zephyr teachout – Techdirt (original) (raw)

The Right To Advertise?

from the open-access-proved dept

Sometimes, an advertisement is worth a thousand op-eds. Last week, one of us co-authored an op-ed criticizing an amicus brief filed by the American Economic Liberties Project and several prominent law professors in the pending Supreme Court case NetChoice v. Paxton. AELP’s brief defends the constitutionality of a Texas law prohibiting social media companies from moderating – or “censoring,” at least according to Texas – user-generated content. Among other things, AELP argues that social media companies and newspapers have different First Amendment rights, because social media is “open-access” and newspapers aren’t.

AELP’s argument is based on two Supreme Court cases, Miami Herald and PruneYard. In Miami Herald, the Court held that Florida couldn’t require a newspaper to print a politician’s rebuttal to a critical article. And in PruneYard, it held that a state could require a shopping mall to permit political speech. AELP claims that social media is more like a shopping mall than a newspaper, because malls and social media are both open-access.

Not only is AELP’s legal argument absurd, but also its premise is false. Newspapers and social media are both open-access, so AELP’s own theory implies they should have the same First Amendment rights. According to AELP, social media and newspapers are different because everyone can publish on social media, but not everyone can publish in the newspaper.

Wrong. Sure, not everyone can publish an op-ed, but anyone can publish an advertisement. All they have to do is pay for it. The only difference between social media and newspapers is that access to social media is free, but you have to pay for access to the newspaper. Yes, newspapers reserve the right to exercise editorial discretion over which ads they’re willing to print. But that’s all social media companies want, and it’s what Texas is trying to prohibit them from doing. The Florida law at issue in Miami Herald required newspapers to give politicians a free right of reply, and the Texas law at issue in NetChoice does the same thing, by forcing social media companies to publish speech that is anathema to their advertisers. If newspapers can offer open-access to ads, but moderate what they print, then so can social media.

But the op-ed wasn’t enough. If telling readers about the problems with AELP’s arguments is good, then showing them is better. So we decided to demonstrate that newspapers are every bit as open-access as social media and exercise editorial discretion in exactly the same way.

So we bought an ad in the Miami Herald, criticizing AELP’s argument by demonstrating that newspapers are in fact open-access, so long as you’re willing and able to pay for access. As of today, our ad is scheduled to run from Monday to Thursday, pending approval.

Amusingly, our demonstration works whether or not the Miami Herald ultimately publishes our ad. If the Miami Herald prints our ad, it shows that newspapers are in fact open-access, because anyone can publish an ad. We were able to create an advertising account, schedule a campaign, and pay for it, in minutes. This default openness is moderated only by the paper’s reservation of the right to reject particular creatives. And if the Miami Herald refuses to publish our ad, perhaps deciding that it violates their social media community guidelines-esque “creative approval policies,” it shows that newspapers are open-access publications that still exercise editorial discretion over what they print. Heads, free speech wins, tails compelled speech loses.

Filed Under: ads, larry lessig, open access, pruneyard, tim wu, tornillo, zephyr teachout
Companies: aelp, netchoice

from the and-law-professors-should-understand-that dept

Something strange is happening in the legal academy, and we’re worried about it. On January 23, 2024, the progressive policy organization American Economic Liberties Project filed an amicus brief in the Supreme Court case NetChoice v. Paxton, in support of a Texas law prohibiting social media companies from moderating – “censoring” in the words of the law – the speech of their users, especially conservatives. The brief was joined by several prominent progressive law professors from Harvard (Larry Lessig), Columbia (Tim Wu and Richard John), Fordham (Zephyr Teachout), and Emory (Matthew Lawrence).

Now, there’s nothing improper or even unusual about law professors writing or joining amicus briefs. One of us is a law professor who has written and joined several himself (and the other has worked with lawyers on and joined many amicus briefs as well). And there’s nothing wrong with progressives supporting conservative positions (or vice versa). The law can make for curious bedfellows. Here, both conservatives and progressives want the government to regulate social media companies more aggressively, albeit for different reasons and in different ways.

