Cert. petition: Facebook jokester, parody, free speech, and qualified immunity — FAN 350

Over at Reason magazine, Jacob Sullum offers a concise overview of Anthony Novak’s plight concerning his parody of the Parma Police Department:  

Six years ago, police in Parma, Ohio, arrested Anthony Novak for making fun of them. By creating a parody of the police department’s official Facebook page, they alleged, Novak had violated a broadly worded state law against using a computer to “disrupt, interrupt, or impair” police services. After a jury unanimously acquitted Novak of that felony, he sued seven officers for violating his First Amendment rights.

Novak’s arrest looked like a clear case of abusing the criminal law to punish someone for constitutionally protected speech. But this year the U.S. Court of Appeals for the 6th Circuit concluded that the officers he sued were protected by qualified immunity, which shields police from liability for violating constitutional rights unless their alleged misconduct ran afoul of “clearly established” law. [Recently,] the Institute for Justice asked the Supreme Court to review that decision, warning that the 6th Circuit’s application of qualified immunity is a license for blatant violations of the First Amendment.

→ In the YouTube video below, Anthony Novak describes his run-in with the law: 

→ Supreme Court briefs Re: Qualified immunity (available as of this date)

• Cert. Petition (Counsel of record: Patrick Jaicomo, Institute for Justice)
• Amicus brief of The Onion (Counsel of record: Stephen J. van Stempvoort)

→ Lower court opinion Re: Qualified immunity

• Novak v. City of Parma, 33 F.4th 296 (6th Cir. 2022).

Related

• Video of Anthony Novak Arraignment
• Eduardo Medina, “Area Man Is Arrested for Parody. The Onion Files a Supreme Court Brief,” The New York Times (Oct. 4)
• FIRE’s Amicus Brief in Sixth Circuit (Aug. 6. 2021) (Counsel of record: Ronald London)

ACLU challenges Arizona law banning video recording within eight feet of police activities

This, from an ACLU press release:

It is disturbingly easy to find examples of law enforcement wielding brutal violence against people while claiming to protect or safeguard. Black and Brown communities in particular have long-experienced disproportionate targeting and violence at the hands of law enforcement, and this violence is too frequently lethal. Whether people are exercising their constitutional rights to protest, driving, experiencing a mental health crisis, or even sleeping — there are far too many instances of law enforcement encounters causing harm. 

One of the best tools available to hold law enforcement accountable is a video camera — in other words, the right to record. The First Amendment protects our right to record police engaged in official duties. Every federal circuit to consider the right to record — seven out of 13 circuits — has held that this right clearly exists, and most have specified that it applies to law enforcement. In recent years, there have been numerous, tragic deaths at the hands of police that were recorded by civilian bystanders, and that footage has been critical to pushing back on unchecked police brutality. But now, this essential right is under attack.

Arizona recently passed a law that makes it a crime, punishable by up to a month in jail, for people to record videos within eight feet of police activity. Specifically, it prohibits people from recording police if they are within eight feet of an area where the person “knows or should reasonably know” law enforcement activity is happening. This law is a blatant attempt to gut First Amendment protections for recording police. That is why we are suing Arizona to challenge this unconstitutional law, and urging the court to immediately prevent it from going into effect. 

Under this law:

• Standing within eight feet of “law enforcement activity” and holding up a cell phone without making a video recording would be perfectly legal.
• Only “video recordings” are targeted — not writing on a notepad, texting, or setting up a painting easel within eight feet of an officer.
• “Law enforcement activity” is defined extremely broadly — including simply “enforcing the law.” In essence, this boils the restriction down to recording “within eight feet of a police officer.”
• An officer can “create the crime.” Legally recording an officer outside of the eight-foot distance would turn into a crime if the officer moved closer to the person recording and got within eight feet of them.

→ Arizona Broadcasters Association v. Brnovich, complaint for declaratory & injunctive relief (Counsel of record: Matthew E. Kelley)

Related

• Emma Camp, “1st Amendment Protects Activist Recordings of Factory Farms, Rules Federal Judge,” Reason (Sept. 28)

First Amendment Watch, Free Speech Center unite in educational video project

This, from First Amendment Watch:

Two of the nation’s most prominent First Amendment academic centers are teaming up to produce a series of videos exploring First Amendment issues in everyday life.

The first release from First Amendment Watch at New York University’s Arthur L. Carter Journalism Institute and the Free Speech Center at Middle Tennessee State University focuses on the rights of those who wish to photograph or record video of police officers in public places.

“Recording Police: Know Your Rights explains in a brief video that recording police officers in public is a First Amendment right, but also counsels citizens to keep back and not interfere with the work of police,” said Free Speech Center Director Ken Paulson. “It can be a delicate balance.”

