Tag: free speech

Everything Online Cannot Be Speech:  The Equustek Story

Suppose you invent something.  A box that makes bitter vegetables taste like candy so kids will eat them. You call it KandyKale.  Then, along comes an imposter, who steals your tech and infringes your intellectual property, and then sets up a bunch of websites that hijack the customers looking for your product in order to sell them the KandeeKale knock-off, which they produced by stealing from you in the first place. Not only would you sue the KandeeKale operators, but you might ask the court to order a search giant like Google to delist the websites while your litigation ensues.

That pretty much sums up the nature of the complaint by Canadian tech manufacturer Equustek against Datalink, which allegedly stole Equustek’s trade secrets then took the counterfeit business “virtual” after a Vancouver court ordered Datalink to stop operating in the province.  As a normal matter of procedure in its fight against the alleged counterfeiters, Equustek sought, and was granted, injunctive relief by a British Columbia court in June of 2015. This included an order that Google de-index, on a worldwide basis, the sites dedicated to selling the counterfeit products.  The decision was upheld by the Canadian Supreme Court.

Google has asked a California district court to enjoin the enforcement of the Canadian order in the U.S., principally on the grounds that the Canadian court “offends” the First Amendment and the Communications Decency Act under U.S. law.  According to the motion filed by Google, Equustek states that it cannot afford to fight the search giant’s appeal in U.S. court, which is both credible and notable. Google rejects Equustek’s assertion that it operates “above the law,” noting that it is in compliance with the order while appealing enforcement. But in regard to this story, is worth considering how any independent business might hope to litigate in a similar dispute with the one company that owns nearly all search and online advertising worldwide.

Why does it matter?  Because at some point, we’re going have to reckon with the fact that every transaction that occurs online cannot be treated as speech.  To conclude otherwise is to sublimate the rights of individuals and small businesses to the whims of corporations that are simply too big to fight.  Although it is true that a Google search result is information and that Google is not breaking any laws by providing that information, this cannot be where the law and policy conversation ends.  When the information provided—perhaps it is even paid for—materially supports criminal conduct, are we truly so confounded by the murkiness of cyberspace that we can only conclude that no legal remedies apply because it’s all speech?

That’s certainly what Wikimedia would have us believe based on the brief it filed on September 15 in support of Google’s position in the Equustek case.  Long on hyperbole and short on substance, most of the brief’s eleven pages are dedicated to extolling the virtues of free speech as a human right, which I imagine the California court already understands.  But on the subject of comity (i.e. the need for the courts of one nation to respect the laws of other nations), Wikimedia employs what reads to me like a lot of misdirection with variations on the following theme:

“Global orders for the removal of content impose one country’s idea of freedom of expression on citizens of the rest of the world. Some countries have high bars for protecting free speech and the right to receive information. And some countries do not share the values expressed in the United States Constitution or international human rights law. If United States courts enforce removal orders from nations like Canada, Germany, and France, perhaps they will also remove content when ordered by Turkey, Russia, or China.”

Essentially, Wikimedia asserts (as does Google) that if global takedown orders like the one in Equustek become common practice, we run the risk that nations which do not respect rights like free speech and free press will dictate terms to those that do. If this seems hyperbolic, it is.  Because the argument assumes that U.S. jurisprudence is ill-equipped to distinguish between information that is exclusively speech and information that materially supports conduct that Americans agree is criminal.  This despite the fact that the U.S. maintains one of the most liberal free speech doctrines in the world, and our courts have been weighing exactly these matters longer than any other nation in existence.

It is fundamental to the principle of comity in this case that a U.S. court would likewise consider this type of injunction in Equustek a reasonable remedy because Datalink’s activities allegedly violate intellectual property laws that we likewise support in this country.  Conversely, by the same principles of comity, there is no reason whatsoever to jump to the conclusion that a U.S. court would capriciously offend our most sacred laws, namely the First Amendment, in order to enforce a ruling made by a nation whose sense of law is radically divergent from our own.

Wikimedia is guilty of overstating its own importance in the world and that of the internet in general as a conduit of information.  If the current political climate has not sobered many citizens to the reality that “information” can be a siren call to smash on the rocks of ignorance, I’m not sure what it will take.  Meanwhile, as real life is now unavoidably transacted in the the global market of cyberspace, the assumption that the internet must remain a universe beyond legal boundaries will continue to fail ordinary citizens and entrepreneurs in the interest of securing legal immunities for some of the world’s richest corporations.

The ineffably twisted logic still plaguing policy in cyberspace is represented by the very first sentence of the Introduction to the Wikimedia brief.  “This case involves an order issued by a Canadian court to compel Google to remove truthful information from its search results—not just in Canada, but around the globe,” it says.  Indeed.  “Truthful information” that just happens to link consumers to a company that is allegedly selling counterfeit goods. A fairly young child, still refusing to eat his kale, can make the distinction. So, it is reasonable to hope that U.S. courts can do the same.

