No Treats Here: Federal Court Enjoins Sheriff of Butts County, Georgia from Posting Warning Signs on Registered Sex Offenders’ Property

Reed, et al. v. Long, et al., No. 5:19-cv-00385 (M.D. Ga.) October 29, 2019.


A federal judge has enjoined a county sheriff from placing signs near the homes of several of the plaintiffs in this case, who are rehabilitated, yet registered, sex offenders.  The signs announced that no one would be permitted to seek Halloween treats at the address. The sheriff also left leaflets at the plaintiffs’ homes stating that the signposts were there because of their registered status.  

At least one plaintiff was threatened with arrest if he removed the sign.  

The court concluded that the sheriff’s acts compelled plaintiffs to speak in violation of the First Amendment, which restrains the government from inhibiting or requiring speech.  The court rejected the notion that the signs, as government speech, were wholly exempt from review as compelled speech.  

The court likewise rejected that notion that the signs were the least restrictive means of addressing the admittedly compelling government interest in child safety.  Where less intrusive measures had been effective in the past, and where the county had the capacity to caution without offending plaintiffs’ First Amendment rights, defendants had not shown that theirs was the least restrictive means of serving the government’s interest. 

In awarding preliminary injunctive relief to three plaintiffs, the court declined to extend the injunction to all members of the class, as the court was concerned about whether some have been classified as more likely to pose a threat to others than the plaintiffs.

Reed v. Long, No. 5:19-cv-00385 (M.D. Ga.) Order of October 29, 2019.

Graffiti Gravitas: U.S. District Court in Maine Enjoins Enforcement of Student’s Suspension Subsequent to Posting Message About Sexual Assault in School Bathroom

A.M., a Minor v. Cape Elizabeth School District, et al., No. 2:19-cv-00466-LEW.  Opinion dated October 24, 2019.  


A.M. was suspended from high school in Cape Elizabeth, Maine, for violation of the school’s bullying policy.  She has sought and obtained a preliminary injunction on First Amendment grounds prohibiting enforcement of the suspension pending resolution of her claims on their merits.

A.M. had posted a note in a school bathroom announcing “There’s a Rapist In Our School, and You Know Who It Is.”  Another student discovered the note and presented it to school authorities. “Copy cat” postings ensued, the news swept through the student community, and a student was perceived to have been identified as the “rapist,” and was ostracized. 

The school commenced an exhaustive investigation, communicating by letter with parents with concerns and status information.  

If the firestorm within the school were not enough, local and national news media provided its external complement. 

Students protested the suspension of fellow students, and A.M., through her parents, sought relief from the suspension in federal court.

The federal district court rejected the school’s arguments and found preliminary injunctive relief to be appropriate where it appeared to the court that A.M. could show a likelihood of success on her First Amendment claim, where damage to First Amendment interests is presumptively irreparable, and where the harm to A.M. from suspension exceeds any institutional harm to the school.   

The school could not show that A.M.’s post was defamatory, particularly where the law of defamation concerning student speech is not well contoured and where no showing had been made that the link concerned another or was made with negligence.

As protected speech, then, the school would need to show that its actions came within the precedent established by Tinker v. Des Moines Independent Community School District, 393 U.S. 509 (1969) and subsequent cases.  Tinker established that students have First Amendment rights that are not coextensive with those of adults but that student speech ought not be interfered with absent substantial disruption in school operations or harm to others.

The court stressed that A.M.’s posting was undoubtedly one of current political interest:  concern about sexual assault and concomitant concern about authority’s responses to claims of sexual assault.  A post-it allegation in a school bathroom is not easily seen, the court observed, as the sort of call to disruptive arms that Tinker contemplates.  

Whether seen from the standpoint of foreseeable harm from the posting or from the standpoint of alleged harm in fact, the court appeared to be of the view that if controversy about this current issue consumed the school for a short period of time, this partakes more of the sort of lively, if sometimes rough-edged, public debate that the First Amendment exists to protect, rather than the sort of chaotic and dangerous behavior that Tinker would denounce.

That some students experienced fear or anxiety about the claim that there was a sexual assailant in the school and that some school administrators needed to work more than they did ordinarily were not the sorts of disruption that Tinker envisioned would justify speech disciplinary measures, the court concluded.  