“Seven federal appeals courts have unanimously recognized that videos of police officers working in public serve the critical First Amendment value of helping to hold police officers accountable for their actions,” said Stephen D. Solomon, NYU journalism professor and editor of First Amendment Watch.

The video was produced by Free Speech Center Director Steve Boyle, who has worked with Garth Brooks, the Beach Boys, Don McLean, Merle Haggard and dozens of other prominent musicians.

The video is available at the home sites of both the Free Speech Center and First Amendment Watch, firstamendmentwatch.org, as well as on Twitter, YouTube, Facebook and Instagram.

Iowa ‘ag-gag’ law struck down

• David Pitt, “Federal court finds 3rd Iowa ‘ag-gag’ law unconstitutional,” Associated Press (Sept. 28)

A federal judge has struck down the third attempt by the Iowa Legislature to stop animal-welfare groups from secretly filming livestock abuse, finding once again that the law passed last year violates free-speech rights in the U.S. Constitution.

The decision Sept. 26 rejected the law approved by Iowa lawmakers in April 2021 that makes it a crime to trespass on a property to place a camera to record or transmit images. The law, which had support from Republicans and some Democrats, made the first offense punishable by up to two years in prison and subsequent offenses a felony.

The case is one of many so-called ag-gag laws that have surfaced in the U.S. in recent years that pit the right of farmers to protect their property from trespassers against animal-welfare advocates. Farmers argue intruders could track in disease and want to unfairly portray their livestock practices, while animal-welfare groups say producers don’t want the public to see how farm animals are treated.

Related

• Ronald Collins, “Congress must address food disparagement laws,” Baltimore Sun (June 10, 1999)

FIRE statement on free speech and online payment processors

This, from a FIRE press release:

• The issue: Online payment processors like Venmo and PayPal often deny Americans access to these vital services based on their speech or viewpoints. 
• The concern: When these companies appoint themselves the arbiters of what speech and views are acceptable, shutting people and organizations out of the online financial ecosystem for wrongthink, they seriously undermine our culture of free expression.

Imagine you could no longer use PayPal, Venmo, or another online payment processor because you run an organization that defends free speech for controversial speakers, operate an independent media outlet that challenges mainstream narratives, sell erotic fiction or “occult” materials, or . . . tried to submit an article about Syrian refugees into a newspaper awards competition.

These are not hypotheticals. They’re real, and they illustrate why online payment service providers should stay out of the business of policing their users’ speech and views.

Government regulation affecting payment processors may also threaten free speech. 

Access to online payment systems is crucial for the innumerable individuals and organizations that rely on financial support for their expressive activity. It’s essential to content creators’ ability to earn a living, to websites’ and other businesses’ ability to raise revenue, to fundraising by political candidates and nonprofit organizations, and to everyday Americans’ ability to consume content and support causes they believe in. When payment processing services act as political hall monitors or moral arbiters deciding what speech and viewpoints are out of bounds, they present a grave threat to free expression.

A small number of companies dominate the space, allowing them to wield significant control over the speech environment by denying service to users who express disfavored views or wade into controversial subject matter. PayPal (which owns Venmo), for instance, has 325 million active users. Merchants and individuals put on payment processors’ blacklists may find themselves in a financially precarious situation. As the Electronic Frontier Foundation observed:

Payment platforms are currently extremely centralized, creating what in practice is a duopoly. MasterCard and Visa are behemoth payment service providers, able to dictate through their internal policies what types of speech will and won’t be acceptable online. Other payment providers, including smaller entities like PayPal, Stripe, and many of the Bitcoin payment service providers, are bound by their agreements to Visa and MasterCard.

When consumer choice borders on illusory, any argument that those dissatisfied with Visa’s or PayPal’s terms and conditions should simply seek other payment methods is not particularly convincing — or realistic. 

The lack of due process and transparency only exacerbates the threat to free expression. Policies prohibiting transactions related to certain kinds of speech are often vague. Users may not know exactly why they were suspended or banned, and they may lack a meaningful opportunity to appeal a determination that emerged from a hidden and unaccountable decision-making process. While famous individuals or organizations might sometimes manage to muster enough public attention and support to pressure a payment service provider to reverse an unjust decision, many ordinary Americans will be left without recourse.

