Category Archives: First Amendment

I was recently in line for gas at a Costco store in Vancouver. In front of me was a car with a sign that cursed George Floyd, Black Lives Matter and anyone who was put off by the sign.

What is happening? This is not OK.

The ugliness of our current times is rearing its monstrous head. Its hateful, mean and divisive.

Im a Black woman, born and raised in Vancouver who graduated from Fort Vancouver High School in the 1970s. I never encountered the hate and overt racism I witness now. Obviously, racists existed then behind closed doors and out of my hearing range. They stayed relatively hidden until this current administration apparently empowered them to come out of the woodwork and openly express themselves.

I get the First Amendment and freedom of speech. If someone wants to post a sign like this sign on their private property in their yard I guess they can, although I prefer they didnt.

However, why is it permissible to drive around with prominent profane signage publicly displayed on a vehicle for all to see? Washington and Oregon dont allow profanity on vanity plates. Its offensive and its not OK.

Rita Griffin Deiz, Vancouver

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Readers respond: Racists coming out of the woodwork - oregonlive.com

Late last week, a Magistrate Judge for the U.S. District Court for the Northern District of California issued an order granting a motion for a nationwide preliminary injunction forbidding implementation of sanctions against Tencent Holdings Ltd. and its mobile application WeChat as described in our prior alert found here. Based on this preliminary injunction, the prohibitions regarding WeChat will not go into effect at 11:59pm EDT Sunday evening. The judges ruling is predicated on her belief that the plaintiffs have shown serious questions going to the merits of the plaintiffs First Amendment claim, that the balance of hardships tips in the plaintiffs' favor, and that the plaintiffs have established the other elements for preliminary-injunctive relief. The government is expected to challenge the order.

Separately, the Department of Commerce has delayed implementation of the first phase of the TikTok sanctions (prohibiting U.S. online mobile application stores from selling the TikTok application) until no earlier than September 27, 2020 at 11:59 p.m. EDT. As the U.S. government has reportedly, in principle, approved arrangements to mitigate national security concerns regarding TikTok operations in the United States, it seem likely that the TikTok sanctions will never become effective.

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WeChat and TikTok Sanctions Not to Came Into Effect Yesterday - JD Supra

Uptons Naturals

The Plant Based Foods Association (PBFA) and one of its members Uptons Naturals, an independent maker of plant-based foods based in Chicago, has joined forces with The Institute for Justice to file a federal lawsuit challenging a new Oklahoma food labeling law as a violation of the First Amendment.

The new law requires vegan producers to label products as plantbased in a font that is equal in size to the brand name. This move will incur heavy costs to smaller companies and could force some out of business. PBFA Executive Director Michele Simon stated to FoodNavigator.com that it was highly likely that some PBFA members would withdraw products in Oklahoma, should the law go into effect.

The PBFA website states: The Oklahoma Meat Consumer Protection Act, which takes effect November 1, 2020, was introduced by Oklahoma State Senator Micheal Bergstrom in conjunction with the Oklahoma Cattlemens Association and stewardedthroughthe Oklahoma Legislature by one of the associations cattle ranchers, State Representative Toni Hasenbeck.

Mississippi, Missouri, and Arkansas have sought to make it illegal for plant-based foods to use terms such as burgers or bacon. And this summer we reported that in California, plant-based creameryMiyoko, won the first round in its lawsuit against the California Department of Food and Agriculture, in a dispute over labeling, specifically the term Cultured Vegan Butter, as this apparently creates an erroneous impression, implying that Californian consumers cant understand that vegan butter is animal-free.

On the other hand, however: in Florida this April, a lawsuit against Burger King for being misleading with how it cooks its Impossible Burgers on the same grill as its meat products, was ruled in the favour of BK since vegans were unreasonably ignorant, by not asking the question is my plant-based burger still animal-free when served?

Uptons Naturals co-founder Daniel Staackmann stated: Our labels make it perfectly clear that our food is 100% vegan. But now our meat industry competitors in Oklahoma want to force us to redesign our labels as if our safe, healthy products are potentially harmful. Its not the first time weve had to fight a state law created by our competitors, and we look forward again to defending our First Amendment right to clearly communicate with our customers.

PBFAs Executive Director Michele Simon also stated: The plant-based meat category is on fire right now, with consumers demanding healthier and more sustainable options as alternatives to animal products. Oklahomas law, along with similar laws in several other states, is the meat lobbys anti-competitive response to the increased consumer demand for plant-based options. Whatever happened to free-market competition? We are proud to stand with Uptons Naturals and the Institute for Justice to protect PBFA members First Amendment rights to clearly communicate to consumers.

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The Oklahoma Meat Consumer Protection Act is Meat Lobby's Response to the Increased Consumer Demand for Plant-Based Options - vegconomist - the vegan...

The U.S. Armys esports team has come under fire for separate allegations of advertising fake giveaways and banning commenters who mentioned U.S. war crimes.

Streaming platform Twitch said the allegedly fake giveaways were in violation of their terms of service, and the ACLU is concerned that banning commenters prohibited free speech.

It looks like what happened was a violation of the First Amendment, ACLU staff attorney Vera Eidelman told VICE.

The Army denied such accusations, with a spokesperson saying comments regarding war crimes were meant to troll and harass the team, and that the giveaways were, in fact, real.

