Supreme Court Justice Clarence Thomas flaunted a dangerous ignorance regarding matters digital in an opinion published today. In attempting to explain the legal difficulties of social media platforms, particularly those arising from Twitters ban of Trump, he makes an ill-informed, bordering on bizarre, argument as to why such companies may need their First Amendment rights curtailed.

There are several points on which Thomas seems to willfully misconstrue or misunderstand the issues.

The first is in his characterization of Trumps use of Twitter. You may remember that several people sued after being blocked by Trump, alleging that his use of the platform amounted to creating a public forum in a legal sense, meaning it was unlawful to exclude anyone from it for political reasons. (The case, as it happens, was rendered moot after its appeal and dismissed by the court except as Thomas temporary soapbox.)

But Mr. Trump, it turned out, had only limited control of the account; Twitter has permanently removed the account from the platform, writes Thomas. [I]t seems rather odd to say something is a government forum when a private company has unrestricted authority to do away with it.

Does it? Does it seem odd? Because a few paragraphs later, he uses the example of a government agency using a conference room in a hotel to hold a public hearing. They cant kick people out for voicing their political opinions, certainly, because the room is a de facto public forum. But if someone is loud and disruptive, they can ask hotel security to remove that person, because the room is de jure a privately owned space.

Yet the obvious third example, and the one clearly most relevant to the situation at hand, is skipped. What if it is the government representatives who are being loud and disruptive, to the point where the hotel must make the choice whether to remove them?

It says something that this scenario, so remarkably close a metaphor for what actually happened, is not considered. Perhaps it casts the ostensibly odd situation and actors in too clear a light, for Thomas other arguments suggest he is not for clarity here but for muddying the waters ahead of a partisan knife fight over free speech.

In his best Im not saying, Im just saying tone, Thomas presents his reasoning why, if the problem is that these platforms have too much power over free speech, then historically there just happens to be some legal options to limit that power.

Thomas argues first, and worst, that platforms like Facebook and Google may amount to common carriers, a term that goes back centuries to actual carriers of cargo, but which is now a common legal concept that refers to services that act as simple distribution bound to serve all customers alike, without discrimination. A telephone company is the most common example, in that it cannot and does not choose what connections it makes, nor what conversations happen over those connections it moves electric signals from one phone to another.

But as he notes at the outset of his commentary, applying old doctrines to new digital platforms is rarely straightforward. And Thomas method of doing so is spurious.

Though digital instead of physical, they are at bottom communications networks, and they carry information from one user to another, he says, and equates telephone companies laying cable with companies like Google laying information infrastructure that can be controlled in much the same way.

Now, this is certainly wrong. So wrong in so many ways that its hard to know where to start and when to stop.

The idea that companies like Facebook and Google are equivalent to telephone lines is such a reach that it seems almost like a joke. These are companies that have built entire business empires by adding enormous amounts of storage, processing, analysis and other services on top of the element of pure communication. One might as easily suggest that because computers are just a simple piece of hardware that moves data around, that Apple is a common carrier as well. Its really not so far a logical leap!

Theres no real need to get into the technical and legal reasons why this opinion is wrong, however, because these grounds have been covered so extensively over the years, particularly by the FCC which the Supreme Court has deferred to as an expert agency on this matter. If Facebook were a common carrier (or telecommunications service), it would fall under the FCCs jurisdiction but it doesnt, because it isnt, and really, no one thinks it is. This has been supported over and over, by multiple FCCs and administrations, and the deferral is itself a Supreme Court precedent that has become doctrine.

In fact, and this is really the cherry on top, Associate Justice Kavanaugh in a truly stupefying legal opinion a few years ago argued so far in the other direction that it became wrong in a totally different way! It was Kavanaughs considered opinion that the bar for qualifying as a common carrier was actually so high that even broadband providers dont qualify for it. (This was all in service of taking down net neutrality, a saga we are in danger of resuming soon). As his erudite colleague Judge Srinivasan explained to him at the time, this approach too is embarrassingly wrong.

