UK anti-SLAPP bill takes fire

The United Kingdom has an anti-SLAPP bill on the table, and lawyer Gideon Benaim has cataloged objections.

In broad strokes, the bill follows the usual pattern of anti-SLAPP, looking for free speech and public interests on the part of the defendant, which then burdens the plaintiff with proving probable success on the merits out of the gate.

Benaim published his objections on the INFORRM blog, part 1 and part 2. Some of his objections track those that I articulated in 2021 as to American anti-SLAPP statutes. I lamented the unfairness of expecting a plaintiff to meet an extraordinary proof standard such as actual malice as to falsity without the benefit of discovery. The equivalent UK approach expects a plaintiff to overcome a bare public interest defense without the opportunity to probe the publisher's process or motives.

Benaim also points out, as I have, that anti-SLAPP is as likely to be invoked by the powerful against the weak as vice versa; Goliath media giant against aggrieved individual; or, as happened, President Trump against sexual assault complainant Stormy Daniels.

Benaim is a rarity, a plaintiff's lawyer in media torts. Not that everyday aggrieved individuals will be able to score a place on his client list, which includes JK Rowling, Naomi Campbell, Roman Polanski, and Gordon Ramsay.

At least in the United States, at least, the already daunting odds of prevailing in a media tort case against a publisher with expert defense counsel on retainer causes most would-be plaintiffs not to sue at all, no matter how just their causes. They can't find counsel and certainly can't navigate complex media torts pro se. And that's before anti-SLAPP comes into play, threatening a losing plaintiff with having to pay the attorney fees of the media giant's high-dollar representation.

As I've written before, anti-SLAPP works well when it works well. Statutes just aren't drafted to ensure that that's always the case. It looks like the UK is struggling with the same problem.

Student media combat criminalization of speech

The criminalization of journalism is the worry at the heart of the Julian Assange case, as a UK court mulls the possibility of his extradition to the United States to face Espionage Act charges, essentially for publishing truthful information that he lawfully obtained (more).

Today is Student Press Freedom Day, a day to recognize the important First Amendment rights and vital Fourth Estate function of journalists in schools, colleges, and universities. 

Speech on college campuses, if more in a protest vein than a journalistic vein, has seen lately a wave of efforts at criminalization. Charges might not be on the scale of the federal Espionage Act. But the deployment of criminal law in the suppression of speech is bad news at any level.

Student journalism came face to face with the criminalization of protest speech recently at Northwestern University.

The Intercept reported on February 5 that students at Northwestern University had embodied their pro-Palestinian protest in a parody of The Daily Northwestern newspaper. The parody was regarded by other students and members of the community as offensive and antisemitic.

The newspaper publisher—a nonprofit comprising alumni, faculty, staff, and students, and distinct by design from the student editorial board—complained to police. And when the perpetrators were identified, prosecutors charged them with "theft of advertising."

"The little-known statute appears to only exist in Illinois and California, where it was originally passed to prevent the Ku Klux Klan from distributing recruitment materials in newspapers, The Intercept reported. "The statute makes it illegal to insert an 'unauthorized advertisement in a newspaper or periodical.' The students, both of whom are Black, now face up to a year in jail and a $2,500 fine."

The Daily Northwestern published an editorial demanding that charges be dropped. The publishing entity and prosecutors capitulated, Seth Stern recounted for the Freedom of the Press Foundation.

Stern lauded the student editors, and I agree. They didn't like their nameplate being appropriated by an offensive partisan protest. But that wasn't the point. Stern explained:

After all, newspapers are often the victims of the same kind of overreach the students are facing. Police in Marion, Kansas, raided the Marion County Record last August, purportedly to investigate whether reporters somehow committed identity theft by confirming a news tip on a government website. In October, authorities charged a reporter and publisher in Alabama with violating a grand jury secrecy law—plainly inapplicable to journalists—by reporting on a criminal investigation of a local school board. Six months before that, an Arizona state senator got a restraining order against a reporter for knocking on her door.

There’s more. A citizen journalist in Texas is hoping to go to the Supreme Court with her lawsuit over an arrest for violating an archaic law against soliciting “nonpublic information.” The City of Los Angeles last week sued a journalist for publishing information that the city itself gave him. And the mayor of Calumet City, Illinois, had citations issued to a journalist in October for asking public employees too many questions. The list, unfortunately, goes on and on.

There are cases in which I will go to bat for criminal law enforcement against protest activity. Protestors don't have a right to trespass on private property after being asked to leave peaceably, which seems to have happened at Brown University. And they don't have a right to cause damage or to put other people in harm's way.

First Amendment doctrine is not perfect, but it has plenty of experience drawing this line. What's worrisome about the latest incidents of speech criminalization is that we seem to have to be re-litigating some easy questions.

When I was an intern at the Student Press Law Center many moons ago, there were five statutes in the United States protecting student media freedom. Today there are 17. Read more about the steady but sure advance of student media freedom at the SPLC and how you can recognize student media freedom at Student Press Freedom Day.

Indian court refuses injunction of fantasy cricket league in unlicensed use of player names, likenesses

Free SVG

In case about fantasy sports, the Delhi High Court in India ruled in late April that satire, news, and art must enjoy protection from right-of-publicity liability.

The case involves athlete likenesses in fantasy sport leagues. Plaintiffs are a Singapore-incorporated fantasy sport provider that invested big money to develop non-fungible token and other electronic products making licensed use of the names and likenesses of co-plaintiff cricket athletes. The defendant business operated a less fancy but "explosive[ly]" popular online fantasy league service using the players' name and likenesses without licenses.

The court determined that Indian law does recognize right of publicity, inspired in part by the example of statutory tort actions in the United States. Accordingly, "passing off" is essential to infringement, the court held, meaning that customers must reasonably understand the defendant's proffered product as bearing the subject's endorsement. 

The court denied preliminary injunction. In the instant case, evidence was lacking that the defendant made such a representation or that reasonable users made such a mistake. To the contrary, the defendant online disclaimed any affiliation with or license from the depicted players.

The court also recognized a constitutional dimension to the position of the defense in the case, opining that "use of celebrity names, images for the purposes of lampooning, satire, parodies, art, scholarship, music, academics, news and other similar uses would be permissible as facets of the right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India and would not fall foul to the tort of infringement of the right of publicity."

The case is Digital Collectibles Pte. v. Galactus Funware Technology Pte., 2023:DHC:2796, CS(COMM) 108/2023, 2023 LiveLaw (Del) 345 (Delhi High Ct. Apr. 26, 2023) (India), decided by Judge Amit Bansal, who holds an LL.M. from Northwestern University.

HT @ Lakshmikumaran & Sridharan.

German court protects political satire in 'fake interview'

Katrin Göring-Eckardt
Heinrich-Böll-Stiftung CC BY-SA 2.0

In August 2022, a German court rejected a politician's claim that a satiric "fake interview" violated her rights.

Attorney Roman Brtka reported on the case for Bird & Bird Munich, and I rely on his report at Media Writes. The case is compelling because the fact scenario, and usually the same outcome, arises periodically in American law from the likes of an Onion "exclusive interview."

The plaintiff in the German case was Katrin Göring-Eckardt of the German Green Party. The defendant was Tichys Einblick (TE), a wide-ranging opinion magazine sometimes identified with right-wing populism. The content at issue was a wholly fictitious interview that mocked Göring-Eckardt's liberal position on pronouns. TE flagged the piece expressly headlined, "Achtung Satire" ("Attention Satire").

