Month: September 2023

From Judge Timothy Brooks’ opinion yesterday in Netchoice, LLC v. Griffin (W.D. Ark.):

This case presents a constitutional challenge to Arkansas Act 689 of 2023, the “Social Media Safety Act” …, a new law that aims to protect minors from harms associated with the use of social media platforms. Act 689 … requires social media companies to verify the age of all account holders who reside in Arkansas. Self-reporting one’s age (a common industry practice) is not sufficient; Arkansans must submit age-verifying documentation before accessing a social media platform.

Under Act 689, a “social media company,” as defined in the Act, must outsource the age-verification process to a third-party vendor. A prospective user of social media must first prove their age by uploading a specified form of identification, such as a driver’s license, to the third-party vendor’s website. A verified adult may obtain a social media account. Minors, however, will be denied an account and prohibited from accessing social media platforms, unless a parent provides express consent—which will require more proof to confirm the parent’s age, identity, and relationship to the minor….

The court held that the law likely violated the First Amendment:

Deciding whether Act 689 is content-based or content-neutral turns on the reasons the State gives for adopting the Act. First, the State argues that the more time a minor spends on social media, the more likely it is that the minor will suffer negative mental-health outcomes, including depression and anxiety. Second, the State points out that adult sexual predators on social media seek out minors and victimize them in various ways. Therefore, to the State, a law limiting access to social media platforms based on the user’s age would be content-neutral and require only intermediate scrutiny.

On the other hand, the State points to certain speech-related content on social media that it maintains is harmful for children to view. Some of this content is not constitutionally protected speech, while other content, though potentially damaging or distressing, especially to younger minors, is likely protected nonetheless. Examples of this type of speech include depictions and discussions of violence or self-harming, information about dieting, so-called “bullying” speech, or speech targeting a speaker’s physical appearance, race or ethnicity, sexual orientation, or gender. If the State’s purpose is to restrict access to constitutionally protected speech based on the State’s belief that such speech is harmful to minors, then arguably Act 689 would be subject to strict scrutiny.

During the hearing, the State advocated for intermediate scrutiny and framed Act 689 as “a restriction on where minors can be,” emphasizing it was “not a speech restriction” but “a location restriction.” The State’s briefing analogized Act 689 to a restriction on minors entering a bar or a casino. But this analogy is weak. After all, minors have no constitutional right to consume alcohol, and the primary purpose of a bar is to serve alcohol. By contrast, the primary purpose of a social media platform is to engage in speech, and the State stipulated that social media platforms contain vast amounts of constitutionally protected speech for both adults and minors. Furthermore, Act 689 imposes much broader “location restrictions” than a bar does….

Having considered both sides’ positions on the level of constitutional scrutiny to be applied, the Court tends to agree with NetChoice that the restrictions in Act 689 are subject to strict scrutiny. However, the Court will not reach that conclusion definitively at this early stage in the proceedings and instead will apply intermediate scrutiny, as the State suggests. Under intermediate scrutiny, a law must be “narrowly tailored to serve a significant governmental interest[,]”which means it must advance that interest without “sweep[ing] too broadly” or chilling more constitutionally protected speech than is necessary, and it must not “raise serious doubts about whether the statute actually serves the state’s purported interest” by “leav[ing] [out]” and failing to regulate “significant influences bearing on the interest.”

Since Act 689 clearly serves an important governmental interest, the Court will address whether the Act burdens adults’ and/or minors’ access to protected speech and whether the Act is narrowly tailored to burden as little speech as possible while effectively serving the State’s interest in protecting minors online.

Burdens on Adults’ Access to Speech …

Requiring adult users to produce state-approved documentation to prove their age and/or submit to biometric age-verification testing imposes significant burdens on adult access to constitutionally protected speech and “discourage[s] users from accessing [the regulated] sites.” Age-verification schemes like those contemplated by Act 689 “are not only an additional hassle,” but “they also require that website visitors forgo the anonymity otherwise available on the internet.” …

Burdens on Minors’ Access to Speech

The Supreme Court instructs:

[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. No doubt a State possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.

