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After weeks of tweeting misinformation about mail-in voting, on Tuesday decided to slap a small disclaimer on some of President Trumps posts on the subject. Get the facts about mail-in ballots, reads a link to a string of reputable reports about proxy voting, which is practiced in both Democratic and Republican states, and has not been proven to lead to widespread fraud, contrary to what the president has claimed repeatedly.

Trumps response was to threaten to cancel the First Amendment.

Trump, writing voluntarily on a corporations publishing platform, tweeted Tuesday night that the social media giant is interfering in the 2020 Presidential Election and completely stifling FREE SPEECH. After what we can only imagine was a sleepless night spent on the phone with top-flight constitutional scholars, Trump came up with the pERfEcT defense of free speech: Threatening to use the federal government to regulate or shut down social media outlets if they dont do what he wants.

Republicans feel that Social Media Platforms totally silence conservatives voices, the president wrote. We will strongly regulate, or close them down, before we can ever allow this to happen.

Twitter has now shown that everything we have been saying about them (and their other compatriots) is correct, Trump added Wednesday morning. Big action to follow!

Of course, Trump couldnt care less about FREE SPEECH. Adding a fact-check option to some of Trumps tweets is a form of exercising the right to free speech. (So would, for that matter, Twitter declining to help Trump get his message out to 80.3 million followers.) Trump moving to regulate Twitters ability to fact check him or, worse, to close them down over it would constitute a blatant infringement of the First Amendment that not even the most MAGA-friendly court in America could rationalize as constitutional.

Trump may well be making empty threats but those threats alone will probably suffice. Simply floating the idea of impropriety will get his followers riled up and put pressure on social media platforms to cow to his demands, or risk being perceived as biased. It has worked before. Republicans feeling like Twitter is silencing conservative voices, as Trump wrote on Wednesday, is largely the result of his own previous complaints and threats against the platform. Theres no actual substance to the grievances. Like his entire presidency, its a self-perpetuating carousel of bullshit. Every time it swings back around, it seems a little more legitimate because people remember hearing about it on the first pass, or the second, or the third.

Trump is trying to pull off the same con with his Twitter campaign to get Florida law enforcement (or Concast) to open up a Cold Case against MSNBC host Joe Scarborough. Since early this month, Trump has been tweeting incessantly about a debunked conspiracy theory that, when Scarborough was a member of the House of Representatives, he murdered one of his staffers, Lori Klausutis. In reality, Klausutis suffered from an undiagnosed heart condition, fell in the office, and hit her head on a desk.

Last week, Klausutis husband, Dr. Timothy J. Klausutis, wrote a letter asking Twitter CEO Jack Dorsey to remove the posts. The President of the United States has taken something that does not belong to him the memory of my dead wife and perverted it for perceived political gain, Klausutis wrote, The New York Times reported. Many agreed with Klausutis, and the letter reignited calls for the social media giant to hold the president to the same standards as the rest of its user base.

Twitter would be well within its rights to do so. The platforms terms of service prohibit targeted harassment and hateful conduct. Trump is clearly in violation of both, and if he is going to choose to post on Twitter, he is subjecting himself to the platforms discretion over how to enforce its rules. But Twitter has refused to take action throughout his presidency, and refused to do so again in response to Klausutis.

We are deeply sorry about the pain these statements, and the attention they are drawing, are causing the family, a Twitter representative told CNN. Weve been working to expand existing product features and policies so we can more effectively address things like this going forward, and we hope to have those changes in place shortly.

The same day, the fact-check option appeared on Trumps tweets about mail-in voting. Its a welcome change, but also a far less drastic step than deleting his posts about Klausutis, which continued Wednesday morning. Psycho Joe Scarborough is rattled, not only by his bad ratings but all of the things and facts that are coming out on the internet about opening a Cold Case, the president wrote. He knows what is happening!

In other words, the carousel is still spinning.

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Trump Threatens to Shred First Amendment to Defend Free Speech - Rolling Stone

In a recent decision from the Southern District of New York, Judge George B. Daniels held that the strong First Amendment interests in protecting free artistic expression warranted summary judgment that Activision Blizzards use of Humvee vehicle models in the blockbuster Call of Duty videogames was not a violation of the Lanham Act. Because the inclusion of Humvees represented genuine artistic expressionspecifically, the creation of a more realistic depiction of the armed forcesand was not in service of misappropriation or otherwise misleading as to the source of the game, the defendants were entitled to the dismissal of all of the plaintiffs claims.