Brtka provided a helpful explanation of pronouns in the German language and how they play out in hot-button gender identity politics. The interview employed "extremely exaggerated ... gender-neutral language" to mock Göring-Eckardt.

The plaintiff invoked the German constitutional "right of personality," an outgrowth of broad European privacy law and close cousin of data protection. In this context, the right comes perhaps closest in American tort law to false light invasion of privacy. A better analogy would be a marriage of the right of personal autonomy, as known to medical decision-making in American constitutional law, to the interest of anti-disparagement, as known to trademark law.

The Hamburg regional court concluded, according to Brtka, "that the unbiased and reasonable audience could ... recognise, from the hyperbolic use of gender forms and the exaggerated demands mentioned in the article, that these were not actual statements made by the plaintiff. The mere fact that individual readers might come to a different understanding did not change this." Without any asserted truth, there could be no misrepresentation of the plaintiff's person, so no infringement of the plaintiff's personality right.

Brtka commented that "[i]t remains to be seen" whether the courts would protect satire that is not so plainly labeled, such that the satiric nature must be inferred from the content itself.

TE also reported the outcome of the case.

Unlike TE, The Onion, "America's Finest News Source," is satire through and through, even as it has been sold between media companies with other properties. The Onion's non-satirical supplement The AV Club was always branded distinctively and spun off in 2012. Taken in context, it's very difficult to mistake Onion content as true, though people sometimes infamously do. 

Like the German regional court, American courts, heeding the First Amendment, cut a wide berth for satire, likewise employing objective reasonableness to examine both content and context. Without an assertion susceptible of being proved true or false, there can be no winning claim of false light or defamation.

For satirists, closely related legal problems can arise from real interviews under pretenses the interviewee alleges were false: think Rudy Giuliani in Borat Subsequent Moviefilm. The Borat films and media enterprises such as The Daily Show use releases to help protect themselves. Even a well worded release is not ironclad against a claim that acquiescence was procured through fraud. But whether upon the release or lack of falsity, claims are almost invariably dismissed. The practical problem for plaintiffs is that what the camera captures is true, and the judgment that frames it is merely opinion.

Evidencing American courts' deference to hyperbole, Fox News prevailed in a 2020 lawsuit in part upon the theory that reasonable viewers did not regard the recently newsworthy Tucker Carlson as a source of facts. In 2022, the Sixth Circuit denied recovery to a man who satirized the Facebook page of his local police, and then was charged with and acquitted of a crime. Police were entitled to qualified immunity from the man's civil rights claim, the court concluded. The U.S. Supreme Court denied review amid a set of engaging amicus briefs, including one from The Onion.

Since the E. Jean Carroll verdict against former President Donald Trump, there has been a flurry of commentary suggesting that defamation law is the way out of the misinformation quagmire. It's really not, for a bunch of reasons that are beyond the scope of this post. Relevant here, the understandable thirst for accountability in the misinformation age might push against the traditionally wide berth of protection for satire. Let's hope the courts resist that push, because satire itself is a vital accountability mechanism.

In wake of Stanford free speech fiasco, Duncan models civility, and dean surprises with powerful letter

Abortion rights rally at Stanford Law in 2022.
(Suiren2022 via Wikimedia Commons CC BY-SA 4.0)

After the brouhaha at Stanford Law School in which protestors disrupted a lecture by Trump-appointed U.S. Circuit Judge Kyle Duncan, Stanford Dean Jenny S. Martinez this week stood up for free speech on campus.

There are video and audio recordings aplenty on the internet if you want to learn more about what happened March 9. Here's David Lat with the play by play. For my money, the take-away is that a guest federal judge was treated disrespectfully—dare I say uncvilly?—in an effort to silence him, and even a school administrator joined in the effort. That must have been the dean's take, too, when she issued an apology to Duncan, which drew a disruptive protest of her office in turn.

Martinez's letter is masterful and worth a read for the First Amendment refresher and expression of commitment to academic freedom at even a private school. She put the protesting administrator on leave and pledged mandatory educational programming for the student body on free speech and legal professionalism. 

Frankly, I was shocked. I do not expect deans in today's legal academy to stake out clear and strong positions on, well, anything other than which way the wind is blowing.

Today Duncan appeared at Notre Dame Law School and talked about the incident. His remarks and the Q&A livestreamed and are available on YouTube. To be fair, many renditions of what went down at Stanford report rudeness from both sides, whoever struck the first blow. However so, there was none of that at Notre Dame. Duncan's remarks were unremarkable, but that struck the right tone. The thrust of his assessment was that zealous disagreement is laudable, but shouting down one's opponent or merely vituperating one's ideological adversary does nothing to enrich the marketplace of ideas. Like me here, he lauded Martinez's letter.

In a curious coincidence, and really the only reason I throw my two-cent hat into this ring, I today (at last) finished legendary lawyer Robert Corn-Revere's superb 2021 book, Mind of the Censor and Eye of the Beholder: The First Amendment and the Censor's Dilemma.  The book could not be more on point in the Duncan matter.

Mind of the Censor is chock full of engaging prose and a paean to the freedom of expression in our troubled times. But it's the final chapter that delivers the biggest bang for the buck with a delightful Jeff Foxworthy-esque list of 10 reasons to suspect "you might be a censor."  And apropos of Duncan's comments today, Corn-Revere's number 8 reads, "You Might Be a Censor if You Believe that Silencing Speech You Dislike Is the Exercise of Your Rights."

I wrote just this week about "civility" being deployed as a new, conveniently vague code word to suppress academic freedom. To be clear, I wasn't speaking against civility. The problem arises in the misuse of the word to differentiate speech one wants to hear from speech one does not want to hear.

It's OK to disagree with Duncan, indeed, to disagree vehemently. He spoke today of the challenge all judges face in remaining open to the possibility that they are wrong in their preconceptions. Civility is about respecting other people regardless of agreement or disagreement, and acting ethically, accordingly. Thus, willingness to hear challenges to our thinking is part and parcel of civility and goes hand in hand with an expectation that others will hear our challenges, too.

I'm really not wrong about this.

'Civility' is code for conformity

The Massachusetts Supreme Judicial Court two weeks ago struck down a town policy purporting to require civility in public meetings. The town policy resembles attempts to restrict academic freedom.

Board meeting, via Southborough Access Media video
(Kolenda at center).

'Civility' in Politics

In December 2018, Southborough, Massachusetts, resident Louise Barron took advantage of a public comment period at a town board meeting to call out board members on fiscal policy and, ironically, compliance with state open meetings law. Though not obliged to, board members responded. The discussion became heated, resulting in Barron calling one selectman, Daniel Kolenda, "a Hitler," and Kolenda abruptly ending the comment period and expelling Barron. (The meeting is on YouTube (cued). Read more at Wicked Local.)

Board policy provides for an open public comment period for extra-agenda items with this admonition:

All remarks and dialogue in public meetings must be respectful and courteous, free of rude, personal or slanderous remarks. Inappropriate language and/or shouting will not be tolerated. Furthermore, no person may offer comment without permission of the [c]hair, and all persons shall, at the request of the [c]hair, be silent. No person shall disrupt the proceedings of a meeting.

Barron challenged the policy and her expulsion under the freedom of assembly and freedom of speech provisions of the 1780 Massachusetts Declaration of Rights, articles 19 and 16, respectively. Barron forewent challenge under the younger (1791) First Amendment to the U.S. Constitution to keep the case in state court. 

