Thursday Open Thread
What's on your mind?
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
"Odd," "Unnerv[ing]," "Disturbing," Comments, Post, and Letter to Politician Weren't "True Threats"
"[E]ccentricity and being off-putting is not a criminal offense," even when the speaker mentions the listener's children and other personal details.
From People v. Peterson, decided Tuesday by the California Court of Appeal (Justice Victor Rodriguez, joined by Justices Allison Tucher and Carin Fujisaki):
Defendant Bruce Peterson was convicted of stalking a politician and the politician's family. The conviction was based on: (1) Peterson's odd comments to the politician's wife at an open house event for a school bond issue; (2) his reposting on Facebook of a publicly available photo of the politician's family along with comments mentioning the open house event and the politician's children; and (3) his mailing of a rambling letter—criticizing local politics and containing a check made payable to "anyone who is not corrupt"—to the politician's wife. We reverse. On the specific facts of this case, we conclude a reasonable listener would not have found Peterson's speech or speech-related acts a true threat of violence….
In February 2020, Lafayette City Councilmember and former Lafayette Mayor, Cameron Lee Burks, and his wife, Julia Ackley, hosted an open house event in their home in support of a school bond measure. The invitation stated Burks was "hosting this event as an individual resident of Lafayette and a father of school-aged children." Peterson attended and had an "odd" and "stilted" conversation with Ackley, during which he noted it had been 22 days since her birthday. Unaware her birthday was publicly available on her Facebook page, she felt "unnerved," "uncomfortable," and a "little freaked out." Her "spider-sense" that something was amiss was triggered by his odd behavior and appearance; she described him as wearing a shirt with "children's handprints all over it" and a pink fanny pack.
In March 2020, Peterson reposted on his Facebook page a photo from Ackley's public Facebook page. The photo depicted Ackley, and Burks and Ackley's two daughters. Peterson's post stated, "A politician's family. I have never met the younger 2 girls." In the comments, Peterson wondered "where [Burks and Ackley] hid the girls" during the open house event. He mused, "They live near Burton Valley School. Considering the politician, Cameron Burks, has a different name than his wife, I wonder what their daughters' last name is?" He also described Burks as "one of the Mayor's [Sic.] who abdicated his throne. But remained in power, on the Lafayette, Ca. City Council." One of Burks's colleagues sent him a screenshot of Peterson's Facebook post. Burks was "alarmed" and "immediately felt" Peterson "could be a threat" to his wife and daughters. But Ackley acknowledged the photo reposted by Peterson was publicly available on her Facebook page, as was her birthdate and other pictures of Burks and her daughters.
If You Give a Lawyer a Lawsuit ….
From Parlatore v. Montalvo, decided Tuesday by Judge Randolph Moss (D.D.C.):
This is a defamation action brought by one lawyer practicing before this Court, Timothy Parlatore, against another lawyer also practicing before this Court, Eric Montalvo. The case is only the most recent chapter in a dispute that has metastasized beyond recognition. What started as a whistleblower complaint alleging racial discrimination in a U.S. Navy fighter pilot training program; grew into an investigation of Lt. Steven Shaw, the Navy officer who assisted in filing that whistleblower complaint; then evolved into an investigation of the Navy officers who had investigated Lt. Shaw to determine whether they acted for retaliatory purposes and into a second investigation of Lt. Shaw; eventually led to a lawsuit that Lt. Shaw brought challenging the Navy's actions against him, and a second lawsuit alleging that the Department of the Navy violated the Privacy Act and that the lawyer who represented the investigating officers, Timothy Parlatore, libeled Lt. Shaw; and finally led to the present dispute, which alleges that Lt. Shaw's lawyer, Eric Montalvo, defamed Parlatore in an email exchange between lawyers involved in the Privacy Act/libel litigation.
What stops this give-a-mouse-a-cookie story is ultimately the judicial proceedings privilege:
Discovery of Comparator Incidents Available in Title IX Wrongful-Discipline Cases
A good illustration of how this principle can work.
From Smith v. Brown University, decided today by Chief Judge John J. McConnell, Jr. (D.R.I.):
Plaintiff David Smith has moved to compel discovery from Defendant Brown University ("Brown") related to six prior cases in which Brown adjudicated allegations of nonconsensual sexual activity involving other students. He is seeking third-party "education records" as defined by the Family Educational Rights and Privacy Act …. Because the Court finds that the request is relevant and proportional and can be disclosed in compliance with FERPA …, the Court GRANTS the motion subject to a stipulated agreement as to third-party notice….
