Category: reason

The Executive Power to Adjudicate

Article III vests the judicial power of the United States in the federal courts. (Post one.) We nonetheless have state and territorial courts, because they exercise the judicial power of other governments—their respective states and territories. (Post two.) But there is a vast amount of adjudication that takes place in none of these courts—it takes place in administrative agencies, in military courts, or in so-called Article I courts like the “tax court” or “court of federal claims.” What is going on with these tribunals?

First of all, none of these tribunals can properly be called courts, in the constitutional sense. None of them can legally exercise the judicial power of the United States, because they were not vested with it in compliance with Article III. And none of them are part of another territorial or membership-based government, like states, territories, tribes, etc., so they can’t exercise the judicial power of another government either.

Instead, they all exercise executive power. The military is part of the executive branch. The administrative agencies are part of the executive branch. And so too the so-called “legislative courts,” to the extent they are constitutionally permissible, must be part of the executive branch as well.

It is true that these executive agencies do something court-like. They hold hearings, deliberate, and reach and announce decisions. They adjudicate. But adjudication is just a procedure. It doesn’t tell you what kind of power they exercise. If the President wanted to hold a telephonic hearing pro and con on whether to issue a pardon, the ultimate decision would still be an exercise of executive power.

But there is an important limit to executive power, something that is not true of judicial power. Traditionally, executive power generally could not result in the lawful deprivation of life, liberty, or property. To confiscate somebody’s rightly-earned money, to put a free person in prison, to execute a suspected murderer all require the exercise of judicial review.

That is why traditionally executive adjudication was limited to so-called public rights or privileges. An agency could decide on its own whether to grant a license, issue a land grant, etc., because those decisions did not deprive anybody of life, liberty, or property. Similarly, the United States was protected against suits by sovereign immunity, so its decision whether to pay any claims against the United States was effectively a matter of grace, a privilege.

Now two things complicate this picture. (Again, you can read the article for gruesome detail, and for even more complications.) One is that administrative agencies today do many things that would be called a deprivation of property or liberty under modern doctrine; if we wanted to adhere to the original requirements of Article III, we might need to narrow the definitions of property and liberty or else to move some of their functions to Article III courts.

The other is that military tribunals have always issued adjudications that resulted in imprisonment or even death. But military adjudication is itself recognized by the text of the Constitution and it has a Founding-era pedigree. So we might justify it by saying that enlisting in the military temporarily forfeits your right to liberty and life, or else by simply saying that it is a traditional exception to the traditional due process requirement. Either way, though, military tribunals are not part of the judicial branch, they part of the executive branch, ultimately overseen by the Commander in Chief. That has some important implications I’ll discuss tomorrow.

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The Executive Power to Adjudicate

Article III vests the judicial power of the United States in the federal courts. (Post one.) We nonetheless have state and territorial courts, because they exercise the judicial power of other governments—their respective states and territories. (Post two.) But there is a vast amount of adjudication that takes place in none of these courts—it takes place in administrative agencies, in military courts, or in so-called Article I courts like the “tax court” or “court of federal claims.” What is going on with these tribunals?

First of all, none of these tribunals can properly be called courts, in the constitutional sense. None of them can legally exercise the judicial power of the United States, because they were not vested with it in compliance with Article III. And none of them are part of another territorial or membership-based government, like states, territories, tribes, etc., so they can’t exercise the judicial power of another government either.

Instead, they all exercise executive power. The military is part of the executive branch. The administrative agencies are part of the executive branch. And so too the so-called “legislative courts,” to the extent they are constitutionally permissible, must be part of the executive branch as well.

It is true that these executive agencies do something court-like. They hold hearings, deliberate, and reach and announce decisions. They adjudicate. But adjudication is just a procedure. It doesn’t tell you what kind of power they exercise. If the President wanted to hold a telephonic hearing pro and con on whether to issue a pardon, the ultimate decision would still be an exercise of executive power.

But there is an important limit to executive power, something that is not true of judicial power. Traditionally, executive power generally could not result in the lawful deprivation of life, liberty, or property. To confiscate somebody’s rightly-earned money, to put a free person in prison, to execute a suspected murderer all require the exercise of judicial review.

That is why traditionally executive adjudication was limited to so-called public rights or privileges. An agency could decide on its own whether to grant a license, issue a land grant, etc., because those decisions did not deprive anybody of life, liberty, or property. Similarly, the United States was protected against suits by sovereign immunity, so its decision whether to pay any claims against the United States was effectively a matter of grace, a privilege.

Now two things complicate this picture. (Again, you can read the article for gruesome detail, and for even more complications.) One is that administrative agencies today do many things that would be called a deprivation of property or liberty under modern doctrine; if we wanted to adhere to the original requirements of Article III, we might need to narrow the definitions of property and liberty or else to move some of their functions to Article III courts.

The other is that military tribunals have always issued adjudications that resulted in imprisonment or even death. But military adjudication is itself recognized by the text of the Constitution and it has a Founding-era pedigree. So we might justify it by saying that enlisting in the military temporarily forfeits your right to liberty and life, or else by simply saying that it is a traditional exception to the traditional due process requirement. Either way, though, military tribunals are not part of the judicial branch, they part of the executive branch, ultimately overseen by the Commander in Chief. That has some important implications I’ll discuss tomorrow.

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$1 Trillion Coronavirus Stimulus Unveiled: Corporate Bailouts and Loans, Checks for All

The Treasury Department on Wednesday released an outline for a third coronavirus stimulus bill, which includes bailouts and loans for the airline industry, small businesses, and other “critical sectors” of the U.S. economy; a temporary suspension on the limitations placed on the Exchange Stabilization Fund; and direct payments made to Americans.

The $1 trillion package comes as the Trump administration attempts to curb the economic chaos caused by the coronavirus, with many state and local governments imposing widespread restrictions that make business operations untenable. North Carolina, Washington, Pennsylvania, Maryland, New York, Ohio, Illinois, Massachusetts, California, Michigan, Washington, D.C., and others have issued temporary closures or limitations on bar and restaurant service as the nation is encouraged to practice social distancing in an attempt to stop the spread of COVID-19.

Perhaps the most controversial measure of the GOP-led proposal will be the $50 billion bailout of the airline industry. In order to qualify for loans, carriers would need to promise to limit executive compensation until the money is repaid. They also must vow to continue service—a strange stipulation in the face of a global pandemic that numerous countries are scrambling to contain. 

Many Republicans have been skeptical of bailouts in the past. The Emergency Economic Stabilization Act of 2008, signed by former President George W. Bush, bailed out the financial institutions that directly contributed to the Great Recession. From those ashes, the Tea Party was born, as several conservative lawmakers sought to re-establish the Republican Party as the leader of fiscal responsibility and free market principles. 

Some say that coronavirus is a different beast, requiring drastic measures to counterbalance government mandates that are directly harming businesses nationwide. 

“This is not like the financial meltdown, where you had banks that made bad decisions and asked the government to bail them out,” said Sen. Marco Rubio (R–Fla.), according to Politico. “We are basically telling people not to go out, not to spend money at these stores, and in some jurisdictions, not go to work…It’s an unprecedented challenge.”

That may make sense for small businesses, many of which will face insurmountable challenges in the coming months. The plan additionally carves out a $300 billion loan program to address that. But how that logic applies to airlines remains uncertain, particularly as the proposal, in its current form, mandates that they stay open—the exact opposite order given to many small businesses across the United States.

While no airline carrier can be blamed for the inability to foresee an unprecedented global pandemic, the colossal companies have come under fire in recent days for their business practices. Rep. Alexandria Ocasio-Cortez (D–N.Y.) and other progressives have been particularly focused on the issue of stock buybacks and have been pushing for demands from unions to be included in the deal.

Taxpayer-funded bailouts mostly serve to “protect executives, investors and lenders against the effects of poor risk management,” writes Joe Crahill at Crain’s Chicago Business. “And that means we’ll get more of it—along with less legroom.”

The plan also specifies that checks will be sent in the style of Universal Basic Income (UBI). The measure, popularized by Andrew Yang during his run in the Democratic presidential primaries, reached bipartisan consensus this week when Sen. Mitt Romney (R–Utah) declared his support for cutting everyone a check. As it stands, the stimulus allots $500 billion to be distributed to Americans in two payments, with the amount tiered based on income and family size, disbursed on April 8 and May 16.

In addition, the stimulus provides $150 billion for “other severely distressed sectors of the U.S. economy.” While the current plan does not specify exactly what those are, this likely refers to the hotel and casino industries—something President Donald Trump floated saving earlier this week, which is likely to generate some pushback.

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Federal Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue

I’ve been following an interesting case, Gerber v. Herskovitz, No. 19-cv-13726 (E.D. Mich.), and the ACLU of Michigan just filed an excellent amicus brief that I think summarizes the facts and the law very well, and explains why the plaintiffs should lose. A group of 6 to twelve protesters have been demonstrating each Saturday morning for allegedly 16 years outside an Ann Arbor synagogue, displaying pro-Palestinian, anti-Israel, and anti-Semitic signs; here is one, as alleged in the Complaint, but you can see more:

A member of the congregation, together with a member of another congregation which meets in the annex to the building have sued—apparently without the approval of the synagogue itself—claiming (to oversimplify a 95-page complaint):

The protesters’ speech is “group defamation” of Jews.

The protesters’ speech places the plaintiffs in a “false light.”

The protesters are violating 42 U.S.C. §§ 1981 & 1982, the federal statutes that have been read as banning discrimination in contracting and property transactions based on race or ethnicity (including discrimination based on the target’s being Jewish).

The City is failing to enforce city ordinances that limit placing signs on the grass by the sidewalk.

The protesters and the City are violating Michigan laws that ban discrimination in public accommodations.

The protesters and the City are violating the congregants’ religious freedom rights.

