FESC: Choosing between approaches to 1A interpretation

Posted on May 1, 2016 by rtushnet
Andrew Tutt   Choosing Between
Approaches to First Amendment Interpretation 
Discussant: Vince Blasi
 
Fundamental questions of the options in interpretive
methodology and criteria for choosing among them.  Main takeaway: values, assessing and
implementing them, have no place in interpretation of the 1A.  Many contributions to 1A literature argue in
exactly those terms: my sense of the 1A’s values is better.  That’s the wrong path, because of deeper
notions of what constitute interpretation. 
Values tend to be injected in 1A theory in different forms: (1) making
claims about the structure of the constitution that support one or another
contentions; (2) asserting that the constitution makes certain moral
commitments which bear on interpretation; (3) making arguments from precedent;
(4) making arguments about intended or widespread public meaning of the clause
at the time of enactment, substituting for semantic meaning of text. These are
all ways to smuggle values in and all problematic. 
 
Ultimately it comes down to the authority of the gov’t to
make someone obey law: why is it legitimate to make a dissenter do so?  Two competing conceptions of legitimacy: (1)
pedigree—a particular claim to obedience can be based on the history of the
constitutional provision, especially the fact of ratification. (2) Merits—legitimacy
derives from the claim that this constitution is good.  Explores relationship b/t those competing
sources—he concludes that the proper source is (1) not (2)—and theories of
const’l interpretation, originalism, living constitutionalism, and
pragmatism.  It gets complicated in that
various theories can plausibly be defended as based on either (1) or (2).  Then bring them into conversation w/1A
theories.
 
Q: what is the constitution? 
It’s legitimacy that makes the constitution law and entitles the
application of the coercive power of the state to citizens who wish to
resist.  You could imagine other answers,
such as: does it serve the objectives that led the community to opt for (a) the
whole project of const’l limitations, (b) a written constitution, (c) a written
constitution with limited powers, or (d) a written constitution with certain
rights.
 
Look at practice/pragmatism: what judges invested with this
power do in terms of what authorizes their authority.  His claim is that even if you buy into the
pragmatist premises, if you look at American judges, they don’t really feel
bound by what other judges do; they go deeper and are actually guided by their
judgments about legitimacy.  Can’t
shortcircuit his claims by pragmatic moves.
 
Pedigree as source of legitimacy.  There are fundamental challenges to the
controlling claim of pedigree; you’re asking for obedience from people here,
now, invoking a ratification phenomenon more than 200 years old: dead (white)
hand. That’s answered sufficiently by the ongoing potential for amendment
(Amar) or constitutional moments that allow ratification by more than formal
approval of a text (Ackerman). Or Balkin’s potential for redemption/correction
w/in the system itself.
 
Say more about the idea of a “rule of recognition” grounded
in sociological acceptance—we wouldn’t accept a violation of the 35 year old
minimum for President even if people overwhelmingly wanted to ignore that.  Pedigree theory requires the interpreter to
decide what it was that was written & enacted. It’s not the writtenness,
but the fact of ratification, that matters. So we need to know what they
ratified. Admirably open in canvassing what they might have done: a vision that
the Framers had; faint-hearted originalism; original expected applications.
 
Blasi detects that in his choice of historical account of
the fact of ratification, he’s influenced by his own values in terms of
confining judicial discretion as much as possible/worrying about runaway
interpretation. Tries to link that w/legitimacy, but while most parts of the
paper spell out the alternatives, when addressing “what was ratified” the paper
is a little conclusory and seems value-driven, inconsistent w/effort to expunge
values.  Does note that many originalists
today really push judicial restraint, though no one ratified restraint.  Madison’s Virginia Report, 8 years after
ratification, offers a great argument about why seditious libel violates the
1A, but he was only the drafter and not the ratifier of the 1A; that vision was
only spelled out 8 years later, and who knows what he thought in 1791.  That’s what leads to the paper’s conclusion:
modern 1A law is problematic in terms of the key concept.
 
