Saturday, April 30, 2016

FESC: Relax about Town of Gilbert

Enrique Armijo           Town of Gilbert: Relax Everybody   

Presenter: Derek Bambauer


Argues that criticism of Reed is overblown/misplaced; argues in favor of the outcome.  Cleaned up dicta that caused lower courts to conflate content and viewpoint discrimination. Gilbert two step: does the challenged regulation refer to content in its text?  If so, apply strict scrutiny.  If not, does the regulation regulate because of viewpoint?  If so, apply strict scrutiny.


Media commentators portrayed Gilbert as part of 1A tsunami crushing regulation.  Armijo says: chill. Actual effects of Gilbert in 3 areas: sign restrictions. Many regs that fail now would have failed under earlier regimes; will allow regulation where related to real purposes.  Commercial speech distinction remains alive and applies only intermediate scrutiny.  Moreover, forcing municipalities to remove content restrictions reduces discretion for local officials, which is an important purpose of the 1A.


Panhandling: begging is speech, but courts have long permitted bans anyway b/c they don’t like beggars. The bans now have to be more narrowly tailored to traffic safety etc. 


Consumer protection: doesn’t divest gov’t of regulatory power, but burden of proof rests w/gov’t.  Securities laws that mandate disclosure/bar fraud are clearly essential to a functional system.  Pressing state to link regs to verifiable harms imposes a useful restraint on gov’t power.


Argues: cleanly separated content and viewpoint discrimination is a good test.  Courts are properly cautious about their ability to detect hidden animus.


Treatment of content neutral laws leads to underprotection of speech: broad speech blocks are more likely to survive, like a ban on all lawn signs.  Current schema blocks skewing, but not silencing.  Content-specific bans can’t survive even if there are abundant alternative outlets.  Argues that there should be more protection for speech subject to content-neutral bans.


Comment: the shift of Gilbert is bigger than that. Courts may in hindsight have been wrong to use the viewpoint discrimination bad, content discrimination often ok framework, but the SCt let them do it for a while.  Gilbert injected strict scrutiny where intermediate scrutiny was used; likely to have a profound influence on future regulators even if courts haven’t yet done much. Change in emphasis as well as scrutiny; reliance on Sorrell, which moved commercial speech towards core political speech.  Scholars previously opined that regulatory skepticism in Sorrell  would be outlier; it would be a new norm.


Compelled speech is different: gov’t gets much more latitude in compelling speech in commercial contexts than suppressing, curtailing the parade of horribles.


Motive matters; looking for motive catches really clever and really dumb regulators. Gilbert forces stupid gov’ts to take bitter and sweet; sidelines clever gov’ts that appear to avoid malign purposes but still discriminate.  Panhandling is a nice illustration: not clear whether the issue is narrow tailoring, better lawyering, or both—and that’s b/c panhandling laws aren’t really about traffic safety.


It’s not clear how to measure the amount of affected speech, or balance benefits w/speech costs.  Time, place, manner: preserves people’s sleep, but we don’t know how many activists want a parade at midnight. Not clear whether we need more or less searching rule. 


Need theories of middle range linking gov’t purpose to distinctions.


Armijo: consider how you think about these following statements: There’s a local law about how long you can have a in your yard: in May 2017, a Trump 2016 sign should be finable.  1A should (or should not) require town to require near miss or accident before it can ban panhandling in the median strip. An application for state employment that disqualifies 4 African-American applicants for every white applicant violates the Equal Protection clause.  That’s Washington v. Davis; most people in academia think it’s wrong—they think you can presume discriminatory purpose when you have discriminatory effect. In 1A, we care too much about purpose. Reed minimizes use of purpose in resolving 1A questions = that’s a good thing.


It’s a fair critique that the paper underplays the effect of Reed. There are 100s of lower court opinions that are wrong b/c they look at purpose & approve suppressive effect, and those will have to go.  The other critique: what is intermediate scrutiny?  It’s now rational basis review, and that’s a problem; we need to do better if it’s to mean anything.  Who’s afraid of big bad strict scrutiny? What’s the actual effect? Requires the gov’t to draft carefully. All these interests are compelling (ok, most of them). These are about overinclusiveness, underinclusiveness, least restrictive alternative. We should want the gov’t to think about that before it regulates whenever it’s writing laws or regs to affect speech. 


Q (not mine): premise that Reed doesn’t change much of anything—there’s a line of cases that resulted in Reed; it wasn’t alone in treatment of content neutrality. But there already seems to be a change in the law from Reed, and that’s TM registration.  Norfolk sign case: one restriction there was on gov’t flags.  Lanham Act has a flag ban on registration.  We tried to make an argument to register DC flag, but couldn’t make a 1A argument that registration was allowed.  Reed overturned that.  DC & Houston couldn’t register before; they could now, right?


Armijo: Stupid laws.  The voting selfie case: another example of a stupid law. Not moved by the supposed unfairness of forcing gov’t to show compelling interest.


RT: [I don’t think that’s a stupid law. It has an obvious point in preventing people from implementing a vote-coercing/vote-buying scheme by preventing them from getting photographic proof; the ban makes the scheme less likely to work and thus less worth engaging in. I also don’t think the flag registration ban is stupid. I don’t know why someone who admits he knows nothing about TM can judge whether the flag ban is stupid; these are complex regulatory schemes.  Why are judges good evaluators of the evidence here?  I don’t think that © and TM will be struck down, even though their details could not possibly survive strict scrutiny even if the overall idea of the scheme could (compulsory cable licensing, anyone?). But what I do think is that this very fact—© and TM are safe—is evidence of ugly things that go on in exempting certain rules from strict scrutiny/defining strict scrutiny down, just as Vince Blasi warned about many moons ago.  Stuff that the Court likes will survive strict scrutiny, just as Alito listed a bunch of obviously content-based rules as examples of totally fine sign regulations in his concurrence.]


Q: puts starch in standards. It’s just good First Amendment hygiene.  No parade of horribles will occur, but the problem is the euphoria of 1A folks who thought they could get rid of commercial speech, zoning. It’s important to make people show that there aren’t less restrictive means.  Courts may resist finding a violation b/c the consequences are so serious—the same thing goes on in the 1A context—the specter of strict scrutiny leads to courts evading it. Doesn’t have to invalidate © and TM—just give me a reason [that doesn’t sound like strict scrutiny]; did you consider alternatives that were less impactful on speech?  [P.S.: the answer with © and TM is: no.]


Armijo: Turner getting intermediate scrutiny was ridiculous.


Q: effect or purpose as the crucial question.  Heffernan SCt case from last week: Someone who wasn’t intending to speak—he was demoted as a detective for picking up a yard sign for his mom; but they intended to demote him for exercising his right to speak. That’s the right decision.


Q: if Reed doesn’t strike down commercial speech regulation, why can’t courts just decide that Reed doesn’t apply to their situations too? Your argument is basically that courts will do that regularly, which also takes the wind out of the sails of your argument that gov’t will be held to its proof.


