Calling Police Officer "Pig," "Terrorist," "Punk Ass," and "Bitch" in Facebook Comments Not Obscene After All

So a federal district court held, reversing an earlier magistrate judge ruling on this point; the court also rejected the view that the Free Press Clause only protects "members of the press."

From Chief District Judge Philip Brimmer (D. Colo.) on March 31 in Sgaggio v. De Young, largely reversing a contrary Magistrate Judge opinion (which I blogged about here). Note that the Firearms Policy Coalition engaged me to file an amicus brief in the case, together with the FPC's Matt Larosiere (see here for the FPC's press release). From the Chief District Judge's opinion:

The City's Police Department (the "Police Department") executed a warrant to search a residence, which residence was unrelated to plaintiff, for the unlawful possession of marijuana. On or about July 19, 2018, the Police Department posted about the execution of the warrant on its public Facebook page. That day, a Facebook user posted a video about the execution of the warrant with the caption "[d]ad tells a story of the house being raided for MMJ." In response to the Police Post, plaintiff posted on the Police Department's Facebook page a link to the Woodland Park Video with the caption "[y]ou target sick kids to get your overtime pay. . [sic] That's why you are a pig."

Plaintiff later commented, "[w]hy did you punk ass pigs remove my post. This is a pubic [sic] forum. I'm going to sue the chief of police, the city of Woodland Park, and whatever punk ass bitch remove my post. Your actions are unconstitutional and violation of federal law 18 usc 241,242. . [sic] see you pigs in Federal court. . [sic]"; posted a link to the Woodland Park Video with the caption "[y]ou target sick children to Enrich [sic] officers [yellow police officer emoji] with overtime pay. . [sic] dirty ass cops"; and commented, "Tyler Pope they violate the constitution daily. All too stupid to understand the oath they took. We the people will bring these terrorists into federal court."

Plaintiff's accusation that the police were targeting sick kids was in reference to the execution of the warrant. Plaintiff's posts on the Police Department's Facebook page violated the Police Department's social media policy, and Chief De Young temporarily hid plaintiff's posts from public view. Plaintiff was restricted temporarily from posting on the Police Department's Facebook page.

Plaintiff also posted the Woodland Park Video to the City's Facebook page with the caption "[a]sk the city how they treat sick kids." Plaintiff's post on the City's Facebook page contained words that were filtered in accordance with the City's Page Moderation Policy, and plaintiff alleges this post was removed.  Following the removal of his posts from the Facebook pages, plaintiff did not attempt to republish the posts on any other Facebook page, although he had the option to do so, or on another social media platform….

In his complaint, plaintiff asserts that defendants' decision to remove his posts and block him from "government controlled public forums is a content-based or viewpoint-based restriction on speech, or both," in violation of his First Amendment rights….

The magistrate judge recommends granting defendants' motion for summary judgment because plaintiff used the "obscene" words "'pig,' 'terrorist,' 'ass,' and 'bitch' to refer to the police, and he baselessly and inaccurately accused the police of targeting sick children for personal profit." The magistrate judge explained that the evidence indicates that plaintiff's speech violated "policies … prohibiting the use of indecent and obscene language." She also concluded that individuals who criticized the police with "non-obscene language" did not have their posts removed.

The court concluded (reversing the Magistrate Judge's opinion on this point) that the speech wasn't obscene:

Plaintiff objects to the magistrate judge's conclusion that his speech was obscene. Docket No. 26 at 2 ("Our forefathers would piss their damn grave [sic], if they knew a Magistrate [sic] in 2021 would consider, Pig [sic], terrorist, ass, and bitch to be obscene. In 1776 none of these words were obscene."). On de novo review, the Court agrees with plaintiff. "Obscene speech" is "sexually explicit material that violates fundamental notions of decency." None of the words that plaintiff used in his posts were depictions of sexual conduct. Moreover, "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."  "Speech is often provocative and challenging…. [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Defendants made no argument that plaintiff's speech produced a "clear and present danger."

