Trigger warning: This article contains references to rape and sexual assault

Games industry performers have raised concerns of being asked to act out explicit sexual content without notice.

In a recent report by BBC News, actors said that the "cultural secrecy around projects" results in scripts not being shared until the day of filming.

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Streaming giant Twitch has updated its policies on sexual harassment.

Twitch said it was "making some clarifications to our sexual harassment policy and sharing more about a new AutoMod category designed to flag chat messages that may contain sexual harassment."

"While our policy remains largely unchanged, these updates are designed to make the policy easier to understand," the team explained.

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From Luo v. Volokh, decided today by the California Court of Appeal, in an opinion by Justice Helen Bendix, joined by Justices Frances Rothschild and Victoria Gerrard Chaney:

Appellant Xingfei Luo, also known as Olivia Luo, twice sought a restraining order against respondent Professor Eugene Volokh pursuant to Code of Civil Procedure section 527.6. Luo sought to prevent Volokh from identifying her in his writings….

[Cal. Code Civ. Proc.] Section 527.6 provides an expedited procedure to prevent harassment. By definition, harassment must have "'no legitimate purpose.'" "Legitimacy of purpose negates harassment." Constitutionally protected activity also is excluded from the definition of harassment. A court must find harassment by clear and convincing evidence before issuing an order prohibiting the harassment.

Section 527.6 defines harassment as "unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner." A course of conduct is defined as "a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, facsimile, or email."

{Luo described the parties' relationship as follows: "Volokh has learned my info through litigation." Luo stated, "Volokh has published my info online and invited ha[t]ers to stalk, harass, threaten and commit violence against me. I continue to receive threatening and harassing phone calls and voice mails calling me cunt, slut, lying on men and indicating they will rape and kill me. At the end of July, I was forced to move out of my prior residence for safety concern."

Luo requested the trial court order Volokh to "[1] Remove any remarks, comments, or references from any publicly available documents or articles authored by [Volokh] that connect [her] real name with rape or sexual assault; [¶ 2] Remove any remarks, comments, or references from any publicly available documents or articles authored by [Volokh] that connect [her] with the cases in which she has received a protective order to proceed under a pseudonym; [¶ 3] Cease publishing any remarks, comments, or references that connect [her] with rape or sexual assault; [¶ 4] Cease drawing public attention to [her] name [when] associated with rape or sexual[ ] assault."

In a declaration filed in support of her petition for a restraining order, Luo averred that two unidentified persons telephoned her calling her "cunt, bitch, slut, lying on men" and threatening to rape and kill her. Luo did not know the callers' identities but assumed the callers read Volokh's writings. Luo, however, provided no evidence linking the callers to Volokh's writings. Luo averred that although she received court orders protecting her name because she was a victim of rape, Volokh published her name. Luo identifies no such court orders. Luo averred Volokh's "publication invites worldwide haters to threaten, stalk, and commit violence against me." Luo offered no citation to Volokh's writings supporting this assertion. Luo further averred she relocated because of these safety concerns.}

Volokh's conduct is not within the ambit of section 527.6's definition of harassment. Volokh's identification of Luo in a law review article and on his blog was not unlawful violence or a credible threat of violence. There was no evidence that Volokh stalked Luo, made harassing phone calls, or sent her harassing correspondence. Volokh's writings served a legitimate purpose—a discussion on how a litigant's use of a pseudonym could affect open access to court proceedings and impede investigations into a litigant's credibility. Luo's failure to cite to any evidence that Volokh harassed her within the meaning of section 526.7 is fatal to her argument that she demonstrated her restraining order petition has minimal merit….

The statute focuses "narrowly" on "interpersonal conflict." A section 527.6 restraining order may enjoin a "party from harassing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, abusing, telephoning, including, but not limited to, making annoying telephone calls, as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner." Luo did not request the trial court enjoin Volokh from any such proscribed activities.

Nothing in the statute precludes Volokh's identification of Luo by name….

