Month: December 2022

In New York, websites and apps are required to have a plan to address “hateful conduct” on their platforms. A new lawsuit is seeking to change that.

On Thursday, the Foundation for Individual Rights and Expression (FIRE) filed a lawsuit on behalf of two online platforms, Rumble and Locals, as well as Eugene Volokh, a UCLA law professor who runs the blog The Volokh Conspiracy (which is hosted by Reason.) FIRE claims that a New York law mandating that online platforms provide mechanisms for reporting “hateful” speech violates the First Amendment.

“The state of New York can’t turn bloggers into Big Brother, but it’s trying to do just that,” said FIRE attorney Daniel Ortner said in a Thursday press release. “The government can’t burden online expression protected by the Constitution, whether it’s doing it in the name of combating hate or any other sentiment.”

In June, Democratic New York Gov. Kathy Hochul signed into law a bill, “Social Media Networks; Hateful Conduct Prohibited,” intended to curb online hateful speech. The law amends existing business regulations to require that broadly defined social media networks provide a mechanism for users to report instances of “hateful conduct” and publish a policy for how it will “respond and address” the reports.

The law defines “hateful conduct” as “the use of a social media network to vilify, humiliate, or incite violence against a group or a class of persons on the basis of race, color, religion, ethnicity, national origin, disability, sex, sexual orientation, gender identity or gender expression.” Platforms that fail to comply with the law can face fines of up to $1000 per day of violation.

FIRE argues that the law violates the First Amendment in four ways. First, it argues that the law compels the speech of social media platforms by requiring that they publish hate speech policies. Second, it argues the law imposes unconstitutional viewpoint discrimination by singling out speech that is “hateful” on the basis of several protected classes for moderation. Third, FIRE claims that the law is overly broad “because it pressures online services to chill, prohibit, or remove a substantial amount of constitutionally protected online speech and compels them to voice the state’s pro-censorship view.”

Further, FIRE argues that the law is vague and that vagueness coupled with an official statement from New York’s governor insisting that the law requires companies to “monitor and report hateful conduct” leads platforms to “reasonably believe that the Online Hate Speech Law will be expansively interpreted and aggressively enforced…unconstitutionally incentivizing them to chill speech on their platform and compelling them to parrot the state’s message in order to avoid investigation and civil penalties.”

However, the law contains a provision that seemingly attempts to protect itself from coming under fire for violating the First Amendment, clarifying that the statute does not order social media networks to violate the “rights or freedoms of any persons, such as exercising the right of free speech pursuant to the first amendment to the United States Constitution.” FIRE is unconvinced by the provision, arguing that the clause is far too vague.

“I don’t think that that savings clause really means anything,” Volokh tells Reason. “Our whole point is that the statute does adversely affect my constitutional rights by mandating that I set up a policy that I don’t want to set up, aimed at certain viewpoints that I don’t want to have to single out in a policy.”

It appears that New York politicians want to try to force social media companies to single out large swaths of disfavored speech for monitoring—and, thus, for regulation. However, such a scheme violates the constitutional rights of platforms to decline to moderate online speech that the state disfavors.

“The First Amendment protects speech regardless of the viewpoint that it expresses,” Volokh says, “and the reason why it protects the speech that each of us values is precisely that it doesn’t let the government say ‘certain kinds of viewpoints can be suppressed.’ So, if you give the government the power to suppress some viewpoints, it’ll end up having the power to suppress other viewpoints, including viewpoints that you might like.”

The post New York Forces Websites To Monitor 'Hateful' Speech. A New Lawsuit Says This Violates the First Amendment. appeared first on Reason.com.

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Whether designing a webpage for customers counts as speech and therefore whether a designer could be compelled by Colorado law to design wedding pages for same-sex couples took center stage before the Supreme Court this morning.

Creative 303 LLC vs. Elenis came before the Court this morning and brought with it a tangled thicket of competing Supreme Court precedents about when the government can compel businesses or institutions to pass along messages or ideas they object to. At the heart of this case, Lorie Smith, owner of Creative 303 LLC, wants to design web pages for weddings. But she has religious objections to same-sex marriage and doesn’t want to design pages to celebrate gay couples. This puts her at odds with the Colorado Anti-Discrimination Act, and so she has gone to federal court to try to get a ruling in her favor.

In a debate surpassing two hours, the justices discussed whether Smith is actually engaged in “expressive speech” if she doesn’t put her own messages on these webpages, the distinctions between rejecting a customer and rejecting a statement, and which Supreme Court precedents should influence this case’s outcome.