Neither could the school create a clear line between A.M.’s posting and any harm to another, the court found.  A causal chain between A.M.’s action and the ostracized student had not been established at this preliminary stage.  

As the court perceived that A.M. might succeed on the merits of her First Amendment claim, and as the school defendants had not made a showing sufficient to controvert that claim, the court enjoined enforcement of A.M.’s school suspension.  

A.M. v. Cape Elizabeth School District, No. 19-cv-00466 (D. Maine)

Portland Head Light

Cape Elizabeth at a moment of greater tranquility.  2014 Photograph by James C.B. Walsh.  Displayed pursuant to Creative Commons license.  

 

 

Criminalizing Public Criticism: Federal Court Rules Pre-Enforcement Challenge to New Hampshire Criminal Defamation Statute May Proceed

Frese v. McDonald, 2019 DNH 184 (D. N.H., 2019). October 25, 2019.


Policing the police through public speech may be stifled, or ‘chilled,’ in First Amendment nomenclature, the federal court in New Hampshire has ruled, where the scope of the state criminal defamation statute is not clear. The addition of a scienter or knowledge requirement concerning false statements or the likelihood of public contempt adds nothing to dispel this apparent vagueness, the court has observed, particularly where the distinction between criticism and the invitation to contempt is not always plain.

Frese, a vociferous challenger of police and other official behavior, need not await actual criminal enforcement where his First Amendment interests are involved and where the exercise of those rights may be suppressed because of the threat of prosecution. Where encounters with the police have occurred in the past, where citizens as well as police may initiate proceedings, where there are indications that enforcement may be arbitrary, and where a criminal misdemeanor defendant may not insist on a jury trial or counsel, Frese’s constitutional interests are of such import that dismissal at the pleading stage is not warranted, the federal district court has concluded.

JustLawful Observation: Plaintiff Frese has not endeared himself to the New Hampshire authorities, but has found an ally in the American Civil Liberties Union, which has advocated on his behalf.

This test of the limits of criminalization of speech concerning public officials will likely have repercussions beyond New Hampshire: the ACLU observes half of the states have similar statutes.

Not all are in accord in this effort to release any choke-hold, real or imagined, that the threat of criminal prosecution for public criticism carries. At least one noted First Amendment scholar disagrees with the federal court in New Hampshire. As the statute is limited to knowingly false statements, this state of mind requirement saves the criminal defamation law from constitutional infirmity.

Ruling on Motion to Dismiss:

Frese v. MacDonald 2019 10 25 D. N.H.

News Accounts and Commentary:

Vagueness Challenge to N.H.’s Criminal Libel Statute Can Go Forward – Reason.com

He Disparaged the Police on Facebook. So They Arrested Him. – Liptak, The New York Times

Civil Settlement New Hampshire Union Leader

Concord News Coverage of Frese

Banned in Exeter_ Police Critic Unwelcome at Church, Shops. Seacoastonline.com – Portsmouth, NH

New Hampshire Police Arrested a Man for Being Mean to Them on the Internet

Model Citizen_ No. But Exeter Man Is At Center of First Amendment Dispute _ New Hampshire Public Radio

 

 

 

Criminalizing the Publication of Private Images Without Consent: The Supreme Court of Illinois Finds No Constitutional Flaw in “Revenge Porn” Statute

People v. Austin, 2019 Il 123910.  October 18, 2019.


Illinois boasts of the most rigorous law in the land respecting criminal liability for the dissemination of sexual images without consent. 

A trial court found the statute to be an impermissible content based speech restriction,  The circuit court dismissed a case against a woman who provided third parties with images of her former fiancee’s lover that were created and transmitted electronically between the former fiancee and lover.  

The state’s highest appellate court has reversed that determination, holding that the statute was not a content based regulation of speech but a valid exercise of state power to protect privacy.  

The court noted that the colloquial term “revenge porn” hardly captures the depth of the ills that may ensue when private images are published.  This is particularly so where the internet has produced its own niche for such images, drawing multitudes of eyes. 

