I’m in today’s Wall Street Journal [paywalled for some readers] with a piece on last week’s vote by the San Francisco Board of Supervisors to brand the National Rifle Association a “domestic terrorist organization.” The resolution repeatedly takes the view that “advocacy,” “propaganda” and “promotion” of certain political viewpoints, or of gun ownership, constitutes terrorism or, as the case may be, “material support” for it.
First Amendment aside, there’s more than just symbolism in the board’s divisive attempt to change the meaning of words by main force. The resolution also declares a crackdown on city contractors who do business with the gun-advocacy group, and under current law that is very likely to be struck down in itself as inconsistent with the First Amendment under a 1996 Supreme Court precedent.
Some related links: the resolution; the 1996 Board of County Commissioners v. Umbehr case, in which the Supreme Court ruled 7-2 that the First Amendment restrains localities’ discretion to shun contractors because of their politics; Jonathan Adler in 2015 on the Chick-Fil-A controversies; and reporting on the San Francisco supervisors’ resolution to use nicer, not-so-dehumanizing terminology about criminals (Jim Geraghty at National Review noticed this before me).
Since an attacker motivated by anti-immigration sentiments killed 22 at an El Paso, Texas Walmart, there has been a cry for new laws against “domestic terrorism.” Most who join in the outcry, however, haven’t begun to think through the implications, especially since these sorts of laws “rarely stay limited to their nominal purpose,” notes Fordham’s John Pfaff in a thread. “Criminal laws will inevitably be written broadly, and that breadth will inevitably mean they will expand their reach.”
I’m really struggling to understand what a “domestic terrorism” law would add.
Here’s the core part of Fed’s international terrorism statute:
Note that everything covered by the statute—murder, kidnapping, etc.—must already be a crime.
There’s nothing new… but real risks: pic.twitter.com/jnSusKkxPC
— John Pfaff (@JohnFPfaff) August 7, 2019
The Patriot Act created special warrants to go after terrorists. Over 11,000 such warrants were issued in 2013:
0.5% were used in terror cases.
80% were used in routine drug cases.https://t.co/ivKTOajBQT
Laws like this always reach farther than we think. https://t.co/7tCUQ9LO4l
— John Pfaff (@JohnFPfaff) August 7, 2019
- “The Moral Panic Behind Internet Regulation” [Matthew Lesh, Quillette] New Congressional Research Service report on free speech and the regulation of social media content [Valerie C. Brannon, Congressional Research Service]
- “A social media campaign from the French government has been blocked by Twitter – because of the government’s own anti-fake-news law” [BBC via Elizabeth Nolan Brown]
- European authorities misidentify many pages on Internet Archive as “terrorist,” demand takedown [Mike Masnick, Techdirt]
- Armslist case is one in which Section 230 protected Second Amendment rights (that’s not a misprint for First) [John Samples, Cato; Eugene Volokh]
- Sen. Josh Hawley (R-MO)’s bill to require the largest social media firms to obtain certification of their political balance from the FTC, on pain of making them liable for all content posted by users, met with hail of dead cats from knowledgeable observers [Elliot Harmon/EFF, John Samples/Cato and more, Cathy Gellis, Joshua Wright thread, Eric Goldman, Raffi Malkonian on retroactivity and more, Elizabeth Nolan Brown/Reason] Related: Daphne Keller (“Build Your Own Intermediary Liability Law: A Kit for Policy Wonks of All Ages”);
- “We sympathize with Plaintiffs — they suffered through one of the worst terrorist attacks in American history. ‘But not everything is redressable in a court.'” [Sixth Circuit, Crosby v. Twitter, affirming dismissal of lawsuits seeking to hold Twitter, Facebook, and Google liable under Anti-Terrorism Act for abetting self-radicalization of perpetrator of Orlando Pulse attack]
Mike Masnick at TechDirt examines claims that YouTube, Facebook, and other social media companies irresponsibly refrained from deleting user-posted copies of the March 14 mass murder at Christchurch, New Zealand mosques.