Background

In AM General LLC v. Activision Blizzard, Inc. et al. (No. 17-cv-8644), Plaintiff AM General (AMG) had been the contract supplier of Humvees to the armed forces since the early 1980s, during which time they had seen ubiquitous use and deployment among U.S. military land forces. Since the 1990s, AMG had granted a few licenses to use the Humvee trademark in connection with products and services including at least some toys and at least four video games, although its primary business line remained the manufacture and sale of physical automobiles.

Defendant Activision Blizzard published the extremely popular Call of Duty videogame franchise, a series of military-styled first person shooters. In nine of these games, Humvees were depicted for various durations, at times requiring the player to interact with or ride in a Humvee, and with Humvees shown in promotional trailers and strategy guides. Following the 2016 release of Call of Duty: Modern Warfare Remastered, AMG brought suit in November of 2017 for trademark and trade dress infringement under the Lanham Act and various substantially related claims under the Lanham Act and parallel state laws.

The Case

At summary judgment, Activision Blizzard argued that the strong First Amendment interest in protecting free expression warranted dismissal of AMGs claims. The Court noted that there was a long line of precedent, beginning with Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), that weighed strongly in favor of protecting works of artistic expression against Lanham Act claims. (slip op. at 7). Rogers generally precluded the application of the Lanham Act to works of artistic expression where the use of the trademark has any artistic relevance to the underlying work whatsoeverso long as the artistically relevant use of the trademark did not explicitly mislead[] as to the source or the content of the work. (Id.)

Examining past cases implicating Rogers, the court held that a Lanham Act violation would not be supported against countervailing First Amendment concerns by the mere existence of a likelihood of confusion, but rather only in circumstances where the evidence for a likelihood of confusion was compelling, such as where undertaken for the purposes of misappropriation. The court further observed that the requirement that an artistic use of a mark have artistic relevance was not the same thing as being artistically required or obligatorythe use had to be in artistic good faith but there was no but for requirement that the use be indispensable.

The court found that Activision Blizzards interest in presenting military verisimilitude easily met the low bar for artistic relevance. The Court further found that, in view of the Polaroid factors [Polaroid v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961)], Activision Blizzards use of Humvees was not explicitly misleading. Despite some survey evidence showing potential confusion as to whether AMG had approved the use of Humvees in the game, there was ultimately little to suggest that Activision Blizzards use was of an appropriative rather than artistic character. In particular, the fact that AMG was a manufacturer of automobiles while Activision Blizzard produced videogames weighed heavily against any compelling finding of confusion. The Court was unmoved by AMGs argument that its licensing activities created an overlap in the market segments for Activision Blizzard and AMG, due to the sporadic and marginal nature of such licensing relative to AMGs primary business of making and selling automobiles. (slip op. at 14).

Summing up its analysis, the Court held that enhanc[ing] the games realism was a sufficient rationale to establish that the use of Humvees was an integral element of the games artistic expression under the Rogers line of cases. (slip op. at 19). That the art in question was commercially sold did not negate the protection afforded it under the First Amendment. Activision Blizzard was thus entitled to summary judgment against all of AMGs claims.

Takeaways from AMG v. Activision Blizzard

AMG v. Activision Blizzard is broadly helpful to both amateur and commercial producers of art who wish to include potentially trademarked material as part of a broader commitment to realism. Where a marks presence, even if not necessarily required, is so entwined with a realistic portrayal of artistic subject matter (as with Humvees and the military) that its use can be readily characterized as in good faith, AMG suggests that the use of the mark would generally be protected.

How far the holding of AMG extends, however, is not entirely clear with respect to marks for which licensing represents a more common and widespread business model than the sporadic and marginal business lines of the plaintiff in AMG. The AMG court put significant weight on the fact that there was no evidence of significant market overlap or direct competition between the plaintiffs automobiles and Activision Blizzards games, and thus no compelling case for consumer confusion in the context of such wildly different goods. The issue would, presumably, be more difficult to resolve in those instances in which a plaintiffs mark had a longer or more substantial history of being licensed in the same field in which an accused infringer sought to establish a protected use of that mark.