Neither the State’s experts nor its secondary sources claim that the majority of content available on the social media platforms regulated by Act 689 is damaging, harmful, or obscene as to minors. And even though the State’s goal of internet safety for minors is admirable, “the governmental interest in protecting children does not justify an unnecessarily broad suppression of speech addressed to adults.”

Act 689 is Not Narrowly Tailored

The Court first considers the Supreme Court’s narrow-tailoring analysis in Brown v. Entertainment Merchants Association, which involved a California law prohibiting the sale or rental of violent video games to minors. The state “claim[ed] that the Act [was] justified in aid of parental authority: By requiring that the purchase of violent video games [could] be made only by adults, the Act ensure[d] that parents [could] decide what games [were] appropriate.” The Brown Court recognized that the state legislature’s goal of “addressing a serious social problem,” namely, minors’ exposure to violent images, was “legitimate,” but where First Amendment rights were involved, the Court cautioned that the state’s objectives “must be pursued by means that are neither seriously underinclusive nor seriously overinclusive.”

“As a means of protecting children from portrayals of violence, the legislation [was] seriously underinclusive, not only because it exclude[d] portrayals other than video games, but also because it permit[ted] a parental … veto.” If the material was indeed “dangerous [and] mindaltering,” the Court explained, it did not make sense to “leave [it] in the hands of children so long as one parent … says it’s OK.”  Equally, “as a means of assisting concerned parents,” the Court held that the regulation was “seriously overinclusive because it abridge[d] the First Amendment rights of young people whose parents … think violent video games are a harmless pastime.”  Put simply, the legislation was not narrowly tailored.

In the end, the Brown Court rejected the argument “that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent,” for “[s]uch laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto.” “This is not the narrow tailoring to ‘assisting parents’ that restriction of First Amendment rights requires.”  The Court also expressed “doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority.”  “Accepting that position would largely vitiate the rule that ‘only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].'”

The State regulation here, like the one in Brown, is not narrowly tailored to address the harms that the State contends are encountered by minors on social media. The State maintains that Act 689’s exemptions are meant to precisely target the platforms that pose the greatest danger to minors online, but the data do not support that claim.

To begin with, the connection between these harms and “social media” is ill defined by the data. It bears mentioning that the State’s secondary sources refer to “social media” in a broad sense, though Act 689 regulates only some social media platforms and exempts many others. For example, YouTube is not regulated by Act 689, yet one of the State’s exhibits discussing the dangers minors face on “social media” specifically cites YouTube as being “the most popular online activity among children aged 3–17” and notes that “[a]mong all types of online platforms, YouTube was the most widely used by children ….”

Likewise, another State exhibit published by the FBI noted that “gaming sites or video chat applications that feel familiar and safe [to minors]” are common places where adult predators engage in financial “sextortion” of minors. However, Act 689 exempts these platforms from compliance. Mr. Allen, the State’s expert, criticized the Act for being “very limited in terms of the numbers of organizations that are likely to be caught by it, possibly to the point where you can count them on your fingers….” He then stated that he did not “want to be unkind to the people who drafted [Act 689],” but at least some exempt platforms are ones that adult sexual predators commonly use to communicate with children, including Kik and Kik Messenger, Google Hangouts, and interactive gaming websites and platforms.

The Court asked the State’s attorney why Act 689 targets only certain social media companies and not others, and he responded that the General Assembly crafted the Act’s definitions and exemptions using the data reported in an article published by the National Center for Missing and Exploited Children (“NCMEC”). This article lists the names of dozens of popular platforms and notes the number of suspected incidents of child sexual exploitation that each self-reported over the past year. The State selected what it considered the most dangerous platforms for children—based on the NCMEC data—and listed those platforms in a table in its brief.

During the hearing, the Court observed that the data in the NCMEC article lacked context; the article listed raw numbers but did not account for the amount of online traffic and number of users present on each platform. The State’s attorney readily agreed, noting that “Facebook probably has the most people on it, so it’s going to have the most reports.” But he still opined that the NCMEC data was a sound way to target the most dangerous social media platforms, so “the highest volume [of reports] is probably where the law would be concentrated.”

