In the end, Smith did NOT advocate a "no government" policy. He was mainly critical of someone else owning the means of production.
True. I was mainly talking about Locke's theory of private property (which really should be called "private possession") in relation to free-market economics.
Also, you'll note that I included minimum wage laws as an example of government intervention in a free market. This is something that all economists agree upon, and they also agree that it introduces inefficiencies in the market.
That does not mean that minimum wage laws are a bad idea. It's just that whatever goods society accrues from the government interference (living wages), it must offset the bads (labor shortages, "black market" labor, enforcement costs, etc).
Economists ATTEMPT to describe what is happening. Different economists think that different theories and models are important, and lots of economists think that lots of other economists are wrong. You make it sound economics = hard science. It's a social science.
And the law is no kind of science at all. It is not based on empirical evidence - unlike economics - and does not even attempt to explain how the real world works.
The law, not economics, actually define and control copyright. Your models are meaningless. Take away the law and there is no copyright.
You're essentially making the argument that copyright isn't "real." We all agree on that. It is one of the reasons copyright is not property - because property, unlike copyright, exists whether the government defines it or not.
But the economic rules (not "models") do, in fact, apply to copyright. Copyright is a government-granted monopoly, and there are economic rules about what happens when the government grants a monopoly. Those rules are not "meaningless," they're descriptive, and they're accurate.
And you know damn well that whatever secret models you're using, there are tons of other economists convinced that your models are shit.
The rules he is describing are not "secret." They are in every economics textbook out there, and can be looked up easily if you want. And they are universally agreed upon. There is not one economist on the planet that thinks copyright is not a monopoly, or that it is not enforced by the government. And there is not one economist on the planet that thinks government-granted monopolies are part of a free market.
There is, of course, a normative side to economics, as well as positive economics. Positive economics says, "if the government grants a monopoly to a producer, it introduces market inefficiencies." Normative economics says, "if the government grants a monopoly to a producer, it introduces market inefficiencies, and those market inefficiencies are bad." It is normative economics which drives economic policy - which, in turn, drives the law.
Economists disagree when it comes to normative economics (and they should). They do not disagree about positive economics. And what Mike is describing is positive economics - the same economics that is taught, every day, in colleges and universities.
In fact, I am taking microeconomics right now. A large part of our grade is from doing a group paper on a specific company. Our group chose Apple hardware.
Apple holds a monopoly on their hardware (iPhones, for example), whereas their competitors (like Android phone manufacturers) do not. That monopoly introduces market inefficiencies, which have specific consequences. Economics describes those consequences - and describes them accurately. Positive economic theory predicts that their products will be more expensive; that there will be fewer consumer choices; that these market inefficiencies can lead to shortages; and so forth. All of those economics laws turn out to be completely accurate. iPhones are far more expensive than Android phones; your choice of carrier is set by Apple; when Apple launches a new iPhone, they can't produce enough to meet the immediate demand; and so forth.
There is not a single economist that wouldn't predict these outcomes. They may disagree on the normative side - like whether Apple should change its monopoly policies as a business decision. But not a single one disagrees about the underlying positive economic theory. And not a single one would describe the market for iPhones as a free market.
When Mike changes values in his theoretical models, nothing in the real world changes. His models are meaningless theories. If all economists and their theories were put on an island and nuked, copyright would be exactly the same
I somewhat disagree. But I'm glad you made this post, as it shows how the law does not represent "reality" in any way, shape, or form.
If Mike - or, hell, all economists, ever - were totally wiped out of existence, society would still act according to economic principles. That's because economics is descriptive, not prescriptive. You have no choice but to obey them, just as you have no choice to spontainiously ignore the "theory" of gravity.
On the other hand, if all legislators, ever, were wiped off the face of the planet, then the laws that they created would no longer exist.
This means that legislators do not represent reality. If they didn't exist, reality would be just fine, and get along without obeying any of the rules that they created.
The same is absolutely not true of economics. Even if you nuked every single economist, people would still obey economic principles. They wouldn't be aware of it, and certainly wouldn't know which terminology to use, but the fact remains that every single person on the planet would be following economic principles.
This is because economics is a science. It is descriptive, not prescriptive. It bases its theories on empirical studies, and adjusts itself when new data comes in. Exactly like physics, cosmology, or any other empirical science.
The law is not any kind of science. It is prescriptive, not descriptive. It does not represent "reality," and doesn't even claim to try. It lays out rules about how legislators think reality ought to be, and then forces everyone in this nation to agree with them, at gunpoint.
That is not "reality." That is simply the will and/or ability to redefine "reality" for your own benefit.
Please, Thierer is in the pocket of the Koch Brothers.
Though I share your concerns, being a lifelong Democrat, I would like to point out that this has absolutely nothing whatsoever to do with Google, or astroturfing in general.
Perhaps he was talking about "The Sky Is Rising"? That'd certainly qualify.
First: if he was, he'd be changing the subject completely, since this discussion never had anything to do with that report (and none of the other commenters mentioned it).
Second: it does not qualify. It was partially funded by the CCIA - which never claimed to be anything but an industry organization, thus couldn't possibly be an "astroturf" organization. And even if they did, they still wouldn't be an "astroturf" organization for Google, since they weren't set up by Google to promote its interests, nor are they funded primarily by them. (The CCIA has a lot of members, most of which are large tech companies, many of which are Google competitors - Facebook, eBay, or Microsoft, for example.)
It's pretty clear he's talking about the Technology Liberation Front - who wrote the story Techdirt linked to, but had nothing to do with the study itself. And they're not any kind of "astroturf" organization, either.
And the person who wrote the article - Adam Thierer - has never worked for Google, though he has worked at a number of market-oriented think tanks (the Heritage Foundation, the Cato Institute, the Progress & Freedom Foundation, and currently the Mercatus Center at George Mason University). None of which are "astroturf" organizations.
Joe, I have to say that this is the most ridiculous argument you've ever put forth. And that's saying something.
Copyright is no more a part of a free market than farm subsidies or minimum wage laws. It's true, government-granted monopolies are sometimes treated as property rights under statute - as is the case with liquor licenses or taxi medallions. But just because they're modeled after property in the statutes, does not mean that they're property in any other context.
