Beware of Good Intentions When it Comes to Censorship

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998).

Censorship often comes along with a side order of good intentions — or at least that is in the marketing materials for the proposed censorship. You want a world without racism? Lets ban racist speech! But, the problem is that censorship almost always turns into a tool to seize or maintain a grip on power. (What We Risk When We Ban Racist Speech)

A Kentucky legislator recently proposed a narrow restriction on free expression — and it seems that it came from reasonable and logical intentions. Unfortunately, when you consider this idea while keeping the First Amendment in mind, the implications are no longer acceptable. They are intolerable.

Representative John Carney introduced a bill to prohibit anyone who witnesses "an event that could reasonably result in a serious physical injury" from publishing information about that event on the internet for at least an hour if their posting could identify potential victims.

I see where he is coming from. Do you want to hear about your loved one being killed in a car accident from Facebook? Do you want to wake up from an accident and find your traumatic and personal experience all over Twitter? I get it. In short, we have significant social media privacy issue – and the United States seems to be forgetting all about privacy issues as we steam forward into the Internet's adolescence.

What the East German Stasi used to do to its citizens, we all now do to each other. We all live under constant crowdsourced surveillance, and instantaneous broadcasts of traumatic events are commonplace. As a policy consideration, I am happy that someone is at least willing to take a shot at changing this. But, despite the good intentions behind the bill, I can’t get behind it. A law like this can not likely withstand First Amendment scrutiny.

A law like this is what is known as a “prior restraint” – a rule that attempts to prevent speech from occurring. As Justice Blackstone eloquently wrote: The liberty of the press is indeed essential to the nature of a free state, but this consists in laying no previous restraints upon publications…” Or, as Walter Sobchak shouted, “THE SUPREME COURT HAS ROUNDLY REJECTED PRIOR RESTRAINT!” Kinney v. Barnes, 57 Tex. Sup. J. 1428 at n.7, (Tex. 2014) (citing SOBCHAK, W., THE BIG LEBOWSKI, 1998). See also, How to Cite to Walter Sobchak.

That rejection is rounder than you can spin me like a record. Rounder than Ken's noggin.

It has been that way since Near vs. Minnesota. So, you've had 85 years to get with the program.

Prior Restraints are permissible under the U.S. Constitution. However, they are restricted to situations with which there is an immediate, clear and present danger that something awful will happen if the speech gets out there.

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. Near v. Minnesota, 283 U.S. 697 (1931).

For example, if Popehat found out about a troop movement in Afghanistan and wanted to publish that information, thus essentially broadcasting a secret mission to the enemy, the government could likely get a Prior Restraint. This would keep that information from being published until after it no longer causes harm to the operation, but it would have to dissolve once the necessity for it passed.

We certainly don't want to lose a war because we are afraid of delaying a news article by twenty- four hours. On the other hand, we do not allow Prior Restraints simply to protect feelings or privacy.

I can philosophically agree with Representative Carney’s proposal. I get it. But, how do we think that such a prior restraint would be used in the future — when someone wants to use it to seize or wield power in an undemocratic manner? I'm not sure either, but I think that when we see a possible prior restraint, we should consider that to be a "nuclear option." We don't need to ask ourselves how bad the damage will be. Unleashing a prior restraint is damage in itself.

I'm not saying that I wouldn't be able to agree to any future notions of new justifications for prior restraints. In fact, a recent 7th Circuit decision raises some interesting issues. I'm not even 100% committed to the long-settled notion that equity can not enjoin libel — as it is at least worth discussing whether that still makes sense in 2016 (even if only to reject any change – but lets not be lazy in the name of absolutism). (UPDATE: "equity can not enjoin libel" means that you can't get a court order stopping someone from defaming you before a trial on the merits of the defamation claim — and sometimes, not even afterward).

But, we need to recognize that prior restraints are very dangerous, very sticky, very dirty, and very difficult to manage effectively. Any time you think about unleashing one, you need to have a very clear discussion about what it could mean, once you let that gimp out of the basement.

In this particular situation, I would very much like to see Carney's vision come to pass. I would love it if every time you fucking dipshits drive past a car accident, you just look at the road ahead of you and keep driving. I'd love it if society got to a point of civilization that nobody whipped out a cell phone to take a picture of someone lying on the ground after an accident.

