October 16, 2019 5:19PM

You Can’t Copyright the Law

Georgia gives the legal resource database Lexis an exclusive copyright to publish the Official Code of Georgia Annotated (OCGA), thus restricting its citizens’ ability to access and understand the laws that bind them. Pub​lic​.Resource​.org (PRO) is a nonprofit dedicated to improving the public’s access to government records and primary legal materials. PRO purchased all 186 printed volumes of the OCGA, scanned them, and uploaded them to their website to be freely accessed. The Georgia Code Revision Commission sent letters to PRO demanding that they take the OCGA down, but PRO refused, prompting a lawsuit.

PRO argued that the general rule that government codes and judicial opinions can’t be copyrighted should also apply to annotated codes. They won in the Eleventh Circuit, but Georgia appealed to the Supreme Court and the Court agreed to hear the case. Cato, joined by the Center for Democracy and Technology, has filed a brief in support of Pub​lic​.Resource​.org. We argue that the logic behind copyright does not apply to codes of law that bind the public, even if the code has annotations.

An exclusive copyright over the product of normal legislative deliberation is a violation of the public’s trust. The people fund the government, including legislators’ salaries, in exchange for the enactment of laws designed to ensure public safety and order. Lawmakers certainly do not need copyright protection to incentivize creating laws. Georgia argues that the annotations — various cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, etc. — are deserving of copyright, and Lexis does provide free access to the unannotated Georgia Code. But the annotations are vital to understanding the law and are created by the Code Revision Commission. Like the code itself, the annotations are, in the words of the Eleventh Circuit, “an exercise of sovereign power.”

Providing the public with unfettered access to the laws that bind them is not only a matter of fundamental fairness, but necessary for those who wish to follow them to the letter. Limiting access — the Lexis service costs about $400, or two weeks’ worth of groceries for the average Georgia family — makes it difficult for citizens to understand their legal obligations fully. If ignorance of the law is no defense to criminal conduct, then members of the public have a right to learn what the law demands of them.

Moreover, granting exclusive copyright to an online database could pose legitimate privacy concerns for those who access it. Lexis tracks users’ search histories, many of whom would be less than enthused at the prospect of their inquiries into the legality of certain activities falling into the hands of law enforcement, by warrant or simply by request (whether or not the activities in question are criminal or simply lascivious). Since Lexis’s opaque terms of use change regularly — and could take nearly four hours to read on a good day — Georgians, have no real choice but to surrender their privacy in exchange for essential legal knowledge.

Georgia is one among a handful of states that have placed similar limits on access to the official codification of its laws. It is a trend that must not continue. This case is pivotal in returning the copyright power to a proper relationship with the First Amendment.

September 23, 2019 5:04PM

Dead Men Get No Political Favors

The Libertarian National Committee (LNC) is a small political party that received a surprise gift. When Joseph Shaber passed away, he left the LNC about $235,000. The LNC didn’t even know about the bequest until it was received. Prior to the gift, Mr. Shaber had been a small donor to the party, giving 46 small donations totaling just over $3,300 during his life.

The bequest created a problem. By statute, the most any person can contribute to any political party in any given year is $35,000. The Federal Election Committee (FEC) applies the same contribution limits to the dead as to the living, so Shaber’s gift was about seven times the contribution limit. For large bequests, the FEC requires that the money to be put in trust and parceled out each year as if the deceased had gone on living.

But that ignores a more fundamental question: why should bequests to political parties be limited? Contributions to political parties by living people have been limited since the 1970s. In the foundational case of Buckley v. Valeo, the Supreme Court upheld contribution limits on the theory that they help prevent quid pro quo corruption — the purchasing of political favors with donations. The Court acknowledged that contribution limits are prophylactic. Most contributions are not made to elicit political favors, but all contributions are limited in order to protect against the possibility. It’s hard to imagine, however, a dead person receiving political favors, much less the need for a prophylactic rule to guard against the possibility.

