This nonsense is somehow still going. To catch you up if you’re not familiar with this story, the Ravinia Festival Association operates the Ravinia Festival venue in the north suburbs of Chicago. When a small brewery opened its doors in Highland Park, calling itself Ravinia Brewing Company, the RFA objected to its name and convinced the brewery to enter into an agreement whereby the RFA would not object to the name or sue for trademark infringement in exchange for all kinds of agreed upon restrictions on the brewery. These included restrictions on the percentage of real estate on packaging and marketing materials using the term “Ravinia,” not organizing musical concerts, and so on.

Now, this might all sound fairly reasonable if you’re not from the area, as I am. But if you are from the Chicagoland area, you will recognize two problems with all of this. First, the term “Ravinia” comes from a formerly incorporated municipality that used to exist on the grounds where the RFA operates. It was the name of a neighborhood, not unlike “Wrigleyville” near Wrigley Field, thereby making it a geographic marker. Geographic markers have historically enjoyed very limited trademark protections, if any at all. The reality is that this trademark probably never should have been granted in the first place. Add to that the simple fact that the area also has other businesses that use the “Ravinia” name, some of which include businesses that serve beer and food, all without objection from the RFA. Despite all of the above, the RFA last year claimed that Ravinia Brewing had violated its agreement and sued for trademark infringement.

At present, this lawsuit is still going. The RFA recently amended its complaint, noting that Ravinia Brewing had transferred its own trademarks for its business name to a company setup in Delaware in order to license the marks back to the local business.

The updated complaint in the federal lawsuit between the music festival and the microbrewery accuses the founders of the brewing company of starting their business with “the express purposes of taking advantage of the name recognition and good will of Ravinia [Festival Association].”

In addition to the Illinois-registered LLCs of Ravinia Brewing Company and Ravinia Brewing Company Chicago, the 11-count amended complaint adds as a defendant Ravinia Brewing IP LLC, a Delaware-based entity incorporated in 2016. According to a joint status report filed earlier this month, attorneys for the music festival only recently learned that the brewing company had assigned trademark rights to the Delaware affiliate.

So that’s the reason for the amended complaint, but most of the facts of the case remain the same. The trademark in question is a geographic marker and the RFA has not policed its mark equitably with respect to other businesses in the area. There is still a great deal of complaining in the suit over font sizes, musical “concerts” put on by the brewery, social media “advertising,” and a beer with a musical-themed brand. There’s a lot of scare quotes in that sentence. Here’s why:

1. The “concerts” put on by the brewery are largely a person with a guitar playing some songs in the bar. These are nothing like the massive concerts put on at Ravinia Festival.
2. The font size issue occurred when there was a change in size and shape of the beer can and the brewery corrected the issue as soon as it was brought to their attention.
3. The new music themed beer was called “Key Notes” and featured a person playing a piano on the can. That both isn’t enough to make this trademark infringement, nor is the beer even sold any longer.
4. The social media “advertising” claim stems from the wife of the owner of the brewery, on her own social media page, posting a picture drinking one of the brewery’s beers while at a concert at Ravinia Festival.

And, again, this is all over a geographic marker trademark that shouldn’t have been granted in the first place. And, in the brewery’s response to the lawsuit, potentially shouldn’t have been granted for other reasons as well.

The brewery contended that the association’s 2011 trademark for exclusive rights to use the “Ravinia” name for “Restaurant Services; Catering Services; Offering Banquet Facilities” was obtained fraudulently, noting that the festival’s finance director signed a sworn declaration that no one else was using the name for restaurants and food — despite the existence of local restaurants like the Ravinia Green Country Club and the Ravinia BBQ and Grill.

The brewery’s attorney, Shelley Smith, said a jury could reasonably determine that a senior Ravinia Festival executive, like its then finance director, could not credibly claim that she was unaware of country club or BBQ joint.

“Thus, when Ravinia Festival filed its trademark application, Ravinia BBQ and Grill had been using the mark ‘Ravinia’ for twenty-five years and Ravinia Green Country Club had been using the mark for forty-three years, all without interference by Ravinia Festival,” Smith said. “It is under these circumstances that Ravinia Festival told the PTO that no one else had the ‘right to use the mark in commerce’ in connection with restaurant services.”

Whether that’s true or not ultimately shouldn’t really matter. The fact is that “Ravinia” is a geographic marker, understood not to be a source of a good or service, but as a reference to a neighborhood. On top of that, the RFA has clearly not policed its trademark against other uses of the term, and is instead singling out Ravinia Brewing Company for this sort of action.

Why the RFA wants to continue with its bullying via this lawsuit is beyond me. It can’t possibly be worth whatever it is paying its lawyers, as there is clearly no threat from a small brewery with a couple of brick and mortar locations.

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.

