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justinspoliticalcorner · 15 days

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Ian Millhiser at Vox:

The Supreme Court announced on Monday that it will not hear Mckesson v. Doe. The decision not to hear Mckesson leaves in place a lower court decision that effectively eliminated the right to organize a mass protest in the states of Louisiana, Mississippi, and Texas. Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

It is possible that this outcome will be temporary. The Court did not embrace the United States Court of Appeals for the Fifth Circuit’s decision attacking the First Amendment right to protest, but it did not reverse it either. That means that, at least for now, the Fifth Circuit’s decision is the law in much of the American South. For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016. The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Everyone agrees that this rock was not thrown by Mckesson, however. And the Supreme Court held in NAACP v. Claiborne Hardware (1982) that protest leaders cannot be held liable for the violent actions of a protest participant, absent unusual circumstances that are not present in the Mckesson case — such as if Mckesson had “authorized, directed, or ratified” the decision to throw the rock. Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

The reason Claiborne protects protest organizers should be obvious. No one who organizes a mass event attended by thousands of people can possibly control the actions of all those attendees, regardless of whether the event is a political protest, a music concert, or the Super Bowl. So, if protest organizers can be sanctioned for the illegal action of any protest attendee, no one in their right mind would ever organize a political protest again. Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

The Fifth Circuit’s Mckesson decision is obviously wrong

Like Mckesson, Claiborne involved a racial justice protest that included some violent participants. In the mid-1960s, the NAACP launched a boycott of white merchants in Claiborne County, Mississippi. At least according to the state supreme court, some participants in this boycott “engaged in acts of physical force and violence against the persons and property of certain customers and prospective customers” of these white businesses. Indeed, one of the organizers of this boycott did far more to encourage violence than Mckesson is accused of in his case. Charles Evers, a local NAACP leader, allegedly said in a speech to boycott supporters that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”

With SCOTUS refusing to take up McKesson v. Doe, the 5th Circuit's insane anti-1st Amendment ruling that effectively bans mass protests remains in force for the 3 states covered in the 5th: Texas, Louisiana, and Mississippi.

#SCOTUS #Deray McKesson #Protests #Black Lives Matter #5th Circuit Court #Texas #Louisiana #Mississippi #1st Amendment #Counterman v. Colorado #NAACP v. Claiborne Hardware #McKesson v. Doe

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soon-palestine · 15 days

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Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

For the past several years, the Fifth Circuit has engaged in a crusade against DeRay Mckesson, a prominent figure within the Black Lives Matter movement who organized a protest near a Baton Rouge police station in 2016.

The facts of the Mckesson case are, unfortunately, quite tragic. Mckesson helped organize the Baton Rouge protest following the fatal police shooting of Alton Sterling. During that protest, an unknown individual threw a rock or similar object at a police officer, the plaintiff in the Mckesson case who is identified only as “Officer John Doe.” Sadly, the officer was struck in the face and, according to one court, suffered “injuries to his teeth, jaw, brain, and head.”

Indeed, as Justice Sonia Sotomayor points out in a brief opinion accompanying the Court’s decision not to hear Mckesson, the Court recently reaffirmed the strong First Amendment protections enjoyed by people like Mckesson in Counterman v. Colorado (2023). That decision held that the First Amendment “precludes punishment” for inciting violent action “unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.”

Indeed, as Fifth Circuit Judge Don Willett, who dissented from his court’s Mckesson decision, warned in one of his dissents, his court’s decision would make protest organizers liable for “the unlawful acts of counter-protesters and agitators.” So, under the Fifth Circuit’s rule, a Ku Klux Klansman could sabotage the Black Lives Matter movement simply by showing up at its protests and throwing stones.

#palestine #gaza #free palestine

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whitesinhistory · 14 days

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Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

#history #white history #protest #supreme court

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pscottm · 15 days

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Under that lower court decision, a protest organizer faces potentially ruinous financial consequences if a single attendee at a mass protest commits an illegal act.

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whoisjaylamm · 3 years

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Did Trump Incite the DC Riot (and the media’s role)

On January 6th 2021, a violent mob broke into the DC Capitol building in an effort to change the outcome of the electoral process. This is about broaching the question: did Trump actually “incite” the DC Capitol violence?

On January 6th 2021, a violent mob broke into the DC Capitol building in an effort to change the outcome of the electoral process. You can call these people “protestors” or you can call them “insurrectionists,” whatever you want to call them today, that’s fine (I don’t give a turkey), this isn’t about them or what they did. This is about broaching the question: did Trump actually “incite” the…

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#agenda setting theory #brandenburg test #cancel culture #dc riot #hess v. indiana #media bias #naacp v. claiborne hardware co.#pissgate

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lodelss · 4 years

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ACLU: Will SCOTUS Protect the Right to Protest?

Will SCOTUS Protect the Right to Protest?

Since this country’s founding, when we’ve had something to say, we have taken to the streets. We’ve come together to celebrate our identities, to protect our land and our communities — and to push for change following injustice and tragedy. But if a recent decision from the Fifth Circuit Court of Appeals involving a Black Lives Matter protest is left standing, the right to protest will be in serious jeopardy.

That is why, today, we’re asking the Supreme Court to take the case.

The Fifth Circuit decision stems from protests that erupted in Baton Rouge, Louisiana after two white police officers shot and killed Alton Sterling, a Black man, on July 5, 2016. In the days that followed, people took to the streets to make clear that Black lives matter. They came together to express outrage, to call for accountability and justice, and to demand change.

Police responded not by engaging with the substance of protestors’ calls, but with riot gear, excessive force, and illegitimate arrests. And one police officer brought a civil suit for monetary damages based on allegations that, in the midst of the protest, someone (we don’t know who) threw something (we don’t know what) and hit the officer (we don’t even know his name). The one thing we know with certainty — and based on the officer’s own allegations — is that the individual the officer sued is not the person who threw the object, but our client, DeRay Mckesson — an activist who was there to add his voice and to amplify others.

The district court that first reviewed the case correctly dismissed it as violating a core tenet of the First Amendment: that, in the context of a protest, individuals cannot be held liable for the unlawful, unintended acts of others. But, after the officer appealed, the Fifth Circuit issued a baffling and deeply concerning order that ignores that principle and, in doing so, puts all of our free speech rights at risk. The court concluded that a protester could be held liable for the foreseeable, but unintended, unlawful actions of a fellow protester. If allowed to stand, the precedent could signal the end of protest.

The Fifth Circuit panel first concluded that Mckesson had no control over the individual who threw the object, and had not intended for the object to be thrown. Yet the judges concluded that Mckesson could be liable for the officer’s injuries.

Why? Because, during the protest, Mckesson (according to the judges’ reading of the officer’s allegations) directed others onto the street in front of police headquarters, purportedly in violation of a Louisiana law. Because that act was allegedly not protected by the First Amendment, the panel reasoned that Mckesson could be liable for any harm that followed — including another person throwing an object at an officer — as long as it was foreseeable. And, the panel concluded, it was foreseeable: As soon as people stepped out onto the street, police officers would inevitably come to enforce Louisiana’s laws, and that was enough to expect that violence could occur.

