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Last summer, a Florida federal court reached some unusual conclusions in a lawsuit filed by SEO company e-ventures, which felt Google had overstepped its bounds in delisting a lot of its links. Google defended itself, citing both Section 230 and the First Amendment. The court disagreed with both arguments.

As to Section 230, the court found that Google's delisting efforts weren't in "good faith." The reason cited was e-ventures' claim that the delisting was in "bad faith." So much for this seldom-used aspect of Section 230: the "Good Samaritan" clause which states no third-party company can be found liable for actions it takes to remove content it finds questionable. And so much for "viewed in the light most favorable to the non-moving party." Apparently, Google's long history of spam-fighting efforts is nothing compared to an SEO wrangler's pained assertions.

The court also said Google had no First Amendment right to handle its search rankings however it saw fit, which is more than a little problematic. While it admitted Google's search rankings were protected speech, its statements about how it handled search engines weren't. And, for some reason, the court felt that Google's ads undermined its First Amendment protections because its desire to turn a profit somehow nullified its "editorial judgment."

It was a strange decision and one that suggested this court might be considering getting into the business of telling service providers how to run their businesses. It also suggested this court believed the more successful the business was, the fewer rights and protections it had. These dubious conclusions prevented Google from having the case dismissed.

Fortunately, this wasn't the final decision. As Eric Goldman points out, last year's denial only delayed the inevitable. After a few more rounds of arguments and legal paperwork, Google has prevailed. But there's not much to celebrate in this decision as the court has (again) decided to route around Google's Section 230 "Good Samaritan" defense.

Regarding 230(c)(2), the court says spam can qualify as harassing or objectionable content (cite to e360insight with a but-see to the Song Fi case). Still, the court says e-ventures brought forward enough circumstantial evidence about Googles motivations to send the case to a trial. By making it so Google cant even win on summary judgment, rulings like this just reinforce how Section 230(c)(2) is a useless safe harbor.

Had it ended there, Google would be still be facing e-ventures' claims. But it didn't. The court takes another look at Google's First Amendment claims and finds that the search engine provider does actually have the right to remove "spammy" links. Beyond that, it finds Google even has the First Amendment right to remove competitors' content. From the order [PDF]:

[T]he First Amendment protects as speech the results produced by an Internet search engine. Zhang v. Baidu.com, Inc., 10 F. Supp. 3d 433, 435 (S.D.N.Y. 2014). A search engine is akin to a publisher, whose judgments about what to publish and what not to publish are absolutely protected by the First Amendment. See Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 258 (1974) (The choice of material to go into a newspaper . . .whether fair or unfairconstitute[s] the exercise of editorial control and judgment that the First Amendment protects.) The presumption that editorial judgments, no matter the motive, are protected expression is too high a bar for e-ventures to overcome.

And the court walks back its earlier conclusion -- the one that seemed to find profit-motivated "editorial judgment" to be unworthy of First Amendment protections.

Googles actions in formulating rankings for its search engine and in determining whether certain websites are contrary to Googles guidelines and thereby subject to removal are the same as decisions by a newspaper editor regarding which content to publish, which article belongs on the front page, and which article is unworthy of publication. The First Amendment protects these decisions, whether they are fair or unfair, or motivated by profit or altruism.

The case is now dismissed with prejudice which bars e-ventures from complaining about Google's delisting efforts in federal court. e-ventures has gone this far already in hopes of seeing its terms-violating content reinstated, so it will likely attempt to appeal this decision. But it really shouldn't. It's unlikely another set of judges will help it clear the First Amendment hurdle. Not only that, but this area of law should be well-settled by now, as Goldman points out:

Of course Google can de-index sites it thinks are spam. Its hard to believe were still litigating that issue in 2017; these issues were explored in suits like SearchKing and KinderStart from over a decade ago.

The plaintiff was given a long leash by the court, which should have tossed last year. Even with the extra time and the court doings its Section 230 circumvention work for it, e-ventures still couldn't prevail.

Read more:
Court Says Google Has A First Amendment Right To Delist Competitor's 'Spammy' Content - Techdirt

President Donald Trump used his press conference about his new labor nominee to launch an attack on the First Amendment by blaming the free press for reporting on his campaigns Russia connections.

We need unity, Trump said just minutes before he began launching missiles at the First Amendment from the bully pulpit in an attempt to discredit the source of his Russian connections.