In this week’s round-up of the latest news in online speech, content moderation and internet regulation, Mike and Ben cover:

• EU Explores Whether Telegram Falls Under Strict New Content Law (Bloomberg)
• Too Small to Police, Too Big to Ignore: Telegram Is the App Dividing Europe (Bloomberg) 
• NIST Reports First Results From Age Estimation Software Evaluation (NIST) 
• Supersharers of fake news on Twitter (Science) 
• Digital town square? Nextdoor’s offline contexts and online discourse (JQD:DM) 
• The first social media babies are adults now. Some are pushing for laws to protect kids from their parents’ oversharing (CNN) 
• TikTok offered an extraordinary deal. The U.S. government took a pass. (Washington Post) 
• Q&A: Ireland’s Digital Services Coordinator On 100 Days of the DSA (Tech Policy Press)

This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.

In response to a number of copyright lawsuits about AI training datasets, we are starting to see efforts to build ‘non-infringing’ collections of media for training AI. While I continue to believe that most AI training is covered by fair use in the US and therefore inherently ‘non-infringing’, I think these efforts to build ‘safe’ or ‘clean’ or whatever other word one might use data sets are quite interesting. One reason they are interesting is that they can help illustrate why trying to build such a data set at scale is such a challenge.

That’s why I was excited to read about Source.Plus (via a post from Open Future). Source.Plus is a tool from Spawning that purports to aggregate over 37 million “public domain and CC0 images integrated from dozens of libraries and museums.” That’s a lot less than are used to train current generative models, but still a lot of images that could be used for all sorts of useful things.

However, it didn’t take too much poking around on the site to find an illustration of why accurately aggregating nominally openly licensed images at scale can be such a challenge.

The site has plenty of OpenGLAM images that are clearly old enough to be in the public domain. It also has a number of newer images (like photographs) that are said to be licensed under CC0. Curious, I clicked on the first photograph I found on the Source.Plus home page:

According to the image page on Source.Plus, the image was from Wikimedia Commons and licensed under a CC0 public domain dedication. It listed the creator as Pixabay and the uploader (to Wikimedia) as Philipslearning.

Clicking through to the wikimedia page reveals that the original source for the image was Pixabay, and that it was uploaded on March 9, 2023 by Philipslearning (an account that appears to no longer exist, for whatever that is worth). The file metadata says that the image itself was taken on May 18, 2016.

Clicking through to the Pixabay page for the image reveals that the image is available under the Pixabay Content License. That license is fairly permissive, but does state:

• You cannot sell or distribute Content (either in digital or physical form) on a Standalone basis. Standalone means where no creative effort has been applied to the Content and it remains in substantially the same form as it exists on our website.
• If Content contains any recognisable trademarks, logos or brands, you cannot use that Content for commercial purposes in relation to goods and services. In particular, you cannot print that Content on merchandise or other physical products for sale.
• You cannot use Content in any immoral or illegal way, especially Content which features recognisable people.
• You cannot use Content in a misleading or deceptive way.
• You cannot use any of the Content as part of a trade-mark, design-mark, trade-name, business name or service mark.

Which is to say, not CC0.

However, further investigation into the Pixabay Wikipedia page suggests that images uploaded to Pixabay before January 9, 2019 are actually released under CC0. Section 4 of the Pixabay terms confirms that. The additional information on the image’s Pixabay page confirms that it was uploaded on May 17, 2016 (which matches the metadata added by the unknown Philipslearning on the image’s wikimedia page).

All of which means that this image is, in all likelihood, available under a CC0 public domain dedication. Which is great! Everything was right!

At the same time, the accuracy of that status feels a bit fragile. This fragility works in the context of wikipedia, or if you are looking for a handful of openly-licensed images. Is it likely to hold up at training set scale across tens of millions of images? Maybe? What does it mean to be ‘good enough’ in this case? If trainers do require permission from rightsholders to train, and one relied on Source.Plus/wikimedia for the CC0 status of a work, and that status turned out to be incorrect, should the fact that they thought they were using a CC0 image be relevant to their liability?

Michael Weingberg is the Executive Director of NYU’s Engelberg Center for Innovation Law and Policy. This post is republished from his blog under its CC BY-SA 4.0 license. Hero Image: Interieur van de Bodleian Library te Oxford

I don’t know why I’m drawn to doomed litigation but there’s no denying this impulse.

I know what the plaintiff wants to achieve. That much is made clear by Justin Rodrich’s reporting on the lawsuit for the Daily Beast. But I don’t know how he (or any other pronoun! — it’s filed as “Doe”) expects this to stop a rogue state from trying to kill them, much less put $5 million in his pockets.

Nonetheless, here we are:

An FBI informant who leaked sensitive government secrets that reportedly then led to a deadly U.S. drone strike claims Iran’s fearsome security apparatus has targeted him for assassination over the perceived betrayal, forcing him underground, in an undisclosed location, following a botched kidnapping attempt.