Luo's contrary arguments are unpersuasive. She states, "If the writings, intentionally or inadvertently, embolden others to engage in harassing behavior towards Luo, they undermine any claim to legitimacy. Furthermore, if they perpetuate harmful stereotypes their purported legitimacy diminishes further." These arguments rest on incorrect factual premises because the record does not support Luo's belief that Volokh encouraged anyone to harass Luo. Luo provides no citation to any writing showing Volokh encouraged harassment or violence against her. Similarly, Luo cites no evidence that Volokh's writings "perpetuate harmful stereotypes," and we find none.

Luo states Volokh's writings are widely available and the "information, when in the wrong hands, can be weaponized to incite violence or harassment against a victim, such as Doe [Luo]." Luo argues Volokh has subjected her to "unnecessary public exposure and incitement." Again, Luo offers no evidence to support these assertions. Because there is no evidence Volokh encouraged others to commit violence or harassment against Luo, we do not consider whether section 526.7 could support a restraining order against someone who encourages others to harass….

{Given our conclusion that Luo's petition lacked minimal merit, we do not consider Volokh's other arguments supporting the trial court's ruling. We also do not address arguments that issuing a restraining order would violate Volokh's First and Second Amendment rights.}

Luo also tried to appeal the lower court orders depseudonymizing her (she originally sued me as a Jane Doe) and refusing to strike certain documents from her filings. The Court of Appeal, though, concluded that she incorrectly appealed those orders, and that the court therefore lacked jurisdiction to consider her appeal.

The Court of Appeal apparently did not see much basis for pseudonymity here, though: It on its own identified her by her name, even though the depseudonymization orders were stayed pending appeal, and she and I litigated the case as Doe v. Volokh. Thanks to Annika Boone Barkdull (Schaerr | Jaffe), who worked on the brief with me, and who represented me at oral argument.

The post My Identifying Would-Be Jane Doe Litigant in Law Review Article Wasn't "Harassment," appeared first on Reason.com.

Friday's decision in State v. Reeves, decided by Judge Jeffrey Clark (Del. Super. Ct.), evaluates the Delaware stalking law under which

he or she (1) "threatens, or communicates to or about another" on 3 or more separate occasions, (2) in a manner that would cause a reasonable person to fear for their safety or experience significant mental anguish or distress.

The court concluded that the statute would be unconstitutional as applied to certain contexts:

[T]he Statute would enable the prosecution of a doctor who tells a patient on at least three occasions that, although an operation may be necessary to save the patient's life, the effect of the operation will cause accompanying physical pain or injury. Likewise, the Statute would criminalize three complaints by a restaurant's customer on social media about poor service at the restaurant, that in turn, causes the owner severe mental anguish because his business failed as a result. The Statute would also criminalize when a person posts critical comments about another, at least three times, on social media when those comments would reasonably cause significant mental distress to another….

And the court had this to say about the state's argument that the law was constitutional because it only applied to "speech integral to criminal conduct":

In broad terms, the State seeks to characterize [the statute] as falling under [the] {speech integral to criminal conduct} exception in its entirety….

As an overview, the speech integral to criminal conduct exception is not as broad as the State contends. Nor is it an antidote, in and of itself, to Mr. Reeves' facial challenge. Typically, this exception has been limited to criminal conduct such as bribery, extortion, conspiracy, or the solicitation of others to commit a separate crime. For example, there is no First Amendment violation when the government prosecutes a defendant based upon a statement such as "pay me money, or I will report you for a crime." Nor is there First Amendment protection for a defendant's statement to a law enforcement officer offering money to avoid arrest. The speech in those examples is integral to criminal conduct in the same way as is speech used to extort or solicit another to commit a crime. Such speech deserves no First Amendment protection….

Some courts have incorrectly used this exception to rationalize upholding a statute that criminalizes speech … simply because their legislature passed a law labeling it criminal. The limited line of United States Supreme Court cases that have addressed this exception in no way supports such a broad reading.

First, in Giboney v. Empire Storage & Ice Co., the Supreme Court explained that, "[i]t rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute." There, the Court examined speech by a defendant used solely to solicit another to violate the law. Nothing in the Giboney decision supports broadening this exception to permit a legislature to define all speech as criminal.

After Giboney, the Supreme Court revisited the exception in United States. v. Williams. There, the Court considered a First Amendment challenge to a statute that criminalized a defendant's offer to distribute illegal child pornography. In Williams, the Court held that, "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection."

