neil gorsuch – Techdirt (original) (raw)

Neil Gorsuch Highlights Aaron Swartz As An Example Of Overreach In Criminal Law

from the wasn't-expecting-that dept

Well, here’s something unexpected. Apparently Supreme Court Justice Neil Gorsuch has a new book coming out this week called “Over Ruled: The Human Toll of Too Much Law.” And, one of the examples in the book is about the ridiculous criminal case against Aaron Swartz and his eventual tragic decision to take his own life while facing the possibility of decades in prison for the “crime” of downloading too many research papers while on a college campus that had an unlimited subscription to those research papers.

At the time, we wrote about the travesty of the case and the tragedy of how it all ended.

But it’s still somewhat surprising to find out that the case has been wedged in Gorsuch’s mind as an example of prosecutorial overreach and over-criminalization.

David French has an interview with Gorsuch about the book in the NY Times, and the Swartz case is the first example Gorsuch brings up:

French: This was an interesting element of the book to me and something that people who are not familiar with your jurisprudence might not know — it’s that you’ve long been a champion of the rights of criminal defendants. It struck me that some of the stories here in the book, of the way in which the complexity of criminal law has impacted people, are among the most potent in making the point. Is there a particular story about the abuse of criminal law that stands out to you as you’re reflecting back on the work?

Gorsuch: I would say Aaron Swartz’s story in the book might be one example. Here’s a young man, a young internet entrepreneur, who has a passion for public access to materials that he thinks should be in the public domain. And he downloads a bunch of old articles from JSTOR.

His lawyer says it included articles from the 1942 edition of the Journal of Botany. Now, he probably shouldn’t have done that, OK?

But JSTOR and he negotiated a solution, and they were happy. And state officials first brought criminal charges but then dropped them. Federal prosecutors nonetheless charged him with several felonies. And when he refused to plea bargain — they offered him four to six months in prison, and he didn’t think that was right — he wanted to go to trial.

What did they do?

They added a whole bunch of additional charges, which exposed him to decades in federal prison. And faced with that, he lost his money, all of his money, paying for lawyers’ fees, as everybody does when they encounter our legal system. And ultimately, he killed himself shortly before trial. And that’s part of what our system has become, that when we now have, I believe, if I remember correctly from the book, more people now serving life sentences in our prison system than we had serving any prison sentence in 1970. And today — one more little item I point out — one out of 47 Americans is subject to some form of correctional supervision (as of 2020).

I disagree with Gorsuch on many, many things. On the two big internet cases from this last term, Gorsuch joined the Lalaland takes of Justices Alito and Thomas (in both the Moody and the Murthy case Gorsuch was a third vote besides Alito and Thomas towards nonsense). So, it seems a bit shocking for Gorsuch to be somewhat on the side of Swartz, who would have eviscerated Gorsuch’s position in both of those cases.

Of course, Gorsuch is also wrong that Swartz “probably shouldn’t have done that.” MIT had a site license that enabled anyone on campus to download as many articles from JSTOR as they wanted. It didn’t say “unless you download too many.”

But, at least he recognizes how ridiculous the criminal lawsuit that Swartz faced a dozen years ago is. For well over a decade, we’ve been highlighting how dangerous the CFAA is as a law. It is so easily abused by prosecutors that it’s been dubbed “the law that sticks.” It sticks because when there is no real criminal prosecution under other laws, prosecutors will often cook up a CFAA violation, as they did with Aaron. And it remains ridiculous that, to this day, nothing has ever been done to prevent another Aaron Swartz-type scenario from happening again.

Perhaps, with Gorsuch bringing it up again in his book and in this interview, it can renew some of the interest that showed up in the months following Aaron’s untimely death to make real changes to the laws that caused it. Having a Justice like Gorsuch calling out the terrible and ridiculous situation the CFAA caused seems like a good reason for Congress to revisit that law, rather than cooking up new nonsense like KOSA.

Filed Under: aaron swartz, cfaa, criminal overreach, david french, neil gorsuch, too much law

Sir, This Is A Supreme Court (Not A Wendy’s)

from the thoughts-on-the-weight-of-youtube dept

On Monday, the Supreme Court heard the oral arguments over both Florida and Texas’ social media content moderation laws.

Even though the issues were similar, and the parties challenging both laws (NetChoice and CCIA) were the same (and had the same lawyer, Paul Clement, argue both cases), the laws are somewhat different, and so each was heard separately. The Florida case went first, and the Texas case went after. Roberts even jokingly pretended to be surprised to see Clement again, and Clement kicked off the Texas part by laughing and noting he wouldn’t pretend that they hadn’t all just been in the room debating the Florida law.

If you’d like to listen to the oral arguments, you can listen to Florida’s here and Texas’s here (or if you’d like to hear it while a video shows you who’s talking — since, ridiculously, the Supreme Court still refuses to allow video recordings) C-SPAN has you covered with the Florida arguments and the Texas arguments. You can also read the Florida transcript and the Texas transcript, both embedded below.

You can also read plenty of articles summarizing what happened. I think Professor Eric Goldman’s summary is the most useful (and succinct) of those I’ve seen so far:

Today, the Supreme Court heard oral arguments in First Amendment challenges against the Florida and Texas laws. The laws mostly baffled the justices due to the indeterminacy of who the law reaches and which functions are regulated (justices called the laws “sprawling,” “broad,” and “unspecific”). Because the laws are so complex and baroque, the justices aren’t sure if they can decide now that every aspect of the laws are unconstitutionally infirm. It seemed clear from the justices’ questions that at least some parts are, but the justices also struggled with functionalities at the margins (such as ridesharing or email) that may or may not be within the law’s scope. The court’s opinions will surely contain caveats and hypotheticals that will inspire regulators to make further attempts to censor the Internet, even if the court rules decisively for NetChoice on every issue.

Everyone always wants to ask for predictions after oral arguments, but as always, I think reading the tea leaves from the questions asked during oral arguments is an impossible task. I’ll say that I came out of it ever so slightly optimistic. As Goldman noted, enough of the Justices seemed to recognize that something here was deeply unconstitutional under the First Amendment, though they had some questions regarding how far that took them. And that could lead to a weird (and potentially problematic!) ruling that creates a mess.