In a heavily anonymized federal lawsuit obtained by The Daily Beast, “John Doe” says Iranian agents torched his car, broke into his home, and threatened his relatives after learning he was working with the American government. He now lives “in constant fear” of being killed by Iranian agents who have carried out dozens of hits and hundreds of abductions in various countries “with impunity,” according to his complaint.

Because Doe is a marked man, he went into exile in a nearby nation where he “must now avoid any public interaction, in order to remain safe,” the complaint states.

Unlike a lot of other fatally flawed (perhaps a poor choice of words in this case) litigation I’ve covered, Doe has a legitimate beef: a foreign nation is trying to kill him on, perhaps on his own soil — soil, it must be noted, that does not belong to the nation of Iran.

As legitimate claims go, demanding to be compensated for living in constant fear of your own safety is a pretty good one.

But the beef aside, how does the plaintiff expect this to actually go? For one thing, the federal court must agree that Washington, DC is the proper venue to hear this case. It may decide that it is, but in doing so, may provide a few hints for Doe’s assassins as to their general location.

The plaintiff has also secured legal representation. If you’re a state-sponsored hacker, that’s where you’re going first if you’re trying to discover the location of a person you want to kill.

And, since Iran has allegedly already engaged in intimidation, attempted kidnapping, and other threats on the informant’s life abroad, it’s unlikely the country is going to suddenly develop a healthy respect for US civil litigation procedures and respond to this lawsuit in a timely fashion… or at all, actually.

Iran has already broken the gentlemen’s agreement over assassination in foreign countries that you’re not actually at war with. Given that, the threat of default judgment isn’t actually a threat. It’s just one more thing you can file in your “IDGAF” drawer.

Even if the Iranian government does respond to this lawsuit, one would expect the invocation of sovereign immunity. One would also hope that a US Court would refuse to rule that sovereign immunity covers extrajudicial assassinations by countries not currently engaged in declared wars on said target and said target’s nation.

One would hope. But then again, maybe it won’t!. I mean, that’s exactly the thing that’s central to the initiation of Iran’s (alleged) assassination attempts:

An FBI informant who leaked sensitive government secrets that reportedly then led to a deadly U.S. drone strike claims Iran’s fearsome security apparatus has targeted him for assassination over the perceived betrayal…

We’re not technically or legally at war with Iran. And yet! So, that kind of ruins that argument. This government is only at war with things at the moment. There’s the War on Drugs. The War on Terror. The War on Fentanyl. The War on [Political Hot Button Topic Du Jour]. But we’re not at war with Iran. Nor are we at war with Yemeni wedding parties or foreign journalists, but nonetheless we’ve killed both with extrajudicial military actions and/or drone strikes.

While that adds more legitimacy to the plaintiff’s arguments and, conversely, detracts from the imagined defenses of the Iranian government, the lawsuit [PDF] doesn’t have a chance in hell of (1) stopping Iran from trying to kill this person, and (2) resulting in a $5 million payout to cover the alleged damages suffered due to the threatened person having to shut down his businesses.

So, as tragic and awful as the plaintiff’s situation is, this lawsuit only has the potential to make things worse. All of this means nothing when you’re dealing with a government willing to violate any number of official and unofficial agreements to kill someone on foreign soil. And that appears to be something Iran’s government is especially willing to do:

All told, Doe contends, the Islamic Republic of Iran, which in recent years has declared war on, among others, a podcaster in Vancouver who discussed sex on the air and a journalist in Brooklyn who criticized the regime, has “intentionally inflicted emotional distress, induced severe mental anguish and emotional and psychological pain and suffering, and caused the need for medical treatment.”

If there’s any entity in the US with some legal culpability, it might be the FBI, which clearly hasn’t done its best to protect this informant. Then again, it might just be the informant’s limited OpSec ability, which allegedly resulted in him being “followed” by Iranian agents and photographed entering the “US facility” where he turned over information to their handlers.

This is all very awful and hopefully the publications of these allegations, as well as the resulting lawsuit, will prompt the US government to do what it can to protect its source and adjust its diplomatic relationship with the Iranian government. But suing Iran isn’t going to stop it from trying to kill people it wants dead. And it certainly isn’t going to be offering any settlements to foreign residents who have, so far, managed to avoid being assassinated.

The real fight for free speech means more than just doing “that which matches the law.” It means being willing to stand up to extremist authoritarian bullies, even when the odds are stacked against you. Challenging regimes where a single satirical post, a meme, or a critical blog can put someone behind bars requires bravery. But sometimes people have to fight, because it’s the right thing to do.

And every once in a while you win.

The notoriously thin-skinned authoritarian Turkish President Recep Tayyip Erdogan has sued thousands of people for the crime of “insulting” him (or comparing him to Gollum).

He has jailed journalists for criticizing his government and claims that social media (not his own authoritarian rule) is a “threat to democracy” for allowing his critics to speak.