The LNC sued, arguing that the FEC’s restrictions on bequests are irrational and violate the party’s First Amendment rights. Now on petition to the Supreme Court, Cato has filed a brief in support. We argue that bequests have significant expressive content. If a deceased father gives twice as much to his daughter as his son, the children will definitely get the message conveyed by their father. The expressiveness of a bequest is clearly tied to the amount. Moreover, there is minimal chance of a quid pro quo agreement with the dead. It’s feasible, perhaps, that the heirs of the deceased could monitor politicians for delivering political favors, but very unlikely.

So far this year, political parties have raised almost $2 billion. Over the last few decades, a scant $3.7 million has been given to political groups via bequest. Bequests are rare enough, and corruption is unlikely enough, that a prophylactic rule is unnecessary. This case shows what happens when an anomaly — bequests are a rounding error in the scope of campaign finance law — is treated as an ordinary yearly contribution. The Supreme Court should grant review and let the dead rest in peace with the knowledge that their last testament will be carried out.

July 15, 2019 5:04PM

Misleading Project Veritas Accusations of Google “Bias” Could Prompt Bad Law

Tomorrow, the Senate’s Judiciary Committee’s Subcommittee on The Constitution will hold a hearing on Google’s alleged anti-conservative bias and “censorship.”  In a video released last month, James O’Keefe, a conservative activist, interviews an unnamed Google insider. The film, which has been widely shared by conservative outlets and cited by Sen. Ted Cruz (R-TX) and President Donald Trump, stitches a narrative of Orwellian, politically-motivated algorithmic bias out of contextless hidden camera footage, anodyne efforts to improve search results, and presumed links between unrelated products. Although the film’s claims are misleading and its findings unconvincing, they are taken seriously by lawmakers who risk using such claims to justify needless legislation and regulation. As such, they are worth engaging (the time stamps throughout this post refer to the Project Veritas video that can be viewed here).

Search algorithms use predefined processes to sift through the universe of available data to locate specific pieces of information. Simply put, they sort information in response to queries, surfacing whatever seems most relevant according to their preset rules. Algorithms that make use of artificial intelligence and machine learning draw upon past inputs to increase the accuracy of their results over time. These technologies have been adopted to improve the efficacy of search, particularly in relation to the gulf between how users are expected to input search queries, and the language they actually use to do so. They are only likely to be adopted to the extent that they improve the user’s search experience. When someone searches for something on Google, it is in the interest of both Google and the user for Google to return the most pertinent and useful results.

Board game enthusiasts, economics students, and those taking part in furious public policy debates over dinner all may have reasons to search for “Monopoly.” A company that makes it the easiest for such a diverse group of people to find what they’re looking for will enjoy increased traffic and profit than competitors. Search histories, location, trends, and additional search terns (e.g. “board game,” “antitrust”) help yield more tailored, helpful results.

Project Veritas’ film is intended to give credence to the conservative concern that culturally liberal tech firms develop their products to exclude and suppress the political right. While largely anecdotal, this concern has spurred hearings and regulatory proposals. Sen. Josh Hawley (R-MO) recently introduced legislation that would require social media companies to prove their political neutrality in order to receive immunity from liability for their users speech. Last week, President Trump hosted a social media summit featuring prominent conservative activists and conspiracy theorists who claim to have run afoul of politically biased platform rules.

The film begins by focusing on Google’s efforts to promote fairer algorithms, which are treated as attempts to introduce political bias into search results. The insider claims that while working at Google, he found “a machine learning algorithm called ML fairness, ML standing for machine learning, and fairness meaning whatever they want to define as fair.” (6:34) The implication being that Google employees actively take steps to ensure that Google search results yield anti-conservative content rather than what a neutral search algorithm would. Unfortunately, what a “neutral” algorithm would look like is not discussed.