Kristen Waggoner, Smith’s attorney and a lawyer for Alliance Defending Freedom, wanted the Court to turn to Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, a 1995 case where the Supreme Court ruled that the organizers of Boston’s St. Patrick’s Day Parade could not be compelled to allow marchers bearing a banner for the gay organization into the parade, which would have forced them to convey a message of support parade organizers did not agree with.

Colorado was represented by Solicitor General Eric Olson and bolstered by Brian Fletcher, principal deputy solicitor general of the United States. The Justice Department agrees with Colorado that Smith does not have the option to simply turn away all same-sex couples. They asked the Court to use Rumsfeld v. Forum for Academic and Institutional Rights, Inc. as a guiding precedent. That 2006 decision held that colleges could be compelled to provide space for military recruiters despite any moral objections they may have.

Smith has not been accused of turning away anybody as yet. She has asked the Court to rule before she begins turning away same-sex clients as is within her First Amendment rights. So, the debate this morning revolved around several hypothetical situations, since neither side has any actual examples of Smith turning anybody away.

In a fashion similar to those who followed Masterpiece Cakeshop v. Colorado, the justices questioned the boundaries of what actually counted as speech or expression. Throughout the proceedings, Justice Elena Kagan mulled over the difference between a wedding site where a designer simply plugged in information provided to them and a site where the designer was actually expected to craft particular messages celebrating the marriage. She noted that the examples of sites Creative 303 included didn’t appear to state any sort of celebratory messages but did wonder whether Smith could be compelled to add “God bless this union” onto a site against her religious convictions. While there seemed to be an agreement that she could not be compelled to do so, the justices struggled to find where the line between speech and discrimination was drawn. In Masterpiece, the Supreme Court punted that central question. Now, they’re revisiting it.

Waggoner saw the line as pretty easy to determine: Smith’s webpages and their content all count as Smith’s speech. It’s up to Smith to decide what she would and would not allow to be included on the webpages she was designing. Olson and Fletcher argued that Smith’s rejection of same-sex marriages was essentially the equivalent of rejecting same-sex customers (Waggoner and Smith disagree) because it was a case where the conduct and the identity of the customer are “inextricably entwined.”

The more conservative justice seemed inclined toward siding with Smith, concerned about future hypothetical cases where a freelance speechwriter could be forced to write speeches for political candidates or positions he or she found disagreeable. Could a freelance public relations professional be forced to write a release for the Church of Scientology?

Justice Amy Coney Barrett wondered if a site serving the gay community could be required to run heterosexual wedding announcements alongside same-sex ones. Olson responded that the site probably wouldn’t hold itself out as a “public accommodation,” but if it did, it would be required to run them. There was a fairly brief discussion of whether there were limits to what the government classifies a “public accommodation” that perhaps could have been fleshed out more. Colorado appears to have a very broad definition that includes nearly any good or service that is offered “to the public.”

Justice Neil Gorsuch noted the amicus brief by the Cato Institute, joined by UCLA law professor Eugene Volokh (of The Volokh Conspiracy) and Southern Methodist University Dedman School of Law professor Dale Carpenter (also a contributor to The Volokh Conspiracy) in support of Smith. Though Volokh and Carpenter had taken Colorado’s side against wedding cake baker Jack Phillips, they’re supporting Smith in this case, arguing that “forcing her to create websites to which she objects is a speech compulsion.” Gorsuch also incidentally described the anti-discrimination training that Phillips was ordered to undergo (before the Supreme Court ruled in his favor) as “re-education.”

It is very difficult to predict based on today’s debate what exactly the Supreme Court could decide. Because of the intersection of First Amendment protections and public accommodation discrimination protections, the questions were far-ranging and hit many areas. It seems likely that the ruling will be in favor of Creative 303, but it’s also clear that the justices are looking for the right place to put a dividing line between protecting people from compelled speech and the government’s interest in enforcing public accommodation laws. “How do you draw the line?” was a question raised in several contexts by multiple justices. We’ll find out in the spring.

The post Supreme Court Debates Whether Web Designers Can Be Forced To Make Gay Wedding Pages appeared first on Reason.com.

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The daughter of a bedridden, dying 79-year-old man asked for permission to care for him at home. This request was denied by the city council of Shenandoah, since the man is on the sex offender registry. Registrants must live at least 1,000 feet from playgrounds.