But, do I want to live in a place where we can't photograph the police murdering citizens? Do I want to live in a place where we can't immediately broadcast genuinely newsworthy events? Do I want to live in a place where the cops can arrest me for publishing a picture?

Fortunately, Carney realized that too, and withdrew the proposed bill after catching hell for it. Good. The intention might have been noble, but the medicine was too damn dangerous to take.

Last 5 posts by Marc Randazza

Comments

  1. Moebius Street says

    the long-settled notion that equity can not enjoin libel

    I don't have any idea what that means. Marc, can you give us a lawsplainer?

  2. says

    @MoebiusStreet – Since no one has replied yet, this 0L will try to explain. Note that I might be very wrong.
    I have no idea which and how many of those words you don't know, so I'm assuming it's "equity," "enjoin," and "libel."
    Equity – usually non-monetary relief (I think), based on notions of fairness rather than strict reading of law.
    Enjoin – to prohibit someone from doing something
    Libel – written defamatory statements (I actually really hope you knew that one, considering you read this blog)

    So, in other words, courts can't, in the name of fairness, just stop someone from writing a libelous statement if there isn't a law specifically saying they can. The injured party has to go for legal relief rather than equitable relief.

    And… Marc updated before I posted. I was close.

  3. TimothyAWiseman says

    Well said. I sympathize with the basic idea that people ought to wait a reasonable time before publishing pictures of any serious injury and should think long and hard about whether publishing those pictures is proper at all. But you cannot legislate courtesy, especially when it includes prior restraint on publication.

    Incidentally, techdirt has a write up on this situation as well here.

  4. Kenpachi says

    Not to mention wave after wave of relentless attacks to "regulate" speech that keep coming from the "regressive leftist" & political ideologues. They lobby power structures at the state, national and international level, especially political factions, to do their bidding:

    Under the cloak of Good Intentions and as self appointed Defenders of the Disfranchised, howling laments loom into the night, crying for evermore policing of ideas, thoughts and freedom of expression…

  5. Mario Cerame says

    @MoebiusStreet

    This is a hard thing to explain because it gets into legal history. I posted a short bit here a while ago, with citations and stuff. Anyhow.

    So way back, there were courts of law. If you were wronged, and you were wronged in a certain way, you could get money from the bad guy. But the courts had all these super technical rules, and everything had to fit just so. And sometimes the courts of law wouldn't deliver real justice–because the situation didn't quite fit, or because money wasn't good enough, or whatever. So then, people would go to the king and try to get real justice done if the courts of law came up short.

    And then this became a thing, not just a one off–going to the king I mean, when the courts of law were inadequate for justice. Then the king made dealing with these people the job of the king's chancellor, which used to be a position with a religious element. Then that became a thing, going to the king's chancellor, and he had to delegate to other people, and so it became a kind of parallel court system–the courts of equity, or the chancery–which is where you'd go if the courts of law couldn't do real justice.

    But there were also super technical rules in equity. See, first off, you could only go to equity courts if the courts of law were inadequate. The courts of law really only gave you money, but maybe money wasn't the issue. Or the rules of law were really harsh–like under the rules of law, if you had paid off part of your mortgage, but not all of it, and you went into foreclosure, you'd just lose everything. But this felt kinda unfair, so the courts of equity would credit you a portion (which we now call "equity" in a home).

    There were other rules too. Remember how the chancellor way way back had a kind of religious element? Well, a big rule was you couldn't be a douchebag and go to a court of equity. Equity wouldn't help you in the matter if you had been a serious dick about it. Another important rule was that equity would only help you if it made a real difference.

    Okay–so wtf does this have to do with equity won't enjoin a libel? Two things.

    First, if you wrote a lie about someone and the lie hurt his or her reputation, the courts of law would give you money. And that was supposed to be good enough. So no need for equity.

    Second, stopping publication was a real dick move in England. The freedom of speech became a big honkin' deal–see Cato's Letter No. 15 for a sense of what I mean. Stopping publication was such a dickheaded move that equity wouldn't help you out–(at least, not until there was a trial).

    The rules still matter when you want something that involves a court's equitable powers. SCOTUS just issued an opinion today that was all about the difference between law and equity).

    Some folks, like me, believe that applying the rules of equity really fairly today means that equity won't enjoin a libel, even after a trial on the merits, because–among other things– nowadays that injunction doesn't actually make a difference, what with the interwebs and all. And the rule is that equity will only take action if it really really makes a difference. And historically, money was supposed to be good enough anyhow. And … there's more to it. A lot more, but this is the best I can do without making things super duper complex.

