Daily Archives: May 29, 2020

On May 28, President Trump signed an executive order aimed at giving the government a freer hand in regulating content online. The order focuses on legal and constitutional guardrails that most often apply to online platforms that host content created by third parties, but the executive order as a whole could have implications for press freedom. The executive order comes two days after Twitter, for the first time, added a fact-checking notice to two of the presidents tweets about the use of mail-in ballots.

The first line of the presidents order declares that free speech is the bedrock of American democracy, said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. But the timing and content of this executive order only reinforce concerns that his motivation is to punish his perceived critics. That would be a central question for any courts of law that might be called upon to enforce the First Amendment norms we have enjoyed in this country for generations.

Of particular interest to the press, the executive order calls on federal and state officials to consider using consumer protection laws, including the Federal Trade Commissions authority to regulate unfair or deceptive practices, against platforms that, for instance, restrict speech in ways that do not align with those entities public representations about those practices.

Consumer protection law is meant to address demonstrably false claims like cigarettes are good for you it doesnt do well in making thorny calls about whether a platform or news organization is somehow biased, said Gabe Rottman, director of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press. But opening that door, which is exactly what this executive order wants to do, would give the government an enormously powerful tool to censor speech it doesnt like online. Given the broad sweep of its language, this executive order isnt just a concern for online speech, it should be of concern for news organizations and free press advocates as well.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

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RCFP statement on Trump's social media executive order - Reporters Committee for Freedom of the Press

When President Donald Trump made unsubstantiated claims on Twitter May 26 about mail-in voting, it fact-checked him inserting beneath his tweets a hyperlink to more information on the subject.

President Trump then accused Twitter of totally silenc[ing] conservatives [sic] voices and threatened that [w]e will strongly regulate, or close them down, before we can ever allow this to happen.

The president of the United States is threatening to censor social media platforms because he doesnt like what they say.

No more blatant and frightening violation of the First Amendment is possible, he said. The core of the First Amendments free speech guarantee bars government from restricting speech based on viewpoint. If the Trump administration makes any effort to regulate Twitter, even in ways that would not appear to violate the First Amendment, Twitters lawyers can and should point to the presidents threats as evidence of unconstitutional animus.

What about free speech by Trump and conservatives?

Twitter is a private company. Under basic First Amendment principles, Twitter can say what it wants and edit as it pleases, Magarian said. However, Twitter is also a distinctly powerful platform for speech. Some people argue that Twitter should have some obligation to protect and respect free speech principles, and those arguments have weight.

But Twitters decision to provide links to additional facts does not violate free speech principles, Magarian said.

Twitter has faced frequent, sharp public criticisms for taking no action when users post false, misleading and harmful statements. In this case, Twitter let Trump have his say. In fact, what Twitter did promotes free speech.

In fact, what Twitter did promotes free speech, he said. Twitter has faced frequent, sharp public criticisms for taking no action when users post false, misleading and harmful statements. In this case, Twitter let Trump have his say. Twitter then made an editorial judgment that publishing the presidents unsubstantiated claims about an important public issue justified giving Twitters users easy access to more information about that issue. Free speech principles are supposed to promote debate and make us more informed. Twitter did exactly that.

The presidents response to Twitters action broadly calls into question conservatives constant complaints that political correctness and (in Trumps words) the lamestream media silence right-wing speech, Magarian added. Conservatives have used communications technology very effectively to promote their viewpoints. What does it say when, facing the mildest and most constructive imaginable form of criticism, the conservative president threatens to censor his critics? Perhaps it says that conservatives like Trump dont really care about the free speech of anyone but themselves.

Social media platforms should promote free speech, Magarian said.

They should try to prevent misinformation, especially government propaganda, in ways that do not stifle the free exchange of ideas, he said. The government must not use its power to attack ideas it objects to. What Trump has said and done today betrays every one of those simple, crucial free speech principles.

Link:
WashU Expert: Trump attacks on Twitter betray free speech principles - Washington University in St. Louis Newsroom

As the digital landscape in the United States evolves, federal courts are reexamining federal cybersecurity laws enacted during an era before individuals, companies, and the government had easy access to computers and the internet. In particular, the Computer Fraud and Abuse Act (CFAA), 18 USC 1030, a cybersecurity bill enacted in 1986 as an amendment to an existing computer fraud law, has come under significant scrutiny. In this blog post, we will review the CFAA and recent federal court activity regarding the law.

