FESC: Relax about Town of Gilbert

Posted on May 1, 2016 by rtushnet

Enrique Armijo           Town
of Gilbert: Relax Everybody   

Presenter: Derek Bambauer

 

Argues that criticism of Reed
is overblown/misplaced; argues in favor of the outcome.  Cleaned up dicta that caused lower courts to
conflate content and viewpoint discrimination. Gilbert two step: does the challenged regulation refer to content
in its text?  If so, apply strict
scrutiny.  If not, does the regulation
regulate because of viewpoint?  If so,
apply strict scrutiny.

 

Media commentators portrayed Gilbert as part of 1A tsunami crushing regulation.  Armijo says: chill. Actual effects of Gilbert in 3 areas: sign restrictions.
Many regs that fail now would have failed under earlier regimes; will allow
regulation where related to real purposes. 
Commercial speech distinction remains alive and applies only
intermediate scrutiny.  Moreover, forcing
municipalities to remove content restrictions reduces discretion for local
officials, which is an important purpose of the 1A.

 

Panhandling: begging is speech, but courts have long permitted
bans anyway b/c they don’t like beggars. The bans now have to be more narrowly
tailored to traffic safety etc. 

 

Consumer protection: doesn’t divest gov’t of regulatory
power, but burden of proof rests w/gov’t. 
Securities laws that mandate disclosure/bar fraud are clearly essential
to a functional system.  Pressing state
to link regs to verifiable harms imposes a useful restraint on gov’t power.

 

Argues: cleanly separated content and viewpoint
discrimination is a good test.  Courts
are properly cautious about their ability to detect hidden animus.

 

Treatment of content neutral laws leads to underprotection
of speech: broad speech blocks are more likely to survive, like a ban on all
lawn signs.  Current schema blocks
skewing, but not silencing.  Content-specific
bans can’t survive even if there are abundant alternative outlets.  Argues that there should be more protection
for speech subject to content-neutral bans.

 

Comment: the shift of Gilbert
is bigger than that. Courts may in hindsight have been wrong to use the
viewpoint discrimination bad, content discrimination often ok framework, but
the SCt let them do it for a while.  Gilbert injected strict scrutiny where
intermediate scrutiny was used; likely to have a profound influence on future
regulators even if courts haven’t yet done much. Change in emphasis as well as
scrutiny; reliance on Sorrell, which
moved commercial speech towards core political speech.  Scholars previously opined that regulatory
skepticism in Sorrell  would be outlier; it would be a new norm.

 

Compelled speech is different: gov’t gets much more latitude
in compelling speech in commercial contexts than suppressing, curtailing the
parade of horribles.

 

Motive matters; looking for motive catches really clever and
really dumb regulators. Gilbert
forces stupid gov’ts to take bitter and sweet; sidelines clever gov’ts that
appear to avoid malign purposes but still discriminate.  Panhandling is a nice illustration: not clear
whether the issue is narrow tailoring, better lawyering, or both—and that’s b/c
panhandling laws aren’t really about traffic safety.

 

It’s not clear how to measure the amount of affected speech,
or balance benefits w/speech costs. 
Time, place, manner: preserves people’s sleep, but we don’t know how
many activists want a parade at midnight. Not clear whether we need more or
less searching rule. 

 

Need theories of middle range linking gov’t purpose to
distinctions.

 

Armijo: consider how you think about these following
statements: There’s a local law about how long you can have a in your yard: in
May 2017, a Trump 2016 sign should be finable. 
1A should (or should not) require town to require near miss or accident
before it can ban panhandling in the median strip. An application for state
employment that disqualifies 4 African-American applicants for every white
applicant violates the Equal Protection clause. 
That’s Washington v. Davis;
most people in academia think it’s wrong—they think you can presume
discriminatory purpose when you have discriminatory effect. In 1A, we care too
much about purpose. Reed minimizes
use of purpose in resolving 1A questions = that’s a good thing.

 

It’s a fair critique that the paper underplays the effect of
Reed. There are 100s of lower court
opinions that are wrong b/c they look at purpose & approve suppressive
effect, and those will have to go.  The
other critique: what is intermediate scrutiny? 
It’s now rational basis review, and that’s a problem; we need to do better
if it’s to mean anything.  Who’s afraid
of big bad strict scrutiny? What’s the actual effect? Requires the gov’t to
draft carefully. All these interests are compelling (ok, most of them). These
are about overinclusiveness, underinclusiveness, least restrictive alternative.
We should want the gov’t to think about that before it regulates whenever it’s
writing laws or regs to affect speech. 

 

Q (not mine): premise that Reed doesn’t change much of anything—there’s a line of cases that
resulted in Reed; it wasn’t alone in
treatment of content neutrality. But there already seems to be a change in the
law from Reed, and that’s TM
registration.  Norfolk sign case: one
restriction there was on gov’t flags. 
Lanham Act has a flag ban on registration.  We tried to make an argument to register DC
flag, but couldn’t make a 1A argument that registration was allowed.  Reed
overturned that.  DC & Houston
couldn’t register before; they could now, right?

 

Armijo: Stupid laws. 
The voting selfie case: another example of a stupid law. Not moved by
the supposed unfairness of forcing gov’t to show compelling interest.

 

RT: [I don’t think that’s a stupid law. It has an obvious
point in preventing people from implementing a vote-coercing/vote-buying scheme
by preventing them from getting photographic proof; the ban makes the scheme
less likely to work and thus less worth engaging in. I also don’t think the
flag registration ban is stupid. I don’t know why someone who admits he knows
nothing about TM can judge whether the flag ban is stupid; these are complex
regulatory schemes.  Why are judges good
evaluators of the evidence here?  I don’t
think that © and TM will be struck down, even though their details could not possibly
survive strict scrutiny even if the overall idea of the scheme could
(compulsory cable licensing, anyone?). But what I do think is that this very fact—©
and TM are safe—is evidence of ugly things that go on in exempting certain
rules from strict scrutiny/defining strict scrutiny down, just as Vince Blasi
warned about many moons ago.  Stuff that
the Court likes will survive strict scrutiny, just as Alito listed a bunch of
obviously content-based rules as examples of totally fine sign regulations in
his concurrence.]

 

Q: puts starch in standards. It’s just good First Amendment
hygiene.  No parade of horribles will
occur, but the problem is the euphoria of 1A folks who thought they could get
rid of commercial speech, zoning. It’s important to make people show that there
aren’t less restrictive means.  Courts
may resist finding a violation b/c the consequences are so serious—the same
thing goes on in the 1A context—the specter of strict scrutiny leads to courts
evading it. Doesn’t have to invalidate © and TM—just give me a reason [that
doesn’t sound like strict scrutiny]; did you consider alternatives that were
less impactful on speech?  [P.S.: the answer
with © and TM is: no.]

 

Armijo: Turner
getting intermediate scrutiny was ridiculous.

 

Q: effect or purpose as the crucial question.  Heffernan SCt case from last week: Someone
who wasn’t intending to speak—he was demoted as a detective for picking up a
yard sign for his mom; but they intended to demote him for exercising his right
to speak. That’s the right decision.

 

Q: if Reed doesn’t
strike down commercial speech regulation, why can’t courts just decide that Reed doesn’t apply to their situations
too? Your argument is basically that courts will do that regularly, which also
takes the wind out of the sails of your argument that gov’t will be held to its
proof.

 

A: one of the main arguments is that the commercial speech
doctrine is the last line of defense against a full-on Reed that applies to every conceivable reference.  If you look at what courts are doing, they
are actually distinguishing Reed from
commercial speech regulation, which seems right.

 

Q: But why don’t you think Reed should do away with the commercial speech doctrine. If strict
scrutiny is so good, why shouldn’t we have it for everything, including
commercial speech regulation?

 

A: there are good reasons to treat commercial speech
differently.  Those reasons will continue
to be sufficient.  [This raises the
classic question of retail v. wholesale justifications for treatment.  Commercial speech gets shunted off from
strict scrutiny at the wholesale level. 
Likewise © does, and apparently the non-disparagement/scandalousness
bars of TM too and probably things like TM priority and ITU.]

 

Q: so why not other things too, like the Chaplinsky categories?

 

Balkin: how much is this paper about the composition of the
federal courts?  Lower federal courts
might read Reed narrowly b/c they
have a lot of Obama appointees. Significant chance that Scalia’s replacement
will be less skeptical of the regulatory state. That would be a very good
explanation for why we should relax; paper’s analysis would be helpful but not
necessary.  If Ted Cruz stocks the Court
with constitutional conservatives, then Reed
will mean a lot more.

 

Bambauer: Armijo takes preexisting categories
seriously.  Conservatives could weaponize
Sorrell too.  Legal Realist critique is a different matter.

 

Balkin: your point is there’s not enough evidence of which
direction Reed will go.