Then, more recently, in U.S. v. Hansen, the Supreme Court applied the speech integral to criminal conduct exception while explaining that speech intended to bring about a particular unlawful act has no social value and is, therefore, unprotected. Once again, Hansen fits within the historical pattern for this exception by applying it to the solicitation of another crime: an immigration law violation. All of the limited mandatory precedent applying this exception relies on one constant: the requirement that the speech be necessary to the commission of a totally separate crime.

The State did not fully explain its position regarding how [the stalking statute] could be considered a statute that criminalizes only speech integral to criminal conduct. Rather, it stresses that the General Assembly included speech and conduct within the definition of course of conduct. In that way, the State seems to contend that speech becomes conduct simply because the General Assembly defined it as such, thus ending the inquiry.

Several courts and commentators have recognized the difficulty of interpreting this exception so broadly because of the circularity of reasoning required to do so. {See, e.g., U.S. v. Matusiewicz (D. Del. 2015) ("[I]t is important that [the court] avoid interpreting Giboney's exception too broadly. Under the broadest interpretation, if the government criminalized any type of speech, then anyone engaging in that speech could be punished because the speech would automatically be integral to committing the offense. That interpretation would clearly be inconsistent with the First Amendment[.]"); see also Eugene Volokh, The "Speech Integral to Criminal Conduct" Exception, 101 Cornell L. Rev. 981, 1036 (2016) (arguing that it is inappropriate to apply Giboney to harassment and stalking statutes which allow speech to be criminalized based upon its offensive nature to its recipient, when speech that is "intended to annoy, offend, or distress does not help cause or threaten other crimes, the way solicitation or aiding or abetting does.").} For instance, the United States Court of Appeals for the Eight Circuit explained the pitfalls of such an application in U.S. v. Sryniawski, The Eight Circuit then addressed the need to limit the exception as follows:

Congress may not define speech as a crime, and then render the speech unprotected by the First Amendment merely because it is integral to speech that Congress has criminalized. To qualify as speech integral to criminal conduct, the speech must be integral to conduct that constitutes another offense and that does not involve protected speech."

As recognized by the Eight Circuit, were this Court to accept such an interpretation of this enumerated category, a legislature could define any type of speech as unlawful and supersede the First Amendment. That would be the antithesis to constitutional primacy over statutory law. It would permit mere statutes to swallow the First Amendment.

In Mashaud v. Boone, the District of Colombia Court of Appeals similarly rejected the argument that the District of Columbia's stalking statute permissibly curtailed speech "because it was integral to a criminal act— namely, stalking." There, the court characterized the argument as "fatally circular" and noted that, "[w]hile it is true that the First Amendment does not protect speech integral to criminal conduct, the speech must be integral to conduct that constitutes another offense that does not involve speech."

The State identifies case law in several states that have upheld applications of their statutes on the basis that the speech proscribed by the statute was speech integral to criminal conduct. For instance, in State v. Labbe, the Supreme Court of Maine examined the validity of Maine's stalking statute in light of Counterman. The Labbe court found that based upon the facts of that specific case, it was the defendant's "actions, not his words, that constituted the 'course of conduct' for which he was convicted and which cause the victim to suffer serious inconvenience and emotional distress." The Maine court also opined that some of the phone calls made by the defendant and directed toward the victim in Labbe were not really speech at all. Many of the calls were non-communicative because they consisted of the defendant's repeated calls and hang ups, leaving dead air, and breathing into the phone. The Labbe decision, although couched as a facial challenge, came after trial and more appropriately involved an as-applied analysis. Some court decisions, such as the Maine court in Labbe, have incorrectly blurred the difference.

The State also relies on State v. Hemmingway, where the Court of Appeals of Wisconsin held that because a defendant's speech was "incidental to and evidence of his intent to engage in a course of conduct that he knew or should have known would instill fear of violence in [the victim,] such stalking conduct does not trigger First Amendment scrutiny or protection." In essence, the Wisconsin court found valid a state legislature's statutory override of First Amendment protection simply because it labeled speech as criminal conduct. As in Labbe, the Wisconsin court in Hemmingway applied the facts of an individual case developed after trial, while couching its decision as a facial one. The authority cited by the State is unpersuasive because this exception does not properly permit a state legislature unrestricted license to define speech as criminal by redefining it as conduct….

