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Fifth Circuit Rejects Dog-Killing Cop’s Pleas For Qualified Immunity

from the restoring-a-bit-of-faith-in-the-5th's-judicial-process dept

Well, well, well. Is the Fifth Circuit finally going to start redeeming itself?

Just recently, the Fifth Circuit Appeals Court bucked the appellate trend (well, what there was of it…) by declaring geofence warrants unconstitutional. That ran counter to the expectations of this court, which has often chosen to treat the Constitution as a set of suggestions, especially when it likes the arguments any government in its jurisdiction is making.

And here it is bucking its own trend by denying qualified immunity to Deputy James Killian, who went on a (dog-)killing spree while responding to a domestic disturbance report. On December 2016 (welcome to the extremely slow roll of justice, folks) the deputy was dispatched to handle a call about a “big fight going on” between Rubicela Ramirez and her boyfriend, Francisco Gonzales. What followed Killian’s arrival on the scene was both a literal and Constitutional bloodbath.

The Fifth Circuit’s opinion [PDF] details what came next:

The next thirty-eight seconds of video show what happened from there. From the living room, Killian entered the kitchen, where he encountered Ramirez entering from another door. Killian ordered her to “come here, get over here, get over here and face that wall.” Ramirez approached Killian. Killian then ordered: “get over there and face that g— d—n wall, b—h,” simultaneously pepper spraying Ramirez’s face. While this was happening, Gonzales entered the kitchen from the same door as had Ramirez. At the same time, a pit bull entered the kitchen from another door and walked up to Gonzales, wagging his tail. Killian ordered Gonzales to “get over here” and said “I’ll shoot your dog.” The dog—Bruno—began to walk towards Killian, and Killian shot him three times.

We’ll get to more of this horror show in a moment, but let’s walk through a few of these selected moments in Killian’s law enforcing effort. First, he gave Rubicela Ramirez conflicting instructions. He told her to both “get over here” and “face that wall.” Killian was not standing against a wall presumably, so it would have been difficult for Ramirez to both move towards the deputy and the wall simultaneously.

Furthermore, as in any domestic dispute, the woman is usually considered to be the victim. (I realize this is not always the case, but that’s the presumption… and usually a solid one.) The deputy chose to greet the presumptive victim with this: “Get over there and face the goddamn wall, bitch.” Not only was this an abhorrent way to treat a potential victim, but it was completely uncalled for. (Calling her a “bitch” was never excusable, btw.) Ramirez had done nothing more than enter her own kitchen. And for that simple action, she was treated like a perp who had deliberately aggravated the responding officers.

Then there’s the dog, which did nothing more than exist. At least Killian was right about one thing: he promised to shoot the dog and he did, despite the dog apparently no more of a threat to him than the “bitch” he had ordered to face the wall, as well as the boyfriend, who was even less prepared for the presence of a law enforcement officer in his kitchen.

What was already terrible got even worse because Deputy James Killian has no business being a law enforcement officer.

Killian then ordered Ramirez and Gonzales to get onto the ground and continued to pepper spray them. Neither Ramirez nor Gonzales immediately complied, but Gonzales put his hands onto his head. Then, a German Shepherd appeared in the kitchen and walked toward Killian, who immediately shot it four times as he backed into the living room. Killian briefly exited the house from the door that he had entered and radioed for help. He then returned to the living room and continued to order Ramirez and Gonzales to get onto the ground. Ramirez and Gonzales went to their knees. Killian continued to pepper spray them. For the next few minutes, the three shouted profanities at each other as Killian unsuccessfully tried to get Ramirez and Gonzales to lie down on the ground.

Enter the third contradictory instruction: get on the ground. Come over here. Get up against the wall. Lay down on the floor. Even if one might make the argument it’s possible to both get up against the wall and lay down on the floor, there’s a really good reason neither Ramirez or Gonzales complied with this instruction. And that reason has everything to do with confirmed dog killer, Deputy James Killian.

The video makes it disturbingly clear that the kitchen floor, onto which Killian was ordering Ramirez and Gonzales to lie down, was covered by this point in their dogs’ blood.

Having pumped seven bullets into two dogs and an untold amount of pepper spray into the faces of the couple, Killian handcuffed the pair and sat them on the living room couch. Shortly after that, Sheriff Kent Riley arrived at the home. Ramirez recognized Sheriff Riley and figured he might be there to actually help, rather than harm. And he might have been there to do that. But when Ramirez stood up and called for the sheriff by his first name, this happened:

Killian immediately grabbed her by the hair and wrestled her to the ground. As he did so, his body camera fell off briefly and went black.

The couple’s allegations say this isn’t exactly what happened. It wasn’t “wrestling” so much as it was a brief, extremely violent attack by the deputy.

Ramirez and Gonzales maintain that immediately after Killian took Ramirez to the ground, he slammed her head against the floor, though the video was still black at this point and does not show it.

Undeniably awful. Awful enough the lower court denied immunity to Killian and put the whole thing in front of a jury. While the jury did find in favor of the deputy on some of the allegations, one of them stuck:

The unreasonable-seizure claim proceeded to trial. Before beginning his case-in-chief, Killian moved for judgment as a matter of law, arguing that Ramirez and Gonzales had failed to present evidence sufficient to overcome Killian’s qualified immunity defense. The district court denied the motion. The case then went to the jury, which was charged consistent with Fifth Circuit Pattern Jury Instruction 10.3. The jury found that Killian had “acted in an objectively unreasonable manner” and that “no reasonable officer could have believed that shooting the dog was lawful,” awarding Ramirez and Gonzales $100,300 in compensatory and punitive damages.

Having failed with the first judgment as a matter of law attempt, Killian immediately fired off another one after the jury had rendered its verdict. Somehow, that one worked and the lower court reversed its own conclusions (and the jury verdict), claiming the suing couple had not presented enough evidence to overcome Killian’s invocation of qualified immunity.

The Fifth Circuit, however, is not as welcoming of Killian’s repeated pleas that he should be allowed to escape judgment. While the court agrees Killian had the right to enter the house without a warrant in response to the domestic altercation call, nothing about what followed his entry is covered by Constitutional exceptions. And that means some of stuff that was written off earlier (like the excessive force claim) gets reinstated, along with the “unreasonable seizure” that was Killian’s killing of the couple’s two dogs.

While it is true that Killian was investigating a possible assault—a serious crime —Ramirez and Gonzales were not actively resisting arrest. Killian’s contention that his first orders were not contradictory, and that Ramirez and Gonzales did not comply, are flatly refuted by the video evidence. Killian’s order to “come here” was the exact opposite of his order to “get over there.” Nor were there any indications that either Ramirez or Gonzales posed a threat to Killian.

[…]

Moving now to Ramirez’s and Gonzales’s head-banging claim, we likewise find that they have satisfied both steps of the qualified immunity inquiry at the summary judgment stage. This is an even easier determination. Ramirez and Gonzales allege that, after Killian took Ramirez to the ground and was firmly on top of her, he slammed her head against the floor. There was summary judgment evidence that Ramirez suffered injury in the form of a black eye. And evaluating the evidence in Ramirez’s and Gonzales’s favor, Ramirez gave no indication that she was attempting to escape when she stood from the couch, as she was simply begging Sheriff Riley for help. Nor is it particularly plausible, especially once another officer arrived on-scene, that a handcuffed, pepper-sprayed subject could have posed much of a threat to Killian, either when she was standing or after Killian took her to the ground.

Established. Established. As to the dogs, it’s similarly well-established.

We are not even the first court to hold that a robust consensus of persuasive authority clearly establishes this exact legal proposition. The First Circuit in Maldonado “reject[ed]” the defendant state official’s argument that the “law was not clearly established because this court had not earlier addressed” whether killing a pet dog could constitute an unreasonable seizure. Rather, because four other circuits had already held as much, “the law was sufficiently recognized by courts to be clearly established.”

Furthermore, the lower court screwed up when it gave Deputy Killian a second swing at the “judgment as a matter of law” pinata. In doing that, it shifted the burden of proof to the plaintiffs, demanding they satisfy a completely non-existent third prong of the qualified immunity argument: “reasonable officer evidence.” That’s just not a thing, says the Appeals Court. The other two factors have already been satisfied, something that probably should have been gleaned from the jury finding in favor of the plaintiffs on the unlawful seizure claim.

Three errors is three errors too many. Back it goes to the lower court with the excessive force claims reinstated and the dog-killing judgment put back into place. Deputy Killian heads back to court as well, guaranteed that, if nothing else, he’s cost taxpayers a little more than $100,000. If the government is smart, it will offer a settlement before things get any worse or any more costly.

Filed Under: 4th amendment, 5th circuit, cops killing dogs, excessive force, james killian, police misconduct, texas

Judge Rejects Yet Another Attempt By Texas To Police Online Speech

from the another-one-bites-the-dust dept

Everything’s bigger in Texas, including the legislature’s willingness to pass laws that clearly violate the First Amendment rights of websites. In the last three years, this is now the third law directed at website moderation practices to be thrown out by a district court as an unconstitutional violation of the First Amendment. You’d think maybe the state’s leaders, who claim to be big First Amendment supporters, would recalibrate.

Remember, Texas was one of the earliest states to pass a law that sought to block social media from moderating content, claiming that allowing websites to have such editorial control harmed the free speech rights of citizens. Amusingly, this new law is about the same state of Texas ordering platforms to moderate other content, insisting that mandated takedowns are no violation of the First Amendment at all.

So on the one hand, the Texas state legislature thinks it can tell websites what content they can’t take down. And on the other, it thinks it can tell them what content they have to take down. It was wrong both times.

