censor a product being sold in the state. WECT Channel 6, based in Wilmington, North Carolina, reported in 2019 that the state ABC had blacklisted about 230 beer and wine brands since 2002 for having labels or names that offended the board's sensibilities. Among the "inappropriate" products banned from the state are beers with names like "Daddy Needs His Juice," and "Beergasm."

Ironically, the North Carolina ABC reportedly told Utah-based Wasatch Brewing Company that its "Polygamy Porter" could not be sold in the state because "polygamy is illegal." But the board also banned a beer named "Kissing Cousins" despite the fact that it is literally legal to marry your first cousin in North Carolina.

This is all very, very funny, but it's also a very real problem for Flying Dog. In its suit (embed below), Flying Dog states that it is currently taking orders on the seasonal beer in preparation for the winter months and it cannot currently sell in North Carolina due to all of this. Given that it also states that bottled beer is 90% of the company's business, even a single brew being disallowed in a single state means we're talking about very real money.

This lawsuit should be a fairly easy winner. And, frankly, it appears as though it's well past time that North Carolina get a lesson in free speech when it comes to beer labels.

Filed Under: 1st amendment, alcohol beverage control board, beer, free speech, freezin season, labels, north carolina
Companies: flying dog

Now Josh Hawley Is Threatening Google Over 1st Amendment Protected Expression

from the not-how-it-works-josh dept

What is it with annoying grandstanding Senators of both parties and their incorrect beliefs that they can bully private companies over 1st Amendment protected expression? Last week we wrote about Senator Elizabeth Warren's bogus threats sent to Amazon regarding the fact that Amazon is selling books with "misinformation" in them. Right as that was happening, it seems that Senator Josh Hawley decided to do something somewhat similar, in "demanding answers" from Google regarding Google's decision to reject ads from an anti-abortion organization.

This story got attention after the founder and President of the anti-abortion group Live Action, Lila Rose, posted a Twitter thread insisting that ads from her group were banned "at the request of abortion activists." Of course, if you look at the actual images that Rose posted, it's pretty clear that the decisions had nothing to do with ideological viewpoints on abortion, but rather concern about advertising sketchy medical interventions. Specifically, Live Action was trying to run an ad about an "abortion pill reversal treatment."

As the Daily Beast recently detailed, this "treatment" is extremely sketchy, totally unproven, and extraordinarily dangerous. From a Washington Post article about these treatments:

But when researchers attempted to carry out a legitimate study of whether these “abortion reversal” treatments were effective and safe, they had to stop almost immediately — because some of the women who participated in the study experienced dangerous hemorrhaging that sent them to the hospital.

On top of that, remember that a decade ago the DOJ hit Google with a $500 forfeiture for advertising foreign online pharmacies, so it's not at all difficult to see how Google is going to be extra careful regarding advertisements regarding sketchy "medical" interventions.

Hawley's letter ignores all of this and insists this is proof of Google's ideological biases in moderating its ads:

Recently, while attempting to run ads for a client in the Washington, D.C. metro area, Choose Life Marketing realized that these ads were not running, even though Google designated them as eligible to run. Worse, Choose Life Marketing was unable to obtain an explanation from your company. Notably, even a cursory investigation reveals numerous examples of Planned Parenthood advertising directly to internet users that it offers abortions, contrary to Google’s stated policies.

All of this is alarming enough on its own, and the situation has only continued to escalate. Notably, Lila Rose—president of the pro-life organization Live Action—reported on September 14 that your company had pulled the plug on Live Action’s advertising campaigns, citing “Google Ads policy.”

Hawley also claims (without any evidence) that, "This would not be the first time that political considerations have influenced your company’s ad eligibility decisions" misleadingly citing Google's warning to the Federalist regarding ads on its site. As we explained then, Google sends those warnings to tons of sites, including ours (which is why we no longer have any ads on our site). I'm still waiting for Hawley to speak up in defense of Google threatening to demonetize ads on Techdirt, but I get the feeling I'll be waiting a very long time. If Hawley can't grandstand and lie about the reasons why these decisions are made, what good is it to him?

Either way, even if Google were making these decisions for ideological reasons (again, there is no proof to support this), that is its 1st Amendment protected right. The 1st Amendment's right of association means that if you don't want to be associated with ads promoting a sketchy, potentially dangerous medical procedure, you don't need to be. For Hawley to imply otherwise is just yet another attack on the 1st Amendment, and makes him just as bad as Elizabeth Warren on the other side of the Senate chamber.