And just as well. The Massachusetts Declaration is a revered document in its own right in American history and global human rights, and the Massachusetts Supreme Judicial Court has not hesitated to construe its provisions as more protective of civil rights than the federal standard. Indeed, for many years, well before I came to work in Massachusetts, I taught a public seminar on the First Amendment for the Freedom of Information Foundation of Texas and used the Massachusetts Declaration to demonstrate the close connection of FOI and assembly.

Article 19 provides, "The people have a right, in an orderly and peaceable manner, to assemble to consult upon the common good; give instructions to their representatives, and to request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer."

In teaching freedom of information law, I often shorthand the constitutional context of access law as the "flip side of the coin" of the First Amendment. The idea is that the freedom of speech is meaningless, especially in the core protection of political expression, if one does not know the facts to speak about.

The coin characterization is useful, but it's not entirely accurate. The First Amendment recognition of assembly as ancillary to expression aptly indicates an interrelationship that is more an intertwining than a duality.

Board meeting, via Southborough Access Media video
(Barron at right).

In the opinion of the court, Justice Scott L. Kafker recounted Article 19's "illustrious" history.

The provision also has a distinct, identifiable history and a close connection to public participation in town government that is uniquely informative in this case. ... [Article] 19 reflects the lessons and the spirit of the American Revolution. The assembly provision arose out of fierce opposition to governmental authority, and it was designed to protect such opposition, even if it was rude, personal, and disrespectful to public figures, as the colonists eventually were to the king and his representatives in Massachusetts.

Our interpretation of the text, history, and purpose of art. 19 is further informed by the words and actions of Samuel and John Adams, who not only theorized and commented upon the right, but were historic actors well versed in its application during the revolutionary period, particularly in the towns. Both Adams cousins emphasized in their correspondence and their actions the importance of the right to assemble.... Samuel Adams wielded it to great effect in his attempt to "procure a Redress of Grievances" when the British governor of the colony attempted to exercise control over assemblies after the Boston Massacre.... 

More philosophically, John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed "[every] Man, high and low ... [to speak his senti]ments of public Affairs.".... Town inhabitants, he wrote, "are invested with ... the right to assemble, whenever they are summoned by their selectmen, in their town halls, there to deliberate upon the public affairs of the town." .... "The consequences" of the right of assembly, in Adams's words, were that "the inhabitants ... acquired ... the habit of discussing, of deliberating, and of judging of public affairs," and thus, "it was in these assemblies of towns ... that the sentiments of the people were formed ... and their resolutions were taken from the beginning to the end of the disputes ... with Great Britain." .... Alexis de Tocqueville made a similar point in Democracy in America: "Town-meetings are to liberty what primary schools are to science; they bring it within the people's reach, they teach men how to use and how to enjoy it." ....

Cousins Samuel Adams and John Adams
(via JohnAdamsInfo.com)

The court had little difficulty concluding that the town policy thus ran afoul of article 19. 

There was nothing respectful or courteous about the public assemblies of the revolutionary period. There was also much that was rude and personal, especially when it was directed at the representatives of the king and the king himself.

The court furthermore held the town policy overbroad and vague in violation of the article 16 freedom of speech. The case did not require the court to determine whether the First Amendment public forum doctrine applies to article 16 problems, the opinion explained. Massachusetts precedents already establish that content-based restrictions of political speech are subject to strict scrutiny. Worse, the court reasoned, the policy is viewpoint based, as it allows "polite[] praise[]" of public officials while condemning "rude[] or disrespectful[] critici[sm]."

Well reasoned as it is, the decision in Barron v. Kolenda, No. SJC-13284 (Mar. 7, 2023), does not break new ground in freedom of speech, even in Massachusetts law. And the case has been well reported with commentary, for example by J.D. Tuccille for Reason ("Let Massholes Be Massholes, Says Bay State's High Court"), and by Pioneer Legal, The New York Times, and the Brennan Center. What enticed me to write about the case is the likeness of the civility code to efforts to extinguish academic freedom.

'Civility' in the Workplace

The go-to code word on American college campuses to curb faculty freedom has been "collegiality." Introducing a 2016 report, the AAUP explained:

In recent years, Committee A has become aware of an increasing tendency on the part not only of administrations and governing boards but also of faculty members serving in such roles as department chairs or as members of promotion and tenure committees to add a fourth criterion in faculty evaluation: "collegiality." For the reasons set forth in this statement, we view this development as highly unfortunate, and we believe that it should be discouraged....

.... Historically, "collegiality" has not infrequently been associated with ensuring homogeneity and hence with practices that exclude persons on the basis of their difference from a perceived norm. The invocation of "collegiality" may also threaten academic freedom. In the heat of important decisions regarding promotion or tenure, as well as other matters involving such traditional areas of faculty responsibility as curriculum or academic hiring, collegiality may be confused with the expectation that a faculty member display "enthusiasm" or "dedication," evince "a constructive attitude" that will "foster harmony," or display an excessive deference to administrative or faculty decisions where these may require reasoned discussion. Such expectations are flatly contrary to elementary principles of academic freedom, which protect a faculty member’s right to dissent from the judgments of colleagues and administrators.

I witnessed this problem in action in those "recent years." "Collegiality" as an excuse to demand conformity was key in prompting me to write and speak in 2009 and 2010 about the importance of what I termed "penumbral academic freedom." 

Are you part of "the team" at work?
(Rawpixel Ltd via Flickr CC BY 2.0)

The problem has only worsened. In fact, I see the "collegiality" expectation as a piece of the broader problem of corporate ideology that insists on everyone being a "team player." That's the coded language designed to alienate workers who hesitate to take on extra duties or to give up personal time without fair compensation. Too long in coming, the "quiet quitting" movement is a direct response to this self-serving worldview.

Though "team speak" is not a specially academic problem, the ever more corporatized public university embraces the jargon. Routinely, I hear my work for a public entity described as "public service." The characterization is invariably paired with a demand that I take on some additional responsibility with no more, if not with less, compensation, and certainly with less compensation than a similarly skilled colleague at a private institution.

The rhetoric is exhausting. I'm not on your "team." The faculty is not my football side. The office is not my church. The institutional "mission" is not my creed. Rather, I do a job. I get paid for the job. Quid pro quo. Often, I enjoy my work, and sometimes, I'm good at it. But it's work. Then (even when the switch is merely virtual) I go home. Where I don't work for anyone else. Where I have a family and a life. Where I hope to win the lottery and quit my job.

That arrangement should be a source of pride, not shame. A public institution performing a public service is no less laudable because its staff is paid rather than volunteer. When administrators, especially handsomely compensated deans and chancellors, break out the "public service" rhetoric, hat in hand, I want to ask why they cash their paychecks, if they're so committed to "public service."

Just as I digested the court's Barron decision and commentary last week, Professor Robert Steinbuch, a (genuinely collegial) colleague at another public law school, told me about a proposed amendment to his school's selection criteria for distinguished professorships. 

Apparently, there was dissatisfaction by some faculty, I assume for the very reasons the AAUP warned, that "collegiality" was an express factor in the assessment. Thus, the law school faculty development committee proposed changes including the following (red-ink deletions and additions as in original).

In awarding named professorships, the Dean shall consider criteria in addition to a candidate's meritorious work in their particular field, including but not limited to donor specifications associated with the title, the overall mission of the law school, and continued excellence in scholarship, teaching, service, civility, and respect and collegiality as outlined in the Bowen Faculty Handbook, and established University policy, or the Association of American Law Schools Best Practices.

....

III. SERVICE & COLLEGIALITY

....

In the space provided below, please describe any additional information you wish to provide reflecting exemplary service rendered in the spirit of civility, respect collegiality and collaboration at the law school and the university level and wider recognition at the national or international level.