It won’t surprise you to find out that his government is frequently looking to silence people online.

Elon Musk complied, but the makers of WordPress, Automattic (which also host Techdirt), fought back. Like ExTwitter, Turkey regularly demands Automattic remove content critical of Erdogan. After a demand to remove a critical blog in 2015, Automattic went to court. And while it lost initially, basically a decade later it has prevailed:

With the support of the blogger, we swiftly appealed the First Instance Court’s decision on the basis that such a restriction was an undue interference in freedom of expression. Unfortunately (but not surprisingly), this argument was rejected.

At Automattic, we firmly believe in the importance of freedom of expression—and we weren’t about to let this clear attempt at political censorship go by without a fight. Given the nature of the allegations involved, we decided to strike back, and petitioned the Turkish Constitutional Court. While the prospects of success seemed low, we were fully prepared to take the case all the way to the European Court of Human Rights in Strasbourg if necessary.

Eight years after we submitted our original appeal, we finally received word that the Constitutional Court had accepted our arguments, and unanimously concluded that both the user’s freedom of expression (as provided for under Article 26 of the Turkish Constitution) and their right to an effective remedy (as provided for under Article 40) had been violated. 

According to Automattic, this is a rare and surprising outcome. Turkish courts have rejected similar attempts by the company, but the company hasn’t stopped fighting these fights and, at least in this case, succeeding.

Do not underestimate the significance of this outcome. Victories of this kind in Turkey are rare, and prior to this case, we had spent almost $100,000 USD appealing 14 different takedown orders, without any success.

At Tech Policy Press, Burak Haylamaz explores how Turkey’s “Internet Law” has been widely abused:

…the Turkish government has employed various tactics over the last decade, including content or website access blocking and removal, bandwidth restrictions, and internet throttling to censor critical media and quell government criticism. By the end of 2022, a total of 712,558 websites and domain names, access to 150,000 URL addresses, 9,800 Twitter accounts, 55,000 tweets, 16,585 YouTube videos, 12,000 Facebook posts, and 11,150 Instagram posts were blocked in Türkiye. These decisions are imposed by various authorities, most effectively through recourse mechanisms before the criminal judgeships of peace, which are carefully framed within the legal system.

It’s especially notable that the main law Turkey relies on for this broad censorship was directly modeled on similar “internet regulations” in Europe (especially Germany’s NetzDG law, which partially inspired the DSA across the EU).

This ruling in favor of Automattic is significant because it puts at least some guardrails on the government’s abuse of the law. However, there are limits. As Haylamaz explains, the Constitutional Court had called out the censorial problems with the law years ago, but left it up to the Turkish Parliament to address, which it did not do.

Finally, with no progress, the Constitutional Court again stepped up to call out how these laws conflict with free expression and to declare them unconstitutional, though for some reason the law stays in place until October.

As Haylamaz further explains, this ruling on the law hasn’t stopped Turkish officials from issuing more blocking orders:

One might assume that the criminal judgeships of peace would cease issuing access-blocking and/or content removal decisions based on Article 9 of the Internet Law, or at least consider the interests of online platforms and content authors, especially after the article was deemed unconstitutional. However, this is simply not the case in Turkish politics and courtrooms. The criminal judgeships of peace continue to issue access-blocking and/or content removal decisions based on Article 9 of the Internet Law, despite its unconstitutional status. This comes as no surprise to many, especially after President Recep Tayyip Erdoğan expressed his discomfort with the Constitutional Court’s internet-related decisions and announced his intention to closely monitor them.

It’s good to see Automattic taking on the impossible task of fighting censorial, authoritarian governments and winning. It would be nice to see more companies follow suit.

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This week all nine Supreme Court justices found in favor of the NRA. Not because they all like what the NRA is selling (although some of them probably do) but because the behavior of New York State, to try to silence the NRA by threatening third parties, was so constitutionally alarming. If New York could get away with doing what it had done, and threaten a speaker’s business relationships as a means of punishing the speaker, then so could any other state against any other speaker, including those who might be trying to speak out against the NRA. Like with the 303 Creative decision, the merit of this decision does not hinge on the merit of the prevailing party, because it is one that serves to protect every speaker of any merit (including those at odds with, say, the preferred policies of states like Texas and Florida, which would cover those conveying pretty much every liberal viewpoint).

The decision was written by Justice Sotomayor, which was something of a welcome surprise given how she’s gotten the First Amendment badly wrong in some of her more recent jurisprudence, including her dissent in 303 Creative and her decision in the Warhol case, where its expressive protection was conspicuously, and alarmingly, absent from her analysis entirely. But in this case she produced a good and important decision that contemporizes earlier First Amendment precedent, and, importantly, in a way entirely consistent with it. In doing so the Court has strengthened the hand of advocates seeking to protect speakers from a certain type of injury that state actors have been trying to use to silence them.

