Five Years Ago

This week in 2019, we looked at the two-sided political attacks on Section 230, while an appeals court issued a strong but easily-misrepresented Section 230 ruling, and the law was also used to begin smackin down a lawsuit from Craig Brittain. A prominent copyright troll ran away when finally challenged, the NY Times was demanding money from Google, and the news was spreading that Amazon Ring cameras are cops. We also wrote yet again about the mismatch in privacy scrutiny given to tech companies and telcos.

Ten Years Ago

This week in 2014, the EFF published a list of the top five lies being spread by NSA defenders, while James Clapper admitted something everyone else had been saying for months, and a former NSA lawyer was trying to disappear Techdirt’s posts about him via the right to be forgotten. Copyright troll Malibu Media was slinging around some wild accusations, and we took a look at the proliferation of bogus broadband astroturf organizations.

Fifteen Years Ago

This week in 2009, fashion designers were starting to realize that fashion copyright would seriously harm their business. The Canadian patent office rejected software and business model patents, video game companies were still complaining about used game sales, and there was a trademark fight over chocolate bunnies. Texas was taking an early swing at terrible internet laws, the recording industry was taking the wrong message from a study about file sharers, and a new website from NetChoice set out to track all the bad proposed internet legislation in America.

We know cops kill dozens of dogs every day. This much has been verified by the US Department of Justice, which called it an “epidemic.” It’s not just anecdotal evidence generated by a handful of court cases.

We also know most cops who kill dogs get away with it, even though multiple courts have ruled that killing a pet is “seizure” under the Fourth Amendment — something that must be supported by probable cause to remain constitutional.

And the cops got away with this killing, too. At least until they reached the appellate level. The lower court saw nothing unconstitutional about killing a dog that no longer posed a threat (if it ever posed a threat at all) to officers because it had already been tased into submission.

The facts of the case — as recounted in the Eleventh Circuit Appeals Court decision [PDF] — raise a lot of questions no police officer or official are willing to answer honestly.

Plowright, a resident of Miami-Dade County, called 911 to report someone trespassing in the vacant property near his home. Miami-Dade police officers Leordanis Rondon and [Sergio] Cordova responded to the call, approaching Plowright’s front door “through a dimly lit driveway.” As Plowright came out to greet the officers, they drew their guns and “immediately began shouting” at Plowright to show them his hands. When Plowright’s dog Niles, an “American Bulldog weighing less than 40 pounds,” entered the scene, the officers ordered Plowright to get control of him. Before Plowright did so, Rondon fired his taser at Niles, sending him “into shock.” Then, “[a]fter the dog was already down from the [t]aser,” Cordova “fired at least two shots from his gun, killing the dog for no reason.” The officers then ordered the “emotionally devast[ated]” Plowright to the ground as Niles “laid dying.”

Let’s start unpacking this. While it’s understandable officers might have exercised caution because the first person they approached on the property might have been the trespasser, it’s just as understandable that Plowright might have confused by being treated as a criminal suspect by the people he had called to report a crime.

Then there’s the order to “control” the dog, which was given to Plowright as soon as the dog appeared. What was not given to Plowright was any time to comply with this order. Officer Rondon tased the dog and Officer Cordova finished the job moments later. Why bother issuing orders if you’re not going to give people time to comply with them? The only thing I can think of is that officers issue orders they know they’re not going to give someone a chance to comply with for the sole reason of generating justification for any acts of violence or rights violation they engage in past that point. “Subject refused to comply,” etc.

Going beyond that, the officers still treated Plowright as a suspect even while tacitly admitting he wasn’t by ordering him to “control” his dog. If they still thought Plowright was the trespasser, they wouldn’t have given this order. They would have neutralized the dog and moved on to the rest of the stuff they did here, like ordering the person to the ground. But here, they tried to have it both ways: they treated Plowright as the owner of the dog (which would mean he was most likely the owner of the property) and as a criminal trespassing suspect by pointing guns at him and ordering him to the ground.

Logically, none of this works out. Fortunately, it didn’t work out for Officer Cordova either, despite his earlier success in the lower court. The immunity he obtained there is stripped away by the Appeals Court, which says it doesn’t even need a case on point to do so. The rights here were so clearly established by other precedent and, you know, common sense, there’s no way the officer could have honestly believed his violent actions were justified.

Here, a reasonable officer would have known that it was unlawful to shoot Niles under the circumstances alleged in the complaint—even without caselaw directly on point. Even a cursory reading of Barrow and Jacobsen reveals that shooting a domestic animal amounts to a seizure, meaning that it is subject to the Fourth Amendment’s reasonableness requirement. And, because the “nature and extent” of such a seizure is so serious, Place tells us that it can be justified only by significant countervailing government interests. Although it is true that “a general standard such as ‘to act reasonably’” will seldom “put officers on notice that certain conduct will violate federal law” given the “intensely fact specific” nature of the inquiry, the facts alleged in Plowright’s complaint take Cordova’s actions “well beyond the ‘hazy border’ that sometimes separates lawful conduct from unlawful conduct.”

Even without these cases, however, Cordova’s conduct was “so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of [his] conduct” should have been “readily apparent to [him], notwithstanding the lack of case law.” Just as “no reasonable officer could ever believe that it was appropriate” to tase a compliant, non-threatening bystander at the scene of an arrest, Fils v. City of Aventura, 647 F.3d 1272, 1276–77, 1292 (11th Cir. 2011), no reasonable officer could ever believe that it was appropriate to shoot an incapacitated, non-threatening domestic animal during a 911 investigation.

That means this case will move forward, rather than be short-circuited by a cop who was too impulsive to keep himself from killing a neutralized “threat,” but suddenly so cognizant of relevant case law he thought he could secure immunity because no cop before him had done the exact same thing he did under the exact same circumstances.

And there may be even more evidence on the way that will undercut Officer Cordova’s testimony. The appeals court decision says “body cam footage or other evidence” may introduce facts that move the officer closer to qualified immunity or favorable verdict. But, given what’s claimed here and the officers’ responses to the lawsuit, chances are any additional information will only make things worse for Officer Cordova.