This logic is not only flawed, but also reveals a dismal view of police-citizen interaction. Even if law enforcement does often respond to protests with excessive force, that is not something courts should accept — or protesters or police should expect — as a given.

And the court’s flawed reasoning is also dangerous for another reason. It means that, in the Fifth Circuit at least, protest leaders can find themselves on the hook for an unlawful act they did not intend, committed by an unidentified person they neither knew nor controlled.

To be clear, the First Amendment typically does not protect someone from liability for breaking the law, even if they did so for political reasons. That means that, had someone sued Mckesson for delaying traffic, he may have been liable. Equally, had the officer sued the individual who threw the object, the officer’s case would have been able to proceed without threatening speech rights. But, in the context of a protest, the allegation that Mckesson unlawfully impeded traffic cannot suffice to make him liable for the independent, unintended act of the object-thrower.

The Supreme Court made this clear in 1982. While the Constitution does not protect violence, the Court held, it does limit the government’s ability to place responsibility for that violence onto peaceful protesters. That seminal civil rights case, NAACP v. Claiborne Hardware Co., has been cited repeatedly to ensure robust speech protections, including to dismiss a lawsuit against then-candidate Donald Trump for violent acts committed at a campaign rally and to challenge efforts to stifle Keystone XL pipeline protests.

The Fifth Circuit’s opinion risks undoing all of that. Under the Fifth Circuit’s theory, a police officer — or, equally, a counter-protester — need only allege that a protest organizer directed or enabled other protesters to do any illegal thing, from overstaying a permit in order to pack up, to pumping the volume up a little too loud, to conducting a sit-in that obstructs access on a sidewalk or constitutes a trespass. Countless potential plaintiffs could argue that their injuries — sprained ankles, broken windows, extreme stress — probably would not have occurred had the protest not been at that place at that time, or had police or counter-protesters not responded as they did.

With these costly risks, who would be willing to lead a protest? And, if, in a court’s view, the likelihood of police presence is enough to make protesters liable for violence, nearly any protest could lead to incalculable damages for organizers. Police presence is expected at the vast majority of protests, especially those that draw large crowds or focus on issues of public controversy.

Had this been the rule throughout our history, those leading this country’s seminal protests — from the celebrated civil rights protests of the 1960s to the anti-war protests of the 1970s — could have faced ruinous lawsuits. And, under the Fifth Circuit’s logic, advocates who were prosecuted for violating laws that, once they reached the Supreme Court, were deemed unconstitutional could equally have been burdened. In other words, the same individuals who established core First Amendment precedent — and who the Supreme Court held could not be criminally prosecuted — could have found themselves facing huge civil judgments for their advocacy, including at segregated lunch counters and libraries.

Thankfully, this isn’t how the Supreme Court has ever looked at rules of liability in the context of protected expression. And the Supreme Court should take this opportunity to make clear that it’s not how it looks at those rules now. Otherwise, we may find our streets much emptier.

Published March 5, 2020 at 10:06PM via ACLU https://ift.tt/39tqiDg from Blogger https://ift.tt/2wzGF2w via IFTTT

#IFTTT #Blogger

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nancydhooper · 4 years

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Will SCOTUS Protect the Right to Protest?

That is why, today, we’re asking the Supreme Court to take the case.

from RSSMix.com Mix ID 8247012 https://www.aclu.org/news/free-speech/our-protest-rights-are-in-the-supreme-courts-hands via http://www.rssmix.com/

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tdshay · 5 years

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Boycotting Israel a Constitutional Right and Personal Obligation – Stephen Lendman Boycotting Israel a Constitutional Right and Personal Obligation by Stephen Lendman (stephenlendman.org – Home – Stephen Lendman) In NAACP v. Claiborne Hardware Co. (1982), a landmark […] Source: Boycotting Israel a Constitutional Right and Personal Obligation - Stephen Lendman

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wolfandpravato · 7 years

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It is actually difficult to define blackmail

Talk of supposed blackmail is in the news, both as to the Kushner/Brzezinski/Scarborough story and the CNN/HanA[––]holeSolo story. The stories are complicated enough that I don’t want to opine on who might or might not be guilty of what there; and of course the stories raise ethical questions as well as legal ones. But I do want to pass along some little-known legal background on the law of blackmail, which is an unusually (and, to some, surprisingly) thorny area.

1. To begin with, at the heart of blackmail law lies what some call the blackmail paradox: Blackmail — which I’ll define here as threatening to reveal an accurate embarrassing fact about a person unless he does what you demand — generally involves (a) threatening to do something that you have every legal right (even a constitutional right) but no legal obligation to do, in order to (b) get someone to do what he has every legal right to do.

It’s clear why we criminalize extortion by threat of violence (pay me or I’ll burn down your business): It’s a threat to do something that you have no right to do. But in the threat, “Pay me $10,000 or I’ll reveal that you had an affair,” all components are legal: He is free to pay you $10,000. You are free to reveal that he had an affair. You are free not to reveal that he had an affair. Yet combine them together as a conditional threat and it’s a crime.

Nor can we resolve this by saying that coercive threats, even threats to do something legal, are generally criminal. “Pay me $10,000 or I’ll stop doing business with you” is perfectly legal (assuming that the threat comes from a sole proprietor, rather than someone lining his own pockets at the expense of his employer). “Pay me $10,000, neighbor, or I’ll sell my house, which is next to yours, to someone you dislike” is perfectly legal, too. Much legitimate hardball negotiation involves threats aimed at getting someone to do something, including threats of financial ruin. It’s just when the threat is to reveal embarrassing information that it becomes blackmail (or, as some statutes label it, coercion or extortion).

Of course, there are lots of possible theoretical and pragmatic responses to this objection; and the law does punish blackmail, though the definition varies from state to state. But the theoretical paradox, and specifically the fact that so much legal and commonplace behavior is very similar to blackmail, causes practical problems.

2. Consider, for instance, this D.C. statute (just as a sample that is representative of many of the broader, more modern statutes):

A person commits the [felony] of blackmail, if, with intent to obtain property of another or to cause another to do or refrain from doing any act, that person threatens: (1) To accuse any person of a crime; (2) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or (3) To impair the reputation of any person, including a deceased person.

Note that the statute applies not just to attempts to get money, but to attempts to coerce other action (or inaction). “Stop seeing my daughter or I’ll tell the police that you stole money from your boss” is a crime.

But, read literally, this would also make it a crime for me to say, “Pay me back the money you stole from me, or I’ll call the police” — something that few, I think, would want criminalized. It would make it a crime to say “Stop seeing my daughter or I’ll tell her that you stole money from your boss.” And it would even make it a crime to say, “Pay back the money you took from me, or I’ll sue you to get it back,” when the lawsuit would tend to subject you to “contempt” (because it would accurately expose you as a thief) or otherwise impair your reputation; yet we actually want to promote that sort of behavior, rather than requiring people to sue in every such case without having a chance to settle the matter beforehand.