Pretty good argument for saying that the ratifiers ratified
certain structures, priorities, relationships. 
Even the semantic meaning that he privileges doesn’t simply address
specific words or phrases; there are larger linguistic units of reference in
the text itself. Madison’s constitutional theory: worried a lot about
legitimacy, but his view of interpretation was: text-bound attention to
structures and functions.  Actual meaning:
the paper decides the right is the right of freely examining public measures
& characters, not from the text but implicit in the structure. Assumption:
gov’t powers are limited, but sometimes there will be violations of those
limits—how will we remedy those violations? By calling public att’n to them.  That’s the preservative right in the
constitution.  Is that values, functions,
structures, what?  It’s not either values
or narrow word-bound clause-bound “here’s what they ratified.” Madison at least
thought that they ratified something rather different, though he did care very
much about what they ratified.  There’s a
kind of middle possibility worth considering.
 
And then I had to leave to make my train, but that was quite
a conference!

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FESC: Regulation by Internet Intermediaries

Posted on May 1, 2016 by rtushnet
Regulation by Internet Intermediaries
Moderator: Jack Balkin
Emma Llanso & Rita Cant     “Internet
Referral Units”: Co-Option of Private Content Moderation Systems for Extralegal
Government Censorship
Kate Klonick, discussant: Most UGC platforms have content
standards to which users agree. 
Impermissible nudity, hate speech, violent content, harassment, etc. can
be taken down, and this is protected by §230. 
Platforms have become good at moderation of TOS-violating content; they’re
much better than the gov’t, and also unlike the gov’t they’re allowed to do
it.  UK created an internet referral unit
in 2010, dedicated to flagging “terrorist” content on social media sites.  IRUs are becoming increasingly popular for
countering terrorist propaganda in Europe; US is starting to talk about that.
Blur public/private lines.
 
Authors argue that flagging, and subsequent takedown,
constitutes gov’t action—takedown is directly causally related to the flagging.
They also argue that IRUs raise the specter of state action: allowing private
action to be held to const’l standards where state affirmatively encourages
actor; §1983 suits would be dismissed b/c of §230 immunity. 
 
UK definition of extremism: vocal disrespect for key values,
calls for death of armed forces—would be overbroad/unconst’l in the US. Also
lack of procedural safeguards.  Internet
cos. generally don’t provide adequate notice/right to appeal.
 
Klonick suggests that Google, FB, and Twitter aren’t very
vulnerable to gov’t pressures and easily able to push back.  IRUs couldn’t do their job w/o social media—the
platforms then have a lot of leverage in terms of denying gov’t access to
ToS.  [Though the platforms also trade
off interests and may sacrifice some for leverage on others, like stopping DMCA
reform making them more liable.] Also, content moderation at the big three at
least offers an extraordinary amount of notice—what more would you want, other
than notice of ToS, notice of takedown and reason, notice of existence of
appeals process, all of which are provided? 
A lot of appeals processes may not be available per platform, but many
times there are.
 
Transparency reports are a good idea: gov’t requests by
month, which would let the public know about the relationship b/t the platform
and the gov’t.
 
Llanso: we’ve seen some high
level examples of Google, FB, Yahoo taking affirmative stances against
overreach.  Concerned that there’s no
guarantee they’ll always be able to take that kind of stand, or that
other/smaller intermediaries will be able to make that stand.  Pressure on credit card companies as an
example: Backpage v. Sheriff Dart.
 
Molly Land     Human
Rights and Private Governance of the Internet
Rita Cant, presenter: Reminder that 1A isn’t universally
applicable as sometimes we think in the US. 
Even immediate removal of defamatory content upon notification of same in
the European Union can lead to liability. 
Institutional views drive courts’ understanding of roles of
intermediaries. European bodies aren’t dismissing the concept of intermediary
protection for speech, but holding them liable when they have capacity to
police users.  If they fail to do so,
liability attaches.  View that big hosts
have the power to remove content and thus the responsibility is just wrong,
according to Land.  Rather than liability
based on size, human rights law prescribes a different principle: an
intermediary that participates in creation of culpable speech is different than
one that merely serves as a conduit. 
Regulating them as colluders/contributors to human rights violation is
not regulating them as intermediaries. This prevents over-takedowns.
 