In addition to the Fourth Amendment violation, the appeals court says the elements of state law are satisfied here. And that means Officer Cordova will also be facing intentional infliction of emotional distress allegations and will not be able to avail himself of immunity at the state level either.

Given this, one would expect a settlement in the near future. Then again, cops are playing with house money, so if the state of Florida considers protecting a cop from the consequences of his unconstitutional actions, this case may still have a bit of run time before it reaches a resolution.

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.

In this week’s round-up of the latest news in online speech, content moderation and internet regulation, Mike and Ben cover:

• Meta says it won’t support suit against major child safety law (Washington Post)
• Obstacles to Autonomy: Post-Roe Removal of Abortion Information Online (Amnesty International)
• Abortion Groups Say Tech Companies Suppress Posts and Accounts (NY Times)
• The Stanford Internet Observatory is being dismantled (Platformer)
• How Politics Broke Content Moderation (Columbia Journalism Review)
• Propagandists are using AI too—and companies need to be open about it (MIT Tech Review)
• The rise and fall of Koo, India’s once-thriving Twitter alternative (Rest of World)
• An Anonymous-Messaging App Upended This High School (WSJ)

This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.

Whether intentional or not, the process for tech companies to fall to the process of enshittification seems to be a very real trend. The term, coined by Cory Doctorow, describes the process by which once good and useful technology platforms devolve to become worse and less useful as the owners of those platforms move on from creating a great user experience and turn instead towards aiming purely at profitability. This typically involves injecting advertisements anywhere possible, or altering useful features via firmware updates, or cutting cost by axing development and support teams. All of this leads to platforms pissing customers off to the point of un-adoption.

And that brings us to Roku. Roku, over recent months, appears to be fully engulfed in the process of enshittification. The platform recently began the process of layering advertisements foisted on customers where there once were none. They’re legal and communications teams are clearly not thinking things through when they pull stuff like sending out a new ToS requirement for already purchased devices with a threat to brick them if users don’t agree.

And now a recent OS update for some Roku TVs has managed to lock in users to a motion-blurring option that they may not even want.

Reports on Roku’s community forums and on Reddit find owners of TCL HDTVs, on which Roku is a built-in OS, experiencing “motion smoothing” without having turned it on after updating to Roku OS 13. Some people are reporting that their TV never offered “Action Smoothing” before, but it is now displaying the results with no way to turn it off. Neither the TV’s general settings, nor the specific settings available while content is playing, offer a way to turn it off, according to some users.

When it works, a signal looks more fluid and, as the name implies, smooth. When it is left on and a more traditional signal at 24 or 30 frames per second is processed, it works somewhat too well. Shows and films look awkwardly realistic, essentially lacking the motion blur and softer movement to which we’re accustomed. Everything looks like a soap opera or like you’re watching a behind-the-scenes smartphone video of your show. It’s so persistent an issue, and often buried in a TV’s settings, that Tom Cruise did a whole PSA about it back in 2018.

If you’ve ever played around with your TVs image settings, you know all about this sort of thing. Motion blurring may have its uses, but it tends to come up as a topic when people are watching content that has fast movement on the screen, particularly with watching sports. The viewing experience suddenly looks janky, like you’re watching the screen pan in a way that makes everything look slightly fake by, ironically, looking too real compared with the rest of the content.

It can be a major frustration for those looking for the best viewing experience. So suddenly pushing out an update that locks in customers to this option they may not want is, well, certainly a choice. It would be as though you couldn’t adjust the image brightness or color scheme settings to make it the best experience for your particular device in your particular home.

Now, I have no doubt that this was done in error and that Roku will put in a fix for this. But that isn’t really the point. Roku is going down a road that often leads to ruin, simply because it’s paying less attention to the experience of its customers and instead focusing only inward.

Reminding everyone that racism is just a thing we do in the United States, six Rankin County deputies were indicated on criminal charges related to the literal torture of two black men. All six pleaded guilty. Deputy Hunter Elward was sentenced to 17.5 years in prison. The other officers are also currently serving prison time.

This all began because a “helpful” Mississippi resident called the cops because they had witnessed the most Mississippi of crimes: black men hanging out with a white woman. What went on from there not only chills the blood, but triggers the gag reflex:

During a search of the house, OPDYKE kicked in the padlocked door to the front bedroom. Inside, he found a white-flesh-toned dildo and a BB gun. OPDYKE mounted the dildo on the end of the BB gun and brought the dildo to the living room, where M.J. and E.P. were handcuffed and seated on the couch. OPDYKE forced the dildo into the mouth of E.P., and attempted to force the dildo into the mouth of M.J.

[…]

DEDMON forced M.J. and E.P. onto their knees with their backs to DEDMON, and DEDMON threatened to anally rape M.J. and E.P. with the dildo. DEDMON grabbed the back of M.J.’s pants and moved the dildo toward M.J.’s backside, but DEDMON stopped when he noticed that M.J. had defecated himself.

[…]

M.J. and E.P., still handcuffed, were forced onto their backs on the floor of the living room. ELWARD held them down, and DEDMON poured milk, alcohol, and chocolate syrup on their faces and into their mouths, forcing M.J. and E.P. to involuntarily ingest [these fluids]; and DEDMON poured cooking grease on E.P.’s head.

[…]

Pointing out that M.J. and E.P. had been tased by both RCSO-issued tasers and an RPD-issued taser, the defendants decided to test their tasers on M.J. and E.P. to see which one was more powerful.

At this point, DEDMON, MIDDLETON, HARTFIELD, and ELWARD tased M.J. and E.P. repeatedly: ELWARD’s taser was discharged 8 times, HARTFIELD’s taser was discharged 5 times, and DEDMON’s taser was discharged 4 times.

[…]

ELWARD surreptitiously removed a bullet from the chamber of his gun.

ELWARD forced M.J. onto his knees, stuck the gun in M.J.’s mouth, and pulled the trigger. The unloaded gun clicked but did not discharge.

