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FAN 200 (First Amendment News) Kelli L. Sager & Selina MacLaren “First Amendment Rights of Access”

As a partner at Davis Wright Tremaine LLP, Kelli L. Sager regularly represents media outlets requesting access to proceedings in high-profile trials. Selina MacLaren recently joined Davis Wright’s media group after completing a fellowship with the Reporters Committee for Freedom of the Press.

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Kelli L. Sager

When one thinks about First Amendment rights, “speech” typically is the first thing that comes to mind.  But particularly in light of current events, the constitutional right of access to court proceedings and records that derive from the First Amendment are more important than ever.

Case in point:  On April 16, 2018, Davis Wright partner Robert Balin went to court for a hearing involving a search warrant executed against President Trump’s personal attorney, Michael Cohen. When it appeared that the judge was going to keep the identity of one of Mr. Cohen’s clients secret, Rob politely interrupted, and with the judge’s permission, argued on behalf of the public and press that the First Amendment right of access to court proceedings required the information to be publicly disclosed.  His arguments were not novel – media lawyers across the country regularly argue for these kinds of access rights – but unlike the average civil or criminal case, the public’s interest in this case is far more fundamental, given the individuals and allegations involved.  When the judge agreed that the information could not be kept secret – and Mr. Cohen’s client was revealed to be Fox News personality Sean Hannity, an ardent supporter of the President – there were audible gasps from the spectators.  As NPR’s Miles Parks put it, “[a]ll the air got sucked out of the room.”

The court proceedings involving Mr. Cohen are only one of many civil and criminal matters now playing out in courtrooms across the country, as President Trump’s former and current associates are criminally prosecuted (like Paul Manafort), subjected to government investigations (like Mr. Cohen), or sued civilly (like former RNC Chair Elliott Broidy).  Even the President himself is engaged in litigation, both as a defendant and as a plaintiff.

Imagine if all of these proceedings were taking place behind closed doors, where the public had no idea what was taking place until a result was announced (if it was announced at all).  History teaches us that such secrecy sows public mistrust and allows abuses of power, while openness promotes public understanding and acceptance of the adjudicative process. This unique – perhaps unprecedented – moment in history reinforces the critical importance of constitutional rights of access, and presents both a challenge and an opportunity for the media to vigorously advocate for these rights.

Selina MacLaren

The Constitutional Right of Access

The principle of open access to the courts predates American democracy. As the United States Supreme Court has noted, the concept of permitting public scrutiny of judicial proceedings has been recognized in the English justice system “from time immemorial” (Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 566-67 (1980) (quotations and citation omitted)), and traces back to the “days before the Norman Conquest,” when free men were required to attend court cases as an early form of jury duty.  (Id. at 565)

In that seminal case, the parties agreed to close the courtroom during a high-profile criminal trial, negating any concern about the criminal defendant’s Sixth Amendment right to a “public” trial.  But reporters argued that their constitutional rights also were at issue – under the First Amendment.  The Court agreed, finding that open access to criminal trials was historically permitted, and that such access served an important public purpose, namely, to instill confidence in the judicial process.  As Chief Justice Warren Burger summarized for the majority:  “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” (Id.at 572)

This recognized constitutional right of access has since been expanded from criminal trials to jury selection (Press-Enterprise Co. v. Superior Court (I), 464 U.S. 501 (1984)), preliminary hearings (Press-Enterprise Co. v. Superior Court (II), 478 U.S. 1 (1986)), and civil court proceedings (ACLU v. Holder, 673 F.3d 245, 252 (4th Cir. 2011) (collecting cases)), among other proceedings.  To determine whether the First Amendment right of access applies to a particular proceeding or document, courts apply a two-part test:  (1) Has the proceeding historically been open to the public? (2) Does public access play a significant positive role in the functioning of that proceeding? Where both questions are answered affirmatively, courts have found a constitutional access right, which may only be overcome if closure is necessary to serve a “compelling government interest,” and the limit on public access rights is “narrowly tailored to serve” that interest.  Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606-07 (1982).

Given changes in judicial proceedings over the last two centuries, this “experience and logic” test is not always a perfect fit, and much of the law has developed in lower state and federal courts, without direct rulings by the Supreme Court.  For example, in one seminal case, the California Supreme Court held that the constitutional rights of access under the First Amendment apply equally to civil court proceedings, even though the United States Supreme Court has not directly reached this issue.  NBC Subsidiary v. Superior Court20 Cal.4th 1178 (1999).  Courts remain divided on some significant issues, including the extent to which the constitutional right of access applies to court records (a question that may be presented to the Supreme Court in a petition for certiorari this Fall).

The importance of public access to court records and proceedings, however, can hardly be questioned.  At every level of the judiciary, important public rights are being adjudicated; not only in criminal trials, where an individual’s freedom is directly at stake, but in civil proceedings that determine property rights, personal autonomy, and civil liberties, among many other things.  The ability of the public to scrutinize the participants at every level of these proceedings, and evaluate the decisions that result, is critical to the functioning of our democracy.

Securing Access Today

In the current political climate, access to judicial proceedings and records is even more important.  Although it has long been recognized that access to court proceedings improves public understanding of the judiciary and “promote[s] trustworthiness of the judicial process” (Doe v. Public Citizen, 749 F.3d 246, 266 (4th Cir. 2014) (quotation and citation omitted)), there is an additional benefit to access to the current slate of high-profile court proceedings:  improved public understanding of and trust in the democratic process.

Paul Manafort (credit: CBS News)

The Special Counsel investigation and related proceedings involving the politically powerful already have resulted in dozens of indictments and guilty pleas.  Proceedings involving Mr. Cohen, and disclosures about his conduct on behalf of the President, have resulted in accusations about serious campaign-finance law violations. The trial of former Trump campaign chairman Paul Manafort, while not directly involving campaign finance law, allowed the public to learn about Trump campaign affiliates and raised additional questions, particularly in light of testimony from a former Trump campaign deputy manager detailing an extensive criminal conspiracy.

Mr. Manafort, who was found guilty of federal banking and tax crimes, is now facing separate charges in a new court, which will likely result in another newsworthy trial.  Other civil and criminal cases are pending, including lawsuits brought by alleged Trump mistress Stormy Daniels, a lawsuit brought by a former Playboy Playmate who allegedly had an affair with RNC Chair Broidy, and others.  In each of these cases, the public’s right of access to proceedings and records has been challenged by individuals seeking to keep the sordid allegations secret, and in each case, the public and press must vigorously fight for their constitutional rights of access, rather than allowing allegations of wrongdoing to be swept under the rug.

As one court noted, “the public’s right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch.” FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987).  The public’s and press’ constitutional access rights thus are at their apex where, as here, court proceedings involve the very processes by which the leader of the executive branch has been elected.

Advancing Access by Electronic Media

(credit: Thought Co.)

Even where there is intense public interest in a particular court case, logistical obstacles prevent most people from personally attending court proceedings or culling through voluminous court records. But technological advances allow us to overcome the physical limitations of the courtroom, and democratize access in previously unimaginable ways.  The availability of electronic records makes it possible to access them from anywhere in the world; and where proceedings are televised (or live-streamed), anyone interested in observing a particular proceeding can do so, even from distant locations and despite physical limitations on space in a particular courtroom.