To me, what the oral arguments turned up was that there was a clear road to getting this right and some Justices (Kavanaugh, mainly, but others too) seemed to get it. But there were a ton of potholes on that road, and I’m not sure if the lawyer for NetChoice/CCIA did enough to pave over all those potholes to stop at least five justices from tripping over one of them.

I won’t predict beyond that, though. We have a few months to go before we learn how the internet will fare.

However, I did want to call out a few of the arguments that came up that struck me as worth highlighting. First up, as stated above, Kavanaugh seemed to get this pretty clearly, which isn’t a surprise given that his ruling in Halleck five years ago caused me to write this headline: Supreme Court Signals Loud And Clear That Social Media Sites Are Not Public Forums That Have To Allow All Speech.

He came back to these issues multiple times, but here was his opening set of questions to Florida’s Solicitor General:

JUSTICE KAVANAUGH: Can I — can I ask you about a different precedent, about what we said in Buckley? And this picks up on the Chief Justice’s earlier comment about government intervention because of the power of the social media companies. And it seems like, in Buckley, in 1976, in a really important sentence in our First Amendment jurisprudence, we said that “the concept that the government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” And that seems to be what you responded with to the Chief Justice.

And then, in Tornillo, the Court went on at great length as well about the power of then newspapers, and the Court said they recognized the argument about vast changes that place in a few hands the power to inform the American people and shape public opinion and that that had led to abuses of bias and manipulation. The Court accepted all that but still said that wasn’t good enough to allow some kind of government-mandated fairness right of reply or anything.

So how do you deal with those two principles?

MR. WHITAKER: Sure, Justice Kavanaugh. First of all, if — if you agree with me with our front-line position that what is being regulated here is conduct, not speech, I don’t think you get into interests and scrutiny and all that. I do think that the law advances the — the First Amendment interests that I mentioned, but I think the — the — the — that interest, the interest that our law is serving, if you did get to a point in the analysis that required consideration of those interests, our interests —

JUSTICE KAVANAUGH: Do you agree then, if speech is involved, that those cases mean that you lose?

MR. WHITAKER: No, I don’t agree with that, and — and the reason I don’t agree with that is because the interests that our law serve are — are legitimate, and it’s — it’s hard because different parts of the law serve different interests. But I think the one that — that sounds in the — in your concern that is most directly implicated would be the hosting requirement applicable to journalistic enterprises.

So one provision of the law says that the platforms cannot censor, shadow ban, or deplatform journalistic enterprises based on the content of their publication or broadcast. And that serves an interest very similar to the interest that this Court recognized as legitimate in Turner when Congress imposed on cable operators a must-carry obligation for broadcasters.

And — and just as a broadcaster — and what the Court said was there was not just a legitimate interest in promoting the free dissemination of ideas through broadcasting, but it was indeed a — a compelling interest, a highly compelling interest. And so I think the journalistic enterprise provision serves a — that very similar issue.

But there are also other interests that our law serves. For example, the consistency provision, Your — Your Honor, is really a consumer protection measure. It — it’s sort of orthogonal to all that. The consistency provision, which is really the heart of our law, just says to the — the platforms: Apply your content moderation policies consistently. Have whatever policies you want, but just apply them consistently.

JUSTICE KAVANAUGH: Could the government apply such a policy to publishing houses and printing presses and movie theaters about what they show? Bookstores, newsstands?

MR. WHITAKER: No, no —

JUSTICE KAVANAUGH: In other words, be consistent in what kinds of content you exclude? Could that be done?

MR. WHITAKER: I — I don’t think so, Your Honor.

JUSTICE KAVANAUGH: And why not?

MR. WHITAKER: Well — well, I think that there is — the consumer — here, the — the social media platforms, their terms of service, their content moderation policies are really part of the terms under which they are offering their service to users. I don’t think that that really — that that paradigm really fits in what Your Honor is — is talking about. So — but I — but, look, we agree, we certainly agree that a newspaper, a book — and a bookstore is engaging in inherently expressive conduct. And our whole point is that these social media platforms are not like those.

That seems like a pretty direct line of questioning and a very weak response from Florida’s SG Whitaker. The bit at the end where he tries to distinguish social media from a newspaper or a book store is just… kind of pathetic?

I also thought that Justice Kagan highlighting the fact that when Elon Musk took over Twitter and changed the rules, some people liked it and some didn’t, which (as our own article by Corbin Barthold pointed out) completely undermines the states’ arguments:

JUSTICE KAGAN: Do you think so as to this — here, this is a real-world example. Twitter users one day woke up and found themselves to be X users and the content rules had changed and their feeds changed, and all of a sudden they were getting a different online newspaper, so to speak, in a metaphorical sense every morning, and a lot of Twitter users thought that was great, and a lot of Twitter users thought that was horrible because, in fact, there were different content judgments being made that was very much affecting the speech environment that they entered every time they opened their app.

Also great was Sotomayor at the very end of the Florida argument (some of her earlier questions struck me as slightly weird) who went pretty strong on the key First Amendment issues:

JUSTICE SOTOMAYOR: I have a problem with laws like this that are so broad that they stifle speech just on their face, meaning I think that’s what the government’s been trying to say.

If you have a particular type of speech that you want to protect against or — or promote, it would be one thing to have that kind of law, but we have a company here, Discourse, who’s also a direct messaging app.

And there’s no question that your law covers them, but they tell us that their whole business model is to promote themselves to a particular message and groups of messages. So they’re not doing it indiscriminately. You’re basically saying to them, if they’re out there and they’re a common carrier, they can’t have this — this kind of business model.

Also fun was when Florida tried to rely on Rumsfeld v. FAIR and Roberts (who wrote that opinion) basically shot down the argument immediately, leading Florida’s SG to try to argue with the guy who wrote the decision that he was interpreting it incorrectly (though he admitted that was probably a mistake while he was doing it):

WHITAKER: But even more broadly than that, I mean, we know that mere — the — the fact that a hosting decision is idealogically charged and causes controversy can’t be the end of the game because I think Rumsfeld versus FAIR would have had to come out the other way then, because, in Rumsfeld, certainly, the law schools there felt very strongly that the military were being bigots and they didn’t want them on campus.