The Court does not break new ground in deciding this case. It only reaffirms the general principle from Bantam Books that where, as here, the complaint plausibly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a First Amendment claim. [p.18]

In these cases it’s not a direct injury, because the First Amendment pretty clearly says that state actors cannot directly silence expression they do not like (although, true, we still see cases where the government has nevertheless tried to go that route). What this decision says is that state actors also cannot try to silence speakers indirectly by threatening anyone they need to interact with to no longer interact with them.

[A] government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf. [p.11]

Here, the New York official, Vullo, pressured insurance companies she regulated to not do business with the NRA.

As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim. [p. 1]

As alleged Vullo did more than argue that the companies not do business with the NRA, which might be a legitimate exercise of a government official’s ability to try to persuade.

A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression. See Rosenberger, 515 U. S., at 830 (explaining that governmental actions seeking to suppress a speaker’s particular views are presumptively unconstitutional). In such cases, it is “the application of state power which we are asked to scrutinize.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 463 (1958). [p.8-9]

What she did also went beyond a legitimate exercise of regulatory authority.

In sum, the complaint, assessed as a whole, plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy. If true, that violates the First Amendment. [p.15]

[A]lthough Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA’s protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy. [p.17]

It was using that regulatory authority against a third party as a means of punishing a speaker for its views that violated the First Amendment.

As discussed below, Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation. [p.8]

Nothing in this case gives advocacy groups like the NRA a “right to absolute immunity from [government] investigation,” or a “right to disregard [state or federal] laws.” Patterson, 357 U. S., at 463. Similarly, nothing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution “relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.” Shurtleff v. Boston, 596 U. S. 243, 252 (2022). Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the “ballot box” is an especially poor check on that official’s authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries. [p.19]

This decision is not the first time that courts have said no to this sort of siege warfare state officials have tried to wage against speakers they don’t like, to cut them off from relationships the speakers depend on when they can’t attack the speakers directly.

The NRA’s allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA’s advocacy. Such a strategy allows government officials to “expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over.” Brief for First Amendment Scholars as Amici Curiae Supporting Petitioner 8. It also allows government officials to be more effective in their speech-suppression efforts “[b]ecause intermediaries will often be less invested in the speaker’s message and thus less likely to risk the regulator’s ire.” [p.19]

One such earlier decision that we’ve discussed here is Backpage v. Dart, where the Seventh Circuit said no to government actors flexing their enforcement muscles against third parties in a way calculated to hurt the speaker they are really trying to target. But instead of there being just a few such decisions binding on just a few courts, suddenly there is a Supreme Court decision saying no to this practice now binding on all courts.

The big question for the moment is what happens next. There are still several cases pending before the Supreme Court – the two NetChoice/CCIA cases and Murthy v. Missouri – which all involve questions of whether the government has acted in a way designed to silence a speaker. The NetChoice/CCIA cases are framed a bit differently than this case, with the central question being whether state regulation of a platform directly implicates the platform’s own First Amendment rights, but for the Court to rule in NetChoice and CCIA’s favor and find that platforms do have such rights it would need to recognize that what Texas and Florida are trying to do in regulating Internet platforms is punish viewpoints they don’t favor. But if the Court could recognize that sort of viewpoint punishment is what the state of New York was trying to do indirectly here, perhaps it can also recognize that these other states are trying to do it directly there.

Meanwhile, in Murthy v. Missouri, the legal question is closer to the one raised here, and indeed the case was even heard on the same day. In that case the federal government is alleged to have unconstitutionally pressured platforms to cut certain speakers off from their services. It would be the same unconstitutional mechanics, to punish a speaker by coming after a third party the speaker depends on, but as even this decision suggests, only if the conduct of the government was in fact coercive and not simply an expression of preference the platforms were free to take or leave.

Which is why the concurrences from Justices Gorsuch and Jackson may be meaningful, if not for this NRA case but for others. With the latter concurrence Jackson appears to want to ensure that government actors are not chilled from exercising legitimate enforcement authority if they also disfavor the speaker who is in their regulatory sights.

The lesson of Bantam Books is that “a government official cannot do indirectly what she is barred from doing directly.” Ante, at 11. That case does not hold that government coercion alone violates the First Amendment. And recognizing the distinction between government coercion and a First Amendment violation is important because our democracy can function only if the government can effectively enforce the rules embodied in legislation; by its nature, such enforcement often involves coercion in the form of legal sanctions. The existence of an allegation of government coercion of a third party thus merely invites, rather than answers, the question whether that coercion indirectly worked a violation of the plaintiff’s First Amendment rights. [p.2 Jackson concurrence]

In her view, the earlier Bantam Books case the decision is rooted in is not the correct precedent; Jackson would instead look at cases challenging retaliatory actions by the government as a First Amendment violation, and here she thinks that analytical shoe better fits.