Texas HB 18 is one of a large and growing list of laws seeking to “protect the children online,” with unconstitutional restrictions. These laws are showing up in red states and blue states and everything in between. This one has a bunch of provisions which require age verification on any social media site, and then blocking of certain types of content for minors, as well as some level of parental controls.

The list of these laws and the challenges to them is growing so long that it’s easy to miss some of them. So I had seen that CCIA and NetChoice had challenged Texas HB 18 and had put it on my list of things to write up eventually. However, by the time I got around to it, we’d already had the first major decision in the case, enjoining significant parts of the law as unconstitutional under the First Amendment.

It’s a mostly good ruling by Judge Robert Pitman, who had also made an amazingly good ruling three years ago throwing out Texas’ other social media content moderation law. The Fifth Circuit then made a total mess of things, leading to the Supreme Court to just recently send the case back, noting how much of a mess the Fifth Circuit had made.

In this case, though, the ruling is a bit more of a mixed bag. It’s mostly good in that it calls out the most obviously unconstitutional bits and blocks Texas from enforcing them. But there’s more that’s maybe a little problematic, as I’ll explain at the end.

Also, this case is up against the backdrop of a third bad Texas law, the one requiring age verification for adult content websites. Last year, when that law was challenged, a different judge (Judge David Alan Ezra, who is technically based in Hawaii, but was hearing Texas cases because Texas doesn’t have enough judges) pointed out how obviously unconstitutional age verification is. Once again, the Fifth Circuit then made a mess of things, saying that it could ignore multiple precedents and that age verification was fine. The Supreme Court recently agreed to hear that case meaning that at least some part of this law (which has an age verification component) is going to need to wait until the Supreme Court sorts out the previous case.

That said, in a post-Moody world, the Supreme Court has said that any facial challenges to internet regulations must walk through every possible element of the law to determine if the whole thing needs to be thrown out. Thus, Judge Pitman walks through every last bit.

Texas AG Ken Paxton sought to block the case on a bunch of technicalities, but his efforts failed. It’s not worth going through the details here other than to note that Paxton challenged “associational standing.” This is something that Justice Clarence Thomas has been whining about lately, saying that trade associations (like CCIA and NetChoice) shouldn’t have standing to bring these challenges. However, as we’ve explained in great detail, that would be a disaster. Companies are more easy to pressure into not challenging laws, whereas trade groups have a lot more independence.

Also, we have a very long history of trade groups being told they do have standing. This would be a major change, and thankfully Pitman doesn’t take the bait.

Then we get to the main show: the First Amendment. Pitman notes that the law clearly impacts speech, and thus must pass strict scrutiny to survive. Paxton tried to claim that, based on the mess the Fifth Circuit made in the original social media law, that strict scrutiny would not apply, or at least not apply to the entire law. And Pitman responds with a “hey, did you not notice that the Supreme Court wiped out that ruling”?

In response, Paxton suggests that these arguments are foreclosed by the Fifth Circuit. (Resp., Dkt. 18, at 24 (citing NetChoice, LLC v. Paxton, 49 F.4th 439, 480 (5th Cir. 2022) (“NetChoice I”), vacated and remanded sub nom. Moody v. NetChoice, LLC, 144 S. Ct. 2383 (2024))). In NetChoice I, the Fifth Circuit rejected a similar argument brought by Plaintiffs by holding that regulations targeting social media did “not render [the law at issue] content-based because the excluded websites are fundamentally dissimilar mediums.” NetChoice I, 49 F.4th at 480.

That ruling is no longer binding because the Supreme Court vacated NetChoice I, “void[ing] each of the judgment’s holdings.” Doe v. McKesson, 71 F.4th 278, 286 (5th Cir. 2023); see also Moody, 144 S. Ct. at 2409 (vacating judgment). Paxton suggests that Moody “effectively confirmed, or at least did not disturb, the Fifth Circuit’s analysis on this point.” But the Supreme Court “disturbed” the analysis when it vacated the opinion. Paxton suggests that the Supreme Court’s own opinion “also rebuffed” Plaintiffs theory—but it is not clear how. (See Resp., Dkt. 18, at 24). To the contrary, the Supreme Court expressly stated that “there has been enough litigation already to know that the Fifth Circuit, if it had stayed the course, would get wrong at least one significant input . . . . ” Moody, 144 S. Ct. at 2349. While the Supreme Court did not determine “whether to apply strict or intermediate scrutiny[,]” that was only because “Texas’s law [did] not pass” either intermediate or strict scrutiny, at least applied to key respects of the law

Pitman points out that courts in Ohio and Mississippi had found problems with similar laws, especially when they treat different kinds of content differently. This law, like the ones in those other states, tried to narrowly mandate controls for social media and explicitly tried to carve out “news” sites, which showed that they were discriminatory.

Like the district courts in Yost and Fitch, this Court finds that HB 18 discriminates based on the type of content provided on a medium, not just the type of medium. A DSP that allows users to socially interact with other users but “primarily functions to provide” access to news or commerce is unregulated. An identical DSP, with the exact same medium of communication and method of social interaction, but “primarily functions to provide” updates on what a user’s friends and family are doing (e.g., through Instagram posts and stories), is regulated. If there is a difference between the regulated DSP and unregulated DSP, it is the content of the speech on the site, not the medium through which that speech is presented. When a site chooses not to primarily offer news but instead focus on social engagement, it changes from an uncovered to covered platform. But the type of medium has not changed, only the content primarily expressed on the platform.

In sum, strict scrutiny applies to HB 18’s provisions because the law regulates DSPs based on the content of their speech and the identity of the speaker

Because of this, Paxton will need to satisfy strict scrutiny, which means that the law is the “least restrictive means of achieving a compelling state interest.” Because of the Moody ruling, the court agrees to go provision-by-provision on this question. And thus, the “monitoring and filtering” provisions of the law fail as unconstitutional. There’s some good language in here, even though the Fifth Circuit will probably wipe it out in a few months.

These requirements force providers to develop strategies to “prevent [a] known minor’s exposure to harmful material and other content that promotes, glorifies, or facilitates: (1) suicide, self-harm, or eating disorders; (2) substance abuse; (3) stalking, bullying, or harassment; or (4) grooming, trafficking, child pornography, or other sexual exploitation or abuse.” HB 18 § 509.053. Irrespective of whether HB 18 as a whole is content-based, there can be little dispute that this provision is. The monitoring-and-filtering requirements explicitly identify discrete categories of speech and single them out to be filtered and blocked. That is as content based as it gets.

It is far from clear that Texas has a compelling interest in preventing minors’ access to every single category of information listed above. Some interests are obvious—no reasonable person could dispute that the state has a compelling interest in preventing minors from accessing information that facilitates child pornography or sexual abuse. See Sable Commc’ns of California, Inc. v. FCC, 492 U.S. 115, 126 (1989) (“[T]here is a compelling interest in protecting the physical and psychological well-being of minors.”). On the other end, many interests are not compelling, such as regulating content that might advocate for the deregulation of drugs (potentially “promoting” “substance abuse”) or defending the morality of physician-assisted suicide (likely “promoting” “suicide”). See Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 794–95 (2011) (“No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed.”) (internal citation omitted). The Supreme Court has repeatedly emphasized that “[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. Jacksonville, 422 U.S. 205, 213–13 (1975). Much of the regulated topics are simply too vague to even tell if it is compelling. Terms like “promoting,” “glorifying,” “substance abuse,” “harassment,” and “grooming” are undefined, despite their potential wide breadth and politically charged nature. While these regulations may have some compelling applications, the categories are so exceedingly overbroad that such a showing is unlikely.

The judge notes that even if you could make a case that the state has a compelling interest in stopping some of these categories of content, the law is not narrowly tailored enough to meet strict scrutiny.

As in Fitch, Paxton “has not shown that the alternative suggested by [Plaintiffs], a regime of providing parents additional information or mechanisms needed to engage in active supervision over children’s internet access would be insufficient to secure the State’s objective of protecting children.” 2024 WL 3276409, at *12. By contrast, Plaintiffs have demonstrated that many DSPs do implement content-moderation policies to ensure that minors cannot access harmful content. (Mot. Prelim. Inj., Dkt. 6, at 22). And Paxton has not shown that methods such as “hash-sharing technology” and publishing depictions of filtered content are necessary to prevent harm to minors. In short, HB 18 does not employ “the least restrictive means” to stop minors from accessing harmful material. See United States v. Playboy Ent. Grp., 529 U.S. 803, 813 (2000).

HB 18 also employs overbroad terminology. Again, the monitoring-and-filtering requirements impose sweeping ex-ante speech restrictions, akin to prior restraints,12 but does little more than vaguely gesture at what speech must be restrained. For example, what does it mean for content to “promote” “grooming?” The law is not clear. So, by requiring filtering as a matter of law with only vague reference to what must be filtered, HB 18 will likely filter out far more material than needed to achieve Texas’s goal

And then there’s the problem that all these laws have. They only cover some sites that host the content Texas finds so problematic.

More problematically, the law is underinclusive. A law that “is wildly underinclusive when judged against its asserted justification . . . is alone enough to defeat it.” Brown, 564 U.S. at 802. Websites that “primarily” produce their own content are exempted, even if they host the same explicitly harmful content such as “promoting” “eating disorders” or “facilitating” “self-harm.” The most serious problem with HB 18’s under-inclusivity is it threatens to censor social discussions of controversial topics. “[S]ocial media in particular” operates as one of “most important places . . . for the exchange of views . . . .” Packingham, 582 U.S. at 104. But HB 18 specifically cuts teenagers off from this critical “democratic forum[] of the Internet” even though the same harmful content is available elsewhere. Reno v. ACLU, 521 U.S. 844, 868 (1997). A teenager can read Peter Singer advocate for physician-assisted suicide in Practical Ethics on Google Books but cannot watch his lectures on YouTube or potentially even review the same book on Goodreads. In its attempt to block children from accessing harmful content, Texas also prohibits minors from participating in the democratic exchange of views online. Even accepting that Texas only wishes to prohibit the most harmful pieces of content, a state cannot pick and choose which categories of protected speech it wishes to block teenagers from discussing online. Brown, 564 U.S. at 794–95.