The Armys esports team, which began in 2018, has never had overwhelming public support. The use of popular shooter and strategy games such as Call of Duty; Counter-Strike: Global Offensive; Fortnite; Magic: the Gathering; and more to recruit gamers was seen as morally questionable by some.

On June 30, the official Army esports Twitter responded to an announcement by chat platform Discord with the text emoticon UwU and heart emojis. The emoticon is meant to display a happy anime face, and while some sections of the internet use it frequently, others find the emoticon annoying and frown upon its use.

Followers lashed out against the tweet, calling Discord pro-war and referencing incidents like Abu Ghraib. But the backlash didnt stop with Twitter.

Since early July, gamers and internet trolls have been swarming to the Armys Twitch streams and chat server on Discord to see just how quickly they can get banned for mentioning war crimes or mocking the Tweet that started it all.

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As a result of this flood of ban-seekers, the open chat room on the Armys Discord server was intentionally disabled by moderators.

Following the guidelines and policies set by Twitch, the U.S. Army eSports Team banned users from its account due to concern over posted content and website links that were considered harassing and degrading in nature, U.S. Army Recruiting Command spokesperson Lisa Ferguson told Military Times.

The Army encourages those who are genuinely concerned about war crimes to use FOIA reading rooms, elected representatives, and public forums with military leaders to engage in dialogue about war crimes, Ferguson said.

An ACLU tweet on July 10 called out the Army for the bans, saying: Calling out the governments war crimes isnt harassment, its speaking truth to power. And banning users who ask important questions isnt flexing, its unconstitutional.

Just when it seemed controversy over the bans might start to die down, it was alleged that the team was advertising fake giveaways of an Xbox Elite Series 2 controller, valued at more than $200.

The allegation was first reported by The Nation on July 15.

When clicked, animated giveaway advertisements in the Armys Twitch stream chat boxes led users to a recruiting web form with no mention of any giveaway, The Nation reported.

Twitch has since put an end to such advertisements.

This promotion did not comply with our Terms, and we have required them to remove it, a Twitch spokesperson told Kotaku.

USAREC spokesperson Lisa Ferguson said that the giveaways were legitimate and that the Armys esports team has given away 10 controllers, gaming stations, and chairs in the past year.

While the landing page looks generic, each giveaway has its own URL and marketing activity code that directly connects the registrant to the specific giveaway, Ferguson said.

As a result of recent events, Ferguson added that the esports team is reviewing ways to add clarity and customization to giveaways and has paused streaming to evaluate internal policies and procedures.

Continued here:
Army esports team denies accusations of violating First Amendment, offering fake giveaways - ArmyTimes.com

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute.

Theres a bit of an intellectual fistfight going on these days about free expression and we all have a stake in the outcome.

The early rounds have been going on for years: in essence, a theory that pops up periodically in history that some ideas simply are too dangerous to allow them to be voiced in public. The opponent to that theory: The longtime belief in the marketplace of ideas, where any person may advance any idea however repugnant, vile or even evil and be subject to the review, and perhaps revile, of all others.

Critics of the marketplace approach have several arguments. American critics note the amendment was adopted in 1791, carrying forward ideas about free expression that even then were centuries old, and thus see it as out of place in a modern world.

Another objection is that the internet, with its instant and global reach, makes ineffective the expected marketplace interplay of speaker and responder, through which the hope is bad ideas fail, good ideas improve and best ideas thrive.

Yet another criticism of the marketplace concept is that money, technology and power have created an elite group (or groups) in control of most meaningful communication (and perhaps content) across the web, rendering criticism, counterviews, unpopular or unconventional ideas and certainly revolutionary ones unable to reach a mass audience.

Critical race theorists believe that American jurisprudence essentially has elevated the liberty interests of the First Amendment over the equality interests of the 14th Amendment.

And finally, there is the claim that some ideas simply are too dangerous or misleading or manipulative to be allowed into the marketplace at all from race, ethnic and religious hatred to sexual exploitation and abuse to commercial messaging and political misinformation now aided and abetted by hidden algorithms and those in charge of a handful of private tech companies more intent on profits than seeking truth.

Whew. Thats a pretty strong set of arguments that some things need fixing when it comes to free expression in the early years of the 21st century. Most of us likely would agree with many, if not all of them on first glance.

Interestingly, the sides in this dispute dont automatically align along our current political fractures. Some liberals and conservatives see the web as too wide open, allowing dangerous ideas and speakers access to audiences that can be influenced; while others view the web as a tightly controlled funnel of filtered information combined with manipulation that blocks voices (either too conservative or too liberal take your pick) with a goal of shaping public opinion.

The current battle is not just over the criticisms, but over the solutions as well. Twitter and other sites gain praise and scorn for blocking some users for alleged violations of those sites terms of service, ranging from foul language to misleading health claims to personal attacks and what the sites deem deliberate misinformation. Tech firms can block, tag and take down posted content, in a bit of irony to some, because they have their own First Amendment rights as private companies.

So, some on either side of this dispute would bring government into the ring, where First Amendment freedoms would apply one side seeking exceptions to free speech protections for things such as violent content, or racist views, or demeaning portrayals of women, or LGBTQ persons; and the other combatants asking government to oversee and override those private companies decisions, in the name of protecting conservative voices they see as all-too-often excluded from public discourse.