[It] does suggest that our First Amendment retaliation cases might provide a better framework for analyzing these kinds of allegations—i.e., coercion claims that are not directly related to the publication or distribution of speech. And, fortunately for the NRA, the complaint in this case alleges both censorship and retaliation theories for how Vullo violated the First Amendment—theories that, in my opinion, deserve separate analyses. [p.4 Jackson concurrence]

As for the Gorsuch concurrence, it is quite brief, and follows here in its entirety:

I write separately to explain my understanding of the Court’s opinion, which I join in full. Today we reaffirm a well-settled principle: “A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” Ante, at 11. As the Court mentions, many lower courts have taken to analyzing this kind of coercion claim under a four-pronged “multifactor test.” Ibid. These tests, the Court explains, might serve “as a useful, though nonexhaustive, guide.” Ante, at 12. But sometimes they might not. Cf. Axon Enterprise, Inc. v. FTC, 598 U. S. 175, 205–207 (2023) (G ORSUCH , J., concurring in judgment). Indeed, the Second Circuit’s decision to break up its analysis into discrete parts and “tak[e] the [complaint’s] allegations in isolation” appears only to have contributed to its mistaken conclusion that the National Rifle Association failed to state a claim. Ante, at 15. Lower courts would therefore do well to heed this Court’s directive: Whatever value these “guideposts” serve, they remain “just” that and nothing more. Ante, at 12. “Ultimately, the critical” question is whether the plaintiff has “plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech.” Ante, at 12, 19.

What seems key to him is the last line, and reads like a canary of an issue potentially splitting the Court in Murthy, where there the government clearly engaged in communications with intermediary platforms but the question is whether those communications amounted to attempts at persuasion, which is lawful, or coercion, which is not.

Meanwhile, this case itself will now be remanded. The Court ruled based on the facts as the NRA pled them – as was procedurally proper to do at this stage of the litigation – but it’s conceivable that when put to a standard of proof there won’t be enough to maintain its First Amendment claim. And even if the claim survives, the state for its part can still litigate whether it has an immunity defense to this alleged constitutional injury. So the matter has not yet been put to rest, but presumably the underlying First Amendment question it raised now has.

We’ve noted repeatedly how the primary problem with U.S. media and journalism often isn’t the actual journalists, or even the sloppy automation being used to cut corners; it’s the terrible, trust fund brunchlords that fail upwards into positions of power. The kind of owners and managers who, through malice or sheer incompetence, turn the outlets they oversee into either outright propaganda mills (Newsweek), or money-burning, purposeless mush (Vice, Buzzfeed, The Messenger, etc., etc.)

Very often these collapses are framed with the narrative that doing journalism online somehow simply can’t be profitable; something quickly disproven every time a group of journalists go off to start their own media venture without a useless executive getting outsized compensation and setting money on fire (see: 404 Media and countless other successful worker-owned journalistic ventures).

Of course these kinds of real journalistic outlets still have to scrap and fight for every nickel. At the same time, there’s just an unlimited amount of money available if you want to participate in the right wing grievance propaganda engagement economy, telling white young males that all of their very worst instincts are correct (see: Rogan, Taibbi, Rufo, Greenwald, Tracey, Tate, Peterson, etc. etc. etc. etc.).

One key player in this far right delusion farm, failed Presidential opportunist Vivek Ramaswamy, recently tried to ramp up his own make believe efforts to “fix journalism.” He did so by purchasing an 8 percent stake in what’s left of Buzzfeed after it basically gave up on trying to do journalism last year.

Ramaswamy’s demands are silly toddler gibberish, demanding that the outlet pivot to video, and hire such intellectual heavyweights as Tucker Carlson and Aaron Rodgers:

“Mr. Ramaswamy is pushing BuzzFeed to add three new members to its board of directors, to hone its focus on audio and video content and to embrace “greater diversity of thought,” according to a copy of his letter shared with The New York Times.”

By “greater diversity of thought,” he means pushing facts-optional right wing grievance porn and propaganda pretending to be journalism, in a bid to further distract the public from issues of substance, and fill American heads with pudding.

But it sounds like Ramaswamy couldn’t even do that successfully. For one thing, Buzzfeed simply isn’t relevant as a news company any longer. Gone is the real journalism peppered between cutesy listicles, replaced mostly with mindless engagement bullshit. For another, Buzzfeed CEO Jonah Peretti (and affiliates) still hold 96 percent of the Class B stock, giving them 50 times voting rights of Ramaswamy.