 

Q: nonjudicial 1A roles—federal agency may be able to
enhance 1A discourse, maybe even by funding broadcasters.  Commercial-adjacent speech—not a proposal for
a transaction.  Gay conversion therapy:
is it a content based distinction?  Under
Reed, yes. But does it reach any of
the reasons we created the content-based category? Or is it just a service you
can no longer obtain?  Professional
speech isn’t a formally recognized category of the same vintage as commercial
speech.

 

Q: distinct 1A interest in that speech in Velasquez re: funding of legal services. 

 

Balkin: 1A protects professional judgment in some contexts,
but gov’t can also regulate professional fields for quality.

 

Q: but every law is dumb some of the time. Banning gay
conversion therapy outright can’t be the least restrictive means!  Making GPS provider liable if advice caused
an accident: that’s content-based.  [And
a less restrictive alternative would be counterspeech! Have the gov’t make its
own GPS system and people can choose which to use.]

 

Balkin: very common to create regulatory rule that’s
prophylactic. 

 

Armijo: but that allows the “no panhandlers in the median”
rule too; that’s prophylactic.  Why not
ban all people hanging out in the median? Current 1A law incentivizes “no one
hanging out in the median,” which harms the political protestor as well as the
panhandler.  [I’m not sure where to go
from that.]

 

Q: Does any of this track the reasons we adopted the content
based distinction?

 

Armijo: makes us more suspicious of the gov’t. 

 

Balkin: Bad motives; distorting marketplace of ideas. But
how do you know what a nondistorted market looks like?  What you’re left with is that you’re worried
about bad motives. If that’s the case, go straight to the question of the gov’t’s
motives.

 

A: it’s usually hard to tell/well masked.  [Not clear to me that’s true.] Also, you have
to worry about other justifications. 
Require neutrality = you don’t have to do that.

 

Balkin: but there are many kinds of content or speaker based
laws where one would not imagine bad motives. That would suggest that there are
some classes of content regulation where you shouldn’t trust the gov’t.  But some you should.

 

Q: facial neutrality, by the same token, is no guarantee of
anything good motive-wise.  Closure of a
designated public forum is neutral, but bad. 
Like closing the swimming pool to avoid integration.

 

Armijo: my aim is to reverse US v. O’Brien, and focus on effects and not purpose gets you there.

 

Q: but that was just the Court doing a bad job at purpose
analysis.

 

Q: but there you have a plausible neutral reason for the
regulation that the Court didn’t second-guess based on a few floor statements.

 

Bambauer: We have a bunch of special cases.  1A doesn’t apply to ©; not to cable
(Turner).  Is it preferable to have
special cases or just face it outright.

 

Q: the special cases are diminishing over time, just as
unprotected categories have been narrowing over time.  [© is a counterexample, it seems to me; that
was only invented in this century.] Incremental narrowing of gov’t latitude to
regulate commercial speech—that’s In re
Tam and Discovery Networks – you don’t
get leeway to regulate if your purpose isn’t to deal with the commercial
transaction itself. Zauderer makes it
weird, but overall the special cases are narrowing more to a standard
interpretation.  Reed doesn’t mean there will be no more incitement, obscenity, etc.

 

Q: disclosures: cigarette companies may be required to
disclose when other producers aren’t required to disclose the same risk; it’s
not b/c cigarettes are extra regulable for the very reason commercial speech is
regulable—it’s not RAV.  Regulating particular speakers can’t be
enough to invalidate a law—you can regulate disclosure of airline prices
without regulating disclosure of all prices or all transportation. It’s just a
feature of gov’t regulation that you can’t regulate everything at once.

 

Q: recent Heffernan
case: the 1A focuses on the gov’t’s activity. 
A justification for looking at intent.

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FESC: Trademark Registration and Free Speech

Posted on April 30, 2016 by rtushnet
 
Presenter: Deven Desai: Latest Trojan Horse in 1A law. §2(a)
allows denial of registration for disparaging marks.  This piece of TM law is a chance to rethink
the 1A in general.  The Washington
football team & In re Tam.  Fed. Cir.
drew on Reed to find §2(a)
disparagement unconstitutional content-based regulation. Threatens the ability
to have a proper regulatory state. The fact that the acid logic of current 1A
protection makes the bar on registering merely descriptive terms even arguably
unconstitutional shows that something has gone seriously wrong w/current law.
Forcing TM law into strict scrutiny makes little sense and could do great
damage in general.
 
Bar on disparaging marks has been justified in various ways:
gov’t endorsement, gov’t resources, user’s continuing right to use.  There is enough gov’t involvement to be
sufficiently like Confederate Veterans.  Is the only constitutionally sound purpose of
TM law to improve the quality of the truthful/nondeceptive signals consumers
receive?  Can our concept of quality
include disparagement? Tam used
unconstitutional conditions, but RT says that was wrong, b/c TM always involves
gov’t intervention into the speech market. 
We’d like to appropriate ROOT BEER or BARQ’s for root beer, but we can’t;
PTO would rightly deny registration. 
Deception-adjacent bars would be suspect/fail under the Tam approach.  There’s an easy way out under commercial
speech doctrine under Friedman, but
b/c so much has changed since 1979 there’s a problem.
 
What would happen if we gave full 1A scrutiny to TM? These
bars would all falter/crumble under real 1A scrutiny.  Key point: denying registration isn’t a
punishment. Lack of sufficient justification to grant the private right in the
first place. This is what we need for a regulatory system.  If you say that other marks should have been
denied; we have inconsistency in regulatory systems, and this isn’t a ban on
speech.
 
Is this viewpoint discrimination? No, it’s equal: you can’t
disparage any group with your choice of mark; we don’t care what the speaker
thinks.  Straightforward.  We also make decisions about subject matter
protectability in ©.  To have a
regulatory state, we need to do certain things. The FDA has to manage drug
labels. Debt collection practices. Registering TMs—economic regs assaulted by
modern 1A theory.  We should embrace
ordinary economic regulations with content regulation involved.  That’s what the regulatory state is supposed
to do when it works well.
 
What content-based determinations are legitimate? We might
have to leave it to the legislature.
 
RT: Thanks to Deven and the participants!  I know I’m a bit of a contrarian.
 
Balkin: This is different than other kinds of
regulations.  Characterize what the
nature of the regulatory practice is to fit it into 1A thought. First cut: this
is a close cousin of the regulation of commercial speech. Either part of that
or close cousin. There, our basic goal is to promote truthful, nonmisleading
information for the purpose of improving cultural competence.  It’s really a form of market behavior we
protect b/c in essence it throws information into the system. Much market
behavior isn’t protected b/c it isn’t info producing. Tries to influence desire
by reshaping culture.  [those two things
aren’t the same, desire and info]  But
why don’t we allow TM registration for everything? The gov’t must have a view
that there are certain registrations that will produce a certain kind of market
that’s desirable: but what is that?  Once
we know what the gov’t’s goals are, the real test is whether there is a
rational relation b/t organization of the registration system and the kind of
market we want.  If true, that’s just
Central Hudson, which is reasonableness under the circumstances.  If it’s truthful or not misleading, we do
intermediate scrutiny. The distinction between viewpoint based and content
based is not part of the test, just a means-end rationality test.  Must be an allocation of economic power
somewhere (rights or no-rights) and the gov’t’s choice among them just has to
be reasonable.
 
Desai: constitutionally sound purpose of TM/harm done to
significant segments of the population—need to develop that more in the paper.
 
Tamara Piety: On misleadingness, case law has assumed that
if it’s lawful or that a whole bunch of stuff that doesn’t make an assertion
about truthfulness meets that prong; elides disputes about what constitutes
misleadingness or truthfulness. Doesn’t fit neatly in to
truthfulness/nontruthfulness. We could place this dispute in (1) or (2) of Central Hudson.  State action problem: Gov’t’s thumb on the
side of a matter of public concern. But it would be if they had the
registration too! Gov’t’s doing so in a regime that if they get the right they
get to suppress others’ speech. What’s the justification for that?  Market-making v. gov’t’s desire to avoid
identification with disparagement.  1A
discussion seems to be at the first level of taking a side on disparagement
rather than what TM as a regime does.
 
Andrew: not a TM expert: struck down disparagement bar in
toto. But doctrinally: other ways that might attack disparagement bar.  I don’t like Confederate Veterans: majority opinion has difficult-to-foresee
implications; giving up on Finley—gov’t
doesn’t want its hands dirtied by art it doesn’t like.  One thing you might draw on is admin law:
idea of Congress not delegating this power to this group to make this
decision.  Petition for cancellation is
an interesting mechanism: Washington team already had a registration; Tam didn’t
have a registration—is there a difference/vested right?  King v.
Burwell—why would you let the TM office make a disparagement determination?
There’s no way that moral adequacy questions would ever be delegated to the
PTO.
 
RT: reminds me of talking about © 15 years ago. [Congress
was super clear about delegation.]
Vision of market making: Civilizing commerce.
 
Kate Klonick: even though we keep talking about avoiding
deception, honest info flow—the other question is why do we want that to be the
marketplace? It benefits consumers and companies in general (market for lemons)—that’s
also why we allow the TM office to regulate speech that is derogatory.  We want to protect users.
 