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First Amendment May Protect Use of Trademarks As Artistic Expression - JD Supra

Jack Greiner Published 9:25 a.m. ET May 27, 2020 | Updated 9:25 a.m. ET May 27, 2020

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The Washington League for Increased Transparency and Ethics (Washlite), a public interest group in Washington state is suing Fox News under the Washington Consumer Protection Act for its alleged campaign of deception and omission regarding the danger of the international proliferation of the novel Coronavirus.

According to the complaint, Fox knowingly disseminated false, erroneous, and incomplete information . . . , [which] created an ongoing uncertainty amongst some members of the public as to the dangers of the virus and the rapidity with which the virus spreads.

Not surprisingly, Fox filed a motion to dismiss, arguing that the First Amendment prohibits the claim. The response from Washlite is interesting.

Rather than arguing that there is some particular exception here that would allow a court to find Fox liable despite the First Amendment, Washlite swings for the fences and contends that the First Amendment doesnt even apply to a cable television programmer/content provider . . . using a system owned and operated by a cable operator. It also contends that cable television does not stand on equal footing as print media or broadcast television.

That seems like a pretty strong and misguided contention. The Supreme Court has applied the First Amendment to video games, so it certainly has not confined freedom of speech to just traditional outlets.

To support its position, Washlite cited a Supreme Court case where three Justices wrote that cable programmers using a private cable system owned by another have no independent constitutional right to speak through the cable medium. Based on that limited ruling, Washlite contends a cable programmer has no First Amendment rights. That is, I think, a bit of an overstatement.

What the Justices were saying in that case was more limited. The ruling merely stands for the notion that [l]ike a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted. All this means is that a programmer cant assert the First Amendment to force someone to carry the programming. But thats a different issue than whether a cable programmer, who has found an outlet, can be punished for the programming. And thats the question in this case.

Its understandable that people may be frustrated with anyone who spreads misinformation about a deadly pandemic. But thats the thing about the First Amendment. It protects the right of a speaker even an ignorant and misinformed speaker to say their piece.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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Strictly Legal: Is Fox News entitled to First Amendment protection? - The Cincinnati Enquirer

Facebook wont ever solve its content moderation problems to the satisfaction of all. Not because its incapable of doing so, but because free speech is the hottest of hot buttons.

People want Facebook to police itself and they dont want Facebook acting as a censor.

Its an awkward dynamic that was on display at Facebooks annual (virtual, of course) shareholders meeting on Wednesday.

During the Q&A portion of the meeting, one shareholder asked, Why do you allow hate speech on your platform? Seems like you should outlaw this. A few minutes later, another shareholder questioned why Facebook is acting as an arbiter of free speech. I dont think you need to be a watchdog censorship is not your job.

Thats the dilemma in a nutshell. Why do you take down so much content in some cases and why arent you taking down more? said Mark Zuckerberg. People across society do not agree on the right way to address this.

Zuckerberg said Facebook takes a principled stand for free speech as the default position, with policies in place to take down content that could lead to imminent violence or physical harm.

Were certainly not perfect at it and we make operational mistakes in terms of how we enforce things, Zuckerberg said. Its a constant evolution.

But not, apparently, when it comes to political speech. Facebook is sticking to its guns on allowing politicians to include false information in advertising on the platform.

A stockholder proposal calling for an independent report on the implications of exempting political advertising and posts from fact-checking was rejected. (So were calls for the distribution of equal voting rights for all shareholders and the appointment of an independent board chair. Shareholders push similar resolutions every year with no luck.)

We do not believe a private company like Facebook should be in the business of vetting what politicians say about each other or be the arbiter of truth when it comes to open democratic debate, said Nick Clegg, Facebooks head of global policy and communications, and a former deputy prime minister of the United Kingdom.

There are some limits. Politicians cant disseminate hate speech or spread deliberate misinformation that leads to voter suppression.

Its not a free-for-all, Clegg said. But, in general, people should be able to hear what politicians say to make up their own minds.

Its a stance that rubs some shareholders the wrong way. What Facebook considers a standard others see as a double standard.

Facebook, for example, took swift action on coronavirus-related misinformation, because its an issue that Zuckerberg personally prioritized. But other content, including hate speech, remains on the platform, said Rashad Robinson, president of the nonprofit Color of Change. Robinson was presenting a resolution calling for the board to oversee a report focused on civil and human rights across Facebook.

The mere presence of policies on the books does not itself lead to effective practices across an organization, Robinson said.

(His resolution was rejected by the board.)