In 1986, concerned about growing criminality through the use of computers in the United States, Congress enacted the CFAA, making it a crime to intentionally access[] a computer without authorization or exceed[] authorized access, and thereby obtain[] . . . information from any protected computer (the Access Provision). In 1994, the CFAA was amended and private parties were permitted to bring causes of actions and obtain damages thereunder.

Over the years, Congress has continued to broaden the scope of the CFAA, most recently in 2008, in order to more accurately address more contemporary issues, including extortion and ransomware. Today, the CFAA protects computers, smart devices, and databases, among other things, from different types of computer fraud, including data breaches, hacking, and intentional interruptions of service.

The CFAA has been the subject of significant legal challenges over the years, and federal circuit courts have been divided on how to interpret certain areas of the law. For example, in the employment context, courts are split on whether an employees violation of company policy constitutes a CFAA violation; the US Supreme Court recently granted certiorari in Van Buren v. United States to potentially resolve this split.

The employment context is not the only area of the law that has been challenged. In Sandvig v. Barr academic researchers from Boston brought a pre-enforcement challenge in the US District Court for the District of Columbia, arguing that the CFAA would chill their First Amendment right to free speech on a research project they intended to perform. The researchers planned to test whether employment websites discriminate on the basis of race and gender, and intended to provide false information to target certain websites to test their hypothesis, which would be in violation of those websites online terms of service. Concerned about potential exposure to criminal claims under the CFAA, the researchers brought a challenge in federal court before beginning their research.

Without reaching the First Amendment issue or ruling on the employers computer-use policy that will be decided by the Supreme Court, the DC District Court adopted a narrow interpretation of the Access Provision, stating that the CFAA does not criminalize mere terms-of-service violations on consumer websites, and, thus, [the] plaintiffs proposed research plans are not criminal under the CFAA. In support of its decision, the court reasoned that (1) the consumer website terms of services do not provide adequate notice for purposes of criminal liability, (2) criminalizing violations of private websites terms of services raises considerable nondelegation issues, and (3) the rule of lenity and the constitutional avoidance canon weigh against a broad interpretation of the exceeds authorized access as encompassing terms-of-service violations.

As the digital landscape continues to develop, we expect to see more challenges under the CFAA appear on docket sheets across the federal court system. We will provide further updates on this developing area of the law in future posts.

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Reexamining the Computer Fraud and Abuse Act | Morgan Lewis - Tech & Sourcing - JD Supra

InVIP Products LLC v Jack Daniels Properties Inc, the US Court of Appeals for the Ninth Circuit has held that a dog toy meant to humorously evoke a bottle of whiskey was a protectable expressive work. In this guest post, Christian W Liedtke, partner at acuminis and co-author of an amicus brief submitted by INTA seeking en banc review of the decision, argues that the ruling, as it presently stands, is alarming and opens the floodgates to widespread theft of goodwill under the guise of the First Amendment.

VIP Products LLC v Jack Daniels Properties (18-16012 (9th Cir 31 March 2020)) is a case between VIP Products, one of the largest makers of dog toys and other pet accessories in the United States, and defendant Jack Daniels Properties, operator of the oldest whiskey distillery in the United States and owner of trademarks and trade dress appearing on Jack Daniels Tennessee whiskey. While the parties respective businesses could scarcely appear more different on the surface, they intersected thanks to a dog toy sold by VIP as the Bad Spaniels Silly Squeaker.

The Bad Spaniels Silly Squeaker toy is fashioned after a bottle of Jack Daniels Old No 7 Black Label Tennessee Whiskey; however, the toy includes a variety of dog-themed alterations. Specifically, the Bad Spaniels Silly Squeaker is meant to suggest that the whiskey has been replaced with dog feces. Along those lines, while the script on a Jack Daniels bottle would read Old No. 7, that language was replaced on the Bad Spaniels Silly Squeaker with Old No. 2 followed immediately by the words On Your Tennessee Carpet, instead of Tennessee Sour Mash Whiskey. Similarly, while the label on a Jack Daniels bottle would read 40% ALC. BY VOL. (80 PROOF), that language was replaced on VIPs Bad Spaniels Silly Squeaker with a label that reads 43% POO BY VOLUME and 100% SMELLY.