Looking at these two opinions, of two sitting conservative Supreme Court justices, you may find the arguments strangely at odds, yet they are wrong after a common fashion.

Kavanaugh claims that broadband providers, the plainest form of digital common carrier conceivable, are in fact providing all kinds sophisticated services over and above their functionality as a pipe (they arent). Thomas claims that companies actually providing all kinds of sophisticated services are nothing more than pipes.

Simply stated, these men have no regard for the facts but have chosen the definition that best suits their political purposes: For Kavanaugh, thwarting a Democrat-led push for strong net neutrality rules; for Thomas, asserting control over social media companies perceived as having an anti-conservative bias.

The case Thomas uses for his sounding board on these topics was rightly rendered moot Trump is no longer president and the account no longer exists but he makes it clear that he regrets this extremely.

As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms, he concludes. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.

Between the common carrier argument and questioning the form of Section 230, Thomass hypotheticals break the seals on several legal avenues to restrict First Amendment rights of digital platforms, as well as legitimizing those (largely on one side of the political spectrum) who claim a grievance along these lines. (Slate legal commentator Mark Joseph Stern, who spotted the opinion early, goes further, calling Thomass argument a paranoid Marxist delusion and providing some other interesting context.)

This is not to say that social media and tech do not deserve scrutiny on any number of fronts they exist in an alarming global vacuum of regulatory powers, and hardly anyone would suggest they have been entirely responsible with this freedom. But the arguments of Thomas and Kavanaugh stink of cynical partisan sophistry. This endorsement by Thomas accomplishes nothing legally, but will provide valuable fuel for the bitter fires of contention though they hardly needed it.

See the article here:

Clarence Thomas plays a poor devils advocate in floating First Amendment limits for tech companies - TechCrunch

On Monday, the Supreme Court refused to hear a case brought by radio host and conspiracy theorist Alex Jones, in which Jones claimed his First Amendment rights were being violated.

If youve ever wondered where our First Amendment protection ends, youve found it.

The move came after Jones was sanctioned for statements he made on air against a lawyer in a defamation suit brought against Jones by parents of victims of the Sandy Hook Elementary School mass shooting. In his eyes, the sanction violated his First Amendment right to free speech.

If youve ever wondered where our First Amendment protection ends, youve found it.

But the bigger question is not necessarily what to do with the Joneses of the world. (Well get into why the speech Jones is being sued for and sanctioned over is undeserving of First Amendment protection in a minute.) The truly important question is what to do with speech that is a closer call, like disinformation regarding politicians, political issues and scientific facts.

The Jones case does not bring up those issues, but we can only avoid them for so long. Remember when, more than a year ago, before more than a half-million Americans died from Covid-19, former President Donald Trump claimed the coronavirus is something we have tremendous control of? Or when he claimed he won the 2020 election that, in fact, he lost? So do I.

The First Amendment does protect, with some limited exceptions, your ability to say truly horrendous and despicable things without fear that the government will silence that speech. If you want to grab a microphone in the middle of the town square and start spouting irrational and harmful conspiracy theories go for it; the government likely cant stop you.

The First Amendment does protect, with some limited exceptions, your ability to say truly horrendous and despicable things without fear that the government will silence that speech.

This is typically true even if you, a despicable speaker, are a member of the government or even the head of government. The government allows harmful, hateful and repugnant speech in many cases namely because in our country we are generally more worried about government censorship than we are about spurious, disgusting and degrading speech.

We basically adhere to the idea that in an invisible marketplace of ideas, the more speech the better. The hope is that the productive, truthful speech will rise to the top while the hateful, lie-laden speech will fall to the bottom and be disregarded. We strongly adhere to a theory that under the First Amendment, each individual has the ability to express themselves free of government intrusion even if that expression is abhorrent.