A: one of the main arguments is that the commercial speech doctrine is the last line of defense against a full-on Reed that applies to every conceivable reference.  If you look at what courts are doing, they are actually distinguishing Reed from commercial speech regulation, which seems right.


Q: But why don’t you think Reed should do away with the commercial speech doctrine. If strict scrutiny is so good, why shouldn’t we have it for everything, including commercial speech regulation?


A: there are good reasons to treat commercial speech differently.  Those reasons will continue to be sufficient.  [This raises the classic question of retail v. wholesale justifications for treatment.  Commercial speech gets shunted off from strict scrutiny at the wholesale level.  Likewise © does, and apparently the non-disparagement/scandalousness bars of TM too and probably things like TM priority and ITU.]


Q: so why not other things too, like the Chaplinsky categories?


Balkin: how much is this paper about the composition of the federal courts?  Lower federal courts might read Reed narrowly b/c they have a lot of Obama appointees. Significant chance that Scalia’s replacement will be less skeptical of the regulatory state. That would be a very good explanation for why we should relax; paper’s analysis would be helpful but not necessary.  If Ted Cruz stocks the Court with constitutional conservatives, then Reed will mean a lot more.


Bambauer: Armijo takes preexisting categories seriously.  Conservatives could weaponize Sorrell too.  Legal Realist critique is a different matter.


Balkin: your point is there’s not enough evidence of which direction Reed will go.


Q: nonjudicial 1A roles—federal agency may be able to enhance 1A discourse, maybe even by funding broadcasters.  Commercial-adjacent speech—not a proposal for a transaction.  Gay conversion therapy: is it a content based distinction?  Under Reed, yes. But does it reach any of the reasons we created the content-based category? Or is it just a service you can no longer obtain?  Professional speech isn’t a formally recognized category of the same vintage as commercial speech.


Q: distinct 1A interest in that speech in Velasquez re: funding of legal services. 


Balkin: 1A protects professional judgment in some contexts, but gov’t can also regulate professional fields for quality.


Q: but every law is dumb some of the time. Banning gay conversion therapy outright can’t be the least restrictive means!  Making GPS provider liable if advice caused an accident: that’s content-based.  [And a less restrictive alternative would be counterspeech! Have the gov’t make its own GPS system and people can choose which to use.]


Balkin: very common to create regulatory rule that’s prophylactic. 


Armijo: but that allows the “no panhandlers in the median” rule too; that’s prophylactic.  Why not ban all people hanging out in the median? Current 1A law incentivizes “no one hanging out in the median,” which harms the political protestor as well as the panhandler.  [I’m not sure where to go from that.]


Q: Does any of this track the reasons we adopted the content based distinction?


Armijo: makes us more suspicious of the gov’t. 


Balkin: Bad motives; distorting marketplace of ideas. But how do you know what a nondistorted market looks like?  What you’re left with is that you’re worried about bad motives. If that’s the case, go straight to the question of the gov’t’s motives.


A: it’s usually hard to tell/well masked.  [Not clear to me that’s true.] Also, you have to worry about other justifications.  Require neutrality = you don’t have to do that.


Balkin: but there are many kinds of content or speaker based laws where one would not imagine bad motives. That would suggest that there are some classes of content regulation where you shouldn’t trust the gov’t.  But some you should.


Q: facial neutrality, by the same token, is no guarantee of anything good motive-wise.  Closure of a designated public forum is neutral, but bad.  Like closing the swimming pool to avoid integration.


Armijo: my aim is to reverse US v. O’Brien, and focus on effects and not purpose gets you there.


Q: but that was just the Court doing a bad job at purpose analysis.


Q: but there you have a plausible neutral reason for the regulation that the Court didn’t second-guess based on a few floor statements.


Bambauer: We have a bunch of special cases.  1A doesn’t apply to ©; not to cable (Turner).  Is it preferable to have special cases or just face it outright.


Q: the special cases are diminishing over time, just as unprotected categories have been narrowing over time.  [© is a counterexample, it seems to me; that was only invented in this century.] Incremental narrowing of gov’t latitude to regulate commercial speech—that’s In re Tam and Discovery Networks – you don’t get leeway to regulate if your purpose isn’t to deal with the commercial transaction itself. Zauderer makes it weird, but overall the special cases are narrowing more to a standard interpretation.  Reed doesn’t mean there will be no more incitement, obscenity, etc.


Q: disclosures: cigarette companies may be required to disclose when other producers aren’t required to disclose the same risk; it’s not b/c cigarettes are extra regulable for the very reason commercial speech is regulable—it’s not RAV.  Regulating particular speakers can’t be enough to invalidate a law—you can regulate disclosure of airline prices without regulating disclosure of all prices or all transportation. It’s just a feature of gov’t regulation that you can’t regulate everything at once.


Q: recent Heffernan case: the 1A focuses on the gov’t’s activity.  A justification for looking at intent.