ELWARD racked the slide, intending to dry-fire a second time. When ELWARD put the gun back into M.J’s mouth and pulled the trigger, the gun discharged. The bullet lacerated M.J.’s tongue, broke his jaw and exited out of his neck.

I want to set the scene for what’s been happening since then. The six members of the self-proclaimed “Goon Squad” are all now facing jail time. The sheriff who oversaw this group (and by “oversaw,” I mean “ignored”) has not only received a raise that makes him the highest paid law enforcement official in the state, but is now pretending he’s capable of cleaning this mess up.

And who better to do this than the sheriff who, in 2014, abused the subpoena process to dig up info on his girlfriend. He presented a subpoena for phone records to the local DA under the pretense that he was requesting general info to present to a grand jury. But the phone records request targeted his girlfriend (who was cuurently married to someone else) and the school employee the sheriff believed she was romantically involved with. An investigation was opened, but it dead-ended after the chairman of the (LOL) House Committee on Ethics recused himself because of his “years-long friendship” with the sheriff. It was then passed on to the state attorney general who simply decided not to pursue it.

Another bombshell of bad press has rocked the Rankin County Sheriff’s Department still run by ethically-challenged sheriff Bryan Bailey. A collaborative report produced by the New York Times and Mississippi Today uncovered messages sent between deputies in the “Goon Squad” WhatsApp group.

As can be assumed from the description of the atrocities committed by Goon Squad members in the only case they’re currently facing prison time for, the contents of these messages is more of the same:

Some of the messages discuss brutalizing and demeaning suspects, as well as exchanging disturbing crime scene photos and pictures of “rotting corpses,” the report said.

In one exchange from a 2022 domestic violence arrest, then-Deputy Hunter Elward wrote, “Did you Tase him in the face!?”

Fellow Goon Squad member Daniel Opdyke asked if they had shocked the man in the anus.

Another deputy said the suspect would have “gotten more lovings,” seeming to indicate they held back because of potential witnesses, saying, “All the neighbors were outside watching.”

Chat members also “discussed taking nude pictures of a woman they had arrested,” the Times reported.

Another exchange discusses deputies getting “points” for shooting someone.

One member of this chat group has already opted for the “locker room talk” defense popularized by convicted felon Donald Trump:

One member of the group chat, who no longer works for the sheriff’s department, called his messages “absolutely all jokes,” in an interview with the New York Times.

Huh. Well, they don’t look like “jokes.” Jokes are supposed to be funny. Were these messages only funny because they were true? Because, given what’s reported, the “jokes” referenced acts of violence Goon Squad members actually committed. If these were jokes, they were in-jokes that were only funny in the context of habitual acts of torture and violence committed by members of the Goon Squad group.

The state should be jumping in here to take the lead on an independent investigation of the members of this chat group. But it hasn’t done that, which has allowed none other than Sheriff Bryan Bailey to get a head start on exonerating himself, if not the rest of chat group participants not currently serving federal prison time.

The Rankin County Sheriff’s Office says it will conduct a review and analysis after a Wednesday report from The New York Times and Mississippi Today detailed messages in an encrypted WhatsApp group chat between known “Goon Squad” members and other law enforcement officers, some of whom are still employed by the county.

[…]

Neither the department nor Sheriff Bryan Bailey “knew of the existence of ‘a shift of officers who called themselves the ‘Goon Squad’ until a bill of information was filed in federal court,” the sheriff’s office statement said.

Bullshit. If the sheriff was truly unaware of the existence of a “Goon Squad” or the violent tactics of its members, he’s either incompetent or a liar. The acts committed by these officers were not the acts of officers who went a little off the rails when dealing with violent or extremely hostile arrestees. These are the acts of officers who felt truly comfortable torturing their fellow human beings, secure in the knowledge they would most likely get away with it — either because their boss was bad at his job or was willing to ignore their criminal acts. Neither is a good look for the person who’s supposed to be on top of everything happening in his department.

If Sheriff Bailey actually cared about this, he would have asked for an outside law enforcement agency to handle this “review and analysis.” If the state cared at all about this, it would have already initiated an independent investigation utilizing its Inspector General’s office or, at the very least, the Mississippi Bureau of Investigation. Although the latter is still a law enforcement agency and just as prone to look for reasons to exonerate fellow officers, it still wouldn’t be the extremely compromised Sheriff Bailey pretending he can provide a competent investigation of stuff he was either too stupid or too corrupt to notice despite running this department for more than a decade.

For not the first time, the Supreme Court seems to regard the First Amendment as secondary when it comes to cases involving some form of intellectual property. This has happened all too frequently. Perhaps most famously, in Eldred v. Ashcroft, the Court more or less said that the First Amendment gets a pass in copyright cases, so long as fair use exists as a sort of (rarely used) vent.

More recently, we wrote about how the Supreme Court seemed to forget about the First Amendment entirely in the Andy Warhol Foundation case.

It just seems way too easy for the Court to somehow dance around the First Amendment when it comes to copyright law, and sometimes that extends to other areas as well. Often that’s because the First Amendment and the tests it already gives us are kind of inconvenient if they were applied properly.

Last summer, we wrote about the Vidal v. Elster case, which the Supreme Court decided on Thursday.

In this case, Steve Elster tried to register a trademark on the phrase “Trump too small” and it was rejected, based on a part of the Lanham Act that bars trademark registrations on the names of living people. For some, the case was reminiscent of Matal v. Tam, the case about the band “The Slants” not being able to get a trademark on their name, because it was deemed to be disparaging, and the USPTO would not issue disparaging trademarks under the Lanham Act.

In that case, the Court found that the Disparagement Clause of the Lanham Act violated the First Amendment. So, some thought that the “no living people” part of the Lanham Act might be similarly voided by the First Amendment. As we pointed out last year, building on an argument made in an amicus brief from Public Citizen, was that it was important not to get too caught up in whether or not the First Amendment voided the clause, but rather to make sure the court thought more broadly about what the First Amendment supported more broadly regarding speech.