There is an avid thirst for such materials in the online world, and there is no guarantee that even the most rigorous scrubbing of the internet would remove all images once set free in the ethereal, yet durable, online world.  Reputations and livelihoods may be lost, and families and loved ones may suffer. The court observed that there is no shortage of enduring damage that can ensue from publishing private images, and, in the court’s opinion, no civil law remedies will come close to ensuring such behavior is discouraged. 

The court’s majority sidestepped content analysis by observing that the statute does not concern content  so much as it makes criminally culpable the intentional publication of private images without consent. As only private images are of concern, the statute does not burden more speech than is necessary.  Moreover, to be criminal, publication must be intentional and with knowledge that the images were considered private.  

The court declined to announce a new species of speech categorically unprotected by the First Amendment.  Instead, the majority decided that the state has long acted with legitimacy in protecting privacy without encountering First Amendment infirmities where they are found to survive intermediate scrutiny. 

The court noted that the statute is not unlike other laws which prohibit disclosure of private matters such as medical records or identifying information.  Moreover, state action addressing private communications ordinarily receives somewhat less constitutional protection than does speech on matters of public concern, for the latter are the core of the First Amendment’s concerns.

Given the statute’s narrow scope  — the intentional distribution of sexual images understood to be private —  the court rejected an over-breadth challenge, as it is not likely that the statute could be found to proscribe a substantial amount of protected speech. Where it was conceded that the statute was sufficiently clear to avoid arbitrary enforcement, only a vagueness challenge remained, but the plain meaning of the plain language of the statute defeated its recognition.

The court also rejected the argument that the recipient of a sexual image acquires property interests that would invoke due process protections.  Being cognizant of whether an image was intended to be private does not require mind-reading. 

Two dissenting justices decried the majority’s recognition and subsequent abandonment of strict scrutiny as the standard of review and sharply dismissed the notion that the statute does not concern content when the subject of the statute is content:  private sexual imagery.  The statute, which provides no standard of intent, cannot be seen as narrowly tailored to serve any compelling state interest that might be found.  There are less restrictive means than criminal conviction to address any issues presented by ‘revenge porn,’ such as a private right of action.  

JustLawful Observation:  Within the past decade many states have enacted laws criminalizing the publication of private images.  Vermont has already considered its state statute, and found it to be constitutionally sound. More challenges will no doubt ensue, and it is not beyond imagination that at some point the United States Supreme Court will be requested to address the concerns raised by the statute.  This is particularly so where new categorical exceptions from First Amendment protection — such as racial epithets — are under discussion as potential solutions for otherwise insoluble and repetitive First Amendment issues.  

People v. Austin, 2019 IL123910

State v. Van Buren 2018 VT 95

 

 

The Right to Tell the State It Is Wrong: Ninth Circuit Recognizes Parent May Have a Claim Against Social Workers for Retaliation for Exercising First Amendment Rights in Connection with Child Protection Laws

Capp, et al. v. County of San Diego, et al., No. 18-55119 (9th Cir.) October 4,2019.


Jonathan Capp, going it alone in the judicial labyrinth, twice failed to persuade a trial court that he had been drawn into parental rights proceedings because he railed against the allegations made against him. The trial court twice dismissed his claim, first as insufficiently plead and again as barred by qualified immunity.

The Ninth Circuit has concluded that Capp in fact may assert a claim for violation of his First Amendment rights.  

During divorce proceedings, Capp became the object of San Diego Health and Human Services Agency inquiry. 

A county social worker contacted Capp to discuss his children and alleged substance abuse.  The children were interviewed without his consent.

Capp states that the social worker refused to answer his questions and terminated the interview.  Capp protested in writing to the social services agency. 

The San Diego family court dismissed a custody proceeding said to have been initiated by Capp’s wife at the social worker’s behest.  The family court denied the relief sought and chastised the agency.

A volley of correspondence and corrections ensued.  Capp was told allegations against him had been substantiated, then not, then told he was listed on a state registry concerning child abuse, then not.

Capp sued the social worker, social work supervisors, and the Health and Human Services Agency, claiming violations of his constitutional rights, in particular his right to be free from retaliation for exercising his First Amendment right to speak out against the proceedings initiated against him.

The Ninth Circuit reiterated the well established principle that speech protesting government action is constitutionally protection.  Retaliation for exercising that right is actionable. If an official act would inhibit an ordinary person from exercising First Amendment rights, the wrong may be reviewed in court. Thus, an injured person may succeed if it can be established that retaliation was a substantial or motivating factor in encouraging initiation of custody proceedings.  

