Tag: hit&run

In a First Amendment case the Supreme Court considered this week, the U.S. Patent and Trademark Office (PTO) refused to register Fuct, the name of a clothing line, deeming it “scandalous.” Yet the PTO had no such objection to F’d Up, Phat Phuc, FCUK (which has been registered as a trademark eight times), FVCK (registered as part of 11 trademarks), or FWord (although F-Word! somehow was beyond the pale). The PTO’s trademark database also includes ass (which has been registered more than 200 times) but not asshole or A-Hole Patrol (both rejected), crap (registered more than 70 times) but not shit, Cum Together (although the PTO rejected another application for the same name), and bitch (registered more than 150 times) but not Kickabitch (rejected). Word Prostitute, Grammar Nazi, Dago Swagg, and Wild Injun met the PTO’s standards, but The Christian Prostitute, Coffee Nazi, Dago Mary’s, and Urban Injun did not.

“How do you deal with the problem of erratic or inconsistent enforcement, which seems inevitable with a test of the kind you’re articulating?” Justice Brett Kavanaugh asked Deputy Solicitor General Malcolm Stewart during oral argument in the case, Iancu v. Brunetti, on Tuesday. Justice Neil Gorsuch was also troubled by the challenge of predicting whether the PTO will agree to register a trademark.

“There are shocking numbers of ones granted and ones refused that do look remarkably similar,” Gorsuch said, referring to the appendix from which most of the above examples are drawn. “What’s the rational line?…How is a reasonable citizen supposed to know? What notice do they have about how the government’s going to treat their mark?”

Stewart did not have a very good answer to these questions, although he assured the justices that the PTO from now on will take a narrow view of the statutory provision authorizing it to reject “scandalous” trademarks, which the U.S. Court of Appeals for the Federal Circuit in 2017 deemed “an unconstitutional restriction of free speech.” As the appeals court noted, the PTO historically has asked whether a “substantial composite of the general public” would consider a trademark scandalous, defined as “shocking to the sense of truth, decency, or propriety; disgraceful; offensive; disreputable;…giving offense to the conscience or moral feelings;…or calling out for condemnation.” But that test runs afoul of the Supreme Court’s 2017 ruling in Matal v. Tam, which rejected a ban on “disparaging” trademarks that had prevented the Asian-American dance rock band The Slants from registering its name.

“Tam has led us to focus more on limiting the scope of those adjectives,” Stewart told the Court. “To the extent that the PTO had previously taken into account whether the views expressed were shocking or offensive, that won’t be done any longer.”

Justice Elena Kagan did not seem reassured by that promise. “You’re essentially saying we should uphold this statute on the basis of various commitments that the government is now making to apply this statute to only a small subset of the things that it could apply to if you look at it on its face,” she said. “That’s a strange thing for us to do, isn’t it?…These are very broad words, but we’re going to pretend that they say something much narrower than they do?”

While Tam involved discrimination based on viewpoint, Stewart said, the PTO’s rejection of Fuct—to which he referred elliptically as “the equivalent of the profane past participle form of a well-known word of profanity”—was “viewpoint-neutral.” He argued that Fuct is an example of “marks that are offensive, shocking to a substantial segment of the public because of their mode of expression, independent of any views that they may express.”

Erik Brunetti, who owns Fuct, argues that the brand does reflect a viewpoint. “It’s edgy,” said Chief Justice John Roberts, summarizing Brunetti’s position. “It expresses a nonconformist attitude.” According to Brunetti’s lawyer, John Sommer, “Mr. Brunetti’s viewpoint is…I can be offensive; I don’t have to obey the authority….The audience that Mr. Brunetti is appealing to is young men who want to be rebels.” Roberts called this argument “totally circular,” since using whatever words happen to offend the PTO could be said to express that rebellious message, which would mean they would have to be approved as trademarks.

Whether or not the attitude communicated by Fuct counts as a viewpoint, Brunetti’s expectation that the name will appeal to the hip young adults he is targeting casts doubt on the judgment that the name qualifies as scandalous. “If you were to take a composite of, say, 20-year-olds,” 86-year-old Justice Ruth Bader Ginsburg asked Stewart, “do you think…they would find it shocking?…These goods, as I understand it, are meant to attract a particular market, and if we concentrate on that market, from their perception, the word is mainstream.”