And that’s because trademark law, in some ways, is in conflict with the concept of free speech. It is literally giving trademark holders at least some ability to limit the speech of others. So, in some cases, you could argue that large parts of trademark law are potentially against the First Amendment. The way to get around this is to view trademark law the way it should naturally be used: as a consumer protection law where the only issue is about protecting consumers from products that falsely claim to be from one company.

Public Citizen argued that no one should be barred from using the phrase “Trump Too Small,” because it was “core political speech.” Therefore, the First Amendment argument shouldn’t be that the “living people” clause was unconstitutional, but that this phrase specifically, as political speech, should be denied a trademark on First Amendment grounds.

Unfortunately, the Supreme Court decided to make this… messy. I mean:

THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court, except as to Part III. ALITO and GORSUCH, JJ., joined that opinion in full; ROBERTS, C. J., and KAVANAUGH, J., joined all but Part III; and BARRETT, J., joined Parts I, II–A, and II–B. KAVANAUGH, J., filed an opinion concurring in part, in which ROBERTS, C. J., joined. BARRETT, J., filed an opinion concurring in part, in which KAGAN, J., joined, in which SOTOMAYOR, J., joined as to Parts I, II, and III–B, and in which JACKSON, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment, in which KAGAN and JACKSON, JJ., joined.

Clear as mud.

In short, all the Justices agree that the First Amendment does not restrict a prohibition on giving trademarks on the names of living people. But they really don’t agree to why the First Amendment works that way. Some point to history and tradition, while others point to existing First Amendment tests.

So only part of the opinion is actually agreed upon by enough Justices to make it matter. It starts out okay, highlighting how the court has, reasonably, in the past tossed out rules that discriminate based on viewpoints.

In the trademark context, we have twice concluded that trademark restrictions that discriminate based on viewpoint violate the First Amendment. In Matal v. Tam, 582 U. S. 218, 223 (2017), we held that the Lanham Act’s bar on disparaging trademarks violated the First Amendment. All Justices in Tam agreed that this bar was viewpoint based because it prohibited trademarks based only on one viewpoint: “[g]iving offense.” Id., at 243 (plurality opinion); see also id., at 248–249 (Kennedy, J., concurring in part and concurring in judgment). And, in Brunetti, we held that the Lanham Act’s bar on trademarks containing immoral or scandalous matter likewise violated the First Amendment. 588 U. S., at 390. We concluded that the bar was viewpoint based because it prohibited trademarks based only on one viewpoint, immoral or scandalous matter, while permitting trademarks based on other viewpoints.

But, they note:

The names clause does not facially discriminate against any viewpoint

The court notes, as it has done before, that the entire concept of trademarks should be deemed constitutional. This is because they date back to the time of the Constitution and no one argued that they violate the First Amendment. But, as part of the history lesson, the Court explains that there have always been some limitations on trademarks:

This first law contained prohibitions on what could be protected as a trademark. For example, the law would not protect a trademark that contained “merely the name of a person . . . only, unaccompanied by a mark sufficient to distinguish it from the same name when used by other persons.” Id., at 211. It thus restricted a trademark based upon its content (i.e., whether it contained more than a name). As trademark disputes increased, courts continued to assess trademarks based on their content. For example, this Court’s first trademark decision explained that a trademark cannot consist of a purely geographical name, rejecting an attempt by one of several coal producers in Pennsylvania’s Lackawanna Valley to trademark “Lackawanna coal.” Canal Co. v. Clark, 13 Wall. 311, 321 (1872). Throughout its development, trademark law has required content-based distinctions.

And thus, the Supreme Court basically looks to punt on the larger issues:

We have acknowledged that trademark rights and restrictions can “play well with the First Amendment.” Jack Daniel’s, 599 U. S., at 159 (internal quotation marks omitted). In this case, we do not delineate an exhaustive framework for when a content-based trademark restriction passes muster under the First Amendment. But, in evaluating a solely content-based trademark restriction, we can consider its history and tradition, as we have done before when considering the scope of the First Amendment.

And, based on that, they say the restriction on names is probably fine, again pointing to history.

Recognizing a person’s ownership over his name, the common law restricted the trademarking of names. It prevented a person from trademarking any name—even his own—by itself. In “the early years of trademark law,” courts recognized that “there can be no trade-mark in the name of a person, because . . . every person has the right to use his own name for the purposes of trade.” 2 McCarthy §13:5 (internal quotation marks omitted); see also Restatement §14, Comment e (“[A]t early common law, the recognition of an unencumbered right to use one’s name in trade effectively precluded the existence of trademark or trade name rights in personal names”); W. Browne, Law of TradeMarks §206, p. 219 (2d ed. 1885) (“The rule is, that a man cannot turn his mere name into a trade-mark”); McLean v. Fleming, 96 U. S. 245, 252 (1878) (explaining that a person cannot obtain “the exclusive use of a name, merely as such, without more”).

The common law did, however, allow a person to obtain a trademark containing his own name—with a caveat: A person could not use a mark containing his name to the exclusion of a person with the same name. “A corollary of the right to use one’s own name and identity in trade is the right to stop others from doing so—at least those who don’t share the same name.” J. Rothman, Navigating the Identity Thicket, 135 Harv. L. Rev. 1271, 1306 (2022); see also Treadway 143–144. In other words, a person’s right to his name cannot be exclusive as to other people bearing the same name: John Smith cannot acquire a trademark that prohibits other John Smiths from using their own names. See McLean, 96 U. S., at 252 (“[H]e cannot have such a right, even in his own name, as against another person of the same name, unless such other person uses a form of stamp or label so like that used by the complaining party as to represent that the goods of the former are of the latter’s manufacture”); accord, Brown Chemical, 139 U. S., at 542; MeNeely v. MeNeely, 62 N. Y. 427, 432 (Ct. App. 1875); see also Treadway 143; accord, post, at 10 (opinion of BARRETT, J.). Consider the case of John L. Faber and John H. Faber, two men who independently manufactured lead pencils near Nuremberg, Germany. Both men stamped the pencils they manufactured with their shared surname. After recognizing that each man “had the right to put his own name on his own pencils,” the New York Supreme Court declined to allow one man to effectively trademark the other man’s name.