Relief by means of a retaliation claim may be pursued even if it is recognized that the state and its social work are obliged to investigate claims of child abuse.  The presence of a legitimate motive will not, by itself, defeat the retaliation claim.

Where an individual can show that there was no substantiated concern for safety and that the individual was treated differently from others in similar circumstances, that evidence will permit an inference that retaliation prompted official action.

Even if Capp were able to show that retaliation for asserting his First Amendment rights to speak in protest of the child protective services agency’s actions, and that this was a motivating or substantial factor in encouraging Capp’s wife’s ex parte custody proceedings, the social workers would enjoy qualified immunity from suit unless they were found to have violated a clearly established constitutional right.

The Ninth Circuit recognized that a clearly established precedent recognized that the government cannot take action that would chill protected speech out of retaliatory animus for that speech.  Opinion, p. 22. Any government official would recognize that threatening legal sanctions or coercive action would violate the First Amendment and, as such, the social workers were not entitled to qualified immunity as a matter of law on appeal, although it could be explored further on remand.

The Ninth Circuit upheld dismissal of Fourth and Fourteenth Amendment claims as the question whether children are entitled to be free from unreasonable searches has not been clearly established and because, while the termination of parental rights could be seen as a violation of substantive due process rights, there is no right to be free from investigation.  As the Fourth Amendment claim failed, so too would the municipal liability claim, particularly where only a conclusory allegation was articulated.

JustLawful Observation:  The Ninth Circuit noted that its articulation of a potential claim in this case was quite close.  Nonetheless it would be unwise to read the decision as anything other than a cautionary tale for those charged with the administration of child protective services. 

Capp v. Cnty. of San Diego (9th Cir., 2019)

Badmouthing Police Officer Online, Absent Malice, May Not Demonstrate Bad Character Disqualifying Applicant from Licensure as Private Investigator

Gray v. State, No. 18-AP-65 (Kennebec Sup. Ct.) July 18, 2019.


Maine requires proof of character for licensure as a private investigator, as demonstrated through review by the state police.  In Gray’s case, the police were not well pleased with Gray’s online statements about a police officer, and disqualified him from licensure because he was seen as being unable to provide accurate accounts of matters. 

The Maine Superior Court applied the brakes to this position, observing that offering an opinion online is speech protected by the First Amendment.  In remanding for further administrative proceedings, the court concluded that If the posting were made with knowledge of its falsity or otherwise evinced actual malice, then consideration would be appropriate in the applicant’s character evaluation.  

Justlawful observation:  The judge sidestepped the quagmire that open season on online posting as character could invite while providing some guidance on evaluating troubling online behavior, while simultaneously avoiding what might very well turn out to be an epic feud between the police and the applicant for licensure. 

Gray v. State (Kennebec Sup. Ct.) July 18, 2019

Supreme Court Justices to Consider Reviewing Whether Transit Authority’s Ban on Religious Advertising on Buses Violates First Amendment

Archdiocese of Washington v. Washington Metropolitan Transit Authority, et al., No. 18-1455.  Scheduled for Conference October 1, 2019.


Today marks the Supreme Court’s official ‘back to work’ day, exemplified by the characterization of the first ensemble of the justices for the term as “the long conference,” in which the accumulated and prospective business before the Court demands extensive and intensive attention.

Among the many petitions of note is the Archdiocese of Washington’s (ADW) request that the Court grant its petition for certiorari to determine whether the Washington Metropolitan Transit Authority’s (WMATA) prohibition on religious advertisements on its buses violates the First Amendment. 

The dispute between the church and state entities arose in 2017, when WMATA refused to permit publication of a “Find the Perfect Gift” advertisement intended for public viewing in anticipation of the Christmas holiday.  Although similar advertisements had been accepted and were widely seen within the WMATA ridership area, in 2015 WMATA promulgated regulations banning “Issue” messages, including political and religious views. WMATA reasoned that such messages stirred controversy and management of public concerns in reviewing complaints consumed an inordinate amount of resources. 