And you're simply wrong if you think copyright isn't fundamentally economic in nature. When the Supreme Court said that copyright is "the engine of free expression," they were making an economic argument. When they said "The immediate effect of our copyright law is to to secure a fair return for an 'author's' creative labor," they were making an economic argument. When a fair use analysis examines "the effect of the use upon the potential market," they are making an economic analysis. Furthermore, copyright is almost always referred to as a "monopoly," e.g.: "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors." To claim that copyright has nothing to do with economics is exactly as idiotic as claiming that California's fixing of electricity prices has nothing to do with economics.
Hell, even your "go-to guy" for thinking that copyright is a natural right - Locke and his "labor theory" of property - was fundamentally making an economic argument. (Or at least proto-economic; many scholars think that Locke's treatise was trying to lay the philosophical groundwork for Adam Smith-style laissez-faire capitalism.) Locke's property rights were ultimately grounded on the efficient allocation of resources - the basis of economic theory.
You are correct that copyright is merely a statutory right. You are wrong in thinking that this statutory right is something more than a government-granted monopoly right. It is not. And the reason it is granted, at least as far as copyright holders are concerned, is solely for economic reasons.
Of course, the legal reasons are based on a wholly theoretical rationale. Copyright exists because it theoretically provides an incentive to create and distribute works - not because any study, anywhere, actually found that the monopoly will actually result in the creation and distribution of works. Economics is an empirical science; it bases its theories on hypotheses that can be tested with data derived from empirical evidence. In contrast, the law is not. It is based on legal opinion, not on empirical evidence. It is wholly theoretical - and, usually, the statutes are enacted due to the political desires of legislators. Economics, by its empirical nature, represents the way the real world works. The law has nothing whatsoever to do with legitimizing real-world behavior - and does not claim to.
It's understandable that you, as a law student, would believe that the letter of the law is the most important thing in life. But it's important that you realize it's not. Everyone makes economic decisions every day. Few people make any conscious decision to obey the law. And even if they don't, economics wins over the law every time. Some hippie douche buying a bag of weed is not obeying the law; but when he decides whether to pay $40 for that bag of weed or not, he's making an economic decision.
Youre on a plane that crashed in the Sonora desert. The pilot and copilot are dead, but you and your classmates are unharmed. Your classmates are a Catholic priest, a Rabbi, a Chicano, a black guy, a guy that was just released from prison, a surrealist, an 80's feminist, a Polish woman, Mel Gibson, and a melancholy horse.
You have 10 items with which to survive. Rank them from funniest to most offensive.
- a nickel
- a very inexpensive prostitute
- a car door
- a choir boy
- a vibrator
- your enormous cock
- the fish
- natural sweetener formed in the shape of female mammary glands
- (looks around before telling joke)
- "that's not funny"
That's a substantive analysis. The Court DID NOT do a separate prior restraint analysis.
The court did not do a separate procedural analysis. Nonetheless, it certainly was a prior restraint analysis.
Or do you think that the statute, as it stood, was not a prior restraint on protected speech? If not, then we have nothing to talk about - since it clearly was a speech restriction prior to a determination that the speech was unprotected, thus (by definition) a prior restraint. If you want to argue otherwise, then feel free to proselytize about free speech doctrine with the pair of llamas in your turkey farm in Pennsylvania.
You know, one day I hope that rather than claiming I don't understand the law and trying to explain to me things that you are clearly quite confused about, you'll instead thank me for all the time I spend actually explaining the law to you.
I'm still not so sure why you're so insistent about this. There is no question that "prior restraint" applies to substantive analysis as much as procedural analysis.
I mean, one of the hallmark prior restraint cases - New York Times v. United States - involved substantive, not procedural, First Amendment analysis.
The most famous quote about prior restraint, ever, comes from Bantam Books v. Sullivan: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." The cases they list as "prior restraint" cases are: Near v. Minnesota; Lovell v. City of Griffin; Schneider v. New Jersey; Cantwell v. Connecticut; Niemotko v. Maryland; Kunz v. New York; and Staub v. City of Baxley. The court in Bantam was absolutely correct: every single case involved prior restraint. As far as I can tell, all of those involved substantive, not procedural, First Amendment analysis.
Also, Police Dep't. of Chicago v. Mosley was without question a prior restraint case; it was substantive, and moreover quoted U.S. v. O'Brien directly. Ditto for R.A.V. v. City of St. Paul.
I'm getting tired of this, as we're not getting anywhere.
I would, however, like to rebut this:
Prior restraint looks at whether the procedures are constitutionally adequate vis-a-vis the First Amendment. Statutes are not challenged on their substance. When a court is applying rational basis or heightened scrutiny, that's a substantive challenge. Prior restraint is a procedural challenge. Two separate doctrines.
Not at all. There is such a thing as substantive prior restraint, just as there is procedural prior restraint. There are many cases where this is explicit.
The Indiana Appeals Court gives a pretty good overview of this:
The statutes' allowance for such blanket suppression of entire bookstores and theaters necessarily violates the second and third Freedman standards as well. Unlike the precise measure approved in Kingsley Books, these statutes make no provision for prompt adversarial review and, more fundamentally, bypass any comprehensive obscenity adjudication. Similarly, the final requirement of Freedman that prior restraint before judicial review be strictly limited in duration clearly prohibits the indefinite seizure and permanent forfeiture of materials never afforded judicial review at all.
We reiterate that for purposes of these Freedman guidelines, as distinguished from our analysis of the statutes' operation as substantive prior restraints, it is irrelevant whether the suppressed materials in fact represent protected or unprotected speech. Even if every item seized from these bookstores might ultimately be adjudged obscene, the seizure orders and any subsequent forfeiture judgments would still be unconstitutional due to these procedural irregularities. [...]
Our analysis of these statutes under the substantive prior restraint doctrine has revealed that the sweeping remedies they afford are for most purposes patently unconstitutional. [Italics in original.] Some courts in considering the constitutionality of nuisance abatement statutes and similar measures as applied to obscenity have avoided the constitutional problem by means of a limiting construction of the statute, simply holding the statute inapplicable to obscenity as a predicate offense. This avenue is not open here, as the statutory scheme before us explicitly creates a predicate offense of obscenity. At best, we could limit the operation of these statutes to the seizure and forfeiture of particular items alleged and subsequently adjudged to be obscene. However, consideration of the procedural requirements of the prior restraint doctrine indicates that grave constitutional problems would even so continue to plague this application of the statutes. The attempt to preserve the statutes' constitutionality by a narrowing construction, therefore, would be an unnecessarily tortuous exercise, creating a provision anomalous in relation to the overall operation of the RICO/CRRA statutes. Moreover, the eviscerated version of the acts as applied to obscenity would add nothing to the prosecutorial tools now afforded by our criminal obscenity statute. We will not ascribe to the legislative intent such an absurd result. Accordingly, we conclude that the seizure orders against these defendants and the statutes' application to obscenity generally must be characterized as both substantively and procedurally unconstitutional under the prior restraint doctrine: as prior restraints of protected speech, or as impermissible procedures for restraining speech which may or may not be protected.
