- “Banana Costume Copyright Assailed at Third Circuit” [Emilee Larkin, Courthouse News, earlier]
- In a new piece for The Bulwark, I sort through some comments by presidential candidate Pete Buttigieg critical of identity politics;
- Supreme Court’s decision in Apple v. Pepper, with Justice Brett Kavanaugh joining four liberals, takes a little nick out of Illinois Brick doctrine limiting antitrust suits [my new Cato post]
- Ninth Circuit will soon hear case in which judge ordered Idaho prison system to provide inmate with transgender surgery; I’m quoted saying lower court decision amounted to battle of the experts [Amanda Peacher, NPR/KBSX, plus followup piece (“medical necessity” not a fixed standard, definitions of cruel and unusual punishment hitched in some ways to public opinion) and NPR “Morning Edition”; audio clip]
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] “A Single Global Standard for Internet Content Regulation Is a Recipe for Censorship” [Jacob Mchangama, Quillette] And Jonah Goldberg on right-wing rage at social media platform moderation;
- Some politicos in Britain engage in “‘karaoke Thatcherism’, preaching low-tax, low-regulation mantras divorced from new challenges or detail,” then falling for truly bad ideas like laws to assure real estate tenants indefinite tenure against owners’ wishes [Ryan Bourne]
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (Section 230 of the Communications Decency Act of 1996).
Those 26 words (and not a member of Congress) invented the internet as we know it. These words protect internet platforms from lawsuits based on user-generated content, allowing them to open their doors to a dizzying variety of sentiment and speech. Absent that sentence, social media platforms would have strong incentives to suppress any speech that might cause them legal woes. Or, in contrast, they might avoid legal liability by not moderating their forums at all, likely rendering them unusable. Jeff Kosseff tells the story of the institutions that flourished as a result of this powerful statute. He introduces us to those who created CDA 230, those who advocated for it, and those who were involved in some of the most prominent cases decided under the law. As section 230 and the platforms it protects face increasing scrutiny, Twenty-Six Words demystifies this little-known yet vital statute.
Commenting at the Cato forum for Jeff Kosseff and his book were: David Post, former professor of law, Temple Law School; Emma Llansó, Center for Democracy and Technology; and Cato’s John Samples as moderator.
More: Nick Gillespie, Reason (conservatives, liberals on Capitol Hill both turning against Section 230). And Eric Goldman has written recently about how the First Amendment is by no means a dependable backstop should incursions on Section 230 widen speech liability, and how the FOSTA law, which curtailed some Section 230 protections in the name of combating sex trafficking, is unlikely to achieve much toward that goal even as it prepares the way for further incursions on online liberty.
“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)]
- Getting together to do a national We’re-Not-The-Enemy-Of-The-People Day might not play to the strengths of an independent press [Jack Shafer; New York Post on why it did join, and L.A. Times on why it didn’t] Kevin Williamson wishes that many in the institutional press were more than just fair-weather friends of free speech values [NRO]
- ““Racial Ridicule” Is a Crime in Connecticut — and People Are Being Prosecuted” [Eugene Volokh]
- “Can Fake News Be Regulated?” Federalist Society policy brief video with Thomas Arnold;
- Once you get past the headline, Adam Liptak’s NYT account of First Amendment differences at the Supreme Court is well done [Roger Pilon]
- Is Internet freedom failing? [Knight Institute symposium with Jack Goldsmith et al.] How does moderation actually work at leading social media firms? [Kate Klonick, Harvard Law Review]
- The ABA’s Model Rule 8.4(g), in the name of combating harassment and discrimination, encourages states to regulate many expressions of speech and association by lawyers that have incidental professional implications. The Supreme Court in its recent NIFLA v. Becerra decision cast a shadow on that [Josh Blackman, Scott Greenfield]
New Jersey court orders Google to take down newsworthy photo Chicago Tribune had run of plaintiff [Eugene Volokh; note that plaintiff subsequently voluntarily dropped the case] And courts can’t order private media outlets to expunge truthful coverage of charges against someone, can they? [Volokh on Houston judge’s order against website of broadcaster KTRK]
An earlier cyberbullying bill in New York was struck down by the state’s highest court as in violation of the First Amendment, and now a new version… well, let’s just say that it has free speech problems too, which don’t get conjured away just because a person named in and distressed by speech is a minor [Eugene Volokh, Eric Turkewitz first post with explanatory followup, Scott Greenfield first and second posts, earlier]
Illinois “stalking” and “cyber-stalking” statutes criminalize (among other things),
- “knowingly engag[ing] in [2 more or acts] directed at a specific person,”
- including “communicat[ing] to or about” a person,
- when the communicator “knows or should know that this course of conduct would cause a reasonable person to”
- “suffer emotional distress,” defined as “significant mental suffering, anxiety or alarm.”
The statute expressly excludes, among other things, “an exercise of the right to free speech or assembly that is otherwise lawful.”
Despite that last exclusion, the Illinois Supreme Court struck down the provisions as unconstitutionally broad under the First Amendment. (The Cato Institute and the Marion B. Brechner First Amendment Project had filed an amicus brief). Shouldn’t Illinois lawmakers have known better? [People v. Relerford]
After a push from (among others) Texas Attorney General Ken Paxton, one elaborate scheme using dummy litigants and deceptively staged court orders to get Google to de-index some articles appears to have been knocked offline. Eugene Volokh and Paul Alan Levy have been among those recently exposing as fraudulent some practitioners of the art known as “libel takedown” or “de-indexing injunctions.” [Dave Lieber/Dallas News, Volokh in September and related on similar schemes here (takedown request against one of Volokh’s own posts) and here (private default judgment cited in request to Google to deindex government documents), earlier here, etc.]
The Ohio legislature last summer unanimously enacted, and Gov. John Kasich signed, a law prohibiting “knowingly posting text or audio statements or images on a website ‘for the purpose of abusing… or harassing another person.'” Now plaintiffs of several political stripes have joined in a legal challenge alleging that they or their organizations “‘routinely engage’ in protected speech that ‘may be considered provocative'” and that the law is so vaguely and broadly worded as to subject them to “a credible risk of prosecution.” The suit was initiated by UCLA law professor Eugene Volokh with assistance from his First Amendment Amicus Brief Clinic. [AP/WHIO]
Try to track down the notaries who signed on this search-engine-scrubbing scheme as witnesses, and they melt away as if but a dream [Eugene Volokh]