First Amendment News 252: Zoom-speech and the specter of censorship in pandemic times . . . and in years to come

“You better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’”

— Bob Dylan

In a matter of but a few months, our world has been turned upside down by the COVID-19 pandemic. In its wake, fear has followed folly in ways that have radically altered life in America and elsewhere. One of the radical changes that has resulted is the near disappearance of public gatherings as more and more people seek shelter in their homes, lest they fall victim to the virus.

In that environment, speech has largely fled public venues and escaped to the virus-safe world of Zoom videoconferencing. According to MarketWatch, “the company’s daily active user count was up 378% from a year earlier” in March of 2019. Forbes reported that within the time span of four or so months, Zoom usage had skyrocketed from 10 million to 300 million users. Something of the same holds true for other videoconferencing services offered by Crowdcast, Facebook, Google, and Microsoft, among others. In the existential tumble of it all, the virtual has supplanted the real everywhere from the workplace to the college classroom.

With each passing day, digital venues have come to occupy the space that was once the physical space where in-person communication occurred. Everything from classes and graduations to employment and entertainment have taken on a virtual dimension. Much as Twitter and Facebook have been tapped by everyone from the president to local city council members, now Zoom and its counterparts have become the new electronic amplifier of preference. The medium is changing the patterns of communication, much as the internet and the invention of print changed the communications landscape in times past.

It is an old truth: Censorship follows every new mode of communication. And why? The answer has to do with the fact that as a new mode of communication becomes more effective, it also becomes more powerful. And with that comes the predictable tendency to curb that communicative power, lest it upset the established order. By the same token, just as these new modes bring with them new free speech opportunities, they also increase the likelihood of abuses of that freedom.

So think about “Zoom-speech” and free speech in these pandemic times. Already we’ve witnessed “Zoombombing.” Recently, trolls took over the start of a virtual meeting hosted by Florida’s Indian Trail Improvement District Board. The intruders flooded the screen with pornographic images, obscene words, and swastikas. Students at Bakersfield College and Fresno State likewise fell victim to other trolls who shoved images of child pornography into their virtual classrooms.

In emergency times, when the demands for safety and security run high, free speech freedom is always in jeopardy. This is especially true when new modes of communication become mainstream. Robert Corn-Revere makes the point well in an essay featured in “Toward A Competitive Telecommunication Industry“:

In many ways, censorship is the bastard child of technology. . . New technologies tend to increase pressure for government control by challenging established state policies and by threatening to undermine official authority. The government responds by enacting measures to reassert its authority and to otherwise regulate the press. Such efforts ultimately fail because of the power of a given technology or because of technological expansion of the means of communication.

What to do? The answer: Beyond technological fixes, government Zoom events, like all such video-conferencing events, are moderated; they are supervised by a “meeting host” with the power to prevent myriad perceived abuses of the new medium. Stop there! At that juncture, the specter of censorship arrives upon the scene.

• How should we conceptualize a Zoom event that was heretofore an event in a physical public forum or quasi-public forum event?
• How will a government moderator — with her finger on the mute button — control what is said, or about to be said?
• What are the rules governing how that person will exercise censorial power?
• What about prior restraints as they apply to people who want to post PowerPoint presentations?
• What about viewpoint discrimination?
• What about overbreadth and vagueness?
• Who determines what is obscene or defamatory?
• What about (to coin a phrase) “revenge Zoom”?
• How are access questions under federal and state laws to be applied when Zoom-speech is part of the invited (as contrasted with Zoom-bombers)?
• And what of government officials taking their spying cues from Chinese officials who track, monitor, and record all sorts of virtual events?

The meeting host (human or algorithm) determines just how “uninhibited, robust and wide-open” speech will be; but, who controls the controller?

7th Cir. rejects reporter’s retaliation claim

This from David Hudson over at the Free Speech Center:

A Rockford, Ill.-based reporter who was arrested after uncovering a police-run prostitution sting lost his First Amendment retaliation claim before a federal appeals court, which reasoned that the police had probable cause to arrest the reporter for a traffic violation. . . .