The problem, Stewart said, is that exposure to the trademark extends beyond the target market. “The interest is in protecting unwilling viewers from material that they find offensive,” he said. But that argument proves too much, since (as the government emphasizes) Brunetti is free to call his clothing line whatever he wants; he just can’t get federal protection for his trademark.

“This word and all sorts of other words can be used in connection with the sale of goods,” Justice Samuel Alito noted. “They just can’t be registered trademarks.” Brunetti’s customers can walk the streets and malls of America wearing clothing emblazoned with Fuct, albeit without the little R in a circle after the name. Does the absence of that detail make the word less offensive?

Chief Justice Roberts seems to think so. “For parents who are trying to teach their children not to use those kinds of words,” he said, “they’re going to look at that and say, well, look at that, and then, you know, they’re going to see the little trademark thing and say, well, it’s registered trademark. Well, they won’t say that, but you understand my point.” I’m not sure I do.

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With roads in disrepair, Mayor Remy addresses his city’s most pressing need.

“Old Town Road” parody written by Remy
Shot and edited by Austin Bragg
Mastered by Ben Karlstrom
Track production by Wxsterr

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LYRICS:

Sir, we’re gonna take these funds for the old town road
We’re gonna buy a ton of black asphalt
Right, we’re gonna take these funds for the old town road
We’re gonna pave and also fix potholes

Or we could take these funds for the old town road
And maybe build a brand new stadium
Sir it’s our entire job to fix the old town road
We must ensure that —is he even listening? I’m thinking no.

This is so exciting
Look, the roof is shiny
So touched by this project
I named it Joe Biden

Sir, this is dismaying
Taxpayers are paying
Studies show these never create economic growth—
La la la la la la can’t hear what you’re saying

Can’t nobody tell me nothing
You can’t tell him nothing…
Can’t nobody tell me nothing
You can’t tell him nothing…

The roads are all unstable
We should fix them if we’re able
How broken are we talking?
Think month-old iPhone cable

We should not be subsidizing
A billion-dollar guy that
Will subsequently leverage moving
Look, our mascot has a trident!

Can’t nobody tell me nothing
You can’t tell him nothing…
Can’t nobody tell me nothing
You can’t tell him nothing…

Sir, the neighborhood’s complaining
Eminent domain it
Toll road, gas tax
Let’s call it a day then

Can’t nobody tell me nothing
You can’t tell him nothing…
Can’t nobody tell me nothing
You can’t tell him nothing…

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One of the most amazing aspects of the 2020 presidential race is that virtually all candidates, including President Donald Trump, have indicated they favor letting individual states decide the legal status of marijuana. That position was unthinkable even a few years ago, Reason Senior Editor Jacob Sullum tells Nick Gillespie in the latest Reason Podcast.

Sullum, the author of Saying Yes: In Defense of Drug Use (2004) and an award-winning writer on drug policy, also discusses the difficulties in measuring what comprises “stoned driving,” whether smoking pot leads to opioid use, the places in America where you can still get locked up for possessing weed, and which southern state will be the first to legalize recreational marijuana.

This podcast is part of Reason‘s “Weed Week” coverage. Go here for all our stories.

Stories related to today’s podcast:
“Pot Can Earn You Profits or a Prison Sentence,” by Jacob Sullum

“Is Marijuana a Gateway to Opioids?,” by Jacob Sullum

“Cory Booker Knocks Presidential Rivals for Joking About Marijuana,” by Jacob Sullum

“Attorney General Barr Prefers Marijuana Federalism Over the Current Confusing Mess,” by Eric Boehm
“New Mexico Makes History with Weed and Paraphernalia Decriminalization Bill,” by Zuri Davis

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Rap music is once again in the middle of a First Amendment battle. This time, it’s because the Supreme Court of the United States will not hear the case of a Pittsburgh rapper whose lyrics led to conviction.

The fight began with the April 2012 arrest of Jamal Knox, known to his fans as Mayhem Mal. Police Officer Michael Kosko pulled over Knox and a friend in a routine traffic stop. The pair sped away and then led a chase on foot after crashing the vehicle. After being captured and arrested, police found bags of heroin, cash, and a stolen firearm. Knox went by a false name until Detective Daniel Zeltner, who recognized both men, confirmed his real identity.

After Kosko and Seltner planned to testify against the pair in court, Knox and his friend released a song called, “Fuck the Police.” Kosko and Seltner were mentioned by name in the song and their pictures appeared in an associated music video. The song lyrics depicted killing officers and informants, suggested that the rappers knew where the officers lived, and referenced a man who had previously killed three officers in the city.