....

Self-Assessment: Using the categories of scholarship, teaching, service, civility, and respect and collegiality in this Application, in the space provided below, please provide a candid assessment of how you would represent this Named Professorship while you held the award.

I suppose that any candidate selected for a distinguished professorship at this public law school, like anyone commenting on the performance of public officials in Southborough, Massachusetts, before Barron, "must be respectful and courteous" and refrain from the "rude" and "personal." Faculty governance is all well and good, as long as no one is offended.

Let the revolution be quelled.

Google censors opinion condemning private censors

On December 31, Google blocked access to a Savory Tort post from 2019 on free speech and censorship in New Zealand.

I received this message from Google on New Year's Eve:

As you may know, our Community Guidelines (https://blogger.com/go/contentpolicy) describe the boundaries for what we allow--and don't allow--on Blogger. Your post titled "NZ prosecutions for sharing Christchurch vid would suppress news, free speech, but worse is empowerment of private censors" [my boldface] was flagged to us for review. This post was put behind a warning for readers because it contains sensitive content; the post is visible at http://www.thesavorytort.com/2019/03/nz-prosecutions-for-vid-sharing-would.html. Your blog readers must acknowledge the warning before being able to read the post/blog.

Why was your blog post put behind a warning for readers?

Your content has been evaluated according to our Adult Content policy. Please visit our Community Guidelines page linked in this email to learn more [link below]. We apply warning messages to posts that contain sensitive content. If you are interested in having the status reviewed, please update the content to adhere to Blogger's Community Guidelines. Once the content is updated, you may republish it at [URL omitted]. This will trigger a review of the post.

For more information, please review the following resources:
Terms of Service: https://www.blogger.com/go/terms
Blogger Community Guidelines: https://blogger.com/go/contentpolicy 

Sincerely,
The Blogger Team

Setting aside for a moment the irony of private censorship of a post about private censorship,* I wanted to understand what triggered the block. As the headline indicates, I fretted in the post about New Zealand criminal law being turned against online re-publishers of the horrifying video of mass shooting at a Christchurch mosque in 2019. I wrote that the lack of newsworthiness exception in New Zealand law would be problematic in U.S. First Amendment law, and the prosecution could not withstand analysis under Brandenburg v. Ohio (1969). And I wrote some about how the modern internet has posed a challenge to the dated First Amendment doctrine.

Willow Brugh via Wikimedia Commons and Flickr CC BY-SA 2.0

At first, I thought maybe I linked to the objectionable video itself; I had not. I did mention by "dot com" name a problematic website from earlier internet days that was infamous in freedom-of-information circles for hosting gruesome content. But I didn't hyperlink it, and the site no longer exists at that address anyway.

The message from Google referred to the "Adult Content policy."  Here's what the policy disallows:

We do allow adult content on Blogger, including images or videos that contain nudity or sexual activity. If your blog contains adult content, please mark it as 'adult' in your Blogger settings. We may also mark blogs with adult content where the owners have not. All blogs marked as 'adult' will be placed behind an 'adult content' warning interstitial. If your blog has a warning interstitial, please do not attempt to circumvent or disable the interstitial - it is for everyone’s protection.

There are some exceptions to our adult content policy:

• Do not use Blogger as a way to make money on adult content. For example, don't create blogs that contain ads for or links to commercial porn sites.
• We do not allow illegal sexual content, including image, video or textual content that depicts or encourages rape, incest, bestiality, or necrophilia.
• Do not post or distribute private nude, sexually explicit, or non-explicit intimate and sexual images or videos without the subject’s consent. If someone has posted a private nude, sexually explicit, or non-explicit intimate and sexual image or video of you, please report it to us here [hyperlink omitted].

There's nothing remotely sexual about the 2019 post. Nor is there any depiction or description of violence, other than a reference to the mere occurrence of the tragedy, which was well reported in news media with plenty more detail.

Links to The Savory Tort were once banned from Facebook, too, for more than a year. When I inquired, Facebook sent me a form message saying that The Savory Tort violated Facebook terms of service for content. I sent further inquiries, made appeals, etc., but Facebook never clarified how the terms were violated. Indeed, Facebook never responded with other than form messages confirming the ban. For all the hoopla about a "Facebook supreme court" and thoughtful, human review of content, those avenues apparently are not open to the little people such as me.

Ultimately, a former student and labor attorney complained about the ban to Facebook, after he was denied permission to share a link to my blog. He kindly let me know. Subsequently, consequently?, and suddenly, links could be posted. The ban vanished as mysteriously as it had appeared. Not a word from Facebook, then or since.

The Facebook ban came about upon a complaint from someone who didn't like something I wrote, I suspected. That happens. For example, I wrote once about a family law case in the Massachusetts Supreme Judicial Court, and I was threatened with legal action by the disappointed party. 

It's easy for someone to complain to Facebook or Google Blogger about online content. The complaint is not necessarily reviewed by a real person, or it is and the person is incompetent or indifferent. It's easier to block or take down content than arbitrate a dispute. That's why trolls and publishers have been able to abuse the notice-and-takedown system that has debilitated fair use of intellectual property.

Here, Google said that the post "was flagged to us for review" (my italics) and "has been evaluated." The choice of words, muddling passive voice notwithstanding, suggests that a third party triggered the review. How anyone, even a bot, at Google then could have found adult content, or anything in violation of the content terms, is a mystery to me. I can conclude only that the block was imposed automatically upon the complaint, with no review at all.

I would seek further explanation or ask for a human review, but that, it seems, is not an option. Google offers me the opportunity to have the block reviewed only after I "update the content to adhere to Blogger's Community Guidelines." I see no violation of the guidelines now, so I don't know what to update.

Now let's come back around to that irony, which might not be coincidental.  (Irony and coincidence are not necessarily the same thing, whatever Alanis Morissette would have you believe.)  The dangers of private online censorship was the theme of my post in 2019. The block on my post occurred in December 2022 only weeks after Elon Musk began to censor his critics on Twitter. Musk is still at it, by the way, seemingly having acceded this week to Indian government demands that Twitter censor critics of Prime Minister Narendra Modi. 

At the same time in December that Musk was making headlines with Twitter censorship, the Supreme Court scheduled (for Feb. 21) the oral argument in Gonzalez v. Google LLC (track at SCOTUSblog). The case asks whether internet service providers such as Google enjoy section 230 immunity from liability in the provision of targeted content, such as search results, apart from the conduct of traditional editorial functions, akin to newspaper editors choosing letters to the editor. David McGarry explained for Reason two weeks ago, "The plaintiff is Reynaldo Gonzalez, whose daughter was murdered in a 2015 terrorist attack. [He] argues that YouTube, a Google subsidiary, should face liability because its algorithms recommended terrorist content posted on the platform that Gonzalez says aided the Islamic State."

That's a potential liability exposure that might incline Google to censor first and review later.

Perhaps someone triggered the automatic censorship of a great many online articles about private censorship, hoping to make the very point that private censorship is dangerous. If that's what happened here, I would offer a grudging salute. But I would like to see the point actually made, not just fruitlessly attempted.

At the end of the day, I'm not so broken up about the block, as opposed to a ban like Facebook's, which frustrated me no end, as I could not share content at all with family and friends. A reader who encounters a sensitive content warning wall might be only more interested to know what lies beyond. And my target audience isn't children anyway. 

I figure there's a reasonably good chance that this post will wind up behind a warning wall for having referred to a warning wall. So be it. Anyone interested enough to be investigating a four-year old story of censorship probably will get the ironist's point, and mine.