But there are exceptions where contemptible and hateful speech is not allowed, such as in the case of Jones. After Jones took to the air to claim the 2012 mass shooting at Sandy Hook Elementary School was a staged hoax, parents of the slain children were subjected to threats and harassment. Some of those parents sued Jones in a defamation suit.

After Jones went on a verbal rampage against one of the lawyers while the defamation case was pending, the judge sanctioned Jones. Jones protested, claiming the sanctions violated his First Amendment rights. The Connecticut Supreme Court unanimously ruled against Jones, finding the sanctions were appropriate because his speech amounted to impermissible threats. Jones appealed to the U.S. Supreme Court, which led to Mondays refusal to hear the case, letting Jones defeat in the Connecticut courts stand.

When Jones claimed the judges sanctions violated his First Amendment rights, a unanimous Connecticut Supreme Court disagreed.

Jones case brings up two of exceptions to the First Amendment: We do allow people to be punished for speech when that speech is defamatory or poses an imminent threat of physical harm both of which happened when Jones made claims on air that the Sandy Hook shootings, in which 26 people died, 20 of whom were children, were staged and that family members were paid actors.

Defamation laws vary a bit by state, but in general, a plaintiff is required to show that a defendant: No. 1, communicated to at least one other person; No. 2, made a false statement of fact (meaning not an opinion); No. 3, is of the required statement of mind (meaning negligence with respect to the falsity of the statement if the plaintiff is a private figure and knowledge or reckless disregard of the falsity of the statement if the plaintiff is a public figure); and No. 4, caused the plaintiff some damage or harm.

During the trial proceedings, Jones claimed on his show that one of that the lawyers representing the Sandy Hook families planted child pornography in email data he had to turn over as part of the suit. Jones didnt stop there. He mentioned the lawyer by name, pointed to a photograph of him and said, One million dollars to put your head on a pike, and, Im gonna kill Anyway Im done. Total war. You want it, you got it.

A Connecticut state trial court judge issued sanctions against Jones for failing to turn over documents to the lawyers representing the Sandy Hook families and for the rant. The judge also told Jones that he could not file a motion to dismiss the case and that he had to pay a portion of the families legal fees.

When Jones claimed the judges sanctions violated his First Amendment rights, a unanimous Connecticut Supreme Court disagreed. This now brings us to another exception to the First Amendment: speech that, as the Connecticut Supreme Court held, is an imminent and likely threat to the administration of justice.

Since Jones appealed his case all the way to the Supreme Court and it refused to hear the case, this means the Connecticut Supreme Court decision stands.

So, where does this leave us? About where we began: in a country with few, but very real, limits on the First Amendment. Jones case shows us where those limits lie both with respect to defamation law (that case is still ongoing, but Jones will likely lose it) and with respect to laws regarding imminent physical threats.

The truth is, we draw lines between speech that is protected and speech that is not based on a variety of things, including how immediate the harm may be. It may not be a great dividing line, but it is one of the few that we have.

Read more:

How Infowars host Alex Jones pushed the First Amendment to its limit - MSNBC

When Brandi Levy didnt make the varsity cheerleading team four years ago as a freshman at Mahanoy Area High School in Pennsylvania, she took to Snapchat to voice her frustration.

I was frustrated. I was upset. I was angry. And I made a post on Snapchat, Levy told ABC News Live. I said, F school, F cheer, F softball, F everything.'

Days later after her social media post was shared with 250 friends, the school district accused her of breaching a code of conduct and suspended her from cheerleading.

The teen sued the school district and won in the U.S. Court of Appeals for the Third Circuit in Philadelphia. The court said the First Amendment did not allow public schools to punish students for speech outside school grounds.

Now, the U.S. Supreme Court will hear arguments in the case April 28 and hand down a decision by the end of June.

The Mahanoy Area School District stated, The First Amendment is not a territorial straitjacket that forces schools to ignore speech, that disrupts the school environment, the school district wrote in its brief to the Supreme Court.

Sara Rose, an American Civil Liberties Union attorney defending Levy, said the U.S. Supreme Court has never decided how far school authority extends, or whether it extends at all, to students out-of-school speech.