The court nonetheless concluded that the overbreadth of the statute wasn't substantial enough, relative to its legitimate sweep, to make the statute unconstitutionally overbroad. Moreover, no as-applied challenge was brought in this particular motion (and, judging by the alleged facts, I think it likely that such a challenge would fail):

On balance, components of the State's prosecution of Mr. Reeves may fall, in part, within the speech integral to criminal conduct exception. {For instance, the State charges Mr. Reeves with an act of intimidation. To the extent that speech was used to intimidate the alleged victim into not filing a complaint against him, that application may fall within the speech integral to criminal conduct exception. That crime, in turn, may qualify as a component act within Mr. Reeves' alleged course of conduct that amounts to stalking.}

As a result, the prosecution can continue. But I think the court was quite right to reject the argument that a law criminalizing (for instance) speech that "communicates … about another" three or more times, "in a manner that would cause a reasonable person to … experience significant mental anguish or distress," is constitutional simply because such speech is integral to the criminal prohibition itself.

The post Delaware Court on the First Amendment Exception to "Speech Integral to Criminal Conduct" appeared first on Reason.com.

Here's the relevant text, from S8206 (sponsored by Sen. Jeremy Cooney and pending before the N.Y. Senate Internet and Technology Committee):

Every operator of a generative or surveillance advanced artificial intelligence system that is accessible to residents of the state shall require a user to create an account prior to utilizing such service. Prior to each user creating an account, such operator shall present the user with a conspicuous digital or physical document that the user must affirm under penalty of perjury prior to the creation or continued use of such account. Such document shall state the following:

"State of New York
County of _______

I, ________ residing at ________, do affirm under penalty of perjury that I have not used, am not using, do not intend to use, and will not use the services provided by this advanced artificial intelligence system in a manner that violated or violates any of the following affirmations:

1. I will not use the platform to create or disseminate content that can foreseeably cause injury to another in violation of applicable laws;
2. I will not use the platform to aid, encourage, or in any way promote any form of illegal activity in violation of applicable laws;
3. I will not use the platform to disseminate content that is defamatory, offensive, harassing, violent, discriminatory, or otherwise harmful in violation of applicable laws;
4. I will not use the platform to create and disseminate content related to an individual, group of individuals, organization, or current, past, or future events that are of the public interest which I know to be false and which I intend to use for the purpose of misleading the public or causing panic."

Such a government-imposed oath requirement would clearly violate the First Amendment, because it would restrict the user's ability to create constitutionally protected material (and, at least as to some terms, is likely unconstitutionally vague):

1. Speech "that can foreseeably cause injury to another" is generally constitutionally protected (consider, for instance, the republication of political or religious speech that has in the past led some people to act violently).
2. Speech that "encourage[s]" or "promote[s]" "illegal activity" is generally constitutionally protected, unless it fits within the narrow exceptions for intentional solicitation of specific criminal acts (e.g., against specific victims) or for speech intended to and likely to incite imminent criminal conduct.
3. Much "offensive," "violent," "discriminatory," and "otherwise harmful" speech is constitutionally protected (and "applicable laws," if they purport to ban such speech, would often be unconstitutionally overbroad).
4. Courts have generally concluded, to quote then-Judge Samuel Alito, that "There is no categorical 'harassment exception' to the First Amendment's free speech clause." Some speech that is sometimes labeled "harassing" is constitutionally unprotected (e.g., unwanted speech said to a particular person), but other allegedly "harassing" (e.g., unwanted speech about a person) may not be.
5. Even knowing falsehoods about historical events generally, or about the government, or about other broad topics (as opposed to knowing falsehoods about particular individuals or nongovernmental organizations) are constitutionally protected, as are some knowing falsehoods about oneself.

The post N.Y. Bill Would Require Users to Swear They Won't Use Generative AI to Produce "Offensive, Harassing, Violent, [or] Discriminatory" Speech appeared first on Reason.com.