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Facebook Keeps Touting The First Amendment To Justify Its Content Policies - AdExchanger

GENESEO Livingston County Sheriff Thomas J. Dougherty confirmed Tuesday his deputies wont disturb gatherings of more than 10 people if theyre gathered for the purpose of practicing their religion. Such a gathering would be in violation of an executive order from Gov. Andrew Cuomo and punishable by an up to $1,000 fine.

I did put out a written directive to our patrol division members stating that if we are called to investigate a PAUSE violation involving people gathering for the purpose of a religious service, to do a drive by only, document in a report and forward to the chief deputy of our police services for further review, said Dougherty in an email. We will not be disrupting these services.

The contents of the directive are in line with the actions the Sheriffs Office has taken in response to previous complaints alleging violations of Cuomos New York on PAUSE order in Livingston County, Dougherty said.

We have not made one arrest on a PAUSE-related complaint but instead investigated and, if founded, educated only, he explained.

Dougherty said his decision to issue the directive was very difficult, especially given the intent of Cuomos order to minimize loss of life during a public health crisis. But with businesses starting to resume operations under the first phase of the governors reopening plan, and more slated to begin opening in Phase II, it ultimately came down to a Constitutional issue, he said.

The First Amendment is very clear and therefore we will not interfere with these religious gatherings, Dougherty said. Instead, we will do the drive by, document and review each case without disruption.

Dougherty declined to provide a copy of the written directive he sent to deputies.

New Yorks public gathering restrictions, which have been in place in some form since mid-March, started to slacken earlier this month in certain areas of the state that met criteria laid out in Cuomos reopening plan, which he dubbed New York Forward.

The plan established four different phases during which certain types of business are allowed to start reopening in the regions of the state that achieve public health metrics, such as a sufficiently low coronavirus infection rate and the presence of robust contact-tracing capacity.

The Finger Lakes Region, which includes Livingston County, was among the regions allowed to begin Phase I reopening May 15. The phase allowed businesses in the construction, agriculture and manufacturing industries, among others, to resume operations, provided they observe social distancing and other public health measures meant to slow the spread of the new coronavirus.

To read the New York Forward reopening guidelines, click here.

But nowhere in Cuomos initial reopening plan was there mention of when places of worship would be allowed to resume normal religious observances. In statements May 18, the states budget director, Robert Mujica, said churches would be allowed to begin reopening in the fourth and final phase of the states reopening plan.

That drew criticism from faith leaders, 300 of whom signed an open letter May 19 calling on Cuomo to prioritize the safe re-opening of churches for in-person worship services.

In a statement announcing the letter, Jason McGuire, executive director for New Yorkers for Constitutional Freedoms, a conservative values advocacy and lobbying group, argued churches should be allowed to begin reopening earlier, during Phase II.

If it is safe to re-open retail establishments in a given region, it is safe to re-open churches in that region as well, said McGuire, a Lima resident.

Local faith leaders who signed the open letter include Rev. Paul Palmer of the Oakland Wesleyan Church in Nunda, Pastor Donald Ray of the Pleasant Valley Baptist Church in Geneseo, and Pastor Matthew White of Village Baptist Church in Mount Morris.

To read the letter, click here.

In statements May 20, Cuomo addressed the issue, saying religious gatherings of up to 10 people were OK, as long as participants observed social distancing guidelines and wore face masks. The governor followed those statements with a May 21 executive order, which permitted gatherings of ten or fewer individuals for any religious service or ceremony.

To read the executive order, click here.

Cuomo also encouraged places of worship to consider drive-in and parking lot services for religious ceremonies.

As a former altar boy, I get it. I think even at this time of stress and when people are so anxious and so confused, I think those religious ceremonies can be very comforting, Cuomo said. But we need to find out how to do it, and do it safely, and do it smartly. The last thing we want to do is have a religious ceremony that winds up having more people infected.

In a statement posted to its website, NYCF said Cuomos 10 or fewer people concession on religious services doesnt go far enough, calling it an attempt to appease faith communities by making a minor gesture in our direction that falls far short of what is needed.

Added the group: A continued ban on worship services of more than 10 people effectively prevents all but the smallest churches from holding in-person services. There is no public health reason to bar churches in areas that have not been significantly affected by the pandemic from holding in-person services, provided that health and safety precautions are taken.

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'The First Amendment is very clear': Sheriff's Office won't break up religious services for 'NY on PAUSE' violations - The Livingston County News