The song, a court later ruled, met the definition of “true threats” and were therefore constitutionally unprotected. Knox and his friend were convicted of and jailed for making terroristic threats and intimidation. The rapper later appealed, saying that the conviction was in violation of his First Amendment right to free speech.

This week, the Supreme Court of the United States declined to hear Knox’s appeal. Though this means that the conviction will be upheld, Knox’s case has effectively opened the door for the high court to further examine free speech, threats, and rap music.

The Supreme Court granted a motion to file an amicus curiae, or friend of the court, brief from last month.

The March brief was submitted by rappers like Killer Mike, Chance the Rapper, and Meek Mill in an attempt to ask the Supreme Court to hear Knox’s case. The artists argued that rap music “has been the subject of unique scrutiny in determining when speech constitutes a true threat of violence and thus falls outside the ambit of First Amendment protection, in part because of its close association with the black men who historically have created it.”

To paint a picture of the intense scrutiny that rap music faces, the brief compared rap to country music, which similarly “depicts sex, drug or alcohol (ab)use, poverty, and certainly violence.” Despite their similarities, and the existence of murder ballads in country music, the brief cited a study where a social psychologist found disproportionately negative reactions when lyrics were presented as rap instead of country.

Of course, the brief also mentions N.W.A.’s “Fuck tha Police,” which has endured its own First Amendment fight. The protest anthem expresses frustrations between the black American community and police officers by using court imagery—the rappers put the police on trial. The brief explains that the song could not “objectively” be seen as a threat.

Though justices ultimately declined to hear Knox’s appeal, the Supreme Court heard a similar case several years ago. Elonis v. United States (2015) centered around the conviction of Anthony Elonis, who made Facebook threats against coworkers, his wife, police, and an FBI agent. The court ruled that a “true threat” conviction required proof of intent to act upon the threats. Justice Clarence Thomas, the lone voice of dissent, argued that posted threats were enough to establish intent.

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At Supreme Court confirmation hearings, potential justices sit before a committee of senators who scrutinize everything from their views to their experience to their personal lives. But these hearings are not always as straight-faced as their significance might suggest.

During Elena Kagan’s 2010 confirmation hearing, for example, Sen. Lindsey Graham (R–S.C.) asked the nominee where she was on Christmas Day. “You know, like all Jews, I was probably at a Chinese restaurant,” she replied. During Antonin Scalia’s 1986 confirmation hearing, Sen. Patrick Leahy (D–Vt.) noted amicably, “I would assume, in reading Mrs. Scalia’s maiden name [McCarthy], that your children have really the ‘best of all possible worlds’—an Italian parent and an Irish parent.”

William Rehnquist’s hearing that same year featured some more amusing asides. At one point, Sen. Orrin Hatch (R–Utah) complained about some inquiries into the nominee’s early career. “Just to put these events in their proper perspective,” he observed, “I think it is important to note that at that time the hula hoop was still a decade from its heyday—Bonanza and The Mouseketeer Club would not appear for many years.”

During Neil Gorsuch’s hearing in 2017, Sen. Ted Cruz (R–Texas) asked the nominee about his history of taking his clerks to watch what is known as “mutton busting.” Gorsuch went on to explain, “Mutton busting, as you know, comes sort of like bronco busting for adults. You take a poor little kid. You find a sheep, and you attach the one to the other and see how long they can hold on.”

“I noticed you smoke a pipe,” quipped Sen. Howell Heflin (D–Ala.) during Scalia’s hearing. “It may well be that someday you may have to rule in the right of privacy as to whether or not an individual can smoke a pipe in his study or in his bedroom, so I hope you take care of us smokers one of these days.”

These moments of humor can offer pleasant breaks from the long stretches of political grandstanding that tend to dominate these hearings. But they can also touch on serious issues. Kagan’s joke about being Jewish on Christmas, for instance, came during a discussion about terrorism. And Helfin’s strange comment about smoking was an allusion to the legal debates about privacy.

Other jokes may reveal something about the nominee. Leahy’s side note about Scalia’s children is strange to read today, but given that Scalia was the first Italian-American to sit on the Court, it was a more significant statement at the time. Hatch’s pop culture references illustrated how much time had passed since Rehnquist’s early career. And Gorsuch’s mutton-busting trips with his clerks surely revealed something about the nominee’s personality.

