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Plaintiffs CDK Global LLC and Reynolds and Reynolds Company develop, own, and operate proprietary computer systems known as dealer management systems ("DMSs") that process vast amounts of data sourced from various parties. Automotive dealerships hold licenses to DMSs to help manage their business operations, including handling confidential consumer and proprietary data, processing transactions, and managing data communications between dealers, customers, car manufacturers, credit bureaus, and other third parties. Plaintiffs contractually prohibit dealers from granting third parties access to their DMSs without Plaintiffs' authorization.

In March 2019, the Arizona Legislature passed the Dealer Data Security Law . The Dealer Law regulates the relationship between DMS licensers like Plaintiffs and the dealerships they serve. Under the Dealer Law, DMS providers may no longer "[p]rohibit[] a third party [that has been authorized by the Dealer and] that has satisfied or is compliant with current, applicable security standards published by the standards for technology in automotive retail [ (STAR standards)] from integrating into the dealer's [DMS] or plac[e] an unreasonable restriction on integration."

The Dealer Law also requires that DMS providers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from [a DMS]" that is compatible with STAR standards and that they "[p]rovide access to open application programming interfaces to authorized integrators." Finally, a DMS provider may only use data to the extent permitted in the DMS provider's agreement with the dealer, must permit dealer termination of such agreement, and "must work to ensure a secure transition of all protected dealer data to a successor dealer data vendor or authorized integrator" upon termination.

Plaintiffs have sufficiently alleged that the Dealer Law abridges their freedom of speech by requiring that Plaintiffs draft code to facilitate disclosure . It is well-established that "computer code, and computer programs constructed from code can merit First Amendment protection." Universal City Studios, Inc. v. Corley (2d Cir. 2001); see also United States v. Elcom Ltd. (N.D. Cal. 2002) ("[c]omputer software is speech that is protected at some level by the First Amendment").

However, not all code rises to the level of protected speech under the First Amendment. Rather, there are "two ways in which a programmer might be said to communicate through code: to the user of the program (not necessarily protected) and to the computer (never protected)." Further, even where code communicates to the user of a program, it still may not constitute protected speech under the First Amendment if it "commands 'mechanically' and 'without the intercession of the mind or the will of the recipient.'"

Plaintiffs have sufficiently alleged that the code they must draft to comply with the Dealer Law communicates substantively with the user of the program. The Amended Complaint alleges "Plaintiffs must draft code to receive and respond to requests from 'authorized integrators' who will interact with the code by commanding it to communicate the information they choose to request." It also states that the code will express the creative choices of the software developers and communicate those choices "to those who would access the Plaintiff's DMSs, as well as to other third-party programmers." Taken as true, these allegations sufficiently allege a protected interest in the content of the code.

Defendants argue the Dealer Law cannot compel speech because it does not dictate what Plaintiffs' code must say, only that dealers must adopt a framework to share data from their DMSs. Ariz. Rev. Stat. Ann. 28-4654 (requiring that Dealers "[a]dopt and make available a standardized framework for the exchange, integration and sharing of data from dealer data systems with authorized integrators and the retrieval of data by authorized integrators using the star standards or a standard that is compatible with the star standards."). They contend that, by mandating only access, the Dealer Law regulates Plaintiffs' conduct, not speech.

Corley acknowledged this possibility, clarifying that the mere "functional capability" of a code did not implicate First Amendment Protection. But Plaintiffs' allegations go beyond the functional capability of their code because they claim users will interact with their program in a substantive way. Defendants' arguments that the Dealer Law is more properly considered a regulation on conduct therefore amount to disagreements about the factual consequences of the law and the drafted code. Such a contention cannot be resolved at the Motion to Dismiss stage.

{Moreover, the mere assertion that the law regulates conduct does not establish failure to state a claim under the First Amendment. Even where a law is aimed only at conduct, an incidental burden on speech triggers scrutinyit must be "no greater than essential." Rumsfeld v. Forum for Acad. & Institutional Rights, Inc. (2006) (finding that a burden is no greater than essential when "neutral regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.").}

I'm not sure what I think about this, but I thought some of our readers would find it interesting.