{Moreover, to the extent defendants argue in their motion that plaintiff's speech was indecent, rather than obscene, and thereby could be removed even if it did not depict sexual conduct, defendants provide no authority on the regulation of indecent but not obscene speech, and the Court declines to address the issue.} …

The magistrate judge concluded that defendants' restriction of plaintiff's speech "satisfie[d] strict scrutiny" because the restriction "served a compelling government interest," namely, "protect[ing] children from obscenity," and was "narrowly tailored" because others' posts were not removed…. [But r]egardless of whether protecting children from profanity or offensive language is a compelling government interest, defendants have not shown that the policy—which was not produced or excerpted in defendants' summary judgment motion or in response to plaintiff's objection—is narrowly tailored to serve this interest. There is no indication which words the policy would delete or flag in a comment or post or why the non-obscene words plaintiff used are barred under the policies. Moreover, the undisputed facts indicate that plaintiff's post "[a]sk the city how they treat sick kids" was also removed, apparently pursuant to the social media policy….

And the court also disagreed with the Magistrate Judge's conclusion that Sgaggio wasn't protected by the Free Press Clause:

In his complaint, plaintiff asserts that defendants' removal of his "press publications" and blocking or banning plaintiff from their Facebook pages violates plaintiff's First Amendment free press rights.

As FPC notes, "[t]he liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets…. The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion." Moreover, the Court has "consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers."  "With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred."

The magistrate judge recommends granting defendants' summary judgment motion and dismissing plaintiff's free press claim because "[p]laintiff did not make the Facebook posts in question as a member of the press." The magistrate judge noted that "[p]laintiff's only post on the City's website repeated … inaccurate statements," and plaintiff "lack[s] … journalistic experience and expertise," "did not perform any type of research that a journalist would perform and the posts do not reflect an editorial process," "did not contact any persons or organizations involved in the execution of the search warrant," "does not know what the proper execution of a search warrant is," and "does not have any degrees or professional certification or licensure related to journalism." …

On de novo review, the Court rejects the recommendation because the accuracy of plaintiff's posts is irrelevant, and First Amendment free press protection does not require journalistic experience and expertise, research, professional degrees, or licenses. As FPC notes, the Tenth Circuit has explained that "First [A]mendment protection should not depend on whether the criticism is in the form of speech by a private individual or publication by the institutional press," and "[t]o withhold the protections of the first amendment from nonmedia participants in the political process would be to stand the amendment on its head without the slightest justification." …

The Chief District Judge didn't comment on the Magistrate Judge's decision having been largely copied from the city's briefs.

Comments

[Rev. Arthur L. Kirkland]

Well, he didn't use "c_p succ_r" or "sl_ck-jaw_ed" . . . right, Prof. Volokh?

[Flight-ER-Doc]

I guess any moron can become a 'magistrate judge'. Common sense, knowledge of the Constitution or laws, the ability to reason not required....

[DewbieDewbieDoo]

I'm not sure she's a moron without common sense or lacking knowledge of the constitution. What I do note is that her order was dated on the same day as her impending retirement.

Think she just got lazy and "phoned it in"?

I've had a lot of interaction with magistrate judges on side matters during litigation in CDCA, NDTX, MDFL, WDNC and a few others, and it's generally been pretty good on the whole, and I've found them diligent in educating themselves on some pretty cloudy areas of the law. The judges I've also found generally work very hard to understand matters (although I did have one in CDCA who was also approaching retirement who got pretty far off track during the course of the MSJ filings and arguments).

[David Nieporent]

Think she just got lazy and "phoned it in"?

If I remember the facts correctly from when we first discussed this several months ago, she copied her opinion directly from the state's brief, so… yes.

[Bored Lawyer]

I know a magistrate judge or two who are morons, and should not be presiding over dog catcher's court.

[Rev. Arthur L. Kirkland]

As a strident conservative, you are likely to live where most people are gape-jawed morons.

[not guilty]

A correct decision by the district judge, but this seems to be an unsympathetic plaintiff. Probably not a case I would want to try to a jury.