But is a platform’s takedown of legitimate speech a human
rights violation the way that facilitating murder or illegal mining is?  Those seem very different.  Wrongful takedown of expression: is it even a
violation of human rights at all if it’s according to a company’s standards?  Co-regulation for allowing gov’t to
affirmatively protect those rights may be quite difficult—generally, gov’t
actively enforcing human rights online has undermined those rights.
 
Land: Would like a bright line rule, but jurisdictions vary;
would not be seen as legitimate in many jurisdictions giving more weight to
dignity, protection against discrimination, etc.  Easily convinced that co-regulation can be
worst of both worlds, with lack of transparency.
 
Kate Klonick  From
Constitution to Click-Worker-The Creation, Policy, and Process of Online
Content Moderation
Presenter: Molly Land: Deal with actual empirical evidence
about how this works. Interviews executives and click-workers enforcing the
policies: FB, Twitter, Google.  May have
just 2 seconds to look at each piece of content.  Transborder nature affects these policies
too.
 
For future: closer connection between normative questions
and empirical research.  Right now there
are a lot of possible normative questions you could ask.  Maybe empirical research helps us understand
the nature of the problem. Who’s doing this, what the content problems are,
etc.  If these policies are in response
to user pressure v. gov’t pressure/avoiding regulation, we might have different
reactions.  Promoting v. defeating user
preferences may differ from regulatory perspective.  Also, why these companies and not
others? 
 
Klonick: FB, Twitter, Google are continuously operating for
a while. Primarily UGC companies, specifically YouTube.  History matters: created mostly by small group
of lawyers who were committed to the 1A and wanted to take down as little as
they could while retaining an engaged userbase—some of the same lawyers moved
from company to company.
 
Balkin: intermediary liability rules are state action
rules.  The only Q is whether the free
speech principle you use prohibits what’s being done.  If we tried an IRU in the US, though the ISP
is permitted to have a TOS, gov’t is probably not able to say “please enforce
your TOS with this class of content.” 
Line could be different—could be Grokster-style inducement for
everything, not just IP.  Leaves a wide
swatch open.  Internet company could
decide to be a passive conduit for something, but also curation and hosting.
Don’t want to tell a company what kind of business model it can adopt.  Drawing a line like Grokster offers more
opportunities for innovation.
 
Whenever the gov’t shapes the innovation space and
permissible rules about when a private party we rely on for speech will be held
liable, the gov’t is always already involved in that decision. The human rights
laws are always invoked; the only question is the substantive one: what do
those laws require?
 
Q: Gov’ts across the globe are resorting to self-help w/data
localization and content regulation, often affirmatively objecting to US
approach. Art. 20 of one treaty outlaws hate speech: advocacy of hatred that
incites hostility, discrimination, or violence. 
Microsoft’s response: commit to obey local laws where we do business,
informed by int’l law.  We have to
distinguish social media from search engines. 
Mapping all info on Web is critical part of research/advancing
knowledge; rely on notice & takedown rather than looking for affirmatively
offensive content. Nobody elected us to make these decisions. We couldn’t hire
the right people across the globe to make a nuanced decision.  So we use notice & takedown; we publish
our standards.
 
Land: if we just went w/users, it’d be all porn, so it makes
sense for companies to have freedom to shape their own communities. Signal to
gov’t about where they are going too far.
 
Balkin: consider Southern gov’ts cooperating indirectly or
directly w/private entities to enforce private segregation—also intermediary
issues.
 
Abrams: terrible terrorist attack; gov’t learns that the
perpetrator just watched a particularly explosive and incendiary work touting
jihad.  President calls in Microsoft
& Google etc. and provides list of things they ought to do to screen out
bad content, though you don’t have to do it. 
For the safety of the country you should do it; and the President tells
the public that she has called for this action on their part.  Is that a problem?  [Note that this already happens in less
fraught circumstances—consider the gov’t’s organization of the best practices
in DMCA notices.] 
 