Go here to see the original:
The First Amendment and Mandated Creation of Computer Code - Reason

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Instruction

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When First Amendment expression crosses the line to intimidating election workers - AZFamily

Two men, one armed, who filmed voters dropping off ballots in Littleton on Nov. 2 were first amendment auditors and not cited by police, city and county officials said.

The men, whose names were not immediately available, drew the attention of county staff as they filmed voters dropping off ballots outside the Arapahoe County administration building on South Prince Street, said county spokesperson Luc Hatlestad. One of the men was carrying a holstered handgun and wearing a tactical vest, Hatlestad said.

Our staff asked them what was going on, and someone inside the building called police, Hatlestad said.

Responding officers determined the men were first amendment auditors, said Cmdr. Trent Cooper, Littleton Police Department spokesman.

First amendment auditors are activists who film encounters with public officials, according to the Colorado Intergovernmental Risk Sharing Agency, or CIRSA.

If the encounter results in an actual or perceived violation of the auditor's First Amendment or other protected rights, then the video likely will be posted on social media and/or serve as the basis for a claim or suit, a CIRSA memo on the phenomenon reads in part. A violation may come about if the auditor is denied the right to take photos or videos in a public place, or is detained for `suspicious' activity or other reasons.

Cooper said the men appeared to clearly understand the limits of their legal rights, and that it's not against the law to open carry guns or film people outside a government building.

Colorado law makes it illegal to impede, prevent, or otherwise interfere with the free exercise of the elective franchise of any elector.

Hatlestad said three voters came inside the building to report the men outside, but he was not aware of any voters who were intimidated out of dropping off ballots.

Police are not aware of the men speaking to any voters or stopping any voters from dropping off their ballots, Cooper said.

The goal of these guys is to get people to violate their rights, Cooper said. This guy's carrying a gun, wearing tactical gear he knows that's going to make people uncomfortable. It's an attempt to elicit a confrontation. If nobody takes the bait, eventually they get bored and leave, which is essentially what happened here.

Police did not ask the men to leave, Cooper said, though they eventually left on their own after about an hour.

A spokesman for Colorado Attorney General Phil Weiser said the incident is under investigation.

The Colorado Secretary of State's office did not immediately respond to a request for comment.

First amendment auditors have made headlines many times in Colorado in recent years, including for disrupting city council meetings, winning settlements for wrongful detention, and in one instance, allegedly threatening to kill a judge.

Hatlestad said anyone who sees anything suspicious at a ballot drop box or polling place should report it to elections officials on site or call the voter hotline at 303-795-4511.

Read more from the original source:
Men filming voters in Littleton were 'first amendment auditors,' police say - Englewood Herald

The Sixth Amendment Public Trial Clause lets defendants insist that their trials be open to the public, and the Court has interpreted the First Amendment as generally requiring such openness even when defendants are willing to waive their Public Trial Clause rights. But courts have mostly resisted the claim that either provision requirestelevisedtrials; it's enough, courts say, that the trials be open to members of the public (including the media, which will then write about the trial for the benefit of those people who can't see it directly).

But Wednesday's decision in State v. Chauvin, Minnesota state Judge Peter A. Cahill took a different approach, because of the epidemic:

In the past, failures to restrict public and media access inside the courtrooms of high-profile trials resulted in media action that was so intrusive and disruptive that defendants' rights to a fair trial were violated. While the right of the press and public to attend criminal trials is sacrosanct, and carries with it the right to report what has occurred during the trial, the right does not include a right to "telecast" the actual proceedings. Estes v. Texas(1965).

Against this historical background, the Minnesota Supreme Court promulgated the current version of Minn. Gen. R. Prac. 4, which limits audio and visual media coverage of criminal proceedings. While that rule sets out a general rule of prohibition, it also allows for the visual and/or audio recording and reproduction of trial proceedings with the consent of all parties. Even with the consent of all parties, visual or audio recording of trial proceedings is limited.