Frankly, if the State claims Act 689’s inclusions and exemptions come from the data in the NCMEC article, it appears the drafters of the Act did not read the article carefully. Act 689 regulates Facebook and Instagram, the platforms with the two highest numbers of reports. But, the Act exempts Google, WhatsApp, Omegle, and Snapchat— the sites with the third-, fourth-, fifth-, and sixth-highest numbers of reports. Nextdoor is at the very bottom of NCMEC’s list, with only one report of suspected child sexual exploitation all year, yet the State’s attorney noted during the hearing that Nextdoor would be subject to regulation under Act 689.

None of the experts and sources cited by the State indicate that risks to minors are greater on platforms that generate more than $100 million annually. Instead, the research suggests that it is the amount of time that a minor spends unsupervised online and the content that he or she encounters there that matters. However, Act 689 does not address time spent on social media; it only deals with account creation. In other words, once a minor receives parental consent to have an account, Act 689 has no bearing on how much time the minor spends online. Using the State’s analogy, if a social media platform is like a bar, Act 689 contemplates parents dropping their children off at the bar without ever having to pick them up again. The Act only requires parents to give express permission to create an account on a regulated social media platform once. After that, it does not require parents to utilize content filters or other controls or monitor their children’s online experiences—something Mr. Allen believes the real key to keeping minors safe and mentally well on social media.

The State’s brief argues that “requiring a minor to have parental authorization to make a profile on a social media site …. means that many minors will be protected from the well-documented mental health harms present on social media because their parents will have to be involved in their profile creation” and are therefore “more likely to be involved in their minor’s online experience.” But this is just an assumption on the State’s part, and there is no evidence of record to show that a parent’s involvement in account creation signals an intent to be involved in the child’s online experiences thereafter….

Finally, the Court concludes that Act 689 is not narrowly tailored to target content harmful to minors. It simply impedes access to content writ large….

Age-verification requirements are more restrictive than policies enabling or encouraging users (or their parents) to control their own access to information, whether through user-installed devices and filters or affirmative requests to third-party companies. “Filters impose selective restrictions on speech at the receiving end, not universal restrictions at the source.” Ashcroft v. ACLU (II) (2004). And “[u]nder a filtering regime, adults … may gain access to speech they have a right to see without having to identify themselves[.]”Similarly, the State could always “act to encourage the use of filters … by parents” to protect minors.

In sum, NetChoice is likely to succeed on the merits of the First Amendment claim it raises on behalf of Arkansas users of member platforms. The State’s solution to the very real problems associated with minors’ time spent online and access to harmful content on social media is not narrowly tailored. Act 689 is likely to unduly burden adult and minor access to constitutionally protected speech. If the legislature’s goal in passing Act 689 was to protect minors from materials or interactions that could harm them online, there is no compelling evidence that the Act will be effective in achieving those goals.

And the court held that Act 689 was likely unconstitutionally vague:

A “social media company” is defined as “an online forum that a company makes available for an account holder” to “[c]reate a public profile, establish an account, or register as a user for the primary purpose of interacting socially with other profiles and accounts,” “[u]pload or create posts or content,” “[v]iew posts or content of other account holders,” and “[i]nteract with other account holders or users, including without limitation establishing mutual connections through request and acceptance.” But the statute neither defines “primary purpose”—a term critical to determining which entities fall within Act 689’s scope—nor provides any guidelines about how to determine a forum’s “primary purpose,” leaving companies to choose between risking unpredictable and arbitrary enforcement (backed by civil penalties, attorneys’ fees, and potential criminal sanctions) and trying to implement the Act’s costly age-verification requirements. Such ambiguity renders a law unconstitutional….