- 4447 Corp. v. Goldsmith
I'm going to reply to all your quotes here, if you don't mind.
A preliminary injunction and an ex parte seizure are possibly a prior restraint if the context is obscenity.
There is a big difference between injunctions and ex parte seizures, even in obscenity cases. For example, in my current residence of Massachusetts, state obscenity law allows for preliminary injunctions pending trial. Seizure of the material, however, cannot happen until after a trial on the merits.
Neither one of those cases says what you think as neither one says that an instrumentality that could otherwise be seized upon mere probable cause all of the sudden can't be touched until after a full trial on the merits just because it's also used for protected speech.
You're building a straw man. I never once in this thread suggested that a full trial on the merits is necessary. And you're right, neither did CDT, Ft. Wayne Books, or American Library Association.
Instead, they said that an instrumentality that could otherwise be seized upon mere probable cause all of the sudden can't be touched until after an adversarial hearing just because it's also used for protected speech. And they said so unequivocably.
But if injunctions in a case of simple piracy would amount to a prior restraint, why would the Supreme Court say that an injunctive remedy is appropriate?
More straw man arguments. I never said an injunctive remedy would amount to prior restraint. I have always said, and am saying, that an ex parte seizure based upon probable cause is unconstitutional prior restraint, if that seizure "interrupt[s] the flow of expressive materials" (in the words of Fort Wayne Books v. Indiana).
And as soon as a court is applying any level of scrutiny, you know they're not talking about prior restraint. You're mixing up the doctrines again.
In that case, so is the court in CDT v. Pappert: "if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." CDT v. Pappert, Fort Wayne Books v. Indiana, and Bantam Books v. Sullivan were all prior restraint cases. Moreover, without applying some kind of First Amendment scrutiny, how on Earth would you determine if a seizure is prior restraint or not?
The term "prior restraint" is a lot broader than you seem to think it is. Generally, the distinction is between "prior restraint" and "subsequent punishment." For example: "While we may have given a broader definition to the term 'prior restraint' than was given to it in English common law, our decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments" (Alexander v. U.S.). When I use the term "prior restraint," I am using it in exactly the same way that the courts do in all those cases: an unconstitutional restraint on speech, that is not a subsequent punishment. Most First Amendment cases are prior restraint cases.
Many the cases I've quoted say that "instrumentalities" cannot be seized if that seizure results in "interrupting the flow of expressive materials."
Oh, and let's not leave out CDT v. Pappert. I quoted it already, but apparently you didn't see this:
More than 1,190,000 innocent web sites were blocked in an effort to block less than 400 child pornography web sites, and there is no evidence that the government made an effort to avoid this impact on protected expression. [...] This burden on protected expression is substantial whereas there is no evidence that the Act has impacted child sexual abuse. Thus, the Act cannot survive intermediate scrutiny.
The Act requires ISPs to block child pornography "residing on," as well as "accessible through," their service. The overblocking only occurs with respect to filtering utilized to block child pornography accessible through an ISP's service. The overblocking problem is not encountered when an ISP removes content residing on its service because an ISP can remove such content without affecting any other content.
The court said, explicitly, that if blocking unprotected materials accessible through its service results in "overblocking," such blocking cannot survive First Amendment scrutiny.
You can't do away with that ruling simply by renaming "blocking unprotected materials accessible through its service" to "seizing instrumentalities used to facilitate unprotected speech." If either one results in "overblocking," it's unconstitutional.
See my explanation earlier about what the court actually said in Campbell.
Addendum: As I said above, the Campbell court was quoting Leval, "Toward a Fair Use Standard." Here's the quote from Leval, put in context:
Injunction thus follows as a matter of course upon a finding of infringement. In the vast majority of cases, this remedy is justified because most infringements are simple piracy.
Leval was talking about injunctions issued after an actual finding of infringement. No mention of the ex parte process. Not even the hint of a suggestion that "none of that applies when it's simple piracy."
As the Supreme Court noted in Campbell, "in the vast majority of cases, an injunctive remedy is justified because most infringements are simple piracy."
You're being either inaccurate or misleading - again. See my explanation earlier about what the court actually said in Campbell.
Let me respond to this, as I think I can save us some time. I understand what you're saying in (1). I'm glad you now admit (I believe this is a first) that the test may turn on the difficulty of the determination.
And now you've lost me about the whole "pretrial" vs. "ex parte" thing. Your whole argument has been about how difficult it is to make the determination ex parte. I mean, that was the entire debate in the Boggs and Camfield cases.
By the way - the determination of prior restraint in (1), often does turn on the difficulty of determining protected vs. unprotected materials ex parte. But that determination is not the only reason for extra safeguards; they arise from "the larger principle that the freedoms of expression must be ringed about with adequate bulwarks" (as Bantam put it). So that may not the only thing that determines prior restraint in such cases.
Ultimately, the determination of prior restraint turns on whether the seizure suppresses protected speech. That's why I said "probably." There may be cases I haven't heard of (or future cases) where that's not the deciding factor.
But it's (2) where you lose me. You're trying to invent some hybrid argument whereby an instrumentality that is otherwise seizable pretrial suddenly becomes not seizable if it's also used for protected speech--speech that could never be suppressed regardless. In other words, you're arguing that even if materials suspected to be infringing could be seized pretrial consistent with the First Amendment, the instrumentalities used to facilitate that infringement can also be seized pretrial, but only if they are not also used for protected speech. Where did you get this idea? Can you cite any court that has said protected uses insulate an instrumentality like this? I sincerely doubt it.
Have you even read anything I wrote in this entire discussion? Many the cases I've quoted say that "instrumentalities" cannot be seized if that seizure results in "interrupting the flow of expressive materials."
In case you missed it, Ft. Wayne Books said this explicitly: "Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved."
And - yet again - here's some relevant passages from American Library Association ruling:
Under the forfeiture provisions, however, there is never any determination that the forfeited material is "obscene" the laws provide for forfeiture of any property used in, to promote, or obtained from the commission of the offense, whether or not it is "obscene" material, First Amendment protected material, or non-expressive material. [...]