The Archdiocese argues that the Court’s precedent compels the conclusion that WMATA rules impermissibly suppress speech, notwithstanding the opinion of the United States Court of Appeals for the District of Columbia Circuit to the contrary.

The Archdiocese argues that WMATA’s rules cannot survive review under either the First Amendment or the Religious Freedom Restoration Act.  As WMATA has admitted that it permits messages with secular messages but not with religious messages, WMATA has engaged in impermissible viewpoint discrimination.

The Archdiocese disputes  the position that the exclusion of the “subject” of religion avoids constitutional offense.  All manner of commentary about Christmas is permitted except religious commentary: this is exactly what is meant by viewpoint discrimination.

Particularly where religion enjoys specific constitutional protections, the imposition of speech burdens or prohibitions is unacceptable.  Adopting the government’s view would carry with it the potential to banish religious speech from all forums, a constitutionally unacceptable result.

The Washington Metropolitan Transit Authority disputes the Archdiocese’s argument, asserting that its regulation, intended to avoid controversy and its associated costs, is a reasonable viewpoint neutral subject limitation applicable to a non-public forum.  WMATA counters the church’s arguments about speech suppression with the prediction that if the regulation is struck down, then all advertisements opposing religion will be required to be accepted, to the detriment of the government’s ability to manage its transit authority and to the detriment of its ridership.  

WMATA cautions the court that adopting the Archdiocese’s position would destroy the forum analyses applied to permissible and impermissible restrictions on speech in public forums.  

WMATA argues that there is no Religious Freedom Restoration Act claim to be reviewed, as RFRA does not apply to the states, and WMATA is an inter-state project comprising of the District of Columbia, Maryland and Virginia. 

JustLawful Prognostication:  “Definitely maybe.”

The Court could grant certiorari if it determines it important to weed the thicket of controversy and misunderstanding that have attached to analyses of permissible speech limitations, including forum analyses.  There is little doubt that this is a significant issue on both speech and religious freedom points.

It is equally possible that, given that the appellate court decision in issue concerns preliminary relief and not a determination on the merits, that the Court will avoid tackling these important concepts in the absence of a more developed record.  

An eleventh hour tipping point may have emerged.  Just days before the long conference, the Archdiocese submitted a supplementary brief arguing that a recent decision by the Third Circuit striking down regulations not dissimilar from the WMATA rules creates a split in circuit decisions making more urgent the Supreme Court’s grant of certiorari.

Briefs in Support and Opposition to Petition for Certiorari

2019 05 19 Petition for Writ of Certiorari

2019 07 22 WMATA Opposition to Peittion for Certiorari

2019 08 06 Reply of Archdiocese v WMATA

2019 09 26 ADW Supplemental Brief in Support of Petition for Certiorari

Amicus Submissions

2019 06 20 Amicus Brief Foundation for Moral Law

2019 06 21 Amicus Brief Christian Legal Society et al

2019 06 21 Amicus Brief of National Association of Evangelicals et al

Opinions of D.C. Circuit and U.S.D.C. D.C.

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth. & Paul J. Wiedefeld, 910 F.3d 1248(Mem) (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 897 F.3d 314 (D.C. Cir., 2018)

Archdiocese of Wash. v. Wash. Metro. Area Transit Auth., 281 F. Supp. 3d 88 (D. D.C., 2017)

Opinion of the Third Circuit Court of Appeals

Ne. Pa. Freethought Soc’y v. Cnty. of Lackawanna Transit Sys.No. 18-2743 (3rd Cir., 2019)

 

Federal Court in Maryland Upholds Law Precluding Licensed Professionals from Practicing “Conversion” Therapy on Minors

Doyle, et al.  v. Hogan, et al., No. 19-cv-00190 (D. Md.) Motion to Dismiss Granted September 20, 2019.


A Maryland statute governing the provision of mental health services precludes provision of “conversion” therapy to minors.  Violation of the statute carries the risk of professional censure. 

“Conversion” therapy is the name applied to interventions intended to reorient an individual’s sexual identity, presumably from same sex or other preferences to heterosexual interest.  “Conversion” therapy has received substantial disapprobation from professional groups, and some professionals advocate that even if there were evidence to support the efficacy of conversion therapy, it should not be offered to minors.