Q: when the NYT decides not to publish an article b/c the
gov’t pleads with it to hold off on national security grounds, is that state
action?
 
Balkin: that’s the Backpage
case. 
 
Llanso: reminds her of Innocence of Muslims.  Yes, that’s improper for the gov’t to do,
even in emergency circumstances. There are options for more formal procedures.  Telling the country about the request starts
feeling like coercion.
 
Klonick: Innocence of Muslims was a big deal for her
interviewees—often called the cause of the Benghazi attacks; people took it as incitement (even if that wasn’t
really the cause). Even w/pressure from White House, they uniformly decided not
to take it down.
 
Balkin: the fact that people violate the constitution isn’t
an argument, it’s just a fact.
 
Lyrissa Lidsky: where does gov’t speech come into this and
the gov’t’s right to express its opinion? 
If Obama had an op-ed saying ISPs shouldn’t publish Innocence of
Muslims, is that gov’t speech and ok or not ok?
 
Llanso: fact-intensive: expression of opinion versus
suggestion of consequences/coercion.  If
they start talking about modifying §230 if website owners aren’t more
responsible, that might be coercive. 
[But if they talk about amending §230 at some time there hasn’t just
been an attack, that’s ok?]
 
Klonick: YouTube took down anti-Thai monarchy videos; claim
is harm to the Thai people. Exporting 1A standards in many cases, though.
 
Q: 4.5% of world population is covered by the 1A.
 
Klonick: the click workers are from countries that don’t
have an easy context for the n-word. So they have to look at a report by
looking at the person’s whole page.
 
Llanso: when content is illegal, transparency about it and
where the locations are can be difficult, such as child porn, or avoiding
providing personal data.
 
RT: Not a hypo about gov’t pressure: 512 hearings, Katherine
Oyama of Google gets directly told: do more for copyright owners or we’ll have
to change this.  Did that violate the
First Amendment?
 
Balkin: Not a threat if they have a right to do it. Congress
has the right to change the rules of liability, unless the reason is viewpoint
based.  That’s the fact question to be
resolved: whether the reason is viewpoint based. 
 
Q: don’t assume private corporations are benign compared to
the gov’t.
 
Klonick: real name policies are designed to make sure people
know who’s attacking them. This is a way to control libel etc.  But they differ platform to platform.
 
Llanso: that’s a controversial policy; it also generates
worse outcomes for people with traditional Native American names whose names
aren’t recognized as “real,” or people at risk of stalking, harassment, or
abuse.  Still sees gov’t effort to
restrict publicly available speech as more dangerous than indiv. co. decisions,
which can have big impacts but not as big.

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FESC: Sex offenders and anonymous speech

Posted on May 1, 2016 by rtushnet
David Post & Annemarie Bridy         Sex Offenders, Anonymous Internet Speech, and the
Constitution 
Discussant: Jonathan Hafetz: Anonymity doctrine v. federal/state
sex offender notification acts, which impose identity disclosure requirements
on sex offenders. Over 800,000 people, a quarter of whom were juveniles at the
time of conviction. Have to register w/local law enforcement and reveal all
internet identifiers. Failure to disclose is a felony.
 
Current challenges: it’s not clear what level of scrutiny is
required. What narrow tailoring means is also highlighted by these cases. Where
the gov’t singles out a class of persons to be deprived of a 1A right, the gov’t
should have to show more than some statistical likelihood that anonymity will
hamper future investigations.  Also not
clear about how many safeguards are needed against disclosure to the public.  How concerned should we be about spillover
from these restrictions to other types of speech?
 
Bridy: One possibility: 
If we’re just disclosing info to the police, no harm no foul. Interested
in structural surveillance; potential for this caselaw bleeding out into an
attitude which normalizes structural surveillance. We might behave better if
the police are watching us—keep these folks from reoffending. They’re so
marginalized that people have little sympathy; doctrine will get warped if
applied to a group considered distasteful.
 