In the East Room of the White House, Trump called for unity and then devolved into a campaign type speech during a press conference that needed to stay on message if it were to work as a pivot. Trump left Alex Acosta behind as he stumbled his way through trying to silence the press.

Many of our nations reporters will not tell you the truth, Trump said. The press is out of control. The level of dishonesty is out of control.

Trump accused reporters of speaking not for the people, but for special interests. The press has become so dishonest.

Trump claimed that Reince Priebus has to put out fake fires.

Asked about Flynn, Trump said he asked for Flynns resignation, but Flynn did nothing wrong, I dont think he did anything wrong. If anything, he did something right.

What went wrong with Flynn wasnt Flynn talking to Russia, it was the medias reporting on Flynns activities, Trump claimed.

Trump claimed the Russia stories were fake news. Later in questioning, Trump tried to explain that the leaks were real but the news is fake because the news is fake.

This was followed up later when Trump claimed that the tone was such hatred. He repeated this again, the tone is such hatred. Fox and Friends are very honorable people But they have the most honest morning show. The tone, the hatred, I mean.

Trump complained about the hatred and venom from almost exclusive anti-Trump people. Trump said, When I go to rallies they start screaming about CNN.

Trump ranted about how the press was publishing classified information, which he said was illegal.

I called, as you know, Mexico All of a sudden, its out there for the world to see. Its classified, Trump claimed, as he tried to build his case for silencing the leaks that are revealing his Russian connections.

Some of the information Trump was talking about was not actually classified, but that isnt even the point since Trump gleefully used leaks that came from a hostile, aggressive foreign country against Hillary Clinton. Trump claimed that was okay because it wasnt classified. He justified Wikileaks saying they didnt publish classified information.

That is also inaccurate.

Trump would not answer the question about whether or not his campaign was in contact with Russia during the campaign. He pivoted, ranted, and moved the goal posts but would not say definitively that they had not.

Trump said he has no loans in Russia and no deals in Russia. He asked if anyone thought Clinton would be tougher on Russia than him. (The answer to that is everyone who is being honest thinks that including most importantly Putin.)

Then Trump pivoted to whining about how no one reported on Hillary Clinton allegedly cheating on debates by a heads up about questions in advance (a thing that Trump also did, according to Megyn Kellys book).

CNNs Jim Acosta pointed out that when Trump calls news Fake news, he is attacking the First Amendment and undermining the free press.

Trump got lost in weeds of trying to explain that hes there, and he wants an honest press. He couldnt actually point out anything inaccurate. Trump kept falling back on the idea that the people dont believe the press anymore, which of course, has been a result of his campaign against the press.

Kelly ODonnell pointed out that Trump actually has good relationships with some journalists, What is hard for public to see @POTUS criticizes media broadly but has some good relationships with journalists he knows.

Trumps press conference was all about how to silence and control the free press because he has no other response to reality.

What Trump doesnt realize is that he has no control over the First Amendment.

Trump attacking the press is meant to make the press the issue, instead of his contacts with Russia. Trump is trying to make the public doubt the reports about his activities with Russia by smearing the sources.

Trump refused to answer what he was going to do about the Russian spy ship off of the coast of Connecticut, claiming he doesnt announce actions in advance of doing them.

Trump doesnt think Putin is asserting himself with that ship. If Trump believes that, Vice President Pence should step in immediately.

Trump attacks the First Amendment at press conference, Trump first amendment, Trump press conference

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Trump Attacks the First Amendment to Discredit The Facts About His Russian Connections - PoliticusUSA

As surely as the robins of spring and the swallows of Capistrano, the nay-saying critics who regularly cry racism, xenophobia or Islamophobia, to name a few of their favorite charges, come out to condemn the actions and the motivations of those they disagree with. The latest of course, is the so-called Muslim ban which temporarily suspends travelers to the U.S. from seven predominately Muslim countries.

Never mind that the 85 percent of Muslims who don't live in those countries are not affected, including those in Saudi Arabia where, according to some sources, it's because of Trump's business connections there. As these seven countries were also singled out by President Obama we should logically conclude that his exemption of Saudi Arabia was also based on his personal interests, business or otherwise.