RT: issue: continuing right to use; can the market take care
of it?  Not always! Doux-commerce: a
market can segment so that the racists are enough to support the product.
 
Annemarie Bridy: Source identification is not a semantic
function—when the gov’t is regulating whether or not it will give you a mark,
it’s only regulating whether it will approve of that as a source
identifier.  Does that mean it’s content
neutral, b/c what you’re regulating is the source identification function?
 
RT: not under Reed’s
excitingly broad definition of “content based,” but that’s silly—it’s a
perfectly sensible content-based regulation.
 
Balkin: RAV.  Scalia
would say: imagine two different products: Happy Jew bagels; Smelly Jew
bagels.  According to Scalia, you can’t
register one but not the other. 
Exception: where the distinction is related to the purpose of the
regulation itself.  If you accept that
disparagement is part of a special master plan of sweet commerce, that would be
ok.
 
RT: deceptive marks: a ban would be effective; refusal to
register by hypothesis is not b/c it’s material to consumers, thus helping to
sell the product; why would the applicant stop using?  So unless something about the regulatory
system is important to distinguish it from a ban, gov’t should have to use a
ban instead.
 
Piety: external justification for regulation: since you’re
handing a potential stream of income to someone. Materially different from a
speech ban. 
 
Priority rules—why aren’t they suspect under the 1A?  ITU, foreign rights owners, etc.  Even if the common law were a neutral
baseline, that isn’t the common law.
 
Analogy to names: gets past the commercial speech issue;
doesn’t have to be commercial speech for the gov’t to be able to regulate it in
this particular way.  [avoid the Central Hudson
question of reasonable basis if it’s a general regulation that goes beyond
commercial speech]
 
Consider Gallo v. Gallo and other personal names cases:
courts have not to date seen a 1A problem in barring use of personal name
(though query whether that should continue—here we have the private speech v.
private speech issue not directly presented by TM registration)

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FESC: First Amendment Theory and Coverage