Plaintiff Doyle asserted in federal court that the preclusion of delivery of conversion therapy to minors unconstitutionally impaired his speech rights and his religious liberty. 

The court disagreed, finding that while the conversion therapy involved speech, the administration of therapy was in fact conduct outside the realm of constitutional concern.  

Moreover, the court observed, the therapist’s freedom to speak of or about conversion therapy remains untouched by the statute.  A mental health services provider may provide information about or express an opinion about conversion therapy without fear. 

Central to the court’s determination was the inability of minors to provide informed consent for treatment. As the state interest in the health and well being of minors is at least substantial, if not compelling, imposing limitations on professional conduct to which the minor is legally unable to consent is not unreasonable.  In that minor children are not capable of autonomously exercising informed consent and in that others may exercise consent on their behalf, the state is not wrong in protecting minors from treatment to which they could not accede as a matter of law.

The court concluded that as therapist’s speech interests are not within the statute’s purview, neither were free exercise rights abridged, as the prohibition on “conversion” therapy for minors is a law of general applicability which does not substantially interfere with any belief or practice of religion.

The statute applies only to those who are licensed practitioners within Maryland.

Doyle v. Hogan (D. MD.) September 20, 2019

Ninth Circuit Asked to Reverse Dismissal of Complaint Alleging YouTube Is a Modern Public Square Subject to First Amendment Constraints Applicable to Government Entities

Prager University  v. Google, LLC and YouTube, LLC, No. 18-15712 (9th Cir.) Oral argument held August 27, 2019.  


Prager University (“PragerU”) is not a degree granting institution but an online forum for conservative thought which is often presented in short video presentations.  

Prager University has asked the Ninth Circuit Court of Appeals to reverse dismissal of its claim that YouTube LLC,  an internet platform wholly owned by Google, LLC that permits uploading of user video content, violates the First Amendment in its administration of the platform.  PragerU asserts that YouTube erred in removing some Prager University videos from view through YouTube’s user controlled “Restricted Mode.”  

As YouTube Looks and Acts Like a Government, YouTube Must Conform to First Amendment Constraints.  PragerU alleges that YouTube, which dominates the market for such platforms, has created and invited participation in a public forum and accordingly must be bound by the same constraints applicable to government entities by the First Amendment.  As the online equivalent of the public square, through its invitation and subsequent curation of its content, YouTube is engaged in state action subject to First Amendment limitations.  

PragerU objects not only to YouTube’s failure to conform itself to constitutional commands, but also to what it perceives to be unfair competition and devaluation of its product, as where its posts are inaccessible, advertisers will not work with PragerU, and revenues will be lost.  

Ownership Includes Discretion to Manage but Curation Does not a State Actor Make. YouTube asserts that in selecting sites suitable for viewer controlled discretion, YouTube  is properly exercising its own First Amendment rights as a private corporation.  

YouTube asserts that its invitation to the public to participate in an open viewer and content provider driven forum will not transform YouTube into a government entity engaged in state action.  

YouTube can, the corporation insists, be both open and retain a capacity to manage content postings according to its internal guidance and by agreement with users.  

YouTube denies that it is engaged in any behavior traditionally and exclusively reserved to government.  

YouTube stresses that to adopt PragerU’s position would be to upend platform and user behavior on the internet in unmanageable and undesirable ways, both practically and as a matter of legal analysis.

Impact as Envisioned by Industry and Advocacy Leaders.  The Electronic Frontier Foundation (“EFF”), which advocates for issues arising in new technology, argues as amicus that user interests will not be served by removing the First Amendment protections enjoyed by platforms and imposing upon them the constraints inhibiting government interference with speech.  

The EFF notes that there would be no conceivable ‘cure’ for the issues that would arise if open forums such as YouTube were deemed to be public forums.  Permitting moderation and curation would only shift review standards from those applied to public forums to those applied to limited public forums. Legal analysis would be impossible, as corporations are not involved in serving compelling state interests.  

The EFF disputes the central argument made by PragerU and asks the Ninth Circuit to recognize that the curation of user or content provider speech is not an inherently governmental function sufficient to support a finding that the YouTube platform is engaged in state action.