Pitman also notes that some of the language of the law is so vague as to make it unconstitutional as well:

Begin with the verbs: promote, glorify, and facilitate. One of those words—“promote”—has already been held to be vague when regulating First Amendment activity. In Baggett v. Bullitt, 377 U.S. 360, 371–72 (1964), the Supreme Court dealt with a regulation that imposed a loyalty oath for teachers to swear that they will “promote respect for the flag and the institutions of the United States.” (emphasis added). The Supreme Court found that the term “promote” was “very wide indeed” and failed to “provide[] an ascertainable standard of conduct.” Id. In response, Paxton suggests that Baggett dealt with a “‘wildly different situation’ than this one.” (Resp., Dkt. 18, at 38). But, if anything, the vagueness is more problematic under HB 18, because the law requires social media DSPs to guess which broad categories of speech, likely constituting billions of posts, must be filtered from view. So the wide-ranging meanings of “promote” will result in wide-ranging censorship of speech.

The problem is even more acute with the term “glorifying.” The word encompasses so wide an ambit that people “of common intelligence” can do no more than guess at its application. McClelland, 63 F.4th at 1013. To “glorify” potentially includes any content that favorably depicts a prohibited topic, leaving no clear answer on what content must be filtered. Do liquor and beer advertisements “glorify” “substance abuse?” Does Othello “glorify” “suicide?” Given the substantial liability companies face for failing to comply (to say nothing of the private rights of action), it is reasonable to expect that companies will adopt broad definitions that do encompass such plainly protected speech.

Other parts of the law have definition problems too:

The final issue for HB 18 is that the law fails to define key categories of prohibited topics, including “grooming,” “harassment,” and “substance abuse.” At what point, for example, does alcohol use become “substance abuse?” When does an extreme diet cross the line into an “eating disorder?” What defines “grooming” and “harassment?” Under these indefinite meanings, it is easy to see how an attorney general could arbitrarily discriminate in his enforcement of the law. See Smith v. Goguen, 415 U.S. 566, 575 (“Statutory language of such a standardless sweep allows [] prosecutors[] and juries to pursue their personal predilections.”). These fears are not too distant—pro-LGBTQ content might be especially targeted for “grooming.” See Little v. Llano Cnty., No. 1:22-CV-424-RP, 2023 WL 2731089, at *2 (W.D. Tex. Mar. 30, 2023) (finding that several books supporting proLGBTQ views were removed from library shelves for allegedly promoting “grooming”), aff’d as modified, 103 F.4th 1140 (5th Cir. 2024), reh’g en banc granted, opinion vacated, 106 F.4th 426 (5th Cir. 2024). Content related to marijuana use might be prosecuted as “glorifying” “substance abuse,” even if cigarette and alcohol use is not. This vast indefinite scope of enforcement would “effectively grant[] [the State] the discretion to [assign liability] selectively on the basis of the content of the speech.” City of Houston, Tex. v. Hill, 482 U.S. 451, 465 n.15 (1987). Such a sweeping grant of censorial power cannot pass First Amendment scrutiny

The court also finds that Section 230 preempts Texas’ law. This is an issue we’ve brought up with many state laws, which the courts have mostly ignored for a few years. Section 230 is clear that it preempts any state law that attaches liability to that which Section 230 immunizes. Pitman points out that this is clearly the case with this law.

Paxton said that the 230 preemption shouldn’t apply because the law wouldn’t hold platforms liable for third-party content, but rather for just violating the law itself. Judge Pitman points out that this is not how anything works:

Imagine that Texas passed a law stating, “Social media websites must remove defamatory content.” Under Paxton’s broad reading of Free Speech Coalition, the law would not be preempted because liability attaches based on whether a website complies with the law, not based on its content. That reasoning would altogether nullify Section 230 by having the same effect as directly imposing liability on the website for hosting third-party content. Section 230 provides “broad immunity” for providers for “all claims stemming from their publication of information created by third parties.” MySpace, 528 F.3d at 418 (emphasis added). Liability under HB 18 stems from the content it hosts, even if liability directly attaches based on compliance with the law. Accordingly, the Court finds that Section 230 preempts HB 18’s monitoring and filtering requirements.

That said, there is still one part of the ruling that is problematic. The judge allows the “data privacy, parental control, and disclosure provisions” to go forward, saying that CCIA & NetChoice failed to show how those provisions violate the First Amendment.

It remains possible that each provision will fail under strict scrutiny. But that is not a given. And it is not certain to be the case under HB 18, where many provisions seem to regulate conduct and only incidentally burden speech (if at all). See Moody, 144 S. Ct. at 2402 n.4. Plaintiffs do not show how Section 509.052 places any burden on speech by prohibiting the collection of PII and geolocation data. This is primarily a regulation of conduct, so it is not clear that the law restricts or even burdens speech. Similarly, it is not clear that a law requiring parents to be allowed to access and change their children’s privacy settings implicates First Amendment concerns. Overall, these provisions likely primarily regulate conduct, and while the Court can conceive of ways in which they do burden speech (e.g., reducing the hours a child may spend consuming speech on social media), that point is not sufficiently developed at this stage.

Hopefully, this will change with more briefing, as all three of those have serious First Amendment issues associated with them. Parental controls obviously impact the First Amendment rights of children. The disclosure provisions impact issues around compelled speech of platforms, some of which were discussed in the recent Ninth Circuit ruling in the NetChoice v. Bonta decision.

But still, on the whole, this is a good ruling. Now we just need to wait for the Fifth Circuit to mess it all up.

Filed Under: 1st amendment, 5th circuit, content moderation, filtering, hb 18, ken paxton, parental controls, robert pitman, strict scrutiny, texas
Companies: ccia, netchoice

Fifth Circuit Flips The Script, Declares Geofence Warrants Unconstitutional

from the SCOTUS-has-entered-the-chat dept

Oh, Fifth Circuit, you crazy, crazy kid. I take back almost all the bad things I’ve said about you.

The cop-friendliest circuit in the nation has done the unimaginable: set up a circuit-on-circuit showdown that can only be resolved by a Supreme Court decision. Until that happens (don’t hold your breath), you and your Google location data are safer in the Fifth Circuit (Texas, Louisiana, Mississippi) than the Fourth Circuit (Virginia, Virginia’s AAA-affiliate, both Carolinas, and Washington DC’s largest suburb, Maryland).

We won’t know whether the timing of this decision is impeccable or fortuitous or whatever until further case law is developed. But we can say this: it was nipping at the heels. The Fourth Circuit released its decision on geofence warrants roughly a month ago. That decision went entirely the other way. While there were a few concerns expressed about a single warrant being capable of forcing Google to search its entire collection of location data (something that affects more than a half-billion people), the Fourth Circuit said the Fourth Amendment mattered less than the Third Party Doctrine.

The third-party doctrine therefore squarely governs this case. The government obtained only two hours’ worth of Chatrie’s location information, which could not reveal the privacies of his life. And Chatrie opted in to Location History on July 9, 2018. This means that he knowingly and voluntarily chose to allow Google to collect and store his location information. In so doing, he “t[ook] the risk, in revealing his affairs to [Google], that the information [would] be conveyed by [Google] to the Government.” He cannot now claim to have had a reasonable expectation of privacy in this information. The government therefore did not conduct a search when it obtained the data.

The Fourth Circuit’s decision basically says the government doesn’t even need a warrant to collect this data from Google. If people opt in to Google’s location data collection, it’s on them. And if the sharing is “voluntary,” the government can have it for as little as a subpoena, no matter how broad the original search performed on its behalf by Google.

The Fifth Circuit goes completely in the other direction, which will definitely come as a surprise to law enforcement. After all, this is the circuit that sides with the government more often than not when it comes to constitutional violations performed by law enforcement officers.

This decision [PDF] is astounding for that reason alone. But it’s an important one — a decision that says using a single warrant to force a third party to dig through data contributed by hundreds of millions of people makes a mockery of the Fourth Amendment and its prohibition of “general warrants.”

This case — like the one handled by the Fourth Circuit — involves a robbery. In this case, it was a Mississippi postal worker being robbed and assaulted in February 2018. Most of the investigation involved the investigative wing of the USPS. Postal inspectors failed to generate any leads for the next nine months. At that point, they decided Google should perform the investigative work for them.

After consulting with other law enforcement agencies which had already issued geofence warrants, the USPS wrote one of its own. Its warrant stated there was probable cause to believe Google housed the data it was seeking. A geofence was drawn around the scene of the crime — one that covered 98,192 square meters.

However, Google’s first search was even broader than the specifications delivered to it by postal inspectors. It covered an area of 378,278 square meters during the date and time noted in the warrant (a one-hour period on the day of the robbery) and required Google to search all of its 592 million Sensorvault accounts.

The first search resulted in three identifiers matching the time/date/location restrictions. Without writing a new warrant based on the search results, the investigators went back to Google and demanded further identifying info for the three numbers Google had given them. This set gave the inspectors the device IDs. Again without crafting a new warrant, the investigators told Google to cough up any account information linked to the devices. Using this information, the USPS now had two suspects to pursue. Three suspects, with the lead defendant being the person listed on the caption header of the decision (Jamarr Smith), were arrested, tried, and convicted.

