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We’ve all been watching this develop for years now: the internet is being slow-choked, not by rapacious ISPs forcing users to pay for “fast lanes,” but by politicians on both sides of the Atlantic who want to have a bigger role in what we’re allowed to do and say online. To be sure, lawmakers are being greatly aided in their efforts by major tech players such as Facebook’s Mark Zuckerberg and Apple’s Tim Cook, who are explicitly calling for regulation to maintain current market positions in a sector defined by creative destruction (all hail MySpace and Blackberry!).

In an interview with Recode‘s Kara Swisher, Speaker Nancy Pelosi (D-Calif.) pronounced that in the tech sector, the “era of self-regulation” is over when it comes to privacy and speech rules. Sounding a lot like conservative Republicans such as Sens. Ted Cruz of Texas and Josh Hawley of Missouri, she zeroes in especially on Section 230 of the Communications Decency Act as the thing that needs to be torched.

As the title of a new book puts it, Section 230 comprises “the twenty-six words that created the internet.” Author Jeff Kosseff explains that by immunizing websites, platforms, and service providers from “lawsuits over materials that their users upload,” Section 230 “fundamentally changed American life.” Indeed, the internet as we know it is based on both “content created not only by large companies, but by users,” writes Kosseff, who observes that of the top 10 most-trafficked websites in the United States in 2018, only Netflix “mostly provides its own content.” All the rest—Facebook, Wikipedia, YouTube, Twitter, et al.—either rely heavily on user-generated content (including potentially actionable reviews and comments about everything under the sun) or exist to guide users to such content (Google, Yahoo).

Pelosi is done with all that, telling Swisher that the freedom of expression empowered by Section 230 is “a gift” and a “privilege” that can be rescinded if major tech companies don’t move in the direction she and other politicians want. She frets over companies such as Facebook and Twitter buying up app makers and other services without explaining themselves to regulators. “Is this just commerce and they see a market opportunity and decide to take it on?” says Pelosi. “Or are they in competition with each other, buying something before somebody else doesn’t buy it and then all of a sudden, three or four firms dominate the marketplace and engines of search and the rest of that?”

“For the privilege of 230,” Pelosi warns, “there has to be a bigger sense of responsibility on it. And it is not out of the question that that could be removed.”

Like many Democrats, Pelosi remains convinced that Facebook helped to throw the election to Donald Trump by not regulating political advertising tightly enough and providing a space for the Russians to practice dark arts (the idea that Russian social media changed the outcome of the election is simply wrong). On top of that, liberals and progressives are calling for more policing of whatever they define as “hate speech.”

The motivations might be slightly different than those on the right—who accuse Facebook, et al. of limiting the reach and popularity of conservative figures and opinion due to ideological bias—but the endpoint is the same: a repeal of Section 230. “Google and Facebook should not be a law unto themselves,” Sen. Hawley told a crowd at the Conservative Political Action Conference (CPAC). “They should not be able to discriminate against conservatives. They should not be able to tell conservatives to sit down and shut up.” What Pelosi calls a gift, Hawley calls “a sweetheart deal” that should be ended by enforcing some sort of viewpoint equality on social-media platforms. Cruz has effectively called for the repeal of Section 230 and the implementation of something like a Fairness Doctrine for the internet. During a debate last year with former Rep. Beto O’Rourke (D-Texas) during the 2018 elections, Cruz said

“Right now, big tech enjoys an immunity from liability on the assumption they would be neutral and fair… If they’re not going to be neutral and fair, if they’re going to be biased, we should repeal the immunity from liability so they should be liable like the rest of us.”

It’s not at all clear what it means to say “they should be liable like the rest of us,” since publishers have the absolute right not to publish things and, under existing precedent, sites have the right to moderate some comments without becoming liable for the ones they allow to remain. But it’s never a good sign when conservatives and liberals, Republicans and Democrats start sounding like one another. Throw in President Trump’s recent statement that we need to “do something” about social media sites, and the only safe conclusion is that Section 230 is in real danger. And with it, the internet as we’ve known it.