And yet this Court did not look to the idealogical controversy surrounding those decisions. Instead, it looked at objectively whether the law schools were engaged in inherently expressive conduct.

CHIEF JUSTICE ROBERTS: Well, it looked at the fact that the schools were getting money from the federal government and the federal government thought: Well, if they’re going to take our money, they have to allow military recruiters on the campus. I don’t think it has much to do with the issues today at all.

MR. WHITAKER: Well, Mr. Chief Justice, it’s difficult for me to argue with you very much about what Rumsfeld versus FAIR means.

(Laughter.)

MR. WHITAKER: But let me just take a crack because, I mean, I — I think, as I — as I read your opinion for the Court, you didn’t rely, actually, on the funding aspect of the case to reach the conclusion that what was going on there was not First Amendment protected conduct. You were willing to spot them that the — the — the question would be exactly the same if it were a direct regulation of speech as opposed to a funding condition.

Now… for some of the weirder/crazier/more problematic bits.

There were, unfortunately, but not surprisingly, some ridiculous commentary about Section 230. Justice Thomas continues to get the law exactly backwards.

JUSTICE THOMAS: I’ve been fortunate or unfortunate to have been here for most of the development of the Internet.

(Laughter.)

JUSTICE THOMAS: And the argument under Section 230 has been that you’re merely a conduit, which it — exact — that was the case back in the ’90s and perhaps the early 2000s. Now you’re saying that you are engaged in editorial discretion and expressive conduct. Doesn’t that seem to undermine your Section 230 arguments?

Of course, that’s literally exactly backwards. The whole point of 230 was that websites and web forums were not passive conduits. If they were, they wouldn’t need Section 230’s protections from liability when they did moderate. The whole reason that 230 was written in the first place was because internet forums realized they needed to moderate those who violated their rules, and that would be impossible under a Stratton Oakmont v. Prodigy result where anything you left up you became liable for.

Thankfully, the lawyer for the platforms responded correctly:

MR. CLEMENT: With respect, Justice Thomas, I mean, obviously, you were here for all of it. I wasn’t here for all of it. But my understanding is that my clients have consistently taken the position that they are not mere conduits. And Congress, in passing Section 230, looked at some common law cases that basically said, well, if you’re just a pure conduit, that means that you’re free from liability. But, if you start becoming a publisher, by keeping some bad conduct out — content out, then you no longer have that common law liability protection.

And as I understand 230, the whole point of it was to encourage websites and other regulated parties to essentially exercise editorial discretion to keep some of that bad stuff out of there, and as a result, what Congress said is — they didn’t say: And you’re still a conduit if you do that. No, it said: You shouldn’t be treated as a publisher, because Congress recognized that what my clients were doing would, in another context, look like publishing, which would come with the kind of traditional defamation liability, and they wanted to protect them against that precisely to encourage them to take down some of the bad material that, if these laws go into effect, we’d be forced to convey on our websites.

Ridiculously, a while later on, Thomas basically went right back to the same question:

JUSTICE THOMAS: Could you again explain to me why, if you win here, it does not present a Section 230 problem for you?

There was a lot more back and forth here and it’s not at all clear to me Thomas understands Section 230 even the tiniest amount. Which is… problematic. Especially as he’s been briefed on it quite a bit during last year’s Gonzalez case (and he even seemed to suggest he understood some of that in the Taamneh ruling which he wrote). Did he just… forget all of that?

Gorsuch also seemed to get weird on 230 at times, including suggesting (incorrectly) that the argument the platforms were making was inconsistent with their argument on 230.

JUSTICE GORSUCH: — if they’re not — if the — if the expression of the user is theirs because they curate it, where does that leave Section 230? Because the protection there, as I understood it — and Justice Thomas was making this point — was that Section 230 says we’re not going to treat you as publishers so long as you are not — it’s not your communication in whole or in part is what the definition says. And if it’s now their communication in part, do they lose their 230 protections?

He asked that question to the U.S. Solicitor General, Elizabeth Prelogar (who was very good throughout), who was there to argue mostly against the states, but for a narrower ruling that the companies wanted. Her response was to (politely) explain to Gorsuch why he was mixing up different kinds of things. In the follow-up exchange, Gorsuch made a complete nonsense comment that 230 turns companies into common carriers. Again, it does no such thing.

GENERAL PRELOGAR: No, because I think it’s important to distinguish between two different types of speech. There are the individual user posts on these platforms, and that’s what 230 says that the platforms can’t be held liable for.

The kind of speech that we think is protected here under the First Amendment is not each individual post of the user but, instead, the way that the platform shapes that expression by compiling it, exercising this kind of filtering function, choosing to exclude none of the those things above —

JUSTICE GORSUCH: Let me interrupt you there, I’m sorry, but — but I understand it’s not their communication in whole, but it’s — why isn’t it their communication in part if it — if it’s part of this larger mosaic of editorialized discretion and the whole feel of the website?

GENERAL PRELOGAR: Well, I don’t think that there is any basic incompatibility with immunizing them as a matter of Congress’s statutory choices and recognizing that they retain First Amendment protection —

JUSTICE GORSUCH: Isn’t the whole premise — I’m sorry —

GENERAL PRELOGAR: — for the First Amendment —

JUSTICE GORSUCH: — the whole premise of Section 230 that they are common carriers, that — that they’re not going to be held liable in part because it isn’t their expression, they are a conduit for somebody else?

GENERAL PRELOGAR: No, not at all, Justice Gorsuch. I think, you know, to the extent that the states are trying to argue that Section 230 reflects the judgment that the platforms aren’t publishing and speaking here, there would have been no need to enact Section 230 if that were the case.