On appeal, a three-judge panel of the 7^th U.S. Circuit Court of Appeals affirmed in its April 20, 2020, decision in Lund v. City of Rockford.

The panel relied on the U.S. Supreme Court’s decision in Nieves v. Bartlett (2019) for the principle that probable cause for arrest generally defeats a retaliatory arrest claim. The high court in Nieves recognized that retaliatory-arrest claims are challenging because it is difficult to know whether an officer arrested an individual because of retaliatory animus or the defendant’s criminal conduct. But the Court explained that – just as in common-law claims for malicious prosecution – probable cause for an arrest generally forecloses the retaliation claim.

Applying this Supreme Court ruling, the 7^th Circuit panel noted: “At the time of Lund’s arrest, the officers had probable cause to arrest him for, at a minimum, driving a motorized vehicle the wrong way on a one-way street. . . . Therefore, his claim for retaliatory arrest fails.”

Related

• “White House asks CNN reporter to move to the back of press briefing room,” First Amendment Watch (April 27)
• “NYPD seizes photojournalist’s drone after he documented mass-burials,” First Amendment Watch (April 22)

Cert. petition filed in commercial speech case

The case is Vugo Inc. v. City of New York, New York. The issue raised in the case according to SCOTUSBlog:

In Reed v. Town of Gilbert the Court clarified that content-based restrictions are those that apply to particular speech because of the topic discussed or the idea or message expressed, and reaffirmed that content-based restrictions on speech require strict scrutiny review. Government restrictions on commercial speech that do not apply to non-commercial speech are content-based. Should strict scrutiny review apply in such a challenge?

In the court below, Second Circuit Chief Judge Robert Katzmann began his opinion this way:

This appeal concerns a First Amendment challenge to nearly twenty-year-old New York City rules that ban advertisements in for-hire vehicles (“FHVs”) absent authorization from the Taxi and Limousine Commission (the “TLC” or the “City”). See 35 R.C.N.Y. §§ 59A-29(e)(1), 59B-29(e)(1). A similar rule has applied to yellow and green taxicabs (collectively, “taxicabs,” “taxis,” or “cabs”) for over two decades. See 35 R.C.N.Y. § 58-32(f). The TLC originally enacted these bans because, as the record reflects, passengers find in-ride advertisements—particularly, as relevant here, video advertisements—extremely annoying. However, in 2005, the TLC permitted a limited category of advertisements in taxis: those displayed on the screens of new equipment that the TLC required taxis to install (“Taxi TV”). This new equipment allows taxi riders, inter alia , to track the progress of their metered fare and pay by credit card. The TLC authorized advertising on Taxi TV to offset the cost to the taxi owners of installing the newly mandated equipment.

Plaintiff-Appellee Vugo, Inc. (“Vugo”) has challenged the rules banning advertisements in FHVs because it wants to sell an advertising software platform it developed for certain FHVs, including Ubers and Lyfts. Vugo primarily argues that the ban is impermissibly underinclusive under the First Amendment because the City’s interest in enacting the ban bears no relationship to the City’s justification for exempting Taxi TV advertising.

Mindful of those issues, the Chief Judge concluded:

We respectfully disagree. First, we think there is a sufficient nexus here between the ban and its exception because both advance the City’s interest in improving the overall passenger experience. Second, the ban would be constitutional even if there were not such a relationship. The absence of a relationship between a government’s interest in a ban and its basis for any exceptions may render a ban unconstitutionally underinclusive. Most notably, it may demonstrate that the ban was motivated by bias or remains incapable of achieving its stated aims. Here, however, on the uncontroverted record, the exception neither reflects discriminatory intent nor renders the ban ineffective at improving the in-ride experience for millions of New York City residents and visitors. The Taxi TV exception reflects the City’s reasonable decision that the costs of permitting advertisements in taxicabs were outweighed by the benefits of compensating taxicab owners for the expense of installing new equipment that facilitated credit card payment and improved ride data collection. Vugo identifies no grounds for us to upset this policy judgment. See Metromedia, Inc. v. City of San Diego (1981) (plurality opinion). Finally, we conclude that the City’s ban is not substantially more restrictive than necessary to achieve the City’s aims under the final prong of Central Hudson. 