Meanwhile, on the other side of the Atlantic, the European Union (EU) has approved “The Directive on Copyright in the Digital Single Market” whose Article 13 mandates that

anyone sharing copyrighted content must get permission from rights owners—or at least have made the best possible effort to get permission—before doing so. In order to do this, it’s thought that internet services and social networks will have no choice but to build and enforce upload filters and generally apply a more heavy-handed approach to moderating what users post online.

Another part of the law, Article 11, is effectively a link tax “requiring social networks and news aggregators to pay publishers to display snippets of their output.” Once the rules are officially published later this year, all EU members will have 24 months to write and implement their national versions of the law. It’s possible (likely, even) that there will be more push and pull on the rules before they are finally implemented, but there’s no question that as currently constituted, they will change the character of the internet.

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An undocumented immigrant and military widower whose wife was killed in Afghanistan in 2010 was deported to Mexico last week by Immigration and Customs Enforcement (ICE). Jose Arturo Gonzalez Carranza, who has a 12-year-old daughter, is now back in the U.S., though the reversal appears to have been an effort to avoid bad press.

The Arizona Republic was the first outlet to report the story. Gonzalez Carranza, 30, who entered the U.S. illegally in 2004, married Barbara Vieyra in 2007. Vieyra had always wanted to be in U.S. Army, and she joined up in 2008, not long after the birth of their daughter Evelyn, as detailed in a 2018 East Valley Tribune story.

Vieyra became a military police officer and was deployed to Afghanistan. Then, in September 2010, the military vehicle she was in was attacked by insurgents, sustaining improvised explosive device (IED) and rocket-propelled grenade (RPG) damage. Vieyra was killed, leaving her husband and daughter, among other family members, behind.

Gonzalez Carranza, meanwhile, was granted a parole in place exemption, his attorney, Ezequiel Hernandez, told the Republic. According to the U.S. Citizenship and Immigration Services (USCIS) website, individuals who might otherwise be deported “may be eligible for parole in place in 1-year increments if you are the spouse, widow(er), parent, son or daughter of” a current, former, or deceased member of the military.

Then, on the morning of April 8, while Gonzalez Carranza was driving to work, ICE agents accosted him with their guns drawn. “Put your hands up. Open the door,” he recalled them saying. Gonzalez Carranza told the Republic he responded: “Who you guys are? I have rights.” It didn’t matter. He was taken into custody and eventually deported to Nogales, Mexico.

So why did ICE come for Gonzalez Carranza, despite his parole in place exemption? At this point, there’s no clear answer. ICE appears to have refiled its case against him last year, according to Hernandez, even though he has no criminal record. Gonzalez Carranza was supposed to appear in court on December, but didn’t because the notice regarding his hearing was sent to an old address.

“We have evidence it went to the wrong address,” Hernandez told The Washington Post. “There were little errors throughout this case.”

“The government never revoked the [parole-in-place],” he added to CNN. They detained [Carranza] because of the order of removal done due to the court hearing my client did not go to because he did not know. As of today, we do not know why the client was removed.”

Even though Gonzalez Carranza didn’t show up for his court date, he should not have been deported. Per the Republic:

Hernandez said he filed a motion to reopen Gonzalez Carranza’s deportation case. The motion triggered an automatic stay of removal, but ICE deported him anyway, Hernandez said.

[American Civil Liberties Union deputy legal director Cecillia] Wang also said it Gonzalez Carranza should not have been deported if there was a stay of removal. She said, however, it is “not uncommon” for ICE to violate stays of removal.

In any case, Hernandez said that after sending a press release to the media and speaking with the Republic, ICE notified him of their reversal. On Monday afternoon, Gonzalez Carranza was taken back to the U.S.

Arizona Democratic Sen. Kyrsten Sinema may have had something to do with Gonzalez Carranza’s return as well. Her “office is in communication with Mr. Carranza’s attorney and we will assist the Carranza family in this process,” Sinema told CNN.

Gonzalez Carranza isn’t out of the woods yet. He needs an immigration judge to reopen the case so he can apply once again for the parole in place exemption. His daughter, meanwhile, who lives with her grandparents, didn’t even know her father was deported. “I didn’t tell her nothing,” Gonzalez Carranza told the Republic. “I don’t want to make her feel [worse], her feelings be more frustrated, like I don’t have a mom, and now I may never see my dad again.”