Congress specifically recognized the platforms are creating a speech product. They are literally, factually publishers. And Congress wanted to grant them immunity. And it was for the purpose of encouraging this kind of editorial discretion. That’s the whole point of the good samaritan blocking provision, 230(c)(2)(A).

There were two more weird moments that are getting a fair bit of attention. The first was, I presume, the very first “Sir, this is a Wendy’s” moment in Supreme Court history. Except… it makes no sense. It wasn’t used (as some imagine) as a hilarious rebuttal to an off-topic rant. It was in a weird, slightly off-topic rant by Texas’ Solicitor General in response to Kavanaugh asking him how the restriction against “viewpoint discrimination” would apply to terrorist content.

Texas’s SG (for fairly obvious reasons) had no good answer and just started to ramble on, somewhat aimlessly about terrorism, and then about Orwell (who came up a few times — though here, he doesn’t really discuss Orwell beyond naming him) and then saying he originally felt the opposite as he does now about this very case, and then suddenly rambling about infrastructure, then back to Orwell, and then… just throws in a reference to the “Sir, this is a Wendy’s” meme, seemingly expecting the Justices to know what it was. Reports from in the room tell me that the Justices stared blankly at the reference (apparently they’re not as online as the rest of us), and then finally he was rescued by Justice Jackson asking a different question.

I’m posting the whole thing for the sheer cringe of it all:

JUSTICE KAVANAUGH: So when — that last clause, they can’t do it on a viewpoint basis, how does that work with terrorist speech?

MR. NIELSON: Sure. So it’s hard to say with terrorist speech because you’d have to pick the category, but assume that it is, you know, Al-Qaeda. You can’t — you could — you can’t very well say you can have the, you know, anti-Al-Qaeda but not the pro-Al-Qaeda. If you just want to say no one’s talking about Al Qaeda here, they can turn that off.

And then the last point, this is at the very end of the game, so you’ve gone through all of those things, all you have left are voluntary people wanting to talk to each other. And, I mean, people say horrible things on the telephone, and that’s — and I don’t think we’ve ever thought, well, you know what, we’re going to turn — we’re going to turn that off because we don’t want the telephone providers to be able to say — have that sort of right to — to censor.

If I may, I mean, with some hesitance, I want to talk about Orwell a little bit, and I say that with some hesitance. But my reaction coming to this case was very similar to yours. I looked at this and I’m like: Wait a minute. These are companies. They have their own rights. We don’t generally think of censorship as something from the — from private people. That’s the government.

Here’s how I came around on this. Maybe it’ll persuade you. Maybe it won’t. I came around on this to say this is something further up the food chain than that ordinary level of political discourse. This is just the type of infrastructure necessary to have any kind of discourse at all. That’s why I keep going back to the telegraph.

This isn’t, you know, the — the level of discourse where they’re making the content decisions that we make our decisions based on. This is the infrastructure that we need to have any sort of discourse at all.

So, if we say we want to have that type of infrastructure not have, you know, censorship on it, that would mean we would have to have a rapid — a massively increased federal government because it would have to control all the infrastructure. And then we would have, okay, now you can’t discriminate based on this kind of infrastructure of how things work.

That’s not — I mean, that is Orwell, right? So, for me, the answer is, for these kind of things like telephones or telegraphs or voluntary communications on the next big telephone/telegraph machine, those kind of private communications have to be able to exist somewhere. You know, the expression like, you know, sir, this is a Wendy’s. There has to be some sort of way where we can allow people to communicate —

JUSTICE JACKSON: And is that just because of the — the modern public square?

I’ve read this so many times now, and I have no idea how we got from “how does that work with terrorist speech” to “sir this is a Wendy’s.” The leading theory I’ve seen online is that the SG had a bet going with some friends that he could slip that line into an argument. But I’d like to believe that’s too stupid to be true.

It’s possible he was using it as an example to say that people want places to sound off and to express themselves, as epitomized by that meme. That’s the most generous version of it I can come up with.

But… it’s silly even in that context. Because having governments like Texas force all websites to host basically all content doesn’t help with the “sir, this is a Wendy’s” situation, as it now makes every site a place where everyone can filibuster nonsense all the time, and the sites can’t do anything about it.

But, still, it’s kinda hilarious that this meme has made it to SCOTUS.

The other moment that’s getting a lot of attention for being preposterously stupid is Alito asking how much YouTube would weigh if it were a newspaper.

JUSTICE ALITO: I mean, if your — if — let’s say YouTube were a newspaper, how much would it weigh?

And, look, it is a dumb question, though not for the reasons most people think. A key part of the debate (as we’ve discussed) is which precedent is closest to this case, with a focus being on whether social media is more like a shopping mall (or a telegraph provider) or a newspaper. Because different cases could apply to either. And if (the argument goes) social media is more like a newspaper, then Miami Herald v. Tornillo applies, and the platforms win the case (easily).

Alito has made it quite clear he wants the states to win and wants the platforms to lose. He made little attempt to hide this during the arguments. So when it was his turn to talk, he wanted to attack the idea that social media was more like a newspaper. So here’s the fuller context:

JUSTICE ALITO: So you say this is just like a newspaper, basically. It’s like the Miami Herald. And the states say no, this is like Western Union. It’s like a telegraph company.

And I — I think — I look at this and I say it’s really not like either of those. It’s worlds away from — from both of those. It’s nothing like a newspaper. A newspaper has space limitations, no matter how powerful it is. It doesn’t necessarily have the same power as — as some of your clients. But put that aside.

Newspapers overtly send messages. They typically have an editorial. They may have an editorial 365 days a year or more than one. But that’s not the situation with even the most prominent of your clients. So I don’t know how we could decide this case by saying — by jumping to one side or the other of this case law.

MR. CLEMENT: Well, Justice Alito, let me offer two thoughts. One, this isn’t the first time you’re wrestling with the Internet. You wrestled with it in Reno. You wrestled with in last term in 303 Creative. And I think the gist of those cases is this is more like the newspaper or the parade organizer than it is like a common carrier.

And then as to the cases, whether you think that this is different from a newspaper, I mean, the arguments that you’re pointing to say this is different are the arguments that those cases wrestled with and said didn’t matter.