Unfortunately, there is no public audio or video of the moment when Sean Hannity’s name was announced in a crowded courtroom, or footage showing key testimony during Paul Manafort’s criminal trial, because cameras generally are not permitted in federal courts.  Indeed, even the United States Supreme Court does not permit its proceedings to be televised, and although audio recordings of key arguments are available, there is often a significant delay.  The rationale for these restrictions on electronic coverage vary: concerns that lawyers or witnesses will grandstand, that prospective jurors will avoid service (or seek it out), and even the excuse offered by one current member of the Supreme Court – the concern that parties will hire photogenic lawyers, rather than experienced advocates.

These excuses have been refuted by empirical evidence, including widespread experience in states like Florida, where electronic access has been allowed for decades without causing the parade of horribles suggested by opponents of courtroom cameras.  Certainly empirical evidence does not support the claim that electronic coverage will threaten the defendant’s fair trial right:  Despite televised trial coverage, O.J. Simpson was acquitted of murdering his ex-wife and Ronald Goldman, even though a civil jury later found that he was responsible for the crimes.

On the other hand, the televising of proceedings like the criminal trials of O.J. Simpson [in which Ms. Sager represented the news media] and Oscar Pistorius, and, recently, the sentencing proceedings involving Larry Nassar, generated tremendous public interest. But even these high-profile cases pale in comparison to the importance of and public interest in the proceedings involving the current administration and associates of the President.

Providing complete public access to court proceedings, through electronic media, is long overdue.  Given the undeniable importance of the issues that will be decided in the many proceedings associated with the current administration, now is the moment.

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FAN 200 (First Amendment News) Ruthann Robson, “The Cyber Company Town”

Ruthann Robson is  a Professor of Law & University Distinguished Professor at CUNY School of Law. She is the author of Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013), as well as the books Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992), and the editor of the three volume set, International Library of Essays in Sexuality & Law(2011). She is a frequent commentator on constitutional and sexuality issues and the co-editor of the Constitutional Law Professors Blog.

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Professor Ruthann Robson

The constitutional chasm between public and private can quickly become a murky swamp when free speech claims arise.  Perhaps this lack of clarity is attributable to the First Amendment’s status as a political and societal concept as well as a legal one, or perhaps it is because the always problematical public-private divide has increasingly been eroded in our era of “public-private partnerships” and “privatization.”  When the free speech involved occurs on social media — which operates currently as our corporate-owned town square — it can seem like a quagmire, especially if the participants are government officials.

Before considering three contemporary examples, a look back at the landmark case of Marsh v. Alabama (1946) is instructive. Marsh, known as the “company town case,” involved Grace Marsh, arrested for trespassing on the Gulf Shipbuilding Corporation’s property, which was the “town” of Chickasaw, Alabama.  Marsh, a Jehovah’s Witness, had stood on the sidewalk near the post office offering literature; when asked to leave she declined. While the Court is somewhat unclear which First Amendment freedom is at issue — speech, press, or religion — the Court’s majority is definite that such an infringement would not be constitutional if committed by a state or municipality. The Court decides that the fact that the corporation owns title to the land is essentially a technicality which should not prevail over the reality that the company town functions like any other town.  This finding of sufficient state action to make the Constitution applicable is supported by the Court’s conclusion on the merits. Justice Black’s opinion for the Court states that “many people” in the United States live in “company-owned towns” and these people, just like others, “must make decisions which affect the welfare of community and nation,” and so must be informed.

In 2018, social media is accessed by more than 70% of the United States population and has largely replaced leaflets distributed on the corner as a source of information that will be used in making “decisions which affect the welfare of community and nation.” According to the Pew Research Center, the most popular sites include You Tube (73%) and Facebook (68%), as well as Instagram (35%), Pinterest (29%), Snapchat (27%), LinkedIn (25%), Twitter (24%), and What’s App (22%). In the United States Supreme Court’s unanimous decision last year in Packingham v. North Carolinathe Court found a state statute prohibiting registered sex offenders from accessing social networking sites violated the First Amendment.  Justice Anthony Kennedy writing for the Court stated  that “we now may be coming to the realization that the Cyber Age is a revolution of historic proportions,” but we do not yet appreciate the “full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”  Concurring, Justice Alito found it important to add that the entirety of the internet or even social media sites are “the 21st century equivalent of public streets and parks.”  In Packingham, the state action threshold was easily crossed: there was a state statute with criminal penalties.  The more vexing situations occur when these cyber- “streets and parks” are owned and operated by private companies.

Alex Jones (credit: Political Dig)

There is a  factional (and presidentially approved) argument that these companies practice “censorship” of “conservative” voices.  Recent controversies surrounding “conspiracy theorist” Alex Jones and his platform “InfoWars”are illustrative.  YouTube and Facebook removed Jones’ content and terminated his accounts, while Twitter penalized Jones by curtailing some of his “privileges.”  While the companies made decisions based on interpretations of their “terms of service,” arguments about whether or not the companies were justified often veered into constitutional doctrine, including whether falsehoods, hate speech, and incitements were protected.  When the First Amendment was specifically cited, this provoked a rejoinder of the state action doctrine based on the distinction between the public and private. This in turn was rebutted by the observation that Facebook, for example, is a “public company” evincing a confusion wrought by the state action doctrine (as well as the law of corporations). But even if one recognized that the First Amendment did not apply to the social media companies because they were private actors, there was an argument it should.

More sophisticated legal thinkers, including law students, would be able to frame arguments extending the Marshcompany-town holding.  Yet in Marsh, the application of the First Amendment served to protect Grace Marsh and arguably the community living in Chickasaw, while allowing well-funded conspiracy theorists to not only access but potentially overrun our cyber town squares might result in less “information” and “free speech” given our current First Amendment doctrines that presume a level playing field in the “marketplace of ideas.”

Closer and even more doctrinally difficult situations occur when a government official uses social media and the platform functions. Consider a local government official using the functions of Facebook, including the ability to remove comments to one’s own post and to block a person.  Last year, in Davison v. Loudon County Board of Supervisors, a United States District Judge in the Eastern District of Virginia found that these acts constituted sufficient state action and violated the First Amendment. The judge analyzed the elected official’s uses of the Facebook page, noted that she had government staff who assisted with the page, and also had a separate personal Facebook page.  Although the politician could “take” the page with her when she left office, the judge concluded she “used it as a tool of governance” and the page reflected her efforts to “swathe” it with “the trappings of her office.”  The judge found that this county board supervisor (although not the entire Board of Supervisors) was subject to First Amendment and had violated it.

Finally, there is the President and his notorious Twitter account and statements. The Department of Justice, representing the President, has appealed a final order finding that the state action requirement was satisfied and that the President did violate the First Amendment when blocking users from viewing or responding to his tweets. In her extensive opinion in Knight First Amendment Institute v. Trump, United States District Judge Naomi Reice Buchwald rejected the argument that blocking was not state action because the blocking functionality was afforded every user. She also rejected the argument that because the Twitter account was begun in 2009 it was not governmental now. Relying on stipulations of the parties, the judge reasoned that together with federal employee Daniel Scavino, the “White House Social Media Director,” “President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels.”  Having cleared the hurdle of state action, the judge found a First Amendment violation, importantly observing that the “audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.”

