Tag: Supreme Court

How the Supreme Court Made Life Harder for Victims of Cyberstalking

It was such a busy Summer that I never got a chance to write about the Supreme Court’s June decision in the cyberstalking case Counterman v. Colorado. The story caught my attention when legal scholar and president of Cyber Civil Rights Initiative Mary Anne Franks tweeted, “the Supreme Court has just decreed that stalking is free speech protected by the First Amendment if the stalker genuinely believes his actions are non-threatening. That is, the more deluded the stalker the more protected the stalking.” [1] The key facts as summarized in the opinion are as follows:

Billy Counterman sent hundreds of Face­book messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged vio­lent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined so­cial engagements, and canceled some of her performances. C. W. even­tually contacted the authorities. The State charged Counterman un­der a Colorado statute making it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”

Read accounts of people who have been cyberstalked, and the stories are often harrowing. The content of the stalker’s communication doesn’t even have to be threatening, though it usually gets there. Just knowing that somebody (usually a man) has selected you (usually a woman) as a target for unwanted attention can be unnerving to the point that it can have life-altering consequences including general anxiety, fear of movement, fear of speech, job and opportunity loss, and even suicide. That can be true even if the stalker doesn’t take or induce any action outside cyberspace, though many incidents that begin online eventually become physical and violent contact.

To be clear, no member of the Court defended (nor do I believe would defend) Counterman’s conduct. The question addressed was what legal standard should have been applied in the enforcement of the Colorado law to determine the threshold where the defendant’s speech is no longer protected by the First Amendment. At trial, the state court applied an “objective” standard to determine whether the content of the speech at issue would be perceived by a reasonable observer as a “true threat,” a term of art that encompasses one category of unprotected speech—threats of violence.

The Supreme Court majority held that Colorado erred by not applying a “subjective” standard, under which it must be shown that the defendant intended to threaten plaintiff or had reason to know that the speech at issue was threatening; and the Court further held that it would be sufficient to show that a defendant recklessly disregarded the threatening nature of his communications. Hence, Dr. Franks’s observation that the more unreasonable the cyberstalker the more likely his online harassment will be protected speech. And how many cyberstalkers are reasonable?

Sound Dissent by Justice Barrett

Noting that I do not have a deep knowledge of the relevant case law, Justice Barrett’s dissent (joined by Thomas) reads as the better argument—both as law and common sense. The dissent argues that the majority singled out “true threats” in this case for preferential treatment to fashion a “Goldilocks decision” (i.e., inventing a middle ground that is neither necessary nor consistent with precedent). “True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard,” the dissent states.

The extent to which the Court departs from precedent is difficult to comment upon without studying all the underlying First Amendment case law, but Justice Barrett’s focus on “context” rings soundly as a rationale that an objective standard can maintain the balance between protected and unprotected speech. “…the statement must be deemed threatening by a reasonable listener who is familiar with the ‘entire factual context’ in which the statement occurs [citation omitted]. This inquiry captures (among other things) the speaker’s tone, the audi­ence, the medium for the communication…” Barrett writes.

Indeed, any target of online stalking knows instinctively that words as seemingly unthreatening as You look lovely today may indeed be threatening if, for example, the statement comes from a stranger or an angry, obsessive ex-husband or boyfriend. Weighing the legality of speech without context—not just online, but anywhere—is a half-baked analysis. For instance, “Vote for me or you won’t have a country anymore” delivered on the stump is protected hyperbole, while “Fight like hell, or you won’t have a country anymore” delivered to an angry mob ready to march to the Capitol is considered by many reasonable observers to be incitement.

Justice Barrett highlights the Colorado cyberstalking statute (and notes that other states have similar laws) as an example of a contextual, objective analysis in which juries are instructed to weigh the defendant’s communications in a five-factor test to thoroughly understand the nature of the speech.[2] “Each considera­tion helps weed out protected speech from true threats,” she writes, and again, this strikes me as the more rational approach to address the alleged crime at issue.