Indeed, many courts have said that some such threats are themselves protected by the First Amendment, and state appellate courts in Arizona, Colorado, Oregon and Washington have struck down state blackmail statutes because of this:

Threatening to keep publicizing and condemning a real estate agent’s practices in order to pressure him into changing those practices is constitutionally protected. Organization for a Better Austin, 402 U.S. at 419.

Threatening to keep publicizing and condemning shoppers’ decisions not to comply with a boycott in order to pressure the shoppers into changing their behavior is constitutionally protected. NAACP v. Claiborne Hardware, 458 U.S. at 909-10; see also Eagle Books, Inc. v. Jones, 474 N.E.2d 444, 450 (Ill. Ct. App. 1985) (threats to publicize the identities of pornography buyers were constitutionally protected).

A consumer’s “threaten[ing] a vendor that unless he is given a refund for a defective product he will complain to the Better Business Bureau” is constitutionally protected. State v. Pauling, 69 P.3d 331, 335 (Wash. 2003); State v. Weinstein, 898 P.2d 513, 515 (Ariz. Ct. App. 1995). The same is true when the consumer publicizes his dissatisfaction with plaintiff’s product and implicitly threatens further such publicity unless he gets a refund. E.g., DeGroen v. Mark Toyota-Volvo, Inc., 811 P.2d 443, 446 (Colo. Ct. App. 1991); J.Q. Office Equipment of Omaha, Inc. v. Sullivan, 432 N.W.2d 211, 214 (Neb. 1988).

“A store owner[’s telling] a customer to pay a delinquent bill or else he will report the customer to a credit reporting agency” is constitutionally protected. Weinstein, 898 P.2d at 515.

So is “a mother[’s informing] her former husband that if he does not pay back child support, she will report him to the court where he risks incarceration.” Id.

So is saying, “If you do not withdraw this research report …, I will disclose that you falsified the experiment.” State v. Robertson, 649 P.2d 569, 580 n.13 (Or. 1982).

So is a newspaper reporter’s “tell[ing] a public official [that] if the public official votes a certain way, the reporter will divulge that the public official will gain from the public body’s action.” State v. Steiger, 781 P.2d 616, 621 (Ariz. Ct. App. 1989).

So is a citizen’s “protest[ing] a perceived unlawful arrest by threatening to write a letter to the editor of the local newspaper.” Chaffee v. Roger, 311 F. Supp. 2d 962, 967 (D. Nev. 2004).

So is a citizen’s threatening to continue picketing a store until it stops selling a particular product, such as pornography. Eagle Books, 474 N.E.2d at 450.

Or, as the U.S. Court of Appeals for the 2nd Circuit said in United States v. Jackson, 180 F.3d 55 (2d Cir. 1999) (later reversed but only as to the harmless error analysis) — a case involving a Bill Cosby sex scandal, though not of the sort that we’re hearing about now —

Not all threats to engage in speech that will have the effect of damaging another person’s reputation, even if a forbearance from speaking is conditioned on the payment of money, are wrongful. For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television “on-the-side-of-the-consumer” program. Or a private club may threaten to post a list of the club members who have not yet paid their dues.

3. To solve this problem, courts have generally added a “lack of nexus” element to blackmail statutes. To quote the 2nd Circuit,

There are significant differences between, on the one hand, threatened disclosures of such matters as consumer complaints and nonpayment of dues, as to which the threatener has a plausible claim of right, and, on the other hand, threatened disclosures of such matters as sexual indiscretions that have no nexus with any plausible claim of right.

Likewise, in the words of the Washington Supreme Court (which read such an element into its statute, in order to avoid striking the statute down on First Amendment grounds),

Although a person might have a legal right to collect a judgment, there is no nexus between the exercise of that right and the threat to post embarrassing nude photos on the Internet. On the other hand, a person with a legal right to collect a judgment would have a nexus to a threat to institute garnishment proceedings….

We … hold that it is unnecessary to strike [down the state extortion statute on First Amendment grounds] because we may impose a limiting construction in the form of a requirement that there be a “lack of nexus” that limits its application to only unprotected speech.

Some statutes expressly provide an exemption for attempts to get property by threat of exposure, when the property “was honestly claimed as restitution or indemnification for harm done in the circumstances to which the … exposure … relates, or as compensation for property or lawful services.” Again, that takes care of the “pay me back the money you took, or I’ll sue [or call the police]” scenario.

But while a “lack of nexus” requirement does protect some of the threats that should be protected, it leaves a good deal unclear. “Nexus,” after all, is a vague term (likely deliberately vague).

And that’s especially so when the “claim of right” goes beyond a claim of something that should be coming to you (unpaid club dues, a refund for shoddy goods, the money you are owed under a judgment). Consider, for instance, two examples:

A reporter “tell[s] a public official [that] if the public official votes a certain way, the reporter will divulge that the public official will gain from the public body’s action.”

A reporter telling the official that, if he votes a certain way, the reporter will reveal the official’s extramarital affair. (Assume that the vote has nothing to do with regulation of adultery.)

Example (a), Steiger says, is constitutionally protected, and that’s likely right. Example (b), I think, would be classic coercive blackmail. But there’s no distinction in terms of a reporter’s having a “claim of right” in one situation but not the other — in neither of them does the reporter have any personal legal right that he’s trying to vindicate; in both, the reporter has a First Amendment right to publicize the information in the absence of a threat.

If the law requires an inquiry into whether there’s a “nexus,” that would focus on whether there is an adequate moral connection between the action being threatened and the action being sought. There appears to be such a connection between a politician’s vote and a threatened disclosure that the vote is self-interested — there doesn’t seem to be such a connection between a politician’s vote on, say, an environmental or budgetary bill and a threatened disclosure that the politician is an adulterer.

But this connection is often quite subjective, as any inquiries into moral relevance are. Consider this example:

A reporter telling an official that, if he votes in favor of increased criminal sentences across the board, the reporter will reveal the official’s child pornography habit.

Is there a sufficient “nexus” here that the reporter can avoid being guilty of blackmail, on the theory that there is an adequate moral connection between the threat (exposing an official’s own willingness to commit crime) and the action that the reporter is trying to stop (the strengthening of criminal punishments more generally)?

Or consider these two examples (reminiscent of the stories in the news, but deliberately stylized, since again I’m trying to discuss blackmail law more broadly rather than figure out what the facts were in these cases and how those facts should be interpreted):

A reporter telling a citizen that, if he continues to make certain anonymous statements, the reporter will (or may) reveal the citizen’s identity.

A politician’s assistant telling a reporter that, if the reporter faults the politician for supposedly cheating, the assistant’s friends will reveal the reporter’s own cheating.

How do we apply the “nexus” analysis here?