• Amici curiae from the Goldwater Institute & Cato Institute.

NYT’s counsel replies to Hannity’s lawyer

This from a tweet by Harvard Law School professor Jennifer Taub:

A lawyer’s letter that is better than chocolate pic.twitter.com/W4RwJHZXS2

— Jennifer Taub (@jentaub) April 29, 2020

New Smolla book coming soon

• Rodney Smolla, “Confessions of a Free Speech Lawyer: Charlottesville and the Politics of Hate” (Cornell University Press (May 15, 2020)

In the personal and frank Confessions of a Free Speech Lawyer, Rodney A. Smolla offers an insider’s view on the violent confrontations in Charlottesville during the “summer of hate.” Blending memoir, courtroom drama, and a consideration of the unhealed wound of racism in our society, he shines a light on the conflict between the value of free speech and the protection of civil rights.

Smolla has spent his career in the thick of these tempestuous and fraught issues, from acting as lead counsel in a famous Supreme Court decision challenging Virginia’s law against burning crosses, to serving as co-counsel in a libel suit brought by a fraternity against Rolling Stone magazine for publishing an article alleging that one of the fraternity’s initiation rituals included gang rape. Smolla has also been active as a university leader, serving as dean of three law schools and president of one and railing against hate speech and sexual assault on US campuses.

Well before the tiki torches cast their ominous shadows across the nation, the city of Charlottesville sought to relocate the Unite the Right rally; Smolla was approached to represent the alt-right groups. Though he declined, he came to wonder what his history of advocacy had wrought. Feeling unsettlingly complicit, he joined the Charlottesville Task Force, and he realized that the events that transpired there had meaning and resonance far beyond a singular time and place. Why, he wonders, has one of our foundational rights created a land in which such tragic clashes happen all too frequently?

Forthcoming book on the assassination of Jamal Khashoggi

• Karen Attiah, “Say Your Word, Then Leave: The Assassination of Jamal Khashoggi and the Power of the Truth” (Dey Street Books, Aug. 11, 2020)

A searing, behind-the-scenes account of Jamal Khashoggi’s final year at the Washington Post, the search for answers after his brutal murder, and the defining fight for the soul of Washington, Saudi Arabia, and the greater Arab world.

In September 2017, Saudi journalist Jamal Khashoggi filed his first piece for the Washington Post with his editor, Karen Attiah. The column, about his decision to go into self-exile and speak out against Saudi Arabia’s Crown Prince Mohammed bin Salman, instantly went viral, and Jamal became a regular columnist for the paper. Working closely with Attiah to publish the newspaper’s first columns to appear in Arabic, Khashoggi, who dreamt of an Arab world free from tyranny and oppression, made it his mission to demystify Saudi Arabia for a global audience and to urge Saudi leadership to govern wisely.

A year later, he was dead.

Say Your Word, Then Leave is the riveting account of Khashoggi’s time at the Post. Attiah unravels the stranger than fiction story behind his disappearance and murder, the Post’s efforts to find answers and demand accountability. The saga  reveals Saudi Arabia’s deep ties with America—in Washington, D.C., on Wall Street, and in Silicon Valley—most notably, its close ties to the Trump administration. Over the course of their working relationship, neither Attiah nor Khashoggi imagined—though there were signs—that he would be kidnapped and killed by a Saudi hit squad in Turkey, or that she would be thrust into the global spotlight of an international political assassination that would grip the world.