Who are the combatants of late? In one corner, signatories to an open letter titled, A Letter on Justice and Open Debate, published July 7 in Harpers Magazine, include a number of the worlds best-known creative minds, such as J.K. Rowling, Wynton Marsalis, Gloria Steinem, Salman Rushdie and about 150 other authors, journalists, publishers and artists.

In the other corner of this particular bout are those who signed this week onto another letter published on the online commentary site The Objective which self-identifies as a place with information and views by and for historically ignored communities another group of literary, media and artists. This missive entered the fray acknowledging the fight even reaches into its signatures area, noting some could be identified only generally, usually by professional occupation and place of work, because of fears of workplace retaliation by the established communication masters for whom some work.

Their view of the Harpers letter, in a piece titled, A More Specific Letter on Justice and Open Debate explains, Nowhere in it do the signatories mention how marginalized voices have been silenced for generations in journalism, academia and publishing and the letter does not deal with the problem of power: Who has it and who does not.

To be sure, many of latest blows in this intellectual boxing match have been struck via high-concept review of the theories of human communication and in well-founded critiques of who had and has access to tools of speaking out in public news media, book publishers, broadcasters and now social media companies.

But in the early rounds, the heavyweights punched the outmoded model of the marketplace of ideas for two reasons: One, that it never worked as intended because many minority groups, however defined, were denied access to speak and be heard a stark truth that cannot be denied; and two, there is such a thing as truth, and to knowingly permit non-truth is counter-productive to society and should not be permitted.

Boil it all down and it comes to a very simple First Amendment question: Is the response to speech you consider untruthful, disgusting or misleading more speech or less speech? If the former, what do you do as, with lightning speed and wide public acceptance by the unknowing, the web is flooded with true threats to public health, hate speech from white supremacists or deliberately misleading political ads and fraudulent electioneering from world adversaries?

If the latter, who gets to be the national nanny, defining truth, excluding some voices while inviting in others and monitoring the billions of social media posts each day all while remaining nonpartisan and apolitical in todays hyper-divided nation?

Wiser minds including, with hope, most of us will need to parse those questions and more as the First Amendments five freedoms (religion, speech, press, assembly and petition) are tested in court, on the street and occasionally on the pages of online magazines.

As for me, I theorize the nations founders would chuckle at the idea that all of this is new. The mechanisms of communications were different, but the goals in 1791 were the same: The exchange of ideas for a better life for us all, many at the time deemed too dangerous for society to hear ideas like all men are created equal and that democracy was favorable over monarchy.

While this fistfight is mainly staged in the mind, there are real-world examples of the cost of the fight. New York Times op-ed editor Bari Weiss resigned the other day, saying in a letter she self-published that she was hired with the goal of bringing in voices that would not otherwise appear in your pages: first-time writers, centrists, conservatives and others who would not naturally think of the Times as their home.

In leaving the paper after about three years, she said, a new consensus has emerged in the press, but perhaps especially at this paper: that truth isnt a process of collective discovery, but an orthodoxy already known to an enlightened few whose job is to inform everyone else.

Weiss concludes her resignation by noting founder Adolph Ochs 1896 statement to make of the columns of The New York Times a forum for the consideration of all questions of public importance, and to that end to invite intelligent discussion from all shades of opinion.

Ochss idea is one of the best Ive encountered, Weiss continues. And Ive always comforted myself with the notion that the best ideas win out. But ideas cannot win on their own. They need a voice. They need a hearing. Above all, they must be backed by people willing to live by them.

More of us need to make our voices heard in this latest fight over the meaning of the First Amendments 45 words, lest we see them reshaped or lost without having ever set foot in the ring.

Gene Policinski is a senior fellow for the First Amendment at the Freedom Forum, and president and chief operating officer of the Freedom Forum Institute. He can be reached at [emailprotected], or follow him on Twitter at@genefac.

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FIRST FIVE: Fighting over the meaning of First Amendment freedoms - hays Post

I was tagged in these pages last week as mystery man the person Town Moderator Mary-Jo Avellar reported to the police for handing out fliers criticizing her as I stood on Commercial Street outside her workplace. Im not really a mystery. Ive been a part-time resident and taxpayer here for 20 years.

After Ms. Avellar took my picture, her Finance Committee appointee Mark Hatch posted it on Facebook in an effort to divine my identity. It wasnt a coincidence that Hatch, who chairs that committee, anointed himself Avellars private investigator.

Under the town charter, Avellar is primarily responsible for reviewing recent allegations thatHatch authored social media posts that were misogynistic, anti-Semitic, and otherwise degrading toward immigrants and participants in Black Lives Matter protests. But like most of Provincetowns elected leaders, shes brushed off Hatchs pattern of intemperate online hate speech.

Instead of taking appropriate action, she foreshadowed the later comments of our witless President when she recently told the Banner, Even the Ku Klux Klan . . . are entitled to free speech. Yet no one has a constitutional right to serve on a town committee, much less chair it. Even House Republicans found enough guts to kick Rep. Steve King (R-Iowa) off his committees for the bigotry he voiced.

