Five Years Ago

This week in 2019, the New York Times stood up for Section 230 and called out the politicians who were lying about it, like Rep. Gosar who had previously been sued for blocking constituents on social media, while we tried to put an end to the myth that big tech was censoring conservatives (and that platforms legally had to be neutral) and looked closer at Josh Hawley’s latest bill that would make him product manager for the internet. And, as expected, Nick Sandmann’s lawsuit against the Washington Post was quickly dismissed.

Ten Years Ago

This week in 2014, Michael Hayden had a moment of accidental honesty and admitted that Ed Snowden was a whistleblower, while the EFF was asking the court to declare that the NSA’s “internet backbone” collections were unconstitutional, and Keith Alexander was going around asking for $1 million a month for his cybersecurity services. The recording industry was going after Ford and General Motors for cars with built-in CD rippers, City of London police were pulling some ridiculous shenanigans to “fight piracy”, and Prenda received another appeals court smackdown. Also, a podcasting patent troll was trying to run away from a lawsuit after realizing podcasting didn’t make much money.

Fifteen Years Ago

This week in 2009, an earlier patent troll was stepping up to claim it owned pretty much all podcasting. The Associated Press was trying to get out of having to talk any more about its plans for news DRM, Hollywood was still calling for more movie DRM, and Barnes & Noble was defending its practice of putting DRM on public domain ebooks. A new ruling in Europe said that an 11-word snippet could be copyright infringement, a publisher was nervous about letting an author quote a single sentence, and we saw what might be the first defamation lawsuit over a tweet.

We’ve mentioned a few times that there are more than $42 billion in broadband subsides about to drop in the laps of state leaders thanks to the 2021 infrastructure bill. Since the bill gives individual states leeway on how this money is spent, a lot of states (like Pennsylvania) are simply throwing the money in the laps of giant telecom monopolies with long histories of subsidy fraud and abuse.

Some states, like California and New York, are, thankfully, doing things a little differently. Hopefully.

California, for example, is spending $3 billion of its funding on a massive open access “middle mile” network that should drive down access costs and boost competition. There’s been some consternation as to how transparently and inclusively California leaders are doing this, but it’s a strong idea.

New York, meanwhile, is directing a lot of its COVID relief and infrastructure bill funding to community owned and operated broadband networks, which saw a massive surge in popularity during the home education broadband headaches during COVID lockdowns. Said lockdowns illustrated that broadband is an essential utility, and that widespread monopolization has clearly led to market failure.

New York just announced that $70 million of a broader $228 million program will be headed to community-owned broadband networks. Like the one being built in Dryden, New York, which is offering locals previously stuck under a Charter cable broadband monopoly symmetrical 400 Mbps, 700 Mbps, and 1 Gbps connections for $45, $75, and $90 a month, respectively.

According to a New York state announcement, many of these areas will be getting affordable fiber broadband for the first time ever:

“These awards through the Municipal Infrastructure Grant Program will connect tens of thousands of homes and businesses across Upstate New York and deliver reliable high-speed internet service to areas of the state that are unserved and underserved while addressing ConnectALL’s mandate to develop a robust, equitable broadband marketplace across New York State.”

A good chunk of the funding is being spent on “open access” fiber networks, which effectively provide multiple providers — municipally owned or private –the low cost ability to provide service. That boosts competition, and in most places where it’s implemented, results in cheaper, better service (I wrote a report on this phenomenon for the Copia Institute last year in case you missed it).

Contrary to what big telecom and its assorted mouthpieces like to claim, community broadband is an organic, grass roots response to monopoly power and market failure, and sees broad, bipartisan support. Which is why telecom giants like AT&T and Comcast tried to have House Republicans impose a national ban in the middle of a national health emergency that was busy highlighting its importance.

Community broadband isn’t magic. It needs to be implemented and funded intelligently. It can take on many forms, from an extension of your local power utility or a cooperative, to a municipally owned network or a hybrid public-private partnership. These creative, popular, local solutions are again a direct result of decades of apathy by regional telecom monopolies that have lobbied many leaders into apathy.

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.