So I know you know this, but in Tornillo, it — you know, there was all this language about it being a monopolist, and that was in the context of a local political election where if you couldn’t get into the Miami Herald, like, where else were you going to go? And yet, this Court said that didn’t matter. And the — the — also in Tornillo this Court said, yes, face the constraints, there are some, but our decision doesn’t turn on that. And then in Hurley, there’s a lot of language in the — in the Court’s opinion that says, you know, this is not like much of a message and they let some people show up even if they get their, like, the day of, and the only thing they’re doing is, like, excluding this group.

But, of course, the exclusion was the message that they were sending, and it’s the message the state was trying to prohibit. And that’s kind of the same thing here, which is —

JUSTICE ALITO: I mean, if your — if — let’s say YouTube were a newspaper, how much would it weigh?

(Laughter.)

MR. CLEMENT: Well, I mean, it would — it would — it would weigh an enormous amount, which is why, in order to make it useful, there’s actually more editorial discretion going on in these cases than any of — other case that you’ve had before you.

Because, you know, people tend to focus on the — on the users that get knocked off entirely and end up on the cutting room floor, but both these statutes also regulate the way that these social websites — they — they sort of get you down to something that’s actually usable to an individual user.

And, in fact, if you tried to treat these entities like a true common carrier, so first in, first out, just order of, you’d open up one of these websites and it would be gobble-dy-gook. Half of the stuff wouldn’t even be in a language you understood. And even if you controlled for that, you’d get all this garbage you didn’t want.

So, in context, it doesn’t seem quite as “holy shit, was Alito high?” as some people are making it out to be. He’s trying to highlight why social media is different from newspapers, and the dumb idea that sprung to mind was to highlight how much larger social media is than any newspaper.

But it’s still dumb. Because it actively works against the point he thinks he’s making: that we can’t treat social media like a newspaper because it doesn’t have the space limitations of a newspaper. But that wasn’t the reasoning in Tornillo. And, as both Justices Sotomayor and Barrett pointed out during the Florida arguments, whether or not there are space limitations doesn’t much matter because there are “constraints of attention.” Barrett summed it up nicely:

I mean, Justice Sotomayor pointed out that even though there may not be physical space constraints, there are the — the constraints of attention, right? They have to present information to a consumer in some sort of organized way and that there’s a limited enough amount of information that the — the consumer can absorb it.

And don’t all methods of organization reflect some kind of judgment? I mean, could you tell — could Florida enact a law telling bookstores that they have to put everything out by alphabetical order and that they can’t organize or put some things closer to the front of the store that they think, you know, their customers will want to buy?

Even if he thought he was making a point that YouTube is vastly larger than a newspaper, it doesn’t help his underlying argument, because… so what? The size of the venue doesn’t much matter. There’s still editorial discretion happening.

So, rest assured, folks who saw that quote and thought Alito had completely lost his marbles. No such luck. It was just stupid in the more usual sense of Alito misunderstanding the law, not the nature of bits vs. atoms in the storage of information.

Filed Under: brett kavanaugh, clarence thomas, common carrier, content moderation, elena kagan, florida, john roberts, neil gorsuch, paul clement, public accommodation, sam alito, section 230, sonia sotomayor, supreme court, texas
Companies: ccia, netchoice

from the but-the-lack-of-details-is-concerning dept

Exhale.

Just a little while ago, the Supreme Court put Texas’s ridiculous content moderation law back on hold. Specifically, it granted NetChoice and CCIA’s emergency application to put the law on hold, following the 5th Circuit’s decision to reinstate the law without any explanation (which came about in response to a district court’s lengthy explanation for why the law was unconstitutional.)

The Supreme Court’s ruling here… is a little strange. It was a 5-4 decision, but probably not the lineup you might expect. The ruling to grant the stay (i.e., to block the law from being enforced) was supported by Chief Justice Roberts, along with Justices Barrett, Breyer, Kavanaugh, and Sotomayor. That leaves the four who wished to have the law still in place as Justices Alito, Thomas, Gorsuch, and… Kagan?!

Unfortunately there’s little in the way of details here, as there is no explanation for the majority decision to put the law on hold. Kagan only notes that she would deny the application. Many are speculating that her reasoning was based on her distaste for the so-called “Shadow Docket” of emergency applications where this all played out. Though, as shadow docket expert Steve Vladeck notes, even though Kagan has been vocal about disapproving of the use of the shadow docket, that hasn’t prevented her from granting relief via it in the past.

And while there is no majority opinion to explain the thinking, Alito did write a dissent that, as perhaps could be expected, is just full of nonsense. Thomas signed onto it, along with Gorsuch. That Alito and Thomas would align on this isn’t that surprising, given what they’ve said in the past (though one would hope with slightly more briefing in front of them they might have realized their positions are fundamentally mistaken — but no such luck). Gorsuch is kind of surprising, as on similar issues he’s seemed more open to reason.

It’s good to see Kavanaugh stay consistent here, as his ruling in the Halleck case was an important precedent, and it would be bizarre to see him flip so quickly.

As for the dissent, authored by Alito, well, it’s a mess. We don’t need to do a full analysis on it, because it doesn’t really matter yet. But Alito seems extremely confused about a few important concepts and it will be important to carefully brief those concepts in more detail when this issue, inevitably, returns to the Supreme Court docket along more traditional lines. Also, it’s quite incredible for him and his two co-signers to suggest that you can simply take away 1st Amendment rights and only come back and determine if that was okay at a later date.

It is also… not entirely clear to me what happens next. In theory, the 5th Circuit is still expected to release its more complete opinion turning the law back on. But… now that doesn’t matter because the Supreme Court has already blocked that? Or, could that turn the law back on again? It’s all a bit unclear, but at least in the very, very short term, by an uncomfortably narrow margin, Texas’ dangerously bad content moderation law is not in effect.