Normally, this rule can be applied without concern that it will impinge on the right to a public trial or the right of access held by the public and press. Spectators may freely attend trials, and the usual trial receives little attention, except from family and friends of the victim orthe defendant and the Court can easily accommodate those wishing to attend the trial in person. On occasion, members of the media attend and report on the proceedings. All spectators, whether journalists, interested parties, or casual observers, may, in normal times, come and go as they please.

The instant situation, however, not only is abnormalit is in fact quite unique. The COVID-19 pandemic persists and requires social distancing, especially during jury trials. All four Defendants here have been joined for trial by separate order filed today in all four cases in which this Court has granted the State's motion for trial joinder. The joint trial requires extra counsel tables, and thus a higher demand on the space within the courtroom. Even when this Court used the largest courtroom in the Fourth Judicial District for the joint motion hearing on September 11, 2020, only a handful of family and media representatives could fit into the courtroom given all the parties and counsel and the social distancing requirements in the courtroom necessitated by the COVID-19 pandemic and various orders issued by Chief Justice Gildea and the Judicial Council in the wake of the COVID-19 pandemic.

Most family and media had to observe the proceedings through a closed-circuit feed to other courtrooms, and even then had trouble hearing all of the proceedings. The general public could only observe from a closed-circuit feed to a courtroom several blocks away in the Hennepin County Government Center. The closed-circuit feed was limited to a static wide-view of the courtroom from a single camera above the jury box. This was a hearing that did not require space for jurors and it was still cramped.

A courtroom has been rebuilt in the Hennepin County Government Center, Courtroom 1856, for the upcoming joint trial in these cases. Spacing requirements mean there will be little, if any, room for any spectators in that courtroom during the trial.10 That includes not only family members and friends of George Floyd and the Defendants, but also members of the public and the press.

Not surprisingly, these cases continue to hold the interest of the press and the general public on an international scale. Virtually every filing by the parties in these cases is reported in the media, both locally and nationally. This Court's substantive orders also receive local and national news coverage. Protests demanding justice for George Floyd continue. It is expected that, even with some overflow courtrooms, the demand by family members, the public, and the press to attend the joint trial will outstrip the court's ability to provide meaningful access.

This Court concludes that the only way to vindicate the Defendants' constitutional right to a public trial and the media's and public's constitutional right of access to criminal trials is to allow audio and video coverage of the trial, including broadcast by the media in accordance with the provisions of the attached order.

The Court acknowledges that the attached order allows for greater audio and video coverage than that contemplated by Minn. Gen. R. Prac. 4.02(d), even if all parties had consented. It could be argued that the Court should simply follow the limitations of the rule to protect the constitutional rights of the Defendants, the public, and the press. The limitations of the rule are so extensive, however, that nothing would be known about the empaneled jurors, all witnesses could veto coverage of their testimony, and the public would be left with nothing but the arguments of counsel. That is hardly a basis for the public "to participate in and serve as a check upon the judicial process."

The Court's attached order seeks to accommodate the interests served by the current rule by expanding audio and video coverage only as necessary to vindicate the Defendants' constitutional right to a public trial and the public's and press rights of access to criminal trials in the unique circumstances currently prevailing in the COVID-19 pandemic and the intense public and media interest in these cases. By doing so, the Court is confident that "the public may see [that Defendants] [are] fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep [their] triers keenly alive to a sense of their responsibility and the importance of their functions."

I'm not sure whether this is right, given the Minnesota Supreme Court's rules, and at least the potential availability of a better-functioning closed-circuit feed to some other large room that would provide much the same access to interested members of the public and the media as they have traditionally gotten in nontelevised trials. Still, it seemed like an interesting decision that I thought was worth noting.

Thanks to theMedia Law Resource Center MediaLawDailyfor the pointer.