Post: prisoners/foreign nationals have lesser/no 1A rights.
If the courts just came out and said these were a lesser class of people, that
might be terrible for those people and doctrinally wrong, but at least it would
cabin the damage for the rest of us. The courts do not say this.  They say that these people have served their
time and many are no longer on probation/parole and have same 1A rights as the
rest of us. That makes the doctrine more worrisome b/c this is the same 1A I
have to rely on if I have to disclose my internet identifiers.  Courts that have looked at these challenges
have said in one way or another: yes you have a right to speak anonymously, but
that doesn’t mean you have a right to speak anonymously as to the police.  That’s stunning!  Courts worry about publicizing the info, as
if the right is only anonymity as to the community and not to the gov’t.  If that becomes 1A doctrine, there’s not much
less of the right to be anonymous.
 
Bridy: courts that worry about disclosure say they can
construe it narrowly: police can only use this info for a specific
investigation. Who knows whether that construction makes its way out to the law
enforcement officers themselves.
 
Post: crushing set of disabilities across the board: due
process, ex post facto, cruel & unusual punishment, etc. There is a social
justice aspect to this, and we want people to see that.  Can your right to speak anonymously be taken
away because you’re a member of a group that, we assume, is statistically more
likely to commit a crime in the future?
 
Q: Qualified privilege, not right: courts are more willing
to engage in balancing tests with anonymity than with other clearer
rights.  Registration requirements: a
prior restraint!  Distinction b/t
disclosure to gov’t and disclosure to public is ridiculous! Where the confusion
may be happening is over the retaliation language in lots of cases—the chill
happens even without punishment.  Scalia
wanted retaliation to be a requirement, but that’s rejected by Macintyre: you don’t have to show that
persecution will result, you just have to show you were compelled to disclose
your name.  Doe v. Reed public records law case does say you need to show some
initial risk of retaliation to win a facial challenge; that’s limited to the
electoral context though.
 
Bridy: Empirical work on recidivism/collateral effects; some
literature indicates that for juvenile sex offenders required to register, they
had a greater rate of rearrest and nonprosecution for things.  Authors think there’s a surveillance effect:
police look more closely at them and more likely to rearrest on thinner
evidence.  So that’s some evidence of
retaliation.
 
Q: pamphleting registration cases, anti-mask law cases—state
doesn’t get to do that even if the speaker hasn’t shown risk of
retaliation/harassment outside the electoral context.
 
Post: cases are split in terms of upholding—but even the
ones that struck them down indicated that public v. police disclosure line is
important for that.
 
Lyrissa Lidsky: fighting a myth that these offenders are
uniquely likely to reoffend.
 
Post: there seems to be a small category of offenders
w/significant risk of recidivism.  Then it
goes to the overinclusiveness of it. 
Likely harm as putting the gov’t to its proof; courts just say the risk of recidivism is very high.
The SCt has said so, based on an SG brief that cited a Psychology Today article that cited no actual research.  Now other courts just cite that SCt case.
 
Bridy: often the harm is articulated as solicitation of
minors online; tons of those required to register weren’t convicted of crimes
relating to minors, and many of those who were weren’t convicted of crimes
relating to  minors w/any online
component.  And identifiers are required
to be registered for almost anything, including ecommerce sites where you can
ask a seller a question.
 
Q: doctrine seems solidly on your side assuming you can
answer the question about harm.  Devil’s
advocate: if people revisit Watchtower Bible, which said no registration w/the
town can be required, should we adhere to that in all cases? Arguments about
traceable anonymity: you don’t want someone who might do harm to block
surveillance—CALEA.  One thing that might
be going on is that courts might say: it’s ok if you get information that
allows tracing should tracing be required, and put it in a lockbox until it’s
needed. Maybe courts are convincing themselves that such a lockbox exists or
that what’s in place in police departments is sufficient to protect the info.
Even if the risk of future harm is low enough, it’s safe enough that most of us
will feel fine surfing the web—if you’ve got nothing to hide, you’ve got
nothing to fear.
 
