“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.

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.

Further Thoughts on Professional Speech Regulation

OK, so in my post on the Visaline case, I explored the bizarre idea that regulators can keep people from speaking on certain topics, just by requiring a license to talk about those things — and that the decision to require such a license-to-speak can be supported by little more than caprice.

Hopefully other courts will follow the Fifth Circuit and swiftly eliminate this glitch. For Visaline — with its blunt invocation of the Supreme Court’s 2018 decision in NIFLA v. Becerra — reinforces the notion that real limits exist on the ability of the state to regulate the speech of licensed professionals. And this is so important because a distressingly large number of lawyers and judges — who really should know better — seem to get First Amendment amnesia when it comes to this area.

NIFLA v. Becerra was the Supreme Court’s first-ever decision directly addressing the concept of professional speech regulation writ large. And in that decision, the Court summarized the state of play:

The Court has afforded less protection for professional speech in two circumstances— where a law requires professionals to disclose factual, noncontroversial information in their “commercial speech” . . . and where States regulate professional conduct that incidentally involves speech. 1

The NIFLA opinion goes on to note that the Supreme Court has had several occasions to reinforce that the full protection of the First Amendment applies to most professional speech:

“The Court has applied strict scrutiny to content-based laws regulating the noncommercial speech of lawyers, professional fundraisers, and organizations providing specialized advice on international law. And it has stressed the danger of content-based regulations “in the fields of medicine and public health, where information can save lives.” Sorrell v. IMS Health Inc., 564 U.S. 552, 566.” (internal cites omitted)

And lest we forget, when professionals speak in a non-professional context — even when talking about their licensed profession — THAT speech is as fully First Amendment-protected as it would be if uttered by a non-licensed citizen.

There likely ARE other areas of professional speech where regulation can meet a lesser standard — or can simply clear the bar of strict scrutiny. There’s a lot more work for the courts to do before we arrive at an appropriately narrowed professional speech doctrine.

Notes:

  1. In fairness, I think what the court is saying here is that these are the two situations where it has applied the lowest protection for professional speech; regulation in these areas need only meet the rational basis test. It has also applied lower protection — the intermediate scrutiny test — to regulation of all commercial speech other than basic disclosures.

Is the Ice Breaking for Professional Speech?

It’s been all COVID-19 for the last couple of months, so I’m taking a break to take a look at a new professional speech case that I missed when it dropped in late February.

The case is Vizaline v. Tracy, out of the Fifth Circuit. And the thing I love about this case is that it takes on, directly, the fundamental issue I have with so many of the earlier professional speech cases: the idea that the gating function of professional licensing itself is somehow magically immune from First Amendment issues.  

Here’s what I mean. There’s little question that when it comes to the speech of professionals, the First Amendment applies. For example, there’s a well-established body of law relating to professional marketing speech, and an (admittedly underdeveloped) body of law when it comes to the speech professionals engage in with their clients. But at least the parameters are understood — the First Amendment applies, and we’re just negotiating about which standard of review the state has to live up to.

But something quirky happens when it comes to entry to the professions. In these cases, courts routinely handwave away the First Amendment issue, despite the fact that entry restrictions are sweeping: they keep the vast majority of the public from engaging in certain types of speech.

Weird, right?

Background

So, Vizaline. This company converts existing metes-and-bounds descriptions of real property — the raw data you’d find if you looked up property records at the county Recorder’s office — into simple maps. It sells these maps to community banks who would otherwise have to obtain surveys (from licensed surveyors, of course) on less-expensive properties used as collateral for mortgages.

It isn’t like Vizaline is passing itself off as something it isn’t. Vizaline does simple maps, and discloses that what they offer is “not a Legal Survey or intended to replace a Legal Survey.”

So naturally the Mississippi Board of Licensure for Professional Engineers and Surveyors got the state attorney general to sue Vizaline on its behalf. 