Mr. Smith alleges that he was wrongly accused of sexual assault and improperly disciplined based on gender. He has filed a Title IX claim challenging numerous aspects of Brown's internal investigation process. Mr. Smith served an interrogatory request seeking "comparator discovery" regarding other sexual misconduct cases to which Brown objected, stating that disclosure would violate the privacy of third parties under FERPA. Instead, Brown referred him to a public report and provided a chart outlining key comparators, including the gender of the parties involved, charges, sanctions, and outcomes of appeals for the 2017-18 academic year. This chart was provided as a confidential document subject to the parties' Stipulated Protective Order. Mr. Smith reviewed the chart and served a follow-up request seeking "[t]he investigation report, adjudication decision, and appeal decision … with student names redacted, but genders indicated," for four misconduct matters identified in the chart, as well as any "related" matters.
Of thirty total cases, six were deemed by Brown to be responsive to his request. Brown objected to disclosing this information, citing relevance, proportionality, and privacy obligations under FERPA. Brown stressed that even with redaction, there remains "a significant risk that [the identities of third parties] could be discernable or known," noting that investigation reports and decisions would likely reveal "details of private, sexual encounters between non-parties to this litigation." Brown indicated that under FERPA, it was required to make a reasonable effort to notify student parties "and possibly numerous student witnesses" before disclosing this material….
Bing Chat and ChatGPT-4 Reject Queries That Mention Kike Hernandez
Thanks to Jacob Mchangama, I learned that Bing Chat and ChatGPT-4 (which use the same underlying software) refuse to answer queries that contain the words "nigger," "faggot," "kike," and likely others as well. This leads to the refusal to talk about Kike Hernandez (might he have been secretly born in Scunthorpe?), but of course it also blocks queries that ask, for instance, about the origin of the word "faggot," about reviews for my coauthor Randall Kennedy's book Nigger, and much more. (Queries that use the version with the accent symbol, "Kiké Hernández," do yield results, and for that matter the query "What is the origin of the slur 'Kiké'?" explains the origin of the accent-free "kike." But I take it that few searchers would actually include such diacritical marks in their search.)
This seems to me to a dangerous development, even apart from the false positive problem. (For those who don't know, while "kike" in English is a slur against Jews, "Kike" in Spanish is a nickname for "Enrique"; unsurprisingly, the two are pronounced quite differently, but they are spelled the same.) Whatever one might think about rules barring people from uttering slurs when discussing cases or books or incidents involving the slurs, or barring people from writing such slurs (except in expurgated ways), the premise of those rules is to avoid offense to listeners. That makes no sense when the "listener" is a computer program.
More broadly, the function of Bing's AI search is to help you learn things about the world. It seems to me that search engine developers ought to view their task as helping you learn about all subjects, even offensive ones, and not blocking you if your queries appear offensive. (Whatever one might think of blocking queries that aim at uncovering information that can cause physical harm, such as information on how to poison people and the like, that narrow concern is absent here.) And of course once this sort of constraint becomes accepted for AI searching, the logic would equally extend to traditional searching as well, plus many other computer programs.
Of course, I realize that Microsoft and OpenAI are private companies. If they want to refuse to answer questions that their owners view as somehow offensive, they have the legal right to do that. Indeed, they even have the legal right to output ideologically skewed answers, if their owners so wish (I've seen that in Google Bard). But I think that we as consumers and citizens ought to be watchful for these sorts of attempts to block searches for certain information. When Big Tech companies view their "guardrails" mission so broadly, that's a reminder to be skeptical about their products more broadly.
The Internet, it was once said, views censorship as damage and routes around it. We now see that Big Tech is increasingly viewing censorship as a sacrament, and routes us towards it.
Today in Supreme Court History: September 28, 1787
9/28/1787: Confederation Congress adopts Constitution and sends it to the states.
Michigan Supreme Court on Pronouns and Titles
From an order issued yesterday:
Parties and attorneys [listed in a caption] may also include Ms., Mr., or Mx. as a preferred form of address and one of the following personal pronouns in the name section of the caption: he/him/his, she/her/hers, or they/them/theirs.
Courts must use the individual's name, the designated salutation or personal pronouns, or other respectful means that is not inconsistent with the individual's designated salutation or personal pronouns when addressing, referring to, or identifying the party or attorney, either orally or in writing.