The State argues that Act 689’s definitions are clear and that “any person of ordinary intelligence can tell that [Act 689] regulates Meta, Twitter[,] and TikTok.” But what about other platforms, like Snapchat? David Boyle, Snapchat’s Senior Director of Products, stated in his Declaration that he was not sure whether his company would be regulated by Act 689. He initially suspected that Snapchat would be exempt until he read a news report quoting one of Act 689’s co-sponsors who claimed Snapchat was specifically targeted for regulation.

During the evidentiary hearing, the Court asked the State’s expert, Mr. Allen, whether he believed Snapchat met Act 689’s definition of a regulated “social media company.” He responded in the affirmative, explaining that Snapchat’s “primary purpose” matched Act 689’s definition of a “social media company” (provided it was true that Snapchat also met the Act’s profitability requirements). When the Court asked the same question to the State’s attorney later on in the hearing, he gave a contrary answer—which illustrates the ambiguous nature of key terms in Act 689. The State’s attorney disagreed with Mr. Allen—his own witness—and said the State’s official position was that Snapchat was not subject to regulation because of its “primary purpose.”

Other provisions of Act 689 are similarly vague. The Act defines the phrase “social media platform” as an “internet-based service or application … [o]n which a substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application”; but the Act excludes services in which “the predominant or exclusive function is” “[d]irect messaging consisting of messages, photos, or videos” that are “[o]nly visible to the sender and the recipient or recipients” and “[a]re not posted publicly.” Again, the statute does not define “substantial function” or “predominant … function,” leaving companies to guess whether their online services are covered. Many services allow users to send direct, private messages consisting of texts, photos, or videos, but also offer other features that allow users to create content that anyone can view. Act 689 does not explain how platforms are to determine which function is “predominant,” leaving those services to guess whether they are regulated.

Act 689 also fails to define what type of proof will be sufficient to demonstrate that a platform has obtained the “express consent of a parent or legal guardian.” If a parent wants to give her child permission to create an account, but the parent and the child have different last names, it is not clear what, if anything, the social media company or third-party servicer must do to prove a parental relationship exists. And if a child is the product of divorced parents who disagree about parental permission, proof of express consent will be that much trickier to establish—especially without guidance from the State.

These ambiguities were highlighted by the State’s own expert, who testified that “the biggest challenge … with parental consent is actually establishing the relationship, the parental relationship.” Since the State offers no guidance about the sort of proof that will be required to show parental consent, it is likely that once Act 689 goes into effect, the companies will err on the side of caution and require detailed proof of the parental relationship. As a result, parents and guardians who otherwise would have freely given consent to open an account will be dissuaded by the red tape and refuse consent—which will unnecessarily burden minors’ access to constitutionally protected speech.

Plaintiff is represented by Erin Murphy, James Xi, Joseph DeMott, and Paul Clement (Clement & Murphy, PLLC) and Katherine Church Campbell and Marshall S. Ney (Friday, Eldredge & Clark, LLP) (not to be confused with Marshal Ney).

The post Arkansas Social Media Age Verification Law Likely Violates First Amendment appeared first on Reason.com.

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From Texas Supreme Court Justice John Devine’s dissent from denial of petition for writ of mandamus today in In re Hotze:

In our republican form of government, the relationship between citizens and their political representatives is sacred and constitutionally protected. “[T]he people are the sovereign,” but they express their will and govern through their duly elected representatives. For that to happen, our elected representatives must be free to communicate and share information with their constituents. The freedom of political dialogue and association is of such “transcendent importance” to “the maintenance of democratic institutions” that the Texas Constitution expressly guarantees the right to speak, to assemble, and to petition our government. These bedrock principles of freedom are the foundation of an enduring democracy.

But at a historic moment for our great state, these rights are imperiled by rules adopted in connection with the impending impeachment trial of Warren Kenneth Paxton, Jr., the third-term Attorney General of the State of Texas. In an unprecedented move, the Senate, sitting as the “Court of Impeachment,” has adopted Rule of Impeachment 10, which broadly prohibits political representatives from talking to their constituents about “any matter relating to the merits of the proceedings before the court of impeachment.” In a corollary measure, Rule 10 also requires the presiding officer of the impeachment court to issue a “gag order.” The presiding officer has complied by issuing an extremely broad suppressive order that threatens representatives with contempt, criminal confinement of up to six months, and monetary penalties. In effect, if not by design, the gag order chills our representatives from engaging in constitutionally protected attributes of our government….