In a true perversion of the First Amendment, several of Hatchs Facebook followers seem to think it was bad taste or even illegal to protest against a public official on a public street in front ofthat person'sworkplace. Heres what I think: Its bad taste not to mention, ignorant for the Town Moderator to invoke the Ku Klux Klan as an excuse for protecting the alleged hate speech of her own appointee. The Klan is a terrorist organization primarily known for beating and murdering African-Americans, as well as Jews, Catholics, immigrants, and their allies.

I took this step because Avellars outrageous excuse required an outraged response. Many people here today are immigrants, as were the ancestors of many Provincetown families. At least half the towns population is female. Our neighbors include Jews and people of color. We deserve better from the Town Moderator and the Finance Committee.

That committees Code of Conduct states, Remember that you represent the entire community at all times not just while sitting behind a dais. If Provincetown is supposed to be a loving, welcoming community, committee chairs shouldnt spew hate online, and a top elected official cant hide behind the KKK as a reason for refusing to investigate credible allegations that this Code of Conduct provision was violated.

The Town Moderator has already prejudged this matter, so it would be inappropriate for her to act on it. But under Chapter 3, Section 5 of the town charter, the Select Board may investigate and impose sanctions for the alleged misconduct of any member of a town board, commission, or committee. Theres been a formal complaint filed. Its time for the Select Board to step up and act.

Its also well past time the Town Moderator was reminded that her job, by definition, is to create order out of chaos not to keep sowing greater chaos, either among the Towns residents or leaders. If some confidantes would have the courage to tell her that, maybe shed take the message to heart.

Link:
My View: In Provincetown, strange views of the First Amendment - Wicked Local Provincetown

Former Ambassador and National Security Advisor John Bolton is hoping the First Amendment saves him from claims by the government that he violated his own nondisclosure agreements and should therefore be penalized for publishing his recent memoir about President Donald Trumps White House.

A 44-page motion to dismiss all claims against Bolton, filed by his attorneys late Thursday in Federal District Court in Washington, D.C., leans heavily of the right to speak freely about matters of political importance in its opening paragraphs and subsequent arguments.

Speech on a politically important and controversial topic is the essence of First Amendment expression, the motion begins. No form of speech is entitled to greater constitutional protection.

Boltons motion comes after a federal district court judge ruled in late June that Bolton could publish his book as a matter of First Amendment law but that Bolton had gambled with the national security of the United States, exposed his country to harm, and furthermore exposed himself to civil (and potentially criminal) liability. Bolton, with his book now for sale worldwide, argues he should face no liability at all. (Given the federal judges June rebuke of Bolton, which called Boltons tactics a gamble, some arent so sure these arguments will work.) Still, Boltons motion takes aim at the governments use of nondisclosure agreements to prevent officials from speaking about how public business is conducted.

When the Government erects a scheme designed to foreclose that speech even before it is uttered by imposing a prior restraint upon the communication of news and commentary on current events, it must shoulder a heavy burden of showing justification for the imposition of such a restraint, the document goes on to say (internal citations and punctuation omitted). And it has been settled since the Early Republic that the Government cannot escape First Amendment scrutiny by switching to the tactic of punishing core political speech after the fact.

That line is aimed at government claims that Bolton should be forced to forego royalties or even be punished criminally for publishing his book, The Room Where It Happened: A White House Memoir.

[A] law inflicting penalties on printed publications, would have a similar effect with a law authorizing a previous restraint on them, Boltons motion then says, quoting James Madison, the author of the First Amendment. It would seem a mockery to say, that no law should be passed, preventing publications from being made, but that laws might be passed for punishing them in case they should be made.

The Bolton motion invites the D.C. District Court to not forget these bedrock constitutional principles in evaluating the Governments attempt in this case to punish the Presidents former National Security Advisor, Defendant John R. Bolton, for publishing speech that is embarrassing to the President.

The Bolton motion invoked previous arguments that a nearly four-month pre-publication government review of Boltons book ferreted out classified information, that Bolton was free to publish, and that the Trump White House continued to assert that classified information existed in the book merely to prevent it from being published. To that end, Boltons motion asserts that neither of his own nondisclosure agreements imposes on a former government employee any obligationnone at allto submit for prepublication review:

The Governments claims are all foreclosed by the text of the very contractual documents upon which they purport to be based, since those contracts simply cannot reasonably be interpreted as imposing the contractual duty that the Government claims Ambassador Bolton breached: the duty to submit to prepublication review, and await written authorization before publishing, a book that he had no reason whatsoever to believe contained any classified material. And even if those contracts were susceptible to an interpretation imposing such a requirementin effect, a blanket prior restraint of virtually any speech by former government employeesthat requirement would be flatly contrary to the First Amendment. The Court thus labors under the solemn constitutional duty to avoid interpreting the contracts, if at all possible, as imposing such a blanket prior restraintand if such an interpretation is not possible, the even more solemn duty to invalidate that plainly unconstitutional requirement.

The motion concludes that even if the governments interpretations of Bolstons so-called Sensitive Compartmented Information Nondisclosure Agreement (SCI NDA) are true, they do not stand in the face of the First Amendment.

READ Boltons arguments in the document below:

John Bolton Motion to Dismiss by Law&Crime on Scribd

[photo by Win McNamee/Getty Images]

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John Bolton Gambles That Constitution Will Save Profits on Book That Was Embarrassing to the President - Law & Crime

from the what-public-discourse dept

The Second Circuit just issued an ugly decision in a defamation lawsuit against Joy Reid. It not only revived the case against her, but it greased the skids for many more defamation cases to be brought in federal court, including plenty even less meritorious.