My quick reactions:
Fifth Circuit Panel in Missouri v. Biden Withdraws Grant of Rehearing
Monday, the Fifth Circuit panel that decided Missouri v. Biden—which held that some federal government actions improperly "coerced or significantly encouraged" platforms to restrict certain user speech—issued an order saying that it granted a petition for rehearing. This meant that the panel would likely reconsider the decision, though it wasn't clear how broad any changes might be. The petition had been filed by the challengers (Missouri et al.), and argues that the panel erred in finding no First Amendment violation by the Cybersecurity and Infrastructure Security Agency and the State Department's Global Engagement Center.
It appears, though, that this was actually the result of a clerical error made by the Fifth Circuit Clerk of Court's office. Yesterday, the panel withdrew the grant of rehearing saying, among other things, that the government was "directed to file a response to the petition for rehearing by September 28, 2023, at 12:00 p.m." Presumably the panel would then consider the petition and the response, and decide whether or not to grant rehearing. (Such rehearing is rarely granted.) According to Talking Points Memo (Kate Riga),
Court Rejects Claim That Wife Was Civilly Responsible for Her Husband's Raping Other Women
From today's decision by Judge Jeffrey Helmick (N.D. Ohio) in Doe 1 v. Gupta:
On March 19, 2020, Manish Raj Gupta was indicted by a federal grand jury on one count of sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. §§ 1591(a) and (b)(1), and one count of illegally dispensing a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(7). These charges arose from allegations that Manish had surreptitiously drugged women before engaging in sex acts with them without their consent. Manish subsequently pled guilty to both charges and my colleague, Judge James G. Carr, sentenced him to serve 235 months in prison.
On June 26, 2022, two of Manish's alleged victims initiated this litigation, asserting claims against Manish, his father (Raj Gupta), and his now-former wife (Shraddha Gupta) for: (1) Forced Labor under 18 U.S.C. §§ 1589 and 1595; (2) Trafficking with respect to Peonage, Slavery, Involuntary Servitude, or Forced Labor under 18 U.S.C. §§ 1590 and 1595; (3) Human Trafficking Pursuant to California Civil Code § 52.5; (4) Action by Victim in Human Trafficking pursuant to Nevada Revised Statutes Annotated § 41.1399; (5) Human Trafficking pursuant to Ohio Revised Code § 2905.32; (6) Forced Labor and Labor Trafficking, Michigan Human Trafficking Victims Protection Act M.C.L. § 752.983, § 750.462(b); and (7) fraudulent transfer, pursuant to Ohio Revised Code § 1336.04….
Manish previously was a board-certified plastic surgeon and owner of Artisan Surgery Center, LLC. Plaintiffs allege Manish began drugging and sexually assaulting women, including women like Plaintiffs who worked as escorts, as early as 2013. Manish allegedly used prescription drugs he obtained through his medical practice to incapacitate the women before filming himself performing sexual acts with them.
The court allowed the claim to go forward against the rapist, but not the wife:
Today in Supreme Court History: September 27, 1787
9/27/1787: First Anti-Federalist letter by "Cato" is published.
The UK adopts an Online Safety Bill that allows regulation of encrypted messaging
Episode 473 of the Cyberlaw Podcast
Our headline story for this episode of the Cyberlaw Podcast is the UK's sweeping new Online Safety Act, which regulates social media in a host of ways. Mark MacCarthy spells some of them out, but the big surprise is encryption. U.S. encrypted messaging companies used up all the oxygen in the room hyperventilating about the risk that end-to-end encryption would be regulated and bragging about their determination to resist. As a result, journalists have paid little attention to any other provision in the past year or two. And even then, they got it wrong, gleefully claiming that the UK had backed down and stripped authority to regulate encrypted apps from the bill. Mark and I explain just how wrong they are. It was the messaging companies who blinked and who are now pretending they won.
In cybersecurity news, David Kris and I have kind words for DHS's report on how to coordinate cyber incident reporting. Unfortunately, there's a vast gulf between writing a good report on coordinating incident reporting and actually, you know, coordinating incident reporting. David also offers a generous view of the conservative catfight over section 702 of FISA between former Congressman Bob Goodlatte on one side and Michael Ellis and me on the other. The latest installment in that conflict is here.
If you need to catch up on the raft of antitrust lawsuits launched by the Biden administration, Gus Hurwitz has you covered. First, he explains what's at stake in the Justice Department's case against Google – and why we don't know more about it. Then he offers a preview of the imminent FTC case against Amazon. Followed by his criticism of Lina Khan's decision to name three Amazon execs as targets in the FTC's other big Amazon case – over Prime membership. Amazon is clearly Lina Khan's White Whale, but that doesn't mean that everyone who works should be sushi.
