from the and-now-we-wait dept
With the standard caveat that reading too much into oral arguments is dangerous, I will note that I am cautiously optimistic after listening to the oral arguments in the Murthy v. Missouri case at the Supreme Court this morning. There are very real concerns about where the line is between government coercion (not allowed) and government persuasion (allowed) on speech, as we’ve discussed repeatedly. Sometimes this is referred to as the legality of “jawboning.”
I tend to think that government officials are all too often allowed to get away with jawboning that I think crosses the line. And this is a bipartisan problem, as government officials on both sides of the aisle seek to silence or punish speech they dislike. It would be great to have the Supreme Court set out a clear rule for how to deal with such things, and to establish where the line is.
There are some cases, such as Bantam Books at the Supreme Court, the Okwedy case at the 2nd Circuit and the Backpage case at the 7th Circuit that address some of this, but none of them clearly lay out an easily followed test. And that’s part of the reason this case has been such a mess so far. But the other, much larger reason why is that the folks bringing this case (Missouri, Louisiana, and a bunch of nonsense peddlers who were mad their content was moderated) basically filed a bunch of half-truths, lies, misleading, out of context, conspiracy theories, and more. And that has made the specific record of this case a complete mess of lies and nonsense.
Now, it’s possible that you could still get a useful ruling even with all of that. The Court obviously should make it clear that the federal government cannot seek to threaten, coerce, or intimidate social media websites into removing speech. That would be a clear First Amendment violation. But they should be able to express their opinion or to provide useful information regarding the truth or falsity of some information, or about if they’ve found evidence of (for example) foreign influence campaigns.
The problem of this particular case is that those who brought the case presented situations of the latter (providing useful information) as the former (coercing removals) and the judge at the district court inflated it even further. The judges at the 5th Circuit then took that and trimmed back some of the hyperbole by the lower court, but still (mostly) accepted as true the arguments that the sharing of information was inherently coercive. This creates some real problems, especially if the government wants to again share useful information with social media companies (which they’ve all but stopped doing because of this lawsuit).
Thankfully, the Justices (on both sides of the ideological spectrum) seemed to recognize the problematic nature of the record in this case, and the extreme claims of the states (and the lower courts). Justices Brett Kavanaugh and Sonia Sotomayor both seemed the most vocal in calling out the weird posture of the states and nonsense peddlers. Justices Amy Coney Barrett and Elena Kagan seemed similarly troubled by what the states were claiming. Justice Roberts asked good questions though it’s unclear where he is leaning exactly. Justice Ketanji Brown Jackson seemed to go too far towards arguing that the government should have more leeway in pushing companies to take down speech.
Justice Alito clearly seemed to think that the states had the stronger argument, but he may have been alone. As Louisiana’s Solicitor General (a former Alito clerk) flailed around while the other Justices battered him with hypotheticals that proved his position ridiculous, Alito stepped into try to rescue him (trying to bring him back to his arguments) and even that didn’t work very well. Justice Thomas is likely with Alito but didn’t ask very much. Gorsuch asked some odd questions, but wasn’t as clear on what he was thinking.
The key to me was seeing that Justices Kavanaugh and Barrett seemed pretty clear on the fact that of course the government should be able to express its opinion on certain content. At one point, Alito insisted that it would be crazy for anyone in the federal government to, for example, berate the press (whom he equated to social media companies) in trying to get them not to publish a story. Kavanaugh, having actually worked in the federal government (unlike Alito), pointed out that this actually happens “regularly” based on his “own experience.” He even noted that those calls often involve anger from the federal government directed at media employees:
Later on, he returns to this point and highlights that the federal government has plenty of perfectly good reasons to reach out to the media and warn them of harm they’re causing:
And, from there, he cuts to the heart of the issue: just saying “doing this will kill people” is not the same as saying “and if you do so, we will punish you” and the US gov’t agrees with him on that. That is the line between persuasion and coercion:
Kavanaugh then repeats how the federal government regularly complains about speech in the media:
Justice Kagan, who also worked in the federal government, backed Kavanaugh up on this point in pushing back on Louisiana’s Solicitor General, who was making the arguments for the states/nonsense peddlers:
Soon after, Chief Justice Roberts also chimed in on this point. He first noted (jokingly) that unlike Kagan and Kavanaugh he doesn’t have experience trying to get the media to drop a story. But he said that just having a government official complain about speech doesn’t seem like enough to be coercion:
As for Justice Barrett, it was good to see her call out the faulty record in the lower courts and how problematic that makes the outcome.