Citing the Supreme Court’s Carpenter decision — one that erected a warrant requirement for cell site location info collected from cell service providers — the Fifth Circuit says the other observations made by the nation’s top court in that case apply here: it’s an oversimplification to assume any data-sharing with service providers is “voluntary.” Since it’s not always obvious what’s being collected by who (see also: third-party data brokers and the government agencies that love them), it’s insulting to the Fourth Amendment to assume the Third Party Doctrine applies. And it says this while quoting the district court which ruled in favor of the criminal suspect before the Fourth Circuit reversed the evidence suppression order.

[T]he fact that approximately 592 million people have “opted in” to comprehensive tracking of their locations itself calls into question the “voluntary” nature of this process. In short, “a user simply cannot forfeit the protections of the Fourth Amendment for years of precise location information by selecting ‘YES, I’M IN’ at midnight while setting up Google Assistant, even if some text offered warning along the way.” Chatrie (Dist.), 590 F. Supp. 3d at 936

But there’s something even more concerning about geofence warrants, even when warrants are used: the breadth of the search. That’s where this court parts ways with not only the Fourth Circuit, but most jurisprudence surrounding geofence warrants. Not only is the search extremely broad, but at the point the search is performed, law enforcement officers don’t even know who they’re looking for. (Emphasis in the original.)

When law enforcement submits a geofence warrant to Google, Step 1 forces the company to search through its entire database to provide a new dataset that is derived from its entire Sensorvault. In other words, law enforcement cannot obtain its requested location data unless Google searches through the entirety of its Sensorvault—all 592 million individual accounts— for all of their locations at a given point in time. Moreover, this search is occurring while law enforcement officials have no idea who they are looking for, or whether the search will even turn up a result. Indeed, the quintessential problem with these warrants is that they never include a specific user to be identified, only a temporal and geographic location where any given user may turn up post-search. That is constitutionally insufficient.

That, my Fifth Circuit-residing friends, is what we call a “general warrant.” And we kicked those to the curb shortly after we kicked out our former British overlords. We shouldn’t be returning to this pattern and practice just because technology and opportunity have fortuitously aligned to give law enforcement a new way to identify suspects without ever having to leave their desks. (Emphasis in the original.)

While the results of a geofence warrant may be narrowly tailored, the search itself is not. A general warrant cannot be saved simply by arguing that, after the search has been performed, the information received was narrowly tailored to the crime being investigated. These geofence warrants fail at Step 1—they allow law enforcement to rummage through troves of location data from hundreds of millions of Google users without any description of the particular suspect or suspects to be found.

Warrants are always supposed to be narrowly tailored to minimize intrusion and collateral damage to constitutional rights. A warrant that ignores that isn’t any more constitutional just because it’s a warrant.

This won’t do much for the three convicted men. The good faith exception applies. But this isn’t one of those cases where a court says a lot of good things about rights but decides the underlying constitutional questions are best saved for another day. Precedent is established here, which means that going forward, most, if not all, geofence warrants are worthless in the states the Fifth Circuit oversees.

We hold that geofence warrants are modern-day general warrants and are unconstitutional under the Fourth Amendment.

This is a huge decision. And, of course, plenty of people already have opinions of their own. We’ll start with Orin Kerr, who disagrees with the court’s view that warrants are unconstitutional when the target of the warrant is just “too big to search.” (Emphasis in the original.)

Second, and much more dramatically, the Fifth Circuit rules that because the database of geofence records is so large, and because the whole database must be scanned through to find matches, the Fourth Amendment does not allow courts to issue warrants to collect those records. In legal terms, it is impossible to have a warrant particular enough to authorize the surveillance. The government can’t gather these kinds of online records at all, in other words, even with a warrant based on probable cause.

Right. That’s the holding. It may not survive a Supreme Court challenge. Hell, it may not even survive an en banc review, which is one of those things the Fifth Circuit tends to engage in every time it accidentally upholds constitutional rights. This ruling may prove to be extremely short-lived. And yet, Kerr’s main concern appears to be the presumed negative impact it will have on bulk surveillance collections and other extremely broad searches enabled by advances in technology.

I’ll end with a prediction. In a few days there will be a news story about some national security surveillance program that either stopped, or paused, or at least was the subject of a lot of emergency meetings. You won’t be able to tell from the news story what the program was, or what was the cause of concern. But the untold explanation will be a roomful of very worried national security lawyers trying to figure out what the heck to make of the Fifth Circuit’s ruling in United States v. Smith.

Flow my tears, the NSA analyst (who only agreed to speak on background) said. I fail to see the downside! But that’s me and my antipathy towards law enforcement’s slew of shiny new “EASY” buttons.

Here’s the first counter-argument, presented by none other than Judge James Ho of the Fifth Circuit in his concurrence:

[I] fully recognize that our panel decision today will inevitably hamper legitimate law enforcement interests.

But hamstringing the government is the whole point of our Constitution.

So, there’s the first pointed answer that should be stapled to the forehead of the first “source” quoted by reporters as being worried about the ripple effects of a postal truck robbery in the deep South.

Then there’s this response from ACLU lawyers Jennfier Granick and Brett Kaufman in their response to Orin Kerr’s post, which Kerr graciously published at the Volokh Conspiracy (along with his response to their response):

We have a prediction, too. We may see an unnamed national security official cited in a news story, lamenting the possible interruption to some purportedly essential surveillance program because of Smith. No one will tell us what the program supposedly is, or how exactly some limitations on the ability of law enforcement to search huge databases of private information without individualized suspicion interferes with the nation’s security, but that is what the anonymous source will suggest.

Don’t believe it. National security lawyers excel at exploiting legal loopholes to justify secret programs and insulate them from judicial scrutiny. We find it extraordinarily hard to believe that they will read the Fifth Circuit’s opinion in an unnecessarily overbroad and self-defeating fashion to require the executive branch to shut down one of its ongoing national security surveillance programs. Instead, as they usually do, the lawyers will find a way to justify the program to themselves, even if only by saying that the Fourth Amendment applies differently to foreign intelligence surveillance than to criminal investigations.

The government will be fine. The NatSec apparatus will function as well as ever. If there’s bulk surveillance targeting Americans (like the residents of Texas, Mississippi, and Louisiana), that definitely shouldn’t be happening in the first place and this will only make what’s probably an illegal program more illegal.

If cops can’t figure out a better way to find suspects than Googling for them, that’s on them. They all like to talk big about their training and experience. Now, they’ll just have to start putting all that training and expertise to actual work, rather than just expecting everyone else to do it for them. On top of that, Google has already shifted location data storage back to phone owner’s devices, meaning it’s got a whole lot less data to search for when it gets hit with these questionable warrants. This decision won’t add much “hampering” of law enforcement to the status quo.

My prediction? This will change nothing. The government will swiftly appeal this decision and petition the court for an en banc review while waiting to see if this is the sort of thing the Supreme Court might actually want to tangle with. In the meantime, every geofence warrant issued prior to this decision in this circuit is still valid. And they’re still valid in the other 47 states, so I wouldn’t be surprised to see law enforcement agencies roping in out-of-state agencies to write some geofence warrants on their behalf while they work overtime trying to establish some sort of multi-state nexus.

To be this alarmed already is idiotic. And, in my personal view, this isn’t even cause for alarm. This is the court system doing what it’s supposed to do: stand up for the people when the government crosses the line.

Filed Under: 3rd party doctrine, 4th amendment, 5th circuit, geofence warrants, usps

Seventh Circuit Allows Indiana’s Controversial Age Verification Law, For Now

from the age-verification-is-still-unconstitutional dept

The U.S. Seventh Circuit Court of Appeals has allowed Indiana’s age verification law to go into effect — even as the Supreme Court has suggested a similar law in Texas might be unconstitutional. The Seventh Circuit panel handed down this ruling, letting the law go into effect just weeks after the U.S. Supreme Court decided to take up a case challenging Texas’s nearly identical age verification law.

The high court just granted cert in that case, Free Speech Coalition et al v. Paxton. Free Speech Coalition (FSC), the trade group representing the adult content industry, sued Texas Attorney General Ken Paxton in a bid to block Texas’ HB 1181 law, which mandated age verification for adult content sites.

That law is quite similar to the one Indiana passed. In the Texas case, a split panel at the Fifth Circuit found HB 1181 to be constitutional, despite the Texas federal district court ruling that existing precedent made it clear that age verification mandates were unconstitutional. The Supreme Court agreed to review the 5th Circuit’s decision allowing the law to go into effect, but in the process they declined to block HB 1181 while litigation played out.

The ruling allowing the Indiana’s law to go into effect is quite peculiar. FSC sued the state of Indiana to block enforcement of Senate Bill (SB) 17, their age verification law. Judge Richard L. Young for the Southern District of Indiana ruled SB 17 “facially” unconstitutional and issued a preliminary injunction for the plaintiffs, blocking the law from taking effect. This ruling followed on many other rulings around the country rejecting age verification mandates as unconstitutional.

Indiana Attorney General Todd Rokita appealed the injunction to the Seventh Circuit. There, the majority opinion deferred to the Supreme Court’s allowance of Texas HB 1181 to stay in effect through the course of FSC v. Paxton as justification for the Indiana law to be enforced.

In other words, Indiana should be able to enforce its own law as well because SCOTUS is allowing Texas to enforce its law for now. The judges did this as a means to maintain “judicial efficiency.” They also put the case regarding the Indiana law on hold until the Supreme Court rules on Texas’ law.