The school district presented the question before the court as whether Tinker should apply outside of school, and as our position even if the court were to decide that Tinker applied outside of school our client would still win because her speech didnt create a material and substantial disruption of the schools, Rose told YR Media.

The famous 1969 court decision of Tinker v. Des Moines ruled that students dont surrender their First Amendment rights at the schoolhouse gate, but that educators can limit speech on school property when its materially disruptive. It has not addressed how school-related speech expressed off-campus can be handled.

Levy said her Snapchat did not violate a school cheerleading code that required respect and no negative information to be expressed while part of the team.

I think that it didnt because I was not directing towards any coaches, Levy said, according to ABC News Live. I didnt have the schools name in it. I didnt have the coaches name or any teammates names in it, she said.

Rose said young people should be aware of the consequences that posting on social media can bring, even if its a post that isnt meant to be permanent.

I think the real risk here is that if the court were to allow schools to discipline students for speech that takes place on social media, outside of school, and thats gonna take away a really valuable form of communication from kids, Rose said.

Read the original here:

Cheerleader's First Amendment Rights on Snapchat Headed to US Supreme Court - YR Media

EFF applauds the U.S. Court of Appeals for the First Circuit for holding that the First Amendment protects individuals when they secretly audio record on-duty police officers. EFF filed an amicus brief in the case, Martin v. Rollins, which was brought by the ACLU of Massachusetts on behalf of two civil rights activists. This is a victory for people within the jurisdiction of the First Circuit (Massachusetts, Maine, New Hampshire, Puerto Rico and Rhode Island) who want to record an interaction with police officers without exposing themselves to possible reprisals for visibly recording.

The First Circuit struck down as unconstitutional the Massachusetts anti-eavesdropping (or wiretapping) statute to the extent it prohibits the secret audio recording of police officers performing their official duties in public. The law generally makes it a crime to secretly audio record all conversations without consent, even where participants have no reasonable expectation of privacy, making the Massachusetts statute unique among the states.

The First Circuit had previously held in Glik v. Cunniffe (2011) that the plaintiff had a First Amendment right to record police officers arresting another man in Boston Common. Glik had used his cell phone to openly record both audio and video of the incident. The court had held that the audio recording did not violate the Massachusetts anti-eavesdropping statutes prohibition on secret recording because Gliks cell phone was visible to officers.

Thus, following Glik, the question remained open as to whether individuals have a First Amendment right to secretly audio record police officers, or if instead they could be punished under the Massachusetts statute for doing so. (A few years after Glik, in Gericke v. Begin (2014), the First Circuit held that the plaintiff had a First Amendment right to openly record the police during someone elses traffic stop to the extent she wasnt interfering with them.)

The First Circuit in Martin held that recording on-duty police officers, even secretly, is protected newsgathering activity similar to that of professional reporters that serve[s] the very same interest in promoting public awareness of the conduct of law enforcementwith all the accountability that the provision of such information promotes. The court further explained that recording play[s] a critical role in informing the public about how the police are conducting themselves, whether by documenting their heroism, dispelling claims of their misconduct, or facilitating the publics ability to hold them to account for their wrongdoing.

The ability to secretly audio record on-duty police officers is especially important given that many officers retaliate against civilians who openly record them, as happened in a recent Tenth Circuit case. The First Circuit agreed with the Martin plaintiffs that secret recording can be a better tool to gather information about police officers, because officers are less likely to be disrupted and, more importantly, secret recording may be the only way to ensure that recording occurs at all. The court stated that the undisputed record supports the Martin Plaintiffs concern that open recording puts them at risk of physical harm and retaliation.

Finally, the court was not persuaded that the privacy interests of civilians who speak with or near police officers are burdened by secretly audio recording on-duty police officers. The court reasoned that an individuals privacy interests are hardly at their zenith in speaking audibly in a public space within earshot of a police officer.