The case, La Liberte v. Reid, involves two of Reid's social media posts from 2018. The first was from June 29:

At some point during the Council Meeting, La Liberte was photographed interacting with a fourteen-year-old teenager who appears to be (and is) Hispanic (the "Photograph"). The Photograph showed La Liberte with her mouth open and her hand at her throat in a gagging gesture. On June 28th, a social media activist named Alan Vargas tweeted the Photograph along with the following caption: "'You are going to be the first deported' [and] 'dirty Mexican' [w]ere some of the things they yelled they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast." The Photograph went viral. The next day, Joy Reid, a personality on the MSNBC cable station, retweeted (i.e., shared) the Vargas tweet to her approximately 1.24 million followers. (La Liberte is not alleging defamation by Reid as to that communication.) Later that same day (June 29), Reid posted the Photograph on her Instagram with the following caption: "He showed up to a rally to defend immigrants . . . . She showed up too, in her MAGA hat, and screamed, 'You are going to be the first deported' . . . 'dirty Mexican!' He is 14 years old. She is an adult. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate is real, yall. It hasnt even really gone away." [p.6-7]

The second was from July 1:

Two days later (July 1), Reid published another post about La Liberte, this time on Instagram and Facebook. This post juxtaposed the Photograph of La Liberte with the 1957 photograph showing one of the Little Rock Nine walking past a screaming white woman. Reid added the following caption: "It was inevitable that this [juxtaposition] would be made. It's also easy to look at old black and white photos and think: I can't believe that person screaming at a child, with their face twisted in rage, is real. By [sic] every one of them were. History sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove" [p. 7-8]

Subsequently, further media coverage revealed that the plaintiff had not been the source of the cited racist comments. [p. 7] On July 2 the plaintiff contacted Reid to ask that she delete the posts and apologize, which Reid did later that day. [p. 8]. Despite her doing so, the plaintiff sued anyway, but the district court in EDNY then dismissed it.

The Second Circuit has now stepped in to revive the case, and in doing so opened the door not only to this troublingly weak case but plenty of others even weaker.

There are a number of issues with the decision:

Section 230 became an issue because Reid had raised it as a defense for her June 29 posting of the picture on Instagram with her caption (although not her July 1 post on Instagram and Facebook). The district court rejected that defense, and the Second Circuit agreed with that rejection. But whereas it mattered less in the district court because it had found other reasons to dismiss the case against Reid, because the Second Circuit kept the case alive, it doing so also on Section 230 grounds raises more concerns (plus, it is an appeals court, so its decision will reverberate more into the future).

In denying her the statute's protection the court did get the basic rules right: only the party that created the offending expression can be held liable for it. Furthermore, citing earlier Circuit precedent, "a defendant will not be considered to have developed third-party content unless the defendant directly and 'materially' contributed to what made the content itself 'unlawful.'" [p. 22]. But in denying her the protection it applied these rules in a way that may expose myriad other social media posters - and even platforms themselves - to litigation in the future, and in a way that Section 230 should really forestall.

Reid was ostensibly only being sued for the commentary that she added to her re-posts of the original picture, and not the photographer's original tweet. Had it been the latter, Section 230 would have more clearly applied. Asserting it for her own speech is an aggressive argument, but not a ridiculous one. It's also not one that the court dismissed out of hand. As that prior precedent made clear, liability for speech hinges on who imbued the speech with its allegedly wrongful quality. Reid argued that it wasn't her: The original post had been of a picture of the plaintiff seemingly shouting threateningly at a Latino boy, and included a caption indicating that this picture was captured at an event where racist invective was shouted at him. Thus it was reasonable to take the original post as the statement that La Liberte was one of the people doing that shouting. Unfortunately that statement turned out to be wrong, but Reid repeating that statement in her own words was not what introduced the wrongfulness. Therefore she was not actually the "information content provider" with respect to this message, and Section 230 should have applied.

The trouble is, in the court's view, she had been the one to imbue the message with its wrongful quality. What might have made this case a close call was that the original post had only included an unspecific "they" in reference to the shouters, whereas Reid had attributed it to the plaintiff by name. However that attribution had already been made in the original post not by her name, true, but by her picture. Thus Reid did not introduce anything new to the overall expression. Indeed, that she believed, albeit erroneously, that the plaintiff had screamed the invective at the boy was because that was the message the original post had conveyed. It may have been an erroneous message, but she was not the one who originated it.

The problem with now finding her the "information content provider" in this situation is that it reads into Section 230 a duty of care that does not exist in the statutory language, requiring people who share others' expression to make some sort of investigation into the veracity of that expression. While it might be good if people did we certainly would like for people sharing things on social media to be careful about what they were sharing Section 230 exists because it is hard to get intermediation of expression right, and we risk choking off speech if we make it legally risky to get wrong. (See what happened to Reid, where even if she had been wrong about the significance of the underlying tweet, it was a reasonable error to make.)