Later on, during the states’ arguments, there was a lot of pushback on Louisiana’s Solicitor General. I noted some of it above in the exchanges with Roberts, but Kagan went after him for suggesting that the government shouldn’t complain about certain speech. She uses the example of terrorist speech, which is mostly protected speech, though Louisiana’s Solicitor General doesn’t seem to realize that kind of important point:
After some more back and forth on this, Kagan again points out how frequently this happens:
Eventually, she sorta gets him to admit that that’s okay, which sort of left him trapped as the standard he presented earlier wouldn’t allow that:
And as he tried to dig himself out of the hole by arguing that there was clear evidence of actual coercion in this case, Justice Sotomayor came out swinging about how there is nothing really in the record to support any of that (as some of us have been noting). She asks him to support these claims, and as he brings up a few examples, she pushes back on each of them, explaining how they don’t actually show what he pretends they show. And then:
There were some other situations where the problematic nature of the record got called out. There was a lot of talk of “traceability.” That is, is there any actual evidence that social media companies acted in a specific way due to government pressure. And the examples given didn’t fare well.
Eventually, Kagan points out that nothing in the record supports actual traceability:
The US’s representative points out that the record is even worse than Louisiana suggests:
Justice Barrett pointed to a hypothetical. She asked if Louisiana’s Solicitor General would feel that, if his own info had been doxed (and yes, she used that term), and the FBI reached out to social media to tell them about it, would he still feel that’s a First Amendment violation:
That leaves him in a deep hole that he has trouble getting out of:
To be honest, I don’t think the FBI actually makes those calls very often. I would imagine, however, that the U.S. Marshals does make those calls pretty regularly about info on judges (ask me how I know), but it is making the same basic point. There are times that the federal government and law enforcement may have pretty good reasons for reaching out to social media and pointing out potential very real harms that may occur if information is left up, so long as the platforms still get to make the final call on whether or not to leave it up.
Indeed, the fact that the platforms regularly kept up information the government informed them about was brought up repeatedly. Many of the Justices remarked on it as well, including Kavanaugh, and how it argued against believing that the speech was coercive.
Justice Kavanaugh also had trouble with the argument that the government can’t communicate potentially problematic info to social media companies:
Kavanaugh asks why that’s harder, and Aguinaga suggests that it’s because of the specifics of the situation and denies (as some commenters here regularly argue) that any communication from the government is inherently threatening. So Kavanaugh asks him about more specifics, including if someone is publishing information on US troop movements. And all Aguinaga can come up with is “well, the government can respond.”
Perhaps the strangest, and arguably the most troubling, comments came from Justice Jackson, who seemed to think that there were situations in which the federal government should be able to coerce sites to take down speech. She started out on the right foot, worrying how the states’ position could be seen as barring the ability of the government to provider useful info:
But then she goes much further at times:
I mean… isn’t that just the Pentagon Papers story? And in that case the court said of course the newspapers could publish that info.
I think she’s trying to say that even if the First Amendment applies, there may be cases where under strict scrutiny, the government still has the right to pressure companies to remove protected speech, but that seems to be a pretty far reach and not even an issue in this particular case.
To that point, though, she is using this point to argue that the arguments of the states/nonsense peddlers that the federal government can never even encourage removals clearly goes too far:
She goes on to talk about a “teen challenge” that puts kids in danger, and whether or not the government can pressure sites to take that down. Again, I think she’s going way too far here. I think the gov’t can raise the issue, highlight how such things can lead to harm, but that they cannot coerce sites to take such info down. They need to decide based on their own policies:
Even Roberts seems a bit surprised at how far Louisiana’s SG is willing to go on this argument:
There’s more in the full transcript, but it sure sounds like this could be a 6-3 ruling with Kavanaugh, Barrett, Roberts, Sotomayor, Kagan, and Jackson all somehow overturning the 5th Circuit. We’ll find out where it ends up in a few months. But, the hearing didn’t go nearly as far off the rails as I feared it might.
from the monster-mash dept
Here we go again. Monster Energy is one of the most prolific trademark bullies in the history of trademark bullying. And the really frustrating part of all this is that at times it can feel like Monster makes trademark bullying a chief international export every bit as much as energy drinks. No trademark concern is too small and no industry too disparate to warrant intervention by whatever crack legal team Monster Energy is employing at the time.
Which brings us to New Zealand. That’s where one of Monster’s brands, an energy drink labled simply “Mother Energy Drink”, is sold. Also in New Zealand is a gin company called “Mothers Ruined”, which applied for a trademark on the business name in 2022 but found themselves facing an objection to the mark by Monster. Fortunately, the folks behind Mothers Ruined appear to have the appetite to fight the bully.
With the help of an attorney, the pair are taking this up at a hearing with the Intellectual Property Office. The pair’s attorney sounds confident and is saying all the right things.
Damned right, they aren’t. We’re talking about energy drinks and freaking gin, and those aren’t remotely in the same categories. I’ve also reviewed the branding for both products and there is zero chance of confusion, even for a hurried idiot already full of gin.
No, this is Monster doing it’s routine, bullying every chance it gets with reckless abandon. Hopefully the IPO recognizes that.