Free Speech

Some Rhetoric from the Rotenberg v. Politico Complaint

Gripes about publishers getting "private commercial benefit" from "hate speech, propaganda, and statements that seek to destabilize American democracy"; argument that "[t]he public figure doctrine emerged in an era prior to the Internet advertising model that rewards news organizations for the ongoing display of defamatory content."

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Some more from the Complaint, and in particular the section asserting the claim for unjust enrichment and misappropriation of name and likeness. (You can also read more about the libel claims and the disclosure of private facts claim.)

Complaints generally don't have these sorts of policy arguments in them, but presumably this is something of a signal (however imperfect) of what Rotenberg will argue in future filings. And it also indicates how one important public policy advocate sees such matters; Rotenberg is now the Executive Director of the Center for AI and Digital Policy at the Michael Dukakis Institute.

[353.] POLITICO and Robert Allbritton, as publisher of POLITICO, owner of The Protocol, and President of Perpetual Capital Partners, obtains commercial value every time a person clicks on the false and defamatory stories concerning Marc Rotenberg.

[354.] In the absence of action by this Court, Robert Allbritton will continue to derive commercial benefit from the publication of content that is defamatory, false and malicious.

[355.] This standard allows publishers to obtain private commercial benefit from articles they choose to publish that includes disinformation, revenge porn, hate speech, propaganda, and statements that seek to destabilize American democracy.

[356.] The Internet advertising model—the "reinvention of the newsroom" —has coarsened political debate, contributed to political polarization, mocked science and evidence-based analysis, and diminished the value of news. It has imposed specific costs on individuals and organizations who are the targets of this reckless form of journalism.

[357.] Regarding the privacy debate in America, The Protocol and POLITICO's reckless disregard of well-known medical and scientific practices has undermined—and continues to undermine—thoughtful, well-reasoned approaches to emerging challenges.

[358.] The Protocol and POLITICO's vicious and reckless reporting about Marc Rotenberg, the former leader of EPIC, has also chilled conversations and public statements about effective privacy responses to the pandemic. Since The Protocol and POLITICO articles, EPIC itself has ceased reporting on privacy recommendations from the World Health Organization.

[359.] Not all of these harms can be remedied in this proceeding, but to the extent that a news organization, with reckless disregard of the truth, seeks to "drive digital engagement" with a "strong personality element," the law recognizes the commercial dimension of the harm.

[360.] Merriam-Webster describes unjust enrichment as "(1) the retaining of a benefit (as money) conferred by another when principles of equity and justice call for restitution to the other party; (2) a doctrine that requires an equitable remedy on behalf of one who has been injured by the unjust enrichment of another."

[361.] Appropriation is the use of a person's name or likeness for commercial benefit without their consent.

[362.] The District of Columbia has adopted the definition set forth by the Restatement (Second) of Torts § 652C for … the tort of misappropriation of name.

[363.] One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.

[364.] The public figure doctrine emerged in an era prior to the Internet advertising model that rewards news organizations for the ongoing display of defamatory content.

[365.] POLITICO and The Protocol should not continue to profit from the defamatory use of a person's name and likeness.

I'm pretty skeptical about these arguments. Among other things, the First Amendment protects "hate speech, propaganda, and statements that seek to destabilize American democracy," so whether or not Politico and Protocol (or other publishers) profit from such speech strikes me as irrelevant.

I'm also not sure why it should matter that "[t]he public figure doctrine emerged in an era prior to the Internet advertising model that rewards news organizations for the ongoing display of defamatory content." News organizations have long been rewarded, through advertising, subscriptions, and newsstand sales, for publishing eye-catching and often even lurid scoops (an incentive that has naturally increased the risk of defamation); that they now continue to get some advertising revenue from "ongoing display" doesn't strike me as relevant here (though I agree that ongoing display on the Internet does sometimes create somewhat novel libel-related problems).

As to "Regarding the privacy debate in America, The Protocol and POLITICO's reckless disregard of well-known medical and scientific practices has undermined—and continues to undermine—thoughtful, well-reasoned approaches to emerging challenges," I just don't see the relevance. Whatever might or might not be tortious in defendants' publishing information about Rotenberg's COVID diagnosis, the argument for liability can't be that the defendants' speech is undermining supposedly "thoughtful, well-reasoned approaches to emerging challenges."