    TL;DR
    it means you can't get an injunction to stop speech, because (1) historically, money was good enough and (2) stopping publication was too douchey for that kind of thing.

  6. brad says

    Are you kidding me?

    Good intentions about limited censorship measures “almost always” turning into a tool to seize or maintain a grip on power? That's a pale argument. Given that government censorship is a tool to maintain a grip on power, I’m more concerned that specious claims of good intentions “almost always” provide the cover necessary for passage of dubious censorship measures like the one mentioned.

    “Beware Stated Intentions” rather than “Beware Good Intentions.”

    Let’s look at the Honorable Representative’s proposal without blindly assuming that it comes “from reasonable and logical intentions:”

    A Kentucky legislator, John Carney, recently proposed a blanket restriction on speech to slow public distribution and discussion of social media videos that show police _______________ (pick your favorite: arresting violent criminals, beating black suspects without provocation, using reasonable force, or killing civilians). The Representative probably believes that the measure will reduce the likelihood of wide-spread and spontaneous _____________ (insert your favorite: protests, traffic jams, civil unrest, opportunistic looting, or demands for governmental accountability). In proposing the measures, Rep. Carney offered _________ (pick your favorite: platitudes about victims’ rights, objective data, his assurances that the measure was narrowly — oh, you get the point).

    Distributing a video showing police doing anything involving the uses of force falls squarely within the definition of “an event that could reasonably result in a serious physical injury.” No one but a child can reasonably believe that this guy is actually worried about the harm that your mom may suffer if she learns about your car accident on facebook.

    Will a cooling-off period for social media videos protect a family from the trauma of learning – from any source other than a social media video – that something terrible has happened to you? Not a chance! The proposal even includes an exemption for traditional media!

    Does the threat of even a nominal fine chill speech and make people think "maybe I shouldn't post that video of the police beating that guy?" Yes.

    If I were a government official, would I like an hour or so of warning before I started getting angry calls on what was to become a very bad news day for me? Yup. Is that a reason to chill speech? It may be — but it certainly isn't a good one, or one motivated by "good intentions."

    Oh, and:
    “What the Stasi used to do to its citizens, we all now do to each other.” Hyperbole much? Stop pretending that social media is any more detrimental to a civil society than the 24-hour news cycle's live national coverage of every police car chase that it can get a helicopter over. We survived O.J. on the freeway. We will survive viral video.

  7. AH says

    @brad
    While I agree with most of what you are saying, I think most people who don't like social video also don't particularly care for the 24 hr news cycle.

  8. T R says

    I fail to see how this affront to free speech could survive from a different perspective.

    Seems to me the example Carney used in publishing the bill assumes — or tries to create — a right to privacy in what I would have to assume is a public location where no expectation of privacy should exist.

    The crash victim was presumably traveling in a public place, and likely crashed in a public place. There should be no expectation of privacy.

    It's sad that the family might learn of his untimely demise via social media before being notified by….what? The police at the door? A phone call from the morgue? The sad part is the family must learn of the family member's untimely demise at all. I fail to see a significant difference in who the messenger might be.

  9. JWH says

    My biggest problem with it is that it seriously interferes with friends telling each other about these kinds of events.

    "Hey, I just got in a car accident. I'm gonna pull through, but my wife's pretty badly hurt and her best friend isn't doing well." Put that on FB 30 minutes after the crash, and you've just broken the law.

  10. Matt L. says

    @Mario Cerame,

    Sure, they thought money was good enough. Then again, back then, didn't "uncollectable" essentially mean, "he's going to debtor's prison"?

  11. David Schwartz says

    Hmm, before I read this article, I thought I knew what a prior restraint was. Now I think I have no idea. If a "prior restraint" is any rule that tries to prevent speech from occurring, then every law that restricts some speech is a prior restraint because it tries to prevent the speech it restricts from occurring.

  12. birdbebad says

    Representative John Carney introduced a bill to prohibit anyone who witnesses "an event that could reasonably result in a series of physical injury" ? I think you mean "…a serious injury…" or maybe not. I suppose a "series of physical injury (injuries?)" would also hurt. Thought PFTCommenter wrote that proposed law.