When government officials, whether the President or a local member of a county board, suppress dissident voices in the virtual public square, there is not only “viewpoint discrimination” under First Amendment doctrine, but also an attempt to manufacture consent so dangerous for democracy.  Their acts should clearly constitute state action and they should be held to the rigors of the First Amendment.  Less clear is whether the multi-billion-dollar companies that presently host our public squares should be subject to constitutional constraints in the same manner as the “company towns” of the last century, especially if the consequences of doing so afford us less free speech and make us less informed as we navigate our cyber sidewalks.

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FAN 200 (First Amendment News) Laura Handman & Lisa Zycherman, “Retaliatory RICO: A Corporate Assault on Speech”

Laura Handman and Lisa Zycherman are attorneys at the Washington, D.C. office of Davis Wright Tremaine (DWT).

Ms. Handman ia partner at DWT and is the co-chair of the firm’s appellate practice and divides her time between the New York and D.C. offices. For thirty-five years she has provided pre-publication counseling and litigation services from complaint through trial and appeal to U.S. and foreign broadcasters, film studios, and book, magazine, newspaper and Internet publishers and non-profits.

Ms. Zycherman is counsel at DWT.  She represents and counsels clients on a wide range of issues in First Amendment, media, and intellectual property law, including libel, copyright, trademark, right of publicity, privacy, and newsgathering matters. Lisa also advises newspaper, magazine, website, television, film, and book-publishing clients on pre-publication and pre-broadcast legal issues.

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Laura Handman

SLAPP suits – strategic lawsuits against public participation, a longtime part of the corporate playbook – are evolving.  The latest evolution involves the Racketeer Influenced and Corrupt Organizations Act, better known as RICO, the famed set of laws designed to take down crime groups like the Mafia.

When we talk about censorship, we often focus on government actors.  But increasingly serious threats to advocacy and free expression are also being brought by corporations.  SLAPP lawsuits are a tool used by corporations to silence critics and First Amendment-protected speech.  They are often filed not because the plaintiff thinks they can win, but to harass and bleed the defendant of funds, and hopefully make them think twice about public criticism in the future.

A string of recent cases raise the question whether a company that is being targeted by protests and public criticism can respond using RICO laws. Congress passed the RICO statute in 1970 to help with some of the difficulty the government traditionally had prosecuting large organized crime rings.  RICO was designed as a way to describe, legally, the whole criminal enterprise based on some of its illegal acts, prosecute the people who supported it, and take its assets.  In this manner, a RICO claim is really just an elaborate conspiracy claim – but one that provides for treble damages, attorneys’ fees, and, perhaps most tantalizing of all, the ability to brand the defendant a racketeer.

Lately, the statute has been weaponized to establish a cause of action against activists in the form of a SLAPP suit, coupled with defamation claims, and alleging, most commonly, that an activist has participated in an enterprise, partnership, association, or group and committed at least two acts of “racketeering activity.”  The law itself lists several activities that qualify as a racketeering act, but typically activists will be alleged to have committed some type of fraud.  It is also likely that activists, having been charged with the commission of these activities, will be additionally charged with conspiring to commit these racketeering activities.  RICO is a heavy-weight – in the words of one court, “the litigation equivalent of a thermonuclear device” – and consequently imposes a significant chill on otherwise protected speech.  We know because we are representing defendants in three such suits.

Lisa Zycherman

In May 2016, Resolute Forest Products, a Canadian logging company, filed suit against Greenpeace, Stand.earth, and individual activists in the United States under the RICO statute.  Resolute accuses Greenpeace of “fraudulently” inducing people all over the world “to donate millions of dollars based on materially false and misleading claims about its purported environmental purpose and its ‘campaigns’ against targeted companies.”  The so-called “false statements” are also the subject of libel claims.  Resolute argues that “soliciting money, not saving the environment, is Greenpeace’s primary objective, it has demonstrated time and time again that it will do anything to drive donations, including fabricating evidence.”  And, the company alleges Greenpeace is extorting the plaintiff’s customers by urging them to do business with more sustainable timber companies.  In this manner, the suit essentially argues that allegedly false speech is a criminal predicate act under RICO.

Greenpeace argued in a motion to dismiss that the case was a SLAPP and “an effort to muzzle protected speech.”  Judge Jon S. Tigar agreed, granting Greenpeace’s motion to dismiss the case.  He found that Resolute failed to prove any of its claims of true harm, racketeering, or other specific misconduct, but granted leave to amend, which Resolute did. The Amended Complaint is now awaiting a decision on Greenpeace’s second motion to dismiss.

Resolute is not alone.  In 2016, Leonid Goldstein, a computer engineer in Texas filed a civil RICO complaint against what he called “the climate alarmism bodies,” which included 40 organizations such as Greenpeace, Sierra Club, Climate Action Network, Ceres, and foundations that fund their work, and accused them of engaging in a “long-term criminal scheme” that humans have caused global warming.  A Texas court dismissed the case.

A more serious RICO suit was filed in August 2017 by Energy Transfer Partners ‒ the firm behind the Dakota Access Pipeline ‒ against Greenpeace and other environmental groups seeking $900 million dollars plus legal fees in an effort to not just sensor but destroy the company’s critics.  The complaint echoes Resolute’s claims: a broad conspiracy by advocacy groups running an illegal racketeering “enterprise” to further their own interests while damaging the company, Energy Transfer Partners.  It even alleges support for eco-terrorism, a violation of the Patriot Act, and drug trafficking.  RICO was designed to capture Mafia bosses who have others doing their dirty work. Law firms that are using the statute can target organizations that aren’t directly involved with any criminal behavior.  Dozens of organizations, American Indian tribes, and countless individuals were involved in the protests against the Dakota Access Pipeline.  (BankTrack, a small nonprofit that tracks the funding of controversial projects, was never even on the ground in the Dakota Access Pipeline protests.  It was sending letters to the pipeline’s investors and lenders from the Netherlands.)  By suing a handful and citing multiple named and unnamed co-conspirators, the suit may cause anyone with any ties to the movement to think twice before sending the next campaign email or launching a new effort.

The district court has already found serious deficiencies in Energy Transfer’s pleadings, dismissing two defendants and requiring it to replead its “hyperbolic” claims against Greenpeace.

There’s at least one obvious connection between the Resolute and Energy Transfer cases.  The same law firm represents each plaintiff and, according to a Bloomberg report, their counsel claims to be “in touch with other companies thinking of filing their own racketeering suits.”  As this lawyer told Bloomberg, he was aware of others considering impending Greenpeace lawsuits “and would be shocked if there are not many more.”

Climate change denier groups and right-wing websites have heralded these lawsuits against Greenpeace.  But there is a double standard here: when environmentalists floated a federal RICO investigation into ExxonMobil regarding its years of funding groups that rejected the scientific consensus on climate change, the same conservatives argued that the lawsuits (which were never filed) violated climate skeptics’ free speech.  “May free speech reign and scientific inquiry prevail,” printed Breitbart News in 2016.

Abusing a law intended to target organized crime syndicates such as the Mafia, these RICO suits paint a sinister looking-glass version of precisely the expansive democratic mobilization that the Supreme Court has so often embraced as core First Amendment rights.  These suits underscore the need for a uniform federal anti-SLAPP act, which has enjoyed bipartisan support in the past, particularly from trial bar-adverse members of Congress.