Although we’re living in the midst of a new tech-panic, we should remember that questions about bias in machine learning and attempts to answer them are not new, nor are they merely a concern of the right. Rep. Alexandria Ocasio-Cortez (D-NY) and the International Committee of the Fourth International have expressed concerns about algorithmic bias. Adequate or correct representation is subjective, and increasingly a political subject. In 2017, the World Socialist Web Site sent a letter to Google, bemoaning the tech giant’s “anti-left bias” and claiming that “Google is “’disappearing’ the WSWS from the results of search requests.”

However, despite the breathlessness with which O’Keefe “exposes” Google’s efforts to reduce bias in its algorithms, he doesn’t bring us much new information. The documents he presents alongside contextless hidden camera clips of Google employees fail to paint a picture of fairness in machine learning run amok.

One of the key problems with O’Keefe’s video is that he creates a false dichotomy between pure, user created signals and machine learning inputs that have been curated to eliminate eventual output bias. The unnamed insider claims that attempts to rectify algorithmic bias are equivalent to vandalism: “because that source of truth (organic user input) has been vandalized, the output of the algorithm is also reflecting that vandalism” (8:14).

But there is little reason to presumptively expect organic data to generate more “truthful” or “correct” outputs than training data that has been curated in some fashion. Algorithms sort and classify data, rendering raw input useful. Part of tuning any given machine learning algorithm is providing it with training data, looking at its output, and then comparing that output to what we already know to be true.

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June 19, 2019 6:01AM

Iowa Channels Colonel Jessup in Prosecuting Truth‐​Telling

“You can’t handle the truth!” So says Jack Nicholson’s cantankerous Colonel Nathan R. Jessup in A Few Good Men upon the prosecutor’s needling inquisition into the death of a young Marine. So also say the paternalistic officials of Davenport, Iowa to tenants who seek to learn whether their eviction was motivated by what they would consider to be a good or bad reason. The Supreme Court has long held that “hurtful” speech — even outright hate speech — shares the same level of First Amendment protection as a friendly greeting. Two years ago in Matal v. Tam, the Court summarized the law thus: “Speech may not be banned on the ground that it expresses ideas that offend.”


Well, Iowa courts seem to disagree with the U.S. Supreme Court. Theresa Seeberger of Davenport leased a single‐​family residence to Michelle Schreur and her 15‐​year‐​old daughter. After a history of late payments and other bad feelings, Seeberger finally decided to evict the two when the daughter got pregnant. When Schreur asked for the reason for the eviction, Seeberger listed some general grievances and then said that “[n]ow you’re going to bring another person into the mix.” While there are no local laws against evicting tenants for this reason, Davenport prohibits landlords from informing evictees of potentially discriminatory reasoning (family status being a protected category for this purpose).


The Iowa appellate court upheld fines (in the tens of thousands of dollars) that the Davenport Civil Rights Commission imposed on Seeberger, reasoning that her statement to Schreur was “commercial speech” and that the law prevents “landlords from subjecting prospective tenants to the stigmas associated with knowingly being discriminated against.” The Iowa Supreme Court allowed that ruling to stand.


But the government can’t use its desire for politeness as a weapon to “protect” residents from an offensive or derogatory opinion, especially in areas as important as eviction. Prodded by certain voices in the academy, a growing segment of the American public believes that the First Amendment does not in fact protect “hate” speech (whatever that means). This despite a long line of Supreme Court opinions that protect, among other things, callous protests near a fallen soldier’s funeral, the hurtful exclusion of gay organizations from a St. Patrick’s Day parade, and neo‐​Nazi marches designed to intimidate Holocaust survivors. We doubt there is anything different about the “commercial” context that should allow for the restriction of speech far less offensive than some of the things said in the non‐​commercial marketplace of ideas.


Laws that stop us from telling the truth strike at the heart of the First Amendment and foreshadow a brave new world in which a paternalistic and inevitably puritanical state determines to prohibit that which offends, upsets, disgusts, hurts, demeans, insults, stigmatizes, or, dare we say, “triggers.” Cato has thus joined with the Hamilton Lincoln Law Institute to file an amicus brief in support of Seeberger’s petition for review by the U.S. Supreme Court, seeking reversal of a state court ruling that undermines core tenets of First Amendment jurisprudence.