Further, the dissent argues that the majority leans heavily and improperly on the 1964 case New York Times v. Sullivan. There, the Court held that it is necessary to prove that a defendant showed reckless disregard for the known falsity of a statement in order for a public figure to obtain damages relief for libel or defamation. But citing subsequent case law from 1974 and 1985, Justice Barrett argues that Sullivan applies to public parties while, “A private person need only satisfy an objective standard to recover actual damages for defamation. And if the defamatory speech does not involve a matter of public concern, she may recover punitive damages with the same showing.” [Citations omitted]

Assuming the dissent is correct about the majority’s inapt reliance on Sullivan in this case, the public/private distinction is significant because a typical cyberstalking incident involves ordinary citizens rather than public figures—let alone “matters of public concern.” If someone tweets at Sen. Tuberville and calls him a sniveling, treasonous, ignorant weasel who should have been aborted, that is paradigmatically protected speech. Elected officials volunteer for public scorn as a bedrock principle of the First Amendment,[3] and it would be an offense to two of the amendment’s freedoms if it were sufficient to find some cohort willing to call that tweet a “true threat.” Thus, evidence of the speaker’s intent and ability to cause violence must be present before his speech may be considered unprotected.

By contrast, the cyberstalker who tells his target that he wishes she were dead or writes that her death is imminent or that he hopes she gets raped, etc. may not express a “true threat” by words alone, but in context, the messages can have the same effect as a “true threat.” Even facially innocuous communication can be used to make a private individual feel threatened, especially when she has no idea who she’s dealing with, or what his intent might be.

By the time the target of a cyberstalker turns to law enforcement for relief, she has usually suffered substantial harassment, fear for her safety, and some form of irreparable damage to her liberty and/or financial interests. In Counterman, the Court compounds these injuries by elevating the standard for punishing an alleged cyberstalker to one in which a jury must read the mind of the defendant to find that he both understood and recklessly disregarded the threatening nature of his communication. This sets the bar higher than necessary in cases where the speech at issue is of no public interest other than, in most cases, making it stop.

The Tech-Utopian Concept of the Speech Right Lives in this Case

Unsurprisingly, the Electronic Frontier Foundation filed an amicus brief for the petitioner in Counterman stating, “This Court should make clear that the definition of a true threat necessarily includes a subjective speaker’s intent to threaten.” True to form, the EFF inflated its brief with praise for the scope, scale, and cultural significance of social media; and it cites examples of violent terms or rhetoric, which may be interpreted as threatening but may still be protected. Notably, no variant of the word stalking appears in the EFF’s brief.

All that general discussion about the value of social media as an alleged free speech machine may be true in certain contexts, but it should be seen as irrelevant in regard to cyberstalking. Because here’s where the “digital rights” organizations err, and where the Court has now made matters worse:  cyberstalking is action more than it is speech. It may take the form of words and/or images, but the ongoing contact itself is intended to cause suffering, and very often, it succeeds in doing just that. As Dr. Franks put it, quoted in Reuters shortly after the decision:

It is deeply disappointing that the Supreme Court has chosen not only to allow stalkers to act with impunity, but to do so on the basis that stalking is free speech protected by the First Amendment. In doing so, they have sentenced victims of stalking to potentially lifelong sentences of terror, as well as increasing their risk of being killed by their stalkers.

If you or anyone you know is a target of cyberstalking the two best resources I know are Cyber Civil Rights Initiative  and the Carrie Goldberg Victims’ Rights Law Firm.

[1] Dr. Franks also offered some sharp comments about the joking around at oral arguments, reflecting insensitivity to the dangers and traumas experienced by targets of cyberstalking. https://twitter.com/ma_franks/status/1648724142198226946

[2] (1) the statement’s role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).