Retaliatory RICO SLAPP suits are a blatant attack on First Amendment rights, aiming to disrupt the normal operations of activists and advocacy organizations.  But if these well-financed corporate efforts successfully mobilize RICO against the exercise of core political speech and the rights of association of advocates, there is a deep concern that freedom of the press could be the next target.

At least so far, the effort to turn RICO against news organizations has been strongly rebuffed.  In one suit, an attorney alleged that in connection with reporting on the 2016 United States presidential election, seven television and print news organizations and 17 journalists associated with them acted as an “enterprise” in promoting and disseminating “false and misleading news reports” or commentary concerning Donald Trump’s candidacy for President.  Each false and misleading news report, the plaintiff claimed, was a predicate act of wire fraud supporting a claim of racketeering.  The suit was rejected by Judge Paul A. Engelmayer, however, who found “that dismissal is mandatory because the news reporting that [the plaintiff] assails as wire fraud is speech protected by the First Amendment of the United States Constitution for which civil damages to an offended audience are not available.”  The Second Circuit affirmed.  Hopefully, corporate efforts to annihilate advocacy groups who criticize them will be similarly rejected.

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FAN 200 (First Amendment News) Jasmine McNealy, Newsworthiness, the First Amendment, and Platform Transparency

Jasmine McNealy is an assistant professor in the Department of Telecommunication, in the College of Journalism and Communications at the University of Florida, where she studies information, communication, and technology with a view toward influencing law and policy. Her research focuses on privacy, online media, and communities. She holds a PhD in Mass Communication with and emphasis in Media Law, and a J.D. from the University of Florida. Her latest article is “Spam and the First Amendment Redux: Free Speech Issues in State Regulation of Unsolicited Email,” Communication Law & Policy (2018).

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Professor Jasmine McNealy

As of late the controversy, unrelated to the government, of most attention is the banning of Infowars founder and host Alex Jones from various social media sites including Facebook, YouTube, and Vimeo. Jones, purveyor of all manner of racist, sexist, you-name-it conspiracy theories, has drawn ire for spreading a conspiracy theory about the parents of children and teachers killed in the Sandy Hook mass shooting. He is currently being sued by a group of parents who assert that Jones defamed them by claiming that they and their children were crisis actors and not actual victims.

The Jones social media content cull, though some say belated, is interesting for sparking a larger discussion. In a decision met with outrage Twitter, a site now notorious for making controversial decisions about the kinds of content it will allow, had decided not to ban Jones. He would be banned a few days later. Twitter CEO Jack Dorsey, explained that Jones had not violated it rules against offensive content, a contention that has been challenged. But of more significance is the lack of definition of what actually is considered offensive content, not just for Twitter, but across the various social media sites.

Alex Jones (credit: Political Dig)

Of course, Twitter and other social media sites are private organizations, therefore claims that sites are violating freedom of expression by banning offensive speech are based less in law and more on, at most, ethical considerations. But social platforms play an increasingly significant role in how individuals seek, send, and receive information. In a study published in 2017 by Pew Research Center of American adults who get news from online sources, 53% of participants self-reported getting news from social media. Sixty-two percent reported getting news from search engines, which may lead to social sites. These numbers point to social media sources as playing an important role in the information that people encounter.

How, what, and the volume of information people encounter is important for decision-making. Platform decision about content users see is an issue of concern as more platforms move to algorithmically generated timelines that curate what we see. Zeynep Tufekçi has written that algorithmic timeline curation disrupts the potential for users to choose for themselves the value of the content they encounter, also asserting that YouTube’s algorithm-based recommendation system could be “one of the most powerful radicalizing instruments of the 21stcentury,” for its recommendations of extreme content. Companies like YouTube offer little, if any, insight into how their algorithms work.

The decision by social platforms – algorithmically or not – about whether users are able to see posts and the kinds of content acceptable for posting is a value judgment. Under a traditional rubric, offensive speech, presumably, would have little to no value and could, therefore, be either banned or hidden from other users. But platforms like Facebook and Twitter, however, have rejected offering a concrete definition of what they define as offensive, when said by whom, and in what context. Instead the platforms, though offering written statements as well as having their individual CEOs offer vague explanations, have left offensiveness open to interpretation.

A recent study from Caitlin Carlson and Hayley Rousselle at the University of Seattle testing Facebook’s offensive speech reporting mechanism found that though Facebook would remove some of the posts reported during their study, a significant number of racist, sexist, and otherwise offensive materials were allowed to remain visible, and that there was no discernible rationale for these content moderation decisions. Even after Facebook revealed the community standards its content moderators use in April 2018, investigative reports revealed that moderators have been told to temper their content removal efforts. So while a platform may reveal its objectionable content standards, in practice, offensiveness decisions are a black box– lacking transparency into how both human and algorithmic content moderation value judgments are made.

That an organization would make a judgement about the value of information is not novel. What we consider traditional news organizations have always made judgments about the value of information, and these gatekeeping decisions about what is newsworthy are many times bolstered by First Amendment jurisprudence. The Supreme Court has of declined to enforce laws mandating that news organizations (outside of broadcast) publish certain information. In Miami Herald v. Tornillo, for instance, in which the newspaper argued that a Florida statute requiring it to publish candidate responses to criticism infringed on press freedom, the Court agreed, finding that such a requirement was an “intrusion on the function of editors.”

(credit: Heartland Newsfeed)

Of course, the judgement of newsworthiness by the press is found most often in cases against news organizations for invasion of privacy. The newsworthiness of information is a First Amendment-based defense against privacy actions seeking redress for the publication of information highly offensive to a reasonable person. In these cases, if the information is of a legitimate public interest, the publisher will not be found liable for injury. And the courts have used many different tests for newsworthiness.  A prominent newsworthiness test “leaves it to the press” to decide the bounds of what is of a legitimate public interest. Perhaps the most common of the tests, used in Virgil v. Time and enshrined in the Restatement of Torts, considers the “customs and conventions of the community” for a newsworthiness determination. For a news organization this would be a consideration of the community in which it is centered. For social media this could mean the community that it has created.

Therefore, while calls exist for policymakers and legislators to do something about the massive platforms that significantly influence the information that individuals encounter, First Amendment jurisprudence demonstrates that such incursions would most likely violate the exercise of freedom of the press. Social media users in the U.S., then, will have to find an alternative way of persuading platforms to act on objectionable content. So far, public outcry is beginning to work particularly when it targets commercial interests.

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FAN 200 (First Amendment News) Mary Anne Franks, “The Free Speech Fraternity”

Mary Anne Franks is a professor at the University of Miami School of Law. She is  the President and Legislative and Tech Policy Director of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination. Professor Franks authored the first model criminal statute on a practice often referred to as “revenge porn,” the unauthorized disclosure of private, sexually explicit images.

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“…who will stand against Tyranny and who will stand for free speech?  We’re all Alex Jones now.” – Alex Jones

If there is one case widely considered to illustrate the American commitment to free speech, it is that of the neo-Nazis in Skokie. In 1978, a federal appellate court ruled that the First Amendment required the town of Skokie, where one in six residents was either a Holocaust survivor or related to one, to allow members of the National Socialist Party of America (NSPA) to march through its streets. Most people familiar with the story know that the neo-Nazi marchers planned to wear Nazi-style uniforms and display swastikas during their demonstration. A lesser-known detail is that they also planned to carry placards bearing various slogans, including “Free Speech for the White Man.”