Here is the bulk of the ACLU’s brief; you can also read the plaintiffs’ Complaint, which includes a good deal of legal argument:

In this case, the ACLU agrees with the serious concerns that have been raised … about the message and tone of the challenged protests. Whatever one’s views about Israel and Palestine, it is offensive, upsetting, and distasteful for activists to stage political demonstrations outside a synagogue. And while most of the demonstrators’ signs are about Israel and Palestine, some have taken on a more disturbing tone that is widely seen to be anti-Semitic, such as those that read “Resist Jewish Power” and “Jewish Power Corrupts.” Especially in light of alarming incidents throughout our country indicating that anti-Semitism is on the rise, leaders in Ann Arbor are right to condemn the disturbing overtones of these protests. The ACLU, too, condemns such rhetoric and urges all protesters to pursue their political aims without resorting to inflammatory tropes about an entire religion, race, or ethnic group.

But there is a big difference between condemning an offensive political protest and asking a court to shut it down. First Amendment rights are indivisible: If public officials and courts have discretion to suppress speech they don’t like, then none of us truly enjoys the freedom of speech. Therefore, even the most outrageous speech on matters of public concern must be constitutionally protected. Where, as here, a small group of citizens peaceably assemble on a public sidewalk with signs and placards to publicize their political views, that activity is constitutionally protected—even though other groups of citizens are deeply offended, distressed, or hurt by the demonstrators’ message….

Facts

As alleged in the complaint, for many years a small group of anti-Israel protesters has gathered along the public sidewalks in front of the Beth Israel Congregation’s synagogue in Ann Arbor every Saturday morning. The protesters carry signs and placards that read “Boycott Israel,” “Stop U.S. Aid to Israel,” “End the Palestinian Holocaust,” “Stop Funding Israel,” “Free Palestine,” and “No More Wars for Israel.” Some of the signs bear much more disturbing messages such as “Resist Jewish Power,” “Jewish Power Corrupts,” and “No More Holocaust Movies.” Some of the protesters personally hold the signs, while others temporarily lean the signs against folding chairs or trees and stand or sit nearby. At the end of their demonstration, the participants take their signs and chairs home with them.

As the protesters stand or sit on or near the public sidewalk in front of the synagogue and on the opposite side of the street, they direct their signs to be visible to passersby on Washtenaw Avenue, a major four-lane road (also known as Business U.S. 23) that runs through the east side of Ann Arbor. The complaint does not allege that they block sidewalks, the synagogue’s driveway, or any vehicular or pedestrian traffic. It does not allege that they trespass on the synagogue’s private property such as their parking lot or the area of grass and trees behind the sidewalk. Nor is there any allegation that they personally confront worshipers, make any disruptive noise, or even initiate verbal communication with anyone associated with the synagogue.

The plaintiffs’ attorney asked the city to take action against the protesters. The city declined, explaining that the First Amendment protects their conduct. The plaintiffs now sue the protesters and the city, seeking damages and injunctive relief….

[II.] The protests in this case are protected by the First Amendment.

In light of the authorities cited above [the brief discussed the flagburning case, the near-funeral protest case, and more], it is clear that the protesters’ speech in this case—an offensive but peaceful demonstration on a public sidewalk displaying controversial messages on matters of public concern—is entitled to maximum protection under the First Amendment….

[A.] The “targeted picketing” and “captive audience” concepts do not apply because there is no law or ordinance in place designed to limit protests in this situation.

The plaintiffs’ assertion that the protesters are not protected by the First Amendment because they are allegedly engaged in “targeted picketing” rests on a misunderstanding of Frisby v. Schultz, 487 U.S. 474 (1988). In that case, the town in question had adopted an ordinance that banned picketing targeted at a residence, and the Supreme Court upheld the ordinance as a narrowly tailored “time, place, or manner” restriction on speech. Id. at 487-88. But the Sixth Circuit has made clear that, in the absence of such a law or ordinance, such picketing on a public street or sidewalk remains fully protected by the First Amendment. Dean v. Bylerly, 354 F.3d 540, 551 (6th Cir. 2004). Here, the plaintiffs allude to no Michigan statute or Ann Arbor ordinance that bans targeted picketing, so Frisby does not apply.

Dean likewise dooms the plaintiffs’ assertion that the protesters’ speech is unprotected because the congregants are allegedly a “captive audience.” The captive audience concept has been used only to uphold a restriction on speech that is already in place, as in Frisby. See id., 487 U.S. at 487 (explaining why “captive audience” concept justified ordinance prohibiting targeting picketing). In the absence of a duly enacted regulation, it has never been recognized as justification to restrict speech in a traditional public forum that is otherwise entitled to maximum constitutional protection. Again, as the Sixth Circuit explained in Dean: “Supreme Court precedent makes it clear that citizens have the constitutional right to use streets for assembly and communication. Although the government may restrict that right through appropriate regulations, that right remains unfettered unless and until the government passes such regulations.” Dean, 354 F.3d at 551.

[B.] Small group protests do not require a permit, and the city is not permitted to use its sign ordinances as a vehicle to restrict the protesters’ speech.

Contrary to the plaintiffs’ assertion, the protesters are not required to obtain a permit. Permits are sometimes required for large events that block streets or sidewalks, use sound amplification equipment, or require preparations for crowd control. But the Sixth Circuit has held that it is unconstitutional to require a permit for small-group protests that do none of those things. Am.-Arab Anti-Discrim. Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005). That holding applies here, as the protesters in this case are a small group who stand quietly alongside a public sidewalk without impeding traffic or causing a disturbance.

The plaintiffs are also mistaken in claiming that the protesters’ conduct is not protected by the First Amendment because it allegedly violates the city code. According to the plaintiffs, when some protesters temporarily place their signs on the ground or lean them against trees or chairs, they violate provisions of the code that prohibit placing items or signs in the public right-of-way.

But the Sixth Circuit has clearly held that local ordinances may not be used in this way to interfere with peaceful demonstrations. In Tucker v. City of Fairfield, 398 F.3d 457 (6th Cir. 2005), protesters used an inflatable rat balloon (a symbol of protest against unfair labor practices) as part of their demonstration in a public right-of-way. Id. at 460. They placed the balloon on the ground during their protest, which lasted one to two hours, and temporarily secured it with stakes to make sure it did not tip over. Id. Although a local ordinance prohibited placing “structures” in the public right-of-way, the Sixth Circuit held that enforcing the ordinance against the protesters’ use of the balloon violated the First Amendment. Id. at 460, 464. The balloon was temporary and easily movable, did not create a safety hazard or obstruct traffic, and was integral to their speech in a traditional public forum. Id. at 462-64.

In light of these authorities, in this case the city was required, and certainly entitled, to interpret its own code as neither prohibiting the protesters’ activities or requiring them to obtain a permit, either by the code’s own terms or because its enforcement under the circumstances would violate the First Amendment. See Am. Compl. ¶ 69. Notably, the plaintiffs’ complaint contains no allegation that the city treated the protesters in this case more favorably than similarly situated protesters with a different message or at a different location. In fact, when a city generally interprets and applies its ordinances so as not to prohibit small-group protest activity of the kind described here, taking action against any individual protest group based on the complaints of those who are outraged by the content of their speech would effectuate a “heckler’s veto” and therefore violate the First Amendment. See Bible Believers, 805 F.3d at 247.

[C.] A protest does not lose First Amendment protection when others think it is racist, bad for children, or has gone on too long.

It is not hard to see why the plaintiffs perceive the protests to be anti-Semitic. Whatever one’s views about Israel and Palestine, it is disturbing to see that the protesters have resorted to offensive messages about “Jewish power” and “Holocaust movies” outside a synagogue on a Saturday morning. Speaking out against Jews as a group, in front of a synagogue, is not an effective or appropriate response to the perceived misdeeds of Israel or the United States.

The merit of the plaintiffs’ legal claims, however, cannot be contingent upon the disturbing content of the protesters’ speech. It is a moral obligation in our community to advocate tolerance and respect for others, but the First Amendment does not allow the government, or this court, to censor speech for not adhering to those values. As the Supreme Court made clear in R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992), censoring speech for expressing negative views on the basis of race, religion, and other “disfavored topics” is unconstitutional viewpoint discrimination. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'” Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).

Nor does the protesters’ speech lose its protection under the First Amendment because it is alleged to be bad for children. It has been clear for decades that the First Amendment does not allow the government to broadly prohibit speech directed to adults for the sake of protecting children. See Reno v. ACLU, 521 U.S. 844, 875 (1997); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126-28 (1989). As the Supreme Court recognized more than fifty years ago, the government may not “reduce the adult population of Michigan to reading only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383 (1957).

The First Amendment also protects the protesters even though they have been demonstrating for a long period of time and the plaintiffs have grown weary of their activities. Some citizens perceive injustices that demand their sustained, vocal opposition for years on end; the First Amendment does not allow those who remain unpersuaded by their opponents’ speech to decide that “enough is enough.” Although it is easy to understand why the plaintiffs in this case want the protesters to go away, “we cannot react to that pain by punishing the speaker.” Snyder, 562 U.S. at 461. First Amendment rights do not have an expiration date.

[C.] The protesters are not engaged in intimidation, harassment, or obstruction that falls outside of First Amendment protection.

The plaintiffs’ complaint is also peppered with references to allegations that they and other congregants are being intimidated or harassed by the protesters. There is no reason to doubt that the plaintiffs and other congregants are genuinely distressed by the protest activity. But when political activity is involved, courts must protect speech even when it causes distress, anger, outrage, and pain. See Snyder, 562 U.S. at 457-61. Although true intimidation or harassing conduct would not be protected by the First Amendment, the protesters’ alleged activity in this case falls squarely on the constitutionally protected side of the line.

For intimidation, the constitutional standard is governed by Virginia v. Black, 538 U.S. 343, 360 (2003): “Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” A true threat is one in which the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359. Whatever else may be said about the protesters’ speech in this case, it does not come close to meeting the standard of true threats or “constitutionally proscribable” intimidation.

True harassment outside the protection of the First Amendment would be conduct that invades the rights of others, such as repeatedly and personally accosting individuals who express a desire to be left alone. See Hill v. Colorado, 530 U.S. 703, 718 (2000) (discussing the problem of “persistent ‘importunity, following and dogging’ after an offer to communicate has been declined” (quoting Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 204 (1921))). But in this case, there is no allegation that the protesters personally confront, follow, or initiate communication with worshipers or anyone else associated with the synagogue. As with intimidation, the complaint alleges no true harassment in the “constitutionally proscribable” sense of that word.