A shocking, eye-opening tale of the fight for justice and a deeply moving portrait of Jamal and Karen’s growing friendship, Say Your Word, Then Leave goes behind the headlines as it illuminates the life-threatening dangers journalists face under repressive regimes, and brings together the inspiring stories of courageous activists working for change in the Arab world.

New scholarly article on net neutrality 

• Katherine Grainger, “Net neutrality: A state[d] approach,” Hastings Law Journal (2020)

So to Speak podcast with Josh Blackman

• “The Constitution in the age of coronavirus w/ prof. Josh Blackman“

With much of the country under stay-at-home orders due to COVID-19, what do these orders mean for the five freedoms of the First Amendment?

On today’s episode of So to Speak: The Free Speech Podcast, host Nico Perrino and constitutional law expert Josh Blackman will break it all down. Blackman is a professor of law at the South Texas College of Law in Houston and the author of three books, including his recently co-authored book with Professor Randy E. Barnett, “An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.”

More in the news

• Eugene Volokh, “Fifth Circuit anti-BDS lawsuit dismissed as moot,” The Volokh Conspiracy (April 27)
• Carl Ann Alaimo, “Tucson creates new ordinance to deter aggressive ‘First Amendment auditors’,” Arizona Daily Star (April 27)
• Gene Policinski, “FIRST FIVE: Our First Amendment rights must survive COVID-19,” Hays Post (April 26)
• “2020 World Press Freedom Index warns of the impact of coronavirus on free expression,” First Amendment Watch (April 24)
• Anthony L. Fisher, “The Trump campaign’s frivolous lawsuits are next-level threats to the First Amendment,”  Business Insider (April 17)

2019–2020 SCOTUS term: Free expression & related cases

Opinions or judgments handed down

• Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)

Cert. granted

• United States v. Sineneng-Smith (argued Feb. 25) [soliciting unlawful action/overbreadth]
• Carney v. Adams  (TBD) [standing / judicial elections]
• United States Agency for International Development v. Alliance for Open Society International Inc. (May 5) [federal funding / compelled speech]
• Barr v. American Association of Political Consultants, Inc. (May 6) [automated-call restriction]
• Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (May 13) [elections]
• Fulton v. City of Philadelphia (TBD) [religious expression: free exercise & free speech claims]

Pending petitions

• Vugo Inc. v. City of New York, New York
• Evans v. Sandy City, Utah
• Bruni v. City of Pittsburgh
• Waggy v. United States
• Schmitt v. LaRose
• Austin v. Illinois
• Reisman v. Associated Faculties of the University of Maine
• National Association for Gun Rights, Inc. v. Mangan
• Institute for Free Speech v. Becerra
• Americans for Prosperity Foundation v. Becerra
• Thomas More Law Center v. Becerra 
• Jarchow v. State Bar of Wisconsin
• Facebook, Inc. v. Duguid
• Arlene’s Flowers Inc. v. Washington
• Price v. City of Chicago, Illinois
• Charter Communications, Inc. v. Gallion

Petitions denied

• Waronker v. Hempstead Union School District
• Mckesson v. Doe
• Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
• Elster v. City of Seattle
• Doe 1 v. Federal Election Commission
• Fleck v. Wetch
• New York Republican State Committee v. Securities and Exchange Commission
• EMW Women’s Surgical Center v. Meier
• Carter v. Massachusetts
• Capital Associated Industries Inc. v. Stein
• National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
• Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
• Libertarian National Committee Inc. v. Federal Election Commission
• Miller v. Inslee
• Buchanan v. Alexander
• Lipschultz v. Charter Advanced Services, LLC
• Gatehouse Media New York Holdings Inc. v. New York

First Amendment-related 

• Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
• Force v. Facebook Inc. (interpretation of Section 230(c)(1))

First Amendment related: Cert. denied

• Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)

Last Scheduled FAN 

• FAN 251: “Public health and the First Amendment in the age of COVID-19“

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