Moreover, the EFF stresses that Section 230 of the Communications Decency Act of 1996 (“Section 230”) insulates platform providers from liability to third parties for user generated content and from liability to content providers for rejecting, blocking or removing content.  

Concerns About Platform Providers’ Behavior are Legitimate and Must Be Addressed.  The EFF recognizes the importance of concerns about inequitable conduct by platform providers and notes the seriousness of claims that providers have banned or removed content without justification to the detriment of users and content providers.  The EFF notes that society in general benefits from freedom from speech suppression even if some speech provokes discomfort.

The EFF urges that YouTube and other platforms adopt a human rights frame of reference in curating content. It is most important that users have an active role in moderation and that providers behave with accountability and transparency.  Providers should publish data about what it removes, be clear in its user agreements and guidance, and permit appeals from adverse determinations.

Self-Governance, If Assured, Must be Assiduously Pursued.  The EFF cautions that it is not enough that YouTube may retain the right to permit or circumscribe content according to its standards:  it must make an effort to do so diligently. 

The End of the Internet. The Computer and Communications Industry Association (“CCIA”) as amicus urges the Ninth Circuit to reject the notion that YouTube became a public forum or a government or government controlled entity because of YouTube’s encouragement of free expression.  That encouragement is not unlimited and is cabined by YouTube’s Terms of Service and Community Guidelines. YouTube’s curation and moderation does not make it a state actor, as it does not behave as or provide a service ordinarily supplied by the government.

The CCIA cautions against the adverse impact of subjecting online platforms to First Amendment Constraints rather that permitting the platforms to enjoy First Amendment protections.  The internet as it now functions would be markedly diminished by the application of the state actor doctrine, as substantial content removal would be required and publication of all but unprotected speech would be required in open forums. 

Contrary to PragerU’s arguments, PragerU cannot succeed establishing that what YouTube does is an activity traditionally and exclusively reserved to the state, for no such activity has ever existed before.  

Neither can PragerU succeed in asserting that any content regulation on what PragerU defines as a public forum will make YouTube a state actor if YouTube is not operating a public forum at all. 

This crucial (if not fatal) circularity cannot be overcome by reliance on precedent in which status as a public forum was not in issue.  Equally importantly, PragerU cannot succeed in relying on on the “company town” holding of Marsh v. Alabama, 326 U.S. 501 (1946), as almost all subsequent considerations of Marsh have limited its holding to those few circumstances in which a private entity essentially functions as a government.  

Neither can “company town” status be found to exist through the words YouTube chooses to hold itself out to the public.  Self-description or an invitation to the public to participate in open expression will not, without more, work the alchemy of transforming a private entity into a government.  

In point of fact, CCIA suggests, YouTube’s retention of control of material placed on its platforms demonstrates that YouTube’s invitation and representations are not unlimited.

Inapposite Dicta. Recent Supreme Court characterization of the internet as a modern public square is more rhetorical than substantive, and is not helpful to PragerU in that the issue concerned an action taken by the state respecting social media, not social media acting as the state. 

Imposing the Constraints of One First Amendment Premise Would Remove the Protection of the Corollary First Amendment Promise.  CCIA observes that imposition on YouTube of the First Amendment standards imposed on the government would violate the First Amendment protections guaranteed to private entities by the First Amendment.  To do so would cause YouTube to lose almost all its ability to curate its platform, and would eviscerate the protection afforded by Section 230.

Bad for Business. The United States Chamber of Commerce (“Chamber of Commerce”), the nation’s largest business organization, fears that businesses would be harmed by a determination in PragerU’s favor.  Binding businesses to First Amendment constraints is only appropriate where the business performs “traditionally exclusively” government acts, and that is not true here. The First Amendment binds the government, has not been found to bind private entities, and should not be found to do so now.  User run video sharing has never been a state function.  

Marsh is inapposite:  YouTube is not governing a town.  No court has ever held that an entity that opens a space for public expression becomes subject to the restraints imposed on the  government by the First Amendment.  

Upending Application of the Law.  Holding in favor of PragerU would disrupt current First Amendment analysis, which requires that any regulation support a government interest.  Substituting corporate for government interest would impermissibly expand the First Amendment and require analysis of business interests that courts are ill-suited to make.  