Nor are the protesters alleged to be engaged in other types of obstructive or disruptive conduct that falls outside the First Amendment’s protections. In Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), the Supreme Court partially upheld an injunction against abortion clinic protesters because they had repeatedly blocked the entrance and exit to the clinic, and their disruptive use of loudspeakers and bullhorns could be heard by vulnerable patients inside the facility. Id. at 758, 769, 772. By contrast, in this case the complaint does not allege that the protesters block the sidewalks, the synagogue’s driveway, or any vehicular or pedestrian traffic; it does not allege that they trespass on the synagogue’s private property; and it does not allege that the protesters make any disruptive noise. Therefore, the protesters’ speech remains fully protected by the First Amendment….

[III.] The plaintiffs’ claims should be dismissed.

Because the demonstrations in this case are protected by the First Amendment, the plaintiffs’ claims should be dismissed for failure to state a claim.

[A.] Civil rights statutes do not prohibit peaceful political protest on a public sidewalk even when the speech is perceived to be racist.

The plaintiffs’ complaint asserts that their rights are being violated under various federal and state civil rights statutes, such as 42 U.S.C. §§ 1981 and 1982 and the Elliott-Larsen Civil Rights Act (ELCRA), which in various forms prohibit discrimination in access to goods, services, property, contracts, and public accommodations on the basis of race, religion, and ethnicity. These civil rights statutes are the foundation of our national commitment to equal opportunity under the law. But they cannot be used to silence constitutionally protected speech, even when some of that speech is perceived to be in tension with the values of equality and non-discrimination that our civil rights laws are designed to protect.

The leading case in this area is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), where the Supreme Court held that a public accommodations law could not be used to prevent private parade organizers from excluding an LGBT group from marching. As a general matter, the Court observed, laws prohibiting discrimination based on sexual orientation are perfectly valid, and could be applied without difficulty to prevent discrimination in the provision of publicly available goods, services, and public accommodations. Id. at 572. But because parades are inherently expressive, the public accommodations law could not be applied to alter or censor the message of the parade’s private organizers, as doing so would violate their First Amendment rights to control their own message in a traditional public forum. Id. at 568-69, 572-73.

Here, the same principle applies. The protesters are not engaged in the type of activity validly regulated by federal or state civil rights laws, such as commercial transactions or operating a public accommodation. Nor are they preventing others from using or accessing synagogue property, and they are not even confronting individual worshipers on their way to or from services. Instead, they are engaged in quintessentially expressive activity in a traditional public forum—the precise conduct that the First Amendment protects, regardless of whether the message is “misguided, or even hurtful.” Id. at 574. The civil rights protections cited by the plaintiffs are profoundly important in commercial activity and public accommodations, but they cannot be used, as the plaintiffs are advocating here, to censor the peaceful expression of views on a public sidewalk because they are perceived to be racist or anti-Semitic.

[B.] The city does not violate the law by choosing not to restrict political protesters’ speech.

The plaintiffs’ complaint also asserts that the city is liable for failing to stop the protests. These claims fail for several reasons.

First, private citizens do not have a freestanding constitutional right to demand that state and local officials enforce their laws or protect citizens from unlawful conduct by others. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005); DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). Therefore, even if the protesters were violating a city ordinance as the plaintiffs allege, the city’s non-enforcement of that ordinance is not actionable.

Second, as discussed above, the city had a good reason not to enforce its code against the protesters in the manner the plaintiffs advocate: Doing so would violate the First Amendment. See Tucker v. City of Fairfield, 398 F.3d 457, 460-64 (6th Cir. 2005). As the Sixth Circuit recognized in Tucker, when an easily movable item like a protest sign is temporarily placed on the ground and does not create a safety hazard or obstruct pedestrian or vehicle traffic, prohibiting the activity through enforcement of a local sign ordinance is not a narrowly tailored means of serving a significant government interest. The city cannot be held liable for complying with controlling Sixth Circuit law on this issue.

Third, the facts alleged do not plausibly support a claim that the city is treating the plaintiffs differently based on their religion. There is no allegation, for example, that the city enforces its sign ordinance against protesters whose demonstrations affect different religious groups or non-religious groups, while allowing protests affecting the plaintiffs to continue unabated. To the contrary, the city allows (as it must) any and all protesters to demonstrate in a traditional public forum, without regard to whether the nearest building happens to be a synagogue, a mosque, a restaurant, or city hall. So there is no equal protection or free exercise violation. See Prater v. City of Burnside, Ky., 289 F.3d 417, 429 (6th Cir. 2002).

In fact, singling out the protesters for restrictions is exactly what the city cannot do. If the city adopted a practice of treating some protesters differently based on complaints of other citizens who were outraged by the protesters’ message, doing so would effectuate a “heckler’s veto” in violation of the First Amendment. See Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992) (“Listeners’ reaction to speech is not a content-neutral basis for regulation.”). Therefore, the city is not liable. {For similar reasons, the plaintiffs fail to state claims against the city for violating the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).}

[C.] Political protesters are not state actors.

The court should reject the plaintiffs’ attempts to hold the protesters liable for constitutional violations, as such liability can attach only to state action. Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001); Lansing v. City of Memphis, 202 F.3d 821 (6th Cir. 2000). Political activists staging a demonstration on a public sidewalk cannot be deemed state actors merely because actual state actors choose not to stop the protest activity.

There are three tests to determine whether a private entity can be liable for state action: the public function test, the state compulsion test, and the nexus test. Lansing, 202 F.3d at 828. None is satisfied here. Plainly, the protesters are not performing a public function “such as holding elections or eminent domain.” Id. Nor has the city coerced the protesters to take the action that the plaintiffs believe violate their rights. See id. at 829. And there is no “sufficiently close nexus” between the city and the protesters such that the acts of the protesters “may be fairly treated” as those of the city itself. Id. at 830-34.

Similarly, the allegations in the plaintiffs’ complaint do not plausibly support their claims that there is a “conspiracy” between the protesters and the city so as to subject the protesters to liability for any alleged violation of the plaintiffs’ constitutional rights. See Siefert v. Hamilton Cty., __ F.3d __, 2020 WL 1023010, *11 (6th Cir. 2020); Revis v. Meldrum, 489 F.3d 273, 290-91 (6th Cir. 2007). Inaction by the city does not plausibly suggest a conspiracy, nor does the city communicating with the protesters regarding their legal rights. See B & B Entm’t, Inc. v. Dunfee, 630 F. Supp. 2d 870, 881 (S.D. Ohio 2009).

[D.] The First Amendment protects political protesters from state-law tort claims.

The Supreme Court has repeatedly recognized that in a free society, those who are deeply offended or angered by political speech cannot circumvent the First Amendment by artfully pleading common-law torts under state law. Snyder, 562 U.S. at 451; Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988). Here, too, because the protesters’ speech is constitutionally protected, the plaintiffs’ defamation and related state-law tort claims must be dismissed.

“Whether a statement is actually capable of defamatory meaning is a preliminary question of law for the court to decide,” and “can be resolved on the pleadings alone.” Ghanam v. Does, 845 N.W.2d 128, 141, 143 (Mich. Ct. App. 2014). Although true defamation is not protected by the First Amendment, a “statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). “Rhetorical hyperbole” and “exaggerated language” are not defamatory. Greenbelt Co-op Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970); Hodgins v. Times Herald Co., 425 N.W.2d 522 (Mich. Ct. App. 1988). A statement must be “provable as false” to be actionable. Ireland v. Edwards, 584 N.W.2d 632, 637 (Mich. Ct. App. 1998). “Claims of defamation by implication … face a severe constitutional hurdle.” Locricchio v. Evening News Ass’n, 476 N.W.2d 112, 129 (Mich. 1991).

Additionally, “it is constitutionally required that a statement be made ‘of and concerning’ the party allegedly defamed for a cause of action in defamation to lie.” QSP, Inc. v. Aetna Cas. & Sur. Co., 773 A.2d 906, 916 n.14 (Conn. 2001); see also Hazime v. Fox TV Stations, Inc., 2013 WL 4483485, *7 (E.D. Mich. Aug. 19, 2013). A plaintiff can be a member of a small group defamed by a statement, but “where [a] group is large—in general, any group numbering over twenty-five members— … courts … have consistently held that plaintiffs cannot show that the statements were ‘of and concerning them.'” Barger v. Playboy Enters., Inc., 564 F. Supp. 1151, 1153 (N.D. Cal. 1983).

Here, the plaintiffs’ allegations regarding the protesters’ “End the Palestinian holocaust” sign, see Am. Compl. ¶ 204, fails to state a claim for at least two reasons. First, whether events or conditions arising from ethnic strife can be characterized as a “holocaust” is a matter of opinion. See Milkovich, 497 U.S. at 20. No “evidence” could prove or disprove it as a “fact,” as using the term is not “saying something definite enough to allow a jury to determine whether what you are saying is true or false.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996). Emotionally charged terms like “Palestinian holocaust” are widely recognized as a kind of “rhetorical hyperbole,” or “loose, figurative” and “exaggerated language,” part “of the conventional give-and-take in our economic and political controversies,” and thus not reasonably deemed a factual assertion susceptible to defamation claims. Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974).

Second, the statement fails the individualized “of and concerning” requirement because it cannot be reasonably interpreted as accusing the plaintiffs, personally, of committing atrocities. Curtis v. Evening News Ass’n, 352 N.W.2d 355, 356 (Mich. Ct. App. 1984). No reasonable observer would think that the protesters’ “End the Palestinian holocaust” sign implies a factual accusation that the plaintiffs, Marvin Gerber or Dr. Miriam Brysk, are personally responsible, in a factual sense, for the deaths of Palestinians. Expressing political opinions about Israel, Palestine, and American foreign policy near a synagogue may be offensive and wrong, but it is not defamation.