Posted on April 30, 2016 by rtushnet
First Amendment Theory and Coverage
Moderator: Ash Bhagwat
Jane Bambauer, Derek Bambauer      Information Libertarianism
Presenter: Morgan Weiland: Important ongoing debate about
expansion of 1A doctrine to cover commercial and corporate speech.  Critiques existing identification of “new
Lochnerism” as an explicitly redistributive “soft Marxism.”  At its core, the current scholarship is
hypocritical, criticizing the Court for using the 1A instrumentally to
deregulate, but their theories of limits are also based on politics and are
therefore also instrumental.  The authors
purport to offer a politically neutral defense of expansive free speech
doctrine, because the 1A is inherently libertarian. Info = communication or
signals b/t sender/receiver where those communications are or could be useful
to human beings.  Info libertarianism is
oriented towards the listener. Speech is info w/in the scope of the 1A.  Info libertarianism is skeptical towards
regulation of speech and supports regulation of conduct.
Direct regulation of conduct is (1) more effective at attaining
gov’t’s goals, (2) has fewer collateral consequences, and (3) more transparent.  Costs of speech are overestimated and
benefits discounted.  Speech is vulnerable
to intractable political problems: interest groups, gov’t self-promotion, etc.
Info libertarianism mitigates these concerns.
Comments/feedback: 1A theory as libertarian. Paper assumes
that implicit in every theory of free speech is the libertarian insight:
worries about gov’t power. This assertion presents two problems. (1) Not clear
it’s correct; requires more support than provided. (2) Because the claim isn’t
supported, you determined ex ante that the entire field of speech is
libertarian, which neutralizes the ideological approach you subsequently
take.  Could be dealt with in a couple of
ways: distinguish b/t theory and doctrine; doctrine is a stronger candidate for
being deeply libertarian.  Could also
defend the claim that 1A theories are always ultimately about fear of gov’t.
Listener-centered approach is underdeveloped part of 1A
doctrine.  Red Lion & many other cases
discuss this view. There’s a lot of scholarship in the communitarian tradition
that deals with this listener-centered approach; engage w/that, b/c it comes at
listeners from a very different angle.
Use of term “information.”
Talk more about why you distinguish b/t speech and info in the first
place. What work does it do for your theory?
Relatedly, there’s tension in attempt to unite info theory w/the notion
of info described as attached to phenomenology, which reintroduces meaning.
Shannon’s info theory was designed to strip meaning out of info processing, so
there’s a tension.
Broader info libertarianism: Unpack the specific theoretical
contribution of info libertarianism in contrast to other free speech theories.
Morgan Weiland         “Thin
Autonomy” and the Digital Speech Crisis
Presenter: Amanda Shanor: New third tradition in free speech
theory: autonomy justification—thin autonomy, stripping hallmarks of human
autonomy in self-expression and self-creation, leaving only freedom from the
state. This poses a deep threat to the digital era.
Summary: First: dominant historical traditions, negative and
affirmative free speech.  Negative:
individual autonomy rooted in Enlightenment notions of self-expression.
Ascribed. Not just negative liberty against state, but productive/generative.
Affirmative: free expression is a social good wielded by individuals to
accomplish the public good of discourse/democracy.
Second: neo-Lochnerism and thin autonomy.  This new justification for speech protection
comes from commercial speech/corporate political spending as speech cases.
Radically corporate, libertarian version: strips away Enlightenment ideals,
leaving only a naked right against the state.
Not a right to self-constitution.
Flips press right on its head: negative right justification treated the press
as specially protected because it was instrumental to vindicating listeners’
rights; new thin concept treats listeners as instrumental to vindicating
corporate rights.  A one way deregulatory
ratchet.
Third: threat to digital era. Telecom law is poised for a
similar issue as commercial speech/campaign finance. Net neutrality is the new
ground.  ISPs are making third tradition
argument: ISPs are speaking when they load data packets.  That’s a thin autonomy justification divorced
from self-expression and self-realization.
Gov’t defends the first two traditions: data transmission isn’t speech,
but content creators’ and audiences’ receipt are.  Broadband providers are not speaking when
they deliver data, but serving as conduits.
Net neutrality serves important First Amendment purposes to allow
individuals to structure their own political speech.
Questions: (1) How do we recognize thin autonomy when we see
it?  Autonomy right against the state
claimed by corporation—is it just another way of making a corporate speech
claim?  When you see listener rights
invoked instrumentally?  You say that
listener rights can also be used instrumentally to serve thick autonomy
goals.  Paper suggests it might be
nonhuman actor that’s key. (2) Why and on what basis is thin autonomy
unsatisfying? Is it unacceptable b/c of its outcomes?  Or b/c the 1A does and should extend only to
thick autonomy interests?  (3) Can’t
corporations provide the opportunity for self-cultivation by citizens?  Commercial speech: in that context, some
cases we might realistically describe as neo-Lochnerism are brought by
individuals, such as US v. Caronia,
where an individual successfully challenges the FDA’s off-label speech rules.  Reconstituting the individual as consumer in
the third tradition: love to hear more about how the third tradition
reconceives the individual as a consumer.
Jane Bambauer: central tension in papers: theirs defends
thin autonomy because it’s a useful corrective to avoid bad policy—gov’t thinks
it’s getting things right and it’s not.
Insistence that every free speech theory has a libertarian core: maybe
that’s not true, but if we’re going to agree that the 1A is an individual right
then it is true. Even if you take the narrowest free speech theory, the
Borkiest, and protect only core political speech, if what we mean by being
protected is that the state can’t punish an individual for speech, that reveals
that we have some distrust of the political process to get the legal rule
correct.  [So all individual rights are
libertarian?  If I have a right not to be
killed by the state, does the fact that it applies to me as an individual make
it an individual right and not a communitarian one?]
Weiland: On defining thin autonomy: the legal fiction of the
corporate person has limits. We should allow the individualism of the free
speech right to apply to corporate persons, and that doesn’t make sense. We
should assess the nature of the group: reasoning in Citizens United was wrong,
as was the holding. What is their relationship to self-expression? Some groups
have a great claim to self-expression, but not all of them. Doctrine is now
incoherent. Perhaps the Citizens United group gets the same outcome, but not
all corporations.
Tamara Piety: Suggestions re: tone.  [RT: I’m offended at being accused only of
being a “soft” Marxist.  I work out!]  That’s a code word and not fair.  Basic framework of the Lochner charge was advanced by that well-known enemy of capitalism
CJ Rehnquist, in his dissents in Virginia
Pharmacy and Belotti.  It’s taken time for some of his predictions
to bear fruit, but they did.  A lot of
these objections are coming from corporate law scholars: the corporate law body
of law is in tension w/emerging 1A doctrine.
Defining corporate entities is a very different project in corporate
law!  Not fair to characterize this as
burn-Wall-Street.
Straw man argument about originalism; if you care about originalism,
you should be concerned about current doctrine—not really pure originalism.
You assume what a lot of us are challenging: the
informational status of a lot of commercial speech. If you say it’s valuable,
you assume away the problem.
Intermediate v. strict scrutiny standard: but that’s one of the principal
disputes right now. Intermediate scrutiny became de facto strict over time and
we object to that; now we’re entering to a place w/an uneasy mixture of content
neutrality and Central Hudson, which
has not been overruled.
Jack Balkin: You can’t go far wrong if you try to base a theory on
some idea of freedom. Can we think of info libertarianism as being sufficiently
neutral as to all the things we care about w/r/t speech? Usually we don’t talk
about liberty as neutral; we talk about it as serving some sort of value.
Creating a form of liberty w/ no value associated with it strikes him as too
cautious.  What are the human values
promoted by this tilt towards libertarianism?
When you articulate it, it won’t be in terms of neutrality.  For Weiland: what is the loss in terms of
human values by the retreat to the thin conception?  For example, suppose you happen to be a
critic of neoliberalism.  Might argue
that the thin autonomy conception involves a particular form of risk
assessment/management, capital development to which human is entirely
subservient, subsumed into market metaphors, and that’s a deeply false picture
of what human life is and should be. That’s an objection I get.
Jane Bambauer: nothing is purely neutral, nor are we purely
procedural. Reluctant to name end goals (though she could) b/c we have many
examples where the gov’t’s end goal is not well served by regulating
communications.  [Which assumes that the
gov’t has a single goal, and that a better regulation in service of that goal
is politically possible.  I actually have
a lot of sympathy for the argument that the gov’t should be forced to Hobson’s
choice in many circumstances, though I think that’s generally a better argument
for getting rid of disclosures and doing more flat bans on speech.]
Weiland: Agree w/the affirmative and negative traditions: 1A
is there to ensure that we have opportunity to cultivate ourselves as
autonomous, expressive people. So can corporations provide that opportunity?
Yes, absolutely, but only instrumentally.
In the affirmative tradition we develop ourselves as publics, as
groups.  The single-way ratchet against
regulation prevents a proper balancing of the possibilities.
Bhagwat: negative/positive: one thing going on seems to be
instrumental/political versus individual autonomy/development.  Agree that Fiss, for example, is associated
w/gov’t getting involved and political, positive conception of 1A. But those
two threads can exist apart.  You say
that “getting more information” is not the result of Citizens United and thus
it’s not justified, but why do you think that’s not true?
Weiland: it could be the case that deregulation furthers the
listener’s interest, but it’s not always true as a tautology. Kennedy et al.
assert that listener’s rights are coextensive with every corporation’s speech.
Amanda Shanor          At
the Boundaries of Free Speech: A Theory of First Amendment Coverage
Presenter: Leslie Kendrick: Many questions around free
speech Lochnerism are questions about coverage, not protection: securities
regulation, workplace harassment. Coverage is a sociological concept.  What courts and litigants in a given moment
think it is; lately, that question of what coverage is has been expanding.
Descriptive theory of what courts are doing when they discuss coverage. Social
consequentialism: how cohesive are our expectations about the
reactions/understandings the speech will generate? The more cohesive our
reactions are, the less likely it is to be covered. Workplace harassment: we
understand the effects of harassment on the workplace. Porn/hate speech: those
are w/in the scope of the 1A b/c social cohesion around those is more contested—what
its effects will be are more in question.
Courts should assess the institutional and other values implicated by
expanding or contracting coverage.
Questions: is this really about cohesion?  Nazis in Skokie; we could all have a
consensus prediction about what happens when Nazis march in Skokie and what effects
that will have, and yet it’s protected.  On
the flip side, workplace harassment: the story there bears uncomfortable resemblances
to porn: different views of what porn does, but also potential disagreement
about effects of workplace harassment.
If sex is included in Title VII as a possible poison pill (a contested
account), then it didn’t itself represent any social consensus, nor did the effects
of harassment specifically in the workplace. One could also think of law itself
as a marker of social cohesion: and yet it can’t be the case that having a law
about something signifies the existence of social cohesion.
Speech/conduct divide.
[This troubled me too.  I think
the meaning of the shape of a car is likely to be contested, but that doesn’t
make it within the scope of the 1A.]  It’s
an uncomfortable divide, and the more we try to escape it the more trouble it
gives us. Many of the things that we wouldn’t colloquially call speech are the
subject of regulation and are contested.
Minimum wage laws.  The effect of
a $15/hour wage is contested, but no one would argue that b/c the effects of
such a wage are contested they have a 1A right not to obey.  Speech/conduct divide may be doing work
underneath your concept.
Leslie Kendrick          Use
Your Words
Presenter: Derek Bambauer: Theoretical inquiry separate from
underlying rationales for free speech or claims about coverage, balancing, or
scrutiny. Instead, speech is distinctive relative to other human activities:
more efficient, effective and precise method of communication than any other,
thus likely to possess a unique relationship to the reasons for First Amendment
protection.  Speech as phenomenon:
enables each of us to transcend individual boundaries of time, place,
meaning-making—can represent actual/potential states of being. Speech is power.
Specialness: a brief history of justifications for speech
exceptionalism.  Unitarians: single core
value drives shape of 1A. Pluralists: speech is critical/central to multiple
important values.  Inclusivists:
everything is speech until shown not to be; this is more of a description than
a theory.  Skeptics: those who find
speech’s uniqueness unpersuasive: speech is not meaningfully distinct from
speech or tennis (don’t attend Wimbledon w/these people), but speech claims are
just normative agendas.
Separability from other activities + heightened value/special
connection to underlying values = justification for special treatment for
speech.  Paper doesn’t require 1-to-1
correspondence w/ underlying value, but it is enough for speech to be primus
inter pares.  It’s enough that “speech”
doesn’t describe all activity and that “speech” is special.  Doesn’t address which speech should actually
be protected, or whether there should be “neighboring rights” for
speech-generating behavior.
If speech is special b/c it’s uniquely good at communicating,
we need an underlying theory for why communication is special.  At base, this is a claim about human
specialness: social interaction/advanced cognition are important, and
communication is a platform for that. If communicative efficiency is a
criterion, then many behaviors become speech; forces the theory to become
highly inclusive, outsourcing all the work to the protection issue; or it
requires some other limit.  Words and
other speech aren’t uniquely communicative. Much communication is nonverbal and
not even what we’d call language. The eyebrow flash; the wink; the crossed
arms; the tapping toe.  We also find
signals easily recognizable as words in animals: honeybee dance for location;
warning cries that identify specific predator types. We need to understand
whether all communication is speech and if not why not.
Paper: speech is a complex system of communication.  Complex is a word that needs elucidation, or
risks becoming the 1A version of the epicycle, an adjustment that does a lot of
the work of harmonization w/desired outcome.
Also, simple signals do a lot of work, like flashing your headlights to
signal a speed trap. We can’t resolve the speechiness of draft card burning and
flag burning w/just an idea of complexity.
Wherever the boundary of speech is located, will leave out
certain acts vital to speech generation. Could be relegated to Press clause in
doctrine, but certain means of generating speech are just more effective than
others. Printing press, pencil—classic line drawing problem.
Shanor: does cohesion work?   Harassment is about boundaries, different
types of interpretive communities.
Ultimately my conclusion is that drawing these lines can’t just be socially
descriptive; neutrality is not a thing that exists.  Normative inquiry.  Attempt: highlight social forces.  I think about speech/conduct differently: if
we have a two-tiered system of scrutiny, there always has to be a boundary—a meta-doctrine,
per Mark Tushnet. Doesn’t think we can get it from speech and conduct;
deeply normative decisions are required.
Hope is to make that a more visible inquiry.
Kendrick: interested in structure of rights, particularly
special rights that operate above whatever rights conduct does generally.
Conceals w/in it questions of how distinctive the activity is and how robust
the protection difference should be; my question is about the first. In our
language of special rights, we tend to frame them in terms of activities in the
world. So we could have a liberty principle or something else that invoked a
value, but instead we talk about “freedom of speech” or “freedom from
unreasonable search and seizure”: described in terms of facts in the world.  Trying to see if you can gain anything by
thinking about speech as a phenomenon separate from the values we think it
furthers.  Then I stab at that by trying
to distinguish speech in its communicative power/efficacy. I resist the idea
that it’s about communication per se. I want to put aside Qs about everything
that could communicate.  Defending the
proposition that speech is different in communicative capacity, not to say that
speech has a monopoly on communications. We have academic disciplines devoted
to speech, specifically language, suggesting that language communicates
differently. Though everything signifies, language is the most effective
signifier.
She’s perfectly willing to concede that animals have complex
systems of communication. We could think this phenomenon has important value
for something—but maybe it only relates to human development, or not; maybe preventing
animals from communicating is a form of cruelty!
Q: Hate speech & harassment don’t differ in social
effects; Eugene Volokh would protect harassment in the workplace.  Nuanced, accurate, efficient: all can be
characteristics of sexual harassment, price-fixing. So it seems there has to be
some greater value beyond speech.
Shanor: Agree that formal analysis can’t answer these
questions; ask functional questions, e.g. about the functioning of the
securities markets.
Kendrick: what I’m describing about speech has no normative
valence; it could be used for good/evil. Speech is very good at insulting
people.  Hard to have hate crimes w/o
language that explains what you’re doing.
Want to disentangle the phenomenon from the normative values served by
the speech; there are certain types of claims you can only make through
language, like all the types of claims we discuss here; all rules for governing
a democracy; any type of abstract or hypothetical thought—speech has a monopoly
on those.
Q: many of the theorists you deal with are actually arguing
about protection, not coverage.  We don’t
protect speech in all cases, so maybe the question of whether speech is especially
good at communicating is beside the point.
If we find parts of speech that aren’t doing the thing that speech in
general can do, then we can regulate it, right?
Q: maybe speech communicates specially b/c we have a choice
to say or not say: b/c we have a choice about integrity. Silence can mean something
too.