The daughter’s home is 894 feet from a toddler park.

“The city council voted not to have any exceptions,” City Attorney William Ferebee tells Reason.

A local ordinance adopted in 2018 established the 1,000-feet rule. The council would have to vote to amend it, according to The Courier. At a council meeting last month, the members debated what that would entail: Either they would have to give the chief of police the authority to make exceptions to the registry requirements, or they would have to grant that responsibility to themselves.

While my reading of the Texas bill regarding registries seems to require that towns “establish procedures for a registered sex offender to apply for an exemption from the ordinance,” that option was not provided in Shenandoah. The chief of police, Troye Dunlap, was not eager to take on the exemption-granting role.

“My opinion is no exceptions should be made,” Dunlap tells Reason. “If something were to happen, then it falls on me.”

The possibility of something happening seems remote, since the man in question is confined to his bed and receiving end-of-life care. But Dunlap worries that any exception would create the possibility of future risks.

“It’s like when we barricade off roads during a hurricane and someone wants to go around the barricade,” he says. “If I let you in, then everyone else wants to, and everyone’s going to have their reasons. You’re going to have to reconsider that line for everybody.”

On the other hand, there is a grand total of two people on the registry in Shenandoah.

What’s more, the 1,000-foot buffer zone is itself based on two intuitive but incorrect beliefs about people on the registry: that they reoffend at a high rate, and that they victimize their neighbors. Mountains of research show that both of these beliefs are false.

According Sandy Rozek, communications director of the National Association for Rational Sex Offense Laws (NARSOL), multiple studies find no correlation between residency restrictions and protecting children.

“Here is a man with zero risk of harming a child, who wants to be with those he loves as he prepares to die,” says Rozek. “To deny him this is heartless, cruel, and inhumane.”

During the city council meeting, one of the members explored granting the exception. But then the others spoke about how future decisions could be more fraught. In the end, the vote was unanimous: no exceptions.

Rozek notes that there’s no registry for murderers; other crimes do not result in draconian, permanent restrictions even after the sentence is served.

“Whatever he did to require sex offender registration, whether or not it involved an offense against a child, he has paid his debt for his crime,” says Rozek. “That was supposed to be the end of his punishment, but being on the registry continues his punishment up to the point of death. That is just wrong.”

The post Sex Offender Registry Prevents Dying, Bedridden Man From Spending Final Days at Home appeared first on Reason.com.

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U.S. District Judge Aileen Cannon never should have interfered with the FBI’s investigation of government records that former President Donald Trump retained after leaving office, a federal appeals court ruled last week. The decision, which the U.S. Court of Appeals for the 11th Circuit issued late Thursday, allows the Justice Department to resume its examination of some 13,000 documents that the FBI seized from Mar-a-Lago in August. Special Counsel Jack Smith is considering whether Trump or his underlings committed federal crimes by keeping the records at his Palm Beach resort.

Cannon threw a wrench into that investigation on September 5, when she agreed with Trump that a special master should first review the records to see whether any qualified as personal property, attorney-client communications, or material covered by executive privilege. The 11th Circuit blocked part of that order a few weeks later, restoring the FBI’s access to more than 100 records that were marked as classified. The court noted that Trump “has not identified any reason that he is entitled to them.” Last week’s ruling vacated Cannon’s decision in its entirety and instructed her to dismiss Trump’s lawsuit.

The appeals court did not address the merits of the potential criminal charges against Trump, which include improper retention of government records, mishandling of “national defense information,” and obstruction of a federal investigation. But the 11th Circuit panel—which consisted of three judges appointed by Republicans, including two Trump nominees—unanimously concluded that Cannon had clearly erred in deciding to exercise “equitable jurisdiction” over the case.

“We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant,” the unsigned opinion says. “Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations.”

To comply with those limitations, the 11th Circuit says, courts must “avoid unnecessary interference with the executive branch’s criminal enforcement authority” while “also offering relief in rare instances where a gross constitutional violation would otherwise leave the subject of a search without recourse.” Toward that end, “this Circuit has developed an exacting test for exercising equitable jurisdiction over suits flowing from the seizure of property.”

Under that test, a plaintiff seeking the return of seized property must show 1) that the government displayed a “callous disregard” for his constitutional rights, 2) that he “has an individual interest in and need for the material whose return he seeks,” 3) that he “would be irreparably injured by denial of the return of the property,” and 4) that he otherwise would not have “an adequate remedy at law for the redress of his grievance.” The 11th Circuit found that Trump had failed to meet any of these criteria, let alone all four.