Far from protecting the Schreurs of the world from the “stigmas associated with knowingly being discriminated against,” statutory prohibitions against informing tenants of discriminatory motivations behind their eviction can only do more harm than the truth — depriving people of an honest answer to a very basic question: Why are you terminating my lease?


The Supreme Court will decide whether to take up Seeberger v. Davenport Civil Rights Commission in September upon returning from its summer recess.

March 14, 2018 3:12PM

Facebook and the Future of Free Speech

Britain First is a far-right ultranationalist group” hostile to Muslim immigrants in the United Kingdom. They are active online with significant consequences for their leaders if not for British elections. The leaders of Britain First, Paul Golding and Jayda Fransen, were incarcerated recently for distributing leaflets and posting online videos that reflected their extreme antipathy to Muslims. Fransen received a 36 week sentence, Golding 18 weeks. Britain First was banned from Twitter in late 2017. Now Facebook has taken down both the official Facebook page of the group and those of its two leaders.

Like many European nations, Great Britain has much more narrow protections for freedom of speech than the United States. The United States does not recognize a “hate speech” exception to the First Amendment. Great Britain criminalizes and sanctions such speech. This case is much more interesting, however, than this familiar distinction. The Britain First takedown offers a glimpse of the future of speech everywhere.

The leaders of Facebook did not just wake up on the wrong side of the bed and decide to take down Britain First’s page. Its official statement about the ban says from the start: “we are very careful not to remove posts or Pages just because some people don’t like them.” In this case, the page violated Facebook’s Community Standards against speech “designed to stir up hatred against groups in our society.” The statement does not say which posts led to the ban but The Guardian reports they “included one comparing Muslim immigrants to animals, another labelling the group’s leaders ‘Islamophobic and proud,’ and videos created to incite hateful comments against Muslims.” I understand also that Facebook gave due notice to the group of their infractions. That seems plausible. Almost three months have passed since Twitter banned Britain First. Perhaps Facebook eventually concluded Britain First had no intention of complying with their rules.

You might think Facebook has violated the freedom of speech. But that’s not the case. The First Amendment states that Congress (and by extension, government at all levels) “...shall make no law abridging the freedom of speech.” If the United States government had banned an America First! website, the First Amendment would be relevant. But Facebook is not the government even though they must govern a platform for free speech. But that platform is owned by Facebook. They can govern it as they wish. Most likely they will govern it to maximize shareholder value.

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March 9, 2018 9:03AM

These Kids Today: The Long History of Complaining About Violent Entertainment

On Thursday, President Trump held a meeting to discuss how and whether violent video games affect gun violence, particularly school shootings. Before getting into the details of this claim, perhaps we should take a step back and read a classic fairy tale from 1812, printed in the Brothers Grimm’s Nursery and Household Tales and titled “How the Children Played Butcher with Each Other”:

A man once slaughtered a pig while his children were looking on. When they started playing in the afternoon, one child said to the other: “You be the little pig, and I’ll be the butcher,” whereupon he took an open blade and thrust it into his brother’s neck. Their mother, who was upstairs in a room bathing the youngest child in the tub, heard the cries of her other child, quickly ran downstairs, and when she saw what had happened, drew the knife out of the child’s neck and, in a rage, thrust it into the heart of the child who had been the butcher. She then rushed back to the house to see what her other child was doing in the tub, but in the meantime it had drowned in the bath. The woman was so horrified that she fell into a state of utter despair, refused to be consoled by the servants, and hanged herself. When her husband returned home from the fields and saw this, he was so distraught that he died shortly thereinafter.  

The end.

Violent entertainment is nothing new, nor is the older generation complaining about it. In usual Trump fashion, he claimed to be “hearing more and more people say the level of violence on video games is really shaping young people's thoughts.” But it’s not true. People all over the world play video games, especially young boys, and there's no resulting correlation to acts of violence. Actually, some studies have shown that violent video games might reduce crime by keeping young men off the street and glued to their TVs