And thus:

We conclude that a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that tradition. Though the particulars of the doctrine have shifted over time, the consistent through line is that a person generally had a claim only to his own name. The names clause reflects this common-law tradition by prohibiting a person from obtaining a trademark of another living person’s name without consent, thereby protecting the other’s reputation and goodwill.

And… for the most part, it’s hard to argue with that point, which is why everyone agrees. It’s just that they all seem to agree for different reasons. And that creates a bit of a mess for thinking through the First Amendment.

Because, from there we get a bunch of concurrences and arguments over the specifics, which really shows how much of a mess trademark law is when it comes to the First Amendment. It’s not clear what is being protected or why. It’s not clear who is getting a benefit or why. And it’s certainly not clear what kind of test the courts should use going forward in looking over similar questions.

The various concurrences only drive home that point.

Kavanaugh thinks the history lesson is unnecessary and the same ruling can be made based on other tests. Justice Barrett also feels the history lesson is not just unnecessary, but potentially cherry-picks arguments. Rather, she feels that existing First Amendment tests bring us to this conclusion (Kagan agrees, while Sotomayor and Jackson agree to parts of it).

Sotomayor writes separately (which Kagan and Jackson signed onto) to make a similar point, again pointing out that we don’t need the history lesson and can come to the same conclusion just using First Amendment precedent.

This case involves a free-speech challenge to a viewpoint-neutral, content-based condition on trademark registration. In deciding how to evaluate this kind of challenge, the Court faces two options: Either look only to the history and tradition of the condition, or look to trademark law and settled First Amendment precedent. The first option, which asks whether the history of a particular trademark registration bar plays well with the First Amendment, leads this Court into uncharted territory that neither party requests. The other guides it through well-trodden terrain. I would follow the well-trodden path.

But… none of this gets to the underlying point that we (and Public Citizen) talked about last year regarding why core political speech shouldn’t be eligible for a trademark in the first place, because the trademark creates a way to suppress the political speech of others. That just doesn’t even get addressed.

Which is too bad.

Demand for Python is booming in the job market and it is a skill that can help you enter some of the most exciting industries, including data science, web applications, home automation, and many more. The 2024 Python for Software Engineering Bootcamp Bundle has 7 courses to take you from beginner to expert in no time. It’s on sale for $25.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Certain government agencies are of the opinion that records requesters shouldn’t even be able to pry the documents they’re seeking from their cold, dead fingers. Long after anyone could be affected and long after the people who’ve created the documents have passed on to the Great Bureaucracy in the Sky, agencies are still refusing to relinquish paperwork that’s long past its (and its creators’) expiration date.

The CIA has been battling a FOIA request in court, using the unlimited amount of time and money it has at its disposal. At the center of the battle is a single memo that was written in 1989, shortly after the fall of the Berlin Wall and the eventual collapse of the USSR. Somehow, this document is too sensitive to be released to the public even though it has already been (mostly) released to the public. (h/t Short Circuit)

Here’s the background on the document, as recounted by the DC Circuit Court of Appeals in its decision [PDF]:

In 1983, during the Cold War, Leonard H. Perroots, then an Assistant Chief of Staff for Intelligence in the United States Air Forces in Europe, allegedly recommended a course of action to his Commander in response to an elevated alert status demonstrated by the military forces of the Union of Soviet Socialist Republics (“Soviet Union”), which helped avert a nuclear crisis. Subsequently, in January 1989, Lieutenant General Perroots wrote an End of Tour Report Addendum (“Perroots Memo”) to detail the “chain of events” from 1983 to help the U.S. Intelligence Community learn lessons “as relates to our [Indications and Warning] capability and exercise planning.”

Thirty-two years later, the National Security Archive (which is not a government entity, despite its pretty official-sounding name) sent the CIA an FOIA request for the Perroots’ 1989 memo. The CIA refused to hand over the memo itself, but gave the National Security Archive the memo’s cover letter, which did not even come close to fulfilling the request, much less the Archive’s desire to obtain the memo. The Archive sued the CIA, leading to this appeal.

But between the creation of the memo (1989) and the Archive’s request and ensuing litigation (2021), the CIA made the Archive aware of the existence of this document by pretty much publishing the memo in full.

In February 2021, the United States Department of State (“DOS”) published a transcribed version of the Perroots Memo in a volume of the Foreign Relations of the United States (“FRUS”) series documenting 1981–1988.

In order to engage in this publication, the State Department needed to get it declassified by the CIA. Those are the rules, and by the “rules,” I mean federal law. The State Department published the transcription, accompanied by a citation to its CIA source, as well as a written “thank you” to CIA staff for assisting in the declassification review.

The obvious point of the Archive’s request was to compare the transcription published by the State Department with the original memo. There may have been zero difference between the two. But we’ll perhaps never know because the CIA (the agency that apparently assisted the State Dept. with a declassification review) claims the document mostly made public more than 32 years after it was written is still far too sensitive to be turned over to the National Security Archive.

You would think the presumption of disclosure, the prior publication of the declassified transcription, and the age of the document itself would weigh in favor of the Archive. But you’d be wrong. Some secrets get to remain secrets forever, even if they’re (1) barely secret, (2) old enough to start worrying about 401(k) contributions, and (3) of significant historical interest.

The lower court took a look at the Archive’s case and the CIA’s counterarguments and decided to give the government the benefit of the doubt. Nothing has improved by moving up the judicial ladder. The CIA will get to keep its secrets even if it’s extremely improbable there’s anything in there of national security value.

While the DC Appeals Court agrees the Archive suffered a “concrete injury” when the CIA refused to release the original memo, it says the transparency-focused entity will just have to walk it off. It says the official acknowledgement of the document doesn’t prevent the CIA from using FOIA exemptions related to executive orders to refuse to release it. Nor does its apparent cooperation with the State Department in the release of the memo transcription change the FOIA equation.

According to its own previous rulings (which have been largely shaped by litigation involving agencies like the CIA due to the DC Circuit being the most common forum for federal entity targeting FOIA lawsuits), the government can both make a document public and refuse to release pretty much the same document when hit with a FOIA request.