As to the claim that this executive order is unconstitutional, I have yet to see an explanation of just which part of our constitution is being violated. Do the critics really believe that our First Amendment is universal to the whole world in its application, rather than, as spelled out in the constitution's preamble, a contract among the citizens of the United States for themselves and their posterity? Only those arrogant enough to believe that the United States should rule and govern the whole world should try to bestow our constitutional rights on that world.

See the rest here:
Letter to the editor: First Amendment only applies to Americans - The Bakersfield Californian

Whitaker will be honored next month with a prestigious award for his contribution as a journalist to the protection of First Amendment freedoms

CBS News

Bill Whitaker, the veteran CBS newsman and 60 Minutes correspondent, will be honored with the Leonard Zeidenberg First Amendment Award, the Radio Television Digital News Foundation announced. Whitaker will receive the award at the RTDNFs annual First Amendment Awards dinner on March 14 in Washington, DC.

RTDNF presents this award annually to a radio or television journalist or news executive who has made a major contribution to the protection of First Amendment freedoms. It is named for the late Broadcasting & Cable senior correspondent, Leonard Zeidenberg.

Whitaker joins past CBS News Ziedenberg winners Walter Cronkite, Ed Bradley, Mike Wallace, Bob Schieffer and Cami McCormick, and other notable journalists who have won the award, including Diane Sawyer, Lester Holt and Judy Woodruff.

Whitaker has been wide-ranging and prolific in his 60 Minutes reporting on domestic and international stories since joining the broadcast in 2014. He recently chronicled the vetting process for Syrian refugees coming to the U.S. He has reported from Asia, Africa, Europe, Mexico and the Middle East for the news magazine, including a timely interview with Burmese pro-democracy leader Aung San Suu Kyi and an Emmy-winning story on the biggest data leak in Swiss banking history. Domestically, his stories have provided keen insights into the hot-button issue of race and policing in America, the death penalty and Americas heroin epidemic. He has chronicled the epic battle to capture and hold Mexicos infamous drug lord Joaquin El Chapo Guzman, gaining rare access to investigations on both sides of the border.

During his more than 30 years with CBS News, Whitaker has covered three presidential campaigns; the O.J. Simpson case; overseas wars and events; and interviewed several national figures, including First Lady Michelle Obama.

Whitaker began his career at CBS News in 1984 as a reporter based in Atlanta, where he covered the 1988 presidential campaign of Michael Dukakis and received an Emmy for his reports on the collapse of Jim and Tammy Bakkers television ministry. He then spent three years as a CBS News Tokyo correspondent, developing an impressive portfolio as a foreign correspondent. He covered stories throughout Asia, including the pro-democracy uprising in Tiananmen Square.

In 1992, Whitaker was sent to Los Angeles, where he reported for over 20 years on the CBS Evening News and other CBS News broadcasts, including Sunday Morning.

2017 CBS Interactive Inc. All Rights Reserved.

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60 Minutes' Bill Whitaker to receive the RTDNF First Amendment Award - CBS News

From todays 8th Circuit decision in Gerlich v. Leath:

Iowa State University (ISU) grants student organizations permission to use its trademarks if certain conditions are met. The ISU student chapter of the National Organization for the Reform of Marijuana Laws (NORML ISU) had several of its trademark licensing requests denied because its designs included a cannabis leaf.

ISU [has] approximately 800 officially recognized student organizations. Student groups often create merchandise that contains the groups name and ISU insignia to generate awareness about the groups cause or attract members. Student groups may use ISUs trademarks on merchandise if ISUs Trademark Licensing Office (Trademark Office) determines that the use complies with ISUs Guidelines for University Trademark Use by Student and Campus Organizations (Trademark Guidelines). ISUs trademarks include word marks like ISU and Iowa State, as well as logos, such as the schools mascot (Cy the Cardinal).

NORML ISU at first got permission from the Trademark Office to use a T-shirt that had NORML ISU on the front with the O represented by Cy the Cardinal, with Freedom is NORML at ISU and a cannabis leaf depicted on the back. But after a Des Moines Register article mentioned the T-shirt, a state legislator and someone at the Governors Office of Drug Control Policy heard about this and objected, and the University barred NORML ISU from printing further T-shirts with the design. After that, the Universitys Trademark Guidelines were changed to ban designs that suggest promotion of the below listed items dangerous, illegal or unhealthy products, actions or behaviors; [or] drugs and drug paraphernalia that are illegal or unhealthful.