But there are some serious problems with the AELP brief: It objectively misrepresents the law it purports to describe. AELP claims that the First Amendment allows the government to prohibit social media companies from discriminating against speech they disapprove, because their websites are “digital commercial ‘properties’ made open by their owners for public use.” It relies on the Supreme Court’s 1980 PruneYard opinion, which held that the First Amendment allowed California to require a private shopping center that was open to the public to allow its patrons to exercise a reasonable right to free speech. AELP argues that social media websites are analogous to shopping centers, so the First Amendment allows Texas to regulate them in the same way, by requiring them to permit speech they disapprove.

While many lawyers and legal scholars think PruneYard is no longer good law (following later rulings that pared it back), it was never explicitly overruled, so AELP can still rely on it. But AELP should not misrepresent what PruneYard actually said.

As AELP admits, the Supreme Court’s 1974 Miami Herald opinion held that the First Amendment prohibited Florida from requiring a newspaper to print a political candidate’s reply to a critical article. According to AELP, PruneYard distinguished Miami Herald by holding that “open-access laws do not present the same First Amendment concerns as right-to-reply laws.” That is false. The Supreme Court didn’t say anything about open-access laws. It said that Miami Herald “rests on the principle that the State cannot tell a newspaper what it might print.”

AELP tries to salvage its imaginary distinction between open-access and right-to-reply laws by insisting that “the Miami Herald newspaper did not hold its pages open to all members of the public.” That is also false. Yes, newspapers exercise “editorial discretion” over which articles they print. But newspapers don’t just publish articles, they also publish ads. And they’re generally happy to publish advertisements by anyone willing to pay. AELP insists that “Newspapers are exclusive publications; the public cannot, at any moment, publish their views in the New York Times.” Yes, they can. All they have to do is buy an ad. So, newspapers are, in fact, “open to all members of the public” willing to pay for the privilege. In AELP’s terms, newspapers are and always have been “open-access.”

That’s fatal to AELP’s argument. According to AELP, the First Amendment allows states to prohibit social media companies from censoring users, because social media websites are “open-access.” But newspapers are also “open-access,” because anyone can buy an advertisement. So, AELP’s argument necessarily implies that the First Amendment also allows states to prohibit newspapers from censoring advertisers.

Wrong. The Supreme Court explicitly said the opposite in PruneYard itself. And if the First Amendment means anything, it means that the government can’t tell newspapers what to print.

What’s the real difference between Miami Herald and PruneYard? It’s simple. Newspapers are in the speech business and shopping malls aren’t. The First Amendment says the government can’t force you to share someone else’s speech, but sometimes it can require you to tolerate speech you dislike. And which is social media more like? The business that is in the speech business, or a shopping mall where speech has nothing to do with its business?

It gets worse.

The brief repeatedly tries to couch these laws in terms pretending that these are anti-discrimination laws.

Amici file this brief to encourage the Court to preserve a traditional state power—barring unreasonable discrimination by private industry in the exercise of its business operations.

But that’s also wrong. These are not anti-discrimination laws. And as another law professor, Daphne Keller, has pointed out, those defending the laws in Florida and Texas have only recently pivoted to pretend they’re anti-discrimination laws by grasping at straws for a reason why these laws could be constitutional:

Discriminating against someone based on her race and discriminating against her based on her tweets are not the same thing. The Texas and Florida briefs blur the distinction between the two by conflating different meanings of the word “discrimination.” The states’ laws were enacted to stop platforms from restricting speech based on the message it conveys. Doing that is “discrimination” in the most basic and literal sense: The platforms are making choices between different things, under rules that treat users differently based on what they say—much as the hosts of a lecture series might exclude speakers or audience members for disruptive or racist remarks. The states’ arguments equate this with the important and distinct issues addressed by civil rights laws. Those laws broadly prohibit discriminating against people based on who they are, like hotels or restaurants refusing to serve Black customers.

The brief, weakly, tries to address this distinction, by claiming that there are cases that support bans on viewpoint discrimination. Except, they get it backwards. The bans on viewpoint discrimination are against the government engaging in viewpoint discrimination, not in forcing private platforms to host all speech.

The brief attempts to tap dance around these different meanings of both “discrimination” and “viewpoint discrimination” by pointing to three things: (1) SEC restrictions on refusing to print shareholder proposals in proxies, (2) the Packers and Stockyard Act’s anti-discrimination clauses, and (3) a short list of PruneYard-like cases all revolving around shopping malls.

However, none of these make any sense here. The shopping mall cases we’ve already explained above. They are different, and even if you accept the brief’s description of “open to all,” we’ve already shown how Miami Herald says the results are different for organizations in the speech business.