Worse, not only would it chill social media sharing, but this decision is unlikely to stay tightly cabined to that sort of intermediation of others' expression. If it were the rule that you had to vet the expression you allowed to be shared before you could be safe from sharing other people's expression, then Section 230 could almost never apply and *everyone* would be vulnerable to being sued over the expression they intermediate, since no matter how much care they took since they'd still have to defend those efforts in court. Such a rule would represent a profound shift in how Section 230 works, which up to now has not been conditional. Twenty-plus years of jurisprudence has made clear that Section 230 protection is not contingent on the intermediary vetting the expression produced by third parties that it helps share, and this decision undermines that clarity. And not just for social media users, but the platforms they use as well.

Ultimately, if Section 230 can apply to individuals sharing others' social media posts (prior precedent supports that conclusion, and this court accepted it as well [see footnote 8]) and if it can apply to original, summarizing content (as this court also accepted), then there's no principled reason it should not have applied here.

Limited-purpose public figures

Denying Section 230 protection is only the tip of the iceberg. Not only does it make people who share on social media vulnerable to being sued, but other aspects of the decision make it more likely that it is litigation they will lose.

The court's refusal to find that the plaintiff was a limited purpose public figure is one of these aspects. Because open discourse about matters of public concern is a value the First Amendment exists to protect, the Supreme Court has developed the concept of the "public figure" to help ensure that it is. A public figure is someone whose fame has so intertwined them in matters of public interest that they must plead "actual malice," a fairly exacting standard, on the part of a speaker in order to prevail on a claim that the speaker defamed them.

Here, no one argued that the plaintiff was a general purpose public figure. But there are also "limited-purpose public figures." These are people who are not inherently intertwined in matters of public interest but who may insert themselves in matters that are and thus become public figures within the context of that matter. In such cases they would also need to plead actual malice in any defamation lawsuit where there had been commentary about them in this context.

Reid argued that the plaintiff was a limited purpose public figure. In particular, she regularly appeared at council meetings about the immigration issue and had been visibly, and publicly, vocal on the subject. The court rejected the contention:

That is not nearly enough. [T]he district court did not take into account the requirement that a limited purpose public figure maintain "regular and continuing access to the media." One reason for imposing the actual malice burden on public figures and limited purpose public figures is that "[t]hey have media access enabling them to effectively defend their reputations in the public arena." We have therefore made "regular and continuing access to the media" an element in our four-part test for determining whether someone is a limited purpose public figure. [p. 24-25]

Per the court, "La Liberte plainly lacked such media access." [p. 25].

The earlier photograph, which showed her conversing, was in a Washington Post photo spread of attendees at an SB 54 protest. The article did not name La Liberte, let alone mention her views. The single caption described everyone depicted as [s]upporters and opponents of [SB 54] rally[ing] and debat[ing] outside Los Alamitos City Hall. Such incidental and anonymous treatment hardly bespeaks regular and continuing access to the media. [p. 25]

Furthermore:

Nor does La Libertes participation at city council meetings. La Liberte is said to have testif[ied] eight times around the state (Appellees Br. at 26 (citing App. at 102-05)); but Reid does not identify instances in which the media singled out La Libertes participation as newsworthy. Nor does speech, even a lot of it, make a citizen (or non-citizen) fair game for attack. Imposition of the actual malice requirement on people who speak out at government meetings would chill public participation in politics and community dialogue. [p. 26]

The problem with this analysis is that it better applies to why a person engaging in civic affairs does not become a full-fledged public figure, where every aspect of their life can be a matter of public interest. It misses the significance of why we have the limited purpose public figure doctrine in the first place, which is that in the context of a specific matter of public concern a person's behavior can become a matter of public interest. Here the plaintiff had concertedly inserted herself into a matter of public concern the policymaking surrounding immigration - on a "regular and continuing" and conspicuously public basis. The court's ruling puts that public behavior beyond the reach of effective public comment by treating it as if it were private and thus lowering the standard of what the plaintiff would have to plead to support a defamation claim.

State anti-SLAPP in federal court

The decision also reaches an unfortunate conclusion we've taken issue with before: disallowing state anti-SLAPP laws in cases that end up in federal court via diversity jurisdiction. It's a conclusion that seems to reflect dubious constitutional analysis, is bad policy, and in this case, conflicts with Ninth Circuit precedent.

As we explained before:

Diversity jurisdiction arises when the parties in the litigation are from separate states and the amount in controversy is more than $75,000 and the issue in dispute is solely a question of state law. Federal courts ordinarily can't hear cases that only involve state law, but because of the concern that it could be unfair for an out-of-state litigant to have to be heard in a foreign state court, diversity jurisdiction can allow a case that would have been heard in state court to be heard by the federal one for the area instead.

At the same time, we don't want it to be unfair for the other party to now have to litigate in federal court if being there means it would lose some of the protection of local state law. We also don't want litigants to be too eager to get into federal court if being there could confer an advantage they would not have had if the case were instead being heard in state court. These two policy goals underpin what is commonly known as the "Erie doctrine," named after a 1938 US Supreme Court case that is still followed today.

The first problem with the Second Circuit's decision is that it does not even *mention* the Erie doctrine instead it just dives right into a procedural rules' analysis. [p. 13]. The second problem is that its decision directly conflicts with Ninth Circuit precedent that applied Erie to find that California's anti-SLAPP law indeed applied in federal diversity occasions. In other words, the Second Circuit has just reached across the country and into the Ninth Circuit to snatch away the protection of a law that the Ninth Circuit already had assured Californians that they had.