For a number of reasons, the Court concludes that aspects of the civil forfeiture provision are unconstitutional. [...]
Under this scheme, an authorized federal agent may seize property based on a showing of "probable cause," which for seizure purposes has been held to be "a reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion." [...] Thus, it is clear that a large amount of assets books, printing presses, films, etc. may be seized based solely on an ex parte showing of probable cause. [...]
Accordingly, the Court GRANTS in part the plaintiffs' motions for an injunction and for summary judgment on this issue, declares 18 U.S.C. § 2254(b) and (d) to be unconstitutional, and enjoins the defendants from enforcing the seizure or forfeiture provisions unless there has been a prior adversarial proceeding.
I have never, ever, ever seen a single case that held that innocent speech can be blocked by an ex parte determination of probable cause that unrelated speech is unprotected. On the other hand, both Ft. Wayne Books and American Library Association explicitly prohibit such seizures.
As is clear from both cases, it is different when the siezure is done following an adversarial hearing, but we were never discussing that situation.
And what do you mean by "speech that could never be suppressed regardless?" If the government seizes or blocks innocent speech, then that speech is suppressed. That is the entire basis of every First Amendment case, ever.
Seriously, it's like you're speaking Klingon or something.
Pretrial means before a trial on the merits. Thus, an ex parte application for a seizure warrant occurs pretrial. So does a motion for a temporary restraining order or a preliminary injunction. Preliminary injunctions, while pretrial, are not ex parte.
The distinction is tremendously important when talking about prior restraint. All of the cases that we are talking about deal with ex parte seizure orders based on probable cause.
And that's what happened with the domain name seizures. If the court had allowed an adversarial hearing (not necessarily a trial) prior to the seizures, we would be having an entirely different conversation.
The case law dealing with pretrial seizures (or TRO's or injunctions) after an adversarial hearing simply are not relevant to the seizures. If you're talking about the seizures, you must limit the case law to cases dealing with ex parte seizures.
I was never talking about "pretrial" seizures in this entire thread, because it's irrelevant. And I believe I've always been explicit about the distinction.
Total nonsense. An agent contacts the right holder to find out whether the use is authorized. Simple, objective.
The agents did contact the rightsholders (or who they thought were the rightsholders), in the Dajaz1 case. They were wrong. Even leaving aside the vast amounts of innocent speech on that site, the seizure of the materials specified in the affidavit would be a prior restraint.
If it were "simple" and "objective," the mistake wouldn't have been made. It was. The fact that it actually happened proves that you're wrong.
No court has ever said that the determination of copyright infringement is difficult, because it's not.
The court in Suntrust did say that, actually. It was a fair use case, but all the same, it shows that copyright infringement is not as "simple" or "objective" as you'd like to think. They didn't say that in the case of "simple piracy," but the case law never dealt with situations where unauthorized material was indistinguishable from authorized material. Such as it is in cases where the material is a digital file.
That determination is anything but "easy." It is, in fact, the very reason the DMCA safe harbors exist. It is extraordinarily difficult for any third party to determine whether a copy is infringing or not on the Internet. It is not any easier for ICE to determine it, than it is for Google.
Overbreadth doctrine is a completely separate First Amendment doctrine that has nothing at all to do with prior restraint.
Perhaps I'm using "overbreadth" improperly. There is no explicit "overbreadth doctrine" in case law; it's kind of a shorthand for all manner of speech restrictions that also burden innocent speech. For instance, the "narrowly tailored" and "least restrictive means" tests of strict scrutiny, and the "incidental restriction [...] is no greater than is essential" test from O'Brien, both seem to be examples of "overbreadth." But Marcus v. Search Warrant also seems to be an "overbreadth" case if read literally: "Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees." Yet Marcus is generally considered a prior restraint case.
So, as near as I can determine, the "overbreadth doctrine" is simply an instance of prior restraint. At the very least, that is the case when talking about ex parte seizures. As the court said in CDT v. Pappert: "Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." Ft. Wayne Books also used the term: "The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here."
The same test applies whether its materials or the instrumentalities used to produce those materials. You seem to think that criminals can insulate their tools by also using them for noncriminal purposes.
When those "noncriminal purposes" are "the flow of expressive materials," then yes, those "tools" are "insulated" from ex parte seizure based on probable cause. The courts in Ft. Wayne Books v. Indiana, and American Library Ass'n V. Thornburgh, made this uniquivocably clear.
Also, the ICE seizures did not seize any tools used to produce infringing content, nor did they claim to.
Again, pretrial seizure of obscene materials.
Neither Fort Wayne Books nor American Library Association were dealing with the pretrial seizure of obscene materials. The Fort Wayne Books case dealt with the seizing of an entire bookstore. The American Library Association case had an entire section detailing how the seizure rules, specifically, were unconstitutional, precisely because "the laws provide for forfeiture of any property used in, to promote, or obtained from the commission of the offense, whether or not it is 'obscene' material, First Amendment protected material, or non-expressive material."
Focusing solely on the obscenity issue, while completely ignoring everything else, is utterly ludicrous.
Obscenity is different, because, as the Supreme Court explicitly said in Marcus and Bantam Books, it's a difficult determination to make.
Marcus and Bantam were quoting Speiser v. Randall, which was not an obscenity case. It may be helpful to read that section of the Speiser case:
It is true that, in the present case, the appellees purport to do no more than compute the amount of the taxpayer's liability in accordance with the usual procedures, but in fact they have undertaken to determine whether certain speech falls within a class which constitutionally may be curtailed. As cases decided in this Court have abundantly demonstrated, the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. Thomas v. Collins, 323 U. S. 516; cf. Yates v. United States, 354 U. S. 298. The separation of legitimate from illegitimate speech calls for more sensitive tools than California has supplied. In all kinds of litigation, it is plain that where the burden of proof lies may be decisive of the outcome. Cities Service Oil Co. v. Dunlap, 308 U. S. 208; United States v. New York, N.H. & H.R. Co., 355 U. S. 253; Sampson v. Channell, 110 F.2d 754, 758. There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value -- as a criminal defendant his liberty -- this margin of error is reduced as to him by the process of placing on the other party the burden of producing a sufficiency of proof in the first instance, and of persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt. Tot v. United States, supra. Where the transcendent value of speech is involved, due process certainly requires in the circumstances of this case that the State bear the burden of persuasion to show that the appellants engaged in criminal speech. Cf. Kingsley Books, Inc., v. Brown, supra.