Our Constitution grants an “inviolate” right to “speak … on any subject.” At the very core of this protection lies political expression. Speech between constituents and their representatives about the merits of impeachment and removal is undoubtedly political. In many ways, it is archetypically political.

A robust defense of this important right requires courts to view any restraint of political speech with a strong and healthy dose of skepticism. If a restraint amounts to a “pre-speech sanction” or “prior restraint,” it is “presumptively unconstitutional.” Orders forbidding speech activities before the communications occur—including gag orders—”are classic examples of prior restraints.” Because gag orders “rest at the intersection of two disfavored forms of expressive limitations”—prior restraints and content-based restrictions—they “warrant a most rigorous form of review.” And when a content-based, prior-restraint rule or gag order is imposed on political representatives participating in an impeachment trial, it must be examined with even greater scrutiny and care to ensure no improper infringement on the representatives’ freedom to speak to and communicate with their constituents. In other words, the fundamental process that undergirds our representative government must be protected under the strictest scrutiny.

Although the Court has never addressed a prior-restraint rule or gag order restraining political speech in an impeachment context, we have adopted a test for gag orders in civil judicial proceedings. In that context, a gag order “will withstand constitutional scrutiny only where there are specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the [gag order] represents the least restrictive means to prevent that harm.” Neither Rule 10 nor the gag order satisfies this standard, let alone the more rigorous standard that should apply to prior restraints on political speech and discourse between the people and their elected representatives.

As to imminent and irreparable harm, the presiding officer found: (1) there has been “extensive publicity” and out-of-court inflammatory and prejudicial statements; (2) the individuals that made these statements “will likely continue to make public prejudicial and inflammatory statements” and there is a “substantial likelihood that members may be inadvertently exposed to prejudicial publicity”; (3) because the jury is set by the Constitution without a jury pool, “any prejudicial bias that occurs would irreparably taint the impartiality of the court”; (4) if members of the court are exposed to these types of statements, “it could impact the member’s ability to render a fair and impartial verdict”; and (5) “there is a substantial likelihood that members’ initial opinions may not be set aside.” None of these findings justify the overly broad gag order.

An impeachment trial will inevitably generate extensive publicity, media coverage, and news. That is true. But “[p]rominence does not necessarily produce prejudice”; “juror impartiality … does not require ignorance“; and unlike conventional jurors, political representatives are accustomed to publicity, inflammatory statements, and controversy. Indeed, politicians frequently engage in the rough and tumble of political life, sifting through and ignoring inflammatory statements to make tough decisions despite controversy or political headwinds. The presiding officer’s findings do not account for the nature of an impeachment proceeding and the political character of that court and its members. In my estimation, the findings and evidence don’t come close to supporting the conclusion that “an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute.” Abstract fears and rank speculation do not justify a prior restraint of this magnitude.

Nor does the public record support the conclusion that the sweepingly broad gag order represents the least restrictive means to prevent any such harm. The presiding officer found that, without the gag order, “there is a substantial likelihood that members may be inadvertently exposed to prejudicial publicity” and “individuals involved in the trial of impeachment will likely continue to make public prejudicial and inflammatory statements.” But without any supportive findings or evidence, the gag order applies indiscriminately to “[a]ny member of the court; member of the House of Representatives; party to the trial of impeachment; witness in the trial of impeachment; or attorney, employee, or agent of any of those individuals.” There are no findings justifying wholesale restrictions on each category of covered individuals.

In addition, the evidence of “inflammatory statements” pertained only to a single “potential witness,” a single member of the House Board of Managers, the board’s attorneys, and the Attorney General’s attorney. The gag order simply assumes—without any evidence at all—that all covered individuals, including parties, lawyers, witnesses, and members of the impeachment court—are identically situated and just as likely to “continue to make public prejudicial and inflammatory statements.”