But the majority of the discussions during these hearings do little to reveal the nuances of nominees’ beliefs or their views on the judiciary’s role in our republic. The result is a Supreme Court that few understand and a public perception of the Court that is shaped by politicians and other partisans rather than by the justices themselves.

This problem is compounded by the fact that once a justice moves into his or her new chambers on 1 First Street NE, many Americans will never again see or hear the justice in quite the same way. There is the occasional talk show interview or documentary appearance, but most justices avoid the spotlight, limiting their public engagement to speeches before conferences, guest lectures in law schools, and one-off comments to the media.

Even when justices make public appearances, there is often little interest from the general public. Last month, Justices Kagan and Samuel Alito testified before Congress. Yet there was little media coverage of the event, and plenty of seats were available in the small committee room. Such lack of attention can help explain how these important figures slip into anonymity. In a recent poll, 52 percent of Americans could not name a single Supreme Court justice.

Confirmation hearings offer a national forum for potential justices to explain their views on a judge’s role and their vision for the Court. While the nation is watching, it would be refreshing to hear a nominee explain how judges reach decisions, why their decisions may be different from those of their colleagues, and how they are able to disagree without being disagreeable.

And once on the Court, justices ought to strive to be more open. Doing so, as one circuit judge remarked, has the ability “to humanize and demystify the judiciary.”

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Regular Reason readers know that we’re regular critics of police activity on social media. It’s not that we want to censor them, it’s just that their attempts to be witty or brag about confiscating a bit of weed and a $2 bill usually fall flat.

There’s a big difference, though, between posting a cringeworthy joke and actually threatening to use your power to hurt people for no reason. It’s the latter that’s sparked multiple investigations in law enforcement agencies around the country.

It all started with the #FeelingCute challenge, a social media craze in which users post selfies of themselves suggesting something they may—or may not—do later. I suppose it can be funny, if you’re into that sort of thing.

Apparently, the viral challenge was particularly popular among members of a (now-private) Facebook group called Correctional Officer Life. But the actions some of the group’s nearly 30,000 members claimed to be considering can only be described as cruel.

“Feeling cute, might just gas some inmates today, IDK,” one user posted, along with a selfie of what appeared to be the Texas Department of Criminal Justice (TDCJ) employee, according to the Houston Chronicle‘s Keri Blakinger. A photo of a different person in TDCJ uniform included the caption: “#feelingcute my gas the whole wing later.”

“Gassing” is a prison slang term referring to when inmates throw human waste products at guards or fellow inmates. The posts from alleged TDCJ employees could be suggesting that they be the ones to throw feces or urine at inmates.

“The Texas Department of Criminal Justice is aware of the so-called feel cute challenge currently on social media,” TDCJ communications director Jeremy Desel told the Chronicle. “A handful of correctional officers employed by this agency are under investigation for on and off-duty conduct violations as a result of the alleged posting of inappropriate photographs on social media.”

“If any of these allegations prove correct then swift disciplinary action as severe as termination of involved employees will occur,” an agency spokesperson added to yc.news.

It’s not just Texas. A woman who identifies herself on Facebook as a correctional officer at Wheeler Correctional facility in Georgia wrote: “Feeling cute; might put your baby daddy in the shower for 6 hours, since we aint got no beds in Seg. But I don’t know yet.”

Another alleged Wheeler employee wrote: “Feeling cute, might shoot your baby daddy today…Idk,” according to The Atlanta Journal-Constitution.

“The alleged actions of these individuals do not reflect the conduct expected of any GDC employee, and will not be tolerated,” Georgia Department of Corrections spokesperson Joan Heath told the newspaper.

Another user, who KOMU identified as a corrections officer in Jefferson City, Missouri, wrote: “Feeling Cute. Might take your homeboy to the hole later.” Missouri Department of Corrections Director Karen Pojmann told the outlet that prison employees “are expected to help ensure that interactions with offenders and fellow employees are professional and respectful.”

The police accountability website America’s Police Problem took screenshots of many of the posts. Some of the more noteworthy examples can be seen below:

• “Feeling cute, may find drugs on your Baby Mama that ‘isn’t hers’ later but idk yet.”
• “Feeling cute: might take your baby daddy to the box later.”
• “#feelingcute might take the hot pots and TV cords out the dorms today idk.”
• “Feeling kinda cute, might take your BM to the hole tonight.”
• “#feelingcute might just tase your gf later! It’s an electrifying experience!”
• “Feeling kinda Cute Tonight!!! Might search your boyfriend Cell and Mess it up!!! Idk yet still thinking.”