FESC: Trademark Registration and Free Speech

Presenter: Deven Desai: Latest Trojan Horse in 1A law. §2(a) allows denial of registration for disparaging marks.  This piece of TM law is a chance to rethink the 1A in general.  The Washington football team & In re Tam.  Fed. Cir. drew on Reed to find §2(a) disparagement unconstitutional content-based regulation. Threatens the ability to have a proper regulatory state. The fact that the acid logic of current 1A protection makes the bar on registering merely descriptive terms even arguably unconstitutional shows that something has gone seriously wrong w/current law. Forcing TM law into strict scrutiny makes little sense and could do great damage in general.
Bar on disparaging marks has been justified in various ways: gov’t endorsement, gov’t resources, user’s continuing right to use.  There is enough gov’t involvement to be sufficiently like Confederate Veterans.  Is the only constitutionally sound purpose of TM law to improve the quality of the truthful/nondeceptive signals consumers receive?  Can our concept of quality include disparagement? Tam used unconstitutional conditions, but RT says that was wrong, b/c TM always involves gov’t intervention into the speech market.  We’d like to appropriate ROOT BEER or BARQ’s for root beer, but we can’t; PTO would rightly deny registration.  Deception-adjacent bars would be suspect/fail under the Tam approach.  There’s an easy way out under commercial speech doctrine under Friedman, but b/c so much has changed since 1979 there’s a problem.
What would happen if we gave full 1A scrutiny to TM? These bars would all falter/crumble under real 1A scrutiny.  Key point: denying registration isn’t a punishment. Lack of sufficient justification to grant the private right in the first place. This is what we need for a regulatory system.  If you say that other marks should have been denied; we have inconsistency in regulatory systems, and this isn’t a ban on speech.
Is this viewpoint discrimination? No, it’s equal: you can’t disparage any group with your choice of mark; we don’t care what the speaker thinks.  Straightforward.  We also make decisions about subject matter protectability in ©.  To have a regulatory state, we need to do certain things. The FDA has to manage drug labels. Debt collection practices. Registering TMs—economic regs assaulted by modern 1A theory.  We should embrace ordinary economic regulations with content regulation involved.  That’s what the regulatory state is supposed to do when it works well.
What content-based determinations are legitimate? We might have to leave it to the legislature.
RT: Thanks to Deven and the participants!  I know I’m a bit of a contrarian.
Balkin: This is different than other kinds of regulations.  Characterize what the nature of the regulatory practice is to fit it into 1A thought. First cut: this is a close cousin of the regulation of commercial speech. Either part of that or close cousin. There, our basic goal is to promote truthful, nonmisleading information for the purpose of improving cultural competence.  It’s really a form of market behavior we protect b/c in essence it throws information into the system. Much market behavior isn’t protected b/c it isn’t info producing. Tries to influence desire by reshaping culture.  [those two things aren’t the same, desire and info]  But why don’t we allow TM registration for everything? The gov’t must have a view that there are certain registrations that will produce a certain kind of market that’s desirable: but what is that?  Once we know what the gov’t’s goals are, the real test is whether there is a rational relation b/t organization of the registration system and the kind of market we want.  If true, that’s just Central Hudson, which is reasonableness under the circumstances.  If it’s truthful or not misleading, we do intermediate scrutiny. The distinction between viewpoint based and content based is not part of the test, just a means-end rationality test.  Must be an allocation of economic power somewhere (rights or no-rights) and the gov’t’s choice among them just has to be reasonable.
Desai: constitutionally sound purpose of TM/harm done to significant segments of the population—need to develop that more in the paper.
Tamara Piety: On misleadingness, case law has assumed that if it’s lawful or that a whole bunch of stuff that doesn’t make an assertion about truthfulness meets that prong; elides disputes about what constitutes misleadingness or truthfulness. Doesn’t fit neatly in to truthfulness/nontruthfulness. We could place this dispute in (1) or (2) of Central Hudson.  State action problem: Gov’t’s thumb on the side of a matter of public concern. But it would be if they had the registration too! Gov’t’s doing so in a regime that if they get the right they get to suppress others’ speech. What’s the justification for that?  Market-making v. gov’t’s desire to avoid identification with disparagement.  1A discussion seems to be at the first level of taking a side on disparagement rather than what TM as a regime does.
Andrew: not a TM expert: struck down disparagement bar in toto. But doctrinally: other ways that might attack disparagement bar.  I don’t like Confederate Veterans: majority opinion has difficult-to-foresee implications; giving up on Finley—gov’t doesn’t want its hands dirtied by art it doesn’t like.  One thing you might draw on is admin law: idea of Congress not delegating this power to this group to make this decision.  Petition for cancellation is an interesting mechanism: Washington team already had a registration; Tam didn’t have a registration—is there a difference/vested right?  King v. Burwell—why would you let the TM office make a disparagement determination? There’s no way that moral adequacy questions would ever be delegated to the PTO.
RT: reminds me of talking about © 15 years ago. [Congress was super clear about delegation.]
Vision of market making: Civilizing commerce.
Kate Klonick: even though we keep talking about avoiding deception, honest info flow—the other question is why do we want that to be the marketplace? It benefits consumers and companies in general (market for lemons)—that’s also why we allow the TM office to regulate speech that is derogatory.  We want to protect users.
RT: issue: continuing right to use; can the market take care of it?  Not always! Doux-commerce: a market can segment so that the racists are enough to support the product.
Annemarie Bridy: Source identification is not a semantic function—when the gov’t is regulating whether or not it will give you a mark, it’s only regulating whether it will approve of that as a source identifier.  Does that mean it’s content neutral, b/c what you’re regulating is the source identification function?
RT: not under Reed’s excitingly broad definition of “content based,” but that’s silly—it’s a perfectly sensible content-based regulation.
Balkin: RAV.  Scalia would say: imagine two different products: Happy Jew bagels; Smelly Jew bagels.  According to Scalia, you can’t register one but not the other.  Exception: where the distinction is related to the purpose of the regulation itself.  If you accept that disparagement is part of a special master plan of sweet commerce, that would be ok.
RT: deceptive marks: a ban would be effective; refusal to register by hypothesis is not b/c it’s material to consumers, thus helping to sell the product; why would the applicant stop using?  So unless something about the regulatory system is important to distinguish it from a ban, gov’t should have to use a ban instead.
Piety: external justification for regulation: since you’re handing a potential stream of income to someone. Materially different from a speech ban. 
Priority rules—why aren’t they suspect under the 1A?  ITU, foreign rights owners, etc.  Even if the common law were a neutral baseline, that isn’t the common law.
Analogy to names: gets past the commercial speech issue; doesn’t have to be commercial speech for the gov’t to be able to regulate it in this particular way.  [avoid the Central Hudson question of reasonable basis if it’s a general regulation that goes beyond commercial speech]
Consider Gallo v. Gallo and other personal names cases: courts have not to date seen a 1A problem in barring use of personal name (though query whether that should continue—here we have the private speech v. private speech issue not directly presented by TM registration)