Given the critical importance of recordings for police accountability, the First Amendment right to record police officers exercising their official duties has been recognized by a growing number of federal jurisdictions. In addition to the First Circuit, federal appellate courts in the Third, Fifth, Seventh, Ninth, and Eleventh Circuits have directly upheld this right.

Disappointingly, the Tenth Circuit recently dodged the question. For all the reasons in the First Circuits Martin decision, the Tenth Circuit erred, and the remaining circuits must recognize the First Amendment right to record on-duty police officers as the law of the land.

See original here:

First Circuit Upholds First Amendment Right to Secretly Audio Record the Police - EFF

During the covid-19 pandemic, CJR received a submission, via the Empowerment Avenue Writers Cohort, from an incarcerated writer, Kevin D. Sawyer, who explained what its like to be a journalist in San Quentin State Prison, in Northern California. We felt it needed no editing, and that even the means of submissiontypewritten, with corrections by handhelped tell his tale. So we have reproduced it below as we received it.

(Click images to view larger.)

Full text of Kevin D. Sawyers letter:

SAWYER INCARCERATED JOURNALIST

Words: 1,200

Sources: Authors experience and opinion.

By Kevin D. Sawyer

Theres something uniquely different about being a writer and journalist who is incarcerated, besides the obvious. Unlike freelance journalists and those who work for mainstream and corporate publications, we who are imprisoned get to bite the hand that feeds us. And we never miss a meal.

Mull over that for a minute the next time rent, insurance or the car payment is due. My ability of simple storytelling and reporting truth to power, such as my jailers, isnt lost in the fear or inconvenience of earning a living, or the preservation of an extravagant lifestyle. As long as Im a prisoner, by law, the state must continue to feed me.

Im a non-unionized journalist and writer, not in want of organized-labor protection to sustain my writing. In the purest form of freedom to write, all I need is a pen, paper and the First Amendment. That doesnt mean I have not faced consequences though, especially from increased knowledge through reading the wrong books and writing unpopular views deemed inflammatory or indicative of my affiliation with a defunct prison gang.

Two years ago, I articulated this to Columbia Journalism Review in a story I submitted titled Writing While Black. It doesnt quite work for us, but you should keep working on it, Kyle Pope, CJRs editor and publisher wrote to me. Theres something to your notion that simply reading (and writing) is considered a threatening act that is worth expanding on. He was right, but I knew it before he quoted, in part, what Id submitted to CJR:

Writing requires honesty, and journalism demands truth. In American society, writers and journalists are destroyed on both sides of the prison gate. Threats work to achieve this sometimes, but its the economic rewards that do the most damage. When some writers standard of living is raised, it must be maintained. With that sometimes comes dishonesty.

Pope said my statement was true, and that he was moved by (my) commitment to keep writing, and to keep reading, in the face of the threats (I) face. He wrote that I was doing the work of real journalism.

The problem, however, is the enduring fact that Im imprisoned and too often find myself rendered invisible. Sure, I have a voice. But I write in a vast sea of darkness; sometimes literally, other times figuratively, or both. I struggle with how to allot some type of agency to other prisoners when, minimally, I face it as a journalists[sic] and writer who is incarcerated.

The incessant absence of incarcerated voices in mainstream media is largely due in part to the reality that editors dont know who we are as writers and where we are confined. Fasten that to the fact that we do not have email, internet, cellphone or social media access. Thats another aspect of darkness. Yet, I feel fortunate to own a typewriter and have access to the U.S. mail.

Recently I discussed this with Emily Nonko, a New Yorkbased freelance journalist who lends me and other incarcerated journalists her assistance. I told her how frustrating it is to not have a story acknowledged as received, even if its not published. At least Popes doesnt quite work for us placed me on his radar. For that I am grateful. Id made it to the plate but struck out in a game thats not over. Instead of being completely disappeared, I was heard.