Gonzalez Carranza’s case is certainly sad. Unfortunately, he might not be alone. Last July, the Military Times reported that the Trump administration was rejecting a greater number of veterans’ requests for deportation exemptions for their family members:

The data shows that rejections of veteran requests have increased under President Donald Trump, from about a 10 percent rejection rate in fiscal 2016, the last year President Barack Obama was in office, to an almost 20 percent rejection rate through the first nine months of fiscal 2018. Specifically:

In fiscal 2016, the Obama administration denied 140 veteran requests for deportation protection and approved 1,304 requests.

In fiscal 2017, the Trump administration denied 250 veteran requests for deportation protection and approved 1,449 requests.

It’s undoubtedly a good thing that Gonzalez Carranza will most likely be able to stay in the U.S. What’s unfortunate is that there are many people in similar situations whose cases will not garner national outrage. ICE has a history of mismanagement and allegations of misconduct, and as Reason‘s Zuri Davis wrote in January, these issues will continue without more oversight.

For more Reason coverage of ICE, click here.

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[You might also read my earlier post on the subject, Anti-Libel Injunctions and the Criminal Libel Connection, The First Amendment and Criminal Libel Law, The First Amendment and the Catchall Permanent Injunction, and The First Amendment and the Specific Preliminary Injunction; or you can read the whole article in PDF.]

Specific permanent injunctions, unlike specific preliminary injunctions, do follow a civil trial on the merits at which the speech has been found to be libelous. In fact, the trial might even be a jury trial. Perhaps for this reason, [courts in over 30 states] have treated permanent injunctions against libel as generally permissible, at least in certain classes of cases.

But while such specific injunctions are indubitably narrower than criminal libel laws, and even than catchall injunctions, they also fail to provide some of the key procedural protections that even criminal libel laws offer. Consider:

Because the injunction categorically forbids Don from repeating the cheating allegation (in our hypothetical), the criminal contempt hearing will determine only whether that allegation was repeated. The falsehood of the allegation was conclusively determined at the injunction hearing, where the judge only had to find the allegation to be false, defamatory, and unprivileged by a preponderance of the evidence. Under the “collateral bar” rule (applicable in most states, and in federal courts) the only question at the contempt trial would be whether Don violated the injunction by repeating the statements, not whether the injunction had been properly issued.

Likewise, while Don could get a lawyer at the criminal contempt hearing, that lawyer would be unable to argue to the factfinder that the statement was true, was opinion, was privileged, or was otherwise not libelous. And at the initial civil hearing, when truth, opinion, and privilege were debated, Don had no right to a court-appointed lawyer.

The specific injunction is also more speech-restrictive than the catchall injunction, because it makes repeating a statement a crime regardless of changed circumstances and context. Yet “[u]ntrue statements may later become true; unprivileged statements may later become privileged.” Even if after Don’s first false statement that Paula had cheated him, Paula did end up cheating him, he’d still be barred from repeating the statement despite its now being true. [Footnote: This is especially likely if the original injunction bans not just a specific, detailed accusation, but, for instance, any claim that plaintiff is “either directly or indirectly, engaged, affiliated or connected with, illegal activity,” e.g., Irving v. Palmer, No. 18-cv-11617, at 3 (E.D. Mich. May 29, 2018).]

Relatedly, a statement may be libelous in one context, but hyperbole in another. Yet an injunction simply barring repetition of a statement will prohibit the statement regardless of context. The catchall injunction, which requires a jury finding of libelousness at the criminal contempt hearing, based on whether the statement was libelous at the time it was repeated (rather than at the time it was initially said), doesn’t suffer from this problem.

And each of these defects, I think, is of constitutional significance.

1. Proof Beyond a Reasonable Doubt

Before people go to jail for their speech, there should be proof beyond a reasonable doubt that their speech is indeed constitutionally unprotected. This is especially true because jail time not only deters speech, but incapacitates speakers, given that their speech rights are sharply limited when they’re in jail. Criminal libel law provides this protection when threatening jail for allegedly false and defamatory statements; a civil injunction, which has the same effect, should embody the same protection.

The Supreme Court has rejected this argument in obscenity cases (California ex rel. Cooper v. Mitchell Bros.’ Santa Ana Theater), though Justices Brennan, Marshall, and Stewart had urged it in McKinney v. Alabama. But proof beyond a reasonable doubt is more important in libel injunctions cases than it is in obscenity cases.