Finally, whatever arguments for liability might be here, the claim that defendants' speech "has … chilled conversations and public statements about effective privacy responses to the pandemic" and that "EPIC itself has ceased reporting on privacy recommendations from the World Health Organization" strikes me as likewise irrelevant. Whatever defendants might be held liable for, they can't be held liable for EPIC's decisions about what privacy recommendations to cover (even if those decisions were somehow influenced by defendants' coverage).

If the arguments are made further in court filings, with more supporting detail, I'll likely analyze them further. But for now I just wanted to flag them in case our readers find them interesting.

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  1. What difference, at this point, does it make?

      1. I was waiting for Trump to be dragged into this, and I would not be surprised to learn that EPIC had split into a Prt-Trump and an Anti-Trump factions.

        I do find it interesting that (a) Rotenberg winds up at the Michael Dukakis Institute and that (b) there is no mention of EPIC (which he cofounded 27 years ago and for which he is known) in his bio there. I don’t know anything about the Michael Dukakis Institute, but I do remember M. Stanley Dukakis, who left office in 1991 subject to a level of citizen visceral second only to Thomas Hutchinson in 1774.

        I can’t see anyone involved with the EPIC I knew in the late 1990s working for Michael Dukakis — I just can’t.

        Of course then looks at the NRA and the discrepancy between what the members think they are paying for and what its leaders are actually doing. (I gave up on the NRA when they deluged me in bills to renew a membership which hadn’t expired yet.)

        And I’ve seen the same thing in the Charter School movement — people whom I can’t *believe* are now the heads of organizations purporting to support them.

  2. I’m glad to see that someone is advocating for a reinterpretation of the First Amendment to factor in the social costs that unrestricted speech has on society at large. Companies need to be held accountable when they offer a platform for speech that is divisive or discriminatory. Let me go on a tangent to discuss a similar problem: single use plastics. Chemical companies produce single use plastics and expect the customer to deal with the waste generated and this externalizing of the environmental costs of plastics allows companies to profit while the environment is hurt by our collective action. Likewise with traditional and social media companies, they externalize the costs of hate speech and bigotry while profiting from lucrative advertising deals for access to their highly engaged user base. The laws must be changed so that private companies internalize the cost of hate speech so they have an economic incentive to cut back on alternative viewpoints. This is the only way we can counter division in our democracy. We need to put a stop to Faux News’ “alternative facts” and return to mainstream consensus.

    1. “This is the only way we can counter division in our democracy.”

      This is why you’re wrong.

      Democracy THRIVES on division.

      Division keeps us from swinging too far left or right.

      It allows us to be flexible (Bush, Clinton, Bush, Obama, Trump, Biden…).

      Division allows everyone to have a voice.

      Rigid extremism (again too far left/right), which stifles voices is the evil.

      Division is how a healthy society survives; kinda like our blood/oxygen systems.

      1. You’re replying to sarcasm.

        1. Haven’t you ever replied to sarc?

      2. You’re arguing with a parody account.
        But not a very good one, I’ll grant you.

    2. Get it all out of your system.

  3. Radiolab had their once per year good episode on Justice Holmes and his evolving views on freedom of speech, called “What up Holmes?”
    https://www.wnycstudios.org/podcasts/radiolab/articles/what-holmes

    1. It ends up with some interesting thoughts about the markeplace of ideas paradigm.

      1. The thing about the marketplace of ideas hypothesis is that it’s just that, a hypothesis, a bet if you will, which is an empirical question. Maybe letting speech fly free makes for a better world with truth and good ideas prevailing but maybe it does not. Nowadays ostensible speech warriors employ it in a talismanic way.

        1. The Marketplace is a way to think about the 1A, but not the only way. And social media is absolutely challenging a lot of its baseline assumptions, causing us to begin to rethink that as a society.

          But the rethinking is coming from profoundly different places depending on where on the partisan divide you are, so I’m not optimistic for much movement for quite a while.

          1. There was a small thread the other day, on a Sunday maybe, where there were two crazy rants by Behar and Ed each, and then a comment by one of our more left leaning commenters ‘another classic VC thread…’

            I thought it spoke volumes about the current discussion re unmoderated, low stakes, unrestricted non-gatekeeper speech. Often it means a forum becomes so, I dunno, degraded maybe or ‘toxic’ that most well meaning people stop participating.