For the same reasons, the plaintiffs’ remaining state-law tort claims, such as false light and intentional infliction of emotional distress, must also be dismissed. “When the alleged tortious conduct is a defendant’s utterance of negative statements concerning a plaintiff, privileged speech protected by the First Amendment is a defense.” Sarkar v. Doe, 897 N.W.2d 207, 232 n.24 (Mich. Ct. App. 2016); see also Snyder, 562 U.S. at 458-60; Hustler Magazine, 485 U.S. at 56; Ireland, 584 N.W.2d at 640-41. Because the First Amendment protects the protesters’ speech, it requires dismissal of all state-law tort claims.

Conclusion

There are good reasons to condemn the protesters who are being sued in this case, and to empathize with the plaintiffs and their congregation. Whatever one’s views about Israel and Palestine, the protesters’ decision to express their views by demonstrating in front of a synagogue on Saturday mornings is unseemly and distasteful—particularly when some of their signs and placards appear to speak out against Jews as a group.

But this case is not about whether we approve of the protesters’ message or tactics. To protect unobjectionable speech, the First Amendment is rarely needed. “In fact, it is the minority view, including expressive behavior deemed distasteful and highly offensive to the vast majority of people, that most often needs protection under the First Amendment.” Bible Believers, 805 F.3d at 243. “This protection applies to loathsome and unpopular speech with the same force as it does to speech that is celebrated and widely accepted.” Id. And to deny that protection is to gamble with the liberties we cherish for all: “If we encroach on the free-speech rights of groups that we dislike today, those same doctrines can be used in the future to suppress freedom of speech for groups that we like.” Id. at 264 (Boggs, J., concurring).

The protesters in this case are a small group of citizens who demonstrate “peacefully on matters of public concern at a public place adjacent to a public street.” Snyder, 562 U.S. at 456. If we are to maintain a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), then the offensive, distressing, and even outrageous nature of their demonstration cannot justify any of the relief the plaintiffs seek here….

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$1 Trillion Coronavirus Stimulus Unveiled: Corporate Bailouts and Loans, Checks for All

The Treasury Department on Wednesday released an outline for a third coronavirus stimulus bill, which includes bailouts and loans for the airline industry, small businesses, and other “critical sectors” of the U.S. economy; a temporary suspension on the limitations placed on the Exchange Stabilization Fund; and direct payments made to Americans.

The $1 trillion package comes as the Trump administration attempts to curb the economic chaos caused by the coronavirus, with many state and local governments imposing widespread restrictions that make business operations untenable. North Carolina, Washington, Pennsylvania, Maryland, New York, Ohio, Illinois, Massachusetts, California, Michigan, Washington, D.C., and others have issued temporary closures or limitations on bar and restaurant service as the nation is encouraged to practice social distancing in an attempt to stop the spread of COVID-19.

Perhaps the most controversial measure of the GOP-led proposal will be the $50 billion bailout of the airline industry. In order to qualify for loans, carriers would need to promise to limit executive compensation until the money is repaid. They also must vow to continue service—a strange stipulation in the face of a global pandemic that numerous countries are scrambling to contain. 

Many Republicans have been skeptical of bailouts in the past. The Emergency Economic Stabilization Act of 2008, signed by former President George W. Bush, bailed out the financial institutions that directly contributed to the Great Recession. From those ashes, the Tea Party was born, as some conservative lawmakers sought to re-establish the Republican Party as the leader of fiscal responsibility and free market principles. 

Some say that coronavirus is a different beast, requiring drastic measures to counterbalance government mandates that are directly harming businesses nationwide. 

“This is not like the financial meltdown, where you had banks that made bad decisions and asked the government to bail them out,” said Sen. Marco Rubio (R–Fla.), according to Politico. “We are basically telling people not to go out, not to spend money at these stores, and in some jurisdictions, not go to work…It’s an unprecedented challenge.”

That may make sense for small businesses, many of which will face insurmountable challenges in the coming months. The plan carves out a $300 billion loan program to address that. But how that logic applies to airlines remains uncertain, particularly as the proposal, in its current form, mandates that they stay open—the exact opposite order given to many small businesses across the United States.

While no airline carrier can be blamed for the inability to foresee an unprecedented global pandemic, the colossal companies have come under fire in recent days for their business practices. Rep. Alexandria Ocasio-Cortez (D–N.Y.) and other progressives have been particularly focused on the issue of stock buybacks and have been pushing for demands from unions to be included in the deal.

Taxpayer-funded bailouts mostly serve to “protect executives, investors and lenders against the effects of poor risk management,” writes Joe Crahill at Crain’s Chicago Business. “And that means we’ll get more of it—along with less legroom.”

The plan also specifies that checks will be sent in the style of Universal Basic Income (UBI). The measure, popularized by Andrew Yang during his run in the Democratic presidential primaries, reached bipartisan consensus this week when Sen. Mitt Romney (R–Utah) declared his support for cutting everyone a check. As it stands, the stimulus allots $500 billion to be distributed to Americans in two payments, with the amount tiered based on income and family size, disbursed on April 8 and May 16.

In addition, the stimulus provides $150 billion for “other severely distressed sectors of the U.S. economy.” While the current plan does not specify exactly what those are, this likely refers to the hotel and casino industries—something President Donald Trump floated saving earlier this week, which is likely to generate some pushback.

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Federal Lawsuit Against Pro-Palestinian / Anti-Semitic Protesters Outside Synagogue

I’ve been following an interesting case, Gerber v. Herskovitz, No. 19-cv-13726 (E.D. Mich.), and the ACLU of Michigan just filed an excellent amicus brief that I think summarizes the facts and the law very well, and explains why the plaintiffs should lose. A group of 6 to twelve protesters have been demonstrating each Saturday morning for allegedly 16 years outside an Ann Arbor synagogue, displaying pro-Palestinian, anti-Israel, and anti-Semitic signs; here is one, as alleged in the Complaint, but you can see more:

A member of the congregation, together with a member of another congregation which meets in the annex to the building have sued—apparently without the approval of the synagogue itself—claiming (to oversimplify a 95-page complaint):

The protesters’ speech is “group defamation” of Jews.

The protesters’ speech places the plaintiffs in a “false light.”

The protesters are violating 42 U.S.C. §§ 1981 & 1982, the federal statutes that have been read as banning discrimination in contracting and property transactions based on race or ethnicity (including discrimination based on the target’s being Jewish).

The City is failing to enforce city ordinances that limit placing signs on the grass by the sidewalk.

The protesters and the City are violating Michigan laws that ban discrimination in public accommodations.

The protesters and the City are violating the congregants’ religious freedom rights.

Here is the bulk of the ACLU’s brief; you can also read the plaintiffs’ Complaint, which includes a good deal of legal argument:

In this case, the ACLU agrees with the serious concerns that have been raised … about the message and tone of the challenged protests. Whatever one’s views about Israel and Palestine, it is offensive, upsetting, and distasteful for activists to stage political demonstrations outside a synagogue. And while most of the demonstrators’ signs are about Israel and Palestine, some have taken on a more disturbing tone that is widely seen to be anti-Semitic, such as those that read “Resist Jewish Power” and “Jewish Power Corrupts.” Especially in light of alarming incidents throughout our country indicating that anti-Semitism is on the rise, leaders in Ann Arbor are right to condemn the disturbing overtones of these protests. The ACLU, too, condemns such rhetoric and urges all protesters to pursue their political aims without resorting to inflammatory tropes about an entire religion, race, or ethnic group.

But there is a big difference between condemning an offensive political protest and asking a court to shut it down. First Amendment rights are indivisible: If public officials and courts have discretion to suppress speech they don’t like, then none of us truly enjoys the freedom of speech. Therefore, even the most outrageous speech on matters of public concern must be constitutionally protected. Where, as here, a small group of citizens peaceably assemble on a public sidewalk with signs and placards to publicize their political views, that activity is constitutionally protected—even though other groups of citizens are deeply offended, distressed, or hurt by the demonstrators’ message….

Facts

As alleged in the complaint, for many years a small group of anti-Israel protesters has gathered along the public sidewalks in front of the Beth Israel Congregation’s synagogue in Ann Arbor every Saturday morning. The protesters carry signs and placards that read “Boycott Israel,” “Stop U.S. Aid to Israel,” “End the Palestinian Holocaust,” “Stop Funding Israel,” “Free Palestine,” and “No More Wars for Israel.” Some of the signs bear much more disturbing messages such as “Resist Jewish Power,” “Jewish Power Corrupts,” and “No More Holocaust Movies.” Some of the protesters personally hold the signs, while others temporarily lean the signs against folding chairs or trees and stand or sit nearby. At the end of their demonstration, the participants take their signs and chairs home with them.

As the protesters stand or sit on or near the public sidewalk in front of the synagogue and on the opposite side of the street, they direct their signs to be visible to passersby on Washtenaw Avenue, a major four-lane road (also known as Business U.S. 23) that runs through the east side of Ann Arbor. The complaint does not allege that they block sidewalks, the synagogue’s driveway, or any vehicular or pedestrian traffic. It does not allege that they trespass on the synagogue’s private property such as their parking lot or the area of grass and trees behind the sidewalk. Nor is there any allegation that they personally confront worshipers, make any disruptive noise, or even initiate verbal communication with anyone associated with the synagogue.

The plaintiffs’ attorney asked the city to take action against the protesters. The city declined, explaining that the First Amendment protects their conduct. The plaintiffs now sue the protesters and the city, seeking damages and injunctive relief….

[II.] The protests in this case are protected by the First Amendment.

In light of the authorities cited above [the brief discussed the flagburning case, the near-funeral protest case, and more], it is clear that the protesters’ speech in this case—an offensive but peaceful demonstration on a public sidewalk displaying controversial messages on matters of public concern—is entitled to maximum protection under the First Amendment….

[A.] The “targeted picketing” and “captive audience” concepts do not apply because there is no law or ordinance in place designed to limit protests in this situation.

