Photography, Discrimination, and the Limits of Speech Regulation

Chelsey Nelson Photography v. Louisville, a federal District Court case decided in August, is our latest entrant in the slowly-expanding string of cases recognizing that strong First Amendment interests are at play when professional speech is regulated.

The case stems from something that most would, at first blush, find uncontroversial: a local ordinance requiring that businesses not discriminate when selling goods and services, or in their advertising for the same (e.g., by claiming they will not sell to certain classes of people, or by stating that such classes of people will be unwelcome at their businesses).

There are good reasons for laws banning discrimination in sales, stemming from historic mistreatment of minorities and the need to ensure access to public accommodations. And it’s understandable why those who object to serving protected categories of people are barred from doing so in most cases. There’s not a connection between a constitutional right and, say, selling gasoline or renting a hotel room, and the law affords the government far more regulatory leeway when dealing with conduct rather than speech. 

But what happens when the goods or services sold are expressive, and the person providing those goods or services objects to employing their expression in a particular way?

To the state of Kentucky, Nelson’s photography is conduct, indistinguishable from selling pancakes or gasoline. To Nelson, her photography is expression – and she objects to a state law requiring her to to express herself in a way that she does not support. 1

In finding in favor of Nelson, the court engages in a useful discussion of how conduct (such as, say, taking photos) can be “sufficiently imbued with elements of communication” to be covered by the First Amendment. And the court cautions that this is NOT an invitation for any-and-all conduct to be squinted at hard enough that it turns into expression:

Of course, most conduct is not speech, even if it has expressive elements. The Supreme Court has “rejected the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea.” For example, there’s plenty expressive about road rage, but it’s not speech. Neither is cooking barbecue or running a motel.

Rather, the question turns on whether the conduct in question wordlessly conveys a “particularized message.” Examples noted by the court — all from cases where the Supreme Court held that the conduct in question was expressive — include:

  • nude dancing
  • flag-burning in protest of the 1984 Republican National Convention
  • displaying swastikas
  • taping a peace sign on an upside-down flag to protest the invasion of Cambodia and the killings at Kent State University
  • dressing up as a soldier to criticize the government in an anti-Vietnam War skit
  • wearing a black armband to oppose the Vietnam War
  • conducting a sit-in to protest segregation
  • refusing to salute the flag
  • flying a red flag in support of international communism

Finding the line where conduct becomes expression can be tricky. For example, is refusing to wear a face covering — in defiance of a state COVID health ordinance requiring one — an expressive act? A federal district court in Minnesota recently held no, noting that the conduct regulated by the challenged law must be “inherently expressive.” If the conduct in question requires an explanation to get the point being conveyed, that is strong evidence that the conduct is non-expressive: 

Absent explanation, the observer would not know whether the person is exempt from [the COVID mask law], or simply forgot to bring a face covering, or is trying to convey a political message.

And while the court in Chelsey Nelson v. Louisville holds that line-drawing isn’t hard when it comes to photography — because photography is “unquestionably” protected by the First Amendment — I don’t see this as quite that open-and-shut. The result here seems obvious. Wedding photos directly express a message about an event — a message that may be freighted with specific concerns to some people. But the analysis would likely go the other way in cases where the photos have no connection to the photographer’s choice and do not send a particularized message: for example, a professional real estate photographer who refused to take interior home listing photographs for a class of people she didn’t care for.

Ultimately, as the court notes, professionals, too, are protected by the First Amendment protections for speaker autonomy. Forcing citizens to express ideas “contrary to their deepest convictions” (as Chelsey Nelson would be forced to do, were she required to take photos of same-sex marriages) is “always demeaning,” and such speech compulsion may in fact be even more problematic than bans on speech. It’s good that yet another court has recognized that even professionals have such rights — even if this case shouldn’t be read for the proposition that photographers can discriminate in all instances.

Notes:

  1. She only wants to take photos of opposite-sex weddings, and has religious grounds for so doing. However, I’m not focusing on the religion aspect of this argument to better hone in on the speech-related concerns.