It sure would be nice if Senators from both parties actually understood what it means to protect and defend the Constitution, and how that includes the 1st Amendment.

Filed Under: 1st amendment, advertising, content moderation, elizabeth warren, josh hawley, medical information
Companies: google, live action

PETA Sues NIH And HHS Directors For Blocking Comments With 'PETA' And '#StopAnimalTesting'

from the that's-not-content-neutral dept

PETA is certainly not above filing some pretty ridiculous lawsuits, so I was initially skeptical when I heard that it had filed a lawsuit against the directors of the National Institutes of Health (Francis Collins) and Health & Human Services (Xavier Becerra) over Facebook keyword blocking. However, upon reading through the lawsuit, it seems pretty legit. At issue is that it appears that NIH has put in place a block list on Facebook and Instagram that blocks anyone from mentioning PETA and a surprisingly long list of words and phrases that are likely of interest to PETA.

If this sounds sorta somewhat similar to the lawsuits saying that the President can't block people on social media, well, perhaps that's because that lawsuit and this one both involve lawyers from the Knight First Amendment Institute at Columbia, who have specialized in getting government officials to stop abusing social media blocks to suppress speech. In this case, some PETA supporters were noticing that certain comments they were posting on the NIH Facebook and Instagram pages didn't appear to be showing up. So they FOIA'd the blocklist that NIH was using, and discovered it was pretty extensive... and not generally what you would call "content neutral" (which would be required under the 1st Amendment):

a. #stopanimaltesting
b. #stoptesting
c. #stoptestingonanimals
d. Animal(s), animalitos, animales
e. Chimpanzee(s), chimp(s)
f. Primate(s)
g. Marmoset(s)
h. Cats, gatos [i.e., Spanish for “cats”]
i. Monkey(s), monkies
j. Mouse, mice
k. Experiment
l. Test(ing), testing facility
m. Stop
n. PETA, PETALatino
o. Suomi,1 Harlow2
p. Hurt, hurting
q. Kill
r. Torture(s), torturing
s. Torment(ing)
t. Cruel
u. Revolting

That list is pretty revealing. I mean, it's not difficult to see how this came about. Not for nothing, but PETA folks can be a pain in the ass. Which seems to basically be by design. They like making a nuisance of themselves, and you can see how some administrator at NIH was getting sick of it and started coming up with words that would block their annoying comments. And that's fine for normal everyday private actors. But when it's the government, there's a problem. Especially when that list seems so clearly targeted. For something like this to survive 1st Amendment scrutiny it needs to be "content neutral." This is anything but.

Defendants’ practice of hiding comments containing words associated with animal rights advocacy, including the name of a well-known animal rights organization, is a viewpointdiscriminatory and content-based restriction on speech that infringes Plaintiffs’ First Amendment rights. It violates Plaintiffs’ right to speak in a public forum and their right to read the speech of others who have used blocked keywords in comments on Defendants’ social media pages.

Given the ruling in Knight v. Trump, the claims here seem pretty strong (in fact, potentially even stronger than that case). This isn't just blocking people, it's legit trying to bar discussions of certain topics NIH doesn't want discussed in open spaces that it is creating, as a government entity. PETA may be annoying (and at times frivolous and ridiculous), but this lawsuit seems exactly on point.

Filed Under: 1st amendment, comment filters, comments, filters, francis collins, free speech, hhs, nih, xavier becerra
Companies: knight first amendment institute, peta

Appeals Court Says The First Amendment Protects Minnesota Woman's Right To Be Super-Shitty About Nearby Islamic School

from the and-that's-how-it-goes dept

The First Amendment protects unsympathetic plaintiffs just as much as it does those able to obtain mass support for their arguments. This case, originating from Bloomington, Minnesota, involves someone whose motives seem bigoted but whose actions were clearly covered by the Constitution.

When a new school catering to immigrants moved into the neighborhood, Sally Ness took action. An agreement between the city and the Dar Al-Farooq School allowed students of the school to use a nearby park for recreation. Ness felt the school and its students were violating the terms of the agreement and took to filming students at the park, as well as the traffic flowing to the school to pick up students.

This resulted in harassment accusations from parents of these students, which the Bloomington PD investigated, visiting Ness at her home and, later, telling her to stop filming students because parents and school administrators might be feeling "intimidated" by her actions. The officers told her to "take her pictures" and "move on."