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

• Jim Jordan Demands Advertisers Explain Why They Don’t Advertise On MAGA Media Sites (Techdirt)
• TikTok Has a Nazi Problem (Wired)
• NazTok: An organized neo-Nazi TikTok network is getting millions of views (Institute for Strategic Dialogue)
• How TikTok bots and AI have powered a resurgence in UK far-right violence (The Guardian)
• Senate Passes Child Online Safety Bill, Sending It to an Uncertain House Fate (New York Tmes)
• The teens lobbying against the Kids Online Safety Act (The Verge)
• Social Media Mishaps Aren’t Always Billionaire Election Stealing Plots (Techdirt)
• X suspends ‘White Dudes for Harris’ account after massive fundraiser (Washington Post)
• Why Won’t Google Auto-complete ‘Trump Assassination Attempt’? (Intelligencer)
• ‘Technical glitch’ is no longer an excuse (Everything in Moderation from 2020)
• A message to our Black community (TikTok from 2020)

This episode is brought to you with financial support from the Future of Online Trust & Safety Fund, and by our sponsor Discord. In our Bonus Chat at the end of the episode, Mike speaks to Juliet Shen and Camille Francois about the Trust & Safety Tooling Consortium at Columbia School of International and Public Affairs, and the importance of open source tools for trust and safety.

It turns out the internet was one Sam Alito petulant tantrum away from being a total disaster. In two key First Amendment cases, Alito was given the majority opinion to write. And, in both of them, his insistence on obliterating the old boundaries of the First Amendment caused other Justices to switch sides – and Alito to act like a spoiled brat.

This year, the Supreme Court session ran later than usual. Usually, they finish up by the end of June, but this year it extended the term over to July 1st. There were, obviously, a bunch of “big” decisions (Presidential immunity! Chevron deference!) that were held to the very end, including the two big internet cases: the NetChoice cases and the Murthy case.

As people awaited the decisions, there was a fair bit of SCOTUSology as court experts (and non-experts) speculated based on the number of decisions written by each Justice (and which months the cases were heard in) as to which Justice would have the majority decisions in remaining cases. I heard from quite a few such experts who expected that Alito would have the majority decision in the NetChoice cases, given that the other Justices all seemed to have majority opinions from February cases, and Alito’s name seemed to be missing.

Some people were surprised because in basically all of the internet cases oral arguments, Alito seemed quite out of step with the rest of the Court (and reality). When the decision finally came out, saying that the lower courts didn’t do the proper analysis for a “facial challenge,” it sent the cases back to the lower courts for a redo. But the majority opinion included some very important commentary about how the First Amendment still applies to social media editorial discretion. The overall ruling was technically a unanimous decision, but some noted that Justice Alito’s “concurrence” read like it had been written to be the majority opinion. It delves deeper into the facts of the case than a concurrence normally would (the majority opinion normally handles that).

Oh, and one other weird thing: in that final week of June, people were confused by Justice Alito not showing up to a couple of decision days, and his absence was never explained. Until now.

CNN now has quite an incredible insider’s tale of how Justice Alito had, in fact, been given the job of writing the majority opinion in the NetChoice cases, but lost it because he tried to push the decision too far into saying that states could regulate content moderation.

Alito, while receptive to the 5th Circuit’s opinion minimizing the companies’ speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservatives Clarence Thomas and Neil Gorsuch and, to some extent, Barrett and Jackson.

On the other side was Kagan, leaning toward the 11th Circuit’s approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by their users. She was generally joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.

Alito began writing the court’s opinion for the dominant five-member bloc, and Kagan for the remaining four.

It’s also interesting that Justice Jackson was siding with Alito. During oral arguments, Justice Jackson asked some… odd questions, leading some to worry about how she might come down. The CNN report suggests those fears were legitimate.

Either way, Alito pushed his views too far and caused both Barrett and Jackson to bail out.

But when Alito sent his draft opinion around to colleagues several weeks later, his majority began to crumble. He questioned whether any of the platforms’ content-moderation could be considered “expressive” activity under the First Amendment.

Barrett, a crucial vote as the case played out, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying types of algorithms platforms use.