We Are Far From Skokie:  Free Speech in Cyberspace

“I hate Illinois Nazis.”  – Jake Blues, The Blues Brothers (1980)

I think my first introduction to the complexities of living in a nation with a constitutional right like the First Amendment was in the 7th Grade. Our teacher had the class watch and discuss the film Skokie (1981), a dramatization of the circumstances surrounding the 1977 legal case National Socialist Party of America v. Village of Skokie.  At that time, a group of about 30-50 National Socialist Party members wanted to march, dressed in Nazi-style uniforms, through an Illinois village that was home not only to a large Jewish population, but to quite a number of Holocaust survivors.  Concern was reasonably high among state officials that the community’s promise to rally 12,000 to 15,000 counter-demonstrators would lead to violence.

After the Illinois district, appellate, and supreme courts upheld injunctions barring the Nazi group from marching, the U.S. Supreme Court ultimately held that the state courts had not afforded the petitioners proper appellate review when restricting protected First Amendment rights. Thus, the Nazis would be allowed to march.  As I remember it, the main civics lessons we discussed were that, of course, protecting the rights of free speech and peaceable assembly requires protecting the rights of even the most offensive speakers; but also, that a municipality’s concern that violence may result from an otherwise lawful protest is not grounds for prior restraint of First Amendment exercise. The ACLU defended the rights of the National Socialists in Skokie, just as it represented white-nationalists’ right to protest in Charlottesville a week ago.

Although granted a permit, the Nazi group in 1977 chose not to march in Skokie and instead held a rally in downtown Chicago. Ever since then, and until quite recently, gatherings of these and other hate groups have generally been marginalized. Their speech has been protected, ignored, and mocked. Groups like the KKK would set up their flags, don their ridiculous sheets, spew garbage into megaphones that nobody would bother listening to; and then they’d pack up their impotent little circuses and go home. The “Illinois Nazis” were satirized in the 1980 comedy The Blues Brothers; and that was about as worked-up as we needed to get for the better part of the last four decades. But now, it seems we are far from Skokie.

In response to events in Charlottesville—though clearly Boston was a very different affair—it is possible that state and municipal lawmakers may try to re-legislate the meaning of “inciting violence” when it comes to issuing permits for groups claiming their intention to peaceably assemble. For instance, common sense might suggest that a large crowd showing up with firearms, or weapons of any kind, means that the proposed assembly is not “peaceable.” Thus, city officials should be allowed, with respect to the Constitution, to make reasonable decisions as to what risks they consider tolerable for their police officers to manage.

But that’s physical space. And there is probably a fair body of precedent law upon which city and state legislators can build, if they feel the need to strike a new balance between public safety and the First Amendment relative to a new and more dangerous climate.  But what about cyberspace?

If we set aside the hot-button topic of the president’s tacit endorsements of these groups, the most significant catalyst in amplifying previously-marginalized and fragmented hate-groups into large, gun-wielding mobs has got to be the internet. The internet connects people, right? Except the utopians and dreamers usually talk as though it only connects decent people—or even more naively, that the connection itself is the path toward newfound empathy for one another, which should moderate hatred and division. This can be true, but the opposite results are also plainly manifest.

It turns out the internet is a fertile breeding ground for hatred and division. Anyone can create a platform that connects people whose primary common interest may be hatred of other groups. And it’s not always as blatant as white nationalists hating Jews, people of color, homosexuals, etc. It may even be subdivisions among Jews, people of color, homosexuals, etc. hating on one another, which may be why our political process seems overly bogged down by tribal infighting along lines of identity rather than policies of inclusion—or at least tolerance. The internet seethes with conflicts of egocentrism; and I think it’s fair to say that the web is the ideal intersection for a bunch of misguided, chino-wearing, Tiki-torch-carrying college boys to find common cause with actual flag-waving Nazis trying to provoke a race war.

As was widely reported, events in Charlottesville led GoDaddy to finally boot the Nazi-themed site The Daily Stormer off its hosting servers. The site was then denied hosting by Google, kicked out of Cloudflare’s anonymizing service, refused hosting by other OSPs, and has now allegedly migrated to the dark web. No doubt, many people who were outraged by last weekend’s tragic events applauded these decisions to remove The Daily Stormer from the mainstream; but they were also followed up by notes of concern over the protection of free speech online. As the presumptive ACLU of the internet, the Electronic Frontier Foundation unsurprisingly took the position that speech must never be censored by these private platforms.  In a blog post, the EFF states…

“We at EFF defend the right of anyone to choose what speech they provide online; platforms have a First Amendment right to decide what speech does and does not appear on their platforms. That’s what laws like CDA 230 in the United States enable and protect. 