Ness also frequently attended city council meetings to voice her displeasure with the school and its apparent abuse of the public park. After a few meetings, the council amended its harassment law to include something that very specifically targeted Ness' actions.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child's parent or guardian.

Hello, First Amendment violations. This not only outlawed Ness' documentation of park use by school students, but also more "acceptable" recordings of children, like journalistic efforts or capturing evidence of criminal activity by minors.

Ness sued. And the claims she advanced were rebuffed by the federal court handling the case. The court said she had no standing to challenge the amended law, despite the fact the amendment was obviously added to target her documentation of the park. It said the DA had refused to prosecute previous allegations and, apparently, felt this would always be the case, even with the addition of the amendment.

It also said the new law was "content neutral" because it did not target photographers, but rather what they recorded (???).

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral.

But it very obviously targeted the content of Ness' recordings. It forbade her from photographing children, which were always the subject of her recordings, which were supposed to show the school was violating its agreement with the city to provide limited, exclusive use to students for recreation.

As the district court saw it, the ends could not have been achieved without this law, which made it a good law.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Ness appealed. And the Eighth Circuit Appeals Court says [PDF] the lower court is wrong about the ordinance, the First Amendment, and its definition of the legal term "content neutral." (h/t Volokh Conspiracy)

The court says of course this is protected speech. It is information gathering about issues of public interest: the possible violation of agreements with the city by a local school. That the information gatherer appears to be motivated more by bigotry than actual concern about violated contracts (something only aggravated by Ness' decision to bring the American Freedom Law Center on board as her representation) doesn't matter.

Applying the distinction between speech and conduct to this case, we conclude that Ness’s photography and video recording is speech. Ness wants to photograph and record the asserted “non-compliant and overuse of Smith Park” by the Center and Success Academy, and she wants to post those photographs and videos to an internet blog and a Facebook page “in order to inform the public” about the controversy. Thus, her photography and recording is analogous to news gathering. The acts of taking photographs and recording videos are entitled to First Amendment protection because they are an important stage of the speech process that ends with the dissemination of information about a public controversy.

Since this is protected speech, the court needs to determine whether it's narrowly tailored enough to serve the public's interest while still protecting their constitutional rights. The court says this ordinance fails to pass that test.

We may assume that a narrowly tailored ordinance aimed at protecting children from intimidation and exploitation could pass strict scrutiny. The present ordinance, however, is not narrowly tailored to that end as applied to Ness. Ness seeks to photograph and video record a matter of public interest—purported violations of permits issued by the City—and does not intend to harass, intimidate, or exploit children. Ness also advised the City that it was her practice to “block” out the identities of juveniles when she posts images online, and the City produced no evidence to the contrary. Yet her photography and recording is nonetheless proscribed by the ordinance.

The strict scrutiny test fails and so does the city's law, which was clearly written to discourage Ness from engaging in documentation of perceived violations by the school and its students.

We therefore conclude that the ordinance, as applied to Ness’s activity that forms the basis for this lawsuit, is unconstitutional under the First Amendment.

That makes it pretty much unconstitutional for everyone. There are plenty of legitimate reasons for recording children in a park: journalists with kid/park-related stories to cover, suspicion of criminal activity in the park committed by minors, the inadvertent capture of this area by homeowners' security cameras, etc.

Ness' motivations may have been limited to finding literally any reason to NIMBY a school catering to foreign students and their Islamic faith, but that still doesn't justify the city crafting an unconstitutional law to specifically target her protected speech. Protecting speech doesn't mean only protecting speech you like. And now the city knows it can't target Ness in this way without violating the First Amendment. Maybe it will do the smart thing and let Ness tire herself out attempting to prove the non-whites in her neighborhood are violating the terms of their agreement with the city.

Filed Under: 1st amendment, bloomington, free speech, minnesota, sally ness
Companies: dar al-farooq

Elizabeth Warren Threatens Amazon For Selling Books Containing Misinformation; Perhaps Forgetting The 1st Amendment

from the kinda-matters dept

We're going to have to do this again up front because I know how this is going to go over among some: even if you think Amazon is the root of all evil, and Senator Elizabeth Warren truly is the greatest Senator in the last century, that does not mean that she gets to ignore the Constitution. We had this issue earlier this year when Warren threatened to punish Amazon for its constitutionally protected speech, and now she's going even further. She has sent a letter to new Amazon CEO Andy Jassy to complain about the fact that there are some books on Amazon that have dangerous mis- and disinformation about COVID-19 and various treatments and vaccines. And, yes, I recognize just as well as you do how dangerous that kind of mis- and disinformation can be. But, whether you like it or not, that mis- and disinformation is almost certainly protected by the 1st Amendment. And Warren ignores all that and implies that Amazon hosting this material is potentially "unlawful." It's not and threatening Amazon for carrying it is a huge 1st Amendment issue.