FESC: First Amendment Theory and Coverage

First Amendment Theory and Coverage
Moderator: Ash Bhagwat
Jane Bambauer, Derek Bambauer      Information Libertarianism
Presenter: Morgan Weiland: Important ongoing debate about expansion of 1A doctrine to cover commercial and corporate speech.  Critiques existing identification of “new Lochnerism” as an explicitly redistributive “soft Marxism.”  At its core, the current scholarship is hypocritical, criticizing the Court for using the 1A instrumentally to deregulate, but their theories of limits are also based on politics and are therefore also instrumental.  The authors purport to offer a politically neutral defense of expansive free speech doctrine, because the 1A is inherently libertarian. Info = communication or signals b/t sender/receiver where those communications are or could be useful to human beings.  Info libertarianism is oriented towards the listener. Speech is info w/in the scope of the 1A.  Info libertarianism is skeptical towards regulation of speech and supports regulation of conduct.
Direct regulation of conduct is (1) more effective at attaining gov’t’s goals, (2) has fewer collateral consequences, and (3) more transparent.  Costs of speech are overestimated and benefits discounted.  Speech is vulnerable to intractable political problems: interest groups, gov’t self-promotion, etc. Info libertarianism mitigates these concerns.
Comments/feedback: 1A theory as libertarian. Paper assumes that implicit in every theory of free speech is the libertarian insight: worries about gov’t power. This assertion presents two problems. (1) Not clear it’s correct; requires more support than provided. (2) Because the claim isn’t supported, you determined ex ante that the entire field of speech is libertarian, which neutralizes the ideological approach you subsequently take.  Could be dealt with in a couple of ways: distinguish b/t theory and doctrine; doctrine is a stronger candidate for being deeply libertarian.  Could also defend the claim that 1A theories are always ultimately about fear of gov’t.
Listener-centered approach is underdeveloped part of 1A doctrine.  Red Lion & many other cases discuss this view. There’s a lot of scholarship in the communitarian tradition that deals with this listener-centered approach; engage w/that, b/c it comes at listeners from a very different angle. 
Use of term “information.”  Talk more about why you distinguish b/t speech and info in the first place. What work does it do for your theory?  Relatedly, there’s tension in attempt to unite info theory w/the notion of info described as attached to phenomenology, which reintroduces meaning. Shannon’s info theory was designed to strip meaning out of info processing, so there’s a tension.
Broader info libertarianism: Unpack the specific theoretical contribution of info libertarianism in contrast to other free speech theories.
Morgan Weiland         “Thin Autonomy” and the Digital Speech Crisis
Presenter: Amanda Shanor: New third tradition in free speech theory: autonomy justification—thin autonomy, stripping hallmarks of human autonomy in self-expression and self-creation, leaving only freedom from the state. This poses a deep threat to the digital era.
Summary: First: dominant historical traditions, negative and affirmative free speech.  Negative: individual autonomy rooted in Enlightenment notions of self-expression. Ascribed. Not just negative liberty against state, but productive/generative. Affirmative: free expression is a social good wielded by individuals to accomplish the public good of discourse/democracy.
Second: neo-Lochnerism and thin autonomy.  This new justification for speech protection comes from commercial speech/corporate political spending as speech cases. Radically corporate, libertarian version: strips away Enlightenment ideals, leaving only a naked right against the state.  Not a right to self-constitution.  Flips press right on its head: negative right justification treated the press as specially protected because it was instrumental to vindicating listeners’ rights; new thin concept treats listeners as instrumental to vindicating corporate rights.  A one way deregulatory ratchet.
Third: threat to digital era. Telecom law is poised for a similar issue as commercial speech/campaign finance. Net neutrality is the new ground.  ISPs are making third tradition argument: ISPs are speaking when they load data packets.  That’s a thin autonomy justification divorced from self-expression and self-realization.  Gov’t defends the first two traditions: data transmission isn’t speech, but content creators’ and audiences’ receipt are.  Broadband providers are not speaking when they deliver data, but serving as conduits.  Net neutrality serves important First Amendment purposes to allow individuals to structure their own political speech. 
Questions: (1) How do we recognize thin autonomy when we see it?  Autonomy right against the state claimed by corporation—is it just another way of making a corporate speech claim?  When you see listener rights invoked instrumentally?  You say that listener rights can also be used instrumentally to serve thick autonomy goals.  Paper suggests it might be nonhuman actor that’s key. (2) Why and on what basis is thin autonomy unsatisfying? Is it unacceptable b/c of its outcomes?  Or b/c the 1A does and should extend only to thick autonomy interests?  (3) Can’t corporations provide the opportunity for self-cultivation by citizens?  Commercial speech: in that context, some cases we might realistically describe as neo-Lochnerism are brought by individuals, such as US v. Caronia, where an individual successfully challenges the FDA’s off-label speech rules.  Reconstituting the individual as consumer in the third tradition: love to hear more about how the third tradition reconceives the individual as a consumer.
Jane Bambauer: central tension in papers: theirs defends thin autonomy because it’s a useful corrective to avoid bad policy—gov’t thinks it’s getting things right and it’s not.  Insistence that every free speech theory has a libertarian core: maybe that’s not true, but if we’re going to agree that the 1A is an individual right then it is true. Even if you take the narrowest free speech theory, the Borkiest, and protect only core political speech, if what we mean by being protected is that the state can’t punish an individual for speech, that reveals that we have some distrust of the political process to get the legal rule correct.  [So all individual rights are libertarian?  If I have a right not to be killed by the state, does the fact that it applies to me as an individual make it an individual right and not a communitarian one?]
Weiland: On defining thin autonomy: the legal fiction of the corporate person has limits. We should allow the individualism of the free speech right to apply to corporate persons, and that doesn’t make sense. We should assess the nature of the group: reasoning in Citizens United was wrong, as was the holding. What is their relationship to self-expression? Some groups have a great claim to self-expression, but not all of them. Doctrine is now incoherent. Perhaps the Citizens United group gets the same outcome, but not all corporations.
Tamara Piety: Suggestions re: tone.  [RT: I’m offended at being accused only of being a “soft” Marxist.  I work out!]  That’s a code word and not fair.  Basic framework of the Lochner charge was advanced by that well-known enemy of capitalism CJ Rehnquist, in his dissents in Virginia Pharmacy and Belotti.  It’s taken time for some of his predictions to bear fruit, but they did.  A lot of these objections are coming from corporate law scholars: the corporate law body of law is in tension w/emerging 1A doctrine.  Defining corporate entities is a very different project in corporate law!  Not fair to characterize this as burn-Wall-Street.
Straw man argument about originalism; if you care about originalism, you should be concerned about current doctrine—not really pure originalism. 
You assume what a lot of us are challenging: the informational status of a lot of commercial speech. If you say it’s valuable, you assume away the problem. 