“A function qualifies for First Amendment protection only if it is inherently expressive,” Barrett wrote in a concurring statement, asserting that if platform employees create an algorithm that identifies and deletes information, the First Amendment protects that exercise of editorial judgment. That might not be the situation, Barrett said, for algorithms that automatically present content aimed at users’ preferences.

Kagan added a footnote to her majority opinion buttressing that point and reinforcing Barrett’s view. Kagan wrote that the court was not dealing “with feeds whose algorithms respond solely to how users act online – giving them the content they appear to want, without any regard to independent content standards.”

Barrett’s concerns have been worrying to some, as it suggests that algorithmic recommendations may not be protected by the First Amendment. This would upset a bunch of what people thought was settled law regarding things like search engine recommendations. However, the hope is that if such a case comes before the Court (which it almost certainly will…), that a fuller briefing on the record would clarify that algorithmic recommendations are still speech.

As we noted, Alito’s concurrence reads pretty petulant. It declares the majority’s “First Amendment applies to social media” explanation as “nonbinding dicta.” CNN details that this was him being angry that he lost the majority on that case.

But the key reason he lost control over the decision seems to be that he, unlike the eventual majority, would have sided a lot more with the Fifth Circuit’s ruling, which upended a century’s worth of First Amendment law.

Alito had the backing of only two justices in the end, Thomas and Gorsuch. He expressed sympathy for state efforts to restrict what, in an earlier phase of the Texas case Alito called “the power of dominant social media corporations to shape public discussion of the important issues of the day.”

In his separate July 1 opinion for a minority, Alito pointed up why states might want to regulate how platforms filter content: “Deleting the account of an elected official or candidate for public office may seriously impair that individual’s efforts to reach constituents or voters, as well as the ability of voters to make a fully informed electoral choice. And what platforms call ‘content moderation’ of the news or user comments on public affairs can have a substantial effect on popular views.”

Like Oldham, Alito took jabs at the “sophisticated counsel” who challenged the state regulations.

The same article notes that Alito also lost the majority on another “Fifth Circuit misunderstands the First Amendment” case. The one involving Sylvia Gonzalez, who was retaliated against by the mayor for her efforts to shake up the local government. The Fifth Circuit originally said this was totally fine. Eventually, the Supreme Court sent the case back to the Fifth Circuit to try again.

But again, Alito tried to go too far:

When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.

But as he began writing, he went further than the other justices in his review of Gonzalez’s case. Alito and his colleagues realized he couldn’t “hold five,” as the expression goes, for a majority.

A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit’s reasoning, the Supreme Court said the 5th Circuit had applied an “overly cramped view” of the court’s precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.

Alito also wrote a concurrence for that case, but here he went on a long rant basically explaining why even if the Fifth Circuit used the wrong standard, there were lots of reasons why Gonzalez should have lost her case. Basically, if he had written the majority opinion, all of this would have qualified as “nonbinding dicta” under Alito’s own standard. Now, at least, it’s just a concurrence.

But, apparently, because Alito was ticked off that he couldn’t “hold five” in either of these cases, it caused him to take his ball and go home (i.e., just not show up at the Court on decision days):

On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito’s chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.

Justices sometimes skip one of these final days of the annual session, but usually there’s an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.

Alito returned for the final four announcement days of the term, yet sometimes appeared preoccupied. On the last day, when Kagan announced the decision in the NetChoice case, Alito was reading through material he had brought along to the bench.

Poor baby.

In both cases, Alito’s view of the First Amendment seems disconnected from reality and history. And, in both cases, he still had a chance to write the majority opinion (sending both cases down on what is, effectively, technicalities). But, in both cases, he was unable to write a reasonable opinion, causing his colleagues on the bench to jump ship to more reasonable rulings.

And, in response, he decided to just sulk like a teenager who didn’t get his way. In the end, that left us with a much better, more First Amendment supportive majority decision (in both cases). But it’s truly incredible how close we came to bad decisions in each, and how both of those flipped due to Alito’s insistence on pushing his terrible, unsupported ideas about free speech.