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/07/06/it-is-actually-difficult-to-define-blackmail/

#Law #Lawyer

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palestinasummer · 5 years

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From Tel Aviv to Tallahassee

{Originally published in Counterpunch 6-21-19}

From Tel Aviv to Tallahassee

“Please take your seat, sir,” said the steward to Governor Ron DeSantis“we will be landing at Ben Gurion Airport shortly.” Snapping his seat-belt firmly into place, the edgy Governor fingered his rosary beads as he wondered, to himself, whether Israeli Jews would have big noses like those of Miami. Do they tan well?…

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neptunecreek · 5 years

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DEEP DIVE: CBP’s Social Media Surveillance Poses Risks to Free Speech and Privacy Rights

The U.S. Department of Homeland Security (DHS) and one of its component agencies, U.S. Customs and Border Protection (CBP), released a Privacy Impact Assessment [.pdf] on CBP’s practice of monitoring social media to enhance the agency’s “situational awareness.” As we’ve argued in relation to other government social media surveillance programs, this practice endangers the free speech and privacy rights of Americans.

“Situational Awareness”

The Privacy Impact Assessment (PIA) states that CBP searches public social media posts to bolster the agency’s “situational awareness”—which includes identifying “natural disasters, threats of violence, and other harmful events and activities” that may threaten the safety of CBP personnel or facilities, including ports of entry.

The PIA aims to inform the public of privacy and related free speech risks associated with CBP’s collection of personally identifiable information (PII) when monitoring social media. CBP claims it only collects PII associated with social media—including a person’s name, social media username, address or approximate location, and publicly available phone number, email address, or other contact information—when “there is an imminent threat of loss of life, serious bodily harm, or credible threats to facilities or systems.”

Why Now?

It is unclear why DHS and CBP released this PIA now, especially since both agencies have been engaging in social media surveillance, including for situational awareness, for several years.

The PIA cites authorizing policies DHS Directive No. 110-01 (June 8, 2012) [.pdf] and DHS Instruction 110-01-001 (June 8, 2012) [.pdf] as governing the use of social media by DHS and its component agencies (including CBP) for various “operational uses,” including situational awareness. The PIA also cites CBP Directive 5410-003, “Operational Use of Social Media” (Jan. 2, 2015), which does not appear to be public. EFF asked for the release of this document in a coalition letter sent to the DHS acting secretary in May.

Federal law requires government agencies to publish certain documents to facilitate public transparency and accountability related to the government’s collection and use of personal information. The E-Government Act of 2002 requires a PIA “before initiating a new collection of information that will be collected, maintained, or disseminated using information technology” and when the information is “in an identifiable form.” Additionally, the Privacy Act of 1974 requires federal agencies to publish Systems of Records Notices (SORNs) in the Federal Register when they seek create new “systems of records” to collect and store personal information, allowing for the public to comment.

This appears to be the first PIA that CBP has written related to social media monitoring. The PIA claims that the related SORN on social media monitoring for situational awareness is DHS/CBP-024 Intelligence Records System (CIRS) System of Records, 82 Fed. Reg. 44198 (Sept. 21, 2017). Given that DHS issued directives in 2012 and CBP issued a directive in 2015 around social media monitoring, this PIA comes seven years late. Moreover, there is no explanation as to why the SORN was published two years after CBP’s 2015 directive, nor why the present PIA was published two years after the SORN.

In March, CBP came under scrutiny for engaging in surveillance of activists, journalists, attorneys, and others at the U.S.-Mexico border, with evidence suggesting that their social media profiles had been reviewed by the government. DHS and CBP released this PIA only three weeks after that scandal broke.

Chilling Effect on Free Speech

CBP’s social media surveillance poses a risk to the free expression rights of social media users. The PIA claims that CBP is only monitoring public social media posts, and thus “[i]ndividuals retain the right and ability to refrain from making information public or, in most cases, to remove previously posted information from their respective social media accounts.”

While social media users retain control of their privacy settings, CBP’s policy chills free speech by causing people to self-censor—including curbing their public expression on the Internet for fear that CBP could collect their PII for discussing a topic of interest to CBP. Additionally, people running anonymous social media accounts might be afraid that PII collected could lead to their true identities being unmasked, despite that the Supreme Court has long held that anonymous speech is protected by the First Amendment.

This chilling effect is exacerbated by the fact that CBP does not notify users when their PII is collected. CBP also may share information with other law enforcement agencies, which could result in immigration consequences or being added to a government watchlist. Finally, CBP’s definition of situational awareness is broad, and includes “information gathered from a variety of sources that, when communicated to emergency managers and decision makers, can form the basis for incident management decision making.”

We have seen this chilling effect play out in real life. Only three weeks before DHS and CBP released this PIA, NBC7 San Diego broke the story that CBP, along with other DHS agencies, created a secret database of 59 activists, journalists, and attorneys whom the government flagged for additional screening at the U.S. border because they were allegedly associated with the migrant caravan. Dossiers on certain individuals included pictures from social media and notations of designations such as “administrator” of a Facebook group providing support to the caravan, indicating that the government had surveilled their social media profiles.

As one lawyer stated, “It has a real chilling effect on people who might go down [to the border].” A journalist who was on the list of 59 individuals said the “increased scrutiny by border officials could have a chilling effect on freelance journalists covering the border.”

EFF joined a coalition letter to the DHS acting secretary about CBP’s secret dossiers. Several senators wrote a follow-up letter [.pdf]. In mid-May, CBP finally admitted to targeting journalists and others at the border, but justified its actions by claiming, without evidence, that journalists had “some level of participation in the violent incursion events.”

CBP’s Practices Don’t Mitigate Risks to Free Speech

The PIA claims that any negative impacts on free speech of social media surveillance are mitigated by both CBP policy and the Privacy Act’s prohibition on maintaining records of First Amendment activity. Yet, these supposed safeguards ultimately provide little protection.

First Amendment

The PIA emphasizes that CBP personnel are trained to “use a balancing test” to determine whether social media information presents a “credible threat”—as opposed to First Amendment-protected speech—and thus may be collected. According to the PIA, the balancing test involves gauging “the weight of a First Amendment claim, the severity of the threat, and the credibility of the threat.” However, this balancing test has no basis in constitutional law.

The Supreme Court has a long line of decisions that have established when speech rises to the level of a true threat or incitement to violence and is thus unprotected by the First Amendment.

In Watts v. United States (1969), the Supreme Court held that under the First Amendment only “true threats” may be punishable. The Court stated that alleged threats must be viewed in context, and noted that in the “political arena” in particular, language “is often vituperative, abusive, and inexact.” Thus, the Court further held that “political hyperbole” is not a true threat. In Elonis v. United States (2015), the Supreme Court held that an individual may not be criminally prosecuted for making a true threat based only on an objective test of negligence, i.e., whether a reasonable person would have understood the communication as a threat. Rather, the defendant’s subjective state of mind must be considered, including whether he intended to make a threat or knew that his statement would be viewed as a threat. (The Court left open whether a recklessness standard would also be sufficient for the speech to fall out of First Amendment protections.)