Nonko told me shes discovered there are many editors who dont know how, or that they can, set up prepaid telephone accounts with inmate call service providers to communicate with incarcerated journalists (where it is available). In California state prisons, Global Tel Link offers this service. Editors may also use email service through companies such as JPay to send letters to inmates. I usually receive these messages the same day theyre written, by 2:30 p.m. (PST), if theyre sent early in the morning. The email is routed to a printer in the prisons mail room so it arrives with the rest of the mail. I do, however, have to use snail mail to respond. So, although the technology is available, there are editors who are unaware of its usefulness. They have no means, or dont know how to connect to incarcerated writers, yet they talk about social justice and criminal justice, Nonko said.

As important, it irks some incarcerated journalists to read stories written about prison, mass incarceration and criminal justice reform, by writers whove never set foot inside a jail or prison. Its not dishonest, but its not exactly beat reporting either. With 2.3 million men, women and children incarcerated in the United States, theres hardly a shortage of penal institutions one can find to visit.

This leaves writers like me to dispatch stories with first-hand accounts and interviews to outside news organizations that hopefully will have an editor who covets truth from an insider. For example, I was living inside San Quentin when the coronavirus swept through the prison. Not one reporter, including state public information officers, listened to the horror of the screams of man down and the alarms that went off all day during the peak of the outbreak. I watched it all, including death, and had no place to send my story. That is, until I was told to contact Nonko. Aside from news, I also have opinions about gangs, crime, punishment, politics, and in contemporary times Black Lives Matter.

Incarceration has not extinguished my views on such matters. Truth or opinion, Ill say it and write it even if its unpopular or thought to be seditious, and Ill still receive a hot meal. When I transferred from Folsom State Prison to San Quentin in 2011, my writings and research were confiscated.

I filed an administrative grievance to have my work returned to me, but I was met with retaliation. Sometimes the hand bites back. I was accused by the prisons goon squad (special security unit) of being connected to the Black Guerrilla Family prison gang. Its a timeworn tactic in the California Department of Corrections and Rehabilitation used to silence men by placing them in solitary confinement for writing while black. Undeterred, I bit back. Unlike outside corporate journalists, I didnt have a legal team to help me for the first seven years. I had to rely on my paralegal training, so off I went as a self-taught, indigent, prose litigant in prison. Not exactly a recipe for success, but thats another ingredient in the uniqueness of writing behind bars; time to learn.

Nearly eight years to the day after my work was seized, I sat in a federal courtroom in San Francisco, with my attorney and two of his law school students. The case Sawyer v. Chappell, et al. had reached a settlement hearing. I prevailed. Truth and honesty were on my side. All a man has left when he enters prison is his word. Fuck that up and youre nothing in there. During that time, more than 200 of my writings were published in more than a dozen publications in the United States and Canada that include news, memoirs, fiction, essays and poetry. An even amount remains unpublished.

I havent been inside the prison newsroom since covid-19 placed San Quentin on lockdown in March. Since then, more than 2,400 prisoners have tested positive for the virus at the prison, and 26 prisoners and one sergeant have died from the virus. I press on in my cell, though, with my 2013 AP Style Guide, law books (including media law), Brother ML 300 typewriter, dictionary, thesaurus, and other tools to do my craft of journalism, the old fashion way.

Although Im not on the other side of the wall, after 24 years, Im hopeful. Ive done well up to this point. The only thing Id trade for the unique experience is the time Ive lost. Ill never get that back, but Ive written many stories along the way, including my own. All of them are dutifully packed with truth, and some with inflammatory honesty. How many writers and journalists are proud to vaunt that as they caress the hand that feeds them? Time to sharpen my teeth for dinner, with more incorruptible words. Thanks for hearing me, Kyle Pope!