The sign was a crude provocation, but it was also an apt description of the state of free speech in the United States, and not only in 1976. Since the First Amendment was enacted in 1791 and continuing into the present day, the theory and practice of free speech has been dominated by white men.

The First Amendment, like the rest of the Constitution and the Bill of Rights, was written and enacted by a group of white men who deliberately excluded all women and people of color from participation in the political process. The body tasked with its ultimate interpretation, the Supreme Court, was composed entirely of men until 1981 (exclusively of white men until 1967). To put that in perspective, of the 113 Supreme Court Justices that have served in its 228-year history, all but six have been white men. Of the 500 or so cases that the Supreme Court has heard involving the First Amendment and free speech, all but about 60 were brought by men and all but 38 were litigated by men.

From the Catholic Church to Hollywood, from Silicon Valley to the White House, it has become painfully clear that male-dominated institutions and industries are rife with bias, abuse, exploitation, and corruption. White men’s outsized influence over the creation, interpretation, and application of First Amendment doctrine and practice calls for its own reckoning: an accounting of the harms it has inflicted and a reorientation of free speech priorities.

The free speech questions of our time should focus on how traditional interpretations of the First Amendment have served to silence vulnerable populations and undermine democracy. Among those questions should be how more than two centuries of professed commitment to freedom of speech have co-existed with the systematic censorship of half of the American population — women. At the time the First Amendment was written, the doctrine of “coverture” provided that married women had no independent legal existence apart from their husbands, including no independent right of free speech. Women were formally prevented from exercising the most basic form of political expression – the vote – for more than a century. Long after the 19thAmendment was passed in 1920, women continued to be barred from the political, employment and educational opportunities available to men, resulting in the exclusion of their voices from public spaces, workplaces and schools.

A society committed to free speech should dedicate itself to closing the free speech gender gap.It would acknowledge how multiple forces, including domestic violence, sexual assault, stalking, sexual harassment, rape threats, and “revenge porn,” silence women in multiple places, including workplaces, schools, public streets, online and offline spaces. It would prioritize ongoing threats to speech by and for women, including nondisclosure agreements that prevent women from speaking about sexual assault and harassment, defamation lawsuits used to intimidate rape victims, and gag rules prohibiting women from receiving information about abortion. A true free speech society would take seriously how the threat of male violence has a chilling effect on women’s speech, deterring their full participation in political, economic, and cultural life.

Alex Jones (credit: Political Dig)

Instead, free speech theory and practice continues to be dominated by white men’s interests. Far from being condemned, denying women’s free speech is often praised, in Orwellian fashion, as the exercise of free speech. White men who attack women, minorities, and other vulnerable groups are made into free speech martyrs.

These men include Alex Jones, the head of a powerful media empire who has harassed the parents of dead children, claimed that Hillary Clinton ran a child sex trafficking ring out of a pizzeria, and stands accused of domestic violence and sexual harassment, as well as Milo Yiannopoulos, Richard Spencer, and Andrew Anglin – a rightwing rogues’ gallery of white men whose free speech primarily consists of attacks on women, racial minorities, and the LGBT community. They also include the white male supremacists who, unlike the neo-Nazis who ultimately called off their march in Skokie (likely out of fear of physical retaliation by the Jewish community), carried out their plans to demonstrate in Charlottesville, Virginia in 2017, leading to the death of a peaceful female protester named Heather Heyer.

These men have many powerful allies, including the ACLU, which calls itself the “largest and oldest civil liberties organization” in the U.S. It was the ACLU that won the NSPA’s right to march in Skokie in 1978, and it was the ACLU that ensured that the “Unite the Right” organizers were allowed to hold their demonstration in a location Charlottesville  officials feared would be a public safety hazard. The ACLU also represented Milo Yiannopoulos in a 2015 lawsuit attempting to force the Washington Metropolitan Area Transit Authority to post advertisements for Yiannopoulos’s self-published book.

In a 1989 essay titled The Real ACLU, two ACLU leaders, Mary Ellen Gale and Nadine Strossen, offered this explanation for the organization’s solicitude for angry white men: “Ensuring the free speech rights of anyone, including a racist or misogynist, secures the same rights for everyone else, including an intended victim.” According to the ACLU, to defend white men’s speech is to defend the speech of women and nonwhite men, even or especially when that speech attacks and silences women and nonwhite men. Call it “trickle-down free speech,” or perhaps “all speech matters,” or “we’re all Alex Jones now.”

The ACLU’s view is often expressed as “freedom of speech for the thought we hate.” The principle is derived from Justice Oliver Wendell Holmes’s dissenting opinion in the 1929 case United States v Schwimmer: “if there is any principle of the Constitution that more imperatively calls for attachment than any other,  it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.’

But what exactly is “the thought we hate”? The civil libertarian view seems to assume that this means sexist, racist, and other speech expressing contempt and hatred for certain groups. But a closer look at the case that birthed the principle of “freedom for the thought we hate” complicates the picture.

Rosika Schwimmer

Schwimmer is, as Ronald Collins notes, the first Supreme Court free speech case argued by a woman. It is also one of the few free speech cases that was brought by a woman, Rosika Schwimmer. Technically, the case is not about the First Amendment at all, but about statutory interpretation. Schwimmer was a Hungarian-born pacifist whose citizenship application was denied due to her stated refusal to take up arms to defend the country. The majority felt that this refusal indicated that Schwimmer was “not well bound or held by the ties of affection to any nation or government” and thus “liable to be incapable of the attachment for and devotion to the principles of our Constitution that are required of aliens seeking naturalization.” In dissent, Justice Holmes wrote that while Schwimmer’s position “might excite popular prejudice,” it should not be punished on that basis. “The thought we hate” that Holmes sought to defend was a woman’s refusal to comply with the demands of power against her conscience.

Such speech has very little in common with speech supporting white male supremacy. The former challenges power; the latter seeks to entrench it. “Free speech for white men” is not some daring aspiration– it is a description of the status quo. Donald Trump’s sexist and racist speech helped him win the presidency in 2016. A 2017 poll found that more than a third of Americans feel that “America must protect and preserve its White European heritage,” while nearly 40% believe that white people “are currently under attack in this country.” One in ten Americans believes that the country has “gone too far” to achieve gender equality and 40 percent believe that women should be forced to carry pregnancies to term against their will. Racist and sexist views are openly and routinely articulated by political officials, widely broadcast by both traditional and social media outlets, and reflected in outbreaks of physical violence against women and minorities.

In the free speech fraternity, we are indeed all Alex Jones. In a true free speech community, we could all be Rosika Schwimmer.

 

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FAN 200 (First Amendment News) Kellye Testy, Foreword: Prior Restraint: Women’s Voices and the First Amendment

Kellye Testy was the first woman to lead the University of Washington School of Law, serving as dean from 2009-17. From 2004-09 she was the dean of Seattle University School of Law (and its first female dean as well). In 2016, Dean Testy was president of the Association of American Law Schools (AALS). She now serves as the president and CEO of the Law School Admission Council (LSAC).