[NOVA Lawyer]

Actually, I found this argument pretty endearing:

"Our forefathers would piss their damn grave [sic], if they knew a Magistrate [sic] in 2021 would consider, Pig [sic], terrorist, ass, and bitch to be obscene. In 1776 none of these words were obscene."

[DayWalker555]

Thanks I knew a licensed attorney could never write that so that’s why I did. Them bastards targeted a small child with epilepsy so they could get overtime the deposition and hours of video prove it. Fuck them bastards god damn redcoats.

[Michael D]

The magistrate’s decision leaves much to be desired. However, the butt-hurt police departments which periodically show up here and elsewhere for actions such as this do a terrible job at making themselves appear in the least bit competent to deal with any form of criticism.

But bottom line, what we have, once again, is one more uncounted number of incidents in which the drug war has led to violations of the Constitution and individual rights.

I have no idea what it will take to get the hard-headed people who continue to support the drug war to end their support but it is an excellent example of how democracy, which brought us both alcohol and drug prohibition, ends up violating individual liberties and legalizes plunder. This is not a call to replace democracy with autocracy or oligarchy or any nonsense such as that but it must be recognized that democracy can be a danger to liberty.

If we must have government, a premise which can easily be argued against, then it must be limited to the point of being castrated, or it will grow into the Leviathan we see today which continues to trample the rights of individuals, many of whom will never have the means or opportunity to bring their case to a court. And in some cases, even if they do, they may face magistrates such as this who will just copy and paste from government briefs.

[Stephen Lathrop]

Michael D (and Bellmore, because he does this repeatedly), if you cannot forego use of, "leviathan," to imply oversized government, do not capitalize the, "L" — but not using it would be better.

"Leviathan," is, of course, the title of Hobbes' famous philosophical treatise on politics. It is a problem for you that his use of the Leviathan notion—which he cribbed from the Bible, but pioneered as a political metaphor—makes Leviathan the guardian of rights, not their enemy. Thus, when you say, "If we must have government, a premise which can easily be argued against, then it must be limited to the point of being castrated, or it will grow into the Leviathan we see today which continues to trample the rights of individuals," you have formulated a concise and near-perfect reversal of Hobbes. When I say, "near-perfect," I refer only to the reversal, not to the quality of your argument.

Thus, you conflate an idiosyncratic meaning—drawn from colloquial modern idiom—with a gigantically famous and influential historical meaning saying the opposite. To do that impeaches your own argument, because it suggests you are unfamiliar with a superlative argument to the contrary. You look ignorant to those who understand Hobbes, and risk confusing the others. If you must do it, at least choose a lower-case, "l" to make your blunder less conspicuous.

[NOVA Lawyer]

Boom. That's a mic drop.

Hats off, Stephen.

[David Nieporent]

It's not a mic drop; it's Lathrop being pompously wrong yet again. Yes, when Hobbes used the term Leviathan, he was doing so favorably. So what? People are allowed to disagree with Hobbes. If I criticize something someone does today by using the term "Cultural Revolution" to describe it, would that justify Lathrop popping in to say, "Actually, it's improper and confusing to label something that's undesirable with that term, given that Mao meant the term to be something positive"?

[Stephen Lathrop]

Humpty-Dumpty;
words;
meanings —
ideology;
liberty;
Nieporent.

[NOVA Lawyer]

People are free to disagree with Hobbes, certainly. And most of us do to some extent, though most of us also likely agree that he moved the ball of political discourse significantly forward in the right direction.

But weird capitalization is endemic. And when a person refers to Leviathan or Cultural Revolution, it suggests a call back to Hobbes' Leviathan or Mao's Cultural Revolution. The issue isn't whether you agree or disagree with Hobbes or Mao, but, if the call back is intentional, your comment really only makes sense if it engages with the original in some way. If the call back isn't intentional, well, then it is confusing.

If you praise a Cultural Revolution, it gives the impression that you think there is something similar to Mao's Cultural Revolution and you think that's a good thing. If, in fact, you recognize Mao's Cultural Revolution for the evil it was, then it's confusing that you are using his term to define something you think is praiseworthy. It's bad writing, at the least, because it doesn't cleanly convey your meaning and/or suggests the writer isn't familiar with a relevant touchstone in this ongoing conversation.