Continue reading here:
First, Sixth Amendments Require Allowing TV Coverage of Derek Chauvin Trial - Reason

Sharon Myers|The Dispatch

Davidson County is proposing a new law to regulate gatherings on public property on the heels of months of protest and counter-protest in uptown Lexington surrounding the Confederate memorial.

We have to have something in place, right now we dont have anything, said Davidson County Manager Casey Smith. It is not the intent to infringe with anyones First Amendment rights, but in the times we are living in we need a better way to deal with things like access to public property, signage, and flags.

On Nov. 10, the Davidson County Board of Commissioners will hold a public hearing to receive input on an ordinance to address assemblieson public property to define how and where people can assemble, as well as, what they are allowed to carry or display.

The first amendment of the U.S Constitution gives citizens the right to peaceably assemble, and to petition the government for a redress of grievances or prohibiting the free exercise thereof, or abridging thefreedomof speech, or of the press, or therightof the people.

Government officials cannot prohibit any public assembly on public property, but it can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met.

We cant infringe on anyones right to protest. This is a tool for our law officers; it will give them a law to be able to deal with enforcement. Right now we dont have an ordinance that allows them, for example, to tell anyone to remove a flag or sign from a government building or from putting flags on county property, said Smith.

The proposed ordinance follows months of protest and counter-protest focused on the Confederate monument in uptown Lexington, which was removed on Oct. 20. Two groups of protesters were located on county-owned property in front of the historical Davidson County Courthouse and at the square across the street.

Under the proposed ordinance, protestors or assemblies cannot obstruct, interfere or block people entering or exiting vehicles; public buildings; crossing the street or deny the use of any other public areas.

Also, assemblies shall not be conducted on any public roadway used primarily for vehicular traffic, nor interfere with the business of the county or state.

The proposed ordinance limits signs or flags to less than 36 inches and cannot use words that would incite violence. The staff or pole for any sign, flag or banner cannot be made of metal and must be continuously held by a protestor.

If the ordinance is passed it will be unlawful to hang, fasten, or attach banners, flags or electrical devices to any county property including buildings, handrails, fences, bridges, memorials, landscaping, and trees. It also would prohibit the placement of poles, posts, pins, or pegs in the ground on government property.

The ordinance also states that law enforcement is allowed to assign different groups a place to assemble in order to preserve the public peace and that members of a group are not allowed to enter the assigned area of another group. The priority of location would be based upon which group arrived first and is at the discretion of law enforcement.

Also, spectators are not allowed to physically interfere with individuals or groups who are protesting and will not speak fighting words or threats that would tend to provoke a reasonable person to a breach of the peace.

Law enforcement will still be allowed to issue a command to disperse if a threat to the public peace is determined. Officers are also allowed to establish barricades to preserve public peace and it would be unlawful for anyone to intentionally cross over a law enforcement line or barricade.

Under the proposed ordinance, it will be unlawful for anyone to camp or light a bonfire on any public property owned by the county, including public rights-of-way and sidewalks. The county retains the right to remove a temporary shelter, bedding or personal belongings deemed a public nuisance.

If the ordinance is approved, it will be unlawful for any person to use objects to obstruct a public road, sidewalk, right-of-way or any entrance or exit to private property or any other area open to the public. This also includes attaching themselves to another person, building, or vehicle.

The ordinance states anyone who fails or refuses to abide by or violates these rules shall be subject to penalties and arrest.

Smith said after the months of protest and counter-protest, government officials became aware of the impact that not having a set ordinance has had on the public peace. He said the ordinance isto bring a little bit of clarity about what is acceptable and what is not acceptable when protesting.

We need to have a tool for our law enforcement officers to have clear cut rules and regulations, Smith said. Given the world we live in, we need some regulationin case something like this ever happens again. We are not regulating the right to free speech or right to assemble, we are just making the rules realclear.

More here:
New county ordinance to regulate protest and public gatherings - Lexington Dispatch