But we strongly believe that what GoDaddy, Google, and Cloudflare did here was dangerous. That’s because, even when the facts are the most vile, we must remain vigilant when platforms exercise these rights. Because Internet intermediaries, especially those with few competitors, control so much online speech, the consequences of their decisions have far-reaching impacts on speech around the world.”

Yes, the language itself is contradictory and equivocal (i.e. sites should have these rights but not exercise them), but there is no denying that the EFF is highlighting the unprecedented challenge we face with regard to the web and speech. On the one hand, private entities do not have the same constitutional obligations as the state; but this legal technicality does not reconcile the fact that a company the size of Google plays an outsized role in facilitating the means of all speech—from the vile to the profound—in the manner that speech is now conducted. Just like the ACLU defended the Nazis in Skokie—because the principle must be upheld if we are to protect other voices like civil rights leaders—the EFF argues the same rule applies in cyberspace. Allowing OSPs and edge providers to censor speech based on business decisions—and this could include government pressure—is potentially hazardous.

Conversely, these concerns contain a lot of overwrought hypocrisy in which the apparent speech defense masks—and even exacerbates—the larger problem. Because it is the combination of free-speech maximalism and “safe harbor” absolutism, with regard to internet policy, that has produced an oligopoly that now owns the primary conduits of speech itself.  That’s the real danger.  Or as my colleague, Mike Katell puts it …

“We have left the barn door open and allowed Silicon Valley to move the popular venues of expression from the community stage and the city street to their proprietary platforms, where they are guided not by constitutional or democratic principles but by terms-of-service strategically designed to maximize profits and offset risk.”

The internet industry, with the help of organizations like the EFF, has consistently swept a million sins (i.e. criminal conduct) under the rug of free speech—not as a matter of principle, but as a matter of revenue growth and competition for market-share. The major platforms manipulate speech all the time in the service of their business interests; and last week, it suddenly became bad for business to host The Daily Stormer. So what does this mean for speech?  Not much I think.

In a world in which private speech on public platforms has ballooned to trillions of interactions per day, the logic of slippery slopes toward censorship must be considered in context to this scale. If The Daily Stormer dies, speech lives. If sites or pages hosting terrorist propaganda are denied service, speech lives. If sites hosting copyright infringing content, selling counterfeit goods, facilitating trafficking, or any other criminal activity are shut down, speech lives. Just like in physical space.

This is to say nothing of the fact that the great, cosmic explosion of speech hasn’t really done democratic principles any favors. As a conveyance of knowledge (that magic ingredient meant to make people more compassionate), the internet also has the capacity to transform reality itself—even documented history—into a choose-your-own-adventure game. Then, because the internet connects people, some ten-thousand flat-earth, tinfoil-hat, conspiracy-theory whack-jobs are no longer dispersed innocuously around the country but will instead coalesce into a tribe that meets daily on TooStupidToBreathe.com. And the next thing we know, they’re a movement requesting a permit to rally in a city park.

As I’ve indicated many times, when the internet activists rush to defend speech in high-profile instances like The Daily Stormer, they consistently overlook a truth that we need to accept:  that laissez-faire internet policies on controlling content has produced—and will always produce—a society where bullies trample speech in ugly and even physically dangerous ways. This cognitive dissonance is reflected in Cloudflare’s wringing its hands over terminating The Daily Stormer account.  In a blog post on the matter, CEO Matthew Prince writes…

“Someone on our team asked after I announced we were going to terminate the Daily Stormer: “Is this the day the Internet dies?” He was half joking, but only half. He’s no fan of the Daily Stormer or sites like it. But he does realize the risks of a company like Cloudflare getting into content policing.”

Maybe they’re trying to answer the wrong question—an immature question. Because I think the answer is no, it’s not the day the “internet dies,” but maybe it’s the day our bullshit, utopian idea of the internet dies. And that’s not a bad thing. Because utopianism is the product of an immature assumption that bad people don’t exist, only bad systems do.  That’s why utopias are always one step away from dystopias. In this regard, not only do OSPs have a right to not facilitate hate, violence, or crime; but it is probably time for the internet industry to accept that taking such action is actually a responsibility for which they need not apologize.

In a broader context, I do not wholly reject the concerns raised by the EFF in this case; but as a matter of policy, I also believe we cannot effectively have this particular debate as though it were a Skokie-era issue. That is simply not the world we inhabit anymore. The internet’s unique capacity to catalyze anti-democratic views, even violent and hate-filled ones that would destroy the First Amendment itself, should factor into the equation when discussing the service providers’ role in protecting speech.