Additionally, in Brandenburg v. Ohio (1969), the Supreme Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” There, the Court struck down an Ohio law that penalized individuals who advocated for violence to accomplish political reform, holding that the abstract advocacy of violence “is not the same as preparing a group for violent action and steeling it to such action.” In Hess v. Indiana (1973), the Court further clarified that speech that is mere “advocacy of illegal action at some indefinite future time,” is “not directed to any person or group of persons,” and is unsupported by evidence or rational inference that the speaker’s words were “intended to produce, and likely to produce, imminent disorder,” remains protected by the First Amendment. Similarly, the Court in NAACP v. Claiborne Hardware Co. (1982), held that “[a]n advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”

While the PIA states that CBP considers threatening posts to be those that “infer an intent, or incite others, to do physical harm or cause damage, injury, or destruction,” the PIA does not fully embrace the nuances of the Supreme Court’s jurisprudence—and CBP’s balancing test fails to comport with constitutional law. A seemingly threatening social media post may, in fact, be protected by the First Amendment if it is political hyperbole or other contextual facts suggest that the speaker did not intend to make a threat or did not believe that readers would view the post as a threat. Furthermore, a social media post that advocates for violence against CBP facilities or personnel may nevertheless be protected by the First Amendment if it is not directed at any particular person or group, and evidence does not reasonably indicate that the speaker intended to incite imminent violence or illegal action, or that imminent violence or illegal action is likely to result from the speech.

Thus, CBP may be collecting social media information and related PII even when the speech is protected by the First Amendment—contrary to its own policy—and further contributing to the chilling effect of CBP’s social media surveillance program.

Privacy Act

The PIA also mentions the Privacy Act, a federal law that establishes rules about what type of information the government can collect and keep about U.S. persons. In particular, the PIA points to 5 U.S.C. § 552a(e)(7), the prohibition against federal agencies maintaining records “describing how any individual exercises rights guaranteed by the First Amendment.”

Unfortunately, this prohibition is followed by an exception that effectively swallows the rule—that information about First Amendment activity may be collected if it is “pertinent to and within the scope of an authorized law enforcement activity.”

In Raimondo v. FBI, a Privacy Act case currently before the Ninth Circuit, the FBI kept surveillance files for “threat assessments” on two individuals who ran an antiwar website. EFF argued in an amicus brief against an expansive interpretation of the Privacy Act’s law enforcement activity exception in light of modern technology—specifically, given the ease with which law enforcement can collect, store, and share information about First Amendment activity on the internet, such information should not be stored “in government files in perpetuity when the record is not relevant to an active investigation.” We reminded the Ninth Circuit that in MacPherson v. I.R.S. (1986), the court recognized that “even ‘incidental’ surveillance and recording of innocent people exercising their First Amendment rights may have a ‘chilling effect’ on those rights that (e)(7) [of the Privacy Act] was intended to prohibit.”

Raimondo demonstrates the seemingly limitless nature of the law enforcement activity exception, including allowing for the indefinite retention of records of online activism and journalism, activity that is clearly protected by the First Amendment.

Similarly, under this PIA, because CBP follows a “credible threat” assessment not rooted in the First Amendment and the Privacy Act’s law enforcement activity exception can be interpreted broadly, CBP could very well collect and retain information that is protected by the First Amendment.

Unidentified Government Social Media Profiles Pose Risk to User Privacy

The PIA inspires little confidence not only in DHS and CBP’s interpretation of the law related to protected speech, but also in CBP personnel’s ability to follow the agencies’ own policies related to respecting social media users’ privacy.

The PIA states that CBP personnel “may conceal their identity when viewing social media for operational security purposes,” effectively allowing CBP agents to create fake accounts. However, this provision conflicts with DHS’s 2012 directive, which requires employees to “[u]se online screen names or identities that indicate an official DHS affiliation and use DHS email addresses to open accounts used when engaging in social media in the performance of their duties.”

Moreover, if, as according to the PIA, CBP personnel do not engage with other social media users and may only monitor “publicly available, open source social media,” it begs the question: why would a CBP agent need to create a fake account? Public posts or information are equally available to all social media users on a platform. Why would CBP personnel need to conceal their identity before viewing a publicly available post if they are not attempting to engage with a user?

This concern is backed by past practices where DHS agencies used fake profiles and interacted with users during the course of monitoring their social media activity. Earlier this year, journalists revealed that U.S. Immigration and Customs Enforcement (ICE) officers created fake Facebook and LinkedIn profiles to lend legitimacy to a sham university intended to identify individuals allegedly engaged in immigration fraud. There, ICE officers friended other users and exchanged emails with students, thereby potentially bypassing social media privacy settings and gaining access to information intended to remain private.

Such practices not only violate DHS’ existing policies, but also allow law enforcement to obtain access to content that would otherwise require a probable cause warrant. Furthermore, fake profiles violate the policies of several social media platforms. Facebook has publicly stated that law enforcement impersonator profiles violate the company’s terms of service.

Fighting Back

The CBP PIA is just one sliver of a broad federal government campaign to engage in social media surveillance. DHS, through its National Operations Center, has been monitoring social media for “situational awareness” since at least 2010. DHS also has been monitoring social media for intelligence gathering purposes. More recently, DHS and the State Department have greatly expanded social media surveillance to vet visitors and immigrants to the U.S., which EFF and other civil society groups have consistently opposed.

Several congressional committees have the responsibility and the opportunity to review CBP’s budget and provide oversight of the agency’s operations, including its social media surveillance. At a minimum, EFF urges these committees to ensure that CBP is following DHS’ own policies and is reporting, both to Congress and the public, how often officers are engaging in social media monitoring to understand the prevalence and scale of this program. Fundamentally, Congress should be asking why social media surveillance programs are necessary for public safety. Additionally, Congress has the responsibility to ensure that CBP and DHS are abiding by settled case law respecting the free speech and privacy rights of Americans and foreign travelers.

We’re also pushing social media companies to do more when they identify law enforcement impersonator profiles at the local, state, and federal level. Earlier this year, Facebook’s legal staff demanded that the Memphis Police Department “cease all activities on Facebook that involve the use of fake accounts or impersonation of others.” Additionally, Facebook updated its “Information for Law Enforcement Authorities” page to highlight how its misrepresentation policy also applies to police. While EFF applauds these steps, we are skeptical that warnings or policy changes alone will deter the activity. Facebook says it will delete accounts brought to its attention, but too often these accounts only become publicly known—through a lawsuit or a media report—long after the damage has been done. Instead, EFF is calling on Facebook to take specific steps to provide transparency into these law enforcement impersonator accounts by notifying users who have interacted with these accounts, following the Santa Clara Principles when removing the law enforcement accounts, and adding notifications to agencies’ Facebook pages to inform the public when the agencies’ policies permit impersonator accounts in violation of Facebook’s policy.

Please contact your members of Congress and urge them to hold CBP accountable. Congress depends on hearing from their constituents to know where to focus, and public pressure can ensure that social media surveillance won’t get overlooked.

from Deeplinks https://ift.tt/2ZzthFq

#Deeplinks

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thomdunn · 5 years

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A unanimous decision from a Civil Rights–era case, NAACP v. Claiborne Hardware Co., established that it’s legal to be part of a protest in which illegal activity occurs. Unless a protest leader directly orders violence, the Supreme Court said he should be protected by the First Amendment.

Why You Need to Care About DeRay Mckesson's First Amendment Case

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benrleeusa · 5 years

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[David E. Bernstein] Everything You Wanted to Know about Anti-BDS Laws, Part I

Correcting various misperceptions about the scope and constitutionality of laws barring state contractors from boycotting Israel-related people and companies.

I've perhaps never seen as much misinformation and bad legal analysis regarding a given issue than about state laws that require state contractors to certify that they do not boycott Israel or those who do business with Israel, otherwise known as "anti-BDS laws." This has been a product of two factors: first, a thoroughly dishonest campaign against the laws by the American Civil Liberties Union, exaggerated further by anti-Israel bloggers such as Glenn Greenwald, and second, the near-absence of those who support the laws from the debate.

I have not been involved in promoting anti-BDS laws, I am not sure they are a good idea as currently written, and I think the Supreme Court's key relevant decision, Rumsfeld v. FAIR, should have come out the other way, philosophically-speaking if not based on precedent. And from my personal political interest, I'm in a heads-I-win, tails-you-lose position: either boycotts of Israel get treated the same as other discriminatory acts, or the ACLU succeeds in undermining antidiscrimination laws that grate on my libertarian sensibilities by establishing that refusals to deal are subject to First Amendment scrutiny.

So I don't have a strong dog in the fight, but given that I've been appalled at the misinformation campaign launched by the ACLU, I thought I'd correct the record:

Anti-BDS laws do not require anyone to "pledge loyalty to the state of Israel." This is any easy one. They simply don't. This is a lie (not the first one) that originates with Glenn Greenwald, who claimed, in a headline no less, that a Texas anti-BDS laws required a contractor to sign a "pro-Israel oath." Contractors must simply certify that they are not participating in anti-Israel boycotts. They not only don't have to take a pro-Israel oath but are free to criticize Israel as much as they like, donate to anti-Israel campaigns or candidates, and so on.

Anti-BDS laws do not prohibit individuals in their private capacity from boycotting Israel, even if their company has business with a state that has an anti-BDS law. Anti-BDS laws only apply to companies, not to individuals. This gets a bit confusing when it comes to sole proprietorships, but I think it's clear that, say, a computer technician who signs a contract with the state can't refuse to use Israeli-made software for his contract work, but he can refuse to buy Sabra humus for his family dinner.

Anti-BDS laws do not just protect the State of Israel, as such. Many commentators have stated that they don't understand why a foreign government should be given statutory protection from boycotts. The representative Texas law defines a boycott of Israel as "refusing to deal with, terminating business activities with, or otherwise taking any action that is intended to penalize, inflict economic harm on, or limit commercial relations specifically with Israel, or with a person or entity doing business in Israel or in an Israeli-controlled territory, but does not include an action made for ordinary business purposes." First, and importantly, the leading Israeli universities are all public, so banning boycotts of Israel prevent state contractors from boycotting students and faculty of Hebrew University, Tel Aviv University, and so on. Secondly, the laws prohibit state contractors from boycotting organizations that merely do business in or with Israel. This is a much broader category, and would include, for example, the 60% or so of American Jews who have visited Israel.

Pending federal legislation only makes the federal government neutral on state anti-BDS laws. The Senate recently passed a bill that has been widely described by opponents as trampling on freedom of speech. In fact, the Senate bill is a response to the possibility that courts will hold state anti-BDS laws as implicitly preempted by federal policy. By explicitly stating that the federal government does not wish to preempt such state laws, the danger of implied preemption goes away. But the bill doesn't impose any restrictions on anybody, so it can't be threatening anyone's free speech rights. If there is a threat to free speech, it comes from state laws. However:

Boycotts are, according to the Suprme Court, economic action, not speech protected by the First Amendment.

(1) The Supreme Court has several times upheld federal labor law's ban on secondary boycotts, ie a boycott of an employer with which a union does not have a dispute that is intended to induce the employer to cease doing business with another employer with which the union does have a dispute. In those cases, the Court has stated that boycotting a business is not protected by the First Amendment.

(2) There is no analytical distinction between a "boycott" and "refusal to deal." Refusal to deal is obviously a form of discrimination. Imagine, for example, that a state government asked its contractors to sign a pledge that they will not refuse to contract with subcontractors owned by members of protected minority groups. This is obviously constitutionally permissible under current doctrine. If a contractor responded, "but I am exercising my freedom of association" to refuse to deal with, say, contractors owned by African Americans, or "I am boycotting contractors owned by homosexuals to protest same-sex marriage" they would be laughed out of court.

(3) NAACP v. Claiborne Hardware is being misinterpreted. Contrary to at least one district court decision on BDS, the Claiborne Hardware case does not state that engaging in a boycott is constitutionally protected speech; rather, it says that urging others to boycott is constitutionally protected speech. So, a state could not ban individuals or groups from urging people to boycott Israel, and probably could not make such a ban a condition of a state contract. However, it can ask a contractor to certify that it is not boycotting Israel.

The closest Supreme Court case on point, Rumsfeld v. FAIR is a unanimous decision rejecting an analogous free speech/compelled speech argument.

Various law schools refused to allow military recruiters to recruit their law students on the same terms as other employers. In other words, the law schools were discriminating against, refusing to deal with, or boycotting military recruiters. In response, Congress passed the Solomon Amendment. This amendment specified that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose federal funds. Just like those challenging the anti-BDS laws argue that their free speech rights are violated by anti-BDS laws, the law schools in FAIR argued that their free speech rights are violated by the anti-boycott-the-military Solomon Amendment.

The Supreme Court's made short shrift of its argument, in language that is equally applicable to the anti-BDS laws. "Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds. The Solomon Amendment neither limits what law schools may say nor requires them to say anything. Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds. ... As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say."

As for the claim that requiring the law schools to assist with military recruiting constituted compelled speech, "In this case, accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school."

As Eugene has reminded us, while the FAIR case dealt with the disposition of federal funds, the Court's opinion suggested that boycotts/refusals to deal are not protected by the First Amendment, period.

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lodelss · 4 years

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ACLU: Our Protest Rights Are in The Supreme Court’s Hands

Our Protest Rights Are in The Supreme Court’s Hands

That is why, today, we’re asking the Supreme Court to take the case.

Published March 6, 2020 at 03:36AM via ACLU https://ift.tt/39tqiDg from Blogger https://ift.tt/2Ts4IcO via IFTTT

#IFTTT #Blogger

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nancydhooper · 5 years

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In Congress, a Threat to Americans’ First Amendment Right to Boycott

A new bill promotes state laws targeting boycotts of Israel — even though multiple judges have found such laws to be unconstitutional.

The Senate is scheduled to vote Monday on a bill that includes language that would encourage states to pass unconstitutional laws penalizing businesses and individuals who participate in politically motivated boycotts against Israel.

More than two dozen states have adopted such laws in the past four years. Their collective target is the boycott, divestment, and sanctions (BDS) movement, “a global campaign promoting various forms of boycott against Israel until it meets what the campaign describes as Israel’s obligations under international law.’”

The ACLU takes no position on boycotts of Israel or of any other foreign country, but we have long defended the right to boycott. One section of the bill being voted on in Congress, the Combating BDS Act, would encourage states to enact laws that violate that fundamental right.

You don’t need to take our word for it: Federal courts in Kansas and Arizona have blocked state anti-boycott laws on constitutional grounds, and 13 of the country’s most prominent constitutional scholars — including the former deans of Yale Law School and the University of Chicago Law School and the current dean of the UC Berkeley School of Law — just filed a legal brief explaining that these laws violate the First Amendment. As these scholars recognized, “[t]his is an easy First Amendment case” because anti-BDS laws are “clearly directed at the suppression of speech with which the state disagrees.”

Boycotts have played an essential role in American politics from the country’s founding to the present day. The American revolutionaries forged a national identity by boycotting British and Loyalist goods. Abolitionists organized boycotts of domestic and international companies that participated in the slave trade and supported slavery in the United States. Antifascist protesters boycotted Japanese silk during World War II. Civil rights champions famously organized boycotts of segregated businesses. And, in the 1980s, human rights advocates organized a widespread and ultimately successful campaign to boycott apartheid South Africa.

These collective protests are constitutionally protected under the First Amendment. In NAACP v. Claiborne Hardware Co., the Supreme Court in 1982 upheld the right of NAACP activists to hold a mass boycott of segregated businesses in Mississippi to protest racial inequality. The court held that a nonviolent, politically motivated boycott is nothing less than “expression on public issues” which “has always rested on the highest rung of the hierarchy of First Amendment values.” The same could just as easily be said about the boycotts of Israel targeted by these state laws and the Combating BDS Act.

The bill at issue here, S. 1, would not criminalize boycotts of Israel on its own, although Congress has attempted to do that as well. Instead, it would encourage states to create laws that violate the First Amendment. These state laws would require government contractors — including teachers, lawyers, speech pathologists, newspapers and journalists, and even students who want to judge high school debate tournaments — to certify that they are not participating in such boycotts. In other words, they would make people choose between their livelihood and their First Amendment rights. In cases going back to the McCarthy era — when the government required employees to swear that they were not members of the Communist Party or engaged in “subversive” advocacy — the Supreme Court has made clear that the government cannot impose such a choice on its citizens.

The First Amendment dangers posed by these anti-boycott laws are even greater because their sponsors have made it crystal clear that they are designed to silence a particular viewpoint that is critical of Israeli and U.S. policy. As the name declares, the Combating BDS Act and the state anti-boycott laws it seeks to entrench are explicitly directed at a particular political viewpoint critical of Israeli government policies as well as U.S. support for those policies. This violates the core principle of the First Amendment — that the government cannot dictate to its citizens which causes they can and can’t support.

If the government has the power to penalize or outlaw boycotts of Israel today, there is nothing that would prevent it from exercising that power to suppress civil society boycotts against other favored entities tomorrow, whether that’s Planned Parenthood, the NRA, or Saudi Arabia. The ACLU has actively opposed these state anti-boycott bills in state legislatures and in federal courts. We’ve had some early successes, including two federal court victories in Kansas and Arizona.

But the fight is far from over. States are still adopting these laws, and just last week, a federal court in Arkansas concluded that boycotts are protected under the First Amendment only if they seek to vindicate legal rights in the United States. Respectfully, the court got it wrong. The court’s cramped interpretation of the right to boycott would allow the government to outlaw political boycotts of U.S. businesses or foreign governments, many of which have no connection to domestic legal disputes. Such a distinction has no basis in First Amendment law, which protects all political expression regardless of its subject matter or viewpoint. It would also be historically anomalous, given the ubiquity of boycotts on every political issue under the sun.

Fortunately, the Arkansas decision is an outlier, and hopefully it will remain so. But since we can’t always count on the federal courts to protect our rights, it’s more important than ever that lawmakers vote against moving S. 1 forward and get the message: Hands off the right to boycott.

from RSSMix.com Mix ID 8247012 https://www.aclu.org/blog/free-speech/congress-threat-americans-first-amendment-right-boycott via http://www.rssmix.com/

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nancyedimick · 6 years

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When speech criticizing people leads to threats against them

An online speaker sharply criticizes a person or a business. The speaker has a huge, loyal audience, or the speaker’s message strikes a chord with readers who help it go viral. As a result, some tiny fraction — but a large absolute number — of the people who read the message send death threats (or rape threats or the like) to the person being criticized. Can that justify an injunction against continued criticism by the speaker?

This, I think, is part of what’s going on with the Barley House order and with the Eron Gjoni/Zoe Quinn/Gamergate case. The orders didn’t just ban threats, or libel; rather, they banned all further speech (or at least all further social media speech) by the speakers about the people whom they had criticized, e.g.,

Defendants and all persons in active concert with the Defendants … [are barred from] publishing on social media platforms any statements, videos, or images concerning Plaintiffs, their employees, their related entities, and their patrons.

They were thus clearly unconstitutional under existing First Amendment law; even if preventing harm to reputation can justify injunctions against libel, they can’t justify injunctions against all speech (which would include constitutionally protected opinion and accurate factual statements). But my guess is that the judge felt that such categorical bans were necessary in order to prevent a different kind of harm — repeated threats, or perhaps other kinds of misconduct (such as hack attacks).

Now traditional First Amendment law would view such situations through the lens of the incitement exception: If speech is (1) specifically intended to and (2) likely to (3) produce imminent lawless conduct among listeners — i.e., such conduct in the coming minutes, hours or perhaps a few days, as opposed to “at some indefinite future time” — then it is indeed unprotected. But there will rarely be any evidence to prove a specific intent to encourage people to send death threats or engage in other crimes. (Mere knowledge of such a risk isn’t enough.) And that would be especially so as to intent to encourage people to act imminently. “Evil person X is planning on giving a speech in Los Angeles tonight; do what you can, readers, to stop that from happening” might qualify. “X is an evil person, because he’s a fascist / he’s an America-hater / he’s corrupt / he tried to beat me up” would not.

As I noted in my Barley House post, consider NAACP v. Claiborne Hardware Co. (1982), where the organizers of a 1960s boycott of white-owned stores in Port Gibson, Miss., demanded that black customers stop shopping at those stores. The organizers stationed “store watchers” outside the stores to take down the names of black shoppers who were not complying with the boycott. Those names were then read aloud in local churches and printed in leaflets that were distributed to other black residents. Some of the noncomplying shoppers were targeted for criminal conduct for refusing to go along with the boycott. “The testimony concerning four incidents convincingly demonstrates that they occurred because the victims were ignoring the boycott. In two cases, shots were fired at a house; in a third, a brick was thrown through a windshield; in the fourth, a flower garden was damaged.” “The evidence concerning four other incidents is less clear, but again it indicates that an unlawful form of discipline was applied to certain boycott violators”; these four included two beatings and another incident of shots fired into a house.

Yet the court held that these activities were protected by the First Amendment, despite the backdrop of violence and the attempt to use social ostracism to pressure black shoppers to forgo their legal rights to shop at white-owned stores. Though “petitioners admittedly sought to persuade others to join the boycott through social pressure and the ‘threat’ of social ostracism,” the court held, “speech does not lose its protected character … simply because it may embarrass others or coerce them into action.” Both financial liability for such speech and an injunction against the speech were unconstitutional, the court concluded.

But should this rule be changed? Threats against targets of criticism have indeed seemingly become more common as a result of the Internet. It’s not just that Internet speakers have a broad audience — so do newspapers. Rather, it seems to me, there are several causes:

Most importantly, online threats are a much easier form of criminal retaliation than pre-Internet actions — vandalism, physical attacks or even threatening phone calls. Such threats can be made very quickly, with no real planning, travel time or risk of personal physical retaliation by the target, and with only a tiny bit of research (finding the target’s website, finding the target’s Twitter handle in order to tweet a message with an @reference that the target is likely to see, and so on). Unlike threatening phone calls, they can easily be made anonymously, in a way that would take a lot of law enforcement effort to pierce. And people can quickly hear of others who are making threats and may feel relatively safe in piling on.

Many online speakers have unusually loyal readers, with whom the speakers have connected more viscerally than the typical newspaper report, newspaper columnist or even TV host. There is thus a larger fraction of readers who are willing to lash out against the targets of the criticism.

Many online speakers frame things in more emotionally arousing ways than the typical newspaper report does — or, if they don’t (Gjoni’s initial post, for instance, wasn’t particularly outraged or vitriolic), some of their readers may redistribute the posts accompanied with emotionally arousing comments of their own. Such a tone may lead a few readers to be more likely to send threats; and recall that, to get a large volume of threats, all it takes is for a tiny percentage of the readers to react this way.

And, of course, the greater volume of online speech increases the total number of incidents in which this can happen.

Should this lead to greater latitude for injunctions against speech that seems to be prompting threats or other misconduct?

I don’t think so, and here’s why.

1. To begin with, much legitimate, important criticism can lead a few readers to misbehave. Whatever you may think of the net neutrality debates, for instance, surely criticisms of Ajit Pai and other backers of the repeal of net neutrality is constitutionally protected. Can that change simply because Pai has apparently gotten death threats, as has Rep. John Katko (R-N.Y.)? Can criticism of the hunter who killed Cecil the lion be suppressed because the hunter had been getting death threats? Surely not, even if some such threats have happened, and it’s clear that follow-on criticism is likely to lead to more. Should harsh criticism of the police be suppressed if there is evidence that some people who heard them were energized to shoot at police officers as a result? Again, that can’t be so.

But that just shows, it seems to me, that speech can’t be suppressed just because it foreseeably leads to misconduct by some listeners, especially very cheap (for them) misconduct such as electronically sending a threat. Virtually any subject that arouses some people’s emotions — strikes, crime, police abuse, net neutrality, animal rights, abortion and much more — can yield some such threats.

2. Nor can I see a principled, administrable way of distinguishing really valuable criticism that we tolerate despite the risk that some will act badly after hearing it from criticism that it’s okay to suppress because of that risk. (I set aside the existing First Amendment exceptions, such as for defamation — knowingly, recklessly or sometimes negligently false statements of fact that injure a person’s reputation — or for intentional incitement of imminent crime.)

True, in ordinary life we can distinguish credible, thoughtful critics from buffoons and ranters. But the First Amendment law can’t distinguish the speech of serious people from the speech of fools, and say that opinions (or accurate factual statements) said by one class are protected when, said by the other class, they are unprotected. Nor can judges be trusted, I think, to distinguish “fair” from “unfair” criticism, or righteous indignation from unjustified vitriol. See, e.g., Terminiello v. Chicago (1949), Cohen v. California (1971) and many other such cases, which I think are quite correct in holding that speech that appeals to emotions, even in harsh, vulgar or hateful ways, is fully protected.

3. Finally, say that we did have a rule that, for instance, a business (such as Barley House) can get an injunction against criticism when the criticism has supposedly led to anonymous death threats. And say a business is targeted by a wave of legitimate condemnation, prompted by an allegation — even an accurate allegation — that the business’s employees did racist things, or groped female patrons, or mistreated animals, or what have you. And say that this condemnation has not led to threats, but the business knows that, in order to get an injunction against the condemnation, it has to show such threats.

What would stop the business from clandestinely posting the anonymous threats itself, in order to get an excuse to get the injunction? (I’m not at all saying that the Barley House deliberately did this; I’m just pointing out the possible consequences for the future of allowing the injunction on this theory in the Barley House case.) After all, the threats are anonymous. The business is seeking an emergency injunction in a civil case, where there obviously won’t be enough time to investigate whether the threats were actually made or were just planted. Even if the business had called the police, the police will often lack the resources to quickly investigate anonymous emails that might look as though they’ve been sent from other states or even other countries. The defendant speakers will often lack the money or inclination to pay tens or hundreds of thousands of dollars to lawyers who can conduct such an investigation.

The business’s owners will have a huge incentive to cheat on this score, since the criticism might be costing them a huge amount of revenue. And they will have very little reason to fear being found out.

Now maybe you might think that worrying about this sort of chicanery would be far-fetched. But do you think it would be likely that people would forge court orders in order to get Google to deindex Web pages that criticize them? Well, they did, to the tune of more than 65 such orders. How about suing fake defendants in order to get such a court order? One company seems to have been running a business doing this for its clients (possibly without its clients’ knowledge); it appears that they filed at least 25 such suits.

How about enlisting people who will falsely claim that they are the authors of libelous posts, in order to get a court order adjudging the posts to be libelous? About 20 cases that I’ve seen fit this pattern. Plus there are libel lawsuits aimed at deindexing a Web page containing a newspaper article, but which are brought not against the newspaper (which would presumably defend the lawsuit) but against an anonymous commenter who posted on that page — with some indications that the comments were deliberately posted to provide an excuse for the lawsuit. (For more on all this, see these posts.)

So imagine your (or your allies’) speech, critical of some politician, business owner, professor or anyone else, is suppressed because some readers have supposedly sent death threats because of it — or maybe it wasn’t them, but your target (or someone your target hired) faked the threats; neither you nor the judge can really know. For all its limitations, the current speech-protective First Amendment rule avoids that.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/12/04/when-speech-criticizing-people-leads-to-threats-against-them/

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