The 8th Circuit held that the universitys rejection of NORML ISUs designs was unconstitutional:

If a state university creates a limited public forum for speech, it may not discriminate against speech on the basis of its viewpoint. [Rosenberger v. Rector (1995).] A university establish[es] limited public forums by opening property limited to use by certain groups or dedicated solely to the discussion of certain subjects. A universitys student activity fund is an example of a limited public forum. ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions.

The defendants rejection of NORML ISUs designs discriminated against that group on the basis of the groups viewpoint. The state engages in viewpoint discrimination when the rationale for its regulation of speech is the specific motivating ideology or the opinion or perspective of the speaker. The defendants discriminatory motive is evidenced by the unique scrutiny defendants imposed on NORML ISU after the [controversy arose].

Defendants argue that the political pushback that they received regarding T- Shirt Design #1 did not play a role in their decision making. This argument ignores significant evidence to the contrary. For example, [ISU President Steven] Leath testified that anytime someone from the governors staff calls complaining, yeah, Im going to pay attention, absolutely. Leath also testified that the reason the Trademark Policy was on the presidents cabinet meeting agenda which took place five days after the Des Moines Register article was published was because we were getting pushback. Leath went on to testify that [i]f nobodyd ever said anything, we didnt know about it, it didnt appear in The Register, wed probably never raised the issue.

The record is also replete with statements from defendants regarding their political motives. Leath explained at his deposition that because T-Shirt Design #1 had some political public relations implications, someone should have run it up the chain because there are some issues that are clearly going to cause controversy and its better to manage them on the front end. He also testified that in a state as conservative as Iowa on many issues, it was going to be a problem. [Senior VP for Student Affairs Thomas] Hill stated in an interview with the Ames Tribune that the reason student groups associated with political parties could use ISUs logos, but groups like NORML ISU may not, is because [w]e encourage students to be involved in their duties as a citizen. Such a statement implies that Hill believed that the members of NORML ISU were not undertaking their duties as citizens by advocating for a change in the law.

[ISU Trademark Office Director Leesha] Zimmerman stated in an email to NORML ISUs faculty advisor in May 2013 that the groups design that included the statement Legalize Marijuana was rejected because Legalize Marijuana is a call to action but it does not suggest any specific way your organization is making that happen. Zimmerman went on to say that the groups design applications appear to have a certain shock or attention grabbing sensationalism. Zimmerman further stated that her interpretation is that these do not further your cause as an advocate for change in the laws or trying to change the publics perception of marijuana. There is no evidence in the record of Zimmerman offering advocacy advice to any other student group.

The university also argued that, even if it did engage in viewpoint discrimination, this was permissible because the administration of the trademark licensing regime should be considered government speech. But the court disagreed:

When the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Walker v. Tex. Div., Sons of Confederate Veterans, Inc. (2015).

The government speech doctrine does not apply if a government entity has created a limited public forum for speech. As noted above, ISU created a limited public forum when it made its trademarks available for student organizations to use if they abided by certain conditions. The administration of its trademark licensing regime therefore did not constitute government speech.

Even if the trademark licensing regime here did not amount to a limited public forum, however, the government speech doctrine still does not apply on this record. The Walker decision considered three factors when determining whether certain speech is government speech. First, it determined whether the government has long used the particular medium at issue to speak. Second, it analyzed whether the medium is often closely identified in the public mind with the state. Third, it determined whether the state maintains direct control over the messages conveyed through the medium.

The first two factors do not apply to the speech at issue in this case. ISU allows approximately 800 student organizations to use its trademarks. Defendants repeatedly stated in their testimony and other record evidence that the university did not intend to communicate any message to the public by licensing ISU trademarks to student groups. Indeed, the university licenses its trademarks to groups that have opposite viewpoints from one another like the Iowa State Democrats and the ISU College Republicans. Even if ISUs trademark licensing regime were to satisfy the final factor, the factors taken together would not support the conclusion that the speech at issue in this case is government speech because ISU does not use its trademark licensing regime to speak to the public.

My students Ian Daily, Eric Sefton and Sydney Sherman and I filed an amicus brief on behalf of the Student Press Law Center arguing in favor of this result.

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Iowa State violated First Amendment by barring pro-marijuana student group from printing T-shirts with ISU logo ... - Washington Post