The third problem is that it is bad policy because it would encourage forum-shopping, which is normally discouraged. As the Ninth Circuit articulated in that case, US Ex Rel. Newsham v. Lockheed Missiles & Space Co.:

[I]f the anti-SLAPP provisions are held not to apply in federal court, a litigant interested in bringing meritless SLAPP claims would have a significant incentive to shop for a federal forum. Conversely, a litigant otherwise entitled to the protections of the Anti-SLAPP statute would find considerable disadvantage in a federal proceeding.

The Second Circuit appeared indifferent to these concerns:

Finally, amici warn that refusal to apply the anti-SLAPP statute will encourage forum shopping and lead to an increased burden on federal courts in this Circuit. (Amici Br. at 11.) That may be so; but our answer to a legal question does not turn on our workload; and in any event, the incentive to forum-shop created by a circuit split can be fixed, though not here. [p. 16]

The concern about forum-shopping is not that it will overburden federal courts; the concern the is manifest unfairness to defendants that will arise when they suddenly lose the benefit of the the substantive protections for speech California gave them and upon which they may have depended on to speak because an out-of-state litigant was able haul them into federal court.

Mootness

It is also not clear why the Second Circuit even reached the anti-SLAPP question. If its public figure analysis was correct, the defense would be unlikely to be able to even use it, because by that logic the expression at issue would have failed to meet the anti-SLAPP law's requirement that it be about a matter of "public issue." Thus there was no need for this court to ever reach the anti-SLAPP question, and yet it chose to opine on it first, before even reaching the Section 230 and then the public figure discussions. But because after those latter two analyses there was no reason to reach the anti-SLAPP discussion, and it raises the question of whether at this point it was even a ripe enough issue for the court to have had appellate jurisdiction over. But even if it did, doctrines of judicial restraint should have precluded deciding the issue and creating a mess that speakers who thought they were protected will now have to contend with.

Filed Under: 2nd circuit, anti-slapp, defamation, joy reid, la liberte, public figure, retweets, section 230

Here is the original post:
Second Circuit Wrecks All Sorts Of First Amendment Protections To Keep Lawsuit Against Joy Reid Alive - Techdirt

In December 2018, the Potsdam Village Board of Trustees passed a junk storage law to address issues of unsightly items left out in public.

The new local law requires that items that could be categorized as junk cannot be in sight of people traveling the public highways, streets or thoroughfares of the village, according to the law, according to a story published Dec. 4, 2018, in the Watertown Daily Times. In a statement on the purpose of the measure, the village Board of Trustees wrote that having visible junk on front lawn is detrimental to the health, safety and general welfare of the community. The board also claimed that junk posed an attractive nuisance to children and may imperil their safety and that junk depreciates the value of property upon which junk is found as well as neighboring properties.

Trustees said this law was not an attempt to target parcels of land owned by Frederick J. Robar Sr.; they just believed some folks needed to tidy up around their homes. However, its difficult taking this claim seriously.

Since 2004, Mr. Robar has displayed what he calls toilet gardens. Its no secret that village officials dont hold their constituents artistic sentiments in high esteem, and the junk storage law was the latest mechanism implemented to compel him to clean up his sites.

Mr. Robar popped onto the villages radar in 2004 when he asked to get a zone change at his property on 82-84 Market St. so he could sell it to a buyer who would put in a Dunkin Donuts. When the village denied his request, he set up what is referred to now as a toilet garden. Since then, he and the village have butted heads twice inconclusively and unsuccessfully in the village court system, a June 30 article in the Times reported. In 2008, the village issued Mr. Robar an appearance ticket for a code violation. Mr. Robar argued that the toilet gardens are art and its his First Amendment right to have them. The case was dismissed because code enforcement officer John F. Hill failed to bring documents to the court. In 2010 the village tried again, but after the presiding judge resigned amid cocaine-use allegations, the case was dropped and the village decided not to pursue it.

Representatives of Clarkson University, the St. Lawrence Health System and Temple Beth El spoke out against Mr. Robars gardens. There likely arent too many people who enjoy viewing rows of toilets on adjacent property.

But Mr. Robars attorney, Mark Snider, said the law was created to punish his client after the fact. This would violate his constitutional rights, Mr. Snider said.

The village has so far been unable to force Mr. Robar to dismantle the gardens. This unconventional artist has maintained his landscape scenery through a court of law if not the court of public opinion. Officials are scheduled to discuss the matter Monday.

But for Potsdam to pursue this further may be flushing good tax dollars down the well, you know. This could end up being an expensive legal battle for the village with nothing in the end being changed.

The junk storage law does not apply to Mr. Robars properties. Hes not merely dumping unused bathroom fixtures outside his home because he doesnt know what else to do with them. He placed the toilets there as a personal expression, an act clearly protected by the First Amendment.

Village officials may not appreciate his artistic objective, but thats irrelevant. Its not their job to define what constitutes free speech the U.S. Constitution already does that.

Potsdam authorities are violating Mr. Robars rights by mandating he adhere to their idea of an acceptable visual presentation, and they need to stop their campaign against him.