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FESC: Hate Speech, Political Conversations, and Citizenship

Posted on April 30, 2016 by rtushnet
Brian Hutler    Hate
Speech, Political Conversations, and Citizenship        
 
Maggie McKinley: Tension b/t speech and protection of
minorities.  Integration of distinctive
communities and institutions leads to conversations, especially b/c most
integrations are by force.  Exposed for
some scholars the failures of liberalism in resolving historical injustice/structural
inequality. Cf. MacKinnon’s critiques of sexual harassment and pornography as
destructive of community—excluding women through semiotics of power.
 
Hutler argues for regulation of hate speech as inclusivity
measure, but tries to do that through more democratic theories: Meiklejohnian
theories and political science scholarship on deliberative democracy growing
out of Habermas. Empirical depth to deliberative democracy through the use of
ordinary language philosophy/Grice: argues for a new ideal model of speech, the
conversation, rather than the “marketplace of ideas.”  That alone is a contribution to law &
political science.
 
Suggestions: Normative components of argument.  Conversational model: speech has more to it
than just dialogue and conversation, enacted in part right here with the
commentary.  Nothing conversational about
this part.  Some of our free speech
doctrines already protect conversational aspects of speech, but that doesn’t
mean we should keep doing it or make it an explicit goal.  Potential normative justifications—e.g., deliberation
is great; it’s its own justification.  But:
What does it mean to put majority and minority in a room?—may homogenize
through majoritarian decisions.  Votes
allow the minority to continue to hold its views.  Does valuing conversation silence other
methods of communication, like Fuck the Draft?  Is it exclusion from the marketplace of ideas
that we’re concerned with, or exclusion from educational environments,
workplace environments, civil discourse/social life through
microaggressions?  Internet versus
student speech—a lot of the hate speech conversation there is about
participating in educational opportunities. 
 
Finally, are we doing this because protecting conversations
protects minorities, and our aim is to protect participation of
minorities/improve their lives?  Is hate
speech the beginning of a solution or is the same argument leading us to things
like affirmative diversity training as the next step of a conversational
model?  Example: Rising intonation as a
sign of lack of leadership but also as a sign of being female: should we train
students during mock oral arguments to not gesture, not have female affect,
etc.?  If you have a stigmatized affect,
should we train people out of that to improve the conversational approach?
 
Microaggressions as hate speech: when Easterners casually
throw around “off the reservation,” should that be regulated? Whose norms will
be chosen? Conversational norms vary widely.
 
Structural suggestion: combining internet and schools may
not help—disguises some tensions in your argument.  Distinction b/t hate speech and harassment
may be important.
 
Hutler: agree about difficulty of defining norms, but at
higher theoretical level there is an overarching norm of what Grice calls
cooperation—the goal of conversation is to reach some kind of mutual
understanding. The goal of having that kind of conversation, even if we don’t
achieve it, has a kind of moral value. 
It’s valuable for individuals to be able to express themselves in a
context where someone else cares; there’s also a value in forming a
relationship, even if fleeting, which is designed to achieve mutual
understanding even if it doesn’t occur. 
Playing w/ idea of individual freedoms understood as protecting
relationships/relationship formation, not just individual activities. 
 
As citizens, we use conversations to structure our
interactions at the ground level.  In the
workplace: legal standards are applied in the office, and there it matters that
minorities get to have their say and get and adequate/equal level of
representation, but more to the point in an interpersonal context it’s about
ideally us coming together to agree on some way of interacting. That’s why
focusing on universities is useful.  It’s
a place where people live and interact on a small scale as citizens. 
 
RT: The press and the relationship to the ideal of
conversation: asynchronous?  But it’s
also one to many.  Images as
counterexamples to the ideal of conversation—think of the little pamphlet
mentioned by Justice Scalia in the abortion protest case, which is going to be
a picture.  Other complicating factors in
how we interact: memes—can you engage in dialogue with a meme?  Can you argue with a meme? Stories: George
Lakoff and the metaphors we live by: what does it mean to be in conversation with
a story? Persuasion: is it the opposite of deliberation?  Is it incorporated into deliberation but also
capable of occurring in a non-deliberative way? People have projects in
conversations; that matters to the kind of conversations they have.  The university of your ideal: in US, people don’t live on campus together, except at
the elite colleges—they go home or to work. 
What does that mean for your account? 
Perhaps just that we don’t show by behavior that we as a society value
what democratic deliberation theory asks us to value.
 
Hutler: In terms of the press: Speech that isn’t directly
conversational is still deserving of protection. For him, the value of those
things comes through either trying to understand what the artist/speaker meant—they
may or may not care what I think—or talking about it with some third
party.  Think of discussion forums on
newspaper websites.  Starting points for
conversations—and it was always that way: newspapers contributed to public discourse
not just by creating a public record but by creating the nexus for a
conversation w/others.
 
The goal is mutual understanding; it doesn’t always work
out.  Persuasion isn’t necessarily
relevant; he’s not sure it counts as mutual understanding.  If you browbeat someone into agreeing w/your
position you haven’t achieved mutual understanding.  Lots of valuable conversations might not
result in any kind of agreement or shared viewpoint.  Sometimes it’s bad faith to go into a
conversation aiming to get the others to agree. 
(Which to me implies that this theory should give zero protection to
commercial speech.)
 
Q: in a democracy, the purpose is at some level to persuade,
right? Isn’t that a value we want in a democracy?
 
A: If what happens is that I come to understand what you’re
saying and think it’s right, that’s wonderful.
 
Q: Problems of hate speech regulation often come at the
level of definition of what counts as hate speech.  By improving the conversation, you mean
shutting up certain speakers, which contradicts the justification for free
speech.
 
A: definition may have to be tailored to contexts.
 
Q: there are many settings not dedicated to public discourse
and democracy. The classroom, the workplace, the dorm room?  The theory is very hard to implement.
 
Q: conversations have projects; sometimes there are
conversations about non-conversational statements/speech that others perceive
as hateful. How do we get speech about that if we shut down the hateful
remarks?
 
Q: do people need to contribute valuable ideas to have a
right to participate?  The Westboro
Baptist Church doesn’t have anything to offer, but their presence contributed
to a conversation by others and didn’t slow the progress towards sexual
equality.  Maybe you need hate speakers
on campus to have a conversation about hate speech.  [While I’m sympathetic to this argument in
the abstract—or at least as justification for not removing certain groups who’ve
shown up in public spaces—you don’t need slavery advocates on campus to have a
conversation about slavery, or Holocaust deniers to have a conversation about
the Holocaust.  Especially since speech
always crowds out other speech, if only by taking your attention away from
speech you might otherwise be encountering, the “your bad speech sparked good
speech” argument doesn’t seem to me to justify any speech in particular.]
Q: Reminder that people are forced out of conversations by certain speech: including some people means excluding others, and so you can’t get the hate speech in the conversation for “free.”  This is an empirical point that matters.  [The libertarian response is often to those forced out “toughen up”–that is, change who you are and how you think about speech that hurts you, and come back.  But it is at least reasonable to ask whether we should tell the hateful speaker to change who they are and come back.]
A: Yes, also wants to maintain the possibility of conversation with the hateful speaker.
Q: Habermas may work better for the college sphere than elsewhere: it is a place where democratic conversation is the/a key goal.  Recognition of our common humanity.  If you say to someone “you’re not human like I’m human,” the example of conservatives who won’t talk about their views about Obergefeld is not appropriate.  The conservative students don’t think that liberals don’t think they’re fully human.  The swastika etc. are signals that people who were previously excluded should still be excluded because they don’t merit treatment as people.  [Not sure I agree about how conservative students perceive the situation, but ok.]

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Freedom of Expression Scholars Conference at Yale: Search Engines and Free Speech

Posted on April 30, 2016 by rtushnet
Heather M. Whitney & Robert Mark Simpson: Search Engines
and Free Speech Coverage
 
Discussant: Heidi Kitrosser: Are search engine results covered by the 1A? Larger question of how
we decide what’s salient is part of the paper. 
Survey relevant 1A case law about algorithms & results.  Of the handful of cases to be decided, courts
basically have accepted a rather simple analogy between the algorithms that pop
out results and the type of editorial judgments at issue in cases like Tornillo and Hurley.  Issue has mainly
come up in unevenly matched cases—pro se or poorly resourced litigants against
tech giants.
 