Most disconcertingly, however, is the breadth of Rule 10(b) and the gag order in what type of speech is prohibited. The rule sweeps far beyond legitimate restraint by broadly prohibiting any “discuss[ion] or comment” to individuals not participating in the proceedings “on any matter relating to the merits of the proceedings.” The gag order’s vaguely articulated and facially overbroad prohibition on extrajudicial statements is just as troubling. “Gag orders should be a last resort, not a first impulse,” and the findings and mandamus record here do not demonstrate any attempt at less-restrictive alternatives.

Ultimately, the primary effect of Rule 10 and the gag order is to prevent political representatives from fulfilling their duty to communicate with their constituents about a vital—and historic—political matter of immense public concern. These impossibly broad restrictions on political speech are inconstant with standards we have used in less consequential circumstances and, in my view, are repugnant to the Constitution….

Justice Devine also criticizes a separate impeachment rule, under which Paxton’s wife, a state senator, is recused from the proceedings:

Additionally, in Rule of Impeachment 31, the Senate prohibits the “spouse of a party to the court of impeachment” from “vot[ing] on any matter, motion, or question, or participat[ing] in closed sessions or deliberations.” Though not specifically stated, Rule 31 automatically disqualifies the representative for Senate District 8—Senator Angela Paxton—from participating and voting in the impeachment trial because Attorney General Paxton is her husband….

Under our Constitution, an impeachment proceeding is, by its nature, political in the republican sense of that word: representative. Article XV of our Constitution, which governs impeachment proceedings, does not place the impeachment power in the hands of the judiciary or individuals chosen by state-wide elections or random lot. Rather, the powers to impeach, try the impeachment, and remove certain officers rest with the bicameral branch of government composed of members who represent the people of local districts.

If the House of Representatives votes to impeach one of these officers, including the Attorney General, the impeachment “shall be tried by the Senate,” which “shall consist of thirty-one members.” Although the trial is political in nature, the Constitution prescribes the method for assuring it is impartial: “When the Senate is sitting as a Court of Impeachment, the Senators shall be on oath, or affirmation impartially to try the party impeached, and no person shall be convicted without the concurrence of two-thirds of the Senators present.”

Here, however, the Senate has deprived the people of one district—Senate District 8—of any representation in the upcoming political impeachment trial, regardless of whether their senator is “on oath, or affirmation impartially to try the party impeached.” Impeachment Rule 31 requires that “[a] member of the court who is the spouse of a party to the court of impeachment” is considered present for calculating votes but is not “eligible to vote on any matter, motion, or question, or participate in closed sessions or deliberations.” Because Senator Paxton’s spouse is the subject of the impeachment trial, Rule 31 automatically prohibits her from voting and participating in the impeachment trial.

Legitimate concerns undeniably exist about a senator’s ability to neutrally participate and vote in the impeachment trial of a spouse. Anyone who has taken marriage vows would understand why a political representative may be unable to take an oath or affirmation of impartiality or to participate and vote impartially in that situation.

But similar concerns also may exist about senators’ impartiality when they have partisan or financial interests in the results of an impeachment trial, as the relators allege of other senators who have not been excluded from participating and voting as a juror in the trial. But in either circumstance, Article XV constitutionally commits the question of impartiality to each individual senator in deciding whether to take the oath or affirmation and if so, how to participate in an impeachment trial while remaining faithful to that oath or affirmation. Each senator will be accountable to his or her electorate for that decision. But Article XV does not provide for senators representing people in other districts to collectively make that decision for an individual senator.

In adopting Rule 31, the Senate improperly looks beyond Article XV for authority to exclude Senator Paxton from participating in the impeachment trial as a representative of Senate District 8’s constituents. Rule 31 declares that “[a] member of the court who is the spouse of a party to the court of impeachment” has “a conflict pursuant to Article III, Section 22, of the Texas Constitution.” That provision of the Constitution provides that “[a] member who has a personal or private interest in any measure or bill, proposed, or pending before the Legislature, shall disclose the fact to the House, of which he is a member, and shall not vote thereon.” But given its placement in Article III—”Legislative Department”—and reference to “any measure or bill,” Section 22 does not apply when the Senate is acting in a judicial, rather than legislative, function as a “Court of Impeachment” under Article XV, Section 2. When the Senate engages that function, Article XV provides the more specific—and only—recusal rule.