The best way to read these posts would be as jokes that are in very, very poor taste. The problem is, there’s no guarantee they’re just jokes.

Abuse of inmates in prisons and jails around the country is a very real problem. Reason has documented egregious cases from Texas and Georgia, for instance, where inmates died after spending months in jail because they couldn’t afford to make bail. (The Marshall Project also has a useful page linking to stories about inmate deaths nationwide.)

There’s no evidence any of the corrections officers who posted about mistreating inmates actually did so. But it leaves a bad taste when prison guards joke about it, given how often it ends up happening and how little accountability there is when it does.

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A decade ago, Andy Cox was sentenced to federal prison for growing 594 marijuana plants in Georgia’s Chattahoochee National Forest, plus another 724 seedlings on his father’s property. The total put him above the 1,000-plant threshold that would ordinarily trigger a 10-year mandatory minimum sentence. But because Cox had two prior marijuana convictions, 10 years became the rest of his life.

The 1,318 plants that resulted in a life sentence for Cox amounted to less than 4 percent of the crop grown by Los Sueños Farms, a state-licensed business in Pueblo County, Colorado, where marijuana was legalized a few years after Cox’s trial. As pot prohibition continues to collapse across the country, such jarring contrasts have become par for the course.

An estimated 40,000 marijuana offenders are serving time in state or federal prisons for agricultural or commercial activities that are now legal in nine states, earning entrepreneurs profits instead of prison sentences. According to the website lifeforpot.com, more than two dozen marijuana offenders are serving life sentences or prison terms that amount to the same thing.

Life sentences for cannabis are rare, and the vast majority of people arrested on marijuana charges—about 660,000 in 2017, nine out of 10 for simple possession—serve little or no time behind bars (although they may suffer long-lasting ancillary penalties). But some states still come down hard even on minor pot offenses.

In Cox’s home state of Georgia, possessing one ounce or less of marijuana is a misdemeanor punishable by up to a year in jail and a $1,000 fine. Any more than that is a felony, triggering a one-year mandatory minimum and a maximum of 10 years for amounts up to 10 pounds. Pot penalties are similarly harsh in Arkansas, Florida, Idaho, Oklahoma, South Dakota, Tennessee, and Wyoming, where the lowest-level marijuana offense can be punished by up to a year behind bars.

Even states that are not quite so punitive can have nasty surprises in store for cannabis consumers. In Texas, possessing two ounces or less of marijuana is a misdemeanor punishable by up to six months in jail. But possessing any amount of cannabis concentrate is a felony, and the maximum penalties apply to weights above 400 grams. The entire weight of food or beverages spiked with concentrate counts toward that threshold, which is why a teenager caught with 1.4 pounds of pot cookies and brownies in 2014 initially faced a sentence of 10 years to life.

At the other extreme are the 10 states (Alaska, California, Colorado, Oregon, Maine, Massachusetts, Michigan, Nevada, Vermont, and Washington) where possessing small amounts of marijuana (usually an ounce in public, more at home) carries no penalty at all for adults 21 or older. Some states that have not yet legalized recreational marijuana use, such as Delaware, Maryland, New Hampshire, and New York, have decriminalized possession of small amounts, which is punishable by a civil fine.

Wyoming, one of the most punitive states, also has the highest marijuana arrest rate: 415 per 100,000 in 2016, according to data compiled by Jon Gettman, an assistant professor of justice at Shenandoah University, compared to 400 per 100,000 in New Jersey, its closest competitor. Oregon—where marijuana was legalized in 2014 but some cannabis-related activities, such as unlicensed commercial production and public possession of more than two ounces, are still treated as crimes—had the lowest pot arrest rate that year: 80 per 100,000.

Even in states that have legalized cannabis for recreational use, state-licensed growers and retailers are committing federal felonies every day. Those crimes theoretically expose them to the sort of prosecution that sent Andy Cox to prison for life. But Attorney General William Barr has said he is not interested in pursuing cases against marijuana merchants who comply with state law, and President Donald Trump has said he is inclined to support legislation that would exempt them from the federal ban.

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When Assassin’s Creed Unity—the eighth major installment in a video game franchise that lets players climb and stab their way through various historical settings—came in out in 2014, it was greeted with underwhelming reviews. The game garnered a 70 percent score on Metacritic, which, roughly speaking, translates to: It’s not a total disaster, but no better than just OK.