Filed Under: 1st amendment, clarence thomas, content moderation, elena kagan, hb20, neil gorsuch, samuel alito, shadow docket, social media, supreme court, texas
Companies: ccia, netchoice

Supreme Court OKs Retaliatory Arrests For Engaging In Protected Speech

from the a-police-state-is-a-team-effort dept

The Supreme Court has declared it’s cool with cops engaging in retaliatory arrests… just as long as they have the probable cause to do so. Given the thousands of obscure laws we’ve been cursed with by legislators, most law enforcement officers will be able to find some way to shut up someone by putting them in cuffs. (Whatever they’re wrong about can be salvaged by the good faith exception.)

In this case, plaintiff Russell Bartlett was arrested after not talking to police and telling other winter festival attendees to not talk to the police. The officer who arrested Bartlett claimed Bartlett was drunk and disorderly, hence the supposedly-justified arrest. Here’s the background, as summarized in the Supreme Court’s opinion [PDF]:

Respondent Russell Bartlett was arrested by police officers Luis Nieves and Bryce Weight for disorderly conduct and resisting arrest during “Arctic Man,” a raucous winter sports festival held in a remote part of Alaska. According to Sergeant Nieves, he was speaking with a group of attendees when a seemingly intoxicated Bartlett started shouting at them not to talk to the police. When Nieves approached him, Bartlett began yelling at the officer to leave. Rather than escalate the situation, Nieves left. Bartlett disputes that account, claiming that he was not drunk at that time and did not yell at Nieves. Minutes later, Trooper Weight says, Bartlett approached him in an aggressive manner while he was questioning a minor, stood between Weight and the teenager, and yelled with slurred speech that Weight should not speak with the minor. When Bartlett stepped toward Weight, the officer pushed him back. Nieves saw the confrontation and initiated an arrest. When Bartlett was slow to comply, the officers forced him to the ground. Bartlett denies being aggressive and claims that he was slow to comply because of a back injury. After he was handcuffed, Bartlett claims that Nieves said “bet you wish you would have talked to me now.”

In effect, Trooper Nieves was arresting Bartlett for talking about not talking to the police and, I guess, for not talking to Nieves when Bartlett was telling festival attendees to not talk to Trooper Nieves. Trooper Weight is a boxing tier I’m not familiar with.

The Ninth Circuit Appeals Court agreed with Bartlett, finding that probable cause does not excuse retaliatory arrests. The government protested, stating the opposite. Unfortunately, the Supreme Court agrees with the government insistence that retaliatory arrests are excusable with probable cause. In addition, it says that plaintiffs in these cases bear the burden of proving other people haven’t been arrested if they plan to make assertions about a law enforcement officer’s actions.

Because States today permit warrantless misdemeanor arrests for minor criminal offenses in a wide range of situations—whereas such arrests were privileged only in limited circumstances when §1983 was adopted—a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. An unyielding requirement to show the absence of probable cause in such cases could pose “a risk that some police officers may exploit the arrest power as a means of suppressing speech.” Lozman, 585 U. S., at ___. Thus, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.

So… bring data, I guess.

There’s a whole lot more to this opinion than the majority’s. There’s plenty of dissent. Justice Gorsuch both concurs and dissents, but gets right to the point when it comes to the legal ramifications of this ruling.

Mr. Bartlett contends that the officers’ retaliation against his First Amendment protected speech entitles him to damages under 42 U. S. C. §1983. For their part, the troopers insist that the fact they had probable cause to arrest Mr. Bartlett for some crime, or really any crime, should be enough to shield them from liability.

That is what the government argued. And that’s exactly what was granted: literally any arrestable offense trumps citizens’ First Amendment protections. This works out all too well for the government.

As Frank Zappa said, “The United States is a nation of laws, badly written and randomly enforced.” Here’s how Gorsuch puts it:

Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. And for good reason. History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

Gorsuch goes on to point out the statute governing lawsuits like these (§1983) — civil suits alleging violations of rights by government employees — says nothing about probable cause. All it says is that civil servants can be held personally liable for depriving citizens of “any rights, privileges, or immunities secured by the Constitution.” Certainly, probable cause for an arrest might defeat Fourth Amendment claims since that’s why there’s a probable cause requirement for arrests in the first place, but it shouldn’t be enough to instantly defeat claims of First Amendment retaliation. Applying this probable cause tests allows officers to get away with something they shouldn’t.

The point of this kind of claim isn’t to guard against officers who lack lawful authority to make an arrest. Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason.

Justice Ginsburg’s partial dissent also says this country has too many laws that can be too easily abused to establish precedent that any old probable cause will do.

Given the array of laws proscribing, e.g., breach of the peace, disorderly conduct, obstructing public ways, failure to comply with a peace officer’s instruction, and loitering, police may justify an arrest as based on probable cause when the arrest was in fact prompted by a retaliatory motive. If failure to show lack of probable cause defeats an action under 42 U. S. C. §1983, only entirely baseless arrests will be checked.

Sotomayor’s dissent aligns itself with Gorsuch and the majority’s mysterious decision to rewrite §1983 on the fly to add probable cause to the long list of ways government employees can dodge being held responsible for rights violations. Had the court restrained itself to a narrow decision and not placed an additional evidentiary burden on plaintiffs, this might have been OK. But it didn’t and in reaching this broader conclusion, it has opened the door for SCOTUS-sanctioned abuse.

Were it simply an unorthodox solution to an illusory problem, the standard announced today would be benign. But by rejecting direct evidence of unconstitutional motives in favor of more convoluted comparative proof, the majority’s standard proposes to ration First Amendment protection in an illogical manner. And those arbitrary legal results in turn will breed opportunities for the rare ill-intentioned officer to violate the First Amendment without consequence—and, in some cases, openly and unabashedly. These are costs the Court should not tolerate.

The standard the court has erected demands plaintiffs to provide evidence they are unlikely to ever obtain.

[T]he majority suggests that comparison-based evidence is the sole gateway through the probable-cause barrier that it otherwise erects. Such evidence can be prohibitively difficult to come by in other selective-enforcement contexts, and it may be even harder for retaliatory arrest plaintiffs to muster. After all, while records of arrests and prosecutions can be hard to obtain, it will be harder still to identify arrests that never happened. And unlike race, gender, or other protected characteristics, speech is not typically sorted into statistical buckets that are susceptible of ready categorization and comparison.