Gorsuch Weighs in on Legal Deregulation

There was a terrific access-to-justice piece in US Today last week, authored by former Colorado Supreme Court Justice Rebecca Love Kourlis and her fellow Coloradan, U.S. Supreme Court Justice Neil Gorsuch.

Kourlis and Gorsuch hone right in on the source of the problem:

First, lawyers have historically enjoyed the unusual privilege of regulating themselves, under the authority of state supreme courts. In most states, the profession has used this privilege to erect rules allowing only lawyers to provide “legal services”— no matter how basic the job may be.

They also note the barriers the legal profession has long erected to outside investment, and the perversities this creates in eliminating other sources of consumer-friendly competition:

At your local superstore you may be able to find tax-preparation services or an eye doctor, but you will find no help there for even the simplest legal chore.

And in praising the deregulatory efforts recently taken by Utah and Arizona – and the approach to licensing used in the UK – Kourlis and Gorsuch come so close to advocating that legal advice be pried away from the industry’s monopolistic grip:

Someone seeking legal advice about taxes would often prefer a tax-law expert with no law degree over a trial lawyer with no tax experience.

Of course that’s right. The law is vast, and getting vaster all the time. Yet we still limit legal advice to a class of initiates, chosen via a process that tests for little other than diligence and competence in the law’s broadest strokes, and presume that these people — and only these people — can provide advice on all things having to do with “the law.” It’s bonkers.

Arizona Cuts Attorney Regulation

Following on the heels of Utah, Arizona has approved sweeping changes to its rules regulating the practice of law. Once again, I’m pleasantly surprised that a state bar has gone for what I’ve long advocated: eliminating Rules 5.4 (the prohibition on attorney fee-sharing) and 7.2 (all sorts of unconstitutional limits on attorney advertising that predate Bates v. Arizona and which the ABA has inexplicably left in its Model Rules all these years).

Arizona has also opened up its legal monopoly a bit, creating a new license for “legal paraprofessionals.” I’m less sanguine about this change. Professional licensing remains a hurdle, and given our experience with a similar structure here in Washington state, I don’t see a vast market opening up. 

It would have been far better had Arizona simply adopted another simple-but-far-reaching legal regulatory fix: narrowing the definition of “the practice of law” so that anyone could provide legal advice without needing a law license.

I know that’s an idea that sounds crazy to the ears of American lawyers, but it’s long been how things work in the UK, and it doesn’t seem to have harmed consumers or turned London’s solicitors penniless into the streets. It also makes a world of sense from a First Amendment perspective. 

But hey, maybe next year? In any event, kudos to Arizona for taking a step I didn’t see coming until after I’d long hung up my law license.

Recent Cases Bode Well for Professional Speech Rights

Catching up – this summer has seen some important developments on the professional speech front:

Billups Decision Affirmed on Appeal

In Billups v. City of Charleston, a unanimous 4th Circuit panel affirmed the District court’s decision striking down Charleston’s licensing requirement for tour guides. The court dispatches two of the key factors that licensing regulators sometimes cling to: 

  • A regulation barring unlicensed tours implicates the First Amendment even though it does not directly regulate speech, because it prevents people from speaking.
  • It doesn’t matter whether the regulation only applies to paid tours, because — as is commonly understood by those who work in media and publishing; less so by others — profit motive alone does not make speech “commercial” (and thus entitled to less constitutional protection).

As the district court did, the Fourth Circuit passes on determining whether intermediate or strict scrutiny applies to this sort of regulation. However, the opinion notes that in either case, the government has the burden of proving that it actually tried other, narrower, methods to address the problem: 

To prove that a content-neutral restriction on protected speech is narrowly tailored to serve a significant governmental interest, the government must, inter alia, present evidence showing that — before enacting the speech-restricting law — it “seriously undertook to address the problem with less intrusive tools readily available to it.” See McCullen, 573 U.S. at 494. In other words, the government is obliged to demonstrate that it actually tried or considered less speech-restrictive alternatives and that such alternatives were inadequate to serve the government’s interest.”

This is good. Too often, new regulation is just flung against whatever parade of horribles is currently occupying the community’s imagination. The Billups decision is a reminder that those making the laws must do much more when their laws impact speech.