So as Elizabeth Lopatto at The Verge notes, Ramaswamy is either trying to goose and then sell his stock, or is engaging in a hollow and performative PR exercise where he can pretend that he’s “fixing liberal media.” Or both. The entire venture is utterly purposeless and meaningless:

“You’ve picked Buzzfeed because the shares are cheap, and because you have a grudge against a historically liberal outlet. It doesn’t matter that Buzzfeed News no longer exists — you’re still mad that it famously published the Steele dossier and you want to replace a once-respected, Pulitzer-winning brand with a half-assed “creators” plan starring Tucker Carlson and Aaron Rodgers. Really piss on your enemies’ graves, right, babe?”

While Ramaswamy’s bid is purely decorative, it, of course, was treated as a very serious effort to “fix journalism” by other pseudo-news outlets like the NY Post, The Hill, and Fox Business. It’s part of the broader right wing delusion that the real problem with U.S. journalism isn’t that it’s improperly financed and broadly mismanaged by raging incompetents, but that it’s not dedicated enough to coddling wealth and power. Or telling terrible, ignorant people exactly what they want to hear.

Of course none of this is any dumber than what happens in the U.S. media sector every day, as the Vice bankruptcy or the $50 million dollar Messenger implosion so aptly illustrated. U.S. journalism isn’t just dying, the corpses of what remains are being abused by terrible, wealthy puppeteers with no ideas and nothing of substance to contribute (see the postmortem abuse of Newsweek or Sports Illustrated), and in that sense Vivek fits right in.

Alright, this one is going to get a bit convoluted, so stay with me here. There seems to be something going on in the foreign foodstuffs and restaurant industries lately when it comes to trademarking otherwise common phrases for niche foods in a way that pisses off other providers that operate in those same niche markets. An example of that recently came to be in the form of a “chili crunch” trademark granted to David Chang, after which he blasted out a bunch of cease and desists notices. Chang eventually apologized and promised to not enforce his trademark any longer, though that came only after some rather severe public backlash.

And now we have an interesting and somewhat similar situation out of the UK. Dishoom is an Indian restaurant chain that is seeking to revoke a trademark granted to another restaurateur, Tariq Aziz. That trademark is for “Ruby Murray” in the restaurant industry. Dishoom appears to be at least slightly misguided in its petition, in that it claimed that Aziz was not using the mark in commerce. He absolutely is, having a restaurant named Ruby Murray in London.

The restaurant group’s lawyers want the term to be revoked as a trademarked phrase because they believe it has never been used for commercial purposes.

A spokesperson for Dishoom said: ‘A third party has a trademark registration for Ruby Murray and we don’t believe that they have ever used it.

However, Aziz reportedly refused the application, claiming that he is using the name for a food premises in Islington and does not want the trademark to be revoked.

He said: ‘We have a premises in Islington, north London, called Ruby Murray. It’s closed for refurbishment at the moment, but will reopen soon’.

That certainly appears to be true, unless this website for the Ruby Murray restaurant in London is somehow wholly made up, which I doubt. If that really is the sole reason that Dishoom is seeking to invalidate the trademark, it seems unlikely to work.

Which doesn’t mean that canceling the mark isn’t something that shouldn’t absolutely be considered. Why? Well, it has to do with how the name Ruby Murray became associated with Indian food to begin with.

See, Ruby Murray is the name of a British musician from the 1950s. She was wildly popular at that time throughout the UK and elsewhere. And, in keeping with one of my favorite parts of British slang, where you refer to one thing by the name of a completely different thing that rhymes with the original thing, Ruby Murray’s name became a slang term in the 60s for Indian curry.

So, what Aziz actually did was to trademark a common, generic slang term for a common ingredient in Indian food that was also the name of a very famous person. That would seem to raise all kinds of potential problems for the mark and I would argue it never should have been granted. Its obviously considered a generic term, or you would have thought Murray’s heirs or estate would have challenged the mark themselves.

We’ll see if Aziz truly wants to defend this trademark, as he has until July 15th to state so. It would be better if this all went away and everyone just got back to making awesome Indian food.

More bad news for ShotSpotter, which recently re-branded to “SoundThinking” to distance itself from exactly this sort of negative press. Four legislators (three senators, one congressperson) are asking the DHS Inspector General to take a closer look at the tech the DHS is funding via one of its grant programs.

The problem with Spotshotter is it seems unlikely to put a dent in the public’s arsenal. Multiple cities have chosen to dump the tech rather than continue to pay for false positives, altered shot reports, and nonexistent public safety increases.

The problem with the DHS is that it has already started spending money on a portable “Gunshot Detection System.” It’s capitalized for a reason. It’s a bespoke version of a product already offered by a company called [re-reads DHS press release] Shooter Detection Systems — a redesign of its [deep breath] Guardian Indoor Active Shooter Detection System.

According to the DHS’s PR team, the “enhanced” version of this off-the-shelf shot spotter will detect both sounds and light flashes, apparently aiming to reduce the number of false positives generated by acoustic-only detection systems… like the one offered by [coughs at first half of rebrand] SoundThinking, formerly ShotSpotter.