- “30 Years After the Rushdie Fatwa, Europe Is Moving Backward” on speech that gives religious offense [Jacob Mchangama and Sarah McLaughlin, Foreign Policy] Whether you call it blasphemy or hate speech, chilling effects on expression are the same [Helen Dale, Unherd]
- British writer faces police inquiry after “deadnaming” transgender activist online [Katie Herzog, The Stranger; Sophie Law, Daily Mail on Graham Linehan case] Social media “like” contributes to another police call [James Kirkup, The Spectator]
- How American law came to recognize hate speech as part of the zone of protected free speech: a look at the history [Flemming Rose, Cato Institute]
- Labour MP introduces bill to ban private Facebook groups [Tom Rogan, Washington Examiner]
- Far-right French politico Marine Le Pen, prosecuted over speech on Twitter, “ordered to undergo a psychiatric examination as part of the investigation.” Say what? [Jacob Sullum]
- The U.K.’s new anti-terrorism efforts should be terrifying to anyone who cares about free speech [J.D. Tuccille, Reason]
A “string of civil lawsuits intended to pin liability on online platforms for allegedly providing material support to terrorists” has mostly fared poorly in court, with Section 230 providing a bulwark against liability in most cases, “but some of these cases are on appeal and plaintiffs have filed several new ones. If these suits are successful, they could be detrimental for the Internet: platforms would have little choice to become much more restrictive in what sorts of speech they allow.” In particular, “if online platforms no longer have Section 230 immunity for hosting content even remotely related to terrorism, those forums and services will take aggressive action to screen their users, review and censor content, and potentially prohibit anonymous speech.” [Aaron Mackey, Electronic Frontier Foundation; examples here (Facebook), here (Twitter), here, here (San Bernardino: Facebook, Google, Twitter), here (attacks in Paris and Brussels, Twitter), here (Orlando), here (Facebook), here (Twitter), etc. ]
- So often those who seek to control the rest of us seem unable to achieve self-control. Case in point: sponsor of NY bill to search gun applicants’ social media accounts [Jon Campbell, Democrat and Chronicle, Sen. Rob Ortt on Twitter] More on Sen. Kevin Parker’s proposal: Scott Greenfield, and my earlier;
- Concerning an issue that Cato has warned about for many, many years, the emergency powers of the President [Elizabeth Goitein/The Atlantic, related video]
- Web accessibility suits hit colleges [Rick Karlin, Albany Times-Union], New York wineries [Brianne Garrett, Wine Spectator, Kathleen Willcox, Wine Searcher, Thomas Pellechia, Forbes], other defendants around New York [Stephen Rex Brown, New York Daily News, Jamie Herzlich/Newsday]
- “How the Feds Spy on Reporters” [Cato Daily Podcast with Julian Sanchez and Caleb Brown]
- Thread on what government subsidies have done to Canadian literature. Reason to resist letting subsidies be pushed further into US literary arts sector, let alone print news as some would like [Jonathan Kay Twitter thread]
- A likely story: “Scottish Grandpa Claims He Checked ‘Terrorist’ Box on Visa Form by Mistake” [Kevin Underhill, Lowering the Bar]
MGM Resorts, which operates the Mandalay Bay hotel casino in Las Vegas, has invoked a law passed by Congress in the wake of the Sept. 11 attacks to ask for a ruling that it is not liable to more than 1,000 victims of the Oct. 1, 2017, massacre during which a gunman in a Mandalay Bay room killed 58 people and injured nearly 500. The Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act of 2002 limits claims against some makers of security equipment and sends lawsuits against such firms by terror victims to federal court. According to a critic, MGM is taking a broad view of the law’s provisions, claiming its protection because it employed a security vendor with SAFETY Act certification and because the shooting was an act of “mass violence.” The U.S. Department of Homeland Security “has not designated the Las Vegas shooting a terrorist attack.”
The use of declaratory judgment and similar processes, familiar from fields like insurance law, can lead to public relations damage, especially if aimed at parties minding their own business who had not filed a claim or action and might never have done so. It is not clear from coverage how many of the 1,000+ persons named in MGM’s legal filings had evinced no intent to file claims or suits; a suit against MGM was filed last November on behalf of 450 victims. [Jason Tashea, ABA Journal; Rachel Crosby, Las Vegas Review-Journal] More: Howard Wasserman on jurisdiction.
- Dangerous and misguided: Michigan pursues prosecution on charges of jury tampering of man who handed out “jury nullification” pamphlets on public sidewalk outside courthouse [Jay Schweikert, Cato; Jacob Sullum, earlier here, here, etc.]
- “‘Worst of Both Worlds’ FOSTA Signed Into Law, Completing Section 230’s Evisceration” [Eric Goldman] Among first casualties: Craigslist personals [Merrit Kennedy/NPR, Elizabeth Nolan Brown] And Elizabeth Nolan Brown joins (no relation) Caleb Brown on a Cato Daily Podcast;
- Is reprinting thumbnail headshots fair use? [Mike Masnick, TechDirt]
- “16 Pulse survivors sue Google, Facebook, Twitter for ‘supporting’ ISIS” [Daniel Dahm, WKMG Orlando]
- Not the group it used to be: ACLU calls for government-owned broadband, claims First Amendment may require as opposed to forbid state-operated communications infrastructure [Randolph May and Theodore Bolema, Free State Foundation] More: Scott Greenfield;
- Cato amicus commercial speech triple-header: Virginia’s ban on promoting happy hours (bars may hold them, but not promote them off premises) is an irrational leftover of Prohibition [Ilya Shapiro] While some commercial speech can be mandated, Ninth Circuit goes too far in upholding government-ordered scripts [Shapiro and Meggan Dewitt on structured-mortgage-payment case Nationwide Biweekly Administration v. Hubanks] Sign laws face tough scrutiny under 2015’s Reed v. Town of Gilbert, and Tennessee’s billboard law, which applies even to noncommercial speech, may run into trouble [Shapiro and Aaron Barnes]