And don’t sleep on the nod to empiricism. Besides taking speech impacts seriously and minimizing harms, the court emphasizes that regulators who want their rules to survive First Amendment scrutiny need to ground those rules in actual data.

Vocational Training is First Amendment-Protected Speech 

In Pacific Coast Horseshoeing School, Inc. v. Kirchmeyer, the 9th Circuit found that a California law prohibiting people from enrolling in vocational training unless they possess certain educational credentials implicates speech rights.

This case nicely illustrates the limitations of state arguments that licensing simply goes to conduct, rather than speech. As the court notes, laws that regulate conduct nonetheless impact speech when the conduct in question consists of communicating a message. And just like the conduct at question in Billups — leading tours — consists of communicating a message, so does the conduct of training people to become farriers. 

A Win for Midwives in Georgia

The Pacific Legal Foundation (which, along with the Institute for Justice, is one of the leading lights in pushing back against overreaching licensing regulation) sued the Georgia Board of Nursing for threatening to fine midwives for . . . referring to themselves as “midwives.” 

Note that these fines weren’t threatened for unlicensed midwives selling their services. Rather, the Board threatened fines against non-practicing midwives who, in the context of providing advice and perspective to the public, merely referred to themselves — accurately — as midwives. 

The case did not result in a final appellate decision. Surely taking heed of the instructive lesson learned by the Engineering Board in Oregon when it tried a similar move, the Georgia Board of Nursing quickly folded up its tent. But in so doing, the Board signed a consent decree that prevents it from pursuing future cases or fines against non-practicing midwives. That should act as a semi-permanent barrier against future unconstitutional behavior by the Board.

Summer of CDA 230

Since my last series of posts on this topic, there has been an epic surge of hot nonsense government proposals on CDA 230.

First up: Donald F. Trump’s executive order purporting to take social media companies to task for, well . . . see for yourself:

Don’s Executive Order in response to this injustice is performative nonsense (read Eric Goldman’s comprehensive overview for more detail), but it is passing strange how “conservatives” have suddenly embraced government control of private speech. I’m old enough to remember when Republicans actually understood how the First Amendment works. Citizens United, anyone? 

Attorney General Bill Barr dutifully followed this up with a set of “Recommendations for Section 230 Reform.” These include broadening takedown requirements, adding disclosures, narrowing CDA 230 immunity for takedown decisions, and specifying that CDA 230 immunity doesn’t apply to antitrust enforcement (I don’t know that anyone thought that it did, but whatever). If you are looking for conservative, small-government principles . . . you’re aren’t going to find them here.

Next up was the Bad Josh, the would-be “Product Manager for the Internet,” Missouri Senator Josh Hawley. Hawley and his crowd of boob-baiting fellow Republican Senators (all of whom are smart enough to know better) introduced an absolute turd of a bill designed to undercut CDA 230. While it has the virtue of only applying to the largest social media sites (thanks for that, I guess), it also doesn’t appear to do anything other than create a cottage industry of nuisance lawsuits. On the bright side, that creates a nice contingency plan for me, should I decide on a late-career switch back to being a litigator.

Closely following Hawley’s offering was the bipartisan PACT Act, sponsored by Hawaii Senator Brian Schatz and South Dakota Senator John Thune. While this bill includes some generally-unobjectionable disclosure standards, it carves back CDA 230 immunity, creates a notice-and-takedown regime, and imposes some truly laughable requirements (like a live telephone call center to respond to inquiries about moderation decisions). 

Oh, and at the same time there’s ALSO the bipartisan, oh-so-self-righteously-named “EARN IT” Act which would, that’s right, make platforms earn their CDA 230 immunity by satisfying a federal commission that they are doing all they can to prevent online sexual exploitation of children. The devil is always in the details when it comes to “think of the children” legislation like this, but it’s a safe bet that putting the thick, sweaty thumb of government on site operations in such a manner doesn’t bode well for innovation or privacy.

All in all, it’s already been a VERY busy summer for CDA 230, and it isn’t even July yet. These proposals are driven by everything from legitimate concern over edge-case issues to frustration at the reach of the First Amendment to bad-faith posturing to find any sort of brickbat to take to “Big Tech.” 