* My journalism ethics professor at Washington and Lee University in the early 1990s, the late great Lou Hodges, railed against the word "censorship" to describe private action, so would have regarded the term "private censorship" as outrageously oxymoronic. Professor Hodges was steeped in classical learning and recognized that the word "censor" comes from the Ancient Roman word referring to a public magistrate whose responsibilities, on behalf of the state, included counting people and property—thus, "census"—and the enforcement of public morals through what we now call "censorship." To honor Professor Hodges, I long insisted on the same distinction. But in recent years, I have given in to the modern trend to employ the term regardless of the private or public nature of the actor. Professor Hodges could not then have anticipated that we would soon have an "Internet" that looks very much like a public commons, thus reviving the seemingly antiquated First Amendment problem of the company town. The term "censorship" seems to me apt for a world in which transnational corporations such as Google and Meta might as well be governments from the perspective of ordinary people.

Police negligence suit against BLM organizer goes ahead after La. Supreme Court greenlights duty

BLM protest in Baton Rouge in 2015
(Alisdare Hickson CC BY-NC 2.0 via Flickr)

A lawsuit against Black Lives Matter organizer DeRay Mckesson lives on since the Louisiana Supreme Court opined in March that state law allows imposition of a duty in tort law and does not preclude liability to police under the firefighter rule.

I wrote about the Mckesson case in April and November 2020. In the case's winding appellate disposition, the U.S. Supreme Court faulted the Fifth Circuit for jumping the gun on Mckesson's First Amendment defense and entreated the court to certify questions of state tort law to Louisiana.

It is not alleged that Mckesson himself threw any projectile at police, so the defense asserted that the intentional criminal action of a third party supervened in the chain of causation between Mckesson's organizing and police officer injury. But the Louisiana Supreme Court was unsympathetic, characterizing the pleadings as alleging related criminal conduct by Mckesson. The court reasoned:

Under the allegations of fact set forth in the plaintiff’s federal district court petition, it could be found that Mr. Mckesson’s actions, in provoking a confrontation with Baton Rouge police officers through the commission of a crime (the blocking of a heavily traveled highway, thereby posing a hazard to public safety), directly in front of police headquarters, with full knowledge that the result of similar actions taken by BLM in other parts of the country resulted in violence and injury not only to citizens but to police, would render Mr. Mckesson liable for damages for injuries, resulting from these activities, to a police officer compelled to attempt to clear the highway of the obstruction.

The court also rejected Mckesson's the firefighter-rule defense. The common law rule (in Louisiana, "the professional rescuer's doctrine"), not universally recognized, ordinarily disallows recovery by emergency responders for injury incurred in the course of the job, upon the theory that the job is what the responder is compensated for, and responsible parties should not be deterred from summoning emergency response.

The court took the occasion of the Mckesson case to ponder whether the firefighter rule survived the statutory adoption of comparative fault in Louisiana. The rule embodies a form of implied assumption of risk, the court reasoned. Louisiana is not a pure civil law jurisdiction, but the courts rely heavily on statute in accordance with the civil law tradition. Though the legislature left the details of comparative-fault adoption to the courts to work out, the high court acknowledged, the lack of any explicit recognition of the firefighter rule left it displaced.

The case in Louisiana is Doe v. Mckesson, No. 2021-CQ-00929 (La. Mar. 25, 2022). The case in the Fifth Circuit is No. 17-30864.

Court denies Exxon anti-SLAPP relief in Mass. climate claims; European court bemoans Russian SLAPP

AG Maura Healey

The Massachusetts anti-SLAPP statute does not work in defense of Attorney General enforcement actions, the Supreme Judicial Court decided in May in climate change litigation against Exxon Mobil Corp. Europe and the UK, meanwhile, are working out their approaches to anti-SLAPP.

I am in general anti anti-SLAPP, because the statutes are drawn too broadly. I recited my lamentations in April 2021. I support anti-SLAPP in principle when it works the way it was intended, but broadly drawn anti-SLAPP statutes create innumerable headaches and are used to protect Goliath from David as often as the other way around. Exxon's attempted reliance on the law fits the mold.

With the usual American MO, anti-SLAPP statutes try to slap an ill-fitting patchwork fix on a systemic problem, which is transaction costs in civil litigation, declaring the problem solved while in fact it festers, rotting social and political institutions from the inside out. Only when a bridge collapses does everybody momentarily notice, and then we move on.

The Massachusetts Supreme Judicial Court narrowly saved the bridge from collapse this time by rejecting Exxon Mobil's invocation of the commonwealth's typically broad anti-SLAPP statute. Exxon is defending itself against Attorney General Maura Healey. The AG accuses Exxon of deceptive statements that concealed what Big Oil knew about the climate risk of fossil fuel extraction, thus, responsibility for climate change. 

State and locality climate change lawsuits against Big Oil are proliferating in the United States and the world right now, as governments try to figure out where they will get the money to bolster infrastructure against rising sea levels and tempestuous weather events. In the context of "super torts," I wrote in November 2020 about the lawsuit against Big Oil by my home state of Rhode Island. By focusing on claims in state law, public plaintiffs such as my childhood hometown of Baltimore have managed to steer their claims into state court, evading the impact of a U.S. Supreme Court inclination to see the claims in federal court, as Big Oil defendants would prefer.

Accordingly, AG Healey is pursuing the commonwealth claim under Massachusetts's expansive unfair and deceptive practices act, chapter 93A. The powerful law affords double and treble damages and attorney fees in cases of willful and knowing violations, and it can be used as a private or public enforcement mechanism.

Exxon attempted to use the commonwealth's anti-SLAPP statute in its defense. The essence of Exxon's public statements about the environmental safety fossil fuels constituted participation in the public marketplace of ideas, Exxon asserts, so the AG's persecution is just the sort of action that anti-SLAPP should head off.

One limitation, thankfully, in the Massachusetts anti-SLAPP law is that it hinges on petition activity, not merely free speech. There is some margin around the word "petition," as the statute draws in public statements "reasonably likely to encourage consideration or review of an issue" by government. But the anti-SLAPP statute cannot be triggered simply because whatever civil wrong the defendant is accused of was accomplished by way of communication.

The AG objected to Exxon's invocation of anti-SLAPP on this distinction, because Big Oil made plenty of problematic statements to the public. I think she's right. But the court did not get that far. Rather, the court held in favor of the AG on her alternative argument, that the anti-SLAPP statute simply does not apply to public enforcement actions by the AG.

There is a questionable logic to Exxon's theory that petitioning must be protected against attack when the attacker is the petition-ee, government. A petitioner might be expected instead to make a First Amendment retaliation claim, if the attack theory holds up. Also, the anti-SLAPP statute, in a second provision, authorizes intervention by the AG on behalf of anti-SLAPP movants. So the legislature knew how to say "attorney general" when it wanted to, and the AG isn't mentioned anywhere else.

More importantly, the Supreme Judicial Court held, defense against a public enforcement action is not consistent with the legislative purpose of the anti-SLAPP statute: "The legislative history makes clear that the motivation for the anti-SLAPP statute was vexatious, private lawsuits, especially ones filed by developers to prevent local opposition to zoning approval." That's the paradigmatic case that gave birth to anti-SLAPP in 1988.

The court observed that its holding accords with one other jurisdiction that has considered the same problem. The Supreme Judicial Court of Maine declined to apply its anti-SLAPP statute in a municipal enforcement action for a zoning violation, despite the would-be movant's assertion of victimization.