The state of New Jersey has been sued twice over its infant DNA program. Like the rest of the nation, New Jersey hospitals collect a blood sample from newborns to test them for 60 different health disorders. That part is normal.

But New Jersey is different. Rather than discard the samples after the testing is complete, it holds onto them. For twenty-three years. That’s unusual. And it’s a fair bet that almost 100% of New Jersey parents are unaware of this fact.

There’s a reason parents don’t know this and it has nothing to do with parents just not paying attention when this test is performed. According to the lawsuits, New Jersey healthcare professionals do what they can to portray the testing as mandatory, even though it isn’t. They also take care to keep parents uninformed, never once informing them that they are free to opt out of the testing for religious reasons.

The state, however, is fine with this. The biggest beneficiary of this program is state law enforcement, which can freely obtain these DNA samples without having to go through the trouble of obtaining a warrant. Warrants are needed to obtain DNA samples from criminal suspects, but there’s nothing stopping cops from searching the DNA database for younger relatives of the suspect whose DNA might still be in the possession of the state’s Health Department.

That’s why the state is facing multiple lawsuits, making it an anomaly in this group of 50 states we Americans call home. And that’s likely why the state’s health officials are trying to healthwash this by crafting a new narrative for this uniquely New Jersey handling of infant blood tests. Here’s Elizabeth Nolan Brown with a summary of the rebranding for Reason.

Mandatory genomic sequencing of all newborns—it sounds like something out of a dystopian sci-fi story. But it could become a reality in New Jersey, where health officials are considering adding this analysis to the state’s mandatory newborn testing regime.

Genomic sequencing can determine a person’s “entire genetic makeup,” the National Cancer Institute website explains. Using genomic sequencing, doctors can diagnose diseases and abnormalities, reveal sensitivities to environmental stimulants, and assess a person’s risk of developing conditions such as Alzheimer’s disease.

Ernest Post, chairman of the New Jersey Newborn Screening Advisory Review Committee (NSARC), discussed newborn genomic sequencing at an NSARC meeting in May. An NSARC subcommittee has been convened to explore the issue and is expected to issue recommendations later this year. It’s considering questions such as whether sequencing would be optional or mandatory, the New Jersey Monitor reported.

The state wants to take what’s already problematic and make it a privacy nightmare. But, you know, for the children. The framing encourages people to think this is about early detection and preemptive responses to expected long-term health problems.

And that’s not to stay it won’t have the stated effect. The problem is the state hasn’t been honest about its newborn DNA collection in the past and health care providers (whether ignorant of the facts or instructed to maximize consent) haven’t been exactly trustworthy either.

Now, the state wants to expand what it can do with these blood samples despite not having done anything to correct what’s wrong with the program as it exists already. This just opens up additional avenues of abuse for the government — something it shouldn’t even be considering while it’s still facing two lawsuits related to the existing DNA harvesting program.

The ACLU is obviously opposed to this expansion. The statement it gave to the New Jersey Monitor makes it clear what’s at stake, and what needs to happen before the state moves forward with gene sequencing of newborn blood samples.

If New Jersey adopts genomic sequencing, policymakers must create “a real privacy-protective infrastructure to make sure that genomic data isn’t abused,” said Dillon Reisman, an ACLU-NJ staff attorney.

“What we’re talking about is information from kids that could allow the state and other actors to use that data to monitor and surveil them and their families for the rest of their lives,” Reisman said. “If the goal is the health of children, it does not serve the health of children to have a wild west of genomic data just sitting out there for anyone to abuse.”

Maybe that will happen before this program goes into effect. But it seems unlikely. Given the history of the existing program, the most probable outcome is a handful of alterations as the result of court orders in the lawsuits that are sure to greet the rollout of this program. The state seems super-interested in getting out ahead of health problems. But it seemingly couldn’t care less about heading off the inherent privacy problems the new program would create.

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Remember last month when ExTwitter excitedly “rejoined GARM” (the Global Alliance for Responsible Media, an advertising consortium focused on brand safety)? And then, a week later, after Rep. Jim Jordan released a misleading report about GARM, Elon Musk said he was going to sue GARM and hoped criminal investigations would be opened?