They were not talking about obscenity, but all speech restrictions generally. No matter what the speech restirction, they are all "finely drawn" and require "sensitive tools." The problem may be heightened when the determination of non-protection is difficult to make; but it never disappears altogether.
[Me:] The seizures were not targeted at infringing copies. They were targeted at links to infringing copies on third-party websites. Thus, the government made an ex parte judgement that the links themselves, not the content, were criminally infringing.
[You:] Which has zero to do with prior restraint doctrine.
Of course it does. Even ignoring the "overbreadth" issue, if the links to infringing content were not criminally infringing, then the government was putting a prior restraint on the links themselves.
Moreover, it is not irrelevant, since the ex parte determination was whether the links were infringing. Determining that the content that the links led to was infringing, is not remotely the same as determining that linking to that content is criminally infringing. That determination is the very definition of "dim and uncertain."
Do you agree or disagree that whether such pretrial seizures are prior restraints turns on the difficulty of the determination? If you disagree, do you nevertheless agree or disagree that the district court and appellate court in Boggs said explicitly that it did?
It depends on what you mean by "such pretrial seizures." I'm going to call such seizures "ex parte seizures, based only on probable cause that specific instances of speech are unprotected," since that's the issue under discussion. This discussion is not about pretrial seizures that occur after an adversarial hearing.
Now that we're clear:
1. Whether such seizures of only the allegedly unprotected speech, are prior restraints of that allegedly unprotected speech, probably turns on the difficulty of the determination. (I'm not quite willing to grant it as a bright-line rule.) But here, the test from both Boggs and the child pornography cases, is whether that determination can be made on observation alone.
2. Whether such seizures that also block innocent speech, are prior restraints of the innocent speech, has absolutely nothing to do with the difficulty of the determination. Even if the determination is obvious from observation, an ex parte seizure may not block innocent speech as a consequence. Whether you choose to call this "overbreadth" or "prior restraint," either way it is unconstitutional.
For example, the government could not seize a domain name ex parte because of child pornography residing on it. When Operation Protect Our Children mistakenly seized the domains for 84,000 websites for allegedly hosting child pornography, it was unconstitutional, even if you apply the Camfield standard.
Frankly, I have no idea why you're so heavily on the government's side. Pretrial seizures are often granted, but ex parte seizures are an extraordinary remedy that is supposed to be applied only in exigent circumstances. The government would lose nothing whatsoever if they were required to hold an adversarial hearing before seizing the domains. There is really no justification at all for the ex parte process, and I have absolutely no idea why you're willing to constrict prior restraint doctrine in order to defend them.
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
Re: I agree worth Karl but...
True. I was mainly talking about Locke's theory of private property (which really should be called "private possession") in relation to free-market economics.
Also, you'll note that I included minimum wage laws as an example of government intervention in a free market. This is something that all economists agree upon, and they also agree that it introduces inefficiencies in the market.
That does not mean that minimum wage laws are a bad idea. It's just that whatever goods society accrues from the government interference (living wages), it must offset the bads (labor shortages, "black market" labor, enforcement costs, etc).
On the post: Fixing Copyright: Is Copyright A Part Of Free Market Capitalism?
Re: Re: Re: Re: Re: Re: Re: Re: @joe
And the law is no kind of science at all. It is not based on empirical evidence - unlike economics - and does not even attempt to explain how the real world works.
The law, not economics, actually define and control copyright. Your models are meaningless. Take away the law and there is no copyright.
You're essentially making the argument that copyright isn't "real." We all agree on that. It is one of the reasons copyright is not property - because property, unlike copyright, exists whether the government defines it or not.
But the economic rules (not "models") do, in fact, apply to copyright. Copyright is a government-granted monopoly, and there are economic rules about what happens when the government grants a monopoly. Those rules are not "meaningless," they're descriptive, and they're accurate.
And you know damn well that whatever secret models you're using, there are tons of other economists convinced that your models are shit.
The rules he is describing are not "secret." They are in every economics textbook out there, and can be looked up easily if you want. And they are universally agreed upon. There is not one economist on the planet that thinks copyright is not a monopoly, or that it is not enforced by the government. And there is not one economist on the planet that thinks government-granted monopolies are part of a free market.
There is, of course, a normative side to economics, as well as positive economics. Positive economics says, "if the government grants a monopoly to a producer, it introduces market inefficiencies." Normative economics says, "if the government grants a monopoly to a producer, it introduces market inefficiencies, and those market inefficiencies are bad." It is normative economics which drives economic policy - which, in turn, drives the law.
Economists disagree when it comes to normative economics (and they should). They do not disagree about positive economics. And what Mike is describing is positive economics - the same economics that is taught, every day, in colleges and universities.
In fact, I am taking microeconomics right now. A large part of our grade is from doing a group paper on a specific company. Our group chose Apple hardware.
Apple holds a monopoly on their hardware (iPhones, for example), whereas their competitors (like Android phone manufacturers) do not. That monopoly introduces market inefficiencies, which have specific consequences. Economics describes those consequences - and describes them accurately. Positive economic theory predicts that their products will be more expensive; that there will be fewer consumer choices; that these market inefficiencies can lead to shortages; and so forth. All of those economics laws turn out to be completely accurate. iPhones are far more expensive than Android phones; your choice of carrier is set by Apple; when Apple launches a new iPhone, they can't produce enough to meet the immediate demand; and so forth.
There is not a single economist that wouldn't predict these outcomes. They may disagree on the normative side - like whether Apple should change its monopoly policies as a business decision. But not a single one disagrees about the underlying positive economic theory. And not a single one would describe the market for iPhones as a free market.
On the post: Fixing Copyright: Is Copyright A Part Of Free Market Capitalism?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I somewhat disagree. But I'm glad you made this post, as it shows how the law does not represent "reality" in any way, shape, or form.
If Mike - or, hell, all economists, ever - were totally wiped out of existence, society would still act according to economic principles. That's because economics is descriptive, not prescriptive. You have no choice but to obey them, just as you have no choice to spontainiously ignore the "theory" of gravity.
On the other hand, if all legislators, ever, were wiped off the face of the planet, then the laws that they created would no longer exist.
This means that legislators do not represent reality. If they didn't exist, reality would be just fine, and get along without obeying any of the rules that they created.
The same is absolutely not true of economics. Even if you nuked every single economist, people would still obey economic principles. They wouldn't be aware of it, and certainly wouldn't know which terminology to use, but the fact remains that every single person on the planet would be following economic principles.