Curious, though, that mass-media-Goliath defense against defamation and privacy lawsuits didn't get a mention in the court's main text. In a telling footnote, the court opined:

Although originally drafted with a particular purpose in mind—that is, the prevention of lawsuits used by developers to punish and dissuade those objecting to their projects in the permitting process—the anti-SLAPP statute's broadly drafted provisions, particularly its wide-ranging definition of petitioning activity, have led to a significant expansion of its application.... The ever-increasing complexity of the anti-SLAPP case law has also made resolution of these cases difficult and time consuming.... We recognize that this case law may require further reconsideration and simplification to ensure that the statutory purposes of the anti-SLAPP statute are accomplished and the orderly resolution of these cases is not disrupted.... We also note that other States have defined petitioning activity more narrowly and that bills have been filed in our Legislature to do the same....

I don't want to be an I-told-you-so, but.... 

Europe and the UK might ought take heed.

The UK invited public comment in a consultation in the spring as it ponders anti-SLAPP, and the European Commission is working out legislation now for the European Union.

In a March judgment, the European Court of Human Rights (ECtHR) recognized SLAPPs as a human rights problem. The court held that a regional Russian government had violated free speech rights with a civil defamation action against an online media outlet critical of officials. 

Of course, the Massachusetts and Maine cases should only aggravate the European court's worry, because it was a public authority that was the complainant in Russia. What if AG Healey were on a crusade against news outlets, using the deceptive practices law to persecute newspapers critical of the commonwealth government? (Is that how Exxon sees itself, victimized?) Would anti-SLAPP not be an apt defense?

The problem did not wholly escape the court's notice. The court struggled to distinguish an earlier Massachusetts case, Hanover, in which the applicability of anti-SLAPP in public enforcement simply had not been challenged when a town sued a union in a row over procurement. In a final footnote, the court wrote: "We note that the union in Hanover was not seeking to employ the anti-SLAPP statute to prevent local government enforcement of laws. As the issue was not raised in that case, and is not raised here, we need not decide whether any or all local government enforcement actions are beyond the scope of the anti-SLAPP statute."

So while the court lamented the burgeoning complexity of anti-SLAPP with one breath, it opened the door to more confusion with the next.

Hanover was characterized as an abuse-of-process suit, and therein lies a suggestion, I believe and have written before, of a better way to manage SLAPPs.

The Massachusetts case is Commonwealth v. Exxon Mobil, No. SJC-13211 (Mass. May 24, 2022). Justice Scott Kafker wrote the unanimous opinion. Track the case at the Climate Change Litigation Database.

The ECtHR case is OOO Memo v. Russia, No. 2840/10 (Eur. Ct. Hum. Rts. Mar. 15, 2022).

UMass Law Federalist Society talks speech, SCOTUS

Regular blog readers will soon recognize that I am playing catch-up, sharing items that I stockpiled for the better part of the spring semester.

Indeed, I was overwhelmed this spring by a number of great opportunities to speak, teach, learn, and share, all unplanned when the calendar turned to 2022. The blog had to take a back seat.

This overdue thanks harkens back to winter, circa Valentine's Day.  A very fun thing I did was speak to my own law school's student chapter of the Federalist Society about cases with free speech implications—and some related stuff that interests me—in the 2021-2022 term of the U.S. Supreme Court. These are the cases I chose on which to focus our attention (with links here to SCOTUSblog).

• Access: Project Veritas Action Fund v. Rollins,  cert. denied. (U.S. Nov. 22, 2021) (1st Cir. having struck Mass. wiretap statute as applied).
  
• Voir dire: U.S. v. Tsarnaev (U.S. Mar. 4, 2022) (reversing vacatur of death sentence in re pretrial publicity).
• Speech/retaliation: Houston Cmty. Coll. Sys. v. Wilson (U.S. Mar. 24, 2022) (allowing First Amendment claim for verbal censure of public board member by board).
• Forum/gov't speech & establishment: Shurtleff v. City of Boston (U.S. May 2, 2022) (faulting city for refusal to fly ecumenical flag).
• Campaign finance: FEC v. Ted Cruz for Senate (U.S. May 16, 2022) (striking limit on candidate's ability to repay himself for loan to campaign).
• Bivens: Egbert v. Boule (U.S. June 8, 2022) (refusing to recognize implied constitutional causes of action for Fourth Amendment excessive force and First Amendment retaliation in context of immigration enforcement at border).
• Religious exercise and establishment: Kennedy v. Bremerton Sch. Dist. (U.S. June 27, 2022) (siding with high school football coach who prayed on field).

We furthermore talked and speculated about "the actual malice question" raised by Palin v. New York Times (e.g., NPR), a pet favorite topic of mine at the intersection of tort law and free speech.

The students offered insightful questions and commentary. I am grateful to them for lending me a soapbox.

Support journalism in Kyiv

Maidan Nezalezhnosti in 2013.  RJ Peltz-Steele CC BY-NC-SA 4.0.

Via Lonely Planet and The Points Guy, a way for the free expression-minded among us to support Ukraine:  The Kyiv Independent (Twitter) is doing English-language journalism from Kyiv, where it is a leading source of information for Europeans and Americans.  The paper was formed by The Kyiv Post editorial staff that covered the Maidan revolution in 2014.  Support can be offered through Patreon and GoFundMe.

Russia is attacking Ukraine. We are staying on the ground and bringing you the news you can trust.
Support us so that we can continue working for you
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— The Kyiv Independent (@KyivIndependent) February 25, 2022

SDNY rules against Locast, knifes beleaguered free TV

[UPDATE: At 9:47 a.m. today, Thursday, Sept. 2, I received word that Locast is suspending operations, effective immediately.]  

Locast, an online retransmitter of broadcast television, and the American public together suffered a major blow on August 31, as the federal district court in New York handed partial summary judgment to ABC, CBS, Fox, and NBC in the networks' copyright infringement lawsuit.

Locast has irritated me, but only for not expanding fast enough.  Where I live, near Providence, R.I., the service is not available.  It is available in New York to the south and Boston to the north, but access is strictly geo-fenced.  As a result, my family cannot see free broadcast TV without springing for an expensive subscription to a cable service or streaming-channel consolidator.

That's not really Locast's fault.  Broadcasters have reduced their power over the years, making free TV incrementally more difficult to access.  I live just nine miles from the broadcast towers that serve the Rhode Island state capital, but I cannot receive any signal with an interior or window-mounted antenna.

Indeed, the networks seem to want out of the broadcast game altogether.  Kickbacks from online consolidators such as Hulu Live and YouTube TV, and the networks' profits from their own services, such as Paramount+ (and Hulu Live, in part), are more lucrative than broadcasting and come with no FCC regulatory strings attached.  Local affiliates, including vital broadcast news outlets, fall through the cracks, wreaking further havoc in our information market, but that's no matter to the bottom line.  Locast threatened to breathe life back into the corpse of free TV, so the networks pursued the service with a vengeance. 

Locast is a non-profit, and its "business" model is simple.  It sets up a technology hub in a place such as Boston and converts local broadcast signals to online streams.  Home cord-cutters thus have their access to free TV restored through the internet service they already have, no antenna needed.

On the face of it, of course, this business model would constitute copyright infringement for copying and redistributing the broadcast signals.  But Congress, in a rare showing of commitment to the public interest rather than to the profit margins of our corporate overlords, built an exemption into the Copyright Act.  Governmental or nonprofit organizations are permitted to retransmit "without any purpose of direct or indirect commercial advantage, and without charge to the recipients of the secondary transmission other than assessments necessary to defray the actual and reasonable costs of maintaining and operating the secondary transmission service."