[3] This is a reference to Sen. Tuberville’s holding up military promotions to protest the DOD’s healthcare policy vis-à-vis abortion.

Photo source by: SBArtsMedia

New Guidance on “Transformative” Use in AWF v. Goldsmith

In this Court, the sole question presented is whether the first fair use factor, “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit edu­cational purposes,” §107(1), weighs in favor of AWF’s recent commercial licensing to Condé Nast.

Although the consideration in Andy Warhol Foundation v. Lynn Goldsmith is narrowly focused, the outcome in this case has anything but narrow implications. Almost thirty years after the decision in Campbell v. Acuff-Rose let the “transformative” blob ooze into the judiciary, the Supreme Court has now stuffed a substantial portion of the blob back in the bucket.

In a 7-2 opinion written by Justice Sotomayor, the Court held that finding “transformativeness” under factor one of the fair use test requires more than a broad purpose to make something new; it defends the derivative works right against encroachment by the “transformative” blob; and it reminds the courts not to confuse the inquiry into “purpose” with a subjective inquiry into “artistic intent.”

Shoring Up Boundaries Around “Transformative” Use

Without explicitly stating that the follow-on work must contain some perceptible element of comment on the work used, the Warhol opinion relies substantially on Campbell and the necessity there to find parody (a form of comment) in 2 Live Crew’s use of “Oh, Pretty Woman.” As the opinion states:

The Court found it necessary to determine whether 2 Live Crew’s transformation of Orbison’s song rose to the level of parody, a distinct purpose of commenting on the original or criticizing it. …the Court further explained that “[p]arody needs to mimic an original to make its point, and so has some claim to use the creation of its victim’s (or collective victims’) imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

This is significant because many fair use defenses since Campbell have been based on the generalized language in that decision suggesting that when a follow-on work expresses any “new meaning or message,” this may be sufficient to find that a use is “transformative.” In Warhol, the Court clarifies that this language cannot stand alone but must be read in context to the Campbell Court finding parody in the follow-on work in order to find “transformativeness.” In other words, a work that does not contain a hint of comment upon the original work used—and comment that may be reasonably understood by an ordinary observer—may not easily justify use of a protected work under factor one. As the opinion states …

The asserted commentary [by Warhol] is at Campbell’s lowest ebb. Because it “has no critical bearing on” Goldsmith’s photograph, the commentary’s “claim to fairness in borrowing from” her work “diminishes accordingly (if it does not vanish).”

So, because AWF could only claim (and reasonably so) that the Warhol screen makes broad comments about celebrity, fame, iconography, commercialism, et al.—but no comment about the Goldsmith photo itself—the Court finds nothing “transformative” in the work at issue (“Orange Prince”) as a matter of law. Then, absent a finding of “transformativeness,” the commercial use (i.e., the license to a magazine), which disfavors fair use, carries the day…

… [the] first fair use factor … focuses on whether an allegedly infringing use has a further purpose or different character, which is a matter of degree, and the degree of difference must be weighed against other considerations, like commercialism.

Derivative Works Right Protected

Among the difficulties fostered by over-broad readings of “transformativeness” is that it places the fair use defense in conflict with the author’s exclusive right to prepare derivative works. In practice, this can harm the author’s interest because, in the years since Campbell, a defendant who wins on the “transformative” question has tended to win the case. I am not saying that all those cases were decided incorrectly or that the Court has delivered a major reversal in fair use doctrine. On the contrary, the Court has merely shored up levees already in the caselaw, and one result should be to channel the fair use waters away from the derivative works pool …

Campbell cannot be read to mean that §107(1) weighs in favor of any use that adds new expression, meaning, or message. Otherwise, “transformative use” would swallow the copyright owner’s exclusive right to prepare derivative works, as many derivative works that “recast, transfor[m] or adap[t]” the original, §101, add new expression of some kind. [Emphasis added]

The question as to whether “Orange Prince” (or any of Warhol’s screens) are unlicensed derivative works was not addressed by the district court, which is how this became a fair use case, but the important outcome here is that the Supreme Court has refreshed the lines separating “transformative” use from the derivative works right as a matter of law.