In obscenity cases, factfinder error generally risks restricting only nonobscene pornography, which the Court has, rightly or wrongly, found to be of lesser constitutional value. (To the extent that the controversy in a case is whether the work has serious literary, artistic, scientific, or political value, that standard is in essence a legal judgment, for which the quantum of proof is less significant than for factual judgments.) In libel cases, factfinder error risks restricting accurate statements of fact, including in many cases statements on matters of public concern. And, as noted in the next section, there is a long tradition of reading constitutional free expression guarantees as leaving the finding of truth and falsehood cases to the jury; and until libel injunctions came to be broadly accepted in the last few decades, such findings would generally yield criminal punishment for libel only in criminal cases, where proof beyond a reasonable doubt is required.

Finally, even if courts do rely on the obscenity precedents, those precedents should cut in favor of requiring at least a showing of clear and convincing evidence: This is what the California Court of Appeal held on remand in Mitchell Brothers, because such a standard was needed “to protect particularly important interests” in free speech. The speaker’s interest in libel cases is at least as important as in obscenity cases.

1. Jury Factfinding

In criminal libel cases, the finding that the statements are false must generally be made by a jury. That’s a Sixth Amendment requirement in those states where the criminal libel statute authorizes more than six months in jail. It’s a state constitutional requirement under the state constitutions that provide jury trials for all criminal libel cases. And it’s a state law requirement in all the other states (except Louisiana) that authorize jury trials for all misdemeanors.

This should be seen as a First Amendment requirement, and American free speech traditions support this view. Leaving the question of truth entirely to a judge is much like the pattern in pre-Revolutionary libel prosecutions, such as in the notorious John Peter Zenger trial. There too the judge decided whether a statement was libelous, and then the criminal jury decided only whether the defendant had published the statement. American law roundly rejected this approach for criminal libel, even when criminal libel prosecutions were common, and instead insisted that the criminal jury must determine whether the statement was indeed false. The law should likewise take the same approach to anti-libel injunctions, given that they are enforced through criminal prosecution.

Some may be skeptical about whether juries are indeed great protectors of free speech. But American libel law has long treated jury decisionmaking as important; this historical judgment should not be lightly set aside. And jury decisionmaking coupled with judicial gatekeeping may provide better protection than either jury decisionmaking or judicial decisionmaking alone—among other things, dispensing with a jury verdict would leave the defendant’s right to speak at the mercy of a single governmental decisionmaker.

Indeed, twenty-nine state constitutions expressly provide that in prosecutions for libel, the jury shall determine the facts (and, in many states, the law). The same principle should apply to prosecutions for violating anti-libel injunctions, even if they are labeled criminal contempt prosecutions. And, for the reasons given above, this principle should be understood as a facet of federal First Amendment law as well.

Note that, if a specific injunction is entered following a civil jury trial, the jury requirement would likely be satisfied. But the other three elements would still be lacking: proof of falsehood beyond a reasonable doubt before speakers are jailed for their speech, the assistance of counsel, and the requirement that speech be found to be false at the time and in the context in which it is repeated.

1. Assistance of Counsel

In criminal libel cases, defendants who can’t afford lawyers will get court-appointed lawyers who can argue that their statements are true, are opinions, are privileged, or are otherwise not libelous. This too is an important protection for speech.

Speakers who lack a lawyer will often be unable to effectively defend themselves. They aren’t expert at proving facts. They don’t know how to get discovery. They don’t know the details of various libel law privileges. They don’t know the precedents that help distinguish, say, facts from opinions.

If they lose at trial, they would find it very hard to effectively appeal. Indeed, they might feel so hamstrung by the lack of a lawyer that they might not contest the injunctions in the first place. The injunctions may also be entered far from where they live, making it even harder for them to effectively litigate the case. And when a defendant is absent, unrepresented, or practically unable to appeal, the factfinding at the initial civil injunction hearing is especially likely to be inaccurate.

This might be an unavoidable reality in the everyday operation of the civil justice system. Defendants who lack the resources to defend themselves may find themselves subject to civil judgments—though this is constrained, at least when it comes to lawsuits for damages, by the reluctance of most plaintiffs to spend money suing judgment-proof defendants.