End It

TOP IMAGE: San Quentin State Prison. Scott Strazzante/The San Francisco Chronicle via Getty Images

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'All I need is a pen, paper and the First Amendment' - Columbia Journalism Review

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In a landmark ruling with implications for the future ofProposition 65 enforcement, the US District Court for the EasternDistrict of California has preliminarily enjoined any person fromfiling or prosecuting lawsuits seeking cancer warnings foracrylamide on food and beverage products sold in California. Theruling stops hundreds of enforcement actions in their tracks, bodeswell for the ultimate end of Proposition 65 acrylamide lawsuits,and has implications for other listed chemicals.

The California Office of Environmental Health Hazard Assessment(OEHHA) added acrylamide to the Proposition 65 list of carcinogensin 1990, but acrylamide was not detected in foods until 2002.Acrylamide is not intentionally added to food products but isformed naturally when some foods are cooked or otherwise processedwith heat. Common sources of acrylamide in the human diet includebreakfast cereals, coffee, crackers, whole grains breads, roastedasparagus, roasted nuts, and prune juice. The near-ubiquitousnature of the chemical in everyday food and beverage products hasmade it a prime target for Proposition 65 enforcement. Since 2002,private enforcers have served more than one thousand pre-litigationnotices of violation concerning acrylamide in food and beverageproducts, reaping millions of dollars in settlements.

In October 2019, the California Chamber of Commerce (CalChamber)filed a lawsuit against the California Attorney General in federaldistrict court challenging the Proposition 65 warning requirementfor cancer as applied to acrylamide in food and beverage products.CalChamber alleges that these compelled warnings are not"purely factual and uncontroversial" and thus violate theFirst Amendment prohibition against compelled commercialspeech.

After amending its pleadings and surviving a motion to dismiss,CalChamber sought a preliminary injunction prohibiting the AttorneyGeneral and private enforcers of Proposition 65 from filing orprosecuting new lawsuits to enforce the warning requirement forcancer as applied to acrylamide in food and beverage products.CalChamber argued that under the US Supreme Court's decisioninZauderer v. Office of Disciplinary Counsel, 471U.S. 626 (1985), the government cannot compel commercial speakersto disclose information about their products that is not"purely factual and uncontroversial." CalChamber arguedthat a warning that acrylamide in food is "known to the Stateto cause cancer" is not purely factual and uncontroversial,because no governmental or scientific agency has classifiedacrylamide as a "known" human carcinogen, and scientificstudies in humans have found no reliable evidence that exposure toacrylamide through the diet is associated with any risk ofdeveloping cancer. CalChamber presented expert testimony from anepidemiologist and a toxicologist, and a key state scientistadmitted that California does not know that acrylamide causescancer in humans.

The court agreed that CalChamber was likely to succeed on themerits, holding that "[a]t this stage of the case, the Statehas not shown this warning is purely factual anduncontroversial." The court reasoned that although there wassome evidence to support an inference that acrylamide increases therisk of cancer in humans (such as laboratory experiments in miceand rats), "dozens of epidemiological studies have failed totie human cancer to a diet of food containing acrylamide," andthe Proposition 65 "safe harbor warning is controversialbecause it elevates one side of a legitimately unresolvedscientific debate about whether eating foods and drinks containingacrylamide increases the risk of cancer."

The court also rejected the Attorney General's argument thatCalifornia businesses were free to use an alternative warning toavoid the constitutional infirmity, reasoning that the State couldnot "put the burden on commercial speakers to draft a warningthat both protects their right not to speak and complies withProposition 65." Thus, the court explained: "If the seasbeyond the safe harbor are so perilous that no one risks a voyage,then the State has either compelled speech that is not purelyfactual, or its regulations impose an undue burden." In eithercase, the court concluded, the State had not carried its burden toshow that Proposition 65 warnings for acrylamide in food areconstitutional underZauderer.

The court further concluded that CalChamber's members'would suffer irreparable harm if new Proposition 65 enforcementactions could be filed while CalChamber's lawsuit was pending,and that this harm outweighed the State's and the public'sinterest in those enforcement actions. The court explained:"Because the Chamber has a 'colorable First Amendmentclaim,' it has demonstrated it 'likely will sufferirreparable harm' if Proposition 65 warnings against acrylamidecan be enforced while this litigation is pending."