Unsurprisingly, Jordan has now ratcheted things up a notch by sending investigative demands to a long list of top advertisers associated with GARM. The letter effectively accuses these advertisers of antitrust violations for choosing not to advertise on conservative media sites, based on GARM’s recommendations on how to best protect brand safety.

The link there shows all the letters, but we’ll just stick with the first one, to Adidas. The letter doesn’t make any demands specifically about ExTwitter, but does name the GOP’s favorite media sites, and demands to know whether any of these advertisers agreed not to advertise on those properties. In short, this is an elected official demanding to know why a private company chose not to give money to media sites that support that elected official:

Was Adidas Group aware of the coordinated actions taken by GARM toward news outlets and podcasts such as The Joe Rogan Experience, The Daily Wire, Breitbart News, or Fox News, or other conservative media? Does Adidas Group support GARM’s coordinated actions toward these news outlets and podcasts?

Jordan is also demanding all sorts of documents and answers to questions. He is suggesting strongly that GARM’s actions (presenting ways that advertisers might avoid, say, having their brands show up next to neo-Nazi content) were a violation of antitrust law.

This is all nonsense. First of all, choosing not to advertise somewhere is protected by the First Amendment. And there are good fucking reasons not to advertise on media properties most closely associated with nonsense peddling, extremist culture wars, and just general stupidity.

Even more ridiculous is that the letter cites NAACP v. Claiborne Hardware, which is literally the Supreme Court case that establishes that group boycotts are protected speech. It’s the case that says not supporting a business for the purpose of protest, while economic activity, is still protected speech and can’t be regulated by the government (and it’s arguable that what does GARM does is even a boycott at all).

As the Court noted, in holding that organizing a boycott was protected by the First Amendment:

The First Amendment similarly restricts the ability of the State to impose liability on an individual solely because of his association with another.

But, of course, one person who is quite excited is Elon Musk. He quote tweeted (they’re still tweets, right?) the House Judiciary’s announcement of the demands with a popcorn emoji:

So, yeah. Mr. “Free Speech Absolutist,” who claims the Twitter files show unfair attempts by governments to influence speech, now supports the government trying to pressure brands into advertising on certain media properties. It’s funny how the “free speech absolutist” keeps throwing the basic, fundamental principles of free speech out the window the second he doesn’t like the results.

That’s not supporting free speech at all. But, then again, for Elon to support free speech, he’d first have to learn what it means, and he’s shown no inclination of ever doing that.

Broadband providers poised to receive $42 billion in taxpayer broadband subsidies from the infrastructure bill are ramping up complaints about a small requirement affixed to the massive handout: they have to try to make broadband affordable to poor people.

Earlier this month we noted that the GOP, in lockstep with the telecom industry, had launched an “investigation” into the low-income requirements attached to the Broadband Equity Access And Deployment (BEAD) subsidy program and the agency overseeing it (NTIA).

The requirements are not onerous: the NTIA delegates most authority for how the money is to be spent to the states, which are “strongly encouraged” (according to BEAD program guidelines) to provide a slower, cheaper service tier somewhere between around $30 and $48 per month. And only to families that qualify for existing low-income assistance programs.

But in a new letter to Commerce Secretary Gina Raimondo (hat tip, Ars Technica), telecom lobbying organizations (most of them directed by AT&T) vaguely threaten that they’ll take their ball and go home if the requirements for a low-cost option aren’t eliminated:

“Without significant and immediate changes of approach toward its implementation, we are concerned the program will fail to advance our collective goal of connectivity for all in America. We and our members sincerely want this program to work, but we believe that your agency’s administration of the low-cost service option requirement in particular risks putting the overall success of BEAD in jeopardy.”

To be clear I’m not sure that federal or state lawmakers are even able to enforce this requirement with any consistency, given the rank corruption and feckless careerism that abounds in telecom regulatory oversight. But just the faintest hint that they might have to make their product affordable greatly upsets regional monopolies, who’ve spent decades working to undermine competition and oversight in a bid to keep U.S. broadband prices artificially inflated.