This is because economics is a science. It is descriptive, not prescriptive. It bases its theories on empirical studies, and adjusts itself when new data comes in. Exactly like physics, cosmology, or any other empirical science.
The law is not any kind of science. It is prescriptive, not descriptive. It does not represent "reality," and doesn't even claim to try. It lays out rules about how legislators think reality ought to be, and then forces everyone in this nation to agree with them, at gunpoint.
That is not "reality." That is simply the will and/or ability to redefine "reality" for your own benefit.
On the post: State Subsidies To Hollywood: Almost Every Program Has Been A Dismal Failure, Costing Taxpayers
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Though I share your concerns, being a lifelong Democrat, I would like to point out that this has absolutely nothing whatsoever to do with Google, or astroturfing in general.
On the post: State Subsidies To Hollywood: Almost Every Program Has Been A Dismal Failure, Costing Taxpayers
Re: Re: Re: Re: Re: Re: Re: Re: Re:
First: if he was, he'd be changing the subject completely, since this discussion never had anything to do with that report (and none of the other commenters mentioned it).
Second: it does not qualify. It was partially funded by the CCIA - which never claimed to be anything but an industry organization, thus couldn't possibly be an "astroturf" organization. And even if they did, they still wouldn't be an "astroturf" organization for Google, since they weren't set up by Google to promote its interests, nor are they funded primarily by them. (The CCIA has a lot of members, most of which are large tech companies, many of which are Google competitors - Facebook, eBay, or Microsoft, for example.)
It's pretty clear he's talking about the Technology Liberation Front - who wrote the story Techdirt linked to, but had nothing to do with the study itself. And they're not any kind of "astroturf" organization, either.
And the person who wrote the article - Adam Thierer - has never worked for Google, though he has worked at a number of market-oriented think tanks (the Heritage Foundation, the Cato Institute, the Progress & Freedom Foundation, and currently the Mercatus Center at George Mason University). None of which are "astroturf" organizations.
So, basically, you're both wrong.
On the post: State Subsidies To Hollywood: Almost Every Program Has Been A Dismal Failure, Costing Taxpayers
Re: Re: Re: Re: Re: Re: Re:
Since when is the Center on Budget and Policy Priorities "one of Google's tech astroturfing groups?"
By the way, here's a direct link to the study:
http://www.cbpp.org/cms/index.cfm?fa=view&id=3326
On the post: Fixing Copyright: Is Copyright A Part Of Free Market Capitalism?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"All you Englishmen want to do is talk. Does nobody in this country fuck anymore?"
- Apocryphally said by a prostitute, after spending an evening with David Hume
On the post: Fixing Copyright: Is Copyright A Part Of Free Market Capitalism?
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Copyright is no more a part of a free market than farm subsidies or minimum wage laws. It's true, government-granted monopolies are sometimes treated as property rights under statute - as is the case with liquor licenses or taxi medallions. But just because they're modeled after property in the statutes, does not mean that they're property in any other context.
And you're simply wrong if you think copyright isn't fundamentally economic in nature. When the Supreme Court said that copyright is "the engine of free expression," they were making an economic argument. When they said "The immediate effect of our copyright law is to to secure a fair return for an 'author's' creative labor," they were making an economic argument. When a fair use analysis examines "the effect of the use upon the potential market," they are making an economic analysis. Furthermore, copyright is almost always referred to as a "monopoly," e.g.: "The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors." To claim that copyright has nothing to do with economics is exactly as idiotic as claiming that California's fixing of electricity prices has nothing to do with economics.
Hell, even your "go-to guy" for thinking that copyright is a natural right - Locke and his "labor theory" of property - was fundamentally making an economic argument. (Or at least proto-economic; many scholars think that Locke's treatise was trying to lay the philosophical groundwork for Adam Smith-style laissez-faire capitalism.) Locke's property rights were ultimately grounded on the efficient allocation of resources - the basis of economic theory.
You are correct that copyright is merely a statutory right. You are wrong in thinking that this statutory right is something more than a government-granted monopoly right. It is not. And the reason it is granted, at least as far as copyright holders are concerned, is solely for economic reasons.
Of course, the legal reasons are based on a wholly theoretical rationale. Copyright exists because it theoretically provides an incentive to create and distribute works - not because any study, anywhere, actually found that the monopoly will actually result in the creation and distribution of works. Economics is an empirical science; it bases its theories on hypotheses that can be tested with data derived from empirical evidence. In contrast, the law is not. It is based on legal opinion, not on empirical evidence. It is wholly theoretical - and, usually, the statutes are enacted due to the political desires of legislators. Economics, by its empirical nature, represents the way the real world works. The law has nothing whatsoever to do with legitimizing real-world behavior - and does not claim to.
It's understandable that you, as a law student, would believe that the letter of the law is the most important thing in life. But it's important that you realize it's not. Everyone makes economic decisions every day. Few people make any conscious decision to obey the law. And even if they don't, economics wins over the law every time. Some hippie douche buying a bag of weed is not obeying the law; but when he decides whether to pay $40 for that bag of weed or not, he's making an economic decision.
On the post: Open Letter To Human Synergistics International In Response To Your Accusation That Techdirt Is Infringing
Re: Re: Re:
Youre on a plane that crashed in the Sonora desert. The pilot and copilot are dead, but you and your classmates are unharmed. Your classmates are a Catholic priest, a Rabbi, a Chicano, a black guy, a guy that was just released from prison, a surrealist, an 80's feminist, a Polish woman, Mel Gibson, and a melancholy horse.
You have 10 items with which to survive. Rank them from funniest to most offensive.
- a nickel
- a very inexpensive prostitute
- a car door
- a choir boy
- a vibrator
- your enormous cock
- the fish
- natural sweetener formed in the shape of female mammary glands
- (looks around before telling joke)
- "that's not funny"
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The court did not do a separate procedural analysis. Nonetheless, it certainly was a prior restraint analysis.
Or do you think that the statute, as it stood, was not a prior restraint on protected speech? If not, then we have nothing to talk about - since it clearly was a speech restriction prior to a determination that the speech was unprotected, thus (by definition) a prior restraint. If you want to argue otherwise, then feel free to proselytize about free speech doctrine with the pair of llamas in your turkey farm in Pennsylvania.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Well, we'll cross that bridge when we come to it.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I mean, one of the hallmark prior restraint cases - New York Times v. United States - involved substantive, not procedural, First Amendment analysis.