It should be noted that, on the back of the packaging for the Bad Spaniels Silly Squeaker toy, it states: This product is not affiliated with Jack Daniels. An image of the bottle toy adjacent to a Jack Daniels bottle is reprinted below.

Around September 2014, Jack Daniels sent VIP a cease and desist letter, demanding, inter alia, that VIP stop selling the Bad Spaniels Silly Squeaker toy. Shortly after receiving the Jack Daniels demand, VIP instituted a declaratory judgment action against Jack Daniels, seeking a declaration that:

In addition, VIP sought cancellation of the Jack Daniels USPTO registration for the configuration and shape of its whiskey bottle.

Responding to VIPs declaratory judgment suit, Jack Daniels counterclaimed with various state and federal claims for, inter alia, trademark and trade dress infringement, trademark dilution (by tarnishment, but not by blurring) and false designation.

The parties cross moved for summary judgment. In its motion, VIP argued that the infringement and dilution claims should be dismissed in light of its defences of nominative and First Amendment fair use. VIP further argued that, even without those defences, Jack Daniels could not prove its dilution claims or that the JACK DANIELS trademarks and trade dress were functional and/or non-distinctive.

In response to VIPs motion, Jack Daniels argued that the fair-use defences were inapplicable. Jack Daniels further argued that its trade dress was non-functional and distinctive as a matter of law, and urged the District Court to leave for trial its dilution claims.

The District Court rejected VIPs attempt to rely on a First Amendment fair-use defence by concluding that the Bad Spaniels Silly Squeaker toy was not an expressive work. Notably, the Ninth Circuit has utilised the phrase expressive works instead of artistic works since Brown v Electronic Arts, Inc (724 F.3d 1235, 1241 (9th Cir 2013)). In rejecting VIPs defence, the District Court applied the Rogers test, first articulated by the Second Circuit in Rogers v Grimaldi (875 F.2d 994 (2d Cir 1989). As interpreted by the District Court, the Rogers test applies to artistic or expressive works such as movies, plays, books and songs, and requires courts to construe trademark law only where the public interest in avoiding consumer confusion outweighs the public interest in free expression. The District Court determined that the First Amendment affords no protection to VIP because it is trademark law that regulates misleading commercial speech where anothers trademark is used for source identification in a way likely to cause consumer confusion.

In its analysis, the District Court compared the case to a 2002 case from the Southern District of New York, Tommy Hilfiger Licensing v Nature Labs (221 F Supp 2d 410 (SDNY 2002)). In Tommy Hilfiger, First Amendment protections were determined not to apply to Timmy Holedigger, a dog perfume designed to be a parody of the TOMMY HILFIGER trademark, because Tommy Holedigger was meant, at least in part, to promote a somewhat non-expressive, commercial product.

The case between VIP and Jack Daniels continued to trial. At the end of a four-day bench trial, the District Court ruled for Jack Daniels and issued a permanent injunction enjoining VIP from manufacturing and selling the Bad Spaniels Silly Squeaker toy.

VIP appealed and had some success in the Ninth Circuit. In light of its determination that the Bad Spaniels Silly Squeaker toy was an expressive work, the Ninth Circuit also reversed the District Courts decision on dilution by tarnishment. According to the Ninth Circuit, the Bad Spaniels Silly Squeaker toy used the Jack Daniels design and mark to convey a humorous message, and that message was protected by the First Amendment. The Ninth Circuit accordingly held that VIP was entitled to summary judgment on the federal and state trademark dilution claims.

On 22 April 2020, INTA filed an amicus curiae brief in support of the Jack Daniels request for en banc review of this case centered around two arguments. First, INTA highlights that the Ninth Circuits application of the Rogers doctrine to commercial goods is unprecedented. Second, it argues that the Ninth Circuit failed to apply the precedent set by the Supreme Court in Bolger v Youngs Drugs Prods Corp (463 US at 66-67) when making its determination that the Bad Spaniels toy constituted non-commercial use.

This week, on 26 May, a group of law professors filed an amicus curiae brief in support of VIP also advancing two arguments. First, the law professors argue that the Ninth Circuit properly applied the Rogers test and that the Bad Spaniels dog toy was correctly considered non-commercial and thus exempt from trademark infringement liability. Second, perhaps more dramatically, the law professors argue that the concept of dilution by tarnishment is unconstitutional.