While the judges concurred on staying the injunction against SB 17, Seventh Circuit Judge Illana D. Rovner dissented in part. Judge Rovner wasn’t convinced by Indiana’s argument that it was in the state’s interest to enforce the law, per the horrid precedent set by the Fifth Circuit, when it found age verification rules specifically targeting porn websites to be constitutional. Judge Rovner characterized these types of laws as potentially “burdensome.”

Consider this portion of Judge Rovner’s dissenting opinion:

“[We] impose a cost on the businesses and individuals that have to comply with the Act, and curtail their First Amendment rights, based solely on an unreasoned stay denial even though the only court decision as to this Indiana statute held that the burden is unconstitutional. And such a precedent could have drastic consequences in a future case where the economic burden of a statute was even greater by subjecting the parties to that burden while awaiting the Supreme Court’s decision without ever considering the relative harms to the parties.”

All three of the Seventh Circuit judges – Judges Frank H. Easterbrook, Amy J. St. Eve, and Rovner – determined SB 17 to be “functionally identical” to HB 1181. And since HB 1181 is already being enforced and the Supreme Court allowed it to stay in force during the ongoing litigation, it was deemed fair to follow this ruling and allow SB 17 to go into force as well. Rovner does note it is troubling they granted the motion to allow SB 17 to be enforced without ever considering the harm an age verification mandate would have on the suing platforms and users.

“Here…the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act.”

The Seventh Circuit declined to rule on the constitutionality of SB 17, unlike the Fifth Circuit in the case of Texas HB 1181. It only looked at whether or not the law could go into effect now or should be stayed.

Rovner rightly points out that the Supreme Court’s decision to grant cert in the Paxton case should cause some more careful thinking by the Seventh Circuit. It at least indicates that some at the Supreme Court feel the case in the Fifth was decided incorrectly.

One could as easily argue that the Court’s grant of certiorari signals a concern with the Fifth Circuit’s determination of constitutionality, and favors leaving the district court’s determination in place.

When reviewing these laws, it’s reasonable to think SCOTUS might believe that the Fifth Circuit erred in using rational basis (or, similarly, that it erred in how it applied that scrutiny). That would explain why it took the case. And thus, Rovner is correct that it’s a bit odd for the Seventh Circuit to effectively bless the Fifth Circuit’s approach right at the very moment the Supreme Court had indicated it may have problems.

Rovner also points out that the majority’s decision in the Seventh Circuit claims to be in favor of keeping the “status quo,” but that makes no sense, given that Indiana’s law has never been in force, and this move puts it into force:

Here, in contrast, the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act. If we were to alter that status quo, we should do so only by considering the stay on the merits and determining that a stay is appropriate under that analysis

Either way, for now the law is in effect, and Rokita can go after adult content sites for not making use of age verification while we wait for the Supreme Court to determine if the Fifth Circuit was correct in the first place.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

Filed Under: 5th circuit, 7th circuit, age verification, indiana, ken paxton, supreme court, texas, todd rokita
Companies: free speech coalition

7 Years And A Supreme Court Visit Later, Court (Again) Rules Cop Can’t Sue Activist Over Violent Acts Committed By Others

from the back-to-what-it-always-should-have-been dept

I can’t even imagine what it must be like to fight an obviously bogus lawsuit for most of a decade. That’s what activist DeRay Mckesson has been dealing with since 2017.

Mckesson participated in a protest in Baton Rouge, Louisiana all the way back in July 2016. At that protest, Officer John Ford (previously known as “John Doe”) was struck by a chunk of cement thrown by a protester. In response to this, the officer not only sued Mckesson but also a Twitter hashtag (#blacklivesmatter) and a social movement (Black Lives Matter).

Almost immediately, his lawsuit was dismissed with prejudice by a Louisiana federal court, which ruled he couldn’t sue hashtags, social movements, or even the person who organized the protest wherein the officer had been injured by someone other than the person he was suing.

That should have been the end of it. But the officer apparently had plenty of money to burn. Decisions were appealed and re-appealed and, unfortunately, the next court in line to handle the officer’s (clearly deficient) complaint was the Fifth Circuit Court of Appeals.

If any appellate court can find a way to keep a cop happy, it’s the Fifth. And so it did that very specific job, reviving the lawsuit in 2019 by reasoning that Mckesson’s decision to lead the protest onto a freeway was a negligent enough action it justified suing him over an injury caused by another protester, even if it didn’t occur during this particular bit of highway blocking.

This went to the Supreme Court, which rejected the Fifth’s (third) attempt to get this right, sending it back to the Fifth, which sent it back down to the federal court in Louisiana with the massive amounts of often-contradictory notes it had compiled during its multiple takes on the lawsuit.

Finally, after seven years of litigation, four visits to the Fifth Circuit Appeals Court, and one trip to the nation’s top court, the district court in Louisiana has issued a ruling [PDF] that brings everything full circle: this lawsuit is bullshit and always has been. (h/t Short Circuit)

Plaintiff John Ford, a Baton Rouge Police Department officer, was on duty at a demonstration in Baton Rouge on July 9, 2016, when he was struck by a heavy object thrown by an unidentified demonstrator. Ford sued Defendant DeRay Mckesson, now the sole remaining Defendant, alleging that Mckesson negligently organized and led the protest and was therefore liable under Louisiana tort law for Ford’s injuries. Now before the Court is Defendant’s Motion for Summary Judgment, which argues that Plaintiff’s action must be dismissed because the summary judgment evidence shows that Defendant did not organize the protest, breached no duty to Plaintiff, and was not the cause-in-fact of Plaintiff s injuries. Plaintiff opposes the Motion. For the reasons that follow, Defendant’s Motion will be granted, and Plaintiffs action will be dismissed with prejudice.

Even if the court was inclined to read the state tort law as capable of covering acts performed by someone other than the person being sued, it would need a whole lot more connective tissue in terms of the defendant’s involvement in the act that injured the officer.

In this case, there’s not even evidence that Mckesson organized the protest, much less led it, and… much less committed any illegal act himself or encouraged others to do so.

That section, entitled “Mckesson organized and led the protest, references a “tweet of the location and time of the protest” that Defendant acknowledged “re-tweet[ing].” The section also cites deposition testimony about the organizing of the protest, in which Defendant said that he did not know the organizers personally, and only met them on the night of the protest.

As for Plaintiff’s own recollection of the protest, he testified that he did not “hear” Defendant giving any orders during the protest, although he heard Defendant “[tell protesters] to come out into the road.” Finally, Plaintiff submitted a video filmed in part by Defendant during the protest. In the five minutes of the video before Defendant’s arrest, Defendant in no way blocks traffic, engages in violence, or gives orders to anyone. Indeed, Defendant appears to be walking in the middle of the protest rather than at the head of it.

Given this, it’s impossible to allow the lawsuit to proceed. Doing so would mean anyone in the general vicinity of any incident or occurrence that might involve (at some point) criminal activity could be sued simply for being near the protest (or whatever) where criminal activity occurred. (All emphasis in the original.)

Although Defendant may have participated in similar protests in other places, none of the specific allegations regarding his role in this protest are supported by the evidence. In other words, Plaintiffs case for causation rests solely on Defendant’s possible presence at other protests and his possible direction of some protestors into the road. The Court will not impose liability on a protest participant for the actions of an unidentified individual under these circumstances.

Hopefully, that’s the end of it. I would have to assume (although IANAL) all appeal options have been exhausted. But this cop has been particularly tenacious in this case, determined to hold perhaps the most recognizable person in this protest at least indirectly responsible for the injury he sustained while policing the protest. But the law doesn’t work that way. It never has. But somehow this lawsuit managed to be reviewed by higher courts five times before ending the way it should have ended years ago.

Filed Under: #blacklivesmatter, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, suing a hash tag, supreme court

Fifth Circuit Is Going To Take Another Swing At Its Extremely Messy Library Book Removal Decision

from the hopefully,-it-won't-get-worse dept

I supposed the court had no choice, but I’m always a little wary when the Fifth Circuit decides to take another look at some litigation, especially when it involves certain amendments like the First. Or the Fourth.

This case, however, is a mess. It began (as far too many do these days) with a supposedly concerned citizen griping about some books they’d likely never even looked at, much less read. Rather than approach the Llano County library directly, they took their complaints to county judge Ron Cunningham. The judge, unbelievably, ordered the library to remove the books, including the (and I’m quoting directly here) “books about butts and farts.”

Llano County Commissioner Jerry Moss also inserted himself into this mess by telling the library director to comply with the apparently unlawful order from the judge, telling her to “pick her battles” and that refusing to comply with the judge’s request would result in “bad publicity.”

Having succeeded with getting “butts and farts” books off the shelves, another resident took a list written by former Texas state rep Matt Krause of books he considered to be “pornographic filth” to the judge, who then ordered the library director to remove all books that “depict any type of sexual activity or questionable nudity.” (Matt Krause is exactly the sort of person you think he is, even if this is all you know about him at this point.)

While that order did not clear the shelves of dozens of romance novels, it did result in the removal of LGBTQ+ content, as well as two books about racism in the United States (Caste; They Called Themselves K.K.K.). These are the sorts of books being challenged and banned all over the US right now because the Party of Free Speech has collectively decided no one should be allowed to learn about endemic racism and/or sexual identity.

This resulted in a lawsuit to void the judge’s order and return these books to the shelves. The lower court agreed with the plaintiffs and ordered the books to be made available again. The county appealed and the Fifth Circuit went to work making a mess of it.

The majority partly agreed with the plaintiffs. It said eight of the 17 pulled books needed to go back on the shelves. A concurring opinion pretty much agreed, but said the majority allowed too many books to be reinstated, taking issue with any of “butts and farts” books due to their (alleged) lack of artistic merit.