While the Senate is generally authorized to “determine the rules of its own proceedings,” that does not give the legislative body carte blanche to contravene specific provisions of the Constitution. Because Article XV speaks directly and expressly to recusal of senators from impeachment proceedings, the Senate cannot adopt different rules. And it certainly cannot do so when said rules exclude an entire populace from political representation in the impeachment process by preventing their elected representative from participating in impeachment proceedings for reasons other than those stated in the Constitution….

Justice Devine closes:

An impeachment trial is unlike any other proceeding in our republican form of government. By constitutional design—and unlike conventional judicial trials—it’s necessarily political. Representatives of the people of local districts are tasked with the responsibility of sitting as a court on their constituents’ behalf to try the impeachment and determine whether a public officer should be removed from office. While the Senate has wide latitude in how it conducts the impeachment trial, those proceedings must nonetheless comport with our Constitution. Because the gag order and Impeachment Rules 10 and 31 fail to do so, I would grant mandamus relief. I respectfully dissent.

The post Texas S. Ct. Refuses to Block "Gag Order" on Senators Judging Impeachment of Attorney General Paxton appeared first on Reason.com.

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In Arc Mercer, Inc. v. MediaNews Group, decided Wednesday by N.J. trial court judge Brian McLaughlin, Arc Mercer—”a non-profit organization serving the needs of the persons with developmental and intellectual disabilities”—sued the newspaper The Trentonian and one of its journalists under the N.J. Law Against Discrimination. To quote the court, the journalist, “alerted to the planned attendance of several prominent elected officials at a charity event held at a venue co-owned by an allegedly controversial figure, wrote a series of opinion articles critical of said elected officials” and likewise criticizing “Arc Mercer for hosting the gala at the venue.”

Arc Mercer argued that this violated the LAD, because “Defendants unlawfully discriminated against Plaintiff by targeting Plaintiff on the basis of the disabilities of its consumers in order to incite others, and attempt to incite others, to refuse to do business with Plaintiff”:

In 2022, Plaintiff, like multiple other businesses and politicians, chose to host its annual fundraising gala at [the restaurant and catering venue] the Stone Terrace…. [T]he Arc [believes it] is the only organization that has held an event at the Stone Terrace since June 2020 that had a client base of persons with developmental and intellectual disabilities….

On June 11, 2020, Joseph Russo, the head chef and partial owner of the Stone Terrace at the time, published statements on social media that were racially offensive. These statements included slurs towards Black Lives Matter, as well as calling George Floyd protesters “evil.”

The Stone Terrace experienced a considerable backlash from the local community including protests and boycotting of the venue. John Henry and Catherine Henry, owners of the Stone Terrace, released a statement referring to Russo as their “former executive chef” and apologized for the offensive statements by Russo, and confirming that Russo’s views did not reflect the Stone Terrace’s views or policies, and that the Stone Terrace supports the Black Lives Matter Movement.

Since June of 2020, numerous significant other organization, business and political official/candidates have had events there with no comment or objection by Defendants. These parties include, but are not limited to, the Hamilton Area YMCA, the Hamilton Township Economic Development Advisory Commission, and the Princeton Mercer Regional Chamber….

While remaining silent with respect to these other organizations, businesses and political officials/candidates, Defendants singled out Plaintiff with a series of articles designed to incite or induce members of the public to refuse to do business with Plaintiff, make charitable contributions to Plaintiff, attend Plaintiff’s gala, and/or detrimentally impact the Plaintiff’s reputation and marketability, purportedly because of Plaintiff’s decision to host its gala at Stone Terrace.