The Ninth Circuits decision, as it presently stands, is alarming and goes beyond allowing dogs to do their business all over brand equity; it opens the floodgates to widespread theft of goodwill under the guise of the First Amendment.

Continued here:
Going to the dogs: the Ninth Circuit's erosion of trademark rights exclusive guest post - World Trademark Review

Well-known First Amendment lawyer Floyd Abrams dismissed President Donald Trumps angry assertion that Twitter was completely stifling free speech by adding a misinformation warning label to two of his inaccurate tweets about mail-in voting.

Speaking with SiriusXM host and ABC News chief legal analyst Dan Abrams, the attorney who famously argued the Pentagon Papers case said Trump had no real argument that his First Amendment rights were somehow being violated by the social media platform. As Abrams noted, Trump ability to post whatever he wants has not been affected in any way.

What hes really saying is not that theyre limiting his speech, he can say anything he wants and not even that theyre taking him off [the site], the free speech advocate explained. So, what hes saying, and hes really very clear about it, is not that it violates him by keeping him from speaking. Hes saying he wants to speak in a way where the other side, or critics of his, or people who are saying what hes saying is just false, will not have a chance to respond.

The elder Abrams Floyd is Dans father did question Twitters logic, however, in its selective application of actively fact-checking Trump. Specifically, Abrams called out Twitter for targeting two of Trumps tweets that included false claims but also absurd yet nonetheless factually irrefutable predictions about mail-in voting. Notably, Abrams pointed to Trumps recent Twitter campaign spreading a vicious conspiracy theory about MSNBC host and political foil, Joe Scarborough.

It is sort of an odd choice, Abrams agreed when asked about the social media platforms decision. Some of what the president was saying was sort of a prediction as to the future. And predictions arent facts anyway, right?

That to me is very different where you have a situation where, by a series of accusations, carefully phrased, maybe for legal reasons, buy carefully phrased to be statements of suspicion and calling for investigation, but in a context where there is, literally,literallyno basis at all for an investigation and is obviously an effort to pay back Joe Scarborough and which does real harm to the [Lori Klausutis] family.

That comes a lot closer to Twitters own guidelines about avoiding harassment, Abrams pointed out. That does sound very far down the road, to me at least, of harassing Joe Scarborough at the same time it is inflicting predictable and terrible pain on the family of this dead woman.

Listen to the audio above, via SiriusXM Channel POTUS 124.

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First Amendment Lawyer Dismisses Trumps Claim That Twitter Is Stifling Free Speech: He Doesnt Want Critics to Have a Chance to Respond - Mediaite

Amid the grim coronavirus news of death and unemployment, at least there is the comic relief of the left embracing the Tenth Amendment.

Suddenly trendy is the provision of the Bill of Rights that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The rush to the Tenth came in response to President Trump'sstatementon May 22. "I call upon governors to allow our churches and places of worship to open right now," Trump said."The governors need to do the right thing and allow these very important, essential places of faith to open right now, for this weekend.If they don't do it, I will override the governors."

The editor of Mother Jones, a left leaning magazine, Clara Jeffrey, wasn't having it. "To be clear, Trump can't do [expletive] to force churches/temples/mosques to open. Little thing called the 10th Amendment," shetweeted.

The White House correspondent of the PBS Newshour, Yamiche Alcindor, made the same point. "Pres Trump says he will 'override the governors' if they don't follow new CDC guidance and open places of worship this weekend. Context: The 10th Amendment of the Constitution says powers not delegated to federal government are reserved to the states," Alcindortweeted.

A Democratic congressman from California, Jared Huffman, and a Democratic congressman from Maryland, Jamie Raskin, issued ajoint statementaccusing Trump of "breathtaking arrogance," and of threatening "to trample the sovereign powers of the states under American federalismand the rights of the people under the First Amendment and the Tenth Amendment."

Rachel Laser of Americans United for Separation of Church and State insisted that Trump lacks the power to override the governors. "The Tenth Amendment to the Constitution forbids the federal government from strongarming the states," Laser said, asquoted by Politico's Josh Gerstein.

What's amusing about this? Well, it's the humor of contrasting it with the attitude toward federal supremacy and states' rights that had obtained some years back, when the Democrats controlled the White House, and when "states rights" was the cry of segregationists, not social-distancers.

A front-page newsarticle in The New York Times back in 2010, when President Obama, a Democrat, was in the White House, cast doubt on states' rights efforts.