I disagree, first, because not all of the books express an “idea” or “viewpoint” in the sense required by the caselaw. I am referring to the items we have needed to label for clarity as the “butt and fart books.” Viewpoints and ideas are few in number in a book titled “Gary the Goose and His Gas on the Loose” — only juvenile, flatulent humor. Perhaps a librarian selected the book believing the juvenile content would encourage juveniles to read. Even if that is so, I do not find those books were removed on the basis of a dislike for the ideas within them when it has not been shown the books contain any ideas with which to disagree.

A longer dissent made better points, even if it didn’t really offer a clear path to victory for either party. It said the majority opinion was unworkable, because it applied subjective standards for book placement/removal that wouldn’t have prevented what happened here. Instead, it would make curation almost impossible and, quite possibly, deprive librarians of any control over book selection.

It also pointed out that removing the subjective standards wasn’t much better, which meant librarians could be forced to carry racist content just as surely as it would require them to carry books detailing racism in the United States. The final call, via the dissent, was this: curating public library content is government speech and, as such, the First Amendment standards do not apply. If we want libraries to do the best they can to serve their communities, librarians must be allowed the discretion to select books and decide which books they’d rather not have on their shelves.

The Associated Press is calling this a victory for Llano County officials, even though it’s nothing more than a short order informing the public this case is going to be reheard.

The decision to rehear the case was a victory for Llano County, whose lawyers argued that there were numerous errors in the June 6 opinion, including the incorrect claim that the books had not been returned the shelves pending appeals.

As much as I dread the Fifth taking another swing at this, it kind of has to. The decision it handed down raised at least as many questions as it answered. The underlying problem — a cadre of close-minded individuals intent on ridding libraries of content they don’t personally like — isn’t going to be addressed, no matter what the en banc court decides.

But the least the court can do on the second pass is take a closer look at the directives issued by the county judge, which has nothing to do with discretion and curation, and everything to do with one branch of the government acting as a censor for a different branch of the government. That’s the bigger issue here. Librarians should be allowed to curate content and they should be responsive to complaints from library patrons. But these patrons didn’t talk to the library director. They went straight to a judge and got the judge to issue orders that overrode the discretion of librarians. And unless that gets addressed, this will become a favorite tool for people who think they should get to decide what content everyone has access to.

Filed Under: 1st amendment, 5th circuit, book ban, free speech, jerry moss, library, llano county, ron cunningham, texas

Lawsuit Against ICE And Its Fake College Can Continue, Says Fifth Circuit

from the can't-defraud-people-while-hunting-fraudsters dept

During the Trump administration, ICE came up with the highly questionable scheme of setting up a completely fake college solely for the reason of setting up immigrants on H-1B visas for failure. The DHS and ICE created a faux university in Michigan (the “University of Farmington”), complete with a (fake) social media presence. Then it “opened” its doors to students on H-1B visas, which allowed foreign students to remain in the United States as long as they continued their education.

The sting operation worked well enough to result in 161 arrests, but only eight criminal charges. More than 600 prospective students paid the $100 application fee. An untold number also paid tuition for classes they’d never be able to take.

The DHS didn’t offer any refunds, even to students cleared of wrongdoing. That has resulted in a least two class action lawsuits against the government for doing the exact thing it claimed it was trying to stop: defrauding foreign residents. ICE claimed the sting was meant to catch huckster middlemen who defrauded honest students. But it invalidated several visas just because students fell for its trickery. Then it had the temerity to suggest the students duped by the hoax school should have known it was a hoax.

You can’t run a successful sting operation if everyone knows it’s a sting operation. And yet, that was the argument made by the government in one lawsuit. That one was revived in 2019 by the Third Circuit Appeals Court, which said this group of plaintiffs could continue suing the government for cancelling their visas after they fell victim to ICE’s sting operation.

This lawsuit, which has been revived by the Fifth Circuit Appeals Court, makes a different claim: that students who paid application fees and tuition were defrauded by the government when it failed to deliver the education it promised in exchange for the money it took from H-1B visa holders. (h/t C.J. Ciaramella/Reason)

The decision [PDF] opens with a very brief recounting of the ICE sting operation.

Starting in March 2018, Ravi Teja Tiyagurra paid thousands of dollars to the “University of Farmington” to enroll as a student, expecting to take classes. At the time of his enrollment, Mr. Ravi was unaware that the University was not a university at all but had been formed and advertised to offer educational services for money—though not actually provide them—as an undercover operation of the United States Department of Homeland Security (DHS) to target fraud involving student visas. The government’s operation eventually came to light, but the government neither provided the paid-for education nor gave Mr. Ravi his money back.

A whole lot of procedural history dealing with government contracts, sting operations, and changes in precedent over the past fifty years is covered by the court before it starts spelling things out for the laypeople.

Of course, the government can engage in sting operations. And, of course, the government needs to go through all the motions necessary to make the faux operation seem as real as possible. In this case, that meant accepting application fees and tuition payments. But that doesn’t mean the government can renege on its end of its contract just because it never had any intention of offering classes to victims of its sting operation.

In so ruling, we do not doubt, of course, that the government entered into the contract at issue in order to carry out a sovereign function of discovering criminal activity it might then prosecute. But that is not the right focus of the inquiry. The same would be true of a lease the government entered into to set up an office to use in carrying out its undercover operation. The focus of the Kania exception, in our precedent, has been on the particular agreement and its subject, not the overall activity of which the agreement is a part.

In other words, the government can rent office space to conduct a sting operation. But it still has to pay the lease, even if it’s not really running a business out of that space. In this case, the government was obliged to either refund the money it took in its fake college sting or provide the paid-for services. What it can’t do is keep the money it accepted as part of an agreement with prospective students just because it never intended to provide educational services.

The government’s argument is so far off base and unsupported by any precedent, including the cherry-picked selections the government presented in its counterarguments. The Fifth Circuit says these arguments aren’t going to work here and, one assumes, won’t fare much better when this case returns to the lower court.

[T]he government relies on the notion that, because it was only pretending to operate a university, there could not have been intent to contract on its part, even though it took (and has kept) the money Mr. Ravi paid for the offered education, and it makes that assertion even accepting the assumption, required at the present stage of the case, that Mr. Ravi intended to obtain the education for which he was paying. The argument is that even when there is an objectively clear offer and acceptance, with acceptance in the form of paying money to the offeror, there is no contract enforceable against the offeror, for want of mutuality of intent, as long as the offeror had its fingers crossed behind its back when making the offer and accepting the money.

If nothing else, it looks like Mr. Ravi might finally get his tuition refunded. And if he does, anyone else who paid in and got nothing out of it should be expecting a refund as well. Perhaps the government will learn from this and run cleaner sting operations in the future. Then again, it never should have permitted this particular operation to take place, since it’s clear most of the people “caught” in the sting were just people honestly seeking to continue their education.

Filed Under: 5th circuit, dhs, ice, lawsuit, sting, sting operation, visas

DOJ Asks Fifth Circuit To Block The Injunction RFK Jr. Thinks He’s Now Entitled To Regarding Social Media

from the can't-believe-we're-doing-this-again dept

I’m not going to go through all the background on this story, because we just did that yesterday. If you missed that post, it will help to go read it before reading this one. I concluded that post by noting that, thanks to district court Judge Terry Doughty petulantly claiming he can’t stay an obviously problematic injunction (and nearly identical to the injunction the Supreme Court just trashed in the Murthy decision), the DOJ would likely quickly run to the Fifth Circuit to ask for the same relief.

And run they did. Before my article had even posted, the DOJ had filed an emergency motion with the Fifth Circuit asking for a stay on these issues. The motion is basically the same thing the DOJ filed in the district court, just now asking the Fifth Circuit the same thing:

The government respectfully requests a stay pending appeal of the district court’s preliminary injunction. A stay is warranted because the Supreme Court previously stayed, and ultimately reversed, an identical injunction issued by the same district court based on the same record. The Supreme Court’s decision makes clear that the government is likely to succeed on appeal, and the Supreme Court’s prior stay confirms that the equities and the public interest warrant a stay while the appeal proceeds. We request relief by July 24, 2024, to allow sufficient time for the Supreme Court to consider an application for a stay, should the Solicitor General elect to file one. We have sought plaintiffs’ position but have not received a response.

Almost immediately, RFK and his co-plaintiffs filed a “nuh uh, we’re totally different” response using the same argument they had used in the district court:

The chief difference between this action and Murthy is the identity of the plaintiffs. The Kennedy Plaintiffs have a very different, “strong claim to standing,” and Mr. Kennedy in particular, as a candidate for President, has an urgent claim to relief. Murthy v. Missouri, 144 S. Ct. 32, 32-33 (2023) (Alito, J., dissenting from denial of leave to intervene) (“Indeed, because Mr. Kennedy has been mentioned explicitly in com munications between the Government and social media platforms, he has a strong claim to standing, and the Government has not argued otherwise. Our democratic form of government is undermined if Government officials prevent a candidate for high office from communicating with voters, and such efforts are especially dangerous when the officials engaging in such conduct are answerable to a rival candidate.”).

First of all, ignoring what the majority actually said while citing the dissent of the majority is a choice. But the main thing is that the core issue still stands. If the administration were actually coercing social media companies into their moderation decisions, then perhaps the plaintiffs would have standing.

But no one — including RFK Jr. — has presented any evidence of such coercion.

And therefore, the fact that he’s a candidate for President (with no chance to win) is meaningless here.

And, yes, if the administration was actually pressuring social media companies to silence other candidates for President, RFK Jr. would have a point. But social media companies have plenty of reasons to pull down RFK Jr.’s dangerous nonsense peddling that is making kids sick by creating vaccine hesitancy and other nonsense. That’s got nothing to do with the government suppressing speech of a rival candidate, and everything to do with that candidate spewing dangerous stuff.