But we must keep in mind that the simplicity of CDA 230 — a too-rare example of government regulation getting out of the way and providing breathing room for new technology — has been a massive factor in enabling the growth of the internet as we know it over the last 24 years. Just because a multiplicity of voices are calling for change doesn’t mean that change is necessary or wise.   

“Strongly Regulate,” Social Media Edition

So earlier this week the President of the United States took to Twitter to baselessly accuse a private citizen of murder (as one does, amidst a pandemic that has claimed 100,000 American lives and throttled the economy). 

The calls for Twitter to ban/censure/otherwise punish Trump came swiftly. And in true Twitter fashion, the company did . . . something entirely different. It tentatively waded into ANOTHER Trump Twitter Shitshow — this one involving the Umber Menace inveigling about the perils of voting by mail. Twitter decided THIS was the fight it was going to take, appending a little linked tooltip disclaimer to the offending tweets: 

This is a form of content moderation, and obviously far short of a takedown or account suspension. And as “flags for offensive content” go, this is pretty mild. Hell, squint at it just a little and it looks like an endorsement of Trump’s claim.

But Trump, naturally, took offense: 

“Strongly regulate or close them down?” What even IS this noise? 

At one time, Republicans cared about the First Amendment. They noted, rightly, that corporations have free speech rights. And you know what? If social media platforms were actually silencing conservative voices, REAL conservatives would say “So what? The government’s got no role to play there.”

Instead, we’ve now got Trump doing his snowflake-swagger routine, echoing the bad faith nonsense that Republican Senators have been spewing for months:

I’ve written at length about why this argument is abject nonsense, and why threats to change CDA 230 aren’t going to achieve the ends Republicans like Rubio purport to be seeking. But here we are — it looks to be a long summer of escalating stupidity.

“Nice Little Internet You’ve Got There – Be a Shame if Anything Happened to It.”

There’s another shift that comes amid the whining about “tech censorship” and the “silencing of conservative voices online,” and it’s a purely transactional one: put up our content or lose the immunity that CDA 230 provides. Here’s a concise recent formulation of the bargain on offer:

This argument seems to at least implicitly acknowledge that the First Amendment protects the right of online forums to choose the content that appears on their sites. It just wants to do away with that expressive freedom as the price sites must pay in order to continue to enjoy CDA 230 immunity. 

So: either moderate your site to allow all First Amendment-protected speech, or lose your immunity with respect to third party postings. Your choice. 

Now, putting aside some obvious questions (Which sites are “market-dominant?” Could a scheme like this actually pass First Amendment scrutiny? How do we determine whether a site has lived up to this 1A standard in a given case?), it’s worth asking: would any market-dominant site actually agree to this bargain? 

OK, that’s a rhetorical question. 

Because the answer is that there is absolutely no chance that any such site would take this deal.

The First Amendment allows for a stunningly wide range of noisy, messy, irrelevant, dishonest, and offensive expression. And even if this deal allows sites to impose reasonable content-neutral restrictions (like post length, duplication, formatting, etc.), it would unleash a torrent of vitriol, abuse, pornography, and abject nonsense. Sites would be helpless to shape a desired user experience or serve a particular audience. They’d just be bulletin boards for unstructured, unfocused expression.

And what would these successful sites get for this deal? The right to be immune from liability for third party postings and their curatorial decisions? 

Sure, that’s nice and all, but it’s not an existential risk to any site that’s reached market dominance. CDA 230 immunity is most important to sites that are just getting started, who can’t take the cost of fending off suits over user-generated content. Big, established sites? They’ve got the resources to take that cost. And faced with a no-win choice like this, it’s certainly a better alternative than turning one’s site into an unusable cesspool.

What the market-dominant firms WOULD do in response to this ultimatum is pretty much the polar opposite of what the conservatives claim to be advocating for: they’d become much, much more aggressive about policing the sort of content they allow to be posted. 

Why? Because decisions to take content down, de-emphasize posts, or suspend posting privileges are protected by the First Amendment in a way that decisions to post content are not. CDA 230 provides a procedural benefit in the former case; in the latter it offers an important substantive right. Thus, while losing CDA 230 would marginally increase the risk of taking user postings down, it would greatly increase the risk of leaving postings up. 