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Kelly Testy

Like other terms in law, the meaning of the First Amendment springs from many sources – the intent and language of the drafters, those originally called upon to interpret it, and then others who have explained it since. Drafters, lawmakers, lawyers, judges, scholars, and activists, too, have all, in one way or another, added to the bounty that has produced the jurisprudence of the First Amendment.

While Mr. Madison’s constitutional handiwork gave rise to an enormous number of cases, controversies, and critiques, substantially all of those came to be seen as largely, if not exclusively, the work of men. Just consult any list of First Amendment greats, or any summary of First Amendment history (even wiki), and what are you likely to find?  Lists and pictures of (typically white) men.

Why is this so? Is it because women were excluded from the interpretive mix? To a large extent, yes. After all, Mr. Madison did not share the drafting table or parlor room debates with women. So much for women and originalism. Much the same holds true for judges from the time of Holmes and Brandeis through that of Black and Brennan. Women were admitted to law schools in very small numbers until the mid-1970s, which limited (and continues to limit) women’s influence in law.

Professor Catharine MacKinnon 
(credit: Charlie Rose)

And what of First Amendment scholars? Here, too, sex discrimination has restrained women’s voices in many ways, from hiring practices to course assignments, to what “counts” as First Amendment scholarship. To take one example, consider Catharine MacKinnon’s significant critique of protecting pornography as speech under the First Amendment. Whether we agree with her viewpoint or not, her argument about the First Amendment was influential and creative. Yet, her work is more likely to be seen as about “pornography” or “sex discrimination” than about the First Amendment.

    Olive Rabe (credit: Marty Caivano)

A final point about the possible reasons for the relative lack of women’s visibility in First Amendment jurisprudence bears note. We may often be more eager to protect freedoms and rights that we feel we have and enjoy using. Put simply, men who have had “free speech” want to keep speaking. But women’s speech has been restrained, both as a matter of formal law and of social practices, including violence. Much of women’s energy has had to be directed to gaining the right to speak and, then, to finding one’s voice. To again reference Professor MacKinnon’s work:  “Take your foot off our necks, then we will hear in what tongue women speak.”

More and more, we do hear women speak – at least some women. Women’s access to speech (and being heard) is differentially distributed based on intersectional identities, including race and class. What will be interesting to monitor as that voice continues to expand (consider, e.g., #metoo), is how greater diversity in who holds the microphone will, in turn, influence the meaning of the First Amendment.

The future meaning of the First Amendment will be all the richer if we also do more to recognize the historical contributions women have already made. I was thus delighted to see that in FAN 199.

Patrica Millett (now judge / credit:
Illinois Alumni Association)

Ron Collins, my friend and colleague, compiled the names of women and the First Amendment free expression cases they argued in the Supreme Court. I, for one, had no idea that Olive H. Rabe, a labor lawyer, represented the respondent in United States v. Schwimmer (1929), another one of the cases remembered because of a Holmes dissent. I was also surprised to learn that Patricia Millett (now a federal D.C. Circuit Judge Millett) argued two First Amendment cases in the Supreme Court – first as a government lawyer and then as private counsel.

Moreover, and thanks again to Professor Collins, it is exciting to see 15 women join in this 200th issue of FAN to express a wide range of views – liberal, libertarian, feminist, and practitioner focused as well. My point is not ideology but inclusion, which requires opportunity and encouragement. Only then will women be able to add their own ideas, values, and judgments to the meaning of the First Amendment. Moreover, only then will our understanding of the First Amendment be deepened. Inclusion is the right strategy not only because it is honorable, but also because it generates a better result.

It is against that backdrop that I am grateful to have been asked to write the Foreword to this welcome and exciting symposium. I encourage others to help bring greater visibility to women’s contributions to all areas of law and to also encourage and inspire women to work in this and other areas of law and policy. Only through radical and persistent inclusion will we build a system of law and justice under which we all may thrive. Onward!

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FAN 200 (First Amendment News) Margot E. Kaminski, “The First Amendment and Data Privacy: Between Reed and a Hard Place”

Margot E. Kaminski is an associate professor of law at the University of Colorado Law School. She specializes in the law of new technologies, focusing on information governance, privacy, and freedom of expression. Her forthcoming work on transparency and accountability in the EU’s General Data Protection Regulation (GDPR) stems from her recent Fulbright-Schuman Innovation Grant in the Netherlands and Italy.

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Professor Margot Kaminski

The Supreme Court’s recent Fourth Amendment cases show a strong awareness that privacy can implicate First Amendment values. In June 2018 in Carpenter v. United States, a case addressing warrantless location tracking through cell phone records, the majority noted that a lack of privacy can reveal (and presumably chill) “familial, political, professional, religious, and sexual associations.” In Riley v. California, a 2014 Fourth Amendment case addressing cell-phone searches, the majority recognized that while “[m]ost people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read,” a cell phone can store all of these things. With these comments, the Court observed that free expression often relies on privacy, and implied that absent privacy protections, people may conform in their choice of reading material, their political affiliations, and ultimately, their speech. In other words, privacy protections often also protect First Amendment rights.

But at the same time, the Court’s recent First Amendment decisions have created additional obstacles for those who seek to draft an American data privacy law.

The United States famously does not have omnibus federal privacy protection. Instead, U.S. privacy law is a patchwork of sectoral protections (like protections for video records, consumer protection at the FTC, state privacy torts, and state AG enforcement). Legislators reading Carpenter may conclude that a number of Justices in that case (including Justice Samuel Alito, who explicitly calls for privacy lawmaking in his dissent) understand the need for omnibus data privacy law. But even as the Court in Carpenter seems to point to the need for privacy legislation, its First Amendment decisions in Reed v. Gilbert and NIFLA v. Becerra threaten to tie legislators’ hands.

Reed treats content-based regulation with suspicion; Becerra does the same with disclosure requirements. In Reed, which addressed a town’s rules for the placement of signs, the Court held that “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” All content-based regulation is subjected to strict scrutiny. Thus, a regulatory scheme that treated Political Signs differently from Temporary Directional Signs was content-based, and subject to strict scrutiny, and because it failed strict scrutiny, unconstitutional.

Becerra, decided this year, limits legislators’ ability to require truthful disclosures. The Court preliminarily enjoined California’s disclosure requirements for crisis pregnancy centers—centers that often pretend to provide abortion services but in practice discourage women from getting abortions. While claiming to be narrow and fact-bound, the majority in Becerra applied Reed’s broad understanding of content-based regulation to disclosure laws. The majority of the Court in Becerra explained that California’s disclosure law was “content-based regulation of speech” because “[b]y compelling individuals to speak a particular message, such notices ‘alte[r] the content of [their] speech.”

Why, in a discussion of data privacy, do I focus on Reed and Becerra and not on an earlier line of cases that directly address privacy laws? Because to an extent many Americans do not realize, data privacy protections are actually about increasing speech, not decreasing it. And at least as enacted elsewhere in the world, the efficacy of data privacy regimes as good policy often depends on being able to calibrate the law differently for different actors or scenarios. The first implicates Becerra on disclosures; the second implicates Reed and content-based analysis.