Mark picks up the competition law theme, explaining the UK competition watchdog's principles for AI regulation. Along the way, he shows that whether AI is regulated by one entity or several could have a profound impact on what kind of regulation AI gets.
I update listeners on the litigation over the Biden administration's pressure on social media companies to ban misinformation and use the story to plug the latest Cybertoonz commentary on the case. I also note the Commerce Department claim that its controls on chip technology have not failed because there's no evidence that China can make advanced chips "at scale." But the Commerce Department would say that, wouldn't they? Finally, for This Week in Anticlimactic Privacy News, I note that the UK has decided, following the EU ruling, that it too considers U.S. law "adequate" for purposes of transatlantic data transfers.
You can subscribe to The Cyberlaw Podcast using iTunes, Google Play, Spotify, Pocket Casts, or our RSS feed. As always, The Cyberlaw Podcast is open to feedback. Be sure to engage with @stewartbaker on Twitter. Send your questions, comments, and suggestions for topics or interviewees to CyberlawPodcast@gmail.com. Remember: If your suggested guest appears on the show, we will send you a highly coveted Cyberlaw Podcast mug! The views expressed in this podcast are those of the speakers and do not reflect the opinions of their institutions, clients, friends, families, or pets.
Judge Demands List of All Indirect Co-Owners of OpenAI, in Libel Lawsuit Against OpenAI
In Walters v. OpenAI, LLC, plaintiff sued OpenAI [link fixed] after it hallucinated false statements about plaintiff (in response to a query by a third party). Plaintiff sued in Georgia state court, and OpenAI removed the case to federal court, on the theory that this is a lawsuit between citizens of different states and has at least $75,000 at issue (so-called "diversity jurisdiction"). But OpenAI, LLC is a "limited liability company," and under federal law an LLC is the citizen of all the states where its members (i.e., co-owners) are citizens; and if the members are LLCs, then the LLC is the citizen of all the states where its members' members are citizens, and so on, indefinitely.
OpenAI therefore had to file a declaration discussing the citizenship of its members, which it did. But Friday's order from Judge Michael L. Brown (N.D. Ga.) says that's not enough:
Defendant still has not shown the Court has diversity jurisdiction because it has not yet established the citizenship of OpenAI Holdings, LLC and Aestas Management Company, LLC (both of which are entities in Defendant's membership structure). Defendant claims (1) OpenAI Holdings, LLC has "[m]embers who are citizens of California and Michigan, or are citizens of other countries"; and (2) "Aestas Management Company, LLC's members are citizens of Alaska, Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Florida, Illinois, Massachusetts, Maryland, Michigan, North Dakota, New Jersey, Nevada, New York, Oregon, Pennsylvania, Texas, Virginia and Washington, or are citizens of other countries, but not Georgia." (Dkt. 22 paras. 13c, 14.) These allegations are insufficient. Defendant must affirmatively identify by name each member of an LLC and then allege whatever specific facts are necessary to establish the citizenship of that member. The Court will give Defendant one last chance to do so. Defendant must file, no later than October 6, 2023, a single consolidated document showing the Court has subject matter jurisdiction over this action. Failure to do so will result in remand [to state court].
I expect that OpenAI will indeed file this comprehensive list, that its lawyers have confirmed that none of the indirect members are citizens of Georgia (where Walters is a citizen), and the case will thus stay in federal court. Still, I expect that some businesspeople and journalists will find it interesting to have this whole ownership structure revealed in one handy document.
Hoover's "Good Fellows" on the Supreme Court's Recent and Likely Upcoming Decisions
I was a guest on this episode, together with Niall Ferguson and John Cochrane (moderated by Bill Whalen), discussing Students for Fair Admissions (from last Term), Missouri v. Biden and the Netchoice cases (which are pretty likely to come up this coming Term), and more. I much enjoyed doing it, and I hope some of you might enjoy watching (or listening).
Today in Supreme Court History: September 26, 1986
9/26/1986: Chief Justice Warren Burger resigns.
Fifth Circuit Panel Reconsidering Part of Its Missouri v. Biden Decision
[UPDATE: Don't blog when tired or in a hurry! I regret to say the original post erroneously said the Fifth Circuit granted rehearing en banc -- the panel just granted panel rehearing, and I've corrected the post accordingly. My apologies for the error.]
[UPDATE 9/27/23: It appears that the order granting rehearing was a result of a clerical error by the Fifth Circuit Clerk of Court's office; the grant has been withdrawn.]
Here's my post from Sept. 9 on the then-recent panel decision, which the panel is now reconsidering (thanks to Howard Bashman [How Appealing] for the pointer), though who knows whether this will be a major change or only a minor one. Note that the petition that the panel just granted was filed by the challengers (Missouri et al.), and argues that the panel erred in finding no First Amendment violation by the Cybersecurity and Infrastructure Security Agency and the State Department's Global Engagement Center.
[* * *]
In yesterday's decision in Missouri v. Biden, the Fifth Circuit (Judges Edith Clement, Jennifer Elrod, and Don Willett) held that the federal government violated the First Amendment by causing social media platforms to block posts on various topics (including "the COVID-19 lab-leak theory, pandemic lockdowns, vaccine side-effects, election fraud, and the Hunter Biden laptop story").
The court acknowledged that the First Amendment doesn't bar social media platforms from acting on their own to restrict user speech, since the First Amendment applies only to the government and not to private parties (including large corporations). But the court concluded that the First Amendment may be violated "when a private party is coerced or significantly encouraged by the government to such a degree that its 'choice'—which if made by the government would be unconstitutional—'must in law be deemed to be that of the State.' This is known as the close nexus test."
As to what constitutes "significant[] encouragement by the government" to restrict speech, the court held:
For encouragement, we read the law to require that a governmental actor exercise active, meaningful control over the private party's decision in order to constitute a state action. That reveals itself in (1) entanglement in a party's independent decision-making or (2) direct involvement in carrying out the decision itself. In any of those scenarios, the state has such a "close nexus" with the private party that the government actor is practically "responsible" for the decision, because it has necessarily encouraged the private party to act and, in turn, commandeered its independent judgment.
As to what constitutes "coerc[ion]," the court held:
Monday Open Thread
What's on your mind?
"Strangers on the Internet" Podcast Episode 44: Fighting Image-Based Sexual Abuse and Online Harassment
Prof. Mary Anne Franks lays out the legal changes needed to protect people on the Internet
The forty-forth episode (Apple Podcasts link here) of "Strangers on the Internet" with co-host and psychologist Michelle Lange features Prof. Mary Anne Franks from the George Washington University Law School.
We sit down with our esteemed guest to take stock of the state of Internet safety (or lack thereof) today. Mary Anne explains why "revenge porn" is generally a misnomer, why women are particularly at risk in a variety of online settings, and what has made it so difficult to pass federal legislation to protect individuals from having naked images of themselves distributed nonconsensually.
The law professor and Krav Maga instructor also discusses what readers will find in her forthcoming second book "Fearless Speech," why only criminalization is likely to incentivize potential online abusers to stay put, and what encourages her to continue advocating for women's rights in the face of death threats. Join us for a conversation about both individual safety measures and the broader structural changes needed to prevent further victimization!
Better Call Saul Episode Doesn't Infringe "Liberty Tax Services" Trademark
From JTH Tax LLC d/b/a Liberty Tax v. AMC Networks, Inc., decided today by Judge Paul Gardephe (S.D.N.Y.), rejects plaintiff's claim of trademark infringement in AMC's Better Call Saul:
[Season 6,] Episode 2 depicts a fictional tax preparation business called "Sweet Liberty Tax Services," which is operated by "convicted felon, Craig Kettleman, and his wife, Betsy Kettleman." Craig Kettleman was a client of Saul Goodman in Season 1 of Better Call Saul who was imprisoned after being convicted of embezzlement. The Kettlemans and Sweet Liberty defraud their clients "by skimming money from their tax refunds." Kim Wexler—one of the Show's central characters and Saul's wife—refers to the fictional tax business as a "rundown little mom and pop outfit." Wexler blackmails the Kettlemans by threatening to reveal their crimes to the IRS.
In the Amended Complaint, Plaintiff alleges that the Show's Sweet Liberty Tax Services "is an obvious imitation of an actual Liberty Tax location, but twisted to paint Liberty Tax in a negative and disparaging light[,]" with "just the word 'Sweet' added." According to Plaintiff, similarities between the fictional Sweet Liberty Tax Services and the real Liberty Tax Service include the use of an inflatable Statue of Liberty, the use of checks bearing a Statue of Liberty logo, a Statue of Liberty wall mural inside the tax preparation office, and the use of a red, white and blue motif on the location's exterior ….
No, says the court:
