- Did the Supreme Court err in Employment Division v. Smith when it ruled that the Free Exercise Clause provides no exemption from burdens on religious conscience resulting from neutral and generally applicable laws? [Federalist Society Rosenkranz Debate with Michael McConnell and Philip Hamburger] Will the Court revisit Employment Division, as four Justices (Alito, Thomas, Gorsuch, and Kavanaugh) recently suggested? [Eric Baxter on Ricks v. Idaho Contractors Board]
- Maryland: “Don’t suspend drivers’ licenses over fines/fees unrelated to road safety” [my new Free State Notes]
- “A motley group of powerful companies have their knives out for Section 230, which shields platforms from lawsuits over content posted by users.” [David McCabe, New York Times; Gigi Sohn on Twitter]
- Did U.S. Customs destroy an African musician’s uniquely crafted instrument, or was it damaged in transit? Stories differ [Isobel van Hagen and Sarah Kaufman, NBC News; earlier here, here, here, etc.]
- R.I.P. David N. Mayer, emeritus professor at Capital Law and constitutional scholar who did important work on the views of the Founders and on the Contracts Clause [Roger Pilon, Cato]
- Another Emoluments suit fizzles for lack of standing, as I predicted three years ago [Megan Mineiro, Courthouse News (suit on behalf of individual members of Congress); sage advice from Grover Norquist]
I’m in the Baltimore Sun discussing a bad Maryland law passed in response to the furor over Russian trolling on social media. I wrote about it earlier when a federal district court struck the law down, and now a Fourth Circuit panel, in an opinion by Judge J. Harvie Wilkinson, has agreed that it is unconstitutional. Excerpt:
Exposing foreign governments’ meddling in U.S. politics is a worthy goal. Infringing on First Amendment freedoms is no way to go about it….
[After the law passed] Google immediately stopped hosting political ads in Maryland, a step particularly unhelpful to newcomer candidates, for whom advertising may be one of the few effective ways to boost name recognition. Other platforms, including some Maryland newspapers, also faced a tough position as the effective date of the law drew near. Rather than publish disclosures that might expose to competitors’ eyes confidential information about their ad rates and viewer reach, they might prefer just to immunize themselves by turning down political and issue ads in the future as a category.
- “Bad writing does not normally warrant sanctions, but we draw the line at gibberish.” And Judge Sykes had much more to say besides that [Kevin Underhill, Lowering the Bar]
- Man claiming to possess vast trove of secret Jeffrey Epstein data approaches two prominent lawyers. Episode sheds light on “extraordinary, at times deceitful measures” lawyers may employ “in an effort to get evidence that could be used to win lucrative settlements.” [Jessica Silver-Greenberg, Emily Steel, Jacob Bernstein and David Enrich, New York Times]
- “How Cloudflare Stood up to a Patent Troll – and Won” [Alex Krivit, CloudFlare]
- “By enacting government licensing of online speech, the Ending Support for Internet Censorship Act would risk increasing censorship instead of preventing it.” [Diane Katz, Heritage]
- New Charles Blahous paper on where next for gerrymandering reform coincides with many of my own views [Mercatus, Mitch Kokai/Carolina Journal; more to say in a future article] “Roundtable: 3 experts on SCOTUS’ gerrymandering ruling” [Jerrick Adams, Ballotpedia, thanks for including me]
- Changes in American law (torts especially) have trained us to blame those with money when we suffer a harm. Should it be a surprise that the resulting attitudes might spill over into the political system? [Robin Hanson]
- Despite warnings that its “copyright small claims” format could call forth a new troll business model and trip up ordinary Internet users, U.S. House of Representatives votes lopsidedly in favor of CASE Act [Makena Kelly, The Verge; Jonathan Bailey, Plagiarism Today; Katharine Trendacosta and Ernesto Falcon, Electronic Frontier Foundation, here, here, here, and here; Mike Masnick, TechDirt; Copyright Alliance and ABA president Judy Perry Martinez (supportive of bill); earlier]
- A social media platform that proposes to vet political claims for truthfulness will inevitably be drawn into taking sides in favor of some political factions against others [John Samples, Cato] You’d think New Yorker writers and New York Times editors would know better: no, free speech is not “killing us.” [same]
- “Top Myths About Content Moderation” [Eric Goldman] And a Cato Daily Podcast about content moderation with Thomas Kadri and Caleb Brown;
- “Attorney Who Sued Grindr Responds Extremely Poorly To The Supreme Court’s Rejection Of Her Section 230 Lawsuit” [Tim Cushing, TechDirt, on “victims’ lawyer” Carrie Goldberg; Cathy Gellis in January]
- It must be campaign season because here come the DMCA takedown notices over fair use [Paul Alan Levy]
- “Facebook isn’t liable for algorithm that put terrorist content in news feeds, 2nd Circuit rules” [ABA Journal, earlier here, etc.]
- Under investigation and facing the same sorts of tactics he once used against Wall Street, Giuliani may now have reason to appreciate the sorts of principled civil libertarians who stand firm against prosecutorial excess [Ira Stoll]
- U.S. dominance in social media is the envy of the rest of the world. Politicians’ trustbusting zeal could change that [Amy-Xiaoshi DePaola, Cronkite News/Arizona PBS, thanks for quoting me]
- Walgreen’s had a tussle with Wegman’s over the trademark use of a big script “W,” but has not gone after with another well-known organization with such a letter symbol, the Washington Nationals [Richard Patterson, American University IP Brief back in 2011]
- British Columbia human rights tribunal rejects groin-waxing complaint, finding that complainant “engaged in improper conduct”, “filed complaints for improper purposes”, and gave testimony that was “disingenuous and self-serving,” along with having “targeted small businesses, manufactured the conditions for a human rights complaint, and then leveraged that complaint to pursue a financial settlement from parties who were unsophisticated and unlikely to mount a proper defense.” [Joseph Brean, National Post, Justice Centre, opinion in Yaniv v. Various Waxing Salons (No. 2), earlier]
- “University of Louisville Students Can’t Sue Escort for Exposing Prostitution in the Louisville Basketball Program” [Eugene Volokh]
- Intending no disrespect, Your Honor, you should think twice before doing this [Zachary Halaschak, Washington Examiner (“Two male judges shot after female judge gives middle finger during drunken night out”; Indiana)]
“…when it comes to parody, the law requires a reasonable reader standard, not a ‘most gullible person on Facebook’ standard. The First Amendment does not depend on whether everyone is in on the joke.” — Judge Amul Thapar, Sixth Circuit, writing on behalf of a unanimous panel that “an Ohio man who was acquitted of a felony after creating a parody Facebook page that mocked a suburban Cleveland police department can sue the city and two police officers over his arrest.” [Jonathan Stempel, Reuters]
Related: everyone has the right to call politicians idiots, and that goes for gun store owners too [Eugene Volokh; North Carolina gun store owner’s billboard likened by sitting member of Congress to “inciting violence”]
If you didn’t follow the Leif Olson episode last week, here’s the nutshell version: the Bloomberg Law news operation ran a wildly unfair piece attacking a newly appointed Labor Department official; Olson, a conservative lawyer who is no relation to me, briefly lost his job but then was reinstated. I’ve written up my thoughts at Cato (“Man Engages In Sarcasm On Social Media. Career Survives”) and an editor at Bloomberg Law has already furnished a piquant sequel.
“When public officials or those running for office call out the political donations of people they don’t like, what’s the goal? Is it merely to shame them?” I comment in this new Cato Daily Podcast with Caleb Brown.
More on the controversy over Rep. Joaquin Castro’s (D-Tex.) tweet: Katie Rogers and Annie Karni, New York Times; Bradley Smith, National Review, Christian Britschgi, Reason; and earlier episodes, not exactly parallel but with some points of similarity, involving Sen. Marco Rubio (Maduro-cozying restaurant owner) and the then-campaigning Donald Trump (“They better be careful, they have a lot to hide!”).
Conservative commentator Dennis Prager has an op-ed in yesterday’s WSJ restating his claims (made in a lawsuit dismissed last year and re-filed this spring in a new suit) that YouTube restricted his “Prager University” videos owing to anti-conservative bias. These claims of unfair treatment have gotten wide circulation, especially since the popular Prager U. series for the most part presents mainstream conservative views in a calm rather than incendiary tone. In his op-ed, Prager speaks favorably about the enactment of new “laws governing big technology companies” to restrain “their hostility to conservative voices.”
This Mike Masnick thread (language) gives another side to the story. YouTube’s optional “restricted mode,” meant to limit kid viewing, isn’t important or much used (only 1.5% of users enable it). The PragerU shows at issue did have some content about topics like rape, murder, and genocide that might disturb younger children. And many other well-known shows see a larger share of their episodes put into restricted mode. Thus 12% of Prager U. videos have been put in restricted mode, compared with 24% of History Channel videos, 28% of Vox videos and 54% of Daily Show videos. Matthew Feeney at Cato, James Pethokoukis at AEI, and Billy Binion at Reason have more.
One irony I see in this is that conservatives up till recently have tended to favor promoting parental-control modes in social media, or even making them the default, and have accepted the inevitability that the automated algorithms that inevitably drive these modes when applied to large bodies of material may sometimes sweep broadly enough to screen out even some responsible, sober, and fact-based discussions of topics to which parents might not want to expose younger teens.
Having now seen these modes in action, they seem to be having second thoughts.
P.S. “Conservatives have also spent decades opposing any attempt to revive the FCC’s old Fairness Doctrine, which required broadcasters to be balanced in their programming on controversial issues. ‘FCC bureaucrats can neither determine what is “fair” nor enforce it,’ the Heritage Foundation said in 1993.” [Margaret Harding McGill and Daniel Lippman, Politico, on reports of new White House executive order]
More: John Samples, Cato (“Dennis Prager, Big-Government Conservative”).
- 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]