So, if conservatives get to force government to offer this bargain, no eligible site is going to take it. And if the hammer then comes down, and CDA 230 immunity is taken away, look for the likes of Google, Facebook, and Twitter to take a much, much heavier hand with the “delete content” switch.

Now, maybe “conservatives” calling for this bargain just really don’t like the interactive web, and would be happy to see it stifled in this way. But if they really believe that there’s a deal to be had here that will lead to a more useful, robust, or “politically neutral” internet, they’re sorely mistaken. 

Why Content Moderation Codes Are More Guidelines Than Rules

Also, following on my last post: since the First Amendment protects site moderation & curation decisions, why all the calls to get rid of CDA 230’s content moderation immunity?

Having listened carefully and at length to the GOP Senators and law professors pitching this, the position seems to be a mix of bad faith soapboxing (“look at us take on these tech libs!”) and the idea that sites could be better held to account — contractually, via their moderation codes — if the immunity wasn’t there.

This is because the First Amendment doesn’t necessarily bar claims that various forms of “deplatforming” — like taking down a piece of content, or suspending a user account — violate a site’s Terms of Use, Acceptable Use Policy, or the like. That’s the power of CDA 230(c)(2); it lets sites be flexible, experiment, and treat their moderation policies more as guidelines than rules

Putting aside the modesty of this argument (rallying cry: “let’s juice breach-of-contract lawsuits against tech companies”) and the irony of “conservatives” arguing for fuller employment of trial attorneys, I’ll make two observations:

First of all, giving people a slightly-easier way to sue over a given content moderation decision isn’t going to lead to sites implementing a “First Amendment standard.” Doing so — which would entail allowing posts containing all manner of lies, propaganda, hate speech, and terrorist content — would make any such site choosing this route an utter cesspool. 

Secondly, what sites WOULD do in response to losing immunity for content moderation decisions is adopt much more rigid content moderation policies. These policies would have less play in them, less room for exceptions, for change, for context. 

Don’t like our content moderation decision? Too bad; it complies with our policy. 

You want an exception? Sorry; we don’t make exceptions to the policy. 

Why not? Because some asshole will sue us for doing that, that’s why not. 

Have a nice day.

CDA 230’s content moderation immunity was intended to give online forums the freedom to curate content without worrying about this kind of claim. In this way, it operates somewhat like an anti-SLAPP law, by providing the means for quickly disposing of meritless claims.

Though unlike a strong anti-SLAPP law, CDA 230(c)(2) doesn’t require that those bringing such claims pay the defendant’s attorney fees.

Hey, now THERE’s an idea for an amendment to CDA 230 I could get behind!

Let’s Talk About “Neutrality” – and How Math Works

So if the First Amendment protects site moderation & curation decisions, why are we even talking about “neutrality?” 

It’s because some of the bigger tech companies — I’m looking at you, Google and Facebook — naively assumed good faith when asked about “neutrality” by congressional committees. They took the question as inquiring whether they apply neutral content moderation principles, rather than as Act I in a Kabuki play where bad-faith politicians and pundits would twist this as meaning that the tech companies promised “scrupulous adherence to political neutrality” (and that Act II, as described below, would involve cherry-picking anecdotes to try to show that Google and Facebook were lying, and are actually bastions of conversative-hating liberaldom).

And here’s the thing — Google, Twitter, and Facebook probably ARE pretty damn scrupulously neutral when it comes to political content (not that it matters, because THE FIRST AMENDMENT, but bear with me for a little diversion here). These are big platforms, serving billions of people. They’ve got a vested interest in making their platforms as usable and attractive to as many people as possible. Nudging the world toward a particular political orthodoxy? Not so much. 

But that doesn’t stop Act II of the bad faith play. Let’s look at how unmoored from reality it is.

Anecdotes Aren’t Data

Anecdotes — even if they involve multiple examples — are meaningless when talking about content moderation at scale. Google processes 3.5 billion searches per day. Facebook has over 1.5 billion people looking at its newsfeed daily. Twitter suspends as many as a million accounts a day.