And there is the point, perhaps Stephen's pomposity is the perfect retort to this pomposity:

If we must have government, a premise which can easily be argued against, then it must be limited to the point of being castrated, or it will grow into the Leviathan we see today...[and run on in the same vein]

No it can't easily be argued against.

[DayWalker555]

100% true you get it.

[Stephen Lathrop]

Quote 1:
Moreover, the Court has "consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers." "With the advent of the Internet and the decline of print and broadcast media, moreover, the line between the media and others who wish to comment on political and social issues becomes far more blurred."

Quote 2:
As FPC notes, the Tenth Circuit has explained that "First [A]mendment protection should not depend on whether the criticism is in the form of speech by a private individual or publication by the institutional press," and "[t]o withhold the protections of the first amendment from nonmedia participants in the political process would be to stand the amendment on its head without the slightest justification."

Quote 2 above is not in any way problematic. It is a correct way to understand some distinctions between private individuals and the institutional press. It does not cover everything, however, and it should not be used to insist, as Quote 1 literally does, that 1A protections which guard the publishing rights of private individuals exhaust the limits of 1A protection for an institutional publisher.

The key to understanding press freedom cannot rely on a distinction between persons and institutions. Press freedom should instead be understood to protect publishing activity, however it is legally practiced.

Joe Keyboard will almost never undertake some of the practices which the NYT must rely upon. Joe Keyboard's more limited publishing repertoire cannot be interpreted to stake a limit around activities available to the NYT, or for any other institutional publisher—including an institutional publisher later founded and operated by Joe Keyboard.

Quote 1 above is a judicial misstep, and a potentially dangerous one. The institutional press has enemies who actively seek its suppression. To continue the full exercise of its press freedom, an institutional publisher must be free to gather news, sell advertising, edit to preclude libel, guard the identity of anonymous sources, reject would-be contributors, endorse political policies and politicians, and practice other kinds of activities, many of which Joe Keyboard typically has no need to practice.

The part in Quote 1 which refers to, a line, "far more blurred," because of the internet, is particularly badly observed. It presumes an identity of practice which experience will not support. Joe Keyboard is almost always an opinion publisher; the institutional press is quite often a news gatherer, and a facts publisher. That distinction between them implies many distinctions among particular activities, all of which must be protected on behalf of either kind of publisher.

It is a judicial blunder to presume loss of press freedom for institutional media based on, "the advent of the Internet and the decline of print and broadcast media." And by the way, where does that capital, "I," in "Internet" come from?

[Currentsitguy]

Not sure about the capital I. I've seen it about equally upper and lower case.

I think where I part ways is in the meaning of the word "Press" in the 1st Amendment. I always took it to be the physical apparatus, the "Printing Press", not the Press, as an institution. WIth that interpretation the 1st could be construed to mean "Congress shall make no law limiting the ability to publish or disseminate any information or opinion"

Of course the modern analog to the printing press would be the computer or phone.

[Stephen Lathrop]

Currentsitguy, the problem with your, "physical printing press," interpretation is the historical record against it. Several important founders—Jefferson (famously) and Madison—made explicit statements about the constitutional role of newspapers, and about their importance to making American constitutionalism work. Founding era figures who were themselves institutional publishers or newspaper entrepreneurs included at least, Samuel Adams, Tom Paine, Thomas Jefferson, James Madison, Alexander Hamilton, and Benjamin Franklin. Many other founders who did not have a direct role in newspaper publishing nevertheless wrote political advocacy intended for newspaper circulation. Washington, John Adams, and John Jay were prominent in that group, but there were many others.

Franklin was probably the leading exponent of newspaper publishing in the world, having himself participated in founding so many institutional publishers—from Boston, to Pennsylvania, to South Carolina, to the Caribbean—that historians today are still not sure they have found them all.