Q: indeed, most forms of anonymity online are very
traceable.
 
RT: What’s the law if any about public employees required to
disclose as condition of employment? What’s the interaction w/national security
law where there’s basically nothing stopping the gov’t from surveilling right
now, it turns out?  (I’m in the middle of
reading Charlie Savage’s Power Wars.)
Good-behavior rationale as concession of chilling effect?
 
Post: subject to criminal penalties if you don’t disclose =
unique versus the rest of us. Most rearrests of offenders are for failure to
disclose.  In terms of deterrence: the
deterrence is supposed to be of conduct. [But it has to be deterrence of doing
things like ever interacting with a minor, right? The idea of the chilling
effect is that people steer far wider of the prohibited zone.  But perhaps the thought is that nothing is
lost if the sex offender can’t interact on social websites where minors might
be.]
 
Q: surveillance in minority neighborhoods: more surveillance
leads to more police encounters leads to more requirements to report leads to more
failures to report leads to more “criminality.” Which reinforces the legitimacy
of stripping away rights from that population. 
Locate your story against a backdrop of what institutionalized
surveillance does in terms of self-fulfilling prophecies.
 
Bridy: also connects to questions about uses of big data.
 
Abrams: there’s no general right of anonymity.  Libel: you can cut through anonymity.  You should deal with that more in the
paper.  Separate class treatment: aren’t
you conceding, by not objecting to the whole registration requirement absent
the internet disclosures, that they are special classes? That is, you’re not
contesting that they have to register address, license plate, etc.?
 
Post: courts at least pay lip service to the idea that they
aren’t in a special category for 1A purposes, but then treating sex offenders
as if they are in fact a special category.

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FESC: The Supreme Court of Sign Review: Reed and Its Aftermath

Posted on May 1, 2016 by rtushnet
Urja Mittal      The
Supreme Board of Sign Review: Reed and its Aftermath           
Discussant: Enrique Armijo
 
Armijo says “reaffirmed” and Mittal says “redefined” 1A
doctrine.  Facial question of whether the
gov’t regulation is content-based; purpose has no role in that inquiry.  Once it’s content based, strict scrutiny is
applied.  Fewer laws will survive if they
incidentally refer to speech.  What has
changed?  How did we get here?
 
Central Park: Ward v. Rock Against Racism: time place and
manner; content-neutral and thus ok. 
Kennedy says: principal inquiry in content neutrality generally,
including TPM cases, is whether gov’t adopted regulation b/c of disagreement
w/the message conveyed. Purpose is controlling. This is dicta as to speech
cases generally but it explodes in the lower courts.  That is no longer good law.  Purpose is only one way towards strict
scrutiny; in the past, the result of a purpose inquiry could also point towards
intermediate scrutiny.
 
Mittal argues that this sacrifices nuance for rigidity.  Panhandling case in 7th
Circuit.  Robocalls w/content based
exemptions = now face strict scrutiny. Traditional deference to legislature in
making some reference to content is gone even when we have no reason to
distrust the motive.  Courts have been
trying to figure out ways to concludes the Court didn’t mean what it said.  Workarounds: secondary effects doctrine
(technical data about weaponry—that regulation seems clearly content based).  Confusion about sign cases: some treated as
commercial speech cases, some not.
 
Responses: Some of our reaction to these cases could be
deemed 1A Lochnerism derangement syndrome: every 1A case is viewed as
weaponized to destroy the administrative state. 
Reed doesn’t necessarily
trigger that argument, not as much as Mittal argues.  The Ward
language was a problem; it confused content and viewpoint discrimination, which
is now a much clearer distinction than it was prior to Reed.  Ward is just a TPM case, and that’s a good thing.  There is also a real, unexamined problem
w/r/t focusing so much on gov’t purpose when deciding when a law is
constitutional, a problem recognized in other areas of const’l law. Purpose can
change or be obscured.  Runs the risk of
focusing on why the law was enacted, which does nothing to bind a future enforcer
from applying the law in a content discriminatory way.
 