There’s a long temporal and intellectual chain between the
initial creation of an algorithm and the spitting out of results—a disconnect
in a way that makes it not at all clear that the programmers are the “authors”
of the output in the way one puts together a parade/editorial page. Some
algorithmically mediated content might be analogous—for example, Stuart
Benjamin says, a giant digital billboard calculating the national debt; the
calculation is algorithmic but the message overall is expression.  It’s just not always the case that
algorithmic results are the product of editorial judgment. Demonstrates
weakness of analogical reasoning generally in determining 1A coverage. Point is
to get at the core Q: what are the values, reasons, normative concerns that
lead us to accord special protection to speech (or other things).
 
Speech/conduct distinction doesn’t resolve the problem; go
back to free speech theory for coverage of new tech outputs.  Pluralistic/democratic participation values:
Consumer protection laws and antitrust laws might appropriately cover
algorithms; algorithms themselves may repress speech if they submerge certain
perspectives.
 
Reflections: push them to consider more of a defense of
democratic participation as a focus, and/or run through other theories and
explain how those would work.  Are you
applying theory to determine protection,
or to determine coverage?  If you use your theory to determine
protection, then aren’t you collapsing coverage and protection?
 
Simpson: More difficult to make decisions here than the
courts/some of the scholarship would have you believe. There should be no ready
conclusions w/r/t coverage.  Algorithms
are neither inherently dissimilar or inherently similar to editorial judgments.
 
Whitney: Analogies by themselves aren’t doing the work
because you need to figure out what makes the analogy relevant.  Theory can help figure out if we’re ever
going to have limits on the deregulatory turn. 
That is a view that one can take of the 1A, but then you have given everything 1A protection (or coverage).
 
Jim Weinstein: Courts have intuitive, unarticulated theories
they use when they analogize; good to bring them to the surface.  You suggest possible fairness doctrine, but
even if something isn’t covered, the justifications themselves can trigger 1A
concerns: chocolate isn’t speech, but if the gov’t wanted to regulate chocolate
because consuming it made people more likely to oppose the gov’t, that would be
a problem. Gov’t intent to avoid an echo chamber online: same Q.   [Note
that this position may imply that federal mortgage insurance is a violation of the
First Amendment; the justifications at least included that being a homeowner
increases people’s involvement in the community, self-regard, and motivation to
work—cf. the more recent discussions of the “ownership society.”]
 
Deven Desai: if the NYT started to use algorithms to take on
Google News—would it lose protection?  Facebook,
Yelp—is there a search engine difference or not?  TripAdvisor and Yelp v. Google—you can’t get
around Red Lion that easily. If there’s not a scarcity, then people can choose
something else.
 
Simpson: Algorithms on their own don’t determine anything
about coverage.  Making a claim about how
courts shouldn’t be thinking about algorithms, not about how they should be.
 
Enrique Armijo: When you accuse Google of inconsistency on
net neutrality. The ISP argument is that they want to reserve the right to
edit; Google’s position is that they edit all the time, so he thinks there’s a
fair difference.  Regulating GM more
easily than Google: but what about Target? 
When I go to Google, I’m looking for speech, but when I go to Target I’m
looking for avocados.  (Hmm. Many times
when I go to Google I’m looking for, well, avocado-colored suits at least.)
 
Jim Tsetsis: What about the Press Clause?  If we treated it as having a separate
meaning, as the SCt has not, then we wouldn’t have to sweat so hard about the
difference b/t GM and the NYT, and could think better about Google. 
 
Whitney: Hurley
line is an issue; not traditional Press. Would require quite an intervention
from the SCt; would Hurley come out
differently even if we separated out the press? 
And the search engines would be fine saying that they were like the
press, and only use editorial judgment argument as a backup. The issue is still
analogical: what makes something a “press.”
 
Robert Corn-Revere: it’s the organization of information, so
what about that isn’t protected by the First Amendment?
 
Whitney: The outcome might be coverage/protection; there are
coherent accounts that would include search engines, but also coherent accounts
that wouldn’t in certain circumstances. 
We need a course correction or everything becomes speech and there’s nothing
special about a bookstore v. Target.  Result
of very expansive theory: The things that people sell, like search results, are
the result of expressive decisions; if those choices are expressive/organizing
information, then that product is speech—which goes off the rails.
 
Q: Millian harm principle: w/o the 1A, the constraint is
rational basis, which doesn’t require the harm principle. One way of
understanding the 1A is as demanding something more than the harm principle (a certain kind of harm), or given the
baseline of rational basis you could just demand the harm principle be
satisfied.  Even if credit ratings are
speech, you might have a harm-based justification to override it, in which case
the Q about what justifies regulation of search engines would be based on protection, not just on coverage.  Compare the 4th Amendment context:
analogies the SCt used fairly easily to justify things—video surveillance is
like looking at people—are now at risk of abandonment (cellphone isn’t like
other stuff in your pocket). 
Disanalogies can also be recognized—leap in scope.
 
Whitney: The 4th Amendment comparison is a good
one—resort to principles rather than analogies.
 
Simpson: true, might be covered but not protected.  For our purposes here, want to remain
agnostic on the result of a protection decision within the scope of covered
speech, because coverage decisions also have important implications for
litigation.
 
Balkin: what search engines do more than anything else is
serve democratic competence (Meiklejohn)—Meiklejohnian version of 1A would
clearly lead to coverage for Google, leaving only protection remaining as the
decision.  Many other algorithms would
also pass Meikeljohn’s test for coverage. 
Only an autonomy theory would say that only humans are bearers of
speech, and distinguish between humans and their tools.
 
Simpson: we don’t think it’s as clear as that.  When I go to a search engine, what I think I’m
seeing is a purely mechanically generated result.  In cases against search engines, the claim is
a consciously gerrymandered result that is not that.  If Meikeljohn’s theory is about members of
the demos having access to information they’d need in order to be
participators, then the claim is that search engines, at least some of the
time, distort exactly that information.
 
Balkin: Meiklejohn would never have said that b/c info you
get is distorted, info is not protected. You need access so as to make your own
judgments. Lots of information cooks the books. You’d have to argue that search
engines have a different relationship to the public different to everyone else’s:
information fiduciaries, with special duties to the public.  Grimmelmann, search engines as advisors.  Special duty by nature of service = ability
to regulate in public interest; otherwise they’re in the same boat as any other
info providers who cook the books (to mix a metaphor).  If a newspaper gives you a bunch of biased
headlines, Meiklejohn has no problem with that. Only if an entity had a special
duty to the public could it be regulated.
 
Corn-Revere: You’d have to reverse Tornillo for that.
 
Whitney: another possible move is new conceptions of
autonomy/libertarian paternalism. Things that distort autonomy should not be unproblematically
approved.
 
Balkin: they don’t try to apply nudges to First Amendment
values.  Imagine a nudge to register all
18 year olds as Democrats.
 
Whitney: Democratic competence can have multiple meanings:
people cannot always detect falsity/misleadingness. 
 
Balkin: but then you’re taking out a huge swatch of 1A
doctrine.
 
Whitney: Accept that, though we are not arguing for that
here.
 
Simpson: info fiduciary argument is worth pursuing: we’re
trying to do more to theorize the special role that search engines have.
 
Sandy Baron: Q of responsibility for output in tort law.  Google doesn’t want to be responsible in that sense; can  you distinguish them in 1A
protection/responsibility?
 
Whitney: It does seem there’s a tension for 1A protection
for antitrust plus §230 protection because it’s not their speech. They’re
neutral intermediary!  100% agree there’s
an issue here. Identifying as a speaker is useful in some cases, harmful in
others.
 
Q: Facebook isn’t the same as a search engine: trying to be
objective/universal, presenting information as relevant. FB is more of a
community; very different waters for the tech community.
 
Andrea Matwyshyn: Not everyone would agree w/that. 
 
Q: but FB will remove hate speech/terrorist content.

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FTC rules don’t explain excessive redactions in FTC v. Amazon

Posted on April 29, 2016 by rtushnet

F.T.C. v. Amazon.com, Inc., NO. C14-1038-JCC (W.D. Wash.
Apr. 26, 2016)

 

Amazon made it really easy for kids to make in-app purchases
in “free” apps; the court agreed with the FTC that this was bad, denying the
FTC’s request for an injunction and holding the question of damages for further
briefing.

 

In some ways the biggest story here is how Amazon convinced
a judge to redact embarrassing, but highly relevant and non-trade-secret,
information about Amazon’s business practices here, despite the grant of
summary judgment on liability for §5 violations.  The willingness to let parties choose what
the court makes public is even more
disturbing than the willingness to seal documents apparently willy-nilly.  Here’s
a story focusing on that.