The institutional press was the principal tool the founders used to make the revolution, and to win public acceptance of the Constitution. When the final draft of the Constitution was finally signed, the very next thing that happened was that Franklin took it and put it in the hands of an institutional publisher in Philadelphia. Based on the historical record, it is peculiar to suppose that group—with experiences of reliance on the institutional press still in mind—intended to slight protection for the institutional press.

Can you think of anything specific in the historical record to prove otherwise? And by the way, why would anyone in the founding era want to do that, except to vindicate some kind of time-traveling modern-day grievance against media?

[Currentsitguy]

I cannot accept an interpretation that would create a privileged profession. What exactly defines someone as a member of the Press? Was Paine? Publius? Who gets to decide?

[Absaroka]

"Who gets to decide?"

Exactly. You don't want the press ever wondering whether criticizing the government will mean their press pass gets revoked.

Moreover, the concept of special rights for an institutional press means that there must be some set of words that Institutional Press Peter can say without penalty, but Random Citizen Carl goes to jail for saying the exact same words. That can't be right.

[Stephen Lathrop]

Moreover, the concept of special rights for an institutional press means that there must be some set of words that Institutional Press Peter can say without penalty, but Random Citizen Carl goes to jail for saying the exact same words. That can't be right.

Of course it is not right. It is the opposite of right. It has long been bog-standard legal doctrine that there are words which the institutional press will be heavily penalized for uttering, but which ordinary speakers can say without serious penalty. In short, you have it backwards.

Beyond that, when it comes to jail, when did you ever hear of any ordinary speaker, or Joe Citizen internet publisher, going to jail for anything to do with publishing—except for crimes like espionage? It has been routine for more than a century for institutional press reporters to go to jail to protect anonymous sources. Again, you are right to notice differences, but you get the burden backward.

With regard to publishing, you guys join the claque of the unreasonably aggrieved. Except for prejudice against institutional media, I cannot understand what can explain why you do it.

Next time, at least try to take on the argument that the institutional press gets explicit protection because the founders said it should.

[Absaroka]

"there are words which the institutional press will be heavily penalized for uttering, but which ordinary speakers can say without serious penalty.
...
the institutional press gets explicit protection because the founders said it should."

First you say the 'institutional press' has fewer rights, and then you say they have more rights. You contradict yourself.

[Stephen Lathrop]

I cannot understand why this is so confusing, except to presume it is a willful attempt to be confused. It is not a privileged profession. It is privileged activity. Publishing activity, all of it, gets press freedom protections. You practice that activity, it gets protected. No matter who you are.

Hence: Joe Keyboard practices (choosing arbitrarily) 50% of the publishing activities which the scope of the 1A protects. The NYT practices (again arbitrarily) 80% of those activities. You cannot use the extent of Joe Keyboard's practice as a standard to assert the NYT must be cut back to 50%.

[David Nieporent]

It is privileged activity.

Right: the activity of using a press.

[Stephen Lathrop]

Right Nieporent, plus the activity of news gathering. And the activity of criticizing or approving policy or politicians. And the activity of endorsing candidates for office. And the activity of being designated a newspaper of record by governments, and receiving revenues from people legally compelled to file notices. And the activity of making photographs and publishing them. And the activity of reporting for the public the proceedings of the justice system. And the activity of paying for text contributions, or for photographs. And the activity of insuring the institution against libel judgments and other hazards. And the activity of accepting contributions to be published from contributors not on staff. And the activity of reading would-be contributions before publishing them. And the activity of accepting or discarding contributions, or changing them, for any reason, or for no reason. And the activity of buying newsprint and ink. And the activity of marketing the services of a printing press to other would-be publishers. And the activity of assembling an audience. And the activity of curating that audience to improve its marketability to advertisers. And the activity of selling advertising. And the activity of hiring staff, and paying them. And the activity of turning away would-be contributors the publisher declines at pleasure to publish. And the activity of physical circulation of paper copies. And the activity of charging for copies on the newsstand, or giving them away free of charge, essentially anywhere. And the activity of selling subscriptions. And the activity of sending copies through the mails. And the activity of receiving from people prohibited from giving them to you the secrets of government. And the activity of going to jail to protect anonymous sources.