Telecom giants like AT&T have grown fat and comfortable ripping off captive local subscribers and effectively telling regulators what to do. They’re so comfortable, in fact, that the barest bone efforts asking them nicely to provide a less expensive option to poor people is being treated like some kind of draconian, radical and illegal effort at unchecked “rate regulation.”

This wouldn’t be quite such a contentious issue if most of these companies didn’t have a 40 year track record of gobbling up taxpayer dollars for broadband deployments they never quite seem to finish. Or if they hadn’t made U.S. broadband so patchy and expensive due to relentless efforts at anti-competitive regional monopolization.

BEAD money is poised to start flowing to the states this fall, but big telecoms, if they wanted, could throw a wrench in the process over these modest requirements (AT&T’s already apparently doing this in Virginia). At which point, telecom giants (and the politicians bribed into a near-mindless fealty to them) will absolutely blame government for the entirely avoidable delay.

Say what you will about the roster of Trump apologists being hosted by the Volokh Conspiracy (and I will say plenty if given the chance), but at least Eugene Volokh continues to surface truly interesting cases. (Ilya Somin remains worth reading as well.)

And this one is one for the record books. Possibly the first First Amendment case that involves one human and one horse. And it’s no regular horse, which is why this is a First Amendment lawsuit. The horse in question was ridden by Ocean City (Maryland) police officer Matthew Foreman.

What started as a nuisance call quickly became something else once plaintiff Reniel Meyler realized just how easily Officer Foreman’s mount could be taken off task.

The opinion [PDF] issued by the Maryland federal court recounts the evening’s events that led to this lawsuit. Reniel Meyler finished his shift at work and then headed to a local bar. Having only arrived shortly before the Cork Bar’s closing, Meyler downed a beer and then headed out to the parking lot to socialize with a couple of his friends, Yokimba Bernier and Christoper Clarke. While waiting in the car for Clarke to return from taking a walk with another friend, Meyler and Bernier listened to some music at high volume.

How high? That’s not on the record. It was apparently loud enough to “draw the attention” of two Ocean City PD officers, one of which was riding a horse named “Moose.” As the officers (and their horse) approached, the pair turned down the volume.

Most of the ensuing encounter was captured on Officer Foreman’s body camera. What it captured was something out of the ordinary. But first, the ordinary stuff.

Immediately upon Foreman’s arrival on the scene, the following exchange took place.

Foreman: Where in the world do you guys think this is OK at 2 o’clock in the morning?

Meyler: Jamaica.

Foreman: Well then go back to Jamaica, cause you can’t do it here.

Bernier: [Inaudible]

Foreman: We can hear you [from] three blocks away, and you can go to jail for noise in Ocean City. OK? You guys really want to go to jail for noise?

Bernier: [Inaudible]

Foreman: No, not a ticket. Jail. Like, handcuffs. Jail. Noise.

Having established the baseline and his control of the scene, Foreman hung around to make sure the music didn’t again rise to law-breaking levels. However, it soon became clear that although Foreman had control of the scene, he no longer had control of his horse.

About 1 minute and 50 seconds into the video, Meyler turns towards Moose and makes some clicking sounds. Moose does not immediately react, but about five seconds later he visibly moves his head and appears to take a step or two in response to the clicking.

!!!

Officer Foreman reined in Moose to stop the movement. As the ruling notes, the horse appeared to “remain calm for the remainder of the video.” Not so for everyone else. Some more arguing about noise levels occurred with Officer Foreman delivering some noises of his own.

In response to either Bernier or Meyler, Foreman says “no, no, you don’t wave your hands at me, boom boom boom you go to these.” As he says “boom boom boom” Foreman takes out a pair of handcuffs and brandishes them in front of Meyler and Bernier, implying they will be arrested.

Shortly after Officer Foreman’s “boom boom boom,” Meyler went back to his click click click, earning this response from the horse’s boss:

“Stop antagonizing my horse. You’re not allowed to do that. You can’t interrupt my animal.”

Just an amazing set of sentences, each one more amazing than the last. Even in context, there’s nothing quite like a cop telling a civilian not to “interrupt” their “animal.”