 

15 U.S.C. §
57b–2 covers “any document, tangible thing, or transcript of oral testimony
received by the Commission pursuant to compulsory process in an investigation”
and requires confidentiality of documents produced pursuant to a civil
investigative demand.  However, this
provision doesn’t prevent disclosure of
relevant information in judicial proceedings to which the Commission is a party.  16 C.F.R. § 4.10(g), et seq., provides FTC
Rules of Practice for Adjudicative Proceedings. 
This regulation allows disclosure of information obtained from a CID,
subject to the submitter’s ability to seek a protective or in camera
order.  Nothing in the (accidentally
unredacted) opinion of the court discloses a trade secret, as far as I can
tell, and at least some of what was redacted—specifically, the FTC’s request
for a 20-year monitoring requirement as part of its request for injunctive relief—didn’t
come from Amazon in the first place, so the statute can’t really explain what
happened here.  What did?

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Empirical analysis of chilling effects

Posted on April 29, 2016 by rtushnet

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Website can use DMCA safe harbor for acts of its independent contractors

Posted on April 27, 2016 by rtushnet
BWP Media USA, Inc v. Clarity Digital Group, LLC, No.
15-1154 (10th Cir. Apr. 25, 2016)  
 
BWP owns the copyrights to various celebrity photos, and its
business model appears to be lawsuit-based, at least in part.  It sued defendant (AXS) for infringing 75
photos on the Examiner.com website. 
BWP’s July 2013 letter notifying AXS of the alleged infringements (note:
not a DMCA notice) prompted AXS to remove the photos, as it told BWP, but BWP
sued anyway. The district court granted summary judgment based on AXS’s DMCA
safe harbor defense, and BWP appealed.
 
Examiner.com characterizes itself as a “dynamic
entertainment, news and  lifestyle
network that serves more than 20 million monthly readers across the U.S.  and around the world.” Independent  contractors, called “Examiners,” create its
content. Prospective examiners must fill out an application including a
proposed topic and a short writing 
sample. Examiner.com evaluates the writing sample and conducts a
background  check.  The contract between AXS and its Examiners
provides that they’re independent contractors and that copyright infringement
is prohibited.
 
BWP argued that, because of the contractual relationship
between AXS and the Examiners who posted the infringing photos, the photos
didn’t qualify as having been stored “at the direction of a user.”  BWP argued that Examiners weren’t users, and
that, even if they were, AXS directed them to post the infringing content.  The court of appeals concluded instead that
the DMCA provision should be construed as a whole, rather than by isolating
particular words.  “User” was
straightforward and unambiguous: for DMCA purposes, a “‘user’ describes a
person  or entity who avails itself of
the service provider’s system or network to store  material.”  
 
BWP, without legal authority, argued that “user” should exclude
an ISP’s owners, employees, and  agents, or
that it should exclude anyone who entered 
into a contract and received compensation from an ISP.  BWP contended that, otherwise, every ISP
would be protected from liability. The court of appeals disagreed.  Safe harbor protection was conditioned on
various factors, including user-directed storage, lack of actual or red flag
knowledge, and expeditiou action to remove or disable access to the  infringing material.
 
BWP further argued that Examiners were agents of AXS, not
“users.” There was no evidence supporting the agency argument, which was “contrary
to the language of the contract, our interpretation of the  term ‘user,’ and agency principles generally.”  A “user “is 
anyone who uses a website — no class of individuals is inherently
excluded.”  The contract made Examiners
independent contractors, and nothing in CCNV
v. Reid counseled to the contrary; even if, against the evidence, Examiners
had apparent authority to act for AXS, that didn’t make them employees—even if
employees couldn’t also be “users” under §512.
 
Nor was the infringing material stored at the direction of
AXS.  Key to the question of who directed
the storage of the material was control. 
“[I]f the infringing content has merely gone through a screening or
automated process, the ISP will generally benefit from the safe  harbor’s protection.”  BWP argued that AXS directed Examiners to
post the infringing content by instructing them on the general topics to cover
and suggesting that Examiners include slide shows or pictures to accompany
articles. 
 
BWP, however, fails to explain how
this evidence crosses the chasm between 
encouraging the Examiners to post pictures with articles and
encouraging  Examiners to post infringing
content. Not only did AXS make clear copyright 
infringement was prohibited, it also provided Examiners with
licensed  photographs to accompany their
articles. No reasonable trier of fact could find  that the infringement was at the direction of
AXS.
 
Finally,  AXS did not
have actual or circumstantial knowledge of the 
copyright infringement.  Mere
knowledge that celebrity photos are typically protected by copyright was
insufficient. AXS encouraged the use of photos, but also provided Examiners
access to a photo bank of licensed images. 
“Prior  cases also clearly
establish that ‘merely hosting a category of copyrightable  content, such as music videos, with the
general knowledge that one’s services could be used to share infringing
material, is insufficient to meet the actual 
knowledge requirement under § 512(c)(1)(A)(i).’”
 
Agency principles couldn’t be used to impute Examiners’
knowledge to AXS; BWP didn’t raise this argument until the appeal.

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Two right of publicity possibilities in the news

Posted on April 25, 2016 by rtushnet
Corvette: Baby, that was much too fast. 1958-2016

How well would this ad fare if challenged under Jordan v. Jewel? It does inherently promote the Corvette brand, it seems to me.

Mexican food so authentic Donald Trump would build a wall around it

What principle would a court have to create to exempt this ad from Trump’s right of publicity?

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Cal. court sensibly rejects Fourth Circuit’s GNC rule on consumer protection claims

Posted on April 22, 2016 by rtushnet
Mullins v. Premier Nutrition Corp., 2016 WL 1534784, No. 13-cv-01271
(N.D. Cal. Apr. 15, 2016)


This case revisits an issue with which courts have struggled: when consumer
plaintiffs plead that a product advertised as clinically proven isn’t, is that
a mere “lack of substantiation” claim unavailable to private parties?  I think the answer is no—plaintiffs are
pleading that they can show that a specific claim made by the defendant is
false—and so does the court here.  Along
the way, the court also deals with the hot mess that is the Fourth Circuit’s In re GNC holding, drawing its teeth in
a way that should benefit future California plaintiffs, at least.

 

Plaintiff Kathie Sonner (a replacement plaintiff) argued
that Premier sold “what amounts to worthless snake oil”: Joint Juice, a liquid
dietary supplement containing glucosamine and chondroitin.  The ads claim that the product will “help keep
joints flexible and lubricated.” The bottles used the slogan, “A bottle a day
keeps your joints in play,” and also used the logo and contact information of
the Arthritis Foundation.

 

Example of happy joints ad

Joe Montana endorsement

Premier chose to target consumers who suffered from joint
pain and arthritis.  Its ads suggested
pain relief by showing exclamations of joy by people performing ordinary activities
that can be painful for people with joint pain. 
Premier bid on AdWords for, among others, “arthritis treatments,” “how
to stop arthritis,” “supplement for arthritis,” and “arthritis cures,” and
bought ad space in Arthritis Today, the Arthritis Foundation’s magazine. Premier
research and internal customer data generally shows that more than 90% of Joint
Juice users suffer joint pain and are interested in pain relief.

 

By contrast, Premier had Hal Poret conduct a survey for this
litigation, demonstrating why litigation surveys are not particularly
reliable.  200 respondents had bought
Joint Juice before, and 200 had purchased a product containing glucosamine, but
not Joint Juice. The survey began with an open-ended question: “[T]ell us why
you decided to purchase Joint Juice,” with spaces for up to twenty possible
responses and an “I don’t know” option.

 

Then Poret asked respondents to select from a list of
choices the “reasons or factors that influenced your decision to purchase Joint
Juice” (or the other product).  Choices
included: “I had generally heard about or read about the benefits of glucosamine”;
“Statements or information I read on the Joint Juice bottle or packaging”; “The
product is vegetarian” ‘ “Price/less expensive”; “Liked the taste”; “Endorsed
by Joe Montana”; “Orange packaging[.]” 
There were two false “control choices” (1) “Statements or information I
read/heard in promotions on a home shopping channel or website, such as HSN or
QVC”; and (2) “Endorsed on the Dr. Oz show or website.”  (Note that “source” statements like this are
incredibly unreliable, because people’s memory for source is much weaker than
their memory for content.  Getting these
“wrong” wouldn’t serve as a good control for beliefs about product
characteristics.)

 

You may notice that Poret didn’t ask whether consumers
believed that Joint Juice would relieve pain or other arthritis symptoms.  Instead, he asked respondents who referred to
the packaging to identify the specific statements that made an impression.  He concluded that consumers purchase Joint
Juice for myriad reasons, and only 5.5% chose to buy the product because of the
statements on the label. Poret concluded that “roughly 75% of respondents
answered that they were not influenced by statements on the package and roughly
75% answered that they were not influenced by statements in advertising.”
Instead, recommendations from friends and family members had primary
weight.  Which of course explains the
detailed marketing studies Premier commissioned about how to target its
marketing.