On November 11, 2022, Parker and the Trentonian published an article titled, “Arc Mercer stone-cold wrong about gala venue,” quoting Dr. Martin Luther King and accusing Plaintiff of “pos{ing} a significantly different perspective on justice, equality and tolerance” by hosting its upcoming annual fundraising gala on November 18, 2022, at the Stone Terrace, an allegation not asserted against any other of the significant number of organization, business or political officials/candidates that had hosted events at the Stone Terrace subsequent to June 2020.

The November 11, 2022, article republished the social media comments made by Joseph Russo in June 2020 containing racially offensive material, while accusing Plaintiff of being guilty of racial insensitivity and racism by hosting its gala at the Stone Terrace. No other organization, business or political official/candidate having hosted events at the Stone Terrace subsequent to June 2020 had been (or has since been) so targeted.

Four days later, on November 15, 2022, Parker and the Trentonian followed up on its initial article by published a second article, now accusing Plaintiff of “posing Black people” and of being “complicit” in the racially offensive comments that the former head chef had posted over two and one-half years previous to the gala. No other organization, business or political official/candidate having hosted events at the Stone Terrace subsequent to June 2020 had been (or has since been) so targeted.

Not content to let matters rest, on November 22, 2022, Parker and the Trentonian published a third article about the Arc gala that labeled the event as an act of “hate” comparable to the “brutal attack on our LGBTQ family in Colorado Springs,” while calling for the public to “speak up and act before hate overwhelms and drowns us all.” No other organization, business or political official/candidate having hosted events at the Stone Terrace subsequent to June 2020 had been (or has since been) so targeted. This third article in particular called for the public at large to “act” by refusing to do business with or support the Arc.

On November 26, 2022, Parker and the Trentonian published a fourth article titled, “Liberian outreach fails as smoke screen for abhorrent behavior,” that now accused the Arc of using its Liberian outreach to “distort issues involving racism.” Within the two and one-half years since the publication of the racially offensive material on social media by the Stone Terrace’s former head chef, dozens of other individuals, businesses and organizations have hosted events at the Stone Terrace, but Plaintiff has been the only entity targeted by Defendants in this manner….

The articles written and published by Defendants were intended to, and/or had the effect of, inducing and/or inciting others to not do business with the Arc, not make charitable contributions to the Arc, not attend the Arc’s fundraising galas, and/or detrimentally impact the Arc’s reputation and marketability.

Plaintiff was targeted by Defendants because its customers are persons with developmental and intellectual disabilities. There is no other reason for distinguishing Plaintiff from the many other individuals, businesses and organizations have hosted events at the Stone Terrace since June 2020 and who were not attacked by Defendants in this way….

The defendants moved to dismiss, and the court concluded that plaintiff had sufficiently alleged “intent to discriminate on the basis of disability,” though “any connection between the articles and Plaintiff’s disabled clients is attenuated at best.” (Actual proof of discrimination isn’t required at the motion-to-dismiss stage.) But the court apparently accepted defendants’ arguments that (to quote defendants’ reply brief),

The Columns did not call for any action against the Arc other than urging the three local mayors being honored at the organization’s fundraising gala to not attend. Discouraging people from attending a charity gala is not prohibited by the plain language of the LAD because, as Defendants set forth in their opening brief, [the relevant LAD provisions] encompass only the refusal to engage in commercial transactions.

The court concluded that it therefore didn’t have to reach defendants’ First Amendment defense. (It seems to me that the newspaper ought to have an open and shut First Amendment defense here, though I’m not sure the court would have agreed, given its somewhat cryptic remark that, “To this Court, this expressive speech [in 303 Creative v. Elenis, which involved the web site designer who didn’t want to create web sites for same-sex weddings -EV] is distinguishable from the instant news articles Plaintiff journalist was paid to produce.”)

Elizabeth Seidlin-Bernstein (Ballard Spahr LLP) represents defendants. Thanks to the Media Law Resource Center (MLRC) MediaLawDaily for the pointer.

The post Organization Serving Disabled People Claims Newspaper Discriminatorily Targeted It for Criticism appeared first on Reason.com.

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