The Mar-a-Lago search was authorized by a warrant from U.S. Magistrate Judge Bruce Reinhart, who agreed that there was probable cause to believe the FBI would find evidence of criminal conduct. The 11th Circuit reviews the chain of events leading to that warrant, including the National Archives and Records Administration’s efforts to recover documents that Trump had stashed at Mar-a-Lago; the discovery of 184 classified records in 15 boxes that Trump surrendered a year after leaving office; and the federal subpoena seeking any remaining documents that were marked as classified, which produced 38 more in early June.

Although Trump’s representatives assured the Justice Department that they had turned over everything covered by the subpoena after a “diligent search,” the appeals court notes, “the FBI developed more evidence that other classified documents remained at Mar-a-Lago,” which turned out to be true: Fifteen of the 33 “boxes, containers, or groups of papers” that the FBI seized during its August 8 search “contained documents with classification markings, including three such documents found in desks in Plaintiff’s office.” The search “uncovered over one hundred documents marked confidential, secret, or top secret.”

Since Reinhart approved the search based on evidence that he thought established probable cause, the 11th Circuit says, “the callous disregard standard has not been met here, and no one argues otherwise.” Trump conceded as much but argued that he did not need to satisfy that part of the test for equitable jurisdiction. Cannon agreed. “That is an incorrect reading of our precedent,” the appeals court says.

To establish that he had a need for the seized documents, Trump said they included his passports and “similar materials.” But “the passports had already been returned before he filed his first motion, and his jurisdictional brief did not explain what ‘similar materials’ were at issue or why he needed them,” the 11th Circuit notes. “The district court was undeterred by this lack of information.”

In concluding that Trump “would be irreparably injured by denial of the return of the property,” Cannon cited three concerns: the potential use of privileged documents, improper disclosure of “sensitive information,” and the “stigma” associated with the threat of criminal prosecution. Defending Cannon’s order in response to the Justice Department’s appeal, Trump adopted the latter two arguments.

“It cannot be that prosecutors reading unprivileged documents seized pursuant to a lawful warrant constitutes an irreparable injury for purposes of asserting equitable jurisdiction,” the appeals court says. “Plaintiff’s argument would apply to nearly every subject of a search warrant. The district court’s unsupported conclusion that government possession of seized evidence creates an ‘unquantifiable’ risk of public disclosure is not enough to show that Plaintiff faces irreparable harm.”

In the 11th Circuit’s view, the “stigma” argument likewise proves too much. “No doubt the threat of prosecution can weigh heavily on the mind of anyone under investigation,” it says. “But without diminishing the seriousness of the burden, that ordinary experience cannot support extraordinary jurisdiction.”

Finally, Trump was supposed to show that he would have no viable alternative remedy unless Cannon intervened. Cannon concluded that Trump “would have no legal means of seeking the return of his property for the time being and no knowledge of when other relief might become available.” But “this is not sufficient justification,” the 11th Circuit says.

“There is no record evidence that the government exceeded the scope of the warrant—which, it bears repeating, was authorized by a magistrate judge’s finding of probable cause,” the appeals court notes. “And yet again, Plaintiff’s argument would apply universally; presumably any subject of a search warrant would like all of his property back before the government has a chance to use it.”

Alternatively, Trump argued that he needed Cannon’s injunction to “protect documents that he designated as personal under the Presidential Records Act.” But “the status of a document as personal or presidential does not alter the authority of the government to seize it under a warrant supported by probable cause,” the 11th Circuit says. “Search warrants authorize the seizure of personal records as a matter of course.”

In any case, the appeals court says, “all these arguments are a sideshow,” since Trump never showed that the government had violated his rights: “If there has been no constitutional violation—much less a serious one—then there is no harm to be remediated in the first place.”

Cannon emphasized the unprecedented nature of the Mar-a-Lago search. “It is indeed extraordinary for a warrant to be executed at the home of a former president—but not in a way that affects our legal analysis or otherwise gives the judiciary license to interfere in an ongoing investigation,” the 11th Circuit says. “To create a special exception here would defy our Nation’s foundational principle that our law applies ‘to all, without regard to numbers, wealth, or rank.'”

The post 11th Circuit Says a Judge Should Not Have Interfered With the FBI's Review of the Mar-a-Lago Documents appeared first on Reason.com.