As we have emphasized in our precedent, the mere public disclosure of information does not eliminate potential risks posed by further disclosure to national security interests—and cannot overcome an otherwise valid FOIA exemption.

Supposedly, there are still some secrets in this mostly public document. The National Security Archive doesn’t know what those might be. Neither does the general public. We just have to take the court’s word for it, along with the assertions made by the CIA directly to the judge in the lower court, which weren’t even about the presence of any sensitive info:

We reject these contentions because the record, as observed by the district court, contains classified, supplemental, ex parte, and in camera declarations which establish that the CIA was not involved in the disclosure of the Perroots Memo.

That’s it. That’s all the CIA did. It told the lower court it did not actually help the State Department with a declassification review of the Perroots Memo. Because it (allegedly) did not assist in declassification, it could still consider the memo “classified” and avail itself of multiple FOIA exemptions. The fact that the CIA did nothing to prevent the State Department from publishing a transcription of the memo suggests it had nothing it needed to keep the public from seeing. But when asked for the same document, it played hardball and managed to obtain a ruling saying it can continue to blow off future requests for this memo in seeming perpetuity.

This is a ridiculous outcome. The only way this can be overturned is if the National Security Archive can convince the Supreme Court that’s something worth doing. Considering there’s only a single memo at stake here, it seems unlikely to be something the nation’s top court would be interested in resolving. As it stands now, the CIA is free to invoke FOIA exemptions to withhold documents that are not only decades old, but have been released publicly in one form or another previously. That’s a big win for completely pointless opacity, which seems to be the kind of opacity national security related agencies tend to prefer.

Telecom lobbyists have been working overtime for years in both the US and EU, trying to get policymakers to support the idea of “Big Tech” paying “Big Telecom” billions of additional dollars for no coherent reason.

This taxation effort always involves some variant of the claim that popular tech services are getting a “free ride” on the Internet, so it’s “only fair” that they help pay telecom giants for broadband expansion.

But what’s usually portrayed as a good faith adult effort to bridge the digital divide is, however, a several decade old quest by telecom monopolies to force tech companies to pay them billions of dollars in additional subsidies they haven’t earned and most certainly don’t deserve. Especially since they routinely waste or abuse the billions in taxpayer dollars they’ve already received.

With the recent death by Trumpublicans of a low income COVID broadband discount program, the opportunists at AT&T and other telecoms are ramping up these efforts once again. In several filings spotted by Ars Technica, US Telecom, primarily backed by AT&T, once again trots out the claim that tech giants are somehow freeloaders that should be subsidizing broadband:

“Through focusing on the Big Tech companies who benefit most from broadband connectivity, the Commission will fairly allocate the burden of sustaining USF.”

The FCC’s Universal Service Fund helps fund rural and school broadband expansion, and is primarily funded by a levy on traditional phone lines, which are obviously in decline. To shore up the program, there’s been a push to include a small tax on broadband and wireless lines, which the telecom industry opposes because it would only boost consumer annoyance at already high prices.

Instead, they consistently prefer that the levy be offloaded to tech companies, under the pretense that they’ve been freeloading. Except in U.S. telecom, nobody gets a “free ride.” Decades of consolidation and monopolization ensures that there’s muted competition, in turn ensuring that everybody pays significantly more than the developed nation average for broadband access. Tech companies included.

Here’s the thing: tech companies already pay billions of dollars annually not only for bandwidth, but for their own cloud, CDN, transit, undersea cable, and other infrastructure. Google technically is already a broadband provider when you factor in Google Fi (wireless) and Google Fiber.

Here’s the other thing: there’s nothing about this telecom lobbying effort that’s good faith, even though the news outlets that cover it can’t help but treating it as such.

Telecom is an industry that has waged a relentless, multi-decade war on both regulatory oversight and competition, ensuring that U.S. broadband prices are sky high. If policymakers truly cared about broadband affordability, they’d take aim at corruption and monopolization in telecom.

But that would involve standing up to telecoms patriotically tethered to our domestic intelligence and first responder networks. So instead, we basically throw billions of dollars at telecom giants in exchange for unaffordable fiber networks that are routinely left half completed.

So again, before policymakers expand the contribution base to this lazy subsidy parade, it makes a lot of sense to start implementing significant reforms. Including a survey of numerous school subsidy programs companies like AT&T have been accused of ripping off for decades. Do an honest audit there, then come back to consider expanding any telecom subsidy investment base.

It’s not that having big tech pay some amount of money to genuinely fund broadband expansion is the worst idea ever conceived. It’s that the telecom companies proposing this idea envision a program where they get billions in additional poorly managed dollars managed by feckless bureaucrats who lack the backbone to ensure this money actually goes where it’s supposed to.

In the EU, one big telecom proposal involves directly taxing tech companies that that account for over 5 percent of a telco’s average peak traffic. That plan includes no government involvement or oversight — just a massive wad of cash thrown annually at telecoms with minimal accountability. This is their ideal vision: just billions in unaccountable dollars and euros funneled from tech to telecom under the pretense of progress.

If Trump wins the Presidency, I think there’s an extremely good chance the FCC finally makes the telecom tax on big tech come true. Likely under the guidance of Commissioner Brendan Carr (who has never seen an AT&T idea he didn’t like). That we should reform and audit the billions in regulatory favors and subsidies already thrown at companies like AT&T curiously never enters into frame.

A lot of laws have been passed in Europe that regulate the content American companies can carry. Most of these laws were passed to tamp down on speech that would be otherwise legal in the United States, but not so much in Europe where free speech rights aren’t given the same sort of protections found in the US.

Since most of the larger tech companies maintained overseas offices, they were subject to these laws. Those laws targeted everything from terrorist-related content to “hate speech” to whatever is currently vexing legislators. Attached to these mandates were hefty fines and the possibility of being asked to exit these countries completely.

Of course, the most important law governing content takedown demands was passed much, much earlier. I’m not talking about the CDA and Section 203 immunity. No, it’s a law that required no input from legislators or lobbyists.