But, this is the Fifth Circuit, which has a history of making decisions driven by ideology more than reality. So it’s entirely possible that they reject this, and the issue quickly returns to the Supreme Court’s shadow docket, as the government is forced to seek an emergency order putting a stay on the clearly ridiculous injunction.

That would be quite fast, and while the initial request would flow up through Justice Alito (who wrote the cantankerous dissent), I could see enough Justices getting pretty pissed off that the Fifth Circuit seemed to clearly not be paying attention to what the majority was saying in its ruling regarding standing.

Filed Under: 5th circuit, content moderation, doj, murthy v. missouri, rfk jr., supreme court
Companies: children's health defense, meta

RFK Jr. Seems To Think The Supreme Court’s Murthy Decision Means The Gov’t Is Now Barred From Talking To Social Media

from the that's-not-how-any-of-this-works dept

RFK Jr. seems to believe that being a Kennedy and spouting anti-vax nonsense qualifies him to be President. Now, he’s taking his delusions to a whole new level by arguing that the Supreme Court’s Murthy decision means the government can’t even talk to social media companies anymore. Buckle up, folks, this is going to be a wild ride.

Vanity Fair recently had quite the takedown of RFK Jr. based on conversations with his own family members. It is made quite clear that RFK Jr. is not one to let facts get in the way of whatever nonsense he’s decided to claim to the world.

And while people can point to lots of high-profile ways in which that has played out, I’m going to point out one that is relevant to Techdirt’s general interests: RFK Jr. has been trying desperately to sue whoever he can think of to complain about getting booted from Facebook.

He has sued various social media companies, which have failed spectacularly (thanks to Section 230). He recently has decided to try suing Meta, yet again, in the belief that his Quixotic Presidential campaign somehow makes the issue different than it was before.

However, he also sued the Biden administration directly in 2023. He kept prattling on ignorantly, arguing that the administration is deliberately trying to stifle his speech (which is kind of hilarious, given that any time he talks, more people realize what a nutcase RFK Jr. actually is). RFK filed the lawsuit in the same court where Missouri/Louisiana and some other nonsense peddlers appeared to be having some success in their equally batshit lawsuit against the administration over social media moderation.

Soon after filing the case in the same court, where they were guaranteed to get the same judge, RFK sought to merge his case with the Missouri case. Judge Terry Doughty, after issuing his batshit crazy decision in the case, more or less agreed to merge Kennedy’s case into the Missouri v. Biden docket. He issued a similar injunction as the one he issued in that case, but put it on hold until ten days after the Supreme Court sent down its ruling in the original Missouri case.

As you likely now know, after getting a still crazy (but slightly less crazy) Fifth Circuit ruling, the Supreme Court took the case, newly dubbed Murthy v. Missouri, and made it clear that none of the plaintiffs could show standing. The majority opinion also made it quite clear that both the district court decision and the Fifth Circuit decision were crazy because they were willing to accept absolute nonsense as fact, when it was obviously not.

While that decision sent the case back down to the lower court, unless you were delusional and totally committed to believing things that were not true, you would realize that this basically meant that such a case had no chance to go anywhere.

Enter RFK Jr.

The day after the Supreme Court ruling came down, the DOJ did the proper thing and notified Judge Doughty of the Supreme Court opinion. The DOJ also pointed out that given the nature of the Supreme Court ruling, RFK Jr. also clearly lacked standing. So, rather than letting the injunction go into effect, the DOJ intended to file a motion asking Judge Doughty to “vacate” the injunction he had granted RFK.

While this Court’s stay remains in effect, the government intends to file with this Court a motion for an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the preliminary injunction in Kennedy because the Kennedy plaintiffs (who relied exclusively on the same set of facts “before the Court in Missouri v. Biden,” ECF No. 6-1 at 2) lack standing under the Supreme Court’s analysis in that case. If the Court issues such a ruling, the government would seek a remand from the Fifth Circuit under Federal Rule of Appellate Procedure 12.1 to allow this Court to enter the requested vacatur. In the alternative, the government plans to ask this Court to stay the Kennedy preliminary injunction for the full duration of the pending appeal from that injunction, if the Court declines to enter the requested indicative ruling.

The DOJ also argued that the clock on the “10 days” until the injunction supposedly went into effect didn’t start ticking until the Supreme Court officially sent the decision to the lower court, which would be a month or so later:

Under Supreme Court Rule 45.3, the Supreme Court “will send” its judgment to the lower court “32 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it be issued sooner.” The Supreme Court will accordingly send down its ruling on Monday, July 29, 32 days (plus a weekend day) from yesterday. The government understands this Court’s stay of the preliminary injunction in Kennedy to extend for ten days after that date—i.e., the date on which the Supreme Court “sends down” its ruling in Missouri.

RFK Jr’s lawyers jumped in to say “nuh uh” and to suggest that the injunction (which the Supreme Court had clearly rejected regarding the other plaintiffs in the case) should go into effect very soon.

Two days ago, on Wednesday, June 26, 2024, the Supreme Court handed down its ruling in the Missouri v. Biden case. See Murthy v. Missouri, No. 23-411, 2024 WL 3165801 (U.S. June 26, 2024). Accordingly, under the plain language of this Court’s ruling—and contrary to the Notice of Opinion filed yesterday by Defendants—it would appear that this Court’s stay will be “automatically lifted” on July 7, 2024—eleven days after Murthy was handed down—and that the preliminary injunction will, absent further judicial action, become operative on that day.

The DOJ then felt the need to file a “motion for clarification” from Judge Doughty. First, they point out that RFK’s lawyers are misrepresenting what Judge Doughty actually said in his ruling on the stay of the injunction:

Defendants disagree with the Kennedy Plaintiff’s interpretation, which does not accord with the Supreme Court’s rules governing the timing of when the Supreme Court “sends down” its opinions and judgments. The Kennedy Plaintiffs seize on the Court’s use of the phrase “handed down” at some points in its opinion—and if that were all the Court’s order said, then the Plaintiffs’ interpretation would be reasonable. But in the decretal language of its order—the part that has actual legal force—the Court unambiguously referred to the date on which the Supreme Court “sends down” its ruling. See Dkt. 38 at 23 (“IT IS FURTHER ORDERED that in light of the stay issued by the Supreme Court of the United States in Missouri v. Biden, this order is STAYED for ten (10) days after the Supreme Court sends down a ruling in Missouri v. Biden.”). Plaintiffs never acknowledge that language or attempt to square their interpretation with it.

But, even more importantly, the DOJ says, in effect, “hey, in light of SCOTUS saying ‘no standing’ for the other plaintiffs, how about we extend the stay on the injunction no matter what so we can brief you on why RFK also has no standing”:

In the alternative, if the Court adopts Plaintiffs’ characterization of the duration of the stay, Defendants request that this Court grant a 26-day extension of the stay beyond the expiration date urged by Plaintiffs, until and including Friday, August 2, 2024, to enable the parties to fully brief and this Court to decide (1) a motion by Defendants for an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the preliminary injunction in Kennedy because the Kennedy plaintiffs lack Article III standing under the Supreme Court’s analysis in Murthy, and (2) in the alternative, a motion by Defendants for a stay pending appeal for the full duration of the pending appeal from that injunction, if the Court declines to enter the requested indicative ruling.

In response, RFK filed something saying that the DOJ should have requested this kind of clarification when Doughty first issued his “10 days” ruling:

If Defendants genuinely found the Court’s stay ruling unclear, or if they viewed eleven days as insufficient, they had five months to ask this Court or the Fifth Circuit for relief. Instead, Defendants sat on their hands, and now, five days after Murthy was handed down, Defendants move for “clarification” of a ruling that is already clear, and for the further stay of an injunction already on appeal.

But then, RFK goes on to argue (ridiculously, and wrongly) that he has much stronger arguments for standing on the basis of him being a laughably unqualified candidate for President.

The bottom line is that the Kennedy Plaintiffs have much stronger standing than did the Missouri plaintiffs, and Mr. Kennedy in particular, as a candidate for President who is still being brutally censored on major social media platforms (just as this Court predicted) , urgently requires and is entitled to vindication of his rights

But that’s not what gives you standing. What gives you standing, Bobby Jr., is actual evidence that the government coerced social media companies to shut down your accounts, and that it didn’t happen because your anti-vax nonsense violated their policies. And RFK can’t show that because it didn’t actually happen.

However, they also argue that the right place for this discussion is not in Judge Doughty’s courtroom, but rather at the Fifth Circuit. As we’ll discuss below, this was the most compelling bit to Judge Doughty who decided that this is out of his courtroom for now.

The DOJ then responded to this even more stringently, pointing out that RFK obviously has no standing, based on the Murthy ruling.

First, the Supreme Court’s decision in Missouri demonstrates that the Kennedy Plaintiffs lack standing to obtain a preliminary injunction. The Kennedy Plaintiffs stated that they “do not rest their claims on censorship of their own speech. Rather, Plaintiffs have brought this case as (and on behalf of) social media users, whose right to an uncensored public square is being systematically violated.” Dkt. 20 at 2.1 And this is the sole basis for standing that this Court found for Plaintiff Sampognaro, who “submitted no direct evidence of content suppression.” Dkt. 38 at 11. But the Supreme Court rejected this “startlingly broad” theory, “as it would grant all socialmedia users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech.” Missouri, 2024 WL 3165801, at 16. And the Court held that such a theory fails to establish an Article III injury absent “any specific instance of content moderation” of a third-party to whom Plaintiff had a “concrete, specific connection,” “that caused [plaintiff] identifiable harm,” id. at 16-17. Plaintiffs fail to supply any such example.