Companies’ terms and conditions typically prohibit at least some activities or transactions that involve expression of certain First Amendment-protected views, or, to use FIRE’s language for “yellow light” university policies, can too easily be applied to restrict protected expression. Common targets are “hate speech” and sexually explicit content. A few examples:

• PayPal’s acceptable use policy (and that of Venmo) states users may not use PayPal for transactions involving:
  • “the promotion of hate, violence, racial or other forms of intolerance that is discriminatory or the financial exploitation of a crime”
  • “items that are considered obscene”
  • “certain sexually oriented materials or services.” 
• PayPal also requires pre-approval to accept payments for certain services, including delivery of mature audience content, live streaming/broadcasting, and file sharing. 
• Stripe does not allow use of its services by any business or organization that: 
  • “engages in, encourages, promotes or celebrates unlawful violence or physical harm to persons or property”
  • “engages in, encourages, promotes or celebrates unlawful violence toward any group based on race, religion, disability, gender, sexual orientation, national origin, or any other immutable characteristic” 
  • involves “[p]ornography and other mature audience content (including literature, imagery and other media) depicting nudity or explicit sexual acts.”
• Amazon Pay prohibits “pornography” and “sexually explicit materials,” as well as goods or services that “would be generally offensive to others.” Examples of the latter include “hate literature, occult materials, and any other items or activities that in our judgment are illegal, inappropriate or offensive in connection with our services.” 
• Square also bars payments in connection “[a]dult entertainment oriented products or services (in any medium, including Internet, telephone or printed material)” and “[h]ate or harmful products.” And, like Amazon Pay, the service apparently has no tolerance for witches and sorcerers, banning “[o]ccult materials.”
• Visa reserves the right to ban merchants for any reason, including “brand-damaging Transaction activity.”
• Mastercard’s rules state: “A Customer must not directly or indirectly engage in or facilitate any action that is illegal or that, in the opinion of the Corporation and whether or not addressed elsewhere in the Standards, damages or may damage the goodwill or reputation of the Corporation or of any Mark, or damages or may damage the integrity of the Mastercard system.”

Be sure to read the rest!

Free speech lawsuit: Texas professor receives $165k settlement

This, from Susanna Granieri over at First Amendment Watch:

A math professor at the University of North Texas was awarded $165,000 in damages and attorney’s fees Sept. 22 after settling a lawsuit against the university for violating his right to free speech.

Dr. Nathaniel Hiers sued the university for infringing on his right to free speech by discriminating against his viewpoint, placing unconstitutional conditions on his employment, and attempting to compel and retaliate against his speech, according to the lawsuit filed April 2020 in the United States District Court in the Eastern District of Texas. In the court’s opinion, the judge posed the free speech issue as, “What can a public employee say, and what can he choose not to say, without fear of reprisal from his employer?”

Hiers taught multiple undergraduate courses in the University of North Texas, (UNT), College of Science Department of Mathematics since 2013 while completing the university’s doctoral program. After receiving his doctoral degree, UNT offered Hiers an adjunct faculty position slated to begin in the fall of 2019. But, after writing an unsigned message on a faculty lounge chalkboard during that first semester, Hiers was fired.

“The cornerstone of higher education is the ability of professors to participate freely in the ‘marketplace of ideas,’ where all viewpoints can be debated on their merits,” stated the complaint filed by the Alliance Defending Freedom, (ADF). ADF is a conservative legal advocacy group that describes its mandate as “committed to protecting religious freedom, free speech, the sanctity of life, parental rights, and God’s design for marriage and family.”

The issue at the root of this litigation dates back to November 2019, while Hiers was in a faculty lounge at UNT before teaching an evening class. While in the lounge, he noticed a stack of informational fliers about microaggressions that had been left by an unknown person. 

On the chalkboard of the lounge, Hiers “jokingly wrote ‘Please don’t leave garbage lying around’ with an arrow pointing to the fliers,” according to the suit. Although the suit states that this type of banter and discussion was common in the faculty lounge, Hiers’ message was not well-received by the chair of the mathematics department, Ralf Schmidt. 

Related

• “A win for student press freedom! LAUSD withdraws disciplinary action against Adriana Chavira,” Student Press Law Center (Sept. 16)

Book: ‘Speech Crime and Polite Gentlemen in Massachusetts, 1690–1776’

• Kristin A. Olbertson, “The Dreadful Word: Speech Crime and Polite Gentlemen in Massachusetts, 1690–1776” (Cambridge University Press, March 2022).

This book, the first comprehensive study of criminal speech in eighteenth-century New England, traces how the criminalization, prosecution, and punishment of speech offenses in Massachusetts helped to establish and legitimate a social and cultural regime of politeness. Analyzing provincial statutes and hundreds of criminal prosecutions, Kristin A. Olbertson argues that colonists transformed their understanding of speech offenses, from fundamentally ungodly to primarily impolite. As white male gentility emerged as the pre-eminent model of authority, records of criminal prosecution and punishment show a distinct cadre of politely pious men defining themselves largely in contrast to the vulgar, the impious, and the unmanly. “Law,” as manifested in statutes as well as in local courts and communities, promoted and legitimized a particular, polite vision of the king’s peace and helped effectuate the British Empire. In this unique and fascinating work, Olbertson reveals how ordinary people interacted with and shaped legal institutions.