Citing one example as to how this ruling might help creators intending to use protected works, in the ComicMix case, a poor understanding of “transformative” led a group of artists to create what was clearly an unlicensed derivative work in conflict with the rights reserved by Dr. Seuss Enterprises. ComicMix did not win in the end, but I would be willing to bet that if not for the pervasive fog in the “transformative” doctrine, the creators would not have embarked on a project making substantial use of protected works without obtaining permission from the rightsholder.

Fair Use Analysis Must Be Objective

Finally, the opinion provides guidance to lower courts that they must read the factor one “purpose” consideration as “… an objective inquiry into what a user does with an original work, not an inquiry into the subjective intent of the user, or into the meaning or impression that an art critic or judge draws from a work.” Again, given the limited scope of the question presented, the Court’s finding here is likely to have broad implications for fair use going forward.

The opinion holds that Warhol’s “Orange Prince” and Goldsmith’s photograph serve the same purpose—that of illustrating Prince—for which Condé Nast licensed the former for a special edition tribute magazine following Prince’s death. This “same purpose” finding may seem confusing because the two works are distinctly different expressions (a major point of dissent by Justice Kagan), but what the Court is saying is that it does not matter whether the photo reveals “vulnerable” Prince or if the Warhol screen depicts “iconic” Prince, and it does not matter why magazine editors will choose one image over another. What matters in a “transformative” use inquiry is an objective search for some perceivable, distinct purpose for use of the work at issue — and that purpose is likely to be comment on the original work …

…the meaning of a secondary work, as reasonably can be perceived, should be considered to the extent necessary to determine whether the purpose of the use is distinct from the original, for instance, because the use comments on, criticizes, or provides otherwise unavailable information about the original.

Again, absent some evidence of commentary upon the work used, the necessity of the use diminishes or vanishes. And to the extent the user of a work might be able to claim some distinctive purpose other than commentary, the courts are instructed to avoid entering the salons of fine artists and critics, who identify—and even invent—meaning in works of art. And that  brings us to the dissent written by Justice Kagan, which is joined by Chief Justice Roberts.

The Dissent Amplifies the Wrong Inquiry for Fair Use

In a surprisingly strident dissent, Justice Kagan devotes considerable time expounding upon Warhol’s methods and significance as an artist and then segues to a general art history lesson to emphasize the unremarkable point that artists borrow from other artists. In addition to being mundane, this axiom about creative work is so broad as to be irrelevant to this or any other consideration of fair use, which the majority opinion makes clear is fact-intensive and case-specific.

The tenor of the dissent connotes bias against copyright, including overwrought allegations that the majority opinion will “stifle new creativity,” a favorite refrain among copyright critics. For instance, Justice Kagan lambasts her colleagues’ failure to consider the obvious differences between Goldsmith’s photograph and Warhol’s screen. The dissent elides any discussion about the difficulty of balancing “transformation” favoring fair use with “transformation” to prepare derivative works, and in rejecting the majority’s reassertion of the limits in Campbell, Justice Kagan writes:

If Warhol had used Goldsmith’s photo to comment on or critique Goldsmith’s photo, he might have availed himself of that factor’s benefit (though why anyone would be interested in that work is mysterious). But because he instead commented on society –the dehumanizing culture of celebrity—he is (go figure) out of luck.

Absolutely, he’s out of luck. And he should be. The alternative, as the majority makes clear, is to foster a nearly unconditional fair use exception whereby “some difference” in the character of the secondary work is enough to win on factor one and then control the rest of the fair use inquiry. This has been the argument of many defendants and copyright skeptics, and it is gratifying to see the Court recognize that every use of a work results in “something new” and that this is too broad a rationale for finding that factor one always favors the user.