View original post here:
Editorial A flushtrated community: Potsdam trampling on First Amendment rights of toilet artist - NNY360

On Thursday, the Technology and Press Freedom Projects Linda Moon will join Digital Strategist Tim Schwartz, author of A Public Service: Whistleblowing, Disclosure, and Anonymity, for a webinar dedicated to unpacking the rights of journalists and content producers during times of pandemic and protest. The webinar, hosted by Alley, a digital consulting firm, will explore strategies to help journalists safely document protests and police brutality and work with sources securely and remotely. Register for the webinarhere.

Also, the First Amendment Clinic at the University of Virginia School of Law is hiring alegal fellowfor the 2020-2021 and 2021-2022 academic years. The fellow will work with Reporters Committee attorneys Gabe Rottman and Jennifer Nelson, who administer the Clinic.

Heres what the staff of the Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press is tracking this week.

A journalist has filed a lawsuit in federal court claiming police violated his federal and state constitutional rights, including the right to record police activity in public, after he was tackled and arrested while covering aJune 1 Black Lives Matter protestin Asbury Park, New Jersey.

According to a filingin the U.S. District Court for the District of New Jersey, Gustavo Martnez Contreras, a reporter for the Asbury Park Press, waslive-streaming the protestwhen he noticed police officers violently arrest two teenagers. The reporter was backing away from the scene, per instructions by the officers, but continued to record.

As documented in footage from the reporter and police body-worn cameras, officers then swore at Martnez Contreras, slapped his phone out of his hand, tackled him, and arrested him. The filing alleges that an officer later asked about the badge the journalist was wearing around his neck, which showed his press credentials, and that Martnez Contreras identified himself as a reporter on four other occasions.

The complaint, filed on July 13, notes that reporters rights must be as ingrained in policing as Miranda rights, and asks the court to order police not to interfere with First Amendment activities in the future. It also asks that the court require law enforcement to change their policies to prevent such interference, and for unspecified damages.

A press badge should not be a bullseye, the filing reads. Reporters should not be in danger of violence or arrest at the hands of the police seeking to silence their reports on public protests especially where those reports cover police violence against civilians protesting peacefully against police misconduct.

The same day the suit was filed, the Reporters Committeesent a letterto New Jersey officials protesting a local prosecutors reliance on Reporters Committee resources to clear the officers who arrested Martnez Contreras of wrongdoing.

Ininvestigative findingsreleased on June 8, the Monmouth County prosecutors office, which covers Asbury Park, claimed that the officers reasonably believed Martnez Contreras was a protester disobeying a lawful order. The report further claimed that the officers did not know Martnez Contreras was a reporter because he was allegedly not wearing bright clothing. The prosecutors office cited the Reporters Committeesguideandtip sheetfor journalists covering protests, which only provide practical safety advice, including that journalists should try not to wear clothing that matches what protesters are wearing.

The relevant legal standard, however, is whether officers reasonably should have known that Martnez Contreras was a reporter. The letter thus argues that the Reporters Committees resources do not support the prosecutors arguments, and asks that the findings be updated accordingly.

Abe Kenmore

NPR recentlyreportedthat foreign nationals working for Voice of America and other U.S. international broadcasters may not have their visas extended upon expiration, raisingfurther concernsover theeditorial independenceof VOA and its sister services. A decision not to renew these visas could impact dozens of employees, some of whom could face retaliation for their reporting if forced to return to their home countries.

The video app TikTok said it received500 demands for user datafrom governments in the first half of the year, up 67 percent from the second half of 2019. Most demands came from India which has since banned the app. The company reported that none of the demands were from China, the home of TikToks parent company. Reporters at theWashington Postrecently analyzed the data TikTok collects from users.

Verizon recentlylauncheda feature called Number Lock to provide added security to its customers. Number Lock allows users to prevent scammers from SIM swapping, or transferring a users number to another carrier in order to take control of bank, email, and social media accounts.

Defense Secretary Mark Esper has announcedan investigationwithin the Pentagon to weed out leakers, while White House Chief of Staff Mark Meadowsreportedly told some staffersthat he has fed information to suspected leakers to determine whether they then pass the information to the media. The inquiry comes in the wake of disclosures that led to reports of Russia offering bounties to Afghan militants for killing American troops.

On Thursday, Twitterreportedthat it was the target of a coordinated social engineering attack, which resulted in the accounts of hundreds of popular users posting spam-like messages about crypto currency. The company said the breach was conducted by unspecified individuals who targeted company employees with access to sensitive internal administrative systems.

Smart reads

Adeep diveby Voxs Recode explores the development and future of smartphone trackers, which can extract and aggregate data from a wide variety of apps.

Thisanalysisfrom the Columbia Journalism Review details the lengths media organizations have gone to in order to obtain and disseminate accurate data about COVID-19. Many news outlets have sued local officials for access to data, while others have created their own statistical tools to provide a complete picture of the pandemic in the absence of similar government resources.

Gif of the Week:Many quick hits this week remind us that cell phones can raise paw-sonal privacy issues.

Like what youve read?Sign up to get This Week in Technology + Press Freedom delivered straight to your inbox!

The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy combining the law, policy analysis, and public education to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee Attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Fellow Linda Moon, Legal Fellows Jordan Murov-Goodman and Lyndsey Wajert, Policy Interns Abe Kenmore and Joey Oteng, and Legal Intern Sasha Peters.

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This Week in Technology + Press Freedom: July 19, 2020 - Reporters Committee for Freedom of the Press