Intermediate v. strict scrutiny standard: but that’s one of the principal disputes right now. Intermediate scrutiny became de facto strict over time and we object to that; now we’re entering to a place w/an uneasy mixture of content neutrality and Central Hudson, which has not been overruled. 
Jack Balkin: You can’t go far if you try to base a theory on some idea of freedom. Can we think of info libertarianism as being sufficiently neutral as to all the things we care about w/r/t speech? Usually we don’t talk about liberty as neutral; we talk about it as serving some sort of value. Creating a form of liberty w/ no value associated with it strikes him as too cautious.  What are the human values promoted by this tilt towards libertarianism?  When you articulate it, it won’t be in terms of neutrality.  For Weiland: what is the loss in terms of human values by the retreat to the thin conception?  For example, suppose you happen to be a critic of neoliberalism.  Might argue that the thin autonomy conception involves a particular form of risk assessment/management, capital development to which human is entirely subservient, subsumed into market metaphors, and that’s a deeply false picture of what human life is and should be. That’s an objection I get.
Jane Bambauer: nothing is purely neutral, nor are we purely procedural. Reluctant to name end goals (though she could) b/c we have many examples where the gov’t’s end goal is not well served by regulating communications.  [Which assumes that the gov’t has a single goal, and that a better regulation in service of that goal is politically possible.  I actually have a lot of sympathy for the argument that the gov’t should be forced to Hobson’s choice in many circumstances, though I think that’s generally a better argument for getting rid of disclosures and doing more flat bans on speech.]
Weiland: Agree w/the affirmative and negative traditions: 1A is there to ensure that we have opportunity to cultivate ourselves as autonomous, expressive people. So can corporations provide that opportunity? Yes, absolutely, but only instrumentally.  In the affirmative tradition we develop ourselves as publics, as groups.  The single-way ratchet against regulation prevents a proper balancing of the possibilities.
Bhagwat: negative/positive: one thing going on seems to be instrumental/political versus individual autonomy/development.  Agree that Fiss, for example, is associated w/gov’t getting involved and political, positive conception of 1A. But those two threads can exist apart.  You say that “getting more information” is not the result of Citizens United and thus it’s not justified, but why do you think that’s not true?
Weiland: it could be the case that deregulation furthers the listener’s interest, but it’s not always true as a tautology. Kennedy et al. assert that listener’s rights are coextensive with every corporation’s speech.
Amanda Shanor          At the Boundaries of Free Speech: A Theory of First Amendment Coverage
Presenter: Leslie Kendrick: Many questions around free speech Lochnerism are questions about coverage, not protection: securities regulation, workplace harassment. Coverage is a sociological concept.  What courts and litigants in a given moment think it is; lately, that question of what coverage is has been expanding. Descriptive theory of what courts are doing when they discuss coverage. Social consequentialism: how cohesive are our expectations about the reactions/understandings the speech will generate? The more cohesive our reactions are, the less likely it is to be covered. Workplace harassment: we understand the effects of harassment on the workplace. Porn/hate speech: those are w/in the scope of the 1A b/c social cohesion around those is more contested—what its effects will be are more in question.  Courts should assess the institutional and other values implicated by expanding or contracting coverage.
Questions: is this really about cohesion?  Nazis in Skokie; we could all have a consensus prediction about what happens when Nazis march in Skokie and what effects that will have, and yet it’s protected.  On the flip side, workplace harassment: the story there bears uncomfortable resemblances to porn: different views of what porn does, but also potential disagreement about effects of workplace harassment.  If sex is included in Title VII as a possible poison pill (a contested account), then it didn’t itself represent any social consensus, nor did the effects of harassment specifically in the workplace. One could also think of law itself as a marker of social cohesion: and yet it can’t be the case that having a law about something signifies the existence of social cohesion.
Speech/conduct divide.  [This troubled me too.  I think the meaning of the shape of a car is likely to be contested, but that doesn’t make it within the scope of the 1A.]  It’s an uncomfortable divide, and the more we try to escape it the more trouble it gives us. Many of the things that we wouldn’t colloquially call speech are the subject of regulation and are contested.  Minimum wage laws.  The effect of a $15/hour wage is contested, but no one would argue that b/c the effects of such a wage are contested they have a 1A right not to obey.  Speech/conduct divide may be doing work underneath your concept.
Leslie Kendrick          Use Your Words
Presenter: Derek Bambauer: Theoretical inquiry separate from underlying rationales for free speech or claims about coverage, balancing, or scrutiny. Instead, speech is distinctive relative to other human activities: more efficient, effective and precise method of communication than any other, thus likely to possess a unique relationship to the reasons for First Amendment protection.  Speech as phenomenon: enables each of us to transcend individual boundaries of time, place, meaning-making—can represent actual/potential states of being. Speech is power.
Specialness: a brief history of justifications for speech exceptionalism.  Unitarians: single core value drives shape of 1A. Pluralists: speech is critical/central to multiple important values.  Inclusivists: everything is speech until shown not to be; this is more of a description than a theory.  Skeptics: those who find speech’s uniqueness unpersuasive: speech is not meaningfully distinct from speech or tennis (don’t attend Wimbledon w/these people), but speech claims are just normative agendas.
Separability from other activities + heightened value/special connection to underlying values = justification for special treatment for speech.  Paper doesn’t require 1-to-1 correspondence w/ underlying value, but it is enough for speech to be primus inter pares.  It’s enough that “speech” doesn’t describe all activity and that “speech” is special.  Doesn’t address which speech should actually be protected, or whether there should be “neighboring rights” for speech-generating behavior. 
If speech is special b/c it’s uniquely good at communicating, we need an underlying theory for why communication is special.  At base, this is a claim about human specialness: social interaction/advanced cognition are important, and communication is a platform for that. If communicative efficiency is a criterion, then many behaviors become speech; forces the theory to become highly inclusive, outsourcing all the work to the protection issue; or it requires some other limit.  Words and other speech aren’t uniquely communicative. Much communication is nonverbal and not even what we’d call language. The eyebrow flash; the wink; the crossed arms; the tapping toe.  We also find signals easily recognizable as words in animals: honeybee dance for location; warning cries that identify specific predator types. We need to understand whether all communication is speech and if not why not.
Paper: speech is a complex system of communication.  Complex is a word that needs elucidation, or risks becoming the 1A version of the epicycle, an adjustment that does a lot of the work of harmonization w/desired outcome.  Also, simple signals do a lot of work, like flashing your headlights to signal a speed trap. We can’t resolve the speechiness of draft card burning and flag burning w/just an idea of complexity.
Wherever the boundary of speech is located, will leave out certain acts vital to speech generation. Could be relegated to Press clause in doctrine, but certain means of generating speech are just more effective than others. Printing press, pencil—classic line drawing problem.
Shanor: does cohesion work?   Harassment is about boundaries, different types of interpretive communities.  Ultimately my conclusion is that drawing these lines can’t just be socially descriptive; neutrality is not a thing that exists.  Normative inquiry.  Attempt: highlight social forces.  I think about speech/conduct differently: if we have a two-tiered system of scrutiny, there always has to be a boundary—a meta-doctrine, per Mark Tushnet. Doesn’t think we can get it from speech and conduct; deeply normative decisions are required.  Hope is to make that a more visible inquiry.
Kendrick: interested in structure of rights, particularly special rights that operate above whatever rights conduct does generally. Conceals w/in it questions of how distinctive the activity is and how robust the protection difference should be; my question is about the first. In our language of special rights, we tend to frame them in terms of activities in the world. So we could have a liberty principle or something else that invoked a value, but instead we talk about “freedom of speech” or “freedom from unreasonable search and seizure”: described in terms of facts in the world.  Trying to see if you can gain anything by thinking about speech as a phenomenon separate from the values we think it furthers.  Then I stab at that by trying to distinguish speech in its communicative power/efficacy. I resist the idea that it’s about communication per se. I want to put aside Qs about everything that could communicate.  Defending the proposition that speech is different in communicative capacity, not to say that speech has a monopoly on communications. We have academic disciplines devoted to speech, specifically language, suggesting that language communicates differently. Though everything signifies, language is the most effective signifier. 
She’s perfectly willing to concede that animals have complex systems of communication. We could think this phenomenon has important value for something—but maybe it only relates to human development, or not; maybe preventing animals from communicating is a form of cruelty!
Q: Hate speech & harassment don’t differ in social effects; Eugene Volokh would protect harassment in the workplace.  Nuanced, accurate, efficient: all can be characteristics of sexual harassment, price-fixing. So it seems there has to be some greater value beyond speech.
Shanor: Agree that formal analysis can’t answer these questions; ask functional questions, e.g. about the functioning of the securities markets.
Kendrick: what I’m describing about speech has no normative valence; it could be used for good/evil. Speech is very good at insulting people.  Hard to have hate crimes w/o language that explains what you’re doing.  Want to disentangle the phenomenon from the normative values served by the speech; there are certain types of claims you can only make through language, like all the types of claims we discuss here; all rules for governing a democracy; any type of abstract or hypothetical thought—speech has a monopoly on those. 
Q: many of the theorists you deal with are actually arguing about protection, not coverage.  We don’t protect speech in all cases, so maybe the question of whether speech is especially good at communicating is beside the point.  If we find parts of speech that aren’t doing the thing that speech in general can do, then we can regulate it, right?
Q: maybe speech communicates specially b/c we have a choice to say or not say: b/c we have a choice about integrity. Silence can mean something too.