Justice Kagan’s snarky assertion that the majority is “blind” to the differences in the Warhol and Goldsmith expressions is unintentionally correct insofar as it is misplaced as criticism in a fair use inquiry. A substantial similarity consideration is more properly the forum for expert testimony and side-by-side comparisons of the expressions in the works at issue. Whereas, on the question presented here, the majority has stated that, indeed, blindness to broad and subjective artistic intent is the proper way to approach “transformativeness.” The inquiry primarily looks for one element—”critical bearing” on the work used. And as a rule, this outcome should provide clearer guidance to courts, practitioners, and creators who want to use protected works.

Sen. Cruz Brief Wrongly Portrays Section 230 as a Neutrality Law

Among the briefs filed in Gonzalez v. Google asking the Supreme Court to properly read Section 230 of the Communications Decency Act is one filed by Sen. Ted Cruz, Rep. Mike Johnson, and fifteen other Republican Members of Congress. Presenting similar textual arguments as the brief filed by Cyber Civil Rights Initiative (CCRI), highlighted here in a recent post, Sen. Cruz et al. petition the Court to address a matter that has nothing to do with Section 230—a politically motivated complaint summarized as follows:

Confident in their ability to dodge liability, platforms have not been shy about restricting access and removing content based on the politics of the speaker, an issue that has persistently arisen as Big Tech companies censor and remove content espousing conservative political views, despite the lack of immunity for such actions in the text of §230.

Allegations of viewpoint bias are inaptly raised in Gonzalez, or indeed any case addressing Section 230. Even if it could be shown that a social platform actively engages in true political bias (i.e., moderating ideas and speakers rather than extremism), this is not a Section 230 issue because neither political nor any other form of bias necessarily implicates civil liability for an online platform any more than it does for a newspaper or TV network.

The First Amendment protects bias, and Section 230 does not alter this fact. Hence, the Cruz brief strays far from the purpose of the Court’s review in Gonzalez by erroneously implying that bias is inherently grounds for litigation when it alleges that the overbroad interpretation of Section 230 immunity causes or sustains politically motivated censorship. But Section 230 is not and never has been a viewpoint neutrality law. Cruz et al. are asking the Court for a misreading that has lived in the PR of the platforms and the rhetoric of tech-utopianism, but is nowhere in the statute.

Specifically, the Cruz brief alleges that the platforms have been shielded in censorious conduct by a poor statutory reading of their right to “good faith” removal of material that is “otherwise objectionable.” The amici argue that those words must be read in balance with the preceding words in the statute providing immunity where platforms remove or restrict access to third-party content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” The brief then asserts (a bit wryly) that “…conservative viewpoints on social and political matters do not rise to the level of being ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.’”

Notably, the brief both elides a definition of “conservative” in context to its argument and asks the Court to read Section 230 as a mandate that platforms leave all material online that does not meet a very narrow, statutory definition of “objectionable.” This is false. Section 230 was written to encourage platforms to adopt and enforce their own community standards (i.e., decide what is objectionable), which does not disturb the general right to host a platform which may be politically biased in any direction. A proper reading of 230 simply means that platforms shall not be unconditionally immunized against potential liability for hosting content that results in some form of harm which may be remedied through civil litigation.

The Cruz brief does not distinguish between amici’s political bona fides and the broad spectrum of hate-speech and violence-inciting material that some Americans now call “conservative,” and which is indeed problematic for platforms. For instance, as the Alex Jones verdicts or the January 6th convictions make clear, material that certain people are willing to label “conservative” may, as a matter of law, be libel, defamation, or disinformation that results in individuals being harassed and threatened, or which leads to violence—or even an insurrection. And it is precisely in this context (i.e., blurring the line between political views and actionable conduct) that the complaint in the Cruz brief is so inaptly raised in Gonzalez.