Locast is freely available and supported only by voluntary donations.  But streaming is interrupted at 15-minute intervals by 15-second pleas for donations.  Like the ad-free versions of pay-TV services, Locast offers absolution from these interruptions in exchange for a minimum "donation" of $5 per month.  The $5-donation model proved sufficiently successful that Locast was able to cover its operating costs and use the excess to expand to new markets.

And that, expansion, was Locast's sin, in the eyes of the district court.  Judge Louis L. Stanton opined that Congress could have written "maintaining and operating and expanding" into the statutory exemption, but did not.  So Locast's dedication of additional accounts received to expansion was fatal to its claim of copyright exemption.

I find the court's reading of the statute exceedingly cramped.  Locast plainly is spending money to do precisely what Congress intended: making free TV available to people who cannot receive it without hiring a contractor to install an antenna tower.  That the books must balance within each micro-market rather than across live markets, in the utter absence of evidence that a dime has been diverted to any other objective, absurdly splits hairs.

Locast lawyers, joined by the Electronic Frontier Foundation, say they are examining the ruling.  Locast announced yesterday that it is for now ceasing streaming interruptions requesting donations. 

There are ways that Locast can work around its current predicament, I reason. Locast has been supported by some major corporate donors who are not old-school TV insiders, such as AT&T, which contributed $500,000.  Internet service providers such as AT&T benefit from Locast, because retransmissions are streamed into homes, rather than broadcast.  With more careful balancing of the books, it should be possible, if cumbersome, to parse operations between discrete markets and to raise capital to support expansion directly.

It's a shame that such gamesmanship should be required for what is clearly a public service.  And a bigger problem might remain for American information and entertainment consumers in the ongoing, if prolonged, death throes of free TV.  We might hope that Congress would obviate the fray with bold measures that would reinvigorate the landscape of electronic expression by enhancing public-interest limitations on digital intellectual property and guaranteeing access to the internet for all Americans.

We also might hope to see pigs take flight.

The case is American Broadcasting Cos. v. Goodfriend, No. 1:19-cv-07136 (S.D.N.Y. Aug. 31, 2021). I bet Judge Stanton is one of those people who has both cable and Fubo and can't use either one unless someone helps him with the remote.

Chile reflexiona sobre los derechos digitales en desarrollo de nueva constitución

Foto por jpereira via The Loop (c. 2019; CC no especificada)

[English.] La creación de una nueva constitución está en marcha en Chile, y los derechos digitales podrían figurar de manera importante en un nuevo modelo de derechos civiles.

Los votantes chilenos pidieron una convención constitucional en una votación de 2020. La actual constitución de 1980 fue redactada bajo la dictadura de Pinochet. Entró en vigor con el fin del régimen de Pinochet en 1990 con la transición del país a la democracia, pero su texto original y sus muchas enmiendas nunca han sido verdaderamente un producto de la democracia. En contraste, la presente convención se desarrolla con una asombrosa representación de la diversidad chilena, incluidos los pueblos indígenas, casi sin precedentes en la historia de las democracias occidentales.

Chile tiene un historial de marcar el ritmo legal para América Latina. Chile y Costa Rica fueron inusuales en la experiencia latinoamericana por no haberse convertido en una guerra civil después de la independencia. Esa estabilidad suministró un terreno fértil para el desarrollo legal. Andrés Bello elaboró el código civil del país, siguiendo el modelo francés, en 1857. El código Bello fue muy influyente en el continente y anima el derecho civil latinoamericano todavía hoy en día. Costa Rica se convirtió en un innovador en derechos humanos en el sistema interamericano en el siglo XX.

Una propuesta de línea de base en el proceso chileno exige como mínimo el acceso a internet como un derecho humano. La realización del derecho requeriría el desarrollo de la infraestructura de internet en todo el vasto país, 2,653 millas de norte a sur, abarcando desiertos y montañas. La responsabilidad del gobierno sería sustancial. No se podía dejar que el sector privado desarrollara la infraestructura de internet con los márgenes de ganancia derivados de la densidad de población, una limitación que ha atrofiado la penetración de Internet de alta velocidad en los Estados Unidos.

Pero el acceso a internet es solo un mínimo, y hay muchas otras propuestas sobre la mesa que llevarían los derechos humanos convencionales, como la libertad de expresión y la privacidad, al mundo en línea. Muchos países han reconocido aspectos de los derechos humanos convencionales en el entorno en línea. Incluso en los Estados Unidos, los tribunales han reconocido que las órdenes judiciales civiles y penales que limitan el acceso de una persona a internet pueden contravenir los derechos civiles si no se adaptan estrictamente.

La idea que el acceso a Internet para recibir información, en lugar de hablar, ha sido una propuesta precaria en los derechos humanos, de la misma manera que los regímenes modernos de derechos humanos siempre han luchado con el acceso a la información (ATI). Hace diez años, un informe del Relator Especial de la ONU sobre la libertad de expresión describió acertadamente el acceso a internet como un derecho "habilitador" ("enabler" right). En los últimos años, expliqué esta caracterización del ATI en el marco moderno de los derechos humanos.

Participantes del proceso constitucional chileno, coordinado por Patricio Urriola Aballai, director ejecutivo de la Fundación Abriendo Datos, publicaron en mayo una "Carta Magna Digital" que explora el potencial de los derechos digitales para ser reconocidos como derechos humanos.  HT @ Observacom.

'What is truth?': 8th Circuit wrangles over ag gag

The Eighth Circuit reached mixed outcomes yesterday in First Amendment review of the Iowa "ag gag" law, upholding a criminal prohibition on entering agricultural production facilities under false pretenses.

Sausage packing in Chicago, 1893

"Ag gag" refers to laws designed to deter undercover investigative reporting on the agricultural industry, especially by criminalization. On the one side, journalists, public health advocates, and animal rights activists point to a tradition of undercover reporting dating to the Upton Sinclair muckraking classic The Jungle (1906), which exposed labor exploitation in the meat industry.

Journalist and professor Brooke Kroeger—who filed an amicus with the Eighth Circuit in the instant case—in her book Undercover Reporting: The Truth About Deception (2012), actually traces the tradition farther back, to reporting on slavery and human trafficking in the 19th century.  For a more recent entry in the genre, check out Michael Holtz's fascinating pandemic-era report, in last month's Atlantic, from inside a Kansas slaughterhouse.

On the other side, private business and advocates for private property rights point to the simple proposition that falsehood is impermissible in commerce and should not be permitted to facilitate trespass and undermine (markedly unidirectional) employee loyalty.

Insofar as the problem boils down to the criminalization of falsity, a fuzziness surfaces in First Amendment fundamentals.  The U.S. Supreme Court has long recited competing mantras on the permissibility of state regulation of falsity.  For example, commercial speech doctrine cuts a wide berth for the regulation of false and misleading expression, allowing free speech and consumer protection law to coexist upon the premise that falsity has no social value.  At the same time, First Amendment doctrine in areas such as defamation law, animated by the Miltonian-Millian philosophy of liberty, tells us that a free marketplace of ideas must allow for the expression of falsity so that truth can be tested and revealed.

The Court tackled this dichotomy in United States v. Alvarez in 2012, striking down part of the Stolen Valor Act of 2005, which criminalized misrepresentation of military honors.  But the Court fractured on rationale.  The plurality applied First Amendment strict scrutiny, and a concurrence would have applied intermediate scrutiny.  No one challenged the negligible scrutiny that abides criminalization of falsity in perjury, for example.  The distinction that upped the ante in Alvarez was the statute's "sweeping, quite unprecedented reach," regardless of context, regardless of motive.  Whereas a perjury prohibition plainly protects the integrity of the judicial process, the Stolen Valor Act pertained "to a false statement made at any time, in any place, to any person," for any reason.

