- Second Circuit decision restricting public officials from blocking foes on Twitter is likely to discourage local electeds from sharing on social media, among its other problems [Gabriel Malor thread, John Samples/Cato, earlier]
- State of Washington defines lawyers’ pro bono work as “campaign expenditure,” even when it goes toward ballot access effort for a measure that never reached the ballot to be campaigned over. Review and clarification by high court sorely needed [Ilya Shapiro, Trevor Burrus and Patrick Moran on Cato amicus brief in Evergreen Freedom Foundation v. State of Washington]
- Freedom of press not just for those who own one: “Minnesota Supreme Court Holds That Nonmedia Speakers Are Fully Protected by First Amendment” [Eugene Volokh, defamation law]
- “Publishing Court Records Containing Home Address Not Actionable Invasion of Privacy” [Volokh on a pattern that sometimes gives rise to claims of “doxxing”]
- FOSTA, the law hailed as creating a pioneering exception to Section 230 for speech promoting “sex trafficking,” isn’t just your ordinary incursion on Internet freedom. It comes with a body count [Mike Masnick, Techdirt; related, Violet Blue, Engadget]
- If they’re farming, don’t you be filming: John Stossel on ag-gag laws [Reason video and story, earlier]
- Following similar rulings in Charleston, S.C., and Washington, D.C., federal judge rules Savannah violated First Amendment when it passed law forbidding unlicensed tour guides [Andrew Wimer, Institute for Justice]
- Pursuing a leak, San Francisco cops raid home of freelance journalist Bryan Carmody, hold him captive, seize his equipment [Yashar Ali, CNN] “SF police got warrant to tap journalist’s phone months before controversial raid” [Evan Sernoffsky, San Francisco Chronicle]
- Breadth of the Julian Assange indictment and implications for the First Amendment [Eugene Volokh]
- Three concepts of “hate speech” related to religion, and their different legal treatment: “speech that denigrates religion as such; speech that threatens imminent violence against believers; and speech that insults or denigrates believers on the basis of religion” [Mark Movsesian and Marc DeGirolami podcast, Center for Law and Religion, St. John’s]
- New York disciplines a civil servant over political opinions he expressed on Facebook. Can it do that? [Center for Individual Rights]
- “Goldsmith … was charged with simple misdemeanor harassment for a Facebook post he made expressing his criticism of the policing methods he witnessed by an Adams County sheriff’s deputy at a local town festival.” [ACLU] Speaking of that organization: “ACLU (N.H.) Challenging Criminal Libel Statute” [Eugene Volokh last winter]
“The cop actually hauling him to the station [for warning motorists that there were cops ahead] was more to the point, telling the man he was arresting him for ‘interfering with our livelihood,'” according to the complaint in the subsequent lawsuit. [Tim Cushing, TechDirt; Stamford, Ct.] We covered a similar ruling in Florida in 2012.
“We’re not interested in charging children or putting them in jail or fining them,” says a campaigner for Maryland’s “cyber-bullying” law, “Grace’s Law 2.0,” which is drafted to do exactly those things. “What we want to do is change the behavior so the internet is more kind,” says the same campaigner regarding the new law, which would encourage online users to turn each other in for potential 10-year prison terms over single instances of certain kinds of malicious, abusive speech, and is being billed as going farther than any other law in the country, as well as farther than the earlier Maryland law passed in 2013.
Bruce DePuyt at Maryland Matters reports that Senate Judiciary Chair Bobby Zirkin (D-Baltimore County):
said the 2013 law required that abusive comments be sent to the individual and be part of a pattern of conduct. With the rise of social media, that proved to be too high a hurdle, he said.
Under the new law, “a single significant act can land you in trouble,” he told reporters.
Due credit to the ACLU of Maryland, which called out this dangerous venture in speech regulation:
Toni Holness, the group’s public policy director, said in February that the bill fails to adequately define what constitutes a “true threat.”
Holness also was concerned about other words in the bill that had not been defined: encourage, provoke, sexual information, intimidating, tormenting.
“There’s way too much prosecutorial discretion in these terms that are not defined,” she said.