The plaintiffs’ assertion that the protesters are not protected by the First Amendment because they are allegedly engaged in “targeted picketing” rests on a misunderstanding of Frisby v. Schultz, 487 U.S. 474 (1988). In that case, the town in question had adopted an ordinance that banned picketing targeted at a residence, and the Supreme Court upheld the ordinance as a narrowly tailored “time, place, or manner” restriction on speech. Id. at 487-88. But the Sixth Circuit has made clear that, in the absence of such a law or ordinance, such picketing on a public street or sidewalk remains fully protected by the First Amendment. Dean v. Bylerly, 354 F.3d 540, 551 (6th Cir. 2004). Here, the plaintiffs allude to no Michigan statute or Ann Arbor ordinance that bans targeted picketing, so Frisby does not apply.

Dean likewise dooms the plaintiffs’ assertion that the protesters’ speech is unprotected because the congregants are allegedly a “captive audience.” The captive audience concept has been used only to uphold a restriction on speech that is already in place, as in Frisby. See id., 487 U.S. at 487 (explaining why “captive audience” concept justified ordinance prohibiting targeting picketing). In the absence of a duly enacted regulation, it has never been recognized as justification to restrict speech in a traditional public forum that is otherwise entitled to maximum constitutional protection. Again, as the Sixth Circuit explained in Dean: “Supreme Court precedent makes it clear that citizens have the constitutional right to use streets for assembly and communication. Although the government may restrict that right through appropriate regulations, that right remains unfettered unless and until the government passes such regulations.” Dean, 354 F.3d at 551.

[B.] Small group protests do not require a permit, and the city is not permitted to use its sign ordinances as a vehicle to restrict the protesters’ speech.

Contrary to the plaintiffs’ assertion, the protesters are not required to obtain a permit. Permits are sometimes required for large events that block streets or sidewalks, use sound amplification equipment, or require preparations for crowd control. But the Sixth Circuit has held that it is unconstitutional to require a permit for small-group protests that do none of those things. Am.-Arab Anti-Discrim. Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005). That holding applies here, as the protesters in this case are a small group who stand quietly alongside a public sidewalk without impeding traffic or causing a disturbance.

The plaintiffs are also mistaken in claiming that the protesters’ conduct is not protected by the First Amendment because it allegedly violates the city code. According to the plaintiffs, when some protesters temporarily place their signs on the ground or lean them against trees or chairs, they violate provisions of the code that prohibit placing items or signs in the public right-of-way.

But the Sixth Circuit has clearly held that local ordinances may not be used in this way to interfere with peaceful demonstrations. In Tucker v. City of Fairfield, 398 F.3d 457 (6th Cir. 2005), protesters used an inflatable rat balloon (a symbol of protest against unfair labor practices) as part of their demonstration in a public right-of-way. Id. at 460. They placed the balloon on the ground during their protest, which lasted one to two hours, and temporarily secured it with stakes to make sure it did not tip over. Id. Although a local ordinance prohibited placing “structures” in the public right-of-way, the Sixth Circuit held that enforcing the ordinance against the protesters’ use of the balloon violated the First Amendment. Id. at 460, 464. The balloon was temporary and easily movable, did not create a safety hazard or obstruct traffic, and was integral to their speech in a traditional public forum. Id. at 462-64.

In light of these authorities, in this case the city was required, and certainly entitled, to interpret its own code as neither prohibiting the protesters’ activities or requiring them to obtain a permit, either by the code’s own terms or because its enforcement under the circumstances would violate the First Amendment. See Am. Compl. ¶ 69. Notably, the plaintiffs’ complaint contains no allegation that the city treated the protesters in this case more favorably than similarly situated protesters with a different message or at a different location. In fact, when a city generally interprets and applies its ordinances so as not to prohibit small-group protest activity of the kind described here, taking action against any individual protest group based on the complaints of those who are outraged by the content of their speech would effectuate a “heckler’s veto” and therefore violate the First Amendment. See Bible Believers, 805 F.3d at 247.

[C.] A protest does not lose First Amendment protection when others think it is racist, bad for children, or has gone on too long.

It is not hard to see why the plaintiffs perceive the protests to be anti-Semitic. Whatever one’s views about Israel and Palestine, it is disturbing to see that the protesters have resorted to offensive messages about “Jewish power” and “Holocaust movies” outside a synagogue on a Saturday morning. Speaking out against Jews as a group, in front of a synagogue, is not an effective or appropriate response to the perceived misdeeds of Israel or the United States.

The merit of the plaintiffs’ legal claims, however, cannot be contingent upon the disturbing content of the protesters’ speech. It is a moral obligation in our community to advocate tolerance and respect for others, but the First Amendment does not allow the government, or this court, to censor speech for not adhering to those values. As the Supreme Court made clear in R.A.V. v. City of St. Paul, 505 U.S. 377, 391-92 (1992), censoring speech for expressing negative views on the basis of race, religion, and other “disfavored topics” is unconstitutional viewpoint discrimination. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'” Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).

Nor does the protesters’ speech lose its protection under the First Amendment because it is alleged to be bad for children. It has been clear for decades that the First Amendment does not allow the government to broadly prohibit speech directed to adults for the sake of protecting children. See Reno v. ACLU, 521 U.S. 844, 875 (1997); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126-28 (1989). As the Supreme Court recognized more than fifty years ago, the government may not “reduce the adult population of Michigan to reading only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383 (1957).

The First Amendment also protects the protesters even though they have been demonstrating for a long period of time and the plaintiffs have grown weary of their activities. Some citizens perceive injustices that demand their sustained, vocal opposition for years on end; the First Amendment does not allow those who remain unpersuaded by their opponents’ speech to decide that “enough is enough.” Although it is easy to understand why the plaintiffs in this case want the protesters to go away, “we cannot react to that pain by punishing the speaker.” Snyder, 562 U.S. at 461. First Amendment rights do not have an expiration date.

[C.] The protesters are not engaged in intimidation, harassment, or obstruction that falls outside of First Amendment protection.

The plaintiffs’ complaint is also peppered with references to allegations that they and other congregants are being intimidated or harassed by the protesters. There is no reason to doubt that the plaintiffs and other congregants are genuinely distressed by the protest activity. But when political activity is involved, courts must protect speech even when it causes distress, anger, outrage, and pain. See Snyder, 562 U.S. at 457-61. Although true intimidation or harassing conduct would not be protected by the First Amendment, the protesters’ alleged activity in this case falls squarely on the constitutionally protected side of the line.

For intimidation, the constitutional standard is governed by Virginia v. Black, 538 U.S. 343, 360 (2003): “Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” A true threat is one in which the speaker “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359. Whatever else may be said about the protesters’ speech in this case, it does not come close to meeting the standard of true threats or “constitutionally proscribable” intimidation.

True harassment outside the protection of the First Amendment would be conduct that invades the rights of others, such as repeatedly and personally accosting individuals who express a desire to be left alone. See Hill v. Colorado, 530 U.S. 703, 718 (2000) (discussing the problem of “persistent ‘importunity, following and dogging’ after an offer to communicate has been declined” (quoting Am. Steel Foundries v. Tri-City Cent. Trades Council, 257 U.S. 184, 204 (1921))). But in this case, there is no allegation that the protesters personally confront, follow, or initiate communication with worshipers or anyone else associated with the synagogue. As with intimidation, the complaint alleges no true harassment in the “constitutionally proscribable” sense of that word.

Nor are the protesters alleged to be engaged in other types of obstructive or disruptive conduct that falls outside the First Amendment’s protections. In Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), the Supreme Court partially upheld an injunction against abortion clinic protesters because they had repeatedly blocked the entrance and exit to the clinic, and their disruptive use of loudspeakers and bullhorns could be heard by vulnerable patients inside the facility. Id. at 758, 769, 772. By contrast, in this case the complaint does not allege that the protesters block the sidewalks, the synagogue’s driveway, or any vehicular or pedestrian traffic; it does not allege that they trespass on the synagogue’s private property; and it does not allege that the protesters make any disruptive noise. Therefore, the protesters’ speech remains fully protected by the First Amendment….

[III.] The plaintiffs’ claims should be dismissed.

Because the demonstrations in this case are protected by the First Amendment, the plaintiffs’ claims should be dismissed for failure to state a claim.

[A.] Civil rights statutes do not prohibit peaceful political protest on a public sidewalk even when the speech is perceived to be racist.

The plaintiffs’ complaint asserts that their rights are being violated under various federal and state civil rights statutes, such as 42 U.S.C. §§ 1981 and 1982 and the Elliott-Larsen Civil Rights Act (ELCRA), which in various forms prohibit discrimination in access to goods, services, property, contracts, and public accommodations on the basis of race, religion, and ethnicity. These civil rights statutes are the foundation of our national commitment to equal opportunity under the law. But they cannot be used to silence constitutionally protected speech, even when some of that speech is perceived to be in tension with the values of equality and non-discrimination that our civil rights laws are designed to protect.

The leading case in this area is Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), where the Supreme Court held that a public accommodations law could not be used to prevent private parade organizers from excluding an LGBT group from marching. As a general matter, the Court observed, laws prohibiting discrimination based on sexual orientation are perfectly valid, and could be applied without difficulty to prevent discrimination in the provision of publicly available goods, services, and public accommodations. Id. at 572. But because parades are inherently expressive, the public accommodations law could not be applied to alter or censor the message of the parade’s private organizers, as doing so would violate their First Amendment rights to control their own message in a traditional public forum. Id. at 568-69, 572-73.

Here, the same principle applies. The protesters are not engaged in the type of activity validly regulated by federal or state civil rights laws, such as commercial transactions or operating a public accommodation. Nor are they preventing others from using or accessing synagogue property, and they are not even confronting individual worshipers on their way to or from services. Instead, they are engaged in quintessentially expressive activity in a traditional public forum—the precise conduct that the First Amendment protects, regardless of whether the message is “misguided, or even hurtful.” Id. at 574. The civil rights protections cited by the plaintiffs are profoundly important in commercial activity and public accommodations, but they cannot be used, as the plaintiffs are advocating here, to censor the peaceful expression of views on a public sidewalk because they are perceived to be racist or anti-Semitic.

[B.] The city does not violate the law by choosing not to restrict political protesters’ speech.