Then Meyler’s friend (Bernier) decided to up the ante by declaring it wasn’t illegal to “interrupt” Foreman’s horse, pointing out that people pet police horses and talk to them or whatever without being threatened with an arrest. Au contraire, said Officer Foreman, albeit in different words. And different actions.

TL; DR: Meyler continued to click. Foreman continued to yell stuff about “interfering” with his horse. The end result was Meyler being arrested for antagonizing a cop, even if the cop said it was all about antagonizing an animal that remained pretty much unperturbed for the running time of the body cam video.

The official charges were “failure to obey a lawful order” and “interference with a police animal.” The charges were voluntarily dismissed by the prosecutor a month after the arrest. The lawsuit followed, with Meyler arguing being arrested for clicking at a police horse violated his First Amendment rights.

While Meyler still has the opportunity to pursue this in court (the complaint was dismissed without prejudice), it’s unlikely any of his federal constitutional claims have any chance of being found in his favor. (He still has a state law claim he can pursue, however.) And he certainly won’t be allowed to claim his free speech rights were violated when he was first told, then arrested for talking to a cop horse.

Unsurprisingly, there’s absolutely no precedent establishing this particular form of expression:

Here, Meyler has not pointed to a single case involving an arrest made under Ocean City’s police animal interference ordinance, or, for that matter, any case anywhere involving any claims of wrongful arrest related to alleged interference with police animals. Nor has he pointed to any cases involving the application of First Amendment rights to human-animal interactions.

With probable cause supporting the arrest and the complete lack of precedent in play, qualified immunity protects Officer Foreman from this lawsuit. And the court’s not about to use this case to establish Dr. Doolittle-esque precedent protecting people who say things to or make noises at government animals. Meyler’s moonshot has failed. He’ll just have to live with the less satisfying victory of having the charges dismissed. And, given the circumstances, that’s probably the better of both options.

One of the arguments sometimes made in defense of copyright is that without it, creators would be unable to compete with the hordes of copycats that would spring up as soon as their works became popular. Copyright is needed, supporters say, to prevent less innovative creators from producing works that are closely based on new, successful ideas.

However, this approach has led to constant arguments and court cases over how close a “closely based” work can be before it infringes on the copyright of others. A good example of this is the 2022 lawsuit involving Ed Sheeran, where is was argued that using just four notes of a scale constituted copyright infringement of someone else’s song employing the same tiny motif. A fascinating new paper looks at things from a different angle. It draws on the idea of “first-mover advantage”, the fact that:

individuals that move to a new market niche early on (“first movers”) obtain advantages that may lead to larger success, compared to those who move to this niche later. First movers enjoy a temporary near-monopoly: since they enter a niche early, they have little to no competition, and so they can charge larger prices and spend more time building a loyal customer base.

The paper explores the idea in detail for the world of music. Here, first-mover advantage means:

The artists and music producers who recognize the hidden potential of a new artistic technique, genre, or style, have bigger chances of reaching success. Having an artistic innovation that your competitors do not have or cannot quickly acquire may become advantageous on the winner-take-all artistic market.

Analyzing nearly 700,000 songs across 110 different musical genres, the researchers found evidence that first-mover advantage was present in 91 of the genres. The authors point out that there is also anecdotal evidence of first-mover advantage in other arts:

For example, Agatha Christie—one of the recognized founders of “classical” detective novel—is also one of the best-selling authors ever. Similarly, William Gibson’s novel Neuromancer—a canonical work in the genre of cyberpunk—is also one of the earliest books in this strand of science fiction. In films, the cult classic The Blair Witch Project is the first recognized member of the highly successful genre of found-footage horror fiction.

Although copyright may be present, first-mover advantage does not require it to operate – it is simply a function of being early with a new idea, which means that competition is scarce or non-existent. If further research confirms the wider presence of first-mover advantage in the creative world – for example, even where sharing-friendly CC licenses are used – it will knock down yet another flimsy defense of copyright’s flawed and outdated intellectual monopoly.

Follow me @glynmoody on Mastodon and on Bluesky. Originally posted to Walled Culture.