What for? “Surveying without a license,” that’s what for. Which honestly . . . doesn’t sound that awful, but which turns out to be both a civil and criminal offense in the Magnolia State. 

The Case

Represented by The Institute for Justice (who, along with the R Street Institute, are one of the only groups focused on the excesses of professional licensure), Vizaline contended that its maps are speech, and as such are entitled to First Amendment protection.

The District Court wasn’t having it. That court found no First Amendment issue, on the remarkable theory that the requirement of a license only “incidentally infringes” on Vizaline’s speech because the licensing requirement merely determines who can speak. [ed. note: LOL]

On appeal, the Fifth Circuit went straight to the Supreme Court’s 2018 NIFLA v. Becerra decision, noting that case had eviscerated the concept that the gatekeeping function of licensing acts like some sort of First Amendment get-out-of-jail-free card:

The district court’s holding that occupational-licensing provisions “do not trigger First Amendment scrutiny” is contrary to the Supreme Court’s decision in NIFLA. NIFLA makes clear that occupational-licensing provisions are entitled to no special exception from otherwise-applicable First Amendment protections.

Bam. For as the Supreme Court had noted in NIFLA: 

“All that is required to make something a “profession,” according to these courts, is that it involves personalized services and requires a professional license from the State. But that gives the States unfettered power to reduce a group’s First Amendment rights by simply imposing a licensing requirement. States cannot choose the protection that speech receives under the First Amendment, as that would give them a powerful tool to impose “invidious discrimination of disfavored subjects.”

The Fifth Circuit panel described NIFLA as essentially eliminating the “professional speech doctrine” — described in this case as a doctrine excepting professional speech from ANY First Amendment scrutiny — and remanded to the District Court to determine whether Mississippi’s licensing requirements implicate speech or non-expressive professional conduct.

While the remand is understandable, it leaves one a little wanting, as the licensing requirements at issue seem to plainly implicate expressive conduct. But overall, Vizaline points in a hopeful direction, one where the “professional speech doctrine” takes on a new understanding as protecting both the First Amendment rights of professionals and those who approach the murky bounds of licensed professional activity. 

More Speech Rules from the ABA?

Lawyers. Hardly poor cobblers are we; as a profession that deals in the arcana of regulation we seem to delight in larding ever more regulation upon ourselves. The attitude of our profession might be summarized as “if a little regulation is good, then surely more regulation is even better!”

So if diversity — and the encouragement thereof — is a good thing, then the reaction of many in the profession is: let’s have a regulation that requires that. Or, at least, that requires lawyers to do and say things that are supportive of diversity. That’s the core of a proposed new ABA Model Rule 8.5.

It should come as little surprise that I’m skeptical of proposals that add to the weighty-and-crufty mass of rules that govern the practice of law. This is particularly true when it comes to rules that limit or compel professional speech, as this rule would:

As a learned member of society with an ethical obligation to promote the ideal of equality for all members of society, every lawyer has a professional duty to undertake affirmative steps to remedy de facto and de jure discrimination, eliminate bias, and promote equality, diversity and inclusion in the legal profession. 

What does “undertake affirmative steps” mean here? It may mean that expression deemed antagonistic to these goals violates the rule. It may also mean that the failure to engage in expression sufficiently observant of these goals violates the rule. Either way, in making orthodox a particular point of view the proposed Rule represents unconstitutional viewpoint discrimination.

Many lawyers will, of course, make some combination of the argument that “diversity is important, and no one is going to interpret the rules this way anyway.” But the first part of that argument is completely irrelevant, while the second part is provably false. We need look no further than the advertising rules to see how far lawyers and the Bars are willing to stretch the regulatory language — and the chilling effect this has on the speech of lawyers and the ability of audiences to hear that speech.

We need fewer rules governing the practice of law, not more. And as proposals such as this continue to proliferate, we need the Supreme Court to firmly establish a professional speech doctrine making it crystal clear that a license to practice law cannot be conditioned on abandoning one’s free speech rights.