The plaintiffs’ complaint also asserts that the city is liable for failing to stop the protests. These claims fail for several reasons.

First, private citizens do not have a freestanding constitutional right to demand that state and local officials enforce their laws or protect citizens from unlawful conduct by others. Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005); DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). Therefore, even if the protesters were violating a city ordinance as the plaintiffs allege, the city’s non-enforcement of that ordinance is not actionable.

Second, as discussed above, the city had a good reason not to enforce its code against the protesters in the manner the plaintiffs advocate: Doing so would violate the First Amendment. See Tucker v. City of Fairfield, 398 F.3d 457, 460-64 (6th Cir. 2005). As the Sixth Circuit recognized in Tucker, when an easily movable item like a protest sign is temporarily placed on the ground and does not create a safety hazard or obstruct pedestrian or vehicle traffic, prohibiting the activity through enforcement of a local sign ordinance is not a narrowly tailored means of serving a significant government interest. The city cannot be held liable for complying with controlling Sixth Circuit law on this issue.

Third, the facts alleged do not plausibly support a claim that the city is treating the plaintiffs differently based on their religion. There is no allegation, for example, that the city enforces its sign ordinance against protesters whose demonstrations affect different religious groups or non-religious groups, while allowing protests affecting the plaintiffs to continue unabated. To the contrary, the city allows (as it must) any and all protesters to demonstrate in a traditional public forum, without regard to whether the nearest building happens to be a synagogue, a mosque, a restaurant, or city hall. So there is no equal protection or free exercise violation. See Prater v. City of Burnside, Ky., 289 F.3d 417, 429 (6th Cir. 2002).

In fact, singling out the protesters for restrictions is exactly what the city cannot do. If the city adopted a practice of treating some protesters differently based on complaints of other citizens who were outraged by the protesters’ message, doing so would effectuate a “heckler’s veto” in violation of the First Amendment. See Forsyth Cty., Ga. v. Nationalist Movement, 505 U.S. 123, 134 (1992) (“Listeners’ reaction to speech is not a content-neutral basis for regulation.”). Therefore, the city is not liable. {For similar reasons, the plaintiffs fail to state claims against the city for violating the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA).}

[C.] Political protesters are not state actors.

The court should reject the plaintiffs’ attempts to hold the protesters liable for constitutional violations, as such liability can attach only to state action. Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001); Lansing v. City of Memphis, 202 F.3d 821 (6th Cir. 2000). Political activists staging a demonstration on a public sidewalk cannot be deemed state actors merely because actual state actors choose not to stop the protest activity.

There are three tests to determine whether a private entity can be liable for state action: the public function test, the state compulsion test, and the nexus test. Lansing, 202 F.3d at 828. None is satisfied here. Plainly, the protesters are not performing a public function “such as holding elections or eminent domain.” Id. Nor has the city coerced the protesters to take the action that the plaintiffs believe violate their rights. See id. at 829. And there is no “sufficiently close nexus” between the city and the protesters such that the acts of the protesters “may be fairly treated” as those of the city itself. Id. at 830-34.

Similarly, the allegations in the plaintiffs’ complaint do not plausibly support their claims that there is a “conspiracy” between the protesters and the city so as to subject the protesters to liability for any alleged violation of the plaintiffs’ constitutional rights. See Siefert v. Hamilton Cty., __ F.3d __, 2020 WL 1023010, *11 (6th Cir. 2020); Revis v. Meldrum, 489 F.3d 273, 290-91 (6th Cir. 2007). Inaction by the city does not plausibly suggest a conspiracy, nor does the city communicating with the protesters regarding their legal rights. See B & B Entm’t, Inc. v. Dunfee, 630 F. Supp. 2d 870, 881 (S.D. Ohio 2009).

[D.] The First Amendment protects political protesters from state-law tort claims.

The Supreme Court has repeatedly recognized that in a free society, those who are deeply offended or angered by political speech cannot circumvent the First Amendment by artfully pleading common-law torts under state law. Snyder, 562 U.S. at 451; Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50 (1988). Here, too, because the protesters’ speech is constitutionally protected, the plaintiffs’ defamation and related state-law tort claims must be dismissed.

“Whether a statement is actually capable of defamatory meaning is a preliminary question of law for the court to decide,” and “can be resolved on the pleadings alone.” Ghanam v. Does, 845 N.W.2d 128, 141, 143 (Mich. Ct. App. 2014). Although true defamation is not protected by the First Amendment, a “statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990). “Rhetorical hyperbole” and “exaggerated language” are not defamatory. Greenbelt Co-op Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970); Hodgins v. Times Herald Co., 425 N.W.2d 522 (Mich. Ct. App. 1988). A statement must be “provable as false” to be actionable. Ireland v. Edwards, 584 N.W.2d 632, 637 (Mich. Ct. App. 1998). “Claims of defamation by implication … face a severe constitutional hurdle.” Locricchio v. Evening News Ass’n, 476 N.W.2d 112, 129 (Mich. 1991).

Additionally, “it is constitutionally required that a statement be made ‘of and concerning’ the party allegedly defamed for a cause of action in defamation to lie.” QSP, Inc. v. Aetna Cas. & Sur. Co., 773 A.2d 906, 916 n.14 (Conn. 2001); see also Hazime v. Fox TV Stations, Inc., 2013 WL 4483485, *7 (E.D. Mich. Aug. 19, 2013). A plaintiff can be a member of a small group defamed by a statement, but “where [a] group is large—in general, any group numbering over twenty-five members— … courts … have consistently held that plaintiffs cannot show that the statements were ‘of and concerning them.'” Barger v. Playboy Enters., Inc., 564 F. Supp. 1151, 1153 (N.D. Cal. 1983).

Here, the plaintiffs’ allegations regarding the protesters’ “End the Palestinian holocaust” sign, see Am. Compl. ¶ 204, fails to state a claim for at least two reasons. First, whether events or conditions arising from ethnic strife can be characterized as a “holocaust” is a matter of opinion. See Milkovich, 497 U.S. at 20. No “evidence” could prove or disprove it as a “fact,” as using the term is not “saying something definite enough to allow a jury to determine whether what you are saying is true or false.” Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996). Emotionally charged terms like “Palestinian holocaust” are widely recognized as a kind of “rhetorical hyperbole,” or “loose, figurative” and “exaggerated language,” part “of the conventional give-and-take in our economic and political controversies,” and thus not reasonably deemed a factual assertion susceptible to defamation claims. Letter Carriers v. Austin, 418 U.S. 264, 284-86 (1974).

Second, the statement fails the individualized “of and concerning” requirement because it cannot be reasonably interpreted as accusing the plaintiffs, personally, of committing atrocities. Curtis v. Evening News Ass’n, 352 N.W.2d 355, 356 (Mich. Ct. App. 1984). No reasonable observer would think that the protesters’ “End the Palestinian holocaust” sign implies a factual accusation that the plaintiffs, Marvin Gerber or Dr. Miriam Brysk, are personally responsible, in a factual sense, for the deaths of Palestinians. Expressing political opinions about Israel, Palestine, and American foreign policy near a synagogue may be offensive and wrong, but it is not defamation.

For the same reasons, the plaintiffs’ remaining state-law tort claims, such as false light and intentional infliction of emotional distress, must also be dismissed. “When the alleged tortious conduct is a defendant’s utterance of negative statements concerning a plaintiff, privileged speech protected by the First Amendment is a defense.” Sarkar v. Doe, 897 N.W.2d 207, 232 n.24 (Mich. Ct. App. 2016); see also Snyder, 562 U.S. at 458-60; Hustler Magazine, 485 U.S. at 56; Ireland, 584 N.W.2d at 640-41. Because the First Amendment protects the protesters’ speech, it requires dismissal of all state-law tort claims.

Conclusion

There are good reasons to condemn the protesters who are being sued in this case, and to empathize with the plaintiffs and their congregation. Whatever one’s views about Israel and Palestine, the protesters’ decision to express their views by demonstrating in front of a synagogue on Saturday mornings is unseemly and distasteful—particularly when some of their signs and placards appear to speak out against Jews as a group.

But this case is not about whether we approve of the protesters’ message or tactics. To protect unobjectionable speech, the First Amendment is rarely needed. “In fact, it is the minority view, including expressive behavior deemed distasteful and highly offensive to the vast majority of people, that most often needs protection under the First Amendment.” Bible Believers, 805 F.3d at 243. “This protection applies to loathsome and unpopular speech with the same force as it does to speech that is celebrated and widely accepted.” Id. And to deny that protection is to gamble with the liberties we cherish for all: “If we encroach on the free-speech rights of groups that we dislike today, those same doctrines can be used in the future to suppress freedom of speech for groups that we like.” Id. at 264 (Boggs, J., concurring).

The protesters in this case are a small group of citizens who demonstrate “peacefully on matters of public concern at a public place adjacent to a public street.” Snyder, 562 U.S. at 456. If we are to maintain a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), then the offensive, distressing, and even outrageous nature of their demonstration cannot justify any of the relief the plaintiffs seek here….

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Keep Coronavirus Out of Jails by Arresting Fewer People in the First Place

What if we arrested fewer people in the first place, that way we don’t have to panic about exposing people behind bars (and the guards who take care of then) to the coronavirus? It’s a shift we’re beginning to see in some municipalities.

Reason‘s Zuri Davis has reported on the mechanisms some courts and jails have been using to release prisoners early, particularly those who are being jailed for low-level crimes, in order to stop or reduce the spread of disease among people in jail.

But many cities are also reconsidering whether the police actually need to arrest people for certain minor crimes and bring them to jail for processing in the first place. This is yet another temporary shift in behavior that might be worth considering even when the coronavirus is not such an omnipresent threat.

In Philadelphia, Police Commissioner Danielle Outlaw has set forth new guidelines to stop police officers from arresting people accused of a host of nonviolent misdemeanor crimes. Instead, they’ll briefly detain the suspect to confirm identity and fill out arrest warrant paperwork, then release the suspect. The arrest warrant will be served at a later time when the coronavirus risk has faded.