That list is by no means comprehensive. Everything on it is protected as a matter of press freedom. Much of what you see there is of no use to Joe Keyboard, and generally goes unpracticed except by institutional publishers. You may not make Joe Keyboard's small capacity to make use of every facet of press freedom the limit of what institutional publishers are permitted. Existence of protection for publishing activities Joe Keyboard does not practice, or is unable to practice, in no way diminishes Joe Keyboard's press freedom.

[David Nieporent]

Everyone on that list that's comprehensible is protected the same whether applied to the institutional press or the lone wolf individual publisher.

[Stephen Lathrop]

Everyone on that list that's comprehensible is protected the same whether applied to the institutional press or the lone wolf individual publisher.

Sure, but irrelevant.

The argument I counter starts with:

"Moreover, the Court has consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers."

And then gets paraphrased as:

"If anything on that list can't be practiced by the lone wolf publisher, then it can't be practiced by the institutional press."

And finally concludes with:

"If the lone wolf publisher does not need or use any item on that list, then that item can't be protected for the institutional press."

That sequence of steps is not guided by reason. It is guided by animus against the institutional press.

Perhaps with your customary acute attention to what the law says, you overlooked how many commenters on this blog insist that stack of fallacies amounts to what the law means. Those commenters speak for a notable population of right wingers with animus toward institutional media.

Or maybe you number yourself among them, and think like they do that animus against institutional media somehow ought to mean that the Constitution cannot protect publishing activities lone wolves cannot practice, do not care to practice—or wish nobody was allowed to practice.

Anyway, thanks for backing off the absurdly limited, "Access to a printing press," interpretation of press freedom. It cannot work, because some activities practiced by the institutional press the nation cannot do without, and lone wolf publishers—as a practical matter—cannot accomplish them. Conspicuous among those is:

The activity of receiving from people prohibited from giving them to you the secrets of government—and publishing them.

The measure of the impracticality of relying on lone wolf publishers is the tale of Julian Assange. He was not even a true lone wolf, just insufficiently institutional. Would-be sources with secrets to tell look at what happened to Assange, and wisely conclude his example shows that risking their own necks requires a better-protected reporter to hear their tales, and keep their secrets.

For a less gaudy example, read the personal memoir of Seymour Hersh. Practiced institutionally, his investigative journalism was so effective that senior administrators at the CIA would at times call him for tips about what was going on in their own departments. When Hersh tried to continue that as a lone wolf, his sources dried up. As they typically do, for anyone without institutional backing. When Hersh once again went back to institutional publishing, he was once again effective.

More generally, hundreds of millions of internet fans are simply unaware that the lone wolves of the internet do not collectively do much news gathering. The fans suppose otherwise.

The reality is that the vast majority of information about the world which those fans rely upon, comes second-hand from the institutional press. Until the internet builds a business model to support news gathering by lone wolves—of which there remains no sign—the nation cannot do without the institutional press. Without it, almost nobody would know anything, except the baseless opinions of lone wolves, variously motivated.

[3ducerist]

It almost sounds like you're arguing slippery slope.

I would say Assange should not have been charged, as he definitely had more of a publisher setup than most lone wolf types, and I also agree that "More generally, hundreds of millions of internet fans are simply unaware that the lone wolves of the internet do not collectively do much news gathering. The fans suppose otherwise."

[Stephen Lathrop]

Look at the list above. Paine and Publius are both included. Paine managed an institutional press himself. Publius (Hamilton) was a newspaper co-founder.

[David Nieporent]

Several important founders—Jefferson (famously) and Madison—made explicit statements about the constitutional role of newspapers,

Last time you said this, you revealed that you were thinking of quotes that didn't say anything about the constitutional role of newspapers.

[Stephen Lathrop]

Nieporent, that was your (historically mistaken) take on it.

I did not bother detailing Jefferson's remark, because everyone knows it. If you think it does not imply Jefferson's advocacy of a constitutional role for newspapers, put it together with his correspondence (with Madison and others) on the newspaper subject to get a better education.