As for the Packers and Stockyard Act, that too, has nothing to do with speech. Indeed, the law professors appear to be misrepresenting the law entirely. The prohibitions on discrimination in the law have nothing to do with viewpoint discrimination and the intentions of the law are about preventing monopolies and unfair competition through things like favoring some individuals for who they are, not what they say.

Finally, the SEC’s restrictions are the only ones that are actually speech related, but are very narrowly tailored to a very specific scenario in a highly regulated industry, where a proxy statement may be the only way to get across shareholder proposals to a specific audience: other shareholders who will need to make decisions based on those proposals.

So, these are not the same thing. They misrepresent the law. They misrepresent what was said in these historical cases. They misrepresent discrimination law and what “viewpoint discrimination” means.

We’re disappointed by this brief, because law professors should know better. It’s one thing for crackpots like former professor John Eastman to make legal arguments grounded only in wishes and rainbows. It’s another thing entirely coming from respected legal scholars. We know they want the government to be able to regulate social media companies more aggressively. Maybe a superficially clever argument clouded their better judgment.

But law professors have a professional obligation to describe the law as it is, not as we want it to be. It’s fine to argue that the Supreme Court should reinterpret the First Amendment to allow more speech regulation. It’s not fine to pretend that’s already the law.

Brian L. Frye is the Spears-Gilbert Professor of Law at the University of Kentucky. Mike Masnick runs this site.

Filed Under: 1st amendment, content moderation, discrimination, free speech, larry lessig, open access, shopping malls, social media, speech, tim wu, viewpoint discrimination, zephyr teachout
Companies: aelp, netchoice

Upstart, Anti-Corruption Campaigns In NY, NH Don't Win, But Do Show Growing Anger Over Political Corruption

from the a-good-start,-but-not-over-yet dept

To the “savvy” political insiders, political corruption is still not seen as an election issue that people care about or vote over. We’ve been discussing a number of attempts to change that — such as with new anti-corruption PACs — and two of the political races we’ve discussed ended yesterday. In both cases, the candidates lost, but they way outperformed their expectations, suggesting that there’s a real possibility of a better reaction in the future.

In NY, the Governor/Lt. Governor primary ticket of Zephyr Teachout/Tim Wu was always a tremendous long shot. Going up against a popular incumbent governor in Andrew Cuomo (who also has tremendous NY name recognition as the son of a former — also tremendously popular — NY governor), the media more or less ignored any possibility of Teachout succeeding. The campaign had little money and no real established political base. It ran almost entirely on the basis of “Hey, Cuomo is kind of corrupt and lies a lot.” Before the election yesterday, an analysis of similar races suggested that incumbent governors in similar primaries often get over 90% of the vote and anything under 70% would be a political disaster for Cuomo, who is hoping to leverage his success in NY into an eventual presidential run. While he did eventually win, it was with about 62% of the vote. Teachout got 34% — again, with no political machine and very little money. Wu ended up with just over 40%, and his opponent Kathy Hochul (Cuomo’s choice) got under 60%.

Obviously, a win would have been a bigger deal, but to come out of nowhere (in just a couple of months), with no huge campaign war chest or connections to traditional politics — against such a well-known governor, basing most of their campaign on corruption issues — this suggests that corruption absolutely can play as an election issue. Teachout and Wu had one paid staffer and four volunteers. Cuomo has a campaign war chest in the many millions. And he still could only barely crack 60% of the vote. That says something. Also interesting is the fact that Teachout and Wu actually won in many rural upstate counties. The campaign had been expecting a weaker showing there (Hochul is from upstate, and Teachout and Wu are based in Manhattan — which they also won). Again, while losing the overall race, the strong showing is a good sign for future campaigns.

Meanwhile, up in New Hampshire, we’d discussed the campaign of Jim Rubens for the Senate, against carpetbagging Scott Brown (who jumped states from Massachusetts after losing his Senate seat there). Early on, Rubens was basically a complete nobody. While he’d been in NH politics in the past, he hadn’t actually occupied a political office since the 1990s. He was basically roadkill for the political machine of Scott Brown. However Larry Lessig’s Mayday PAC noted that Rubens was the only Republican candidate running on an anti-corruption platform to limit the influence of money in politics. Mayday PAC spent heavily on campaign ads for Rubens, and he ended up getting around 24% of the vote, with Brown pulling in less than 50%.