The list of crimes that will no longer lead to people being processed into jail includes prostitution and all narcotics crimes. (We should hope this prompts the city to realize they should have never thrown people in jail for these crimes in the first place.) The list also includes vandalism, several different types of thefts, burglary, and even car theft. So while these aren’t violent crimes, they also aren’t victimless crimes. This doesn’t mean those people won’t be held accountable by the justice system eventually and be ordered to make amends to their victims, by they’re not going to be tossed in jail for now. Vehicle impoundments are also being suspended.

After making the announcement Tuesday, Outlaw clarified today that an officer “still has the authority to utilize discretion, and take an offender into physical custody for immediate processing, if the officer and supervisor believe the individual poses a threat to public safety.”

Arresting fewer people who aren’t dangerous is a great way to keep jail populations down and reduce chances for the coronavirus to spread. But it’s honestly something that we should have started doing earlier, unprompted by pandemic, because we have too many people in jail who don’t really need to be there, and because jail time disrupts many lives in unnecessary ways.

When New Jersey reformed its bail system so that money bail was no longer ordered and implemented a stronger evaluation system to try to release more people who had been arrested but not yet convicted, it also made some significant policing changes to reduce the number of people who were being arrested in the first place to try to reduce the stress on the system. They made permanent changes similar to what Philadelphia is experimenting with. For greater numbers of low-level misdemeanors, rather than arresting suspects, they were cited and released and ordered to report to court in the future.

New Jersey’s experiments in criminal justice reform have not led to an increase in crime in the Garden State, even as the police saw a 17 percentage point shift across four years in favor of giving a suspect a summons for certain crimes instead of arresting him or her. So as police arrest fewer and fewer people, it’s an opportunity for them to consider whether these arrests were ever actually serving public safety in the first place.

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Keep Coronavirus Out of Jails by Arresting Fewer People in the First Place

What if we arrested fewer people in the first place, that way we don’t have to panic about exposing people behind bars (and the guards who take care of then) to the coronavirus? It’s a shift we’re beginning to see in some municipalities.

Reason‘s Zuri Davis has reported on the mechanisms some courts and jails have been using to release prisoners early, particularly those who are being jailed for low-level crimes, in order to stop or reduce the spread of disease among people in jail.

But many cities are also reconsidering whether the police actually need to arrest people for certain minor crimes and bring them to jail for processing in the first place. This is yet another temporary shift in behavior that might be worth considering even when the coronavirus is not such an omnipresent threat.

In Philadelphia, Police Commissioner Danielle Outlaw has set forth new guidelines to stop police officers from arresting people accused of a host of nonviolent misdemeanor crimes. Instead, they’ll briefly detain the suspect to confirm identity and fill out arrest warrant paperwork, then release the suspect. The arrest warrant will be served at a later time when the coronavirus risk has faded.

The list of crimes that will no longer lead to people being processed into jail includes prostitution and all narcotics crimes. (We should hope this prompts the city to realize they should have never thrown people in jail for these crimes in the first place.) The list also includes vandalism, several different types of thefts, burglary, and even car theft. So while these aren’t violent crimes, they also aren’t victimless crimes. This doesn’t mean those people won’t be held accountable by the justice system eventually and be ordered to make amends to their victims, by they’re not going to be tossed in jail for now. Vehicle impoundments are also being suspended.

After making the announcement Tuesday, Outlaw clarified today that an officer “still has the authority to utilize discretion, and take an offender into physical custody for immediate processing, if the officer and supervisor believe the individual poses a threat to public safety.”

Arresting fewer people who aren’t dangerous is a great way to keep jail populations down and reduce chances for the coronavirus to spread. But it’s honestly something that we should have started doing earlier, unprompted by pandemic, because we have too many people in jail who don’t really need to be there, and because jail time disrupts many lives in unnecessary ways.

When New Jersey reformed its bail system so that money bail was no longer ordered and implemented a stronger evaluation system to try to release more people who had been arrested but not yet convicted, it also made some significant policing changes to reduce the number of people who were being arrested in the first place to try to reduce the stress on the system. They made permanent changes similar to what Philadelphia is experimenting with. For greater numbers of low-level misdemeanors, rather than arresting suspects, they were cited and released and ordered to report to court in the future.

New Jersey’s experiments in criminal justice reform have not led to an increase in crime in the Garden State, even as the police saw a 17 percentage point shift across four years in favor of giving a suspect a summons for certain crimes instead of arresting him or her. So as police arrest fewer and fewer people, it’s an opportunity for them to consider whether these arrests were ever actually serving public safety in the first place.

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The EARN IT Act Is the New FOSTA

A new bill with high-powered bipartisan backing takes aim at free speech and privacy online under the pretense of saving sexually abused children. Sound familiar?

Like the 2018 “sex trafficking” law FOSTA, the new Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act could strip crucial legal protections from a huge array of apps, blogs, social media, messaging services, crowdsourced content platforms, and much more, upending the internet as we know it in the process.

Theoretically, EARN IT would simply set up a federal commission to determine best practices for preventing the online spread of “child sex abuse material.” (That’s Congress’ catch-all term used for sexual imagery featuring minors, from the truly sick and reprehensible to semi-clothed selfies 17-year-olds take of their own volition.) Effectively, it would give the Trump administration carte blanche over the rules of engagement on the internet.

“Best practices” as determined by the commission could mean all encrypted communication services being built with a “backdoor” for government access. It could mean making users of social media, online marketplaces, and apps from Yelp to Grindr submit proof of real identities before they can join or post. It could mean turning over more user data to authorities or disallowing any accounts that post sexual material at all.

We just don’t know. And neither do legislators—the bill would give a commission selected by the attorney general the regulatory equivalent of a blank check.

anti-Section 230 Politics Drives both EARN IT and FOSTA

Failure to follow the commission’s practices—to “earn it”—could mean internet companies lose the protections of a federal communications statute known as Section 230.

Passed in 1996, Section 230 says providers and users of interactive computer services aren’t automatically liable for each other’s content or conduct. At the time, web entrepreneurs worried that any system for reporting, flagging, and making corporate judgment calls on user-posted content would open them up to legal liability for things like defamation and obscenity (an interpretation based on how First Amendment law is applied to physical bookstores, newsstands, etc.). Section 230 was passed, in part, to explicitly permit then-dominant tech companies like AOL and MSN to monitor and moderate users’ posts without risking endless time in court.

It’s now the legal framework undergirding the internet as we know it, protecting both open speech and community-specific censorship on platforms no one dreamed of back in ’96.

But Section 230 has long been hated by state attorneys general and civil suit lawyers, because it means they can only hold the people who actually say or do illegal things criminally (and financially) accountable for those things; they can’t win against web companies that merely host actionable content before being made aware of its existence, that it was criminal, or that it would contribute to a criminal act.

Lately, industries that failed to adapt well to tech-forward competitors (such as newspapers) or industries that simply resent new competitors for cutting into profits (like hotel chains losing money to Airbnb or besot-from-all-sides Match.com) have also joined the fight against Section 230. Their opposition lends credence to claims that the law’s destruction would also doom social media, amateur journalism, “peer-to-peer” business models, and more.

Meanwhile, activists and politicians have cited every major social ill and safety issue as a reason to amend or abolish Section 230.

With FOSTA, lawmakers succeeded in carving out an exception by conjuring the specter of an epidemic of U.S. “child sex trafficking.” Not only were their numbers nonsense, but the law goes far beyond sex trafficking, making it a federal crime to host any content that could facilitate any prostitution.

The result has been the suppression of all sorts of speech and content related to sex work, as well as major sites like Craigslist shutting down all personals ads. And with this (and the government’s unrelated seizure of Backpage), a huge amount of hardship for sex workers of all sorts, particularly those most vulnerable to violence and abuse already.

FOSTA has yet to be used by any government entity in the nearly two years since it was signed into law, though it is being invoked in private civil lawsuits against Craigslist and email marketing company Mailchimp. Held up by supporters as an absolutely urgent and crucial tool for stopping horrible abuse, the only attempts to use FOSTA’s power in court so far seek payouts from companies far removed from that abuse.

But perhaps the point of FOSTA—a law that may be hard-pressed to pass constitutional muster in court—was never meant to be used directly. The chilling effect on internet speech, and on economic liberty, has already worked without a single charge being filed.

Now, lawmakers are looking to recreate this magic with the EARN IT Act.

EARN IT isn’t about saving kids

Anything related to child pornography—producing it, receiving it, accessing it, viewing it, possessing it, distributing it, selling it, and so on—is a federal crime, and these statutes are vigorously enforced. (Unless you’re with the FBI, that is.) For tech companies, it’s also a federal crime to fail to report such images if discovered on their servers.

And nothing in Section 230 stops the Justice Department from using federal criminal laws against tech companies.

This means that nothing prevents authorities from holding child porn perps liable in criminal court. “Put simply, Section 230 does not keep federal prosecutors from holding providers accountable for [child sex abuse material] on their services,” writes Riana Pfefferkorn, associate director of surveillance and cybersecurity at Stanford Law School’s Center for Internet and Society, in a detailed post about the EARN IT Act.

This should cast suspicion on claims that we need EARN IT to protect children or to punish those who exploit them. The real power of the EARN IT Act is conditioning legal liability protection on to-be-determined rules that can be changed based on the whims of an unelected team of bureaucrats, corporate cronies, and well-connected activists.

The commission’s rules would not be legally binding, but failure to follow them would mean losing Section 230 protection for civil lawsuits and state charges related to sexual content involving the underage. In that case, tech companies can expect an onslaught of civil suits from lawyers willing to further exploit child sex abuse victims and charges from state attorneys general looking to make names for themselves. (Remember, all it takes is for high schoolers to have used a platform’s private messaging tools to exchange explicit photos with one another and a site is liable.) Some would go out of business, while independent startups may never be able to get off the ground in the first place.

The great paradox is that whichever way companies could react to mitigate this risk is bad news for users and bad for stopping the spread of exploitative and illegal material. Their options are to clamp down on users and content across the board, hoping to somehow filter out anything bad, or to relax reporting and moderation policies—opening up platforms for even wider distribution of criminal and abusive content—in order to try and avoid liability that turns on staff having received notice of that content.