 Related

• Kristin A. Olbertson, “A Historian Watches Netflix’s ‘History of Swear Words,’” Legal History Blog (July 18, 2022)

Book: History of libel law in Massachusetts and Nova Scotia

• Lyndsay Campbell, “Truth and Privilege: Libel Law in Massachusetts and Nova Scotia, 1820-1840” (Cambridge University Press, 2021).

Truth and Privilege is a comparative study that brings together legal, constitutional and social history to explore the common law’s diverging paths in two kindred places committed to freedom of expression but separated by the American Revolution. Comparing Nova Scotia and Massachusetts, Lyndsay Campbell examines the development of libel law, the defenses of truth and privilege, and the place of courts as fora for disputes. She contrasts courts’ centrality in struggles over expression and the interpretation of individual rights in Massachusetts with concerns about defining protective boundaries for the press and individuals through institutional design in Nova Scotia. Campbell’s rich analysis acts as a lens through which to understand the role of law in shaping societal change in the nineteenth century, shedding light on the essential question we still grapple with today: what should law’s role be in regulating expression we perceive as harmful?

YouTube: Congressman Raskin and Congressional Oversight Committee on SLAPP suits

Related

• Congressman Raskin & Congressional Oversight Committee on “Curriculum Sabotage and Classroom Censorship”
• Congressman Raskin & Congressional Oversight Committee on “Book Bans and Academic Censorship”

Podcast: ‘Big Tech’s chickens coming home to roost’

This, from Stewart Baker over at The Volokh Conspiracy:

We open today’s episode with early news of the Supreme Court’s decision to review whether section 230 protects platforms from liability for materially assisting terror groups whose speech they distribute (or even recommend). I predict that this is the beginning of the end of the house of cards that aggressive lawyering and good press have built for the platforms on the back of section 230. Why?  Because Big Tech stayed out of the Supreme Court too long. Now, when section 230 finally gets to the Court, everyone hates Silicon Valley and its entitled content moderators. Jane Bambauer, Gus Hurwitz, and Mark MacCarthy weigh in admirably, despite the unfairness of having to comment on a cert grant that is less than two hours old.

‘So to Speak’ podcast — Five recent episodes

• Ep. 171: “Nature Human Misbehavior” 
• Ep. 170: “Free speech and the American Founding”
• Ep. 169: “The Art of Insubordination”
• Ep. 168: “Assassin’s veto comes for Rushdie”
• Ep. 167: “That Facebook post about abortion could land you in jail”

More in the news

• “High court will hear social media terrorism lawsuits,” Associated Press (Oct. 4)
• Kalvis Golde, “Florida’s effort to restore its contentious social media law arrives at the court,” SCOTUSblog (Oct. 2)
• Ken Ritter, “Fight over slain reporter’s sources stalls before Vegas judge,” Associated Press (Sept. 29)
• Charlie Warzel, “Is This the Beginning of the End of the Internet?,” The Atlantic (Sept. 28).
• Francie Diep, “It’s Not Clear Whether Public-College Professors Have First Amendment Rights When They’re Teaching,” Chronicle of Higher Education (Sept. 26)
• Susanna Granieri, “A Social Media Censorship Law is Upheld in Texas, Lyrissa Lidsky Weighs In,” First Amendment Watch (Sept. 23)
• Alan Z. Rozenshtein, “The Fifth Circuit’s Social Media Decision: A Dangerous Example of First Amendment Absolutism,” Lawfare (Sept. 20)

2022-2023 SCOTUS term: Free expression and related cases

Review granted 

• 303 Creative LLC v. Elenis

Pending petitions

• Moody v. NetChoice, LLC
• Counterman v. Colorado
• United States v. Hansen
• Klein v. Oregon Bureau of Labor and Industries
• Jack Daniel’s Properties, Inc. v. VIP Products LLC

Qualified Immunity

• Novak v. City of Parma

Liability under Anti-Terrorism Act

• Twitter v. Taamneh

Section 230 Immunity

• Gonzalez v. Google (review granted)

Review Denied

• MyPillow v. U.S. Dominion (news story)
• Kowall v. Benson
• Tofsrud v. Spokane Police Department
• Swanson v. Griffin County

Last FAN

FAN 349: “The rebirth of defamation law: In the ‘Dominion’ of ‘Infowars’ . . . and beyond”

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