FESC: Hate Speech, Political Conversations, and Citizenship

Brian Hutler    Hate Speech, Political Conversations, and Citizenship        
Maggie McKinley: Tension b/t speech and protection of minorities.  Integration of distinctive communities and institutions leads to conversations, especially b/c most integrations are by force.  Exposed for some scholars the failures of liberalism in resolving historical injustice/structural inequality. Cf. MacKinnon’s critiques of sexual harassment and pornography as destructive of community—excluding women through semiotics of power.
Hutler argues for regulation of hate speech as inclusivity measure, but tries to do that through more democratic theories: Meiklejohnian theories and political science scholarship on deliberative democracy growing out of Habermas. Empirical depth to deliberative democracy through the use of ordinary language philosophy/Grice: argues for a new ideal model of speech, the conversation, rather than the “marketplace of ideas.”  That alone is a contribution to law & political science.
Suggestions: Normative components of argument.  Conversational model: speech has more to it than just dialogue and conversation, enacted in part right here with the commentary.  Nothing conversational about this part.  Some of our free speech doctrines already protect conversational aspects of speech, but that doesn’t mean we should keep doing it or make it an explicit goal.  Potential normative justifications—e.g., deliberation is great; it’s its own justification.  But: What does it mean to put majority and minority in a room?—may homogenize through majoritarian decisions.  Votes allow the minority to continue to hold its views.  Does valuing conversation silence other methods of communication, like Fuck the Draft?  Is it exclusion from the marketplace of ideas that we’re concerned with, or exclusion from educational environments, workplace environments, civil discourse/social life through microaggressions?  Internet versus student speech—a lot of the hate speech conversation there is about participating in educational opportunities. 
Finally, are we doing this because protecting conversations protects minorities, and our aim is to protect participation of minorities/improve their lives?  Is hate speech the beginning of a solution or is the same argument leading us to things like affirmative diversity training as the next step of a conversational model?  Example: Rising intonation as a sign of lack of leadership but also as a sign of being female: should we train students during mock oral arguments to not gesture, not have female affect, etc.?  If you have a stigmatized affect, should we train people out of that to improve the conversational approach?
Microaggressions as hate speech: when Easterners casually throw around “off the reservation,” should that be regulated? Whose norms will be chosen? Conversational norms vary widely.
Structural suggestion: combining internet and schools may not help—disguises some tensions in your argument.  Distinction b/t hate speech and harassment may be important.
Hutler: agree about difficulty of defining norms, but at higher theoretical level there is an overarching norm of what Grice calls cooperation—the goal of conversation is to reach some kind of mutual understanding. The goal of having that kind of conversation, even if we don’t achieve it, has a kind of moral value.  It’s valuable for individuals to be able to express themselves in a context where someone else cares; there’s also a value in forming a relationship, even if fleeting, which is designed to achieve mutual understanding even if it doesn’t occur.  Playing w/ idea of individual freedoms understood as protecting relationships/relationship formation, not just individual activities. 
As citizens, we use conversations to structure our interactions at the ground level.  In the workplace: legal standards are applied in the office, and there it matters that minorities get to have their say and get and adequate/equal level of representation, but more to the point in an interpersonal context it’s about ideally us coming together to agree on some way of interacting. That’s why focusing on universities is useful.  It’s a place where people live and interact on a small scale as citizens. 
RT: The press and the relationship to the ideal of conversation: asynchronous?  But it’s also one to many.  Images as counterexamples to the ideal of conversation—think of the little pamphlet mentioned by Justice Scalia in the abortion protest case, which is going to be a picture.  Other complicating factors in how we interact: memes—can you engage in dialogue with a meme?  Can you argue with a meme? Stories: George Lakoff and the metaphors we live by: what does it mean to be in conversation with a story? Persuasion: is it the opposite of deliberation?  Is it incorporated into deliberation but also capable of occurring in a non-deliberative way? People have projects in conversations; that matters to the kind of conversations they have.  The university of your ideal: in US, people don’t live on campus together, except at the elite colleges—they go home or to work.  What does that mean for your account?  Perhaps just that we don’t show by behavior that we as a society value what democratic deliberation theory asks us to value.
Hutler: In terms of the press: Speech that isn’t directly conversational is still deserving of protection. For him, the value of those things comes through either trying to understand what the artist/speaker meant—they may or may not care what I think—or talking about it with some third party.  Think of discussion forums on newspaper websites.  Starting points for conversations—and it was always that way: newspapers contributed to public discourse not just by creating a public record but by creating the nexus for a conversation w/others.
The goal is mutual understanding; it doesn’t always work out.  Persuasion isn’t necessarily relevant; he’s not sure it counts as mutual understanding.  If you browbeat someone into agreeing w/your position you haven’t achieved mutual understanding.  Lots of valuable conversations might not result in any kind of agreement or shared viewpoint.  Sometimes it’s bad faith to go into a conversation aiming to get the others to agree.  (Which to me implies that this theory should give zero protection to commercial speech.)
Q: in a democracy, the purpose is at some level to persuade, right? Isn’t that a value we want in a democracy?
A: If what happens is that I come to understand what you’re saying and think it’s right, that’s wonderful.
Q: Problems of hate speech regulation often come at the level of definition of what counts as hate speech.  By improving the conversation, you mean shutting up certain speakers, which contradicts the justification for free speech.
A: definition may have to be tailored to contexts.
Q: there are many settings not dedicated to public discourse and democracy. The classroom, the workplace, the dorm room?  The theory is very hard to implement.
Q: conversations have projects; sometimes there are conversations about non-conversational statements/speech that others perceive as hateful. How do we get speech about that if we shut down the hateful remarks?
Q: do people need to contribute valuable ideas to have a right to participate?  The Westboro Baptist Church doesn’t have anything to offer, but their presence contributed to a conversation by others and didn’t slow the progress towards sexual equality.  Maybe you need hate speakers on campus to have a conversation about hate speech.  [While I’m sympathetic to this argument in the abstract—or at least as justification for not removing certain groups who’ve shown up in public spaces—you don’t need slavery advocates on campus to have a conversation about slavery, or Holocaust deniers to have a conversation about the Holocaust.  Especially since speech always crowds out other speech, if only by taking your attention away from speech you might otherwise be encountering, the “your bad speech sparked good speech” argument doesn’t seem to me to justify any speech in particular.]

Q: Reminder that people are forced out of conversations by certain speech: including some people means excluding others, and so you can't get the hate speech in the conversation for "free."  This is an empirical point that matters.  [The libertarian response is often to those forced out "toughen up"--that is, change who you are and how you think about speech that hurts you, and come back.  But it is at least reasonable to ask whether we should tell the hateful speaker to change who they are and come back.]

A: Yes, also wants to maintain the possibility of conversation with the hateful speaker.