The 15-member commission would be chosen by the U.S. attorney general, who also has the option of entirely rewriting the commission’s rules.

That means Bill Barr “could single-handedly rewrite the ‘best practices’ to state that any provider that offers end-to-end encryption is categorically excluded from taking advantage of this safe-harbor option,” points out Pfefferkorn. “Or he could simply refuse to certify a set of best practices that aren’t sufficiently condemnatory of encryption. If the AG doesn’t finalize a set of best practices, then this entire safe harbor option just vanishes.”

The bill does say that companies can “earn” Section 230 protection by taking “reasonable measures” other than the feds’ best practices. But it’s language that makes compliance more inscrutable overall, leaving it up to federal judges to decide on a case-by-case basis what measures are reasonable.

Will lawmakers and MEDIA learn?

If tech companies comply with the best practices Barr’s commission could dream up, we might all lose more online privacy and safety. In the case of encryption, for instance, a backdoor accessible to U.S. authorities in all our communications would also be accessible by foreign and domestic hackers and scammers. Meanwhile, child porn distributors and other criminals could simply switch to encrypted communication services located outside the U.S.

No matter what rules are ultimately drafted, the EARN IT Act would give Washington enormous leverage over tech companies and platforms of all sorts.

Sex workers—criminalized or not—would stand to lose even more access to advertising spaces, social media, payment processors, and other digital realms. If FOSTA is any guide, LGBTQ organizers and others fighting for sexual dignity, privacy, and rights will face increased scrutiny online, too.

In the lead-up to FOSTA’s passage, few media outlets reported on its downsides; now, the internet is awash with articles about how FOSTA harms vulnerable classes of people, makes sex work more dangerous, and spurs senseless suppression of speech online. All but two senators and a handful of U.S. representatives voted for FOSTA; now, a bill aimed at repealing FOSTA is being backed by the likes of Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I–Vt.).

Perhaps with the EARN IT Act, more media and legislators could skip the period of credulously buying the for-the-children rhetoric and start seeing this legislation for the dangerous, cynical, civil liberties-grabbing ploy that it is.

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The EARN IT Act Is the New FOSTA

A new bill with high-powered bipartisan backing takes aim at free speech and privacy online under the pretense of saving sexually abused children. Sound familiar?

Like the 2018 “sex trafficking” law FOSTA, the new Eliminating Abusive and Rampant Neglect of Interactive Technologies (EARN IT) Act could strip crucial legal protections from a huge array of apps, blogs, social media, messaging services, crowdsourced content platforms, and much more, upending the internet as we know it in the process.

Theoretically, EARN IT would simply set up a federal commission to determine best practices for preventing the online spread of “child sex abuse material.” (That’s Congress’ catch-all term used for sexual imagery featuring minors, from the truly sick and reprehensible to semi-clothed selfies 17-year-olds take of their own volition.) Effectively, it would give the Trump administration carte blanche over the rules of engagement on the internet.

“Best practices” as determined by the commission could mean all encrypted communication services being built with a “backdoor” for government access. It could mean making users of social media, online marketplaces, and apps from Yelp to Grindr submit proof of real identities before they can join or post. It could mean turning over more user data to authorities or disallowing any accounts that post sexual material at all.

We just don’t know. And neither do legislators—the bill would give a commission selected by the attorney general the regulatory equivalent of a blank check.

anti-Section 230 Politics Drives both EARN IT and FOSTA

Failure to follow the commission’s practices—to “earn it”—could mean internet companies lose the protections of a federal communications statute known as Section 230.

Passed in 1996, Section 230 says providers and users of interactive computer services aren’t automatically liable for each other’s content or conduct. At the time, web entrepreneurs worried that any system for reporting, flagging, and making corporate judgment calls on user-posted content would open them up to legal liability for things like defamation and obscenity (an interpretation based on how First Amendment law is applied to physical bookstores, newsstands, etc.). Section 230 was passed, in part, to explicitly permit then-dominant tech companies like AOL and MSN to monitor and moderate users’ posts without risking endless time in court.

It’s now the legal framework undergirding the internet as we know it, protecting both open speech and community-specific censorship on platforms no one dreamed of back in ’96.

But Section 230 has long been hated by state attorneys general and civil suit lawyers, because it means they can only hold the people who actually say or do illegal things criminally (and financially) accountable for those things; they can’t win against web companies that merely host actionable content before being made aware of its existence, that it was criminal, or that it would contribute to a criminal act.

Lately, industries that failed to adapt well to tech-forward competitors (such as newspapers) or industries that simply resent new competitors for cutting into profits (like hotel chains losing money to Airbnb or besot-from-all-sides Match.com) have also joined the fight against Section 230. Their opposition lends credence to claims that the law’s destruction would also doom social media, amateur journalism, “peer-to-peer” business models, and more.

Meanwhile, activists and politicians have cited every major social ill and safety issue as a reason to amend or abolish Section 230.

With FOSTA, lawmakers succeeded in carving out an exception by conjuring the specter of an epidemic of U.S. “child sex trafficking.” Not only were their numbers nonsense, but the law goes far beyond sex trafficking, making it a federal crime to host any content that could facilitate any prostitution.

The result has been the suppression of all sorts of speech and content related to sex work, as well as major sites like Craigslist shutting down all personals ads. And with this (and the government’s unrelated seizure of Backpage), a huge amount of hardship for sex workers of all sorts, particularly those most vulnerable to violence and abuse already.

FOSTA has yet to be used by any government entity in the nearly two years since it was signed into law, though it is being invoked in private civil lawsuits against Craigslist and email marketing company Mailchimp. Held up by supporters as an absolutely urgent and crucial tool for stopping horrible abuse, the only attempts to use FOSTA’s power in court so far seek payouts from companies far removed from that abuse.

But perhaps the point of FOSTA—a law that may be hard-pressed to pass constitutional muster in court—was never meant to be used directly. The chilling effect on internet speech, and on economic liberty, has already worked without a single charge being filed.

Now, lawmakers are looking to recreate this magic with the EARN IT Act.

EARN IT isn’t about saving kids

Anything related to child pornography—producing it, receiving it, accessing it, viewing it, possessing it, distributing it, selling it, and so on—is a federal crime, and these statutes are vigorously enforced. (Unless you’re with the FBI, that is.) For tech companies, it’s also a federal crime to fail to report such images if discovered on their servers.

And nothing in Section 230 stops the Justice Department from using federal criminal laws against tech companies.

This means that nothing prevents authorities from holding child porn perps liable in criminal court. “Put simply, Section 230 does not keep federal prosecutors from holding providers accountable for [child sex abuse material] on their services,” writes Riana Pfefferkorn, associate director of surveillance and cybersecurity at Stanford Law School’s Center for Internet and Society, in a detailed post about the EARN IT Act.

This should cast suspicion on claims that we need EARN IT to protect children or to punish those who exploit them. The real power of the EARN IT Act is conditioning legal liability protection on to-be-determined rules that can be changed based on the whims of an unelected team of bureaucrats, corporate cronies, and well-connected activists.

The commission’s rules would not be legally binding, but failure to follow them would mean losing Section 230 protection for civil lawsuits and state charges related to sexual content involving the underage. In that case, tech companies can expect an onslaught of civil suits from lawyers willing to further exploit child sex abuse victims and charges from state attorneys general looking to make names for themselves. (Remember, all it takes is for high schoolers to have used a platform’s private messaging tools to exchange explicit photos with one another and a site is liable.) Some would go out of business, while independent startups may never be able to get off the ground in the first place.

The great paradox is that whichever way companies could react to mitigate this risk is bad news for users and bad for stopping the spread of exploitative and illegal material. Their options are to clamp down on users and content across the board, hoping to somehow filter out anything bad, or to relax reporting and moderation policies—opening up platforms for even wider distribution of criminal and abusive content—in order to try and avoid liability that turns on staff having received notice of that content.

The 15-member commission would be chosen by the U.S. attorney general, who also has the option of entirely rewriting the commission’s rules.

That means Bill Barr “could single-handedly rewrite the ‘best practices’ to state that any provider that offers end-to-end encryption is categorically excluded from taking advantage of this safe-harbor option,” points out Pfefferkorn. “Or he could simply refuse to certify a set of best practices that aren’t sufficiently condemnatory of encryption. If the AG doesn’t finalize a set of best practices, then this entire safe harbor option just vanishes.”

The bill does say that companies can “earn” Section 230 protection by taking “reasonable measures” other than the feds’ best practices. But it’s language that makes compliance more inscrutable overall, leaving it up to federal judges to decide on a case-by-case basis what measures are reasonable.

Will lawmakers and MEDIA learn?

If tech companies comply with the best practices Barr’s commission could dream up, we might all lose more online privacy and safety. In the case of encryption, for instance, a backdoor accessible to U.S. authorities in all our communications would also be accessible by foreign and domestic hackers and scammers. Meanwhile, child porn distributors and other criminals could simply switch to encrypted communication services located outside the U.S.

No matter what rules are ultimately drafted, the EARN IT Act would give Washington enormous leverage over tech companies and platforms of all sorts.

Sex workers—criminalized or not—would stand to lose even more access to advertising spaces, social media, payment processors, and other digital realms. If FOSTA is any guide, LGBTQ organizers and others fighting for sexual dignity, privacy, and rights will face increased scrutiny online, too.

In the lead-up to FOSTA’s passage, few media outlets reported on its downsides; now, the internet is awash with articles about how FOSTA harms vulnerable classes of people, makes sex work more dangerous, and spurs senseless suppression of speech online. All but two senators and a handful of U.S. representatives voted for FOSTA; now, a bill aimed at repealing FOSTA is being backed by the likes of Sens. Elizabeth Warren (D–Mass.) and Bernie Sanders (I–Vt.).

Perhaps with the EARN IT Act, more media and legislators could skip the period of credulously buying the for-the-children rhetoric and start seeing this legislation for the dangerous, cynical, civil liberties-grabbing ploy that it is.

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