The impossibility of meeting this evidentiary bar, along with the broader proclamation that probable cause beats the First Amendment in nearly every situation, pretty much dead-ends future retaliatory arrest lawsuits. Cops may not be the best students of the law, but they’re pretty quick to pick up on legal declarations that excuse abuses of their power.

Whatever momentum has been gained by legal decisions supporting the right of citizens to film police officers has just been undercut. We’ve already seen years of bullshit arrests for filming cops. This decision says officers are free to continue violating First Amendment rights if there’s any conceivable law someone might be breaking while engaging in “protected” speech. We have too many laws on the books to give law enforcement officers this much deference in enforcing them, especially when Constitutional rights are on the line.

Filed Under: 1st amendment, 4th amendment, neil gorsuch, probable cause, retaliatory arrests, russell bartlett, sonia sotomayor, supreme court

Supreme Court Says iPhone Users Can Pursue Antitrust Claims Against Apple Over App Store

from the could-get-intereseting dept

Earlier today, the Supreme Court ruled (mostly as expected, though with some caveats) in Apple v. Pepper, a case concerning whether or not iPhone users could sue Apple for antitrust concerning how it controls pricing in the iOS App Store. Most of the news on this focuses either on how this could have a big impact on Apple and other marketplaces, or on how this case (somewhat oddly) split between the two Justices appointed by President Trump, with Justice Kavanaugh writing the majority opinion (joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor) and the dissent written by Justice Gorsuch (joined by Justices Roberts, Thomas and Alito).

It will be interesting to see how this plays out, but my first impression is that this case may not prove to be that big of a deal long term. It is not saying anything, really, concerning whether or not Apple’s practices are an antitrust violation. It is merely letting a case go forward. And, to some extent, I think that Justice Gorsuch may be correct that all that this case will end up doing in the long run is getting Apple and other platforms to change their contracts in terms of how the money flow officially goes.

The key in this case is that Apple sought to have the antitrust case tossed, saying that iPhone owners were not the “direct purchasers” from Apple, and thus had no standing to sue. An earlier case, Illinois Brick v. Illinois, said that only direct purchasers could sue for antitrust violations, rather than those further down the supply chain. Here, the majority said that Illinois Brick doesn’t exclude iPhone users, because they did, in fact, make the purchase from Apple, and thus were “direct purchasers.”

The plaintiffs purchased apps directly from Apple and therefore are direct purchasers under Illinois Brick. At this early pleadings stage of the litigation, we do not assess the merits of the plaintiffs? antitrust claims against Apple, nor do we consider any other defenses Apple might have. We merely hold that the Illinois Brick direct-purchaser rule does not bar these plaintiffs from suing Apple under the antitrust laws.

This does seem fairly straightforward, but Apple’s counter-argument was that, as the market controller, it is merely setting the percentage fee that goes back to Apple, and not the actual price of the app:

Apple?s theory is that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not that party sells the good or service directly to the complaining party. Apple says that its theory accords with the economics of the transaction. Here, Apple argues that the app developers, not Apple, set the retail price charged to consumers, which according to Apple means that the consumers may not sue Apple.

The majority rejects this ruling, saying that it is not actually supported by the law (which says that injured parties can sue), that Apple is stretching the meaning of the Illinois Brick ruling from one about “direct purchasers” to one about “who sets the price,” and finally that under Apple’s interpretation of the rule, any market operator could strategically structure their market to avoid being liable to any antitrust effort:

…if accepted, Apple?s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement.

The dissent, by Gorsuch, more or less suggests that this ruling, as opposed to the reverse, is actually what will allow market operators to avoid antitrust, just by strategically structuring deals in a different way:

To evade the Court?s test, all Apple must do is amend its contracts. Instead of collecting payments for apps sold in the App Store and remitting the balance (less its commission) to developers, Apple can simply specify that consumers? payments will flow the other way: directly to the developers, who will then remit commissions to Apple. No antitrust reason exists to treat these contractual arrangements differently, and doing so will only induce firms to abandon their preferred?and presumably more efficient?distribution arrangements in favor of less efficient ones, all so they might avoid an arbitrary legal rule.

This is why, frankly, I’m not convinced this case is that big of a deal, despite some general concerns that people have raised about the ruling. As a gut reaction, it does seem to make sense that those injured by supposedly monopolistic behavior should have the right to sue over that harm, but this ruling seems more technical than anything else, and is fairly early on in the process of what appears to be a very long case that has no end in sight. Apple, and other large companies, would obviously have liked to have seen it go the other way, and to face less of a threat of antitrust lawsuits from the users of the markets they set up, but that, alone, isn’t a sensible reason for blocking these cases.

For what it’s worth, if I were Apple, I would preempt this issue entirely by no longer requiring that the App Store be the only way to get apps on the phone. Google allows competing marketplaces on Android, but they really don’t get much usage — in part because Google (correctly) notes that you’re likely to have better security by going through the official Google Play store, rather than alternatives. However, it has still allowed alternatives, and a few of them (including Amazon’s) have been able to build up a niche in the market.

Filed Under: antitrust, app store, brett kavanaugh, direct purchaser, ios, neil gorsuch, standing, supreme court
Companies: apple

Supreme Court Appears Inclined To Apply The Eighth Amendment To Civil Asset Forfeiture

from the on-the-road-to-recovery? dept

The Supreme Court heard oral arguments recently in a case that may result in some involuntary reforms to state civil asset forfeiture laws. The case involves Tyson Timbs, an Indiana resident who had his $42,000 Land Rover seized by law enforcement after selling $260 worth of heroin to undercover cops.

Despite securing a conviction, law enforcement chose to forfeit Timbs’ vehicle in civil court. This may have been to keep Timbs from challenging the seizure as excessive, given the crime he was charged with maxxed out at a $10,000 fine. This is how Timbs is challenging this forfeiture, however. That’s how this case has ended up in the top court in the land.