The Fair Information Practices, which were originally formulated in the United States, are the basis for data privacy laws around the world and are largely built around a concept that should be complimentary to the First Amendment: transparency. Take the EU’s General Data Protection Regulation (GDPR) as an example. Individuals are supposed to be notified when companies obtain their information. They have a right to access their data, and to find out to whom it has been disclosed. They have a right to find out where data has come from. Companies have to explain the purpose of data processing, and how profiling and automated decision-making work. All of these transparency rights and obligations attempt to correct, or at least expose, very real power imbalances between individuals and the companies that profit from their data. The GDPR is a disclosure law, as much as it is a right to stop other people from speaking about you.

Today’s paradoxical privacy problem, then, is that even as data privacy regimes rely in large part on increasing, not decreasing, speech by requiring disclosures to users, the Court’s recent First Amendment cases now shut down disclosure as a regulatory tool. Under Becerra’s reasoning, anydisclosure requirement could potentially be characterized as content-based (or, per Justice Stephen Breyer, “[v]irtually every disclosure law requires individuals ‘to speak a particular message’). The GDPR’s requirement that companies disclose the source of their data? Content-based compelled speech. The GDPR’s requirement that companies reveal to individuals the information held about them? A “particular message,” and thus content-based compelled speech.

The majority in Becerra attempts to cabin the impact of its opinion both (1) by pointing to the possibility of regulating speech incidental to regulated conduct (as it alleges was done by the majority in Planned Parenthood v. Casey, a case addressing compelled disclosures by doctors to patients seeking abortions), and (2) by carving out existing disclosure laws (“we do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products”). The problem is that data privacy does not fit squarely within either of these potential exceptions. It regulates information flow, not conduct, or at least conduct that’s nearly inextricable from information flow (though I’ve argued elsewhere that some forms of privacy violations are actually framed in First Amendment law as conduct-like). And because the U.S. lacks omnibus data protection law, privacy doesn’t readily fall into the Court’s attempt to exempt existing consumer protection law. By virtue of its very newness, data privacy may be more heavily scrutinized than other accepted areas of consumer protection.

Justice Stephen Breyer (credit: The Nation)

As Justice  Breyer notes in his dissent, “in suggesting that heightened scrutiny applies to much economic and social legislation,” Becerra jeopardizes legislators’ judgments in areas long left to legislative discretion. Reedcompounds this problem.Some kinds of information, and some behaviors, create greater privacy harms than others. For example, the GDPR, like many American privacy laws, puts in place added protections for “special categories” of data—or what we would call “sensitive information.” Is this content-based discrimination? Does it apply “to particular speech because of the topic discussed?” If so, this would potentially implicate even our current sectoral approach to privacy, not to mention hundreds of behavior-or-information-type-specific state privacy laws. The GDPR also, in many places, distinguishes between categories of companies. Take, for example, the GDPR’s derogation for small and medium-sized enterprises, which are subject to less onerous record-keeping provisions, presumably because smaller companies pose less of a risk of inflicting privacy harms. A government may also want to create an exception to, or less onerous version of, privacy law for smaller companies as a matter of innovation or competition policy, to encourage the growth of startups. Under Reed —and its predecessor, Sorrell v. IMS — identifying particular topics or speakers, or categories of information flow, could give rise to a challenge of regulation as content-based or even viewpoint-based. On paper at least, as Justice Elena Kagan noted in her concurrence, Reed’s broad take on content-based regulation “cast[s] a constitutional pall on reasonable regulations” and puts in place judicial second-guessing of matters that legislatures are likely institutionally better situated to assess.

One potential loophole, or at least limiting principle, to explore is Justice Samuel Alito’s strangely confident conviction in his concurrence, joined by both Justice Sonia Sotomayor and Justice Anthony Kennedy, that “Rules imposing time restrictions on signs advertising a one-time event” would not be considered content-based. This suggests that it may be possible for legislators to continue to name things in information-related legislation, when the restriction is the kind of restriction (e.g. time place and manner) that the First Amendment allows. But how to line-draw between a law that imposes temporal restrictions on “signs advertising a one-time event” and a law that restricts, in other ways, “Temporary Direction Signs” is frankly beyond me.

Thus legislators wanting to write—or in the case of California, that have recently written and passed—data privacy law may find themselves stuck between Reed and a hard place. To some extent, this can be understood as one example of what some have described as the Lochnerization of the First Amendment: its use for deregulatory purposes. But in the context of privacy, things are perhaps uniquely complicated. Speech values fall squarely on both sides. By regulating speech to protect privacy, you both restrict and protect speech. As the Court noted in Bartnicki v. Vopper, “the fear of public disclosure of private conversations might well have a chilling effect on private speech. . . . In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively.” And as the Court has increasingly recognized in its Fourth Amendment jurisprudence, personal information beyond communicative content—such as location data, or reading material or pictures stored on a cell phone—can implicate First Amendment concerns as well, by revealing your associations, your political affiliations, your opinions, your innermost thoughts.

In some ways, Carpenter and other cases move the United States closer to Europe on privacy. There is increasing convergence on what counts as sensitive information: the GDPR includes location data in its definition of “personal data;” and the Court in both Jones and Carpenter recognized an expectation of privacy in publicly disclosed location information. The Court in Carpenter continued a recent theme in Fourth Amendment jurisprudence of referring to what might be understood as First Amendment harms; the GDPR, too, addresses speech-related privacy. Even more significantly, Carpenter begins to undermine a central premise of U.S. privacy law: that you don’t have an expectation of privacy in information you have shared. This suggests that privacy protections might travel with private information, and pop up later in information flows—in other words, that a data privacy model may now be more palatable in the United States. And a disclosure-based privacy law targeting third parties (data brokers) is exactly what California recently passed.

But the First Amendment, once again, may be the context that ultimately defines, through constraints, American privacy law. Determining how to navigate the roadblocks of the Court’s recent First Amendment jurisprudence may—even more than legislative inertia—be the central problem U.S. data privacy now faces.

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FAN 200 (First Amendment News) Sarah C. Haan, “Facebook and the Identity Business”

Sarah C. Haan is an Associate Professor of Law at Washington and Lee School of Law.  Professor Haan writes about corporate political speech and disclosure. Her most recent article is “The Post-Truth First Amendment,” forthcoming in the Indiana Law Journal.

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Facebook revealed in September 2017 that Russian-linked groups had waged a disinformation campaign on its platform to influence the 2016 election. The news caused public outcry and led to a series of self-regulating responses from Facebook and other social media companies.  In a new work-in-progress, I will examine Facebook’s regulation of political speech and, more broadly, what it means for political discourse to be regulated through private ordering by a global, profit-seeking, public company. My conclusions are different from those of some other scholars, in part because I give sharp focus to Facebook as a business actor.

Both before and after the revelation about Russian disinformation, public statements by Facebook spokespeople and its CEO, Mark Zuckerberg, have invoked a commitment to “basic principles of free speech.”  Here is a recent example:

This tweet suggests that Facebook seeks to uphold “basic principles of free speech.” The company’s offhand speech is full of such references to “free speech” and “freedom of expression,” but you won’t find those terms in Facebook’s securities filings, its Community Standards, or in the sworn testimony of company executives before Congress. Kate Klonick has argued that to the extent that platforms like Facebook moderate content, they rely on a foundation in American free speech norms. But what, precisely, do Facebook’s executives think that “free speech” means?