 

Sonner’s expert disagreed, concluding that, despite serious
design flaws and coding errors, the survey confirmed that most Joint Juice
users bought with the hope that it will provide joint health benefits or
relieve joint pain. As an example of a coding problem, Poret did not treat as
motivated by joint health concerns those who tried the product to see if “it
would work.” Sonner’s expert’s coding indicated that 91% of those surveyed
identified joint health and pain concerns influenced the decision to buy Joint
Juice.  The expert also noted that many
of the offered reasons didn’t mention joint pain or health, but instead were
reasons why the consumer might choose one glucosamine product over another, and
thus were poor options.

 

Sonner alleged that, in fact, glucosamine and chondroitin do
not and cannot palliate arthritic joints or improve the function of healthy
joints, and brought the usual California claims.  An invalid substantiation-based claim demands
that a defendant either “put up or shut up.”  By contrast, Sonner submitted evidence
directly supporting her claims of falsity and misleadingness, including a lot
of double-blinded studies, clinical protocols, and meta-analyses, as well as three
experts, including one who testified about a medical consensus against the joint
claims. This evidence raised triable issues of fact. Premier had evidence
suggesting that the research was equivocal, but Sonner offered “principled”
critiques of each submitted study favoring Premier.  “If a jury agrees with those criticisms, then
it may also logically decide that it is misleading to claim Joint Juice can
provide benefit in the face of substantial evidence to the contrary.”

 

Sonner alleged both falsity and misleadingness.  As to falsity, she argued that the glucosamine
and chondroitin in Joint Juice were not bioavailable in sufficiently high
quantities to produce any positive effect, meaning the express messages—that
Joint Juice would help keep joints flexible and lubricated—were false or
misleading. In addition, she argued that the packaging and ads falsely implied that
Joint Juice could relieve joint pain and stiffness in arthritic joints.  Premier argued that its ads made only general
health benefits and that the disclaimer on the back of the package would
disabuse users of any notion that Joint Juice treats or provides relief for arthritis.
Premier further challenged Sonner’s ability to prove the existence of any
implied message in the absence of a consumer survey.

 

To prevail, Sonner needed to show that “a significant
portion of the consuming public or of targeted consumers acting reasonably
under the circumstances, could be misled” by the statements on Joint Juice
packages.  While Lanham Act cases require
survey evidence for implied falsity claims, California courts have expressly
rejected the “view that a plaintiff must produce a consumer survey or similar extrinsic
evidence to prevail on a claim that the public is likely to be misled by a
representation.”  Sonner offered three
types of evidence: the ads themselves, her experiences, and Premier’s marketing
research surveys.

 

The court thought that this was sufficient to create a
factual issue:

 

The name alone implies that the
whole point to drinking the product is to receive joint health benefits. Sonner
testified that she believed Joint Juice, like ibuprofen, would provide pain
relief. While an isolated anecdotal incident is likely insufficient to show
that the reasonable consumer understands this implied pain message, Sonner’s
account is some evidence of Premier’s unspoken message.

 

Further, Premier’s own research showed that its customers “cited
joint pain as the principal reason they tried and continued to use Joint Juice,”
which could persuade a reasonable jury that Premier’s ads “subliminally
encouraged people to buy the product to relieve joint pain.”  Sonner didn’t need her own survey when
sufficient evidence could be found in Premier’s own files.

 

The disclaimer on the back wasn’t sufficient to prevent
misleadingness.  The Gerber case rejected the assertion that “reasonable consumers
should be expected to look beyond misleading representations on the front of
the box to discover the truth from the ingredient list in small print on the
side of the box.”  In the 9th
Circuit, “courts cannot hold as a matter of law that disclaimers vitiate claims
for misleading representations.”  The
jury should review the package as a whole, especially given the evidence in the
record that the disclaimer didn’t change consumers’ views about the use of
Joint Juice for treating joint pain and stiffness.

 

Premier argued that all Sonner had was a battle of the
experts, and therefore she had to lose because UCL and CLRA claims fail if the
plaintiffs do not aver “that all scientists
agree that glucosamine and chondroitin are ineffective at providing the
promised joint health benefits.” In re GNC Corp., 789 F.3d 505, 515 (4th Cir.
2015) (emphasis in original).  In re GNC reasoned that, even if “the
vast weight of competent clinical evidence” cuts against a purported health
claim, the UCL claim for literal falsity failed as long as “a reasonable
difference of scientific opinion exists.”

 

The court had noted above that California doesn’t use the
explicit/implicit divide when it discussed surveys; starting with the GNC court’s error in understanding the
Lanham Act standard (explicit means stated outright; it’s not a standard
looking to the quantum of evidence proving the falsity), that decision is rotten
all the way down.  Speaking with great
restraint, the court here commented that “[t]here is cause to believe the
Fourth Circuit’s characterization of California law is flawed.”  In re
GNC didn’t analyze California law to predict what the California Supreme
Court would do, “as district courts in this circuit must.”  Instead, it used Lanham Act precedent, which
doesn’t apply. 

 

Moreover, the court continued, In re GNC only addressed whether a plaintiff could allege literal
falsity, not whether it could use evidence of a solid scientific consensus to
prove that a claim was misleading.  Given the intentional breadth of California
consumer protection law, and its recognition that even technically accurate
claims may mislead or deceive, “a manufacturer may not hold out the opinion of
a minority of scientists as if it reflected broad scientific consensus.” Thus, “even
if a reasonable expert testifies that the scientific literature is equivocal, a
plaintiff may prevail under the UCL and CLRA if she proves that the expert is
nevertheless incorrect.”

 

Sonner could therefore win in two ways.  She could prove literal falsity “if a
reasonable jury concludes all reasonable scientists agree that drinking
glucosamine and chondroitin do not relieve joint pain or stiffness associated
with [arthritis] and that Joint Juice does not provide any general joint health
benefits.”  She could do this by showing
that Premier’s expert’s opinions were unreasonable.  (It is silly to call this literal falsity and
not the next path also literal falsity, but at least the court gets everything
else right.)  Or, she could show that “the
vast weight of the competent evidence establishes that those health claims are
false.” This second theory would allow her to “concede the existence of
scientific studies substantiating a representation, but argue that those
studies are poorly designed, incredible, or represent the view of a minority of
scientists.”

 

There was a genuine dispute both about whether Premier’s
expert’s opinions were reasonable in light of the scientific evidence and
whether “the totality of the evidence” supports the conclusion that Joint Juice
does not relieve joint pain or stiffness in arthritic joints or improve joint
health, in general.  (Note the move,
correct in my opinion, from “vast weight” to “totality of the evidence”—the standard
is usually proof by a preponderance of the evidence, and there is no reason to
depart from that here.)

 

Furthermore, even if a jury found that Premier didn’t make
any implied claims directed at arthritis sufferers, there was sufficient
evidence that the amount of glucosamine and chondroitin in Joint Juice could
have no positive impact on general joint health.

 

Premier argued that, because Joint Juice is a supplement,
not a drug, studies proving that it didn’t work were irrelevant, because the
FDCA allows supplements to be sold even without randomized, placebo-controlled,
double-blind clinical trials supporting their efficacy.  Um, no. 
“That the FTC permits supplement manufacturers to make claims
unsupported by randomized clinical trials is not a reason to reject the use of
such studies to prove supplement claims are false or misleading.”

 

Remedy: The UCL allows restitution, while the CLRA allows restitution,
actual damages, punitive damages, and “[a]ny other relief that the court deems
proper.”  Sonner sought a full refund,
and the court agreed that this could be appropriate if the product was shown to
have no value.  In other cases rejecting the full refund
model, consumers received a product with other benefits aside from the
allegedly false claim.  But Sonner
claimed that she and other Joint Juice consumers wouldn’t have bought it absent
its joint-related claims—that it was nothing more than a liquid pill.  “Unlike juice, which consumers purchase for
hydration, or cigarettes, which smokers purchase for flavor and to assuage
nicotine cravings, Joint Juice is for all intents and purposes a liquid pill.”  Premier even stated that the only reason to
buy Joint Joice was “the medicinal value of the glucosamine and chondroitin it
contains.”  Given the evidence of why
consumers bought Joint Juice, there was at least enough evidence to survive
summary judgment as to full-value restitution.

 

The court did refuse to exclude Hal Poret’s testimony and
survey. Poret never asked consumers whether they purchased Joint Juice because
of its purported joint health benefits or how they understood the messages on
Joint Juice labels and ads.  “[A]s long
as [the survey] is conducted according to accepted principles and is relevant,”
the “technical inadequacies in a survey, including the format of the questions
or the manner in which it was taken, bear on the weight of the evidence, not
its admissibility.”  The court found that
the survey questions “cre[pt]  close to
the general rule’s outer boundaries,” but didn’t cross them.  Sonner could address the coding and the
questions on cross-examination. Indeed, her expert’s recoding offered opinions
favorable to Sonner’s claims based on these data—“a fact that undermines her
contention that the survey is unreliable, irrelevant, or unduly prejudicial.”

 

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