            It’s almost like Behar and Ed are false flag operations working to show Volokh’s approach ends badly…It’s a not obvious issue.

            1. VC has absolutely made me thinks about that. How a policy of complete openness leads to toxic people being attracted to the forum, and then becoming dominant over discourse, egging each other on to heights of violent neurosis that are not even good as spectacle.

              That’s a market failure.

              1. As ironic as it is true…

              2. It’s Gresham’s Law applied to commentary.

            2. I may be many things, but false flag is not one of them….

              1. Just what a false flag would say!

        2. Free speech isn’t justified by its utilitarian promises in a marketplace of ideas, though that is suffient.

          It’s real power is in denying tyrant wannabees one if their, if not their biggest tool.

          Egypt banned CNN even via satellite dish at one point. The argument was “the people cannot (handle speech unprepared)”.

          “It’s bad speech, let government decide for you what you get to see!” is spoken by dictators, and their enablers, knowingly or not.

          The solution, whatever it is, does not involve those in power deciding what is permitted to be heard.

          1. I heard that radiolab episode the other day, and the value of the “marketplace of ideas” is fine, but I kept screaming at the radio, you fools! You fools! It’s about denying the tyrant his greatest tool, not that every last foam birthed from some hick’s drooling mouth has high value.

            1. I mean, they do touch on that. But I’d note that there are other paradigms of free speech that are not based on the marketplace and yet also prevent censorship.

  4. How is the “Internet Advertising Model” much different from the “Newspaper Advertising Model” or the “Television Advertising Model”where a publisher promoted sensational story lines (“if it bleeds it leads”) to gain readers or viewers and increase advertising rates?

  5. Allowing people to vent is sometimes a necessary part of achieving closure and working the sort of primitive but human justice without which a society may risk becoming too civilized and stray too far from roots in human emotional needs to be sustainable. There is a place for it.

    But I don’t think the complaint and formal motion papers filed by the lawyers is the place. This is the place for reasoned, law-bound argument, not cathartic emotional venting.

  6. NY Times v. Sullivan involved the one-time-run of a generally-accurate newspaper advertisement with some factual errors in it.

    Could one not argue “actual malice” were the NYT to keep running that ad in subsequent editions after the errors in it were brought to their attention?

    That’s where I think he is going with the “ongoing commercial benefit” argument — all revenue that the NYT would ever get from the paper edition of the newspaper ended upon distribution. While people who hadn’t bought that day’s edition might go read it in the library or see a clipping posted somewhere, the NYT received no revenue from that.

    Conversely, Politico does — something they posted yesterday or last year continues to generate ad revenue for them every time someone reads it, and more when they click on an advertisement attached to it.

    Hence we aren’t talking about a revenue-dead edition on microfilm, with the web being the technological equivalent of it, but an active revenue generating article — and hence I ask what would have happened had the NYT continued to republish that ad that upset Sullivan?

  7. Isn’t “appropriation” something distinct from libel? I find the three lines below to be quite interesting in that there appears to be no allegation of falsehood in these lines — merely using “name or likeness for commercial benefit” without consent.

    361.Appropriation is the use of a person’s name or likeness for commercial benefit without their consent.

    362.The District of Columbia has adopted the definition set forth by the Restatement (Second) of Torts § 652C for . . . the tort of misappropriation of name .73

    363.One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”

    1. Yes it is. I can’t use a picture of your face in a TV commercial for acne treatment. Unless you allow me to of course.

  8. “the Internet advertising model . . . rewards news organizations for the ongoing display of defamatory content.”

    ‘Tis true.

    1. Ongoing display or continuous republication?

      I’d argue the latter.

  9. “I’m also not sure why it should matter that ‘[t]he public figure doctrine emerged in an era prior to the Internet advertising model that rewards news organizations for the ongoing display of defamatory content.’ […]” Interestingly, the argument made in the paragraph beginning with that remark was also made at the time of enactment of most modern statutes.

    A new cog on a printing press doesn’t really change human behavior, just as a new amulet intended to ward off disease changes neither the nature of the disease nor the nature of humans.

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