Workarounds, in Mittal’s argument, are just law.  There are doctrinal interactions all the
time: parties debate whether this is a commercial speech case or not.  It’s a big presumption to make to say that
commercial speech doctrine will remain; that’s a fair point, but for now it’s
ordinary to deal w/doctrinal interactions.
 
TPM showing: makes it harder for the gov’t to get to
intermediate scrutiny. If that’s harder, what’s the problem with that? 1A is
our best defense against stupid laws, which shouldn’t survive challenge. No law
that infringes even incidentally on expression should survive challenge if it’s
stupid.
 
Mittal: Akin to Lochnerism, but not really my concern
here.  Reed is a problem even without weaponization of the 1A.  Patterns in lower court: ignoring cases on
point forces courts to pigeonhole into other doctrines to avoid Reed, like secondary effects; this makes
law more incoherent and less predictable, and also messes w/secondary effects
doctrine moving forward.  Watering down
of strict scrutiny is also problematic. 
Intermediate scrutiny looks more like rational basis scrutiny, yes, but
then strict scrutiny will get watered down to look more like intermediate
scrutiny, and then the judiciary loses its line of defense against the really
dangerous laws.  Strict scrutiny not
fatal in fact—so is it just a knife and not a gun?  Loss of nuance means that nuance comes back
in less predictable/coherent ways. 
Voting rights, public order—if speech overrides all other interests that
a legislature deems important, that seems problematic.
 
Even if problematic to focus on purpose, you don’t escape
that w/Reed, which just makes it
easier to trigger strict scrutiny; you still have to look at purpose.
Compelling interest inquiry is still a purpose based inquiry, absent the
ability to balance interests. [Good point.] 
Does it disable the category of commercial speech?  The case law is not yet clear; contest
promotions case from California; you do see other courts applying Reed to cases otherwise subject to
commercial speech doctrine.
 
Q: Silver lining: strict scrutiny for abortion counseling
statutes/compelled disclosures?  [Good
luck w/that; abortion gets its own rules.]
 
Mittal: idea of cleaning up our doctrine: forces us to
figure out where we want 1A to tailor around certain things.  Abortion related speech has to be reevaluated
under the new across the board rule; as long as courts at least address Reed. 
Reed forces us to think about
the purpose of content based
discrimination doctrine. 
Equality/liberty interests: no content based exception foir labor
picketing, invokes equality as well as liberty. 
Maybe content discrimination doctrine is really about equality: Reed can ask us to focus on that, and
when equality should lead us to care about a distinction—IP laws might justify
special treat.
 
RT: Three things: (1) In re Tam: that is dependent on Reed and is a commercial speech case despite
claims to the contrary; to see that it is, look at why the majority says it’s
ok to uphold the bars against deceptive and confusing marks while striking down
disparagement: b/c Central Hudson says misleading commercial speech can be
banned entirely. After Alvarez, this
can’t be true unless TM registration is commercial speech.
 
(2) That line about the 1A being our “best defense against
stupid laws” is why Armijo’s position
gets called Lochnerism, and I’m going to quote it in the future.  [Rebuttal: in many cases the ballot box is
our best defense against stupid laws; this is serious Carolene Products footnote 4 territory though.]
 
(3) Playing w/this idea, not sure about it yet: 1A special
pleading?  Armijo says purpose is
recognized as problematic in other areas of the law, but is that actually true,
or is it just what academics wish were true w/r/t 14th Amendment race
cases?  Since Washington v. Davis came
out the way it did, isn’t it more true to say that Reed represents an exception to the general rule that disparate impact
on some right or class we care about isn’t of constitutional significance?  1A special pleading may well be ok—there’s a
lot of theories about why that might be so—but I want to put that on the table.
 