In the end, both of these campaigns obviously lost — but they were interesting experiments with important lessons. Two upstart campaigns from totally different sides of the traditional political spectrum (Zephyr/Wu to the “left” and Rubens to the “right”), both of which made anti-corruption efforts a key plank in their campaigns. Both were considered barely worth mentioning at the beginnings of the campaigns. Both were up against incredibly well-known, well-funded political machines with national name recognition and ambition. Neither campaign had any significant money. And both actually performed decently despite their disadvantages.

In the end, both campaigns definitely did lose, but they showed how there’s clearly a dissatisfaction with the traditional political machine. And if two such tiny, out-of-nowhere campaigns could do that, hopefully it means that future campaigns can do even more.

Filed Under: andrew cuomo, corruption, kathy hochul, larry lessig, money in politics, new hampshire, new york, politics, primaries, scott brown, tim wu, zephyr teachout
Companies: mayday pac

NY Times Endorses Tim Wu For Lieutenant Governor, But Chickens Out On Endorsing His Running Mate, Zephyr Teachout

from the take-a-stand dept

We’ve written a little bit about the campaign of Zephyr Teachout and Tim Wu for Governor and Lt. Governor of NY — in particular about incumbent governor Andrew Cuomo’s petty attempt to bankrupt the campaign with a bogus attack on Teachout’s residency. That required a significant waste of time and resources, eventually leading a judge to toss out Cuomo’s frivolous challenge. Teachout and Wu have long histories of being really in touch with the internet generation, and being true anti-corruption reformers. While their campaign may be a longshot (big time “outsiders” against the quintessential insider), they’ve certainly managed to make some noise. As we noted in our last piece, while most political observers felt that Teachout had no chance against the Cuomo brand, Wu stood a significant chance against Cuomo’s preferred Lt. Governor Kathy Hochul.

So it was great to see the NY Times (whose opinion actually does carry significant weight in NY) strongly endorse Wu for Lieutenant Governor today:

Mr. Wu, a political newcomer, offers a fresh perspective and a new voice to counter Albany?s entrenched players. Ms. Hochul does not, and she has a deeply troubling record on health reform, gun control and environmental deregulation. For these reasons, we recommend Mr. Wu in the Democratic primary.

[….] Although he lacks time in politics, Mr. Wu has an impressive record in the legal field, particularly in Internet law and policy. Widely known for coining the phrase ?net neutrality,? he has been an adviser to the Federal Trade Commission as part of his efforts on behalf of consumers to keep the Internet from ?becoming too corporatized.?

As lieutenant governor, he wants to speak out on complicated issues that are too often ignored in Albany like immigrant rights and broadband access needed by more than a million New Yorkers. Those would be worthy pursuits, but he will also have to learn quickly how to navigate Albany?s difficult politics to make his views heard.

However, in a bizarre move, yesterday the same paper refused to endorse either Cuomo or Teachout in an article that really reads like an endorsement of Teachout, but where someone was too chicken to pull the trigger and actually endorse Teachout. It slams Cuomo and praises Teachout throughout the piece. Here’s a snippet:

Mr. Cuomo became governor on that platform and recorded several impressive achievements, but he failed to perform Job 1. The state government remains as subservient to big money as ever, and Mr. Cuomo resisted and even shut down opportunities to fix it. Because he broke his most important promise, we have decided not to make an endorsement for the Democratic primary on Sept. 9.

His opponent in the primary is Zephyr Teachout, a professor at Fordham Law School who is a national expert on political corruption and an advocate of precisely the kind of transparency and political reform that Albany needs. Her description of Mr. Cuomo as part of a broken system ?where public servants just end up serving the wealthy? is exactly on point….

So, uh, why not endorse Teachout? Well, because she doesn’t have enough “experience.” And yes, that seems to contradict exactly what they said about Wu, who also doesn’t have much experience. But the NYT tries to explain this away by saying that the Lt. Governor’s job has much less responsibility (which is true) and thus experience isn’t as big a deal. But, really, everyone who becomes governor doesn’t have experience being governor before (and lots of people get elected to such leadership positions with even less experience). Teachout has been heavily involved in a number of policy issues for quite some time.