Are ALL Licensing Restrictions OK Now?

I missed this when it was issued last month, but struck by the result in the del Castillo v Philip case, challenging the application of Florida’s licensing law for dietitians to prevent the sale of diet coaching services by a non-licensee.

While the court is foreclosed from asking the obvious question (“do we really need so many god damn occupational licensing laws?”), it could have, you know, paid a little deference to the First Amendment on its way to depriving Heather Kokesch del Castillo of her right to earn an honest living.

Because maybe I’m reading this wrong, but it seems like the court is saying that ANY entry-to-the-profession licensing requirement inherently does not raise First Amendment issues — even if the profession is fundamentally centered on speech.

And even if the licensing requirement involves having a college degree and at least 6 months of relevant experience.

Look, I understand if the state wants to require a business license and the payment of a nominal fee before someone starts selling services to clients. That seems generally applicable, not speech-impacting, and relevant to prosaic matters like being able to hold businesses accountable for fraud and crappy service.

But it’s another thing entirely when those licensing requirements are extensive – and instead of merely giving the licensees the right to advertise their services as having met a state-sanctioned level of putative quality, prohibit non-licensees from providing any sort of advice and counsel in an incredibly broad area like “diet and nutrition.”

Shouldn’t the court have run this through something like intermediate scrutiny analysis – which likely would have found that the state could have achieved its desired objective through a less-speech-impacting means, such as certification?

I mean, there’s nothing keeping Florida from setting up a fancy “certified dietician” program with these educational and experience requirements. Ms. del Castillo couldn’t call herself one of those, but she would still be free to sell her services. And consumers could choose for themselves. Is there some consumer protection need here that is SO pressing we need to keep diet-interested bloggers from sharing their thoughts on a paid basis?

Here’s hoping the Supreme Court takes this case, and provides some much-needed clarity to the nascent professional speech doctrine.

[and yes, the implications for legal licensing should be obvious]

Is Real Change Finally Arriving to Lawyer Regulation?

Go read Jayne Reardon’s latest, “Re-Regulating Lawyers for the 21st Century,” which provides an excellent overview of a series of attorney regulatory changes being floated in a number of states. While the process in California seems to be attracting the most attention, developments in other states may well outpace it. I wouldn’t have thought it possible a year ago, but Arizona seems to be on the road to doing two things I’ve long called for:

These changes may seem like small potatoes next to proposals like allowing outside investment in law firms. But eliminating these rules should be a much easier proposition, and doing so could unblock a lot of potential innovation in consumer legal offerings.

Louisiana Tired of Lawyer Ads

Well, or maybe business/insurance interests, a coalition of which is calling on the Louisiana Bar to crack down on “misleading” lawyer ads.

Misleading lawyer ads? That sounds bad!

Except those complaining don’t offer any specifics, pivoting seamlessly from “misleading” to the volume of lawyer ads that reach Louisianans. I mean, sure – it’s obviously a bummer when you’re just trying to run a business and your customers are constantly being reminded that they have rights and remedies. But it’s safe to say that this particular issue has been decisively settled in favor of consumers getting more information about legal services.

In an effort to ramp up the pressure, the coalition is pressing a bill through the state legislature that would require the Louisiana Bar to re-evaluate its rules governing attorney advertising.

Hey, study and re-evaluation is always good. Here’s hoping that in so doing the Bar decides that its current rules – which include an advertising review process that is both unconstitutional and anti-competitive – need to actually be simplified in the name of greater flow of information about legal services.

#newtox, and Doctors’ Social Media Disclosures

So, plastic surgeons: they LOVE Instagram. And with good reason. While Twitter is great for conversing with other surgeons and catching up on professional news, Instagram actually has an audience of potential patients. Savvy plastic surgeons have caught on to this, and many of them are streaming before-and-after shots and candid videos on the daily.