But critics praised the depiction of the game’s primary location, an exceptionally detailed digital mock-up of 18th century Paris, with a reviewer for the popular video game news and reviews site IGN writing that the fully explorable virtual city “[pierces] the sky like the spire of Notre Dame. On a purely technical level, Unity is a marvel to walk through and admire.”   

This week, Notre Dame’s famous spire burned down in a fire that took out major portions of the cathedral. French president Emmanuel Macron vowed yesterday to rebuild within five years, an ambitious goal that some have warned is unrealistic. Several of the country’s wealthiest families have already raised a reported $700 million to fund the effort. However the reconstruction proceeds, Assassin’s Creed Unity could prove invaluable to the effort.

At the time of the game’s release, Caroline Miousse, senior level artist, told The Verge she spent the better part of two years working on the game’s virtual version of the cathedral. During that time, the site reported, she went over “photos to get the architecture just right, and worked with texture artists to make sure that each brick was as it should be. She even had historians help her figure out the exact paintings that were hanging on the walls.” In a separate interview, she said she based some of her designs on historical blueprints.

The result wasn’t perfectly accurate: Some alterations and additions were made to account for the franchise’s freewheeling, exploratory gameplay. And the cathedral’s famous spire was added even though it wasn’t built until after the period the game is set in.

And yet, the in-game version of Notre Dame is nonetheless surprisingly realistic, at least as video games go, with the familiar arches and flying buttress supports and oversized stained glass windows all recreated in painstaking detail. You can watch a video of someone exploring the in-game cathedral below.

I remember the first time I played an Assassin’s Creed game more than a decade ago. The story and screenwriting were awful, and the mission structures quickly grew repetitive—but I was intrigued anyway, mostly because of the depth of its (virtual) historical setting. The game offered a stunning sense of place. It wasn’t precisely like being there in person, but it was closer than I expected. I had a lot of fun just exploring the map and seeing the sights—playing the game more like a tourist rather than an assassin.

I haven’t played a game in the series for several years, because there’s no sign the core gameplay has significantly improved. But I have followed coverage of the franchise, and it’s clear that, as game technology has advanced, the virtual locations have grown even richer and more detailed. Recent editions have even included what is essentially a “tourist mode,” in which players can just move around the map without having to bother with the game.

Arguably more than any other medium, this is what video games are best at—geography, location, creating a sense of presence and place. The best video game locations can seem almost physical, especially when those locations are based on real-life places. In a neat reversal, a video game’s virtual version of Notre Dame could end up providing a reference point for a recreation of the real-world place. 

Assassin’s Creed Unity, by most accounts, wasn’t all that great a game: It was a placeholder installment in a franchise that has sometimes struggled to figure out its reason for being—a pulpy, crude, commercial product designed to make money by letting gamers run around a historical, funhouse version of Paris, occasionally stabbing people. And it certainly won’t be the only external resource builders have to draw on; there’s also a 3D map created by Vassar art historian Andrew Tallon, which is supposedly accurate to within five millimeters. But Unity is a small reminder that history doesn’t always require a higher purpose, and that sometimes cultures preserve and extend themselves in ways that are less than sacred. If this game ends up helping restore Notre Dame to its former glory, it will have more than justified its existence.

In the meantime, Ubisoft, the developer behind Unity, announced today that it will give away the PC version of game for free this week, allowing anyone to experience its recreation of Notre Dame. The company will also donate €500,000 (or about $564,000) to the preservation effort. It’s obviously not the same as the real thing, but I’m glad it exists anyway; thanks to a video game, some version of Notre Dame, or at least the cathedral’s digital descendant, is still open for virtual tourism.

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An update quietly posted to the Reddit ad forum yesterday details a huge shift in rules for those wishing to advertise on the site. As of this week, Reddit is no longer allowing “ads for adult-oriented products and services,” nor will it allow any advertising to appear on subreddits that it deems “Not Safe for Work” (NSFW).

“Additionally, NSFW subreddits will be removed from any campaign that may have targeted them previously, and campaigns will no longer accrue clicks or impressions on those subreddits,” the site says.

Reddit defines “adult-oriented products and services” as any “pornographic or sexually explicit content, as well as adult sexual recreational content, products, or services.” This is not? just about blocking really explicit images or possibly illegal conduct but everything related to sex and sexuality.

Sex toys, dirty books, kink groups, strip clubs, and erotic art are just a few subjects that would seem to be banned from advertising on Reddit now.