Harm to Business Owners Likely if PragerU Prevails.If businesses were required to submit to standards reserved to the government, it is likely that they would move to limit their online market presence, which might not insulate them from liability but which likely would be economically costly.  “Ownership” of a site would not remain with proprietors where users could direct what is posted. This would contravene business owners’ First Amendment rights, not only of speech but of association. Other attempts at limiting exposure, such as limiting activity so as not to be perceived as a public forum, would also likely limit market activity and advertising revenues. 

JustLawful Prognostication.  Although not impossible, it is not probable that a federal appellate court would, of its own accord, enter judgment in PragerU’s favor except if some grounds for reversal and remand could be found.  The issues are simply too big to manage through one case and likely the courts are not the best branch of the government with which to accomplish PragerU’s ends.  

Leaving aside the massive impact a decision in favor of the appellant could provoke, the arguments presented by PragerU may be too expansive to countenance, as PragerU relies on the notion that because YouTube describes itself as an open forum inviting free expression it therefore becomes a public forum for First Amendment purposes.

Prager University v. Google and YouTube Appellant Brief

Prager University v. Google and YouTube Appellee Brief

Prager University v. Google and YouTube Appellant’s Reply Brief

Prager University v. Google and YouTube EFF Amicus Brief

Prager University v. Google and YouTube Computer and Communications Industry Association Amicus Brief

Prager University v. Google and YouTube Chamber of Commerce Amicus Brief

 

Media Giants Collectively Resist Maine’s Plan to Offer Cable Consumers A La Carte Services

Comcast of Maine/New Hampshire, et al. v. Governor of Maine, et al., No. 19-cv-410 (D. Me).  Complaint filed September 6, 2019.


Maine enacted a statute that requires cable service providers to offer single servings of media to consumers.  Media giants, whether in the provision of technology or content, or a mix of both, denounce this plan as an impermissible encroachment on the federal scheme governing media nationally and as an impermissible imposition of content restriction in violation of the corporations’ First Amendment rights.

Cable provider Comcast, joined by news and media networks, has filed an action against Maine and several of its townships to obtain declaratory and injunctive relief.

Preemption Claim.  Federal law governing communications expressly preempts state law in the regulation of cable services.  Even if the state law were not specifically preempted, the Maine law would fail because of conflict preemption.  A carrier cannot comply with the federal scheme, which recognizes the provision of services in ‘tiers’ from basic channels to more enhanced, and comply with the selective services contemplated by Maine.  

First Amendment Claim.  The carriers and providers assert that they negotiate broadcast and copyright and packaging agreements in contemplation of the tiers of service hierarchy.  These choices reflect the exercise of constitutionally recognized and protected First Amendment Speech rights. 

The Maine statute, by compelling compliance with a government scheme for service provision not bargained for or agreed upon by broadcasters and content providers, encroaches upon their exercise of speech rights. 

The statute cannot serve any state interest as the statute is preempted by federal law, plaintiffs aver.  Even if it were not, the state cannot demonstrate any compelling, or even legitimate, interest in mandating enhanced access to programming where currently thousands of choices are available through cable services and through online sources such as Netflix and Amazon Prime Video.  

Where the Maine statute materially and substantially disrupts the conduct of negotiations and contractual obligations as it now exists, Maine cannot demonstrate that its interjection of state law requirements into the federally regulated landscape is sufficiently narrowly tailored to meet the state’s purported end.

Briefing will continue throughout October, with oral argument on the request to enjoin the state to be held on November 1, 2019. 

This case will no doubt be closely watched by both industry, government, and consumer groups, for as the old adage has it, “as Maine goes…..”

Briefing Schedule:

Response to Motion for Preliminary Injunction due October 7, 2019

Reply to Response to Motion for Preliminary Injunction due October 15, 2019

Motion to Dismiss due October 7, 2019

Response to Motion to Dismiss due October 15, 2019

Reply to Motion to Dismiss due October 22, 2019

Defendants’ Responses to Motions for Leave to File Amicus Briefs due October 7, 2019

Plaintiffs’ Responses to Motions for Leave to File Amicus Briefs due October 15, 2019

Replies to Motions for Leave to File Amicus Briefs due October 22, 2019

Comcast v. Maine_Complaint (U.S.D.C. Me.) September 6, 2019