Many of these posts promote certain treatments. That’s one thing for say, rhinoplasty, but what about branded treatments, like Botox or Coolsculpting? And what if one of those branded treatments can be viewed as sponsoring the doctor’s post?

Case in the point: the splashy launch of a new Botox competitor, Jeaveau. At a party for the brand’s advisory board in Mexico, the doctor members of the board didn’t miss the opportunity to share photos and praise with abandon. And this being Instagram, hashtags were ubiquitous, including Jeaveau’s own “#newtox.”

Now, the Federal Trade Commission has long taken issue with social media “influencers” promoting brands without disclosing they were being paid to do so (or receiving complimentary products).

But is this REALLY that sort of situation?

The purpose of the FTC’s endorsement guidelines can be roughly summed up as “consumers should know if endorsers are being paid to endorse.” But while these doctors are getting a form of compensation – their expenses to attend advisory board meetings are covered, and there are often stipends and honoraria for talks they give – they aren’t being paid to endorse. Rather, they’re being paid to advise Jeaveau’s makers and take back what they’re learned to their busy practices.

Hashtag love for #newtox? That’s just a by-product of their affection for Instagram.

Ultimately, though, while a party like this offers a crystallizing example, it’s tricky to try to unpack the relationship between doctors, brands, and the mention of branded treatments on social media. Many doctors attend multiple events, for multiple brands, every year. Nearly every doctor gets some form of free or discounted product. Should disclaimers be required in all such instances? Perhaps it’s my general distaste for disclaimers, or the fact that this isn’t some social media influencer being paid to promote a new brand of shoes. Let’s save the disclaimers for the Kardashians of the world, and let the plastic surgeons enjoy their Instagram moments.

Don’t Take Your Dealmaking Tips From DT

It seems Donald Trump got the wrong takeaway from this weekend’s brief government shutdown:

This crowing boast of his own negotiating prowess gets things entirely backward. If I had to point to a single cause of the  shutdown, it would be Trump’s own ineptitude at negotiating. For despite his self-professed bargaining acumen, Trump is really just a one-trick pony: he’s got a single approach to dealmaking, one that likely worked well for him in real estate and licensing deals but which is wholly inadequate to the circumstances in which he now finds himself.

Trump’s is a chaotic approach, combining affability and relationship-stroking with mercurial changes in temperament and deal terms. He frequently re-trades or tries to change deal terms at the 11th hour – or even after the fact. That’s a crappy way to do business, and it doesn’t yield good long-term returns. It increases the risk of any given deal imploding, and it craters the dealmaker’s reputation, making future deals harder.

Unfortunately, it’s a technique that can be very effective in wringing favorable terms out of deals where you’ve got lots of leverage. And that’s certainly familiar terrain for Trump, who cut his dealmaking chops squeezing small vendors, aspiring licensees of the Trump name, and creditors fearful of yet another debt-sucking Trump bankruptcy. Those people didn’t have any good alternatives to making a deal with Trump, so they had to grit their teeth and suck it up, even as he went back on his words, changed terms mid-stream, and generally acted like a mercurial jackass.

We’ve certainly seen Trump roll this play out repeatedly in his first year in office, with predictable results: chaos, disorder, and a lack of any meaningful negotiated outcomes, despite plenty of them being within reach. And that’s because negotiation in governing is a lot different and more complex than squeezing a plumber who can’t afford to sue to accept sixty cents on the dollar for his invoice. Getting stuff done requires a mix of credibility, toughness, and the smarts to know when to stop negotiating and take a deal.

To be successful at getting deals done in this kind of environment, there are times when you need to ask counterparties to take you on faith. And for them to be willing to do so requires a reservoir of trust. If Trump had any such reservoir, his year of bald-face lying and retrading has drained it bone-dry.

“See you at the negotiating table?” Not likely. Watch as experienced pols increasingly pack up and walk from negotiations with Trump – that is, if they’re unsuccessful in sidelining him from the table in the first place.