Speaker Discrimination

Professor Sarah C. Haan

I will argue that although most scholarly attention has focused on Facebook’s regulation of content, in fact Facebook’s regulation of political speech relies heavily on speaker discrimination. The company regulates content, reluctantly, at the margins; it plainly prefers to regulate identity. It does this by distinguishing between “authentic” and “inauthentic” user identity. Facebook allows speakers to post nearly anything if they present an “authentic” identity, but completely prohibits the speech of “inauthentic” speakers. As Sheryl Sandberg has admitted publicly, virtually none of the offending Russian content would have violated Facebook’s rules if it had been published by an “authentic” speaker.

Facebook explains:

Authenticity is the cornerstone of our community. We believe that people are more accountable for their statements and actions when they use their authentic identities. That’s why we require people to connect on Facebook using the name they go by in everyday life.

There might be another reason, too.

Facebook’s business model focuses on the sale of advertising. Although the company describes its “mission” differently, its business purpose is to profit from selling ads. It is this business model that justifies a preference for regulating identity over content.

Facebook needs to know who its users are for at least two reasons. First, it needs to be able to tell an advertiser how many unique individuals its advertising can reach. Thus, under Facebook’s rules, it is a violation to create multiple accounts or to share accounts, ensuring that each human user has just one account.

Second, Facebook needs to know who you are so that its customization and microtargeting features will work. Those features set Facebook apart from its competitors and justify its ad revenue. This explains why, for example, the company refuses to prohibit false content (“fake news”), yet prohibits the use of a “false date of birth” as an aspect of identity.  As part of your expressive identity, you may feelyounger than you are, but Facebook prohibits you from actually identifyingas a younger person. Your Facebook identity is what distinguishes you from other ad targets.

The public may have wrongly concluded that Facebook’s authentic/inauthentic rules were designed specifically for the purpose of culling foreign propagandists from its platform. This is not so. Since it went public in 2012—long before Russian agents sought to influence the 2016 election—the company’s filings with the U.S. Securities and Exchange Commission consistently have discussed “authentic identity” as a business policy linked to user metrics. Facebook’s business risks associated with user identity go well beyond concerns about electoral integrity.

Mark Zuckerberg

When Facebook determines that a speaker is “inauthentic,” it shuts down the speaker’s account, removes all traces of its speech from Facebook, and prevents the speaker from engaging in future speech on Facebook.

On May 22, Mark Zuckerberg testified to the European Parliamentthat Facebook shut down about 580 million fake accounts in the first quarter of 2018—nearly six million fake accounts per day. Perhaps the scale of foreign electoral interference around the world is so vast that only algorithmic identity licensing can save us.  I am skeptical.

Two additional things are worth noting about Facebook’s identity-based speech regime.

Identity Verification

First, since April, Facebook has doubled down on identity policing, employing identity licensing in a way that, I will argue, is a form of prior restraint. Under new rules, which are already shaping political discourse about the 2018 midterm elections, an individual in the U.S. who wants to use Facebook’s paid tools to communicate about “national issues of public importance” must verify his or her identity ex anteby submitting private information, such as passport, driver’s license and Social Security information, to the company for approval. In a second step, Facebook mails a special code to the individual at a physical address in the U.S., and this must be input into the verification system to confirm that Facebook has that person’s working address.

In May, Facebook clarified that it would apply its identity verification rules to all publishers of paid content, including news publishers. In other words, news outlets that use Facebook’s paid tools to boost content must go through identity verification, and must also label the content with a “paid for by” label. This, of course, represents a clear break between Facebook’s notion of “free speech” and recognized press freedoms in the First Amendment canon. Global media groups have called on Facebook to exempt news publishers from the new rules, but Facebook has so far refused. The company’s speaker discrimination does not go so far as to discriminate between the press and other speakers, even though our Constitution takes this for granted.

In the past few years, Facebook has acquired a number of companies that specialize in biometric identity verification technology, suggesting that Facebook is at least leaving open the possibility of pursuing identity verification as a stand-alone product or feature.  The tech industry press occasionally suggests that Facebook’s end game may be to monetize identity itself. In other words, Facebook’s choice to regulate political speech primarily through identity licensing and verification may be driven, not by “free speech” or democracy concerns at all, but rather by its desire to pursue identity verification as a business opportunity.

No More Pseudonyms

Second, Facebook’s authentic/inauthentic identity rules conflate two important types of identity—false identity and anonymous identity—treating them identically because this is convenient for Facebook’s business. False identity means pretending to be someone you’re not. The Mueller Indictment alleged that Russian actors adopted false identity on Facebook and other social media platforms in order to trick people into thinking they were U.S. citizens. If true, this was a crime.

Anonymous identity is something else. Americans have traditionally used anonymous speech to express unpopular political views; The Federalist Papers, for example, were originally published by Alexander Hamilton, John Jay, and James Madison under a pseudonym, Publius. Had they attempted such a trick in 2018 on Facebook, the company would have faulted them for “inauthentic behavior” and restricted their speech. Facebook’s choice to prohibit speech, including political speech, from individuals who choose anonymity (but do not claim false identities) represents another important break between the company’s concept of “free speech” and the First Amendment’s.

Although Silicon Valley tech companies often embody a libertarian spirit—and Facebook’s resistance to policing content or to distinguishing between the press and other speakers seems consistent with that view—the company’s decision to prohibit both false identity and anonymous identity is decidedly notlibertarian. The libertarian view is that speech should be evaluated purely on its merits. A regulatory regime that must authorize your identity before it lets you speak shares little in common with a philosophy that emphasizes freedom and individuality.

* * *

In Citizens United v. FEC, the Supreme Court observed that speaker-based distinctions are often a form of content control. It asserted that the State may not “deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration.” Although scholars were quick to point out that Justice Kennedy’s opinion overstated the First Amendment’s hostility to speaker-based discrimination, these two points resonate when we consider how Facebook is regulating political discourse primarily through identity.  In my view, the issues don’t come fully into focus until we consider Facebook’s business motives.

Even if Facebook eventually loses ground to other speech-regulating competitors, these issues of private ordering are not going away.

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FAN 199.12 (First Amendment News) Oklahoma L. Rev. Symposium: “Falsehoods, Fake News, and the First Amendment”

The currtent issue of the Oklahoma Law Review has an impressive lineup of contributors commenting on a timely issue.  The symposium is titlled “Falsehoods, Fake News, and the First Amendment.”

Editor’s Introduction
Mitchell B. Bryant

Panel 1: Falsehoods and the First Amendment

Panel 2: Election Lies

Panel 3: The Brave New World of Free Speech

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FAN 199.11 (First Amendment News) Supreme Court Rejects Stay in Crossroads Campaign Disclosure Case

This from Professor Richard Hasen over at the Election Law Blog:

“With no noted dissents, the Supreme Court has turned down Crossroad GPS’s request for emergency relief from an order that will require disclosure of more of its donors who are contributing money to influence federal elections.”

“As I wrote last week, ‘With 4 Justices strongly in favor of disclosure on the Court, I would guess that this results in an eventual denial of the stay, either by a majority vote or a 4-4 split (which keeps the lower court decision in place), unless this is held long enough for Judge Kavanaugh to join the Court.’ . . .”

Continued here.