Nor can the Kennedy Plaintiffs rely on a direct censorship theory of standing following Missouri because they have failed to show any future injury that is traceable to the government conduct they seek to enjoin—much less any future injury that is traceable to each of the governmental Defendants covered by the preliminary injunction. Id. at 7-8; see id. at 9 (“‘[P]laintiffs must demonstrate standing for each claim that they press’ against each defendant, ‘and for each form of relief that they seek.’”) (citation omitted). In Missouri, the Supreme Court explained that “[t]he primary weakness in” the plaintiffs’ reliance on “past restrictions” of their content by social-media platforms is that this Court made no “specific causation findings with respect to any discrete instance of content moderation”—in other words, no findings that any act of content moderation was attributable to actions by Defendants (much less a particular Defendant) as opposed to the third-party platforms’ exercise of their independent discretion. Id. at *8. The Kennedy Plaintiffs motion for a preliminary injunction, which “submit[s] no new evidence,” Dkt. 6-1 at 1, did not rectify that deficiency.

Furthermore:

Kennedy adduced no evidence establishing that any social-media company’s action against his accounts can be attributed to the actions of a Defendant. In fact, the record evidence is to the contrary: Facebook explained that it removed pages and accounts linked to the “[D]isinformation [D]ozen” “for violating [Facebook’s] policies,” and noted that it was not imposing a complete ban because “the remaining accounts associated with these individuals [were] not posting content that [broke Facebook’s] rules.” Missouri, Dkt. 10-1, Ex. 37 at 1. That suggests the relevant actions reflected the platform’s own decisions, not any governmental action.

The DOJ then also points to the recent Vullo decision from the Supreme Court, which reinforced the standards from Bantam Books in deciding whether or not a government official has coerced a third party to censor someone. The DOJ says that there’s no way RFK can meet the standards set forth in that decision:

As the Supreme Court recently emphasized in a decision issued after the Kennedy preliminary injunction, it is perfectly “permissible” for the government to “attempt[] to persuade” a private party not to disseminate speech, National Rifle Association, 602 U.S. at 188, so even a showing that platforms would not have taken content-moderation actions against plaintiffs’ speech but for the government’s actions would not suffice to show that those actions violated the First Amendment. Rather, the relevant question is whether the government’s “conduct … , viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”

The Kennedy Plaintiffs are unlikely to be able to demonstrate on the merits that the government coerced the platforms to act given the difficulties identified by the Supreme Court in even establishing that the government’s actions influenced the platforms. See Missouri, 2024 WL 3165801, at *13 n.8 (“acknowledging the real possibility that Facebook acted independently in suppressing [the plaintiff’s] content”). Accordingly, the injunction should be dissolved

The DOJ also points out that Doughty should stay the injunction if only because the issue is going to have to be dealt with by the Fifth Circuit anyway, and it’s standard practice to stay such an injunction until an appeal is decided. Also, they point out that if the Kennedy injunction goes into effect, it will bar all sorts of communications that the Supreme Court in Murthy said were perfectly normal, reasonable communications between government officials and private companies.

Because the universal preliminary injunction here is identical to the injunction in Missouri, it also will inflict exactly the same harms that the Supreme Court found sufficient to issue a stay in that case

But… the very next day, Judge Doughty basically wiped his hands of the issue, saying that the case is out of his court, and if there’s an issue they should take it up with the Fifth Circuit:

This Court lacks jurisdiction to address Defendants’ request. Generally, a notice of appeal divests the district court of jurisdiction over the judgment or order that is the subject of the appeal. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 578 (5th Cir. 1996). The Court in Sierra Club noted that Fed. R. Civ. P. Rule 62(d) provides an exception to this rule when an appeal is taken from an interlocutory or final judgment granting, dissolving or denying an injunction where the district court may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. Id. The court in Sierra Club further noted that the authority granted by Rule 62(c) does not extend to the dissolution of an injunction and is limited to maintaining the status quo.

But wouldn’t maintaining the status quo at least mean maintaining the stay that blocks the injunction from going into effect? He’s doing the reverse of “maintaining the status quo” by apparently letting his original injunction go into effect. Which means, in theory, that the government is yet again barred from talking to social media companies even as the Supreme Court just said that was stupid.

And thus… it seems that the DOJ is likely to make these arguments again before the Fifth Circuit, which is where logic and common sense go to die.

Filed Under: 5th circuit, doj, injunction, jawboning, murthy v. missouri, rfk jr., standing, supreme court, terry doughty
Companies: meta

Didn’t We Already Do This? Twenty Years After Supreme Court Rejected Age Verification Law, It Takes Up New Case

from the 5th-circuit-itching-for-another-smackdown dept

Just when you thought the internet was safe from the meddling minds of the Supreme Court, the Justices have decided to take another crack at reviewing whether or not a new set of state regulations of the internet violates the First Amendment. And this time, it has a “but won’t you think of the children online” element to it as well.

Just a day after concluding decisions for the last term and (thankfully) not destroying the internet with its NetChoice decisions, the Supreme Court released a new order list regarding petitions for cert and announced that it would be taking Free Speech Coalition’s challenge to Texas’ internet age verification law, giving it yet another chance to potentially screw up the internet (or, hopefully, to reinforce free speech rights).

If you haven’t been following this case, it’s an important one for the future of privacy and speech online, so let’s bring everyone up to speed.

Two decades ago, there was an early moral panic about kids on the internet, and Congress went nuts passing a variety of laws aiming to “protect the children online.” Two of the bigger attempts — the Communications Decency Act and the Child Online Protection Act — were dumped as unconstitutional in Reno v. ACLU and Ashcroft v. ACLU.

Among other things, the Reno case established that the First Amendment still applies in online scenarios (meaning governments can’t pass laws that suppress free speech online) and the Ashcroft case established that age restricting access to content online was unconstitutional as it failed “strict scrutiny” (necessary to uphold a law that has an impact on speech). In large part, it failed strict scrutiny because it was not the “least restrictive means” of protecting children and would both likely block kids from accessing content they had a First Amendment right to access while also blocking adults from content they had a right to access.

However, we’re deep in the midst of a very similar moral panic about “the kids online” these days, despite little actual evidence to support the fearmongering. Nonetheless, a ton of states have been passing all kinds of “protect the kids online” laws. This is across both Republican and Democrat-controlled states, so it’s hardly a partisan type of moral panic.

Multiple courts have been (rightly) tossing these laws out as unconstitutional one after another, with many (rightly) pointing to the decision in Ashcroft and pointing out that the Supreme Court already decided this.

Many of the age verification laws (especially those in Republican-controlled states) have been focused specifically on adult content websites, saying those sites in particular are required to age gate. And while it makes sense that children should not have easy access to pornographic content, there are ways to limit such access without using problematic age verification technology, which puts privacy at risk and is not particularly effective. Indeed, just a couple weeks ago, an age verification vendor used by many internet companies was found to have leaked personal data on millions of people.

Allowing age verification laws online would do tremendous damage to the internet, to kids, and to everyone. It would create a regime where anonymity online would be effectively revoked, and people’s private data would be at risk any time they’re online. People keep pitching ideas around “privacy-protective age verification” which is one of those concepts, like “safe backdoors to encryption,” that politicians seem to think is doable, but in reality is impossible.

One of the many states that passed such a law was Texas, and like most other states (the only exceptions to date have been on procedural grounds in states where a suit can’t be filed until someone takes action against a site for failing to age-gate) the district court quickly tossed out the law as obviously unconstitutional under the Ashcroft ruling.

But, just months later, the Fifth Circuit (as it has been known to do the past few years) decided that it could ignore Supreme Court precedent, overturn the lower court, and put the law back into effect. I wrote a big long post explaining the nutty thinking behind all this, but in effect, the Fifth Circuit decided that it didn’t have to follow Ashcroft because that only dealt with “strict scrutiny,” and the Judges on the Fifth Circuit believed that a law like this need only face intermediate scrutiny, and on that basis the law was fine.

Again, this bucked every possible precedent. And just last week, as yet another trial court, this time in Indiana, threw out a similar law, the judge there walked through all the many reasons the Fifth Circuit got things wrong (the Indiana court was not bound by the Fifth Circuit, but the state of Indiana had pointed to the Fifth’s ruling in support of its law).

Back in April, we had explained why it was important for the Supreme Court to review the Fifth Circuit’s bizarre ruling, and that’s where things stand now, thanks to them granting cert.

Of course, it’s anyone’s guess as to how the Supreme Court will rule, though there are a few signs that suggest it may use this to smack down the Fifth Circuit and remind everyone that Ashcroft was decided correctly. First, especially this past term, the Supreme Court has been aggressively smacking down the Fifth Circuit and its series of crazy rogue rulings. So it’s already somewhat primed to look skeptically at rulings coming out of the nation’s most ridiculous appeals court.

Second, if the Fifth’s reasoning wasn’t nutty, then there would be little to no reason to take the case. Again, the Court already handled nearly this very issue twenty years ago, and the Fifth Circuit is the first to say it can just ignore that ruling.

That said, any time the Supreme Court takes up an internet issue, you never quite know how it’s going to end up, especially given Justice Kagan’s own comment on herself and her colleagues that “these are not, like, the nine greatest experts on the internet.”

On top of that, any time you get into “for the children” moral panics, people who might otherwise be sensible seem to lose their minds. Hopefully, the Supreme Court takes a more sober approach to this case, but I recognize that “sober analysis” and this particular Supreme Court are not always things that go together.

Filed Under: 1st amendment, 5th circuit, age verification, free speech, supreme court
Companies: free speech coalition