And it was on that distinction that the Eighth Circuit perceived a difference in two provisions of the Iowa ag gag law.  One provision the court, affirming the district court, struck down, concerning the criminalization of false statements on an employment application.  The Iowa legislature, like Congress in Alvarez, overreached.

The proscription of the Employment Provision does not require that false statements made as part of an employment application be material to the employment decision.... [The statute] allows for prosecution of those who make false statements that are not capable of influencing an offer of employment. Plausible scenarios abound: the applicant falsely professes to maintain a wardrobe like the interviewer’s, exaggerates her exercise routine, or inflates his past attendance at the hometown football stadium.

The court reached a different conclusion on the provision prohibiting access to agricultural production facilities upon false pretenses.  That implication of falsity was sufficiently linked to "a legally cognizable harm—namely, trespass to private property"—that the court placed the provision beyond First Amendment review, distinguishing the ag gag law from the Stolen Valor Act.  "The better rule in light of Alvarez is that intentionally false speech undertaken to accomplish a legally cognizable harm may be proscribed without violating the First Amendment."

The opinion has a bit of candy for tortheads, too, in reasoning that even trespass warranting only nominal damages is "a legally cognizable harm."  "Trespass is an ancient cause of action that is long recognized in this country. See United States v. Jones [U.S. 2012]; 3 William Blackstone, Commentaries  ... ," the court began.

[The district] court’s own citation to Black’s Law Dictionary acknowledged that nominal damages are "awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated." Damages, Black’s Law Dictionary (10th ed. 2014) (emphasis added). Nominal damages are not "purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff." Uzuegbunam v. Preczewski [U.S. 2021]. They are, rather, damages paid to a plaintiff that provide redress for an injury. Id.... Even without physical damage to property arising from a trespass, these damages may compensate a property owner for a diminution of privacy and a violation of the right to exclude—legally cognizable harms. See ALDF v. Wasden ... (9th Cir. 2018) (Bea, J., dissenting in part and concurring in part); see also Cedar Point Nursery v. Hassid [U.S. 2021] ("The right to exclude is one of the most treasured rights of property ownership.")....

The complainant in the Iowa case is the Animal Legal Defense Fund (ALDF), which has litigated and is litigating ag gag challenges throughout the country.  (I'm faculty adviser for the Student Animal Legal Defense Fund at UMass Law.)

The first time I testified in a legislative hearing, in my first year of teaching in 1998, I spoke, at the invitation of the Society of Professional Journalists, against an Arkansas ag gag bill.  The bill died in committee.  In the 1990s, an earlier generation of ag gag laws targeted speech about Big Ag as a form of civil or criminal defamation.  That approach was especially vulnerable to First Amendment challenge.

Food Lion Kings Mountain, N.C.
(Mike Kalasnik CC BY-SA 2.0)

At the same time, in the 1990s, the Food Lion case against ABC News, over undercover reporting on food mishandling, was playing out in the courts.  By decade's end, Food Lion prevailed against the ABC defendants for trespass and breach of the employee duty of loyalty, but not for defamation or fraud.  Big Ag learned to reframe ag gag to focus on conduct, rather than speech.  The next generation of ag gag laws aimed to protect private property against trespass, feigning ignorance of First Amendment implications.

Presently, the ALDF is fighting a broad Arkansas ag gag law, in the property-protective vein, enacted in 2017.  On Monday, the day before the Iowa opinion was announced, the Eighth Circuit revived and remanded the ALDF suit in Arkansas.  The district court had dismissed upon an erroneous understanding of First Amendment standing.  The Arkansas law is a model of special interest legislation enacted at the behest of Big Ag power-player Vaught Farms.

The Eighth Circuit opinions in both the Iowa case and the Arkansas case were authored by Judge Steven Colloton, an Iowan.  Judge Colloton had different co-panelists in each case, and both panels generated a dissent.  In the Iowa case, Judge Raymond Gruender, a Missourian reportedly short-listed by President Trump for the Supreme Court, would have upheld the Iowa law in both provisions.  In the Arkansas case, Judge Bobby Shepherd, an Arkansan criticized for upholding Missouri anti-abortion laws to set up a challenge to Roe v. Wade, tracked the erroneous reasoning of the district court on standing.

I find worth quoting a short concurrence in the Iowa case.  Judge L. Steven Grasz, a Nebraskan, hints at the relationship between ag gag and the bigger First Amendment picture of our contemporary misinformation crisis.

This nation was founded on the concept of objective truth ("We hold these truths to be self-evident...."). And some of our nation's oldest institutions were founded as instrumentalities of the search for truth (Veritas). The quest for truth has not, of course, ended; nor has the clash between the free flow of ideas and the desire to punish untruthful speech that is perceived as harmful. The law has long provided for legal consequences for false speech constituting fraud, perjury, and defamation. The present case, however, presents a new category of deceit which the State of Iowa seeks to penalize. Some see it as investigative journalism. Others see it as lying to further an agenda at the expense of private property rights. In either sense, its punishment presents a legal dilemma between protecting property and protecting speech. While some have always questioned whether truth can be known ("What is truth?"), our task is not to answer that question but simply to determine whether the constitution allows the government to criminally punish falsity in the specific context of the statute before us.

I join the court's opinion in full because I believe it is consistent with current law, as best we can determine it from limited and sometimes hazy precedent. Still, I do so hesitantly as to the Access Provision. The court's opinion today represents the first time any circuit court has upheld such a provision. At a time in history when a cloud of censorship appears to be descending, along with palpable public fear of being "cancelled" for holding "incorrect" views, it concerns me to see a new category of speech which the government can punish through criminal prosecution. Ultimately, the Supreme Court will have to determine whether such laws can be sustained, or whether they infringe on the "breathing room" necessary to effectuate the promise of the First Amendment.

Going forward, a key question will be whether access-by-deceit statutes will be applied to punish speech that has instrumental value or which is tied to political or ideological messages....

In general, public interest constitutional litigation against state ag gag has fared very, very well in the courts.  So the Eighth Circuit distinction on the Iowa access provision bucks the trend, which is not to say the court was mistaken.  To my mind, most of the victories against ag gag, as in the Iowa case, have derived from legislative overreach.  As I told the Arkansas committee in 1998, it is possible to draft an "ag gag" bill that would pass constitutional muster.  But such a statute would substantially duplicate the existing tort law of trespass, fraud, and product disparagement.  And while common law tort accommodates constitutional norms by design, rigid statutes are more prone to invite expensive legal challenge in the application.

The real problem, politically for Big Ag, is that it wants more than tort law gives, or than constitutional law permits.  And for public interest advocates, the problem ultimately is one of policy, not constitutional law.  Legislators must be motivated to choose accountability over campaign donations, and the public must be motivated to care about labor conditions and animal welfare, even when opacity precludes investigation.

These cases also resonate in the vein of transparency and access in the private sector.  As I have written previously, contemporary social and economic woes increasingly arise from private-sector abuse of public trust, and our cramped notion of state action is critically diminishing democratic accountability.

The Iowa case is Animal Legal Defense Fund v. Reynolds, No. 19-1364 (8th Cir. Aug. 10, 2021).  The Arkansas case is Animal Legal Defense Fund v. Vaught, No. 20-1538 (8th Cir. Aug. 9, 2021).