Slants Trademark Decision May Have Other IP Implications

In 2010, the Oregon-based, Asian-American band had its application for a trademark in the name The Slants rejected by the US Patent and Trademark Office. The denial was based on a statute in the 1946 Lanham Act prohibiting registration of marks “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  In other words, the USPTO rejected The Slants because the word slant can be used as a pejorative to disparage Asian people, which is precisely why the band adopted the name in the first place.  (Readers may have seen headlines stating that the Supreme Court ruled in favor of the trademark status of the much-debated offensiveness of the Washington Redskins name; but in fact, the Redskins matter is settled by virtue of the holding in this case Matal v. Tam.)

When artists or other speakers, who represent particular ethnic groups, reclaim disparaging terms, it usually serves as a very powerful way to diminish the harmful force of the words themselves.  For instance, as important as it is to respect the serious history of the ultimate pejorative for African Americans, the way in which a comedian like Richard Pryor weaponized the N-Word* (or for that matter how Mel Brooks satirized it in Blazing Saddles) cannot be overstated for the capacity of those expressions to alleviate social barriers by transposing genuine animosity into self-reflective satire.

The Slants are presumably following in this tradition, which does not mean that some people still won’t be offended by the name; but as Monday’s Supreme Court ruling affirms, an agency like the PTO may not consider the prospect of offense when registering a trademark without violating the First Amendment. As a result of this case, the disparagement clause (§1052(a)), which has been part of the Lanham Act since its passage 71 years ago, has now been declared unconstitutional.  Whether this has further implications for other clauses in the act remains to be seen.

The outcome in Tam has reasonably been viewed as a First Amendment victory, a reminder that the government has no business making judgments about private speech, and also a recognition that a trademark can absolutely be a form of expressive speech.  In past cases, the courts have held that the denial of a trademark is not a violation of speech because the lack of registration does not prevent a party from using a desired mark as expression.  A key difference in this case is that the government sought to argue that registering trademarks is analogous to government subsidies (e.g. grants from the NEA), and, therefore, the reistration of trademarks is a form of government speech.  All eight justices disagreed (Justice Gorsuch was not part of the ruling).

In circumstances like federal or state grants, the parties responsible for administering those subsidies may impose judgments regarding potential disparagement; and in fact, we would generally hope that they do so.  It is also not a violation of law for the government to spend public dollars to communicate a one-sided message, like an anti-drug or consumer safety campaign.  In fact the Court observes in this decision that demanding neutrality of government in speech would render it dysfunctional.  And although most of us wouldn’t want to see public dollars spent with the purpose of ridiculing or provoking bigotry against a particular race, culture, religion, nationality, etc., it cannot be denied that government officials and agencies have done all of these things at various times in our history.

Regardless, the PTO’s argument in Tam that the registration of a trademark is tantamount to government speech by way of subsidy was first rejected by the District Court and then upheld by the Supreme Court. From the decision …

“Contrary to the Government’s contention, trademarks are private, not government speech.… for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”

Or as it was stated in a slightly more amusing fashion …

“It is thus farfetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently.”

There’s probably a website somewhere insisting that the government is speaking in the coded language of Cheetos®, Tide®, and Red Bull®; but tinfoil hats aside, the decision in this case may have broader implications for other IP, particularly copyright. Specifically, the Court seems to have indirectly weighed in on a somewhat novel proposal from the libertarian right that intellectual property is a government subsidy.  In fact, the District Court in this case, made a direct comparison to copyright law in stating, “…the government would be free, under this logic, to prohibit the copyright registration of any work deemed immoral, scandalous, or disparaging to others.”

In other words, arguing that the registration of trademarks is a form of government speech through subsidy would, by extension, empower the government to censor speech through the copyright registration process.  Nevertheless, it has been in vogue for a few years now to describe copyright as a government-granted subsidy to authors; and then, by logic of the straw man, to assail the regime as a “federal regulation” that is holding back “innovation.”  It is an idea that appears to convene allies among the anti-corporate left and the anti-regulatory right; and lately, when I see that kind of agreement between ideological opposites, I tend not to conclude “strange bedfellows” so much as to assume that both sides are just wildly misinformed and not considering the implications of their position.

Of course, this “government subsidy” idea goes back to that larger debate over IP as natural right vs. IP as a purely utilitarian legal framework.  For now, though, in upholding Simon Tam and his friends’ right to trademark their band name (offensive or not to some people), the Supreme Court has provided an important lesson in the nature of American free speech and placed the government in its proper role as neutral provider of public services available to all citizens on equal terms.

See also:  Terry Hart’s Copyhype post from 2016.

*On a side note, the rap band N.W.A trademarked its name.