Ads for condoms and contraception should still be allowed, under an exception for “ads pertaining to products for the prevention of pregnancy and/or sexually transmitted infections.”

Erectile dysfunction drug ads are also OK.

Reddit did not offer a reason for the rule change, but it’s far from alone in recent crackdowns on all sorts of content related to sex. As platforms strive to keep up with an array of new tech regulations—from America’s ban on ads that facilitate prostitution under FOSTA to new “privacy”and “hate speech” laws in the European Union, a British ban on showing porn without checking viewers’ ages, and more—anything that might get above a PG rating is being quickly wiped clean from the internet.

Last week Instagram announced a crackdown on “inappropriate” content—things that fail to trigger a full ban under the app’s community guidelines but that someone at Facebook (Instragam’s parent company) feels uneasy about. “That means if a post is sexually suggestive, but doesn’t depict a sex act or nudity, it could still get demoted,” pointed out TechCrunch. “Similarly, if a meme doesn’t constitute hate speech or harassment, but is considered in bad taste, lewd, violent or hurtful, it could get fewer views.”

Last December, Tumblr announced a ban on all sexually explicit content. By February 2019, its traffic had plummeted by almost a third.

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[You might also read my earlier posts 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, The First Amendment and the Specific Preliminary Injunction, and How Specific Anti-Libel Injunctions Underprotect Speech; or you can read the whole article in PDF.]

A. The Hybrid Permanent Injunction

What if, instead of saying either “Don may not libel Paula” (as in the catchall injunction) or “Don may not accuse Paula of cheating him” (as in the specific injunction), the injunction instead says, “Don may not libelously accuse Paula of cheating him”? Like the specific injunction, the injunction has a narrow chilling effect. But like the catchall injunction, the injunction requires that Don not be punished for criminal contempt unless, at the contempt hearing, his speech is found to be libelous. Thus, we have this comparison:

Catchall permanent injunction: “Don may not libel Paula”	Specific permanent injunction: “Don may not accuse Paula of cheating him”	Hybrid permanent injunction: “Don may not libelously accuse Paula of cheating him”
Deters derogatory speech only about the plaintiff	Same	Same
Deters derogatory speech only after the injunction is entered	Same	Same
Deters all derogatory speech about the plaintiff	Deters only particular derogatory statements about the plaintiff	Deters only particular derogatory statements about the plaintiff
Speech punished only if found to be false beyond a reasonable doubt	Speech punished based on finding of falsehood by preponderance of the evidence	Speech punished only if found to be false beyond a reasonable doubt
… at a criminal trial where an indigent defendant would have a court-appointed lawyer	… at a civil hearing where an indigent defendant would generally not have a lawyer	… at a criminal trial where an indigent defendant would have a court-appointed lawyer
… and where finding is by jury, if judge provides that any criminal contempt trial will be before jury	… and where no jury would be present	… and where finding is by jury, if judge provides that any criminal contempt trial will be before jury
… and prohibits only future statements that are libelous when spoken	… and prohibitions future statements even without a showing that they are libelous when spoken	… and prohibits only future statements that are libelous when spoken

As with the catchall injunction, the hybrid injunction thus just opens the door to the possibility of criminal punishment for continued libels; it doesn’t purport to authoritatively decide that a particular statement is libelous, but leaves the matter to the jury in any future criminal contempt prosecution. But unlike with the catchall injunction, the hybrid injunction only opens that door for particular statements, and thus has less of a chilling effect.

In a sense, then, the hybrid injunction is close to the opposite of a declaratory judgment. A declaratory judgment that a particular statement is false and defamatory, for instance, wouldn’t be a court order, and thus wouldn’t criminalize any repetition of the statements; but it would conclusively decide that the statement is false and defamatory, in a way that likely has a binding effect on future civil litigation.-A hybrid injunction does criminalize behavior—the repetition of a particular statement—but it doesn’t conclusively decide that the statement is false and defamatory, at least in any way that would bind the jury in any future criminal contempt hearing.

Let’s be a bit more specific about what the hybrid injunction should say.

First, it should ban only “libelous” repetition of certain statements. Any injunction that lacks this extra element should be seen as unenforceable—or, alternatively, courts could hold that such an element is necessarily implicit in any anti-libel injunction.

Second, it wouldn’t hurt for the injunction to be explicit about the consequences of including this element; the injunction might expressly say something like,

If defendant is prosecuted for contempt of court for making statements that violate this injunction, at any contempt proceeding it must be proved beyond a reasonable doubt that those statements are indeed false, defamatory, and unprivileged, and that the defendant knew that they were false.