Petitioner Gonzalez alleges that Google’s “recommendation” algorithms contributed to fostering terrorist activity by promoting ISIS recruiting videos in a manner that predictably roused a latent terrorist, who then acted on those emotional triggers. Regardless of whether that complaint prevails in context to the anti-terrorism statutes at issue, the general allegation about the platform’s role in Gonzalez is indistinguishable from an algorithm detecting that a user likes InfoWars and, therefore, “recommends” QAnon videos or some other tinfoil-hat material with the foreseeable result that some domestic terrorist will assault a family in Sandy Hook, ransack the Capitol, conspire to kidnap a sitting governor, etc.

Thus, if the Court agrees that Google is not shielded from litigation in Gonzalez, the allegations of liability presented, even if they do not prevail in that instance, are directly analogous to an Alex Jones or an election-denier issue for a platform moderation team. Even if Google is ultimately not found to be liable for the ISIS-related killing of Nohemi Gonzalez, allowing the case to proceed past the Section 230 veil will demonstrate that there is a plausible, common-sense nexus between amplification of certain material and harmful conduct.

Under a correct reading of 230 (i.e., no unconditional immunity for platforms), the platforms may be more effective in addressing inciting material—a goal that should have bipartisan support from lawmakers interested in both a proper reading of the statute and the general welfare of the nation. Unfortunately, this political monkey wrench in the Section 230 issue is part of a broader narrative in which social platforms have allegedly tilted the scales—but in favor of extreme right-wing material calling itself “conservative.” For instance, in February 2021, BuzzFeed reported:

Internal documents obtained by BuzzFeed News and interviews with 14 current and former employees show how the company’s policy team — guided by [Republican lobbyist and conspiracy promoter] Joel Kaplan, the vice president of global public policy, and Zuckerberg’s whims — has exerted outsize influence while obstructing content moderation decisions, stymieing product rollouts, and intervening on behalf of popular conservative figures who have violated Facebook’s rules.

This and other reports, including testimony before Congress, reveal a pattern of (if anything) pro right-wing bias at Facebook and other platforms, including evidence that the “anti-conservative” story itself is a fiction promoted by individuals like Kaplan. More specifically, Zuckerberg’s apparent resistance to remove Alex Jones from the platform demonstrates how the chronic misreading of Section 230 would only benefit a Trumpianized GOP that embraces every extremist willing to wear a red hat.

A correct reading of 230 opens the possibility that Facebook could be liable for hosting or “recommending” InfoWars, while an incorrect reading forecloses that possibility at summary judgment. Only one of these interpretations benefits those elements of the GOP who choose to align themselves more closely with that brand of “conservatism.” Thus, consistent with the Trumpian tactic of weaponizing alleged victimhood, the comparatively mild complaint of viewpoint bias in the Cruz brief is political theater—blaming social media platforms for actions that a) they have not taken; b) they have a constitutional right to take, if they want to; c) are unrelated to Section 230 immunity; and d) detract from an important legal question for real victims barred from pursuing relief by misreading the statute.

Cruz and his fellow amici have heard or read testimony from witnesses like whistleblower Frances Haugen, who explained to the Senate Commerce Committee how Facebook consistently put profits ahead of safety, adding, “The result has been a system that amplifies division, extremism, and polarization — and undermining societies around the world. In some cases, this dangerous online talk has led to actual violence that harms and even kills people.” Specifically, Haugen and other former insiders have repeated the theme that extremism has been good for social platforms—that angry users are active users, and active users translates to profit for these companies.

A proper reading of Section 230 will not solve every problem fostered by social platforms, but it can have the effect of forcing platform operators to identify when speech is reasonably linked to harmful conduct and to acknowledge a nexus between addictive algorithm design and illegal activity—from terrorism to “revenge porn.” Very real harms have been shielded and exacerbated by misreading Section 230, and it is this error of law which the Court should resolve. In the process, it should decline to address the subject of viewpoint neutrality as the inappropriate, political side show it is.