The law of unintended consequences has been in full force since the beginning of time. But it’s never considered to be part of the legislative process, despite hundreds of years of precedence. So, while the consequences are unintended, they should definitely be expected. Somehow, they never are.

And that brings us to this report [PDF] from The Future of Free Speech, a non-partisan think tank operating from the friendly confines of Vanderbilt University in Tennessee. (h/t Reason)

Legislators in three European countries have made many content-related demands of social media services over the past decade-plus. The end result, however, hasn’t been the eradication of “illegal” content, so much as it has been the eradication of speech that does not run afoul of this mesh network of takedown-focused laws.

When you demand communication services respond quickly to vaguely written laws, the expected outcome is exactly what’s been observed here: the proactive removal of content, a vast majority of which doesn’t violate any of the laws these services are attempting to comply with.

This analysis found that legal online speech made up most of the removed content from posts on Facebook and YouTube in France, Germany, and Sweden. Of the deleted comments examined across platforms and countries, between 87.5% and 99.7%, depending on the sample, were legally permissible.

Equally unsurprising is this breakdown of the stats, which notes that Germany’s content removal laws (which have been in place longer and are much more strict due to its zero-tolerance approach to anything Nazi-adjacent) tend to result in highest percentage of collateral damage.

The highest proportion of legally permissible deleted comments was observed in Germany, where 99.7% and 98.9% of deleted comments were found to be legal on Facebook and YouTube, respectively. This could reflect the impact of the German Network Enforcement Act (NetzDG) on the removal practices of social media platforms which may over-remove content with the objective of avoiding the legislation’s hefty fine. In comparison, the corresponding figures for Sweden are 94.6% for both Facebook and YouTube. France has the lowest percentage of legally permissible deleted comments, with 92.1% of the deleted comments in the French Facebook sample and 87.5% of the deleted comments French YouTube sample.

This isn’t just a very selective sampling of content likely to be of interest to the three countries examined in this report. Nearly 1.3 million YouTube and Facebook comments were utilized for this study. It’s a relatively microscopic in terms of comments generated daily by both platforms but large enough (especially when restrained to three European countries) to determine content removal patterns.

The researchers discovered that more than half the comments removed by these platforms under these countries’ laws were nothing more than the sort of thing that makes the internet world go round, so to speak:

Among the deleted comments, the majority were classified as “general expressions of opinion.” In other words, these were statements that did not contain linguistic attacks, hate speech or illegal content, such as expressing the support for a controversial candidate in the abstract. On average, more than 56% of the removed comments fall into this category.

So, the question is: are these policies actually improving anything? More to the point, are they even achieving the stated goals of the laws? The researchers can’t find any evidence that supports a theory that collateral damage may be acceptable if it helps these governments achieve their aims. Instead, the report suggests things will continue to get worse because the geopolitical environment is in constant flux, which means the goalposts for content moderation are similarly always in motion while the punishments for non-compliance remain unchanged. And that combination pretty much ensures what’s been observed here will only get worse.

[M]oderation of social media is understood by several countries as a delicate balance between freedom of expression, security, and protection of minorities. However, recent events and geopolitical developments could disrupt this perceived balance. National security concerns have caused governments to try to counter misinformation and interference from hostile nations with blunt tools. Additionally, but without making any definitive conclusions, there is some indication that legislation, such as the NetzDG, aimed at strengthening citizens and granting them certain rights, has the unintended effect of encouraging social media platforms to delete a larger fraction of legal comments. This is a preview into the potential impact of the EU’s DSA now in force on freedom of expression.

The report is far kinder in its observations than it probably should be. It says multiple EU governments “understand” that content moderation is a “delicate balance.” That rarely seems to be the case. This report makes it clear that content moderation at scale is impossible. But when companies point this out, regulators tend to view these assertions as flimsy excuses and insist this means nothing more than tech companies just aren’t trying hard enough to meet the (impossible) demands of dozens of laws and hundreds of competing interests.

The takeaway from this report should be abundantly clear. But somehow adherence to the law of unintended consequences is still considered to be a constant flouting of the Unicorns Do Exist laws passed by governments that firmly believe that any decree they’ve issued must be possible to comply with. Otherwise they, in their infinite wisdom, wouldn’t have written it in the first place.

Embark on the journey of language learning with the Rosetta Stone lifetime subscription for all languages. Rosetta Stone has been the go-to software for language learning for the past 27 years. With its immersive and intuitive training method, you might be reading, writing, and speaking a new language with confidence in no time. It’s on sale for $190.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Forget everything you think you know about Mark Zuckerberg and his army of lobbyists blocking any attempt to regulate social media. The truth is more nuanced (but perhaps less complicated). Meta is actually happy with internet regulations: they keep down competitive threats.

I’ve been trying to make this point for a while: while politicians and the media falsely believe that Meta is standing in the way of internet regulations, nothing is further from the truth. Meta knows full well that it has the legal firepower to comply with basically any internet regulations, and as the company has had to deal with growing competition, it loves the idea of using regulations as a moat to keep competitors at bay.

Remember, Meta’s (then Facebook’s) vocal support of FOSTA caused that bill to become law. That was after we were told for months that it was “big tech” that was blocking this horrible law, that has since been shown to have cost many lives (just as many of us critics predicted). Back then, those of us who protested FOSTA were told we were “big tech shills,” only to then have it be made clear that “big tech” was perfectly happy with the law.

There’s a pretty straight through line from FOSTA to the kid safety bills we see today. FOSTA was seen as a way to “attack big tech” over sex trafficking. Politicians have tried to run the same playbook on a number of topics, including terrorism, illegal drugs, and now “child safety.” Child safety is the one that stuck, but it’s the same cynical game: by painting “big tech” as the enemy, politicians can dismiss principled criticism and score easy political points.

So, whenever we hear claims about how Meta and Google are standing in the way of “child safety” laws, or that Meta and Google need to “come to the table” on various regulatory proposals, we have to laugh. Meta and Google have no problem with most of these laws. They know that it’s the government building a moat for them that helps limit the ability of upstart competitors to compete in the marketplace.