This pattern and practice of misbehavior suggests that Amazon is either unwilling or unable to modify its business practices to prevent the spread of falsehoods or the sale of inappropriate products—an unethical, unacceptable, and potentially unlawful course of action from one of the nation’s largest retailers.

I mean, the Bantam Books case from 1963 is still good law, and presents a very similar situation, involving government officials strongly implying to a book distributor that certain books should not be distributed. The Court found that to be unconstitutional (even without a direct threat). In this case, Warren's letter even suggests illegality, which goes further than what happened in Bantam Books. In Bantam Books, the Court found that even though the government officials had no law enforcement capability, they were still clearly intimidating the distributor:

In holding that the activities disclosed on this record are constitutionally proscribed, we do not mean to suggest that private consultation between law enforcement officers and distributors prior to the institution of a judicial proceeding can never be constitutionally permissible. We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws prohibiting obscenity. Where such consultation is genuinely undertaken with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms. But that is not this case. The appellees are not law enforcement officers; they do not pretend that they are qualified to give or that they attempt to give distributors only fair legal advice. Their conduct as disclosed by this record shows plainly that they went for beyond advising the distributors of their legal rights and liabilities. Their operation was in fact a scheme of state censorship effectuated by extra-legal sanctions; they acted as an agency not to advise but to suppress.

That... sounds pretty much like what Warren did here with this letter. From her letter, which even calls out specific books she doesn't like:

Alarmingly, Amazon—the nation’s leading online retailer—and the company’s search algorithms appear to contribute to the spread of COVID-19 misinformation. During the week of August 22, 2021, my staff conducted sample searches on Amazon.com of pandemic-related terms such as “COVID-19,” “COVID,” “vaccine,” “COVID 19 vaccine,” and “pandemic.” The top results consistently included highly-ranked and favorably-tagged books based on falsehoods about COVID-19 vaccines and cures.

When staff searched for terms “COVID-19” and “vaccine,” the first result, presented prominently in the top left corner of the screen, was a book by Joseph Mercola and Ronnie Cummins called “The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal.” Dr. Mercola has been described as “the most influential spreader of coronavirus misinformation online.”11 Not only was this book the top result when searching either “COVID-19” or “vaccine” in the categories of “All Departments” and “Books”; it was tagged as a “Best Seller” by Amazon and the “#1 Best Seller” in the “Political Freedom” category.

Even if we think that Dr. Mercola is a dangerous grifter, that does not mean that the US government gets to ban his books. That's kind of important. And then Warren "demands" that Amazon change its algorithm, raising even more 1st Amendment issues (algorithms are protected speech as well)

Given the seriousness of this issue, I ask that you perform an immediate review of Amazon’s algorithms and, within 14 days, provide both a public report on the extent to which Amazon’s algorithms are directing consumers to books and other products containing COVID19 misinformation and a plan to modify these algorithms so that they no longer do so...

Perhaps even more ridiculous is that Warren relies on WHO claims at one point in the letter:

In February 2020, the World Health Organization declared an “infodemic” to describe the difficulty of finding reliable information about COVID19 in today’s media environment

That's true. But in February of 2020 the WHO was also telling people that masks didn't help and that there wasn't evidence to support that COVID was transmitted by aerosols. In other words, even if there was an "infodemic," the WHO itself helped contribute to it with some of its earliest claims. And that's part of the reason why the 1st Amendment is so important. We can agree that there are grifters, scammers, idiots, and ignorant fools pushing nonsense in books, but it's not the government's job to censor such information. And yet that's what Warren is doing -- and doing so by threatening an intermediary is even worse.

This is important not just if you hate Amazon, hate COVID grifters, and love Elizabeth Warren. Because if you think this setup is okay, then you similarly are supporting ignorant fools in Congress who are spreading disinformation themselves (and there are a bunch of them) pressuring Amazon to drop books that present good information about COVID treatments and prevention.

Filed Under: 1st amendment, covid, disinformation, elizabeth warren, free speech, medical misinformation, misinformation, vaccines, who
Companies: amazon