But when courts issue injunctions against libel, they turn that reality into something with criminal law consequences: Defendants might be threatened with jail for repeating certain statements without ever having had lawyers who could effectively argue that the statements were not actually libelous. That should not happen.

1. Lack of Provision for Changing Circumstances and Changing Context

Specific permanent injunctions ostensibly bar only statements that have been found libelous. But, as discussed in Part IV.A, a statement that was libelous when first said, and was found libelous at the injunction hearing, might not be libelous if repeated when the facts and the context have changed.

True, a defendant could go to court to modify the injunction, but that is expensive and time-consuming. Or a defendant could ask the court to exercise its discretion not to initiate criminal contempt proceedings in light of the changed facts, but the judge may of course not agree that the facts have changed, or may think that in any event the defendant should have complied with the injunction. And, more generally, speakers should not have to “request the trial court’s permission to speak truthfully in order to avoid being held in contempt.”

* * *

Judge David Barron’s recent First Circuit dissent argues, in response to an earlier version of the argument in this paper, that “criminalizing the violation of an injunction that has been issued as a properly predicated prophylactic protection against the future expression of unprotected speech found likely to recur” ought not be equated with “criminalizing defamation as primary conduct (as in the case of criminal libel).” Yet the two are very similar: Both involve threat of criminal punishment for speech that the legal system finds to be false and defamatory. If we think that certain procedural safeguards—proof beyond a reasonable doubt, jury decisionmaking, a defense lawyer—are important to determining whether a statement is false in criminal libel cases, we should think the same in injunction cases, when the injunction is enforceable through the threat of criminal punishment.

“An injunction, like a criminal statute, prohibits conduct under fear of punishment. Therefore, we look at the injunction as we look at a statute, and if upon its face it abridges rights guaranteed by the First Amendment, it should be struck down.” An injunction banning specific instances of alleged defamation thus is indeed tantamount to a statute “criminalizing defamation as primary conduct.”

To be sure, as that dissent notes, “there were no criminal safeguards provided for in the injunctions [upheld in whole or in part] in Madsen and Schenck,” the Court’s abortion clinic protest cases. But those cases upheld narrow content-neutral restrictions on the time, place, and manner of speech. The injunctions there didn’t purport to criminalize the making of particular statements, nor did they rest on judicial determination of whether certain statements were false. Here, as elsewhere in First Amendment law, content-based restrictions on speech that the government believes to be wrong and valueless should be subject to more constraint than content-neutral restrictions on loud speech or speech that blocks building entrances.

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Last Tuesday, the New York City Council voted to stop testing probationers for marijuana use. The move is a reminder that even as states hammer out rules to legalize use—as New York is working through right now—remnants of the drug war have left a large population of Americans subject to the draconian measures of post-prison supervision.

There are more than 4.5 million people on probation or parole in the U.S., nearly twice the number of people behind bars at any given time. All of these folks are subject to incarceration if they violate the terms of their supervised release, and in most places, a prohibition on using cannabis products may be one of those terms.

“Marijuana is a big issue when it comes to parole, but it’s just the tip of the iceberg” explains Tyler Nims, the executive director of the Independent Commission on New York City Criminal Justice and Incarceration Reform. “Parole is a huge issue in criminal justice reform and in particular in New York. But it’s unseen and unknown.”

According to analysis of probation and parole figures put together by the Pew Charitable Trusts, a little more than half of probation and parole stints end without incident. But nearly 350,000 people get new jail terms annually because they’ve failed to complete probation or parole with a spotless record. In some states, revocation of supervised release is the main driver of incarceration. In Georgia, for example, 67 percent of new prison admissions in 2015 were due to revoked probation or parole. The same was true in Rhode Island, where 64 percent of new prison admissions in 2016 were due to supervised release revocations.

Judges have wide discretion to set the terms for release. That often includes prohibiting behavior that is otherwise perfectly legal. Probation and parole guidelines can limit where people go, who they can consort with, and what they may or may not consume. Earlier this year, a judge in Hawaii told a man arrested for stealing car that he could not consume Pepsi while on probation—and put him under supervised release for four years. While incidents like that one are relatively rare, prohibiting the use of marijuana while on supervised release is standard.