I criticized the bill in February and noted language from Zirkin suggesting that the Court of Appeals, as distinct from the legislature, would sort out its constitutionality. Before that, I criticized the 2015 law as itself going too far (more). DePuyt reports that Zirkin may approach U.S. Rep. Jamie Raskin (D-Md.) about introducing a similar bill on the federal level. Let’s hope Raskin says no to that bad idea. [cross-posted from Free State Notes; see also earlier]
Related: an Ohio student has been arrested and faces expulsion over a Twitter account on which he made vicious comments about female classmates; whatever view the law takes of the prospective expulsion of 18-year-old Mehros Nassersharifi by Perrysburg High School, his arrest, on charges of telecommunications harassment, may overstep the First Amendment [NBC24, Hans Bader, Eugene Volokh (reworded to reflect fuller accounts which make clear that the student’s offensive speech went further than simply “rating” of classmates)]
- “In Cato’s latest ‘funny brief,’ Ilya Shapiro and Trevor Burrus are once again telling the Court that scandalous speech is valuable to society and that there’s no way for a government office to be trusted to decide what’s ‘scandalous.'” [Ilya Shapiro and Trevor Burrus on Cato certiorari amicus brief (with P.J. O’Rourke, Nadine Strossen, and others) in trademark registration case of Iancu v. Brunetti]
- Could someone remind the President of the United States that there’s no law against making fun of him on TV? [Jacob Sullum]
- New Zealand declares it a crime to possess or distribute manifesto of Christchurch mass murderer, begins filing charges against persons who shared on social media [Charlotte Graham-McLay, New York Times via Josh Blackman, Tripti Lahiri/Quartz]
- Airport concession flap appears to set up a First Amendment case that Chick-fil-A would win, should it choose to pursue its rights against the city of San Antonio [KSAT, Hans Bader] Courts take seriously the doctrine of First Amendment retaliation even in otherwise discretionary areas of government operation [David French on Riley’s American Heritage Farms v. Claremont Unified School District, C.D. Calif. (school field trips to “living history farm” with outspokenly conservative owner)]
- Courts should narrowly construe “true threat” exception to free speech law to cases where there is objective threat, not just malicious intent [Ilya Shapiro and Michael Finch on Cato certiorari amicus brief in Knox v. Pennsylvania]
- Did a federal magistrate judge order the Chicago Sun-Times not to publish a juicy, mistakenly unsealed FBI affidavit from the city’s unfolding corruption case? (The paper published anyway) [Tim Cushing, TechDirt]
- U.S. Department of Justice files brief in Kisor v. Wilkie somewhat critical of Auer deference, i.e. of deference to the federal government’s own positions. That’s pretty special, and commendable [William Yeatman, Cato; Jonathan Adler, earlier here and here]
- Parsonage exemption (i.e., favored treatment of allowance for religious housing) does not violate Establishment Clause, rules Seventh Circuit panel [Gaylor v. Mnuchin; background, Kelsey Dallas, Deseret News; earlier]
- Showing middle finger to police officer counts as constitutionally protected speech, and Sixth Circuit says every reasonable officer should know that already [Eugene Volokh]
- Home-share hospitality is here to stay, unless regulators get it very wrong [Federalist Society video with Gwendolyn Smith, Matthew Feeney, and Pete Clarke]
- “Tens of thousands of people in Missouri cannot drive as a result of their licenses being suspended over child support they are unable to pay.” A newly filed lawsuit challenges that practice [Hans Bader]
- Only Congress can make new law, and administration can’t reach desired ban on “bump stock” firearms accessories just by reinterpreting existing federal law [Ilya Shapiro and Matthew Larosiere on Cato amicus brief in D.C. Circuit case of Guedes v. BATFE]
H.R. 1, the political regulation omnibus bill, contains “provisions that unconstitutionally infringe the freedoms of speech and association,” and which “will have the effect of harming our public discourse by silencing necessary voices that would otherwise speak out about the public issues of the day.” That’s not just my opinion; it’s the view of the American Civil Liberties Union, expressed in this March 1 letter (more). For example, the bill would apply speech-chilling new restrictions to issue ads that mention individual lawmakers.
The House of Representatives nonetheless voted on Friday along party lines to pass the bill, which was sponsored by Rep. John Sarbanes (D-MD). For now, it has no prospect of passage in the Senate.
The issues raised in the ACLU letter aside, H.R. 1 contains many other provisions that likely are unconstitutional, unwise, or both. On gerrymandering, for example, an issue on which the Constitution does grant Congress a power to prescribe standards which I’ve argued it should consider using more vigorously, the bill takes the heavy-handed approach of requiring all states to create a commission of a certain format. That would likely run into the Supreme Court’s doctrine against federal “commandeering” of state government resources.
More criticism: Brad Smith on the bill’s restrictions on discussion and coordination of expenditures on speech; Ilya Shapiro and Nathan Harvey (“If ever adopted, [HR1] would give power to one slice of Washington’s elite at the expense of American democracy’s carefully crafted checks and balances”); David A. French (“At its essence, the bill federalizes control over elections to an unprecedented scale, expands government power over political speech, mandates increased disclosures of private citizens’ personal information (down to name and address), places conditions on citizen contact with legislators that inhibits citizens’ freedom of expression, and then places enforcement of most of these measures in the hands of a revamped Federal Election Commission that is far more responsive to presidential influence.”) And: Cato Daily Podcast with Caleb Brown and Luke Wachob.
“A better reason to reject the governor’s proposal is that the constitutional guarantee of a free press extends to all people. Professional journalists don’t deserve special treatment, and no self-respecting one wants it.” [David Andreatta, Rochester Democrat & Chronicle]
“A federal appeals court on Thursday blocked a San Francisco law requiring health warnings on advertisements for soda and other sugary drinks in a victory for beverage and retail groups that sued to block the ordinance.” The ruling, by a unanimous 11-member en banc panel of the Ninth Circuit, found that thelaw violates First Amendment rights of commercial speech. [AP/BakersfieldNow; American Beverage Association v. City and County of San Francisco]
Last year following the Russian Facebook scandal the Maryland legislature passed a bill regulating newspapers (!) and other online ad platforms. Gov. Larry Hogan refused to sign it, citing First Amendment concerns. Now a federal court has agreed and blocked the law’s enforcement as an unconstitutional infringement on the freedom of the press.
I write about the case at Cato. “Social media trickery is bad. Chipping away at First Amendment liberties to stop it is worse.”