As Gawker’s Tom Scocca rightly notes, the NY Times’ logic appears to be as follows:

In other words, Zephyr Teachout can’t replace Cuomo as governor because she is not already the governor.

It is true that Teachout is not an experienced politician. The experienced politicians in New York State are hacks and criminals. That is the situation that the New York Times editorial board would like you to believe it cares about.

Yet the Times will not back the nomination of someone who comes from outside of the state’s culture of political corruption?not some reckless crank, a goldbug or anti-vaccinationist or animal-rights activist, but a degree-holding product of Yale and Duke, a former law clerk, a person who works full-time at understanding the process of political reform.

What other credentials would the Times ask a political reformer to have?

The NY Times further rationalizes its failure to endorse Teachout, who the editorial board clearly likes better, because she has no chance. This is a typical, cynical and pointless “church of the savvy” move, in which the press likes to call things based on what they think will happen, based on their “savviness” in understanding the political process more than the public who actually votes. But that’s why we have elections. Sometimes the “savvy” are wrong. Just ask Eric Cantor.

The NY Times further dings Teachout because she doesn’t have experience in politics (even if she has tremendous policy experience), noting that the governor has to get legislation passed, but Scocca again points out how silly this charge is:

So rather than risk the possibility of failed reform, voters should resign themselves to the certainty of failed reform. On a practical level, then, the Times’ attitude toward corruption in Albany is identical to Cuomo’s: Accept the fact that nothing will ever change.

While the endorsement of Wu is nice to see, that was a “safe” way to pretend to support reform. The NY Times could have taken a real stand by endorsing both Teachout and Wu, but it chose to take the “easy” way out.

Filed Under: andrew cuomo, endorsements, governor, new york, tim wu, zephyr teachout
Companies: ny times

Andrew Cuomo Trying To Bankrupt Upstart Campaign Against Him From Zephyr Teachout And Tim Wu

from the politics-is-a-dirty-game dept

There’s been some attention (especially in tech circles) to the upstart primary challenge in NY against Governor Andrew Cuomo (and his preferred Lt. Governor Kathy Hochul), coming from law professors Zephyr Teachout and Tim Wu. Both Teachout and Wu have been in and around a variety of tech and internet issues for years, and are pretty well-known in the community. Wu, of course, is well-known for coining the term “net neutrality” but has been deeply involved in a variety of other issues as well. Teachout has also been deeply involved in a variety of issues we frequently discuss here as well, including being national director of the Sunlight Foundation. Cuomo, on the other hand, is basically the very definition of traditional old school politics, and is currently embroiled in a big corruption scandal. Many people have noted that Cuomo is likely to win handily over Teachout just on name recognition alone, but since Lt. Governors run separately from Governors, Wu has a legitimate chance to beat Hochul.

Bizarrely, the Cuomo campaign seems to be doing everything it can to attract even more attention to the Teachout/Wu campaign, sending its own protestors to Teachout events. The campaign has also been attacking Wu.

But the most ridiculous of all is that the Cuomo campaign has filed a frivolous legal challenge against Teachout, claiming that she hasn’t really lived in New York state long enough to be on the ballot. The whole thing seems pretty clearly to be a way to force the bootstrapped campaign to spend a bunch of money on lawyers (and to spend a bunch of time and resources fighting the legal challenge, rather than campaigning). Teachout and Wu are running a crowdfunding campaign to try to raise some extra money to handle the legal challenge, so they don’t have to waste all of their campaign money just to beat back a frivolous lawsuit.

In court last week, it seemed pretty clear that this whole thing is also a way for Cuomo’s political operatives to go fishing through Teachout’s history for anything it can use against her in the campaign:

The Cuomo lawyers have asked for boxes of documents ? not only her tax filings and rental checks and voting records. They have also demanded her credit card and debit card records.

As Teachout notes, Cuomo is acting as if it’s “on the edge of illegal to even run against Governor Cuomo.”

It may be standard operating procedures to “play dirty” in politics, but this whole thing is making Cuomo look especially petty… and scared. Is he really so afraid of a couple of law school professors who happen to have some fans online? Why does he feel the need to bully them with frivolous lawsuits?

Update: The judge has ruled against Cuomo allowing Teachout to continue her campaign.

Filed Under: andrew cuomo, frivolous litigation, governor, new york, politics, residency, tim wu, zephyr teachout