The most famous quote about prior restraint, ever, comes from Bantam Books v. Sullivan: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." The cases they list as "prior restraint" cases are: Near v. Minnesota; Lovell v. City of Griffin; Schneider v. New Jersey; Cantwell v. Connecticut; Niemotko v. Maryland; Kunz v. New York; and Staub v. City of Baxley. The court in Bantam was absolutely correct: every single case involved prior restraint. As far as I can tell, all of those involved substantive, not procedural, First Amendment analysis.
Also, Police Dep't. of Chicago v. Mosley was without question a prior restraint case; it was substantive, and moreover quoted U.S. v. O'Brien directly. Ditto for R.A.V. v. City of St. Paul.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I would, however, like to rebut this:
Prior restraint looks at whether the procedures are constitutionally adequate vis-a-vis the First Amendment. Statutes are not challenged on their substance. When a court is applying rational basis or heightened scrutiny, that's a substantive challenge. Prior restraint is a procedural challenge. Two separate doctrines.
Not at all. There is such a thing as substantive prior restraint, just as there is procedural prior restraint. There are many cases where this is explicit.
The Indiana Appeals Court gives a pretty good overview of this:
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
A preliminary injunction and an ex parte seizure are possibly a prior restraint if the context is obscenity.
There is a big difference between injunctions and ex parte seizures, even in obscenity cases. For example, in my current residence of Massachusetts, state obscenity law allows for preliminary injunctions pending trial. Seizure of the material, however, cannot happen until after a trial on the merits.
Neither one of those cases says what you think as neither one says that an instrumentality that could otherwise be seized upon mere probable cause all of the sudden can't be touched until after a full trial on the merits just because it's also used for protected speech.
You're building a straw man. I never once in this thread suggested that a full trial on the merits is necessary. And you're right, neither did CDT, Ft. Wayne Books, or American Library Association.
Instead, they said that an instrumentality that could otherwise be seized upon mere probable cause all of the sudden can't be touched until after an adversarial hearing just because it's also used for protected speech. And they said so unequivocably.
But if injunctions in a case of simple piracy would amount to a prior restraint, why would the Supreme Court say that an injunctive remedy is appropriate?
More straw man arguments. I never said an injunctive remedy would amount to prior restraint. I have always said, and am saying, that an ex parte seizure based upon probable cause is unconstitutional prior restraint, if that seizure "interrupt[s] the flow of expressive materials" (in the words of Fort Wayne Books v. Indiana).
And as soon as a court is applying any level of scrutiny, you know they're not talking about prior restraint. You're mixing up the doctrines again.
In that case, so is the court in CDT v. Pappert: "if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." CDT v. Pappert, Fort Wayne Books v. Indiana, and Bantam Books v. Sullivan were all prior restraint cases. Moreover, without applying some kind of First Amendment scrutiny, how on Earth would you determine if a seizure is prior restraint or not?
The term "prior restraint" is a lot broader than you seem to think it is. Generally, the distinction is between "prior restraint" and "subsequent punishment." For example: "While we may have given a broader definition to the term 'prior restraint' than was given to it in English common law, our decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments" (Alexander v. U.S.). When I use the term "prior restraint," I am using it in exactly the same way that the courts do in all those cases: an unconstitutional restraint on speech, that is not a subsequent punishment. Most First Amendment cases are prior restraint cases.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Oh, and let's not leave out CDT v. Pappert. I quoted it already, but apparently you didn't see this:
The court said, explicitly, that if blocking unprotected materials accessible through its service results in "overblocking," such blocking cannot survive First Amendment scrutiny.
You can't do away with that ruling simply by renaming "blocking unprotected materials accessible through its service" to "seizing instrumentalities used to facilitate unprotected speech." If either one results in "overblocking," it's unconstitutional.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Addendum: As I said above, the Campbell court was quoting Leval, "Toward a Fair Use Standard." Here's the quote from Leval, put in context:
Leval was talking about injunctions issued after an actual finding of infringement. No mention of the ex parte process. Not even the hint of a suggestion that "none of that applies when it's simple piracy."
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You're being either inaccurate or misleading - again. See my explanation earlier about what the court actually said in Campbell.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
And now you've lost me about the whole "pretrial" vs. "ex parte" thing. Your whole argument has been about how difficult it is to make the determination ex parte. I mean, that was the entire debate in the Boggs and Camfield cases.
By the way - the determination of prior restraint in (1), often does turn on the difficulty of determining protected vs. unprotected materials ex parte. But that determination is not the only reason for extra safeguards; they arise from "the larger principle that the freedoms of expression must be ringed about with adequate bulwarks" (as Bantam put it). So that may not the only thing that determines prior restraint in such cases.
Ultimately, the determination of prior restraint turns on whether the seizure suppresses protected speech. That's why I said "probably." There may be cases I haven't heard of (or future cases) where that's not the deciding factor.
But it's (2) where you lose me. You're trying to invent some hybrid argument whereby an instrumentality that is otherwise seizable pretrial suddenly becomes not seizable if it's also used for protected speech--speech that could never be suppressed regardless. In other words, you're arguing that even if materials suspected to be infringing could be seized pretrial consistent with the First Amendment, the instrumentalities used to facilitate that infringement can also be seized pretrial, but only if they are not also used for protected speech. Where did you get this idea? Can you cite any court that has said protected uses insulate an instrumentality like this? I sincerely doubt it.
Have you even read anything I wrote in this entire discussion? Many the cases I've quoted say that "instrumentalities" cannot be seized if that seizure results in "interrupting the flow of expressive materials."
In case you missed it, Ft. Wayne Books said this explicitly: "Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved."
And - yet again - here's some relevant passages from American Library Association ruling:
I have never, ever, ever seen a single case that held that innocent speech can be blocked by an ex parte determination of probable cause that unrelated speech is unprotected. On the other hand, both Ft. Wayne Books and American Library Association explicitly prohibit such seizures.
As is clear from both cases, it is different when the siezure is done following an adversarial hearing, but we were never discussing that situation.
And what do you mean by "speech that could never be suppressed regardless?" If the government seizes or blocks innocent speech, then that speech is suppressed. That is the entire basis of every First Amendment case, ever.
Seriously, it's like you're speaking Klingon or something.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The distinction is tremendously important when talking about prior restraint. All of the cases that we are talking about deal with ex parte seizure orders based on probable cause.
And that's what happened with the domain name seizures. If the court had allowed an adversarial hearing (not necessarily a trial) prior to the seizures, we would be having an entirely different conversation.