Q: Habermas may work better for the college sphere than elsewhere: it is a place where democratic conversation is the/a key goal.  Recognition of our common humanity.  If you say to someone "you're not human like I'm human," the example of conservatives who won't talk about their views about Obergefeld is not appropriate.  The conservative students don't think that liberals don't think they're fully human.  The swastika etc. are signals that people who were previously excluded should still be excluded because they don't merit treatment as people.  [Not sure I agree about how conservative students perceive the situation, but ok.]

Freedom of Expression Scholars Conference at Yale: Search Engines and Free Speech

Heather M. Whitney & Robert Mark Simpson: Search Engines and Free Speech Coverage
Discussant: Heidi Kitrosser: Are search engine results covered by the 1A? Larger question of how we decide what’s salient is part of the paper.  Survey relevant 1A case law about algorithms & results.  Of the handful of cases to be decided, courts basically have accepted a rather simple analogy between the algorithms that pop out results and the type of editorial judgments at issue in cases like Tornillo and Hurley.  Issue has mainly come up in unevenly matched cases—pro se or poorly resourced litigants against tech giants.
There’s a long temporal and intellectual chain between the initial creation of an algorithm and the spitting out of results—a disconnect in a way that makes it not at all clear that the programmers are the “authors” of the output in the way one puts together a parade/editorial page. Some algorithmically mediated content might be analogous—for example, Stuart Benjamin says, a giant digital billboard calculating the national debt; the calculation is algorithmic but the message overall is expression.  It’s just not always the case that algorithmic results are the product of editorial judgment. Demonstrates weakness of analogical reasoning generally in determining 1A coverage. Point is to get at the core Q: what are the values, reasons, normative concerns that lead us to accord special protection to speech (or other things).
Speech/conduct distinction doesn’t resolve the problem; go back to free speech theory for coverage of new tech outputs.  Pluralistic/democratic participation values: Consumer protection laws and antitrust laws might appropriately cover algorithms; algorithms themselves may repress speech if they submerge certain perspectives.
Reflections: push them to consider more of a defense of democratic participation as a focus, and/or run through other theories and explain how those would work.  Are you applying theory to determine protection, or to determine coverage?  If you use your theory to determine protection, then aren’t you collapsing coverage and protection?
Simpson: More difficult to make decisions here than the courts/some of the scholarship would have you believe. There should be no ready conclusions w/r/t coverage.  Algorithms are neither inherently dissimilar or inherently similar to editorial judgments.
Whitney: Analogies by themselves aren’t doing the work because you need to figure out what makes the analogy relevant.  Theory can help figure out if we’re ever going to have limits on the deregulatory turn.  That is a view that one can take of the 1A, but then you have given everything 1A protection (or coverage).
Jim Weinstein: Courts have intuitive, unarticulated theories they use when they analogize; good to bring them to the surface.  You suggest possible fairness doctrine, but even if something isn’t covered, the justifications themselves can trigger 1A concerns: chocolate isn’t speech, but if the gov’t wanted to regulate chocolate because consuming it made people more likely to oppose the gov’t, that would be a problem. Gov’t intent to avoid an echo chamber online: same Q.   [Note that this position may imply that federal mortgage insurance is a violation of the First Amendment; the justifications at least included that being a homeowner increases people’s involvement in the community, self-regard, and motivation to work—cf. the more recent discussions of the “ownership society.”]
Deven Desai: if the NYT started to use algorithms to take on Google News—would it lose protection?  Facebook, Yelp—is there a search engine difference or not?  TripAdvisor and Yelp v. Google—you can’t get around Red Lion that easily. If there’s not a scarcity, then people can choose something else.
Simpson: Algorithms on their own don’t determine anything about coverage.  Making a claim about how courts shouldn’t be thinking about algorithms, not about how they should be.
Enrique Armijo: When you accuse Google of inconsistency on net neutrality. The ISP argument is that they want to reserve the right to edit; Google’s position is that they edit all the time, so he thinks there’s a fair difference.  Regulating GM more easily than Google: but what about Target?  When I go to Google, I’m looking for speech, but when I go to Target I’m looking for avocados.  (Hmm. Many times when I go to Google I’m looking for, well, avocado-colored suits at least.)
Jim Tsetsis: What about the Press Clause?  If we treated it as having a separate meaning, as the SCt has not, then we wouldn’t have to sweat so hard about the difference b/t GM and the NYT, and could think better about Google. 
Whitney: Hurley line is an issue; not traditional Press. Would require quite an intervention from the SCt; would Hurley come out differently even if we separated out the press?  And the search engines would be fine saying that they were like the press, and only use editorial judgment argument as a backup. The issue is still analogical: what makes something a “press.”
Robert Corn-Revere: it’s the organization of information, so what about that isn’t protected by the First Amendment?
Whitney: The outcome might be coverage/protection; there are coherent accounts that would include search engines, but also coherent accounts that wouldn’t in certain circumstances.  We need a course correction or everything becomes speech and there’s nothing special about a bookstore v. Target.  Result of very expansive theory: The things that people sell, like search results, are the result of expressive decisions; if those choices are expressive/organizing information, then that product is speech—which goes off the rails.
Q: Millian harm principle: w/o the 1A, the constraint is rational basis, which doesn’t require the harm principle. One way of understanding the 1A is as demanding something more than the harm principle (a certain kind of harm), or given the baseline of rational basis you could just demand the harm principle be satisfied.  Even if credit ratings are speech, you might have a harm-based justification to override it, in which case the Q about what justifies regulation of search engines would be based on protection, not just on coverage.  Compare the 4th Amendment context: analogies the SCt used fairly easily to justify things—video surveillance is like looking at people—are now at risk of abandonment (cellphone isn’t like other stuff in your pocket).  Disanalogies can also be recognized—leap in scope.
Whitney: The 4th Amendment comparison is a good one—resort to principles rather than analogies.
Simpson: true, might be covered but not protected.  For our purposes here, want to remain agnostic on the result of a protection decision within the scope of covered speech, because coverage decisions also have important implications for litigation.
Balkin: what search engines do more than anything else is serve democratic competence (Meiklejohn)—Meiklejohnian version of 1A would clearly lead to coverage for Google, leaving only protection remaining as the decision.  Many other algorithms would also pass Meikeljohn’s test for coverage.  Only an autonomy theory would say that only humans are bearers of speech, and distinguish between humans and their tools.
Simpson: we don’t think it’s as clear as that.  When I go to a search engine, what I think I’m seeing is a purely mechanically generated result.  In cases against search engines, the claim is a consciously gerrymandered result that is not that.  If Meikeljohn’s theory is about members of the demos having access to information they’d need in order to be participators, then the claim is that search engines, at least some of the time, distort exactly that information.
Balkin: Meiklejohn would never have said that b/c info you get is distorted, info is not protected. You need access so as to make your own judgments. Lots of information cooks the books. You’d have to argue that search engines have a different relationship to the public different to everyone else’s: information fiduciaries, with special duties to the public.  Grimmelmann, search engines as advisors.  Special duty by nature of service = ability to regulate in public interest; otherwise they’re in the same boat as any other info providers who cook the books (to mix a metaphor).  If a newspaper gives you a bunch of biased headlines, Meiklejohn has no problem with that. Only if an entity had a special duty to the public could it be regulated.
Corn-Revere: You’d have to reverse Tornillo for that.
Whitney: another possible move is new conceptions of autonomy/libertarian paternalism. Things that distort autonomy should not be unproblematically approved.
Balkin: they don’t try to apply nudges to First Amendment values.  Imagine a nudge to register all 18 year olds as Democrats.
Whitney: Democratic competence can have multiple meanings: people cannot always detect falsity/misleadingness. 
Balkin: but then you’re taking out a huge swatch of 1A doctrine.
Whitney: Accept that, though we are not arguing for that here.
Simpson: info fiduciary argument is worth pursuing: we’re trying to do more to theorize the special role that search engines have.
Sandy Baron: Q of responsibility for output in tort law.  Google doesn’t want to be responsible in that sense; can  you distinguish them in 1A protection/responsibility?
Whitney: It does seem there’s a tension for 1A protection for antitrust plus §230 protection because it’s not their speech. They’re neutral intermediary!  100% agree there’s an issue here. Identifying as a speaker is useful in some cases, harmful in others.
Q: Facebook isn’t the same as a search engine: trying to be objective/universal, presenting information as relevant. FB is more of a community; very different waters for the tech community.
Andrea Matwyshyn: Not everyone would agree w/that. 
Q: but FB will remove hate speech/terrorist content.