"Article 6 of the Constitution says federal authority outranks state authority, and on that bedrock of federalist principle rests centuries of back and forth that states have mostly lost, notably the desegregation of schools in the 1950s and '60s," the Times reported then. The Times quoted a law professor,Ruthann Robson, who claimed, "Article 6 says that that federal law is supreme and that if there's a conflict, federal law prevails."

A different New York Timesarticlefrom 2010 described the Tenth Amendment as "The Tea Party's favorite part of the Constitution," a reference to the grassroots "Taxed Enough Already" movement that was then organizing protests against Obama's policies.

Anda third Times article from 2010, reporting on Elena Kagan's confirmation hearing, observed, "Tea Party supporters believe that much of what the federal government regulates should be left to the states, where voters hold a shorter leash. For this reason, they embrace a strict interpretation of the 10th Amendment, which says that the powers not delegated to the federal government by the Constitution 'are reserved to the states respectively, or to the people.'"

Back in 1996, when a different Democrat, Bill Clinton, controlled the White House, a Timeseditorialcomplained, "A headstrong five-justice majority is driving the Supreme Court toward a revolutionary, indeed reactionary, interpretation of federalism, tilting the balance dangerously toward states' rights at the expense of Federal power."

It's hard to avoid the conclusion that support for states' rights or federal power is dependent on whether your guy is the one in the White House giving the orders or the one in the governor's mansion being ordered around. It's less principled or consistent that it is partisan and situational.

The right can vacillate on these matters, too. That's particularly true in religious freedom cases. A strong historical legal case can be made that the First Amendment prohibition on establishing a religion was intended as a restriction on the federal government, not the states. So some conservatives have resisted using federal power to strike down, say, state school prayers or depictions of the Ten Commandments in state courthouses. But many of these same folks are glad Trump is encouraging governors to allow in-person worship, an expression of the free-exercise protection in the same First Amendment.

If the left presses the "state sovereignty" argument against Trump too far, it may find that clashes will be refereed in federal courts, and that Trump is commander-in-chief of a military with firepower that dwarfs any state police or National Guard unit. But Trump, too, may wish to recall a lesson of the Tea Party, which is that if voters are angry enough at Washington that they've discovered the often-obscure Tenth Amendment, there may be some price to be paid by incumbents in the upcoming election.

For skeptics of Washington-imposed central authority or big government, the left's embrace of the Tenth Amendment may be a positive effect of the pandemic. What are the chances that it would last into a Biden administration?

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Liberals Have Rediscovered the 10th Amendment's Value During the Coronavirus Pandemic - Reason

Panelists on Fox News' "The Five" burst into mockery Wednesday night after former Democratic National Committee Chairwoman Donna Brazile boldly claimed that "there's no First Amendment right to lie."

Brazile, a Fox News contributor, appeared on the show to discuss the developing feud between President Donald Trump and Twitter. The tech giant added a fact-check label to several of the president's tweets Tuesday as part of an ongoing initiative by the platform.

After co-host Jesse Watters went on a lengthy tirade against the initiative even suggesting that Twitter officials could end up "helping the president" by proving that "the whole thing is so cooked up," Brazile mocked him for "whining."

Later during her response, Brazile took the argument a step further, suggesting that she would've "deleted" the president's tweets, specifically referring to his tweets regarding MSNBC host Joe Scarborough and mail-in ballots.

"There's no First Amendment right to lie. Period," she said emphatically.

Caught off guard by the claim, the panel went silent for a few seconds before erupting in mockery.

Watch the exchange towards the end of the video below:

'The Five' slams Twitter for using sources like CNN to fact-check Trump youtu.be

"You can't lie?!" a shocked Greg Gutfeld asked as Dana Perino retorted "well, actually, you can."

Brazile dug her heels in and shouted back: 'There is no First Amendment right to lie. There's no First Amendment right to lie. You just go ahead and lie."

"I can say I'm 6 feet tall. Are you going to have me arrested?" Gutfeld responded. "What would happen to politicians, Donna? If you couldn't lie, you'd have no politics," he added.

As for the Trump-Twitter feud, the president reportedly plans to sign an executive order aimed at social media companies in the coming days.

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Former DNC chair Donna Brazile claims 'theres no First Amendment right to lie. Her co-hosts on The Five erupt in mockery. - TheBlaze