The case law dealing with pretrial seizures (or TRO's or injunctions) after an adversarial hearing simply are not relevant to the seizures. If you're talking about the seizures, you must limit the case law to cases dealing with ex parte seizures.
I was never talking about "pretrial" seizures in this entire thread, because it's irrelevant. And I believe I've always been explicit about the distinction.
On the post: Yes, A Domain Name Can Be Protected By The First Amendment
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The agents did contact the rightsholders (or who they thought were the rightsholders), in the Dajaz1 case. They were wrong. Even leaving aside the vast amounts of innocent speech on that site, the seizure of the materials specified in the affidavit would be a prior restraint.
If it were "simple" and "objective," the mistake wouldn't have been made. It was. The fact that it actually happened proves that you're wrong.
No court has ever said that the determination of copyright infringement is difficult, because it's not.
The court in Suntrust did say that, actually. It was a fair use case, but all the same, it shows that copyright infringement is not as "simple" or "objective" as you'd like to think. They didn't say that in the case of "simple piracy," but the case law never dealt with situations where unauthorized material was indistinguishable from authorized material. Such as it is in cases where the material is a digital file.
That determination is anything but "easy." It is, in fact, the very reason the DMCA safe harbors exist. It is extraordinarily difficult for any third party to determine whether a copy is infringing or not on the Internet. It is not any easier for ICE to determine it, than it is for Google.
Overbreadth doctrine is a completely separate First Amendment doctrine that has nothing at all to do with prior restraint.
Perhaps I'm using "overbreadth" improperly. There is no explicit "overbreadth doctrine" in case law; it's kind of a shorthand for all manner of speech restrictions that also burden innocent speech. For instance, the "narrowly tailored" and "least restrictive means" tests of strict scrutiny, and the "incidental restriction [...] is no greater than is essential" test from O'Brien, both seem to be examples of "overbreadth." But Marcus v. Search Warrant also seems to be an "overbreadth" case if read literally: "Procedures which sweep so broadly and with so little discrimination are obviously deficient in techniques required by the Due Process Clause of the Fourteenth Amendment to prevent erosion of the constitutional guarantees." Yet Marcus is generally considered a prior restraint case.
So, as near as I can determine, the "overbreadth doctrine" is simply an instance of prior restraint. At the very least, that is the case when talking about ex parte seizures. As the court said in CDT v. Pappert: "Thus, if material protected by the First Amendment is removed from circulation without these procedural protections, the seizure is invalid as a prior restraint." Ft. Wayne Books also used the term: "The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here."
The same test applies whether its materials or the instrumentalities used to produce those materials. You seem to think that criminals can insulate their tools by also using them for noncriminal purposes.
When those "noncriminal purposes" are "the flow of expressive materials," then yes, those "tools" are "insulated" from ex parte seizure based on probable cause. The courts in Ft. Wayne Books v. Indiana, and American Library Ass'n V. Thornburgh, made this uniquivocably clear.
Also, the ICE seizures did not seize any tools used to produce infringing content, nor did they claim to.
Again, pretrial seizure of obscene materials.
Neither Fort Wayne Books nor American Library Association were dealing with the pretrial seizure of obscene materials. The Fort Wayne Books case dealt with the seizing of an entire bookstore. The American Library Association case had an entire section detailing how the seizure rules, specifically, were unconstitutional, precisely because "the laws provide for forfeiture of any property used in, to promote, or obtained from the commission of the offense, whether or not it is 'obscene' material, First Amendment protected material, or non-expressive material."
Focusing solely on the obscenity issue, while completely ignoring everything else, is utterly ludicrous.
Obscenity is different, because, as the Supreme Court explicitly said in Marcus and Bantam Books, it's a difficult determination to make.
Marcus and Bantam were quoting Speiser v. Randall, which was not an obscenity case. It may be helpful to read that section of the Speiser case:
They were not talking about obscenity, but all speech restrictions generally. No matter what the speech restirction, they are all "finely drawn" and require "sensitive tools." The problem may be heightened when the determination of non-protection is difficult to make; but it never disappears altogether.
[Me:] The seizures were not targeted at infringing copies. They were targeted at links to infringing copies on third-party websites. Thus, the government made an ex parte judgement that the links themselves, not the content, were criminally infringing.
[You:] Which has zero to do with prior restraint doctrine.
Of course it does. Even ignoring the "overbreadth" issue, if the links to infringing content were not criminally infringing, then the government was putting a prior restraint on the links themselves.
Moreover, it is not irrelevant, since the ex parte determination was whether the links were infringing. Determining that the content that the links led to was infringing, is not remotely the same as determining that linking to that content is criminally infringing. That determination is the very definition of "dim and uncertain."
Do you agree or disagree that whether such pretrial seizures are prior restraints turns on the difficulty of the determination? If you disagree, do you nevertheless agree or disagree that the district court and appellate court in Boggs said explicitly that it did?
It depends on what you mean by "such pretrial seizures." I'm going to call such seizures "ex parte seizures, based only on probable cause that specific instances of speech are unprotected," since that's the issue under discussion. This discussion is not about pretrial seizures that occur after an adversarial hearing.
Now that we're clear:
1. Whether such seizures of only the allegedly unprotected speech, are prior restraints of that allegedly unprotected speech, probably turns on the difficulty of the determination. (I'm not quite willing to grant it as a bright-line rule.) But here, the test from both Boggs and the child pornography cases, is whether that determination can be made on observation alone.
2. Whether such seizures that also block innocent speech, are prior restraints of the innocent speech, has absolutely nothing to do with the difficulty of the determination. Even if the determination is obvious from observation, an ex parte seizure may not block innocent speech as a consequence. Whether you choose to call this "overbreadth" or "prior restraint," either way it is unconstitutional.
For example, the government could not seize a domain name ex parte because of child pornography residing on it. When Operation Protect Our Children mistakenly seized the domains for 84,000 websites for allegedly hosting child pornography, it was unconstitutional, even if you apply the Camfield standard.
Frankly, I have no idea why you're so heavily on the government's side. Pretrial seizures are often granted, but ex parte seizures are an extraordinary remedy that is supposed to be applied only in exigent circumstances. The government would lose nothing whatsoever if they were required to hold an adversarial hearing before seizing the domains. There is really no justification at all for the ex parte process, and I have absolutely no idea why you're willing to constrict prior restraint doctrine in order to defend them.
Next >>