Accordingly, the court granted CalChamber's motion for apreliminary injunction, holding: "While this action is pendingand until a further order of this court, no person may file orprosecute a new lawsuit to enforce the Proposition 65 warningrequirement for cancer as applied to acrylamide in food andbeverage products." The court's ruling immediately haltshundreds of pendingbut not yet filedprivateenforcement efforts, providing much-needed relief to businessesfaced with a persistent threat of civil penalties and costlylitigation. The court explained, however, that its order does notalter any existing consent decrees, settlements, or otheragreements related to Proposition 65 warning requirements.

The preliminary injunction was issued inCaliforniaChamber of Commerce v. Becerra, No. 2:19-cv-02019-KJM-JDP.CalChamber is represented by the authors.

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.

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The Supreme Court has yet to rule on similar gun cases recently, but certain restrictions are allowed under the Constitution.

President Biden has announced plans for about half a dozen executive actions. Among them, he wants tighter regulations on buyers of ghost guns, or homemade firearms assembled from parts kits. He wants these treated under the Gun Control Act, and include a background check.

Other plans include a proposed rule regulating pistol-stabilizing braces. Biden said this was used in the Boulder, Colorado shooting last month, which left 10 people dead. He also urges states to adopt "Red Flag Laws," and will publish model legislation in the next two months. Red Flag Laws allow someone to petition a court to have weapons confiscated from someone who could be a danger to themselves or others.

Repeatedly throughout Biden's announcement, he said these measures do not interfere with second amendment rights.

Does it? We don't know yet. That's according to Devin Schindler, a distinguished emeritus professor of law and constitutional law expert. He referred to two supreme court cases, District of Columbia v. Heller and McDonald v. City of Chicago.Schindler said in these cases, the Supreme Court ruled individuals have a fundamental constitutional right to possess common firearms.

"The Supreme Court, in opinion by Justice Scalia, who is, you know, a fan of gun rights, said we're not saying that states in the federal government cannot issue reasonable gun restrictions on things like machine guns or preventing felons possessing firearms," said Schindler, "We're not saying that. We're saying very narrow ruling that individuals have a right to possess common firearms in their home for purposes of self defense."

Schindler said the unknown right now is if ghost kits or these stabilizers fall under common firearms. That would be up to the Supreme Court to decide.

However, Biden also made a point in the announcement amendments are not absolute.

"You cant yell fire in a crowded movie theater and call it freedom of speech," said Biden, "From the very beginning, you couldnt own any weapon you wanted to own. From the beginning of the second amendment existed, certain people were not allowed to have weapons. So the idea is just bizarre to suggest some of the things we are recommending are contrary to the constitution."

Schindler said a number of similar cases have already worked their way through lower courts, but the Supreme Court has refused to take them on. He believes the Court is waiting until the dust settles. However, he said Red Flag Laws, if adopted by the federal government, and ghost kits could easily make its way to the highest court.

"The Court has made clear that certain kinds of reasonable restrictions will be upheld," said Schindler, "We don't know the exact line. But I thought President Biden made a pretty spirited defense for the idea of, why do folks need 100 magazine bullet chamber for home defense? There's something to that. Red Flag Laws. The Constitution also says that the government can deprive you of life, liberty and property if they give you due process. Well, Red Flag Laws require that there be a court hearing and due process. So we have to see exactly what comes out of this before we can make any definitive determinations or predictions."

In his announcement today, President Biden also called on Congress, urging them to act on gun control. He highlighted measures such as closing background check loopholes and passing the Violence Against Women act.

"So, President Biden is absolutely correct that the Supreme Court has ruled that the Second Amendment, like the First Amendment, is not absolute," said Schindler, '"Certain restrictions are still allowed under our Constitution. Problem is, we don't know exactly what those restrictions are yet."

RELATED VIDEO: Biden calls for more gun control in wake of Boulder mass shooting

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