Madison's remark which you responded to was directed straight to the heart of a key question of American constitutionalism—whether a far-flung nation of unprecedented physical scope could be practically governed by republican methods. Madison insisted that newspapers—specifically mentioned—were a remedy to the problem of informed representation at a distance.

Because Madison regarded physical enlargement of the republic as a necessity to avoid other governance problems (the factions problem especially), it was critical to his conception of constitutionalism that representative government over a large area be accepted as practical. So for Madison, protecting utility for newspapers was a two-fold constitutional necessity.

You got that wrong because you were unfamiliar with the salience of that debate, and also unfamiliar with the extent of skepticism which pervaded proposals for an unprecedented physical scope for republican governance. Even Madison had his doubts.

I assume your unfamiliarity because otherwise your critique is frivolous.

[David Nieporent]

"Newspapers are useful" is not a statement about the constitution.

[Stephen Lathrop]

On the other hand, "Our proposed constitutionalism requires newspapers," is a statement about the constitution. My paraphrase is better than yours—better historically, I mean.

[David Nieporent]

And by the way, where does that capital, "I," in "Internet" come from?

You'd think someone who used to be involved with newspapers would understand the concept of a style guide. Most of the big ones used to advocate for capitalization of that term. That changed a few years ago, but not everyone has updated their practices.

[3ducerist]

"consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers."

Your argument which you laid out below is that this means exhaustive of 'keyboard joe' would preclude it from the institutional press. Except that's not what the quote says.

The quote is saying that institutional press and 'keyboard joe' have the same constitutional privileges. If KJ wants to be like the IP then he'll have to eventually follow the exact same regulations as the IP does to do those specific things. In most cases, KJ doesn't want to be just like the IP in doing everything that IP does, but that doesn't preclude access to those same privileges.

[Stephen Lathrop]

3ducerist, you are the only commenter today who seems to show a hint of comprehension. I think we are on the same page. But I confess I do not understand:

Your argument which you laid out below is that this means exhaustive of 'keyboard joe' would preclude it from the institutional press. Except that's not what the quote says.

Can you say more about that?

Otherwise, to save time and trouble, once again, all publishing activity is protected alike for everyone. However, institutional publishers practice specific publishing activities that lone warriors typically do not practice. Some of those activities lone warriors cannot practice, even if they want to.

That cannot mean that publishing activities which lone warriors cannot practice—or choose not to practice—should be withdrawn from protection for those who can and do practice them institutionally. Such differences in practice create a purely practical distinction, not a legal distinction. But it is a distinction which the law is constitutionally required to recognize, because the Constitution protects publishing activities by institutions, and by individuals. The Constitution does not protect only the publishing activities of individuals.

[Stephen Lathrop]

3ducerist, please be a bit careful about, "the exact same regulations as the IP does to do those specific things."

The point of the press freedom clause is that publishing remain unregulated—which prior to the internet it mostly had remained. A great deal of trouble brewing today concerns advocacy to add regulations.

[3ducerist]

The reason behind my statement of "the exact same regulations" stem from where you pointed out, IP's can't generally print certain words where KJ's can, and generally IP's do not print certain words even on internet content where others can and do.

I'm not pushing for additional regulations on IP's, nor would I. At the same time we've seen over the last few years that IP's seem to push disinformation as true while calling what the other side says that exact thing and I think we either need to realize we can't allow massive companies to control the national narrative; OR there needs to be consequences for what is an egregious abuse of their power. And no I'm not talking about one particular side or the other, I'm talking about quite a few sides.

[DayWalker555]

I am joe keyboard in this case. I print the truth!!! Big media is owned by black rock. I am not. Modern day press is propaganda. I am not. I don’t scare the public with fear monger if so vaccine sale can go up. I am the future. I shit on CNN and Fox News. Stand on the constitution. I am a real American. Self funded baby you can hate me now. But I won’t stop now.

[Billie34]

That's ridiculous, they're just trying to prove how stupid they are to make such decisions. phoodle