A lower court in Indiana found in his favor, finding the seizure to be a violation of Timbs’ Eighth Amendment protections against excessive fines. The state’s top court overturned this ruling, prompting the appeal to the US Supreme Court. The state argues the Eighth Amendment’s protections do not apply to civil asset forfeiture. This is a curious position, because it’s basically stating Indiana’s government gets to pick and choose what guaranteed rights its residents have access to.

From the oral arguments [PDF], it sounds like the court is going to rule in Timbs’ favor and find that these Eighth Amendment protections apply to state-level forfeitures — civil or criminal. The state’s Solicitor General, Thomas Fisher, failed to impress the court at almost every turn.

It all starts with Justice Gorsuch trying to set the ground level for discussion: that it’s undisputed fact the Eighth Amendment’s excessive fines clause applies in Indiana.

JUSTICE GORSUCH: General, before we get to the in rem argument and its application to this case, can we just get one thing off the table? We all agree that the Excessive Fines Clause is incorporated against the states. Whether this particular fine qualifies because it’s an in rem forfeiture, another question.

But can we at least get the — the theoretical question off the table, whether you want to do it through the Due Process Clause and look at history and tradition, you know, gosh, excessive fines, guarantees against them go back to Magna Carta and 1225, the English Bill of Rights, the Virginia Declaration of Rights, pretty deep history, or whether one wants to look at privileges and immunities you might come to the same conclusion. Can we at least — can we at least agree on that?

MR. FISHER: I have two responses to that. First -

JUSTICE GORSUCH: Well, I — I think — I think a “yes” or “no” would probably be a good starting place.

As Fisher tried to argue around that by claiming it really should only apply to cases of criminal forfeiture (“in personam” [against a person] rather than “in rem” [against property] forfeitures), Gorsuch again shut him down, showing a bit of exasperation while doing so.

JUSTICE GORSUCH: Well, whatever the Excessive Fine Clause guarantees, we can argue, again, about its scope and in rem and in personam, but whatever it, in fact, is, it applies against the states, right?

MR. FISHER: Well, again, that depends.

JUSTICE GORSUCH: I mean, most — most of the incorporation cases took place in like the 1940s.

MR. FISHER: Right.

JUSTICE GORSUCH: And here we are in 2018 -

MR. FISHER: Right.

JUSTICE GORSUCH: — still litigating incorporation of the Bill of Rights. Really? Come on, General.

This was followed by new installation Brett Kavanaugh trying to get the state’s lawyer to admit the state had adopted the Eighth Amendment and its clauses — which includes protections against excessive fines, no matter what form they take.

The state’s lawyer believes the Court should leave the state court ruling alone, and allow Indiana to go on claiming the Eighth Amendment doesn’t apply to civil forfeiture. To do so, the state basically argues people have rights but their possessions don’t. This led to Justice Ginsburg reminding the government’s lawyer that property belongs to people who have rights.

So, whether you label it in rem or in personam, let’s remember that it’s — things don’t have rights or obligations in and of themselves. It’s people that have rights or obligations with respect to things.

The state’s insistence that the excessive fines clause does not apply to civil asset forfeiture allows Justice Breyer to strike at the heart of this form of forfeiture and the abuse it encourages because it’s so often unchecked by local laws.

JUSTICE BREYER: Well, in your view, an in rem civil forfeiture is not an excessive fine, is that right?

MR. FISHER: Yes, that is — that is true.

JUSTICE BREYER: So what is to happen if a state needing revenue says anyone who speeds has to forfeit the Bugatti, Mercedes, or a special Ferrari or even jalopy? (Laughter.)

MR. FISHER: There — no, there is no — there is no excessive fines issue there. I — what I will say and what I think is important to — to remember is that there is a constitutional limit, which is the proof of instrumentality, the need to prove nexus.

JUSTICE BREYER: That isn’t a problem because it was the Bugatti in which he was speeding. (Laughter.)

MR. FISHER: Right.

JUSTICE BREYER: So — so there is all the nexus.

MR. FISHER: Historically -

JUSTICE BREYER: Now I just wonder, what — what is it? What is it? Is that just permissible under the Constitution?

MR. FISHER: To forfeit the Bugatti for speeding?

JUSTICE BREYER: Yeah, and, by the way, it was only five miles an hour -

MR. FISHER: Yeah.

JUSTICE BREYER: — above the speed limit.

MR. FISHER: Well, you know, the answer is yes. And I would call your attention to the -

JUSTICE BREYER: Is it yes?

MR. FISHER: Yes, it’s forfeitable.

Not a single justice who spoke was on the state’s side. If the ruling comes down in favor of Timbs, it still may be a narrow ruling, which will mute its impact. If all SCOTUS wants to do is say the Eighth Amendment excessive fines clause applies in Indiana, but not specifically to civil forfeitures, the state can continue with forfeiture business as usual. But if it applies that clause to civil forfeiture, the state is going to have a hard time justifying taking expensive stuff from people they’ve charged with minimal violations or haven’t charged at all.

The biggest effect will be felt by those who’ve had their property seized by the government via this process. They’ll actually have something far better than the minimal protections afforded them. As it stands now in many states, trying to reclaim property is an expensive, labyrinthine process that heavily favors the government. Being able to challenge a seizure on Constitutional grounds means the government has to prove far more than the property could imaginably be tied to criminal activity. It would also have to demonstrate the punishment doesn’t outweigh the crime.

The potential downside is this: prosecutors may stack charges until they roughly equal the value of whatever’s been seized. This could result in a lot of defendants having the book thrown at them while the state processes their property through civil proceedings.

Even with this downside, it’s heartening to see the nation’s highest court recognizes the perverse incentives of civil forfeiture and the damage it does to citizens and their inherent rights. Hopefully, this will make the court more receptive of future forfeiture cases where broader precedent may be set that will stem the flow of abuse resulting from this highly-questionable law enforcement practice.

Filed Under: 8th amendment, civil asset forfeiture, excessive fines, incorporation, indiana, neil gorsuch, sonia sotomayor, stephen breyer, supreme court, tyson timbs