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The administration of Florida Gov. Ron DeSantis (R) is suing the city of Gainesville to stop its legalization of new small apartment buildings in all residential areas. Allowing more housing in existing neighborhoods will worsen housing affordability, the state argues, while straining infrastructure and upending established neighborhood character.

“It is simply illogical for the City to argue that by entirely removing the concept of lower density detached residential dwellings…it is doing anything more than helping provide housing to college students and higher income residents,” reads the petition filed last week by the Florida Department of Economic Opportunity (DEO) in the state’s Division of Administrative Hearings.

The DEO’s petition, which was first reported on by The Independent Florida Alligator, contends that creating affordable housing requires Gainesville to adopt “inclusionary zoning” policies, whereby developers are allowed to build denser housing on the condition that they provide some of the new units at below-market rates to low-income renters or buyers.

Just legalizing denser construction without subsidies and restrictions needed to create below-market-rate housing provides no benefit to lower-income residents, argues the department, saying in the petition that “the ‘invisible hand’ of a free market operates simply in this situation—without inclusionary zoning tools, developers will not build affordable housing.”

In October, the Gainesville City Commission narrowly approved a series of ordinances that allow more homes per acre and small four-unit apartments to be built on residential land citywide, including in areas where only detached single-family housing was allowed.

Cities and states around the country have adopted similar “missing middle” zoning reforms on the grounds that allowing new duplexes, triplexes, and more will make residential neighborhoods more affordable, sustainable, and equitable.

The results of these reforms have been pretty modest so far. In places like Minneapolis and Portland, Oregon, they’ve enabled the construction of a few hundred missing middle homes that sell for prices well below that of new single-family homes. One would expect Gainesville’s reforms to have a similar impact.

That hasn’t mollified the fears of activists who formed the group Gainesville Neighborhood Voices (GNV) in June 2022 to oppose single-family zoning abolition.

In written materials, letters to government agencies, rallies, and testimonies to the City Commission, GNV members have argued that Gainesville’s housing problems are not due to a lack of supply per se, but to existing homes costing too much. They warn that there’s no telling what the elimination of single-family zoning will do for affordability but that it “will likely be destructive to stable neighborhoods.”

These complaints didn’t move the City Commission, but they have found a receptive audience at the Florida DEO. In September, the department sent a comment letter to Gainesville Mayor Lauren Poe echoing activists’ concerns about the impacts single-family zoning abolition would have on affordability, infrastructure, and neighborhood stability.

The DEO’s lawsuit comes a few weeks after two GNV activists filed their own petition opposing the city’s zoning reforms. Alachua County, which contains Gainesville, has also filed a petition to stop the city’s zoning reforms.

The Florida state government plays a limited role in local zoning decisions and can typically only step in when state assets are threatened. The DEO is justifying its interventions by claiming that “affordable housing” generally is a state asset that could be damaged by Gainesville’s elimination of single-family zoning.

“That’s a really big leap for DEO,” Thomas Hawkins, a lawyer, planner, and assistant professor at the University of Florida, told Bloomberg CityLab in October. He said a state asset is usually something like a major piece of infrastructure or an environmental resource.

Housing politics is weird. It rarely falls neatly along party lines. Nevertheless, the DEO petition is an exceptionally strange document to come from the nominally free market–supporting DeSantis administration.

Its explicit premise is that a general increase in new housing supply at market rates won’t make housing more affordable and, in fact, will make affordability worse. Instead, the department argues that government regulations, subsidies, and incentives are necessary to ensure truly affordable housing gets built and gets built in the right places.

That’s an incredibly government-centric view of housing affordability. It ignores both the theory and the evidence that when new housing is built, even very expensive housing, it lessens demand on existing housing stock, leading to lower prices and rents.

New missing middle housing typologies also typically sell for much less than a new single-family home. Cities that legalize them are giving homebuilders more property rights and homebuyers more affordable choices.

These improvements are marginal, but they’re improvements nonetheless. DeSantis’ administration is going to great lengths to stop them from happening, including making novel arguments about the expansive powers of state regulators.

The Alligator reports that the lawsuits against Gainesville’s single-family zoning abolition prevent developers from getting permits to build newly legal duplexes, triplexes, and so on. The hope among anti-reform activists is that the ordinance can be delayed long enough until the new City Commission (which is stacked with zoning reform opponents) can reinstate single-family zoning.

The post Ron DeSantis Admin Says in New Lawsuit That the Free Market Won't Produce Affordable Housing appeared first on Reason.com.

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