Friday, April 29, 2016

FTC rules don't explain excessive redactions in FTC v. Amazon

F.T.C. v., Inc., NO. C14-1038-JCC (W.D. Wash. Apr. 26, 2016)


Amazon made it really easy for kids to make in-app purchases in “free” apps; the court agreed with the FTC that this was bad, denying the FTC’s request for an injunction and holding the question of damages for further briefing.


In some ways the biggest story here is how Amazon convinced a judge to redact embarrassing, but highly relevant and non-trade-secret, information about Amazon’s business practices here, despite the grant of summary judgment on liability for §5 violations.  The willingness to let parties choose what the court makes public is even more disturbing than the willingness to seal documents apparently willy-nilly.  Here’s a story focusing on that.


15 U.S.C. § 57b–2 covers “any document, tangible thing, or transcript of oral testimony received by the Commission pursuant to compulsory process in an investigation” and requires confidentiality of documents produced pursuant to a civil investigative demand.  However, this provision doesn’t prevent disclosure of relevant information in judicial proceedings to which the Commission is a party.  16 C.F.R. § 4.10(g), et seq., provides FTC Rules of Practice for Adjudicative Proceedings.  This regulation allows disclosure of information obtained from a CID, subject to the submitter’s ability to seek a protective or in camera order.  Nothing in the (accidentally unredacted) opinion of the court discloses a trade secret, as far as I can tell, and at least some of what was redacted—specifically, the FTC’s request for a 20-year monitoring requirement as part of its request for injunctive relief—didn’t come from Amazon in the first place, so the statute can’t really explain what happened here.  What did?

Empirical analysis of chilling effects

Wednesday, April 27, 2016

Website can use DMCA safe harbor for acts of its independent contractors

BWP Media USA, Inc v. Clarity Digital Group, LLC, No. 15-1154 (10th Cir. Apr. 25, 2016)  
BWP owns the copyrights to various celebrity photos, and its business model appears to be lawsuit-based, at least in part.  It sued defendant (AXS) for infringing 75 photos on the website.  BWP’s July 2013 letter notifying AXS of the alleged infringements (note: not a DMCA notice) prompted AXS to remove the photos, as it told BWP, but BWP sued anyway. The district court granted summary judgment based on AXS’s DMCA safe harbor defense, and BWP appealed. characterizes itself as a “dynamic entertainment, news and  lifestyle network that serves more than 20 million monthly readers across the U.S.  and around the world.” Independent  contractors, called “Examiners,” create its content. Prospective examiners must fill out an application including a proposed topic and a short writing  sample. evaluates the writing sample and conducts a background  check.  The contract between AXS and its Examiners provides that they’re independent contractors and that copyright infringement is prohibited.
BWP argued that, because of the contractual relationship between AXS and the Examiners who posted the infringing photos, the photos didn’t qualify as having been stored “at the direction of a user.”  BWP argued that Examiners weren’t users, and that, even if they were, AXS directed them to post the infringing content.  The court of appeals concluded instead that the DMCA provision should be construed as a whole, rather than by isolating particular words.  “User” was straightforward and unambiguous: for DMCA purposes, a “‘user’ describes a person  or entity who avails itself of the service provider’s system or network to store  material.”  
BWP, without legal authority, argued that “user” should exclude an ISP’s owners, employees, and  agents, or that it should exclude anyone who entered  into a contract and received compensation from an ISP.  BWP contended that, otherwise, every ISP would be protected from liability. The court of appeals disagreed.  Safe harbor protection was conditioned on various factors, including user-directed storage, lack of actual or red flag knowledge, and expeditiou action to remove or disable access to the  infringing material.
BWP further argued that Examiners were agents of AXS, not “users.” There was no evidence supporting the agency argument, which was “contrary to the language of the contract, our interpretation of the  term ‘user,’ and agency principles generally.”  A “user “is  anyone who uses a website — no class of individuals is inherently excluded.”  The contract made Examiners independent contractors, and nothing in CCNV v. Reid counseled to the contrary; even if, against the evidence, Examiners had apparent authority to act for AXS, that didn’t make them employees—even if employees couldn’t also be “users” under §512.
Nor was the infringing material stored at the direction of AXS.  Key to the question of who directed the storage of the material was control.  “[I]f the infringing content has merely gone through a screening or automated process, the ISP will generally benefit from the safe  harbor’s protection.”  BWP argued that AXS directed Examiners to post the infringing content by instructing them on the general topics to cover and suggesting that Examiners include slide shows or pictures to accompany articles. 
BWP, however, fails to explain how this evidence crosses the chasm between  encouraging the Examiners to post pictures with articles and encouraging  Examiners to post infringing content. Not only did AXS make clear copyright  infringement was prohibited, it also provided Examiners with licensed  photographs to accompany their articles. No reasonable trier of fact could find  that the infringement was at the direction of AXS.
Finally,  AXS did not have actual or circumstantial knowledge of the  copyright infringement.  Mere knowledge that celebrity photos are typically protected by copyright was insufficient. AXS encouraged the use of photos, but also provided Examiners access to a photo bank of licensed images.  “Prior  cases also clearly establish that ‘merely hosting a category of copyrightable  content, such as music videos, with the general knowledge that one’s services could be used to share infringing material, is insufficient to meet the actual  knowledge requirement under § 512(c)(1)(A)(i).’”
Agency principles couldn’t be used to impute Examiners’ knowledge to AXS; BWP didn’t raise this argument until the appeal.