Whether adding “eyes” to “ears” to spot shots has accomplished a reduction in false positives is still an open question. Whether or not the DHS should continue to pay for shot spotting tech — namely the one offered by the former ShotSpotter — is exactly the question these four lawmakers would like the DHS Inspector General to answer.

The question — as posed in this letter [PDF] from Sen. Ed Markey, Sen. Ron Wyden, Sen. Elizabeth Warren, and Congressperson Ayanna Pressley — is a bit leading perhaps. But the question is valid and the lawmakers’ letter contains plenty of evidence that lends validity to the question: should the DHS really be spending federal dollars on grants to local law enforcement agencies seeking to acquire ShotSpotter tech?

Several recent reports have cast substantial doubt on the accuracy and effectiveness of the “ShotSpotter” gunshot detection system and have raised serious questions about its contribution to unjustified surveillance and over-policing of Black, Brown, and Latino communities. Through the Urban Area Security Initiative (UASI) grant program, the Department of Homeland Security (DHS) provides funding to localities to deploy the ShotSpotter system. We request that the DHS Office of Inspector General (OIG) investigate DHS’s spending of taxpayer dollars on ShotSpotter, including potential violations of Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from discriminating based on race, color, and national origin.

And that’s only part of the problem. It’s not even necessarily a ShotSpotter problem per se, but a long-standing problem with law enforcement agencies, who almost always deploy new surveillance “solutions” in low-income neighborhoods, especially those heavily populated by minorities.

The other problem is more technical: the tech just doesn’t work as advertised. Multiple investigations have shown the tech is either (1) unable to reliably detect gunshots, or (2) doesn’t lead to better enforcement of gun-related crime. The cities now dumping the tech say it’s both unreliable and useless. Of course, SoundThinking/ShotSpotter insists otherwise in responses to the latest negative reporting and in its marketing materials, which are still somehow capable of convincing government entities to buy its tech.

That’s where the DHS comes in. It offers grant money to law enforcement agencies — funding that can be used to purchase acoustic gunshot detection tech. The biggest brand in the business is SoundThinking, so naturally that’s where most of this funding goes.

In Massachusetts alone, “UASI [Urban Area Security Initiative] has funded almost a decade of contracts for gunshot detection technology with ShotSpotter in Cambridge, Chelsea, Somerville, and Boston.” Since 2012, according to city records, Boston has spent more than $4 million on ShotSpotter. Elsewhere, municipalities across the country have used UASI funds for the ShotSpotter system. One study found that “[t]hrough an analysis of UASI funding in Los Angeles, Boston, New York City, and Chicago . . . cities spend millions of UASI dollars on contracts with surveillance corporations” such as ShotSpotter.

And what are we getting in return for this combination of federal and local spending? Not much.

The ShotSpotter system’s ineffectiveness has consequences for law enforcement, community response, and the prevention of gun violence. A 2021 study from the Journal of Public Health found “that implementing ShotSpotter technology has no significant impact on firearm-related homicides or arrest outcomes” and that “[p]olicy solutions may represent a more cost-effective measure to reduce urban firearm violence.” Another study from the MacArthur Justice Center at Northwestern University concluded “that more than 90% of ShotSpotter alerts lead police to find no evidence to corroborate gunfire when police arrive at the location ShotSpotter sent them: no shooting, no shell casings, no victims, no witnesses, no guns recovered.

Not great. More bad stuff from studies and reports: 70% of people in neighborhoods with ShotSpotter systems are either black or Latino. 75% of those neighborhoods had annual incomes well below the national median.

As I stated above, this is a cop problem: the long-held biases that subject the same people to any new surveillance option. The rest of it is a ShotSpotter problem: it doesn’t spot shots and it doesn’t stop crime. And yet, millions are being spent on it every year, with some of the funding flowing directly from the DHS.

The main point of this letter, however, is to nudge DHS oversight to take a close look at the end result of this funding in terms of purchasing ShotSpotter tech. The federal government is forbidden from spending money on anything that violates federal laws. And this funding might be doing that. Title VI of the Civil Rights Act of 1964 forbids recipients of federal funding from discriminating on the basis of race, color, or national origin. Does planting most of your shot-spotting mics in predominately non-white neighborhoods violate the Civil Rights Act?

Well, that’s what these lawmakers hope to find out.

For all the preceding reasons, we respectfully request that you open an investigation in DHS’s funding of the ShotSpotter system to determine whether it is an appropriate use of taxpayer dollars, including the critical question of whether such funding may lead to Title VI violations.

It will likely be awhile before we hear back on this. But given what’s already been discovered via studies, public records requests, and investigative journalism, it certainly looks as though cops with this tech are violating the law. And one would expect another investigation into ShotSpotter use is going to turn up more of the same biased policing. If that’s the case, it won’t stop cops from being racist. But it will mean they’ll have to spend local funds to keep minorities under their tech-enhanced thumbs.