Third, the law of anti-libel injunctions should expressly provide that any criminal contempt prosecutions should be conducted with a jury, unless the defendant waives the jury trial at the time of the criminal contempt hearing. [Footnote: Without this provision, criminal contempt trials could be held without a jury, so long as the sentence is six months in jail or less.] As noted above, there is precedent for this in the Norris-LaGuardia Act, which provides for jury trial in criminal contempt prosecutions stemming from labor injunctions. The jury should be expressly instructed that it’s not bound by any prior judicial finding that the speech is libelous—a finding that was in any event made only by a preponderance of the evidence— and that its task is to decide the question for itself, beyond a reasonable doubt.

Fourth, the law of anti-libel injunctions should provide that such injunctions cannot be enforced through the threat of jail for civil contempt. Civil contempt would otherwise be a common means of coercing speakers to take down past posts, if the injunctions order such takedowns. But when it comes to libel cases, courts should require that any remedy involving loss of liberty go through the criminal contempt process, so as to enforce the principle that speakers can only be jailed for their speech if the full protections of the criminal law are provided. (Fines as civil contempt penalties should be permissible, so long as the initial injunction was issued following a jury finding that the speech was libelous; just as monetary damages awards in libel cases may be issued without the protections of the criminal justice process, so monetary sanctions for violating anti-libel injunctions may be as well.)

With these protections, hybrid anti-libel injunctions would provide speakers with all the First Amendment protections that they would have in criminal libel prosecutions. Given that criminal libel prosecutions are constitutional, such anti-libel injunctions should be as well.

B. The Futility-or-Vagueness Objection

The Texas Supreme Court has held that anti-libel injunctions were impermissible, partly because the injunctions would either be pointlessly narrow (if they are read as forbidding only the literal repetition of particular statements) or unconstitutionally vague, if read as forbidding paraphrased repetition as well. But criminal libel laws can be constitutional if they include the constitutionally mandated mens rea requirements, even though they ban all knowingly false and defamatory statements. An injunction that bans repeating, or even pa­ra­phrasing, particular statements would be less broad and less vague than those laws.

C. The Discretion Objection

Justice Scalia has argued that allowing injunctions against speech leaves judges with too much discretion. Even facially content-neutral injunctions, Justice Scalia argued, may stem from judges’ hostility to the content of the speech: Judges know the targeted speakers’ ideas and may enjoin the speakers because of those ideas, when they would not have enjoined speakers who had engaged in the same conduct but expressed other ideas. Presumably the argument would be even stronger as to anti-libel injunctions.

Yet discriminatory enforcement is possible with any speech restrictions imposed through criminal statutes: A prosecutor could, after all, apply such a statute equally selectively. Justice Scalia argued,

Although a [facially content-neutral] speech-restricting injunction may not attack content as content . . ., it lends itself just as readily to the targeted suppression of particular ideas. When a judge, on the motion of an employer, enjoins picketing at the site of a labor dispute, he enjoins (and he knows he is enjoining) the expression of pro-union views. Such targeting of one or the other side of an ideological dispute cannot readily be achieved in speech-restricting general legislation except by making content the basis of the restriction; it is achieved in speech-restricting injunctions almost invariably.

But precisely the same thing can be said about the enforcement of constitutionally permissible content-neutral statutes:

Although a [facially content-neutral] speech-restricting [statute] may not attack content as content . . ., it lends itself just as readily to the targeted suppression of particular ideas. When a [prosecutor], on the [request] of an employer, [enforces a noise regulation or a crowd size restriction] at the site of a labor dispute, he [restricts] (and he knows he is [restricting]) the expression of pro-union views. Such targeting of one or the other side of an ideological dispute cannot readily be achieved in speech-restricting general legislation except by making content the basis of the restriction; it is achieved in [enforcement of] speech-restricting [laws] almost invariably.

Yet that danger is not reason to require strict scrutiny of content-neutral speech-restrictive statutes, or of prosecutorial decisions related to such statutes. Indeed, the danger doesn’t even invalidate narrowly defined criminal libel statutes, though of course they may well be enforced (like all statutes may be enforced) in surreptitiously viewpoint discriminatory ways. The danger should likewise not require heightened scrutiny of content-neutral injunctions (as in Madsen) or of injunctions limited to forbidding constitutionally unprotected speech, such as defamation.

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