Whether marijuana use will continue to be deemed a violation is something to watch and weigh in on as state-level legalization continues.

Nims tells Reason that his organization started exploring parole reform as a way to close Rikers Island prison, shift the city toward smaller jails closer to the criminal courts across the boroughs, and reduce the city’s overall jail population.

The good news is that incarceration in general is on the decline in cities across the country, including New York. But there’s a big exception.

“Every category of person being detained has been decreasing except for those who are there for parole reasons,” Nims says. He calculates that 40 percent of the city’s parolees are re-incarcerated for non-criminal violations: things like failing drug tests and not living where they’re ordered to live. Nims knew of a convicted sex offender who was given clearance by his parole officer to purchase a particular type of cell phone that didn’t have internet access. It turned out the officer was wrong, and the offender was sent back to jail for a year for having the phone.

Parole and probation was not supposed to be this cruel, explains Vincent Schiraldi, a former New York City probation commissioner who is now co-director of Columbia University’s Justice Lab. The prospect of getting out of prison earlier in exchange for being supervised was presented as an act of mercy or leniency. But as incarceration rates increased in lockstep with longer sentences, more people were put on parole and probation under increasingly strict terms. Supervised release changed from an act of mercy to a different form of punishment.

“As probation grew, you’d expect incarceration to decline,” Schiraldi says. “It’s much more logical to conclude that it’s an add-on. It’s just a net widener.”

Schiraldi told a a New York Assembly committee in October that there’s no public safety justification for routine marijuana testing of people on probation or parole. He testified that the research showed drug testing increased the likelihood of somebody ending back up in jail for technical violations, but did not actually reduce criminal behavior. In order to avoid testing positive, probationers and parolees instead avoid their mandatory meetings with supervisors, which causes yet another technical violation (known as absconding), which makes them even more likely to end up back in prison.

Schiraldi recommended to the Assembly that any law legalizing marijuana in New York should remove marijuana abstinence as a condition for parole or probation. When his office decided on to stop testing for marijuana, they were able to cut probation revocations nearly in half, and only four percent of their clients were convicted of a new felony within a year following the end of probation.

The push to end marijuana testing is part of a larger effort to reform and restore some of the mercy parole and probation were intended to provide and reduce the likelihood it ends with people being sent back to prison. In December 2018, a coalition of criminal justice reformers partnered with Assemblyman Walter Mosley (D-Brooklyn) to introduce the Less is More: Community Supervision Revocation Reform Act to try to make it less likely that technical violations of parole will lead to people getting sent back behind bars.

The Less Is More Act would eliminate incarceration for most technical violations, and for any exceptions would cap a return to prison to a maximum of 30 days. People under supervision will also be able to earn credits to reduce the amount of time they have to spend on parole. And when somebody on parole gets snagged for an alleged violation, they will be provided a hearing before they’re detained (In New York City, somebody taken in for a parole violation can end up sitting at Rikers for 90 days before the state decides whether to send them back to prison). Several district attorneys, police chiefs, sheriffs, and many criminal justice reform organizations have signed on to support the bill.

A similar push is underway in Pennsylvania, where rapper Meek Mill has drawn attention to the arbitrary and harsh nature of how probation violations are handled. Mill faced two- to four-year prison sentence for a probation violation after he was filmed popping a wheelie on a dirt bike. He was eventually freed a year ago and used the experience to launch a justice reform group to change the way probation is handled. In early April, Meek’s new group, the REFORM Alliance, put together a rally in Philadelphia to support probation reforms.

There was a bill introduced in Pennsylvania in January, SB 14, that would cap the length of probation to five years for felonies, three years for misdemeanors, and would also, like the Less Is More Act, limit the amount of time somebody can be incarcerated for technical (but not criminal) violations of probation.

Nims and Schiraldi both see these changes in parole and probation as vital reforms to our criminal justice system, up there with reforming bail systems that keep poor people trapped behind bars before they’re ever convicted, and the elimination or reduction of mandatory minimum sentences that have handed down abnormally long prison terms for people convicted of certain types of drug crimes. Part of those reforms include making sure that as marijuana is legalized across the country, it doesn’t remain a reason that people on parole or probation get sent back to prison.

“It’s one of the least productive things you can do to for somebody coming back to the community,” Nims says.

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