Floyd Abrams: Just cited Reed
in a brief for the cranberry industry: commercial compelled speech case, so he
thinks it extends that far.  Seems to him
that as a textual matter, the strongest argument that it applies to commercial
speech at all is its reliance on Sorrell
and its rejection of Breyer’s anguished concurring opinion about the very fact
that it’s relying on Sorrell.  Reed
reads as if it were meant to be a big
deal.  Robert Post’s reaction: are you
telling me that every grade I give is subject to strict scrutiny if I work for
a public institution?  [Post doesn’t work
for a public institution, but that’s a decent question for those who do and it’s
a comparison I make in my paper on TM.]
 
James Weinstein: Lochner
had a certain appeal, but he doesn’t think that’s the 1A’s job.  Mittal’s argument seems in part that Reed pushes 1A doctrine further into
incoherence.  “All-inclusive” approach:
anything that is speech in ordinary language sense is w/in coverage; there are
no limits to coverage except “conduct” in some natural sense of the word.  But what should strict scrutiny be reserved
for, otherwise?  Cranberry disclosures
and antiwar protests should perhaps not be treated similarly, but where is the line?  Watered down strict scrutiny seems to be the
only result.
 
A: Thinks that the line is political speech; balancing
should be different in commercial arenas. Cleaning up laws v. over-rigidity and
lack of nuance. Courts will try to retain narrow tailoring; not clear how Reed will be hemmed in—it’s different if
it’s the lower courts v. the SCt takes it up again.
 
Armijo: Is it possible to be suspicious of high-value
low-value speech distinctions and not be a 1A Lochnerist?  If so, how?
 
Weinstein: what leads to Lochnerism is the notion that
everything is covered and subject to strict scrutiny.
 
Q: If you don’t think coverage will reach everywhere (public
school grades), you don’t worry as much about Lochnerism.  On its face, Reed could and maybe should reach ©, public school grades,
commercial speech, etc.  Who should be
making that decision?  Is that right?
 
Abrams: It’s a good idea to wipe out stupid laws that
impinge on free speech, not just all stupid laws.
 
Armijo: the voting booth selfie laws were passed in response
to a problem from a long time ago.  If
that kind of lawmaking implicates speech, which it does, we should be more
suspicious/put the gov’t to its proof. That’s exactly what the dct judge
did.  There’s nothing in the record that
shows that it’s necessary.  It’s not a
stupid law, but is there any actual harm in the record that supports it?  [How old does that harm have to be?  Do we have to wait until someone testifies now
that their employer didn’t just tell them how to vote, but demanded proof?]
 
Mittal: the problem is that Reed strikes down both the ballot selfie law and §2(a) of the
Lanham Act.  Argument was that
anti-disparagement is inconsistent w/the commercial focus of the Lanham Act,
and that’s a place to start, but equality is also a value. Tiers of scrutiny
are ok.  Under TPM analysis, ballot
selfie case might still have fallen—available alternatives to preventing
employer coercion/corruption in the voting booth.
 
Abrams: why is it wrong when you deprive people of a benefit
based on a gov’t determination of offensiveness to strike it down?
 
RT: [then a lot of discussion about TM discussing the
difference b/t morality and anti-discrimination; it is an evidence-based
standard based on social meaning, not on gov’t approval.  And the difference b/t TM and ©–© does
support a number of content-based distinctions, 
like compulsory cable licenses.  If
the Washington team were denied any TM at all while it used the name, Abrams would
be right.  But it can use the name and other
marks it uses will be protected, including the logo and colors.  And we discussed the difference between
registering a TM and a public teacher giving a bad grade, especially if the
grade is based on the student’s use of a slur.]
 
Abrams: we’ll work that out. 
Children are different; education is different; teachers are different—historically.
 
RT: [If history is your guide, public policy-based limits on
TM including morality have a long history, even before registration. More
generally, if there is a reason to take an extensive gov’t program involving
millions of individualized determinations out of the Reed category, then TM registration is a decent candidate alongside
public education.]

Mittal: demonstrates how much Reed leaves undone/to be worked around.

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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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