In the face of those numbers, the fact that one user or piece of content was banned tells us absolutely nothing about content moderation practices. Every example offered up — from Diamond & Silk to PragerU — is but one little greasy, meaningless mote in the vastness of the content moderation universe. 

“‘Neutrality?’ You keep using that word . . .”

One obvious reason that any individual content moderation decision is irrelevant is simple numbers: a decision representing 0.00000001 of all decisions made is of absolutely no statistical significance. Random mutations — content moderation mistakes — are going to cause exponentially more postings or deletions than even a compilation of hundreds of anecdotes can provide. And mistakes and edge cases are inevitable when dealing with decision-making at scale.

But there’s more. Cases of so-called “political bias” are, if it is even possible, even less determinative, given the amount of subjectivity involved. If you look at the right-wing whining and whinging about their “voices being censored” by the socialist techlords, don’t expect to see any numerosity or application of basic logic. 

Is there any examination of whether those on “the other side” of the political divide are being treated similarly? That perhaps some sites know their audiences don’t want a bunch of over-the-top political content, and thus take it down with abandon, regardless of which political perspective it’s coming from? 

Or how about acknowledging the possibility that sites might actually be applying their content moderation rules neutrally — but that nutbaggery and offensive content isn’t evenly distributed across the political spectrum? And that there just might be, on balance, more of it coming from “the right?” 

But of course there’s not going to be any such acknowledgement. It’s just one-way bitching and moaning all the way down, accompanied with mewling about “other side” content that remains posted.

Which is, of course, also merely anecdotal.

No, CDA 230(c)(2) Isn’t The Only Thing Keeping Conservatives Off YouTube

Over the last year or so, there’s been a surge of claims that Google, Twitter, YouTube, etc. are “biased against conservatives.” 

The starting point of this bad faith argument is a presumption that sites should be “neutral” about their content moderation decisions — decisions like which accounts Twitter suspends, how Google or Facebook rank content in search results or news feeds, or how YouTube promotes or obfuscates videos.

More about this “neutrality” nonsense in a later post, but let’s move on with how this performative mewling works. 

So after setting up the strawman standard of “neutrality,” these self-styled “conservatives” turn to anecdotes showing that their online postings were unpublished, de-monetized, shadow-banned, or otherwise not made available to the widest audience possible. 

These anecdotes are, of course, offered as evidence that sites haven’t been “neutral.”

And it’s not just some unfocused wingnut whining. This attitude is also driving a number of legislative proposals to amend and scale back CDA 230 — the law that makes the internet go.

Conservative Senators like Josh Hawley, Ted Cruz, and Lindsey Graham — lawyers all, who surely know better — bitch and moan about CDA 230’s content moderation immunity. If only sites didn’t have this freebie, they say — well, then, we’d see some neutrality and fair treatment, yessiree.  

This is total bullshit. 

Sure, CDA 230(c)(2) makes sites immune from being sued for their content moderation decisions. But that’s only important to the extent it keeps people from treating “community guidelines” and “acceptable use policies” as matters of contract that can be sued over. 

Moderation? Curation? Promotion? All of that stuff is fully protected by the First Amendment. 

Really, I can’t stress this enough: 

CONTENT MODERATION DECISIONS ARE PROTECTED BY THE FIRST AMENDMENT. 

Eliminating content moderation protections from CDA 230 doesn’t change this fact. 

It can’t change this fact. Because CDA 230 is a statute and not the FIRST AMENDMENT.

So why all the arguing for CDA 230 to be carved back? Some of it is surely just bad-faith angst about “big tech,” misplaced in a way that would unduly harm small, innovative sites. But a lot of of it is just knee-jerk reaction from those who actually think that removing the immunity-for-moderation found in CDA 230(c)(2) will usher in a glorious new world where sites will have to publish everything. 

Which, by the way, would be awful. Any site that just published virtually everything users posted (that’s the true “First Amendment standard”) would be an unusable hellhole. No site is going to do that — and, again . . .

They don’t have to BECAUSE THE FIRST AMENDMENT PROTECTS CONTENT MODERATION DECISIONS.