For the last couple of years, as various “protect the children online” laws have been passed, one of the most frustrating bits has been lots of people falsely insisting that any criticism of these laws is “big tech talking points.” That was the line trotted out by New York politicians in response to any criticism of their “SAFE for Kids Act.” And we’ve heard similar criticism from politicians (and, frankly, media folks) in other states from Florida to California to Texas to Utah to Ohio and more.

Behind the scenes, I’ve been hearing all this time that companies like Meta, Google, and even Apple are actually fine with all these laws and don’t even want them challenged. NetChoice, the trade organization that has been at the forefront of challenging many of these laws, has a unique setup in that their members don’t control the organization’s actions and don’t control which lawsuits it takes or doesn’t take.

So while everyone has assumed that NetChoice lawsuits are really proxies for “big tech” member companies like Meta and Google, I keep hearing whispered rumors that the companies are actually upset about the lawsuits and would be quite happy with just letting these laws go into practice. They know they can handle the compliance costs and (more to the point) that upstart competitors can’t.

Still, I’ve never had anything more than rumors and whispers, which was not enough to report on it all… until now. The Washington Post got its hands on a letter from lawyers representing Meta to a Maryland legislator saying that it would not stand in the way of any “protect the children” laws:

The social media giant would not back an attempt to block the measure in court, a lawyer for the firm Rifkin Weiner Livingston wrote in a previously unreported email to Maryland Del. Jared Solomon (D-Montgomery), according to a screenshot obtained by the Tech Brief.

Solomon was worried that NetChoice and others would sue over Maryland’s newly passed “Maryland Kids Code” law. That law has most of the problems of California’s Age Appropriate Design Code, which has already been (correctly) declared unconstitutional. Apparently, believing the false hype that Meta controls NetChoice, Solomon sent a letter threatening the companies not to sue to block the law. And Meta responded saying “sure, no problem, we’re not going to get in the way.”

Amid concern that NetChoice would also challenge the similar Maryland law, Solomon and other state lawmakers urged the group’s member companies in letters last month to “comply” and “not attempt to undermine this bipartisan, lifesaving effort by suing to block its enactment.”

“Meta is not aware of a legal challenge to [the] Maryland Kids Code and does not plan to support one,” Meta’s outside law firm wrote in response to the letter.

Solomon said that while he is “pleased they will not support a lawsuit,” he hopes Meta “will urge their partners at NetChoice, which they help fund, to do the same and help us implement these common sense protections for kids instead of trying to needlessly drag this through the courts.”

So, there’s a lot to comment on here, but let’s start with this: in an age where we’re supposedly concerned with government “jawboning” to suppress speech, it’s pretty ridiculous for a legislator to demand companies “not attempt to undermine this bipartisan, lifesaving effort by suing to block its enactment.”

First off, it’s not “lifesaving.” It’s actively harmful. We’ve gone over this dozens of times, but legislation of this nature is based on a moral panic that misunderstands the actual concerns and challenges facing kids these days. It substitutes the moral panic-induced ignorance of lawmakers as expertise, while ignoring what actual experts say.

Second, telling companies not to challenge laws that are unconstitutional is fucking crazy. If the law is unconstitutional (and it is), then let that play out in the courts, rather than effectively threatening companies not to challenge it.

But, most importantly, this revelation should make it clear that, despite the narrative making the rounds that Meta, Google, and Apple are somehow pulling the strings on all these lawsuits, that’s not the case at all.

Sometimes it really is true that the people challenging these laws actually recognize that these laws are unconstitutional attacks on the rights of users of these platforms and are challenging the laws accordingly.

Of course, I assume that this basic fact made clear here will be forgotten the next time it’s convenient for supporters of these laws to insist that any criticism is just “big tech talking points.” The fact is that “big tech” is pretty happy with most of these laws.

The laws are often written in a way that the “big tech” companies already comply with them, so there’s little additional cost. But they make it so that it’s prohibitively expensive for anyone else to comply. And that means these laws help Meta and Google and hamstring any upstarts and competitors.

Canadian Regulators are leaning on new authority built into the 2023 Online Streaming Act to impose a new 5 percent tax on streaming TV and music services like Netflix and Spotify; funding that the regulator says will then be used to help fund Canadian broadcasting.

According to the Canadian Radio-television and Telecommunications Commission (CRTC) announcement, the plan should drive $200 million in new funding annually to local news and a variety of other public interest content:

“The funding will be directed to areas of immediate need in the Canadian broadcasting system, such as local news on radio and television, French-language content, Indigenous content, and content created by and for equity-deserving communities, official language minority communities, and Canadians of diverse backgrounds.”

The fee systems effectively mirrors the fees already imposed on local broadcasters. Past efforts on this front (in the U.S. and Canada) haven’t been received particularly well by streaming giants, and the same applied here. The Digital Media Association, which represents Amazon Music, Apple Music and Spotify, insisted in a statement that the new tax will only expand what they’re calling an “affordability crisis”:

“As Canada’s affordability crisis remains a significant challenge, the government needs to avoid adding to this burden. This is especially true for younger Canadians who are the predominant users of audio streaming services.”

Huge contracts for the likes of Joe Rogan and Wall Street’s insatiable demand for relentless quarterly growth have more to do with streaming affordability than anything else, though in this case the services are correct in that they’ll simply pass the cost of the new taxes directly on to users. Facing slowing subscriber growth, streaming giants have already been pretty relentlessly raising rates.

That said, real journalism (especially independent and minority owned) is consistently facing a funding crisis, and much of the conversation (both in the U.S. and Canada) tends to be centered around what isn’t possible, shouldn’t be done (usually framed around the interests of giant corporations), as opposed to actually fixing the problem.

At the same time, similar efforts are often derailed by corruption, and there’s no guarantee the money guaranteed for useful things actually finds the way it its original destination.

Efforts to tax streaming companies to help fund broadband deployment in the States, for example, risk being hijacked by telecom giants looking to exploit corrupt policymakers simply to pad their wallets. Municipalities in Texas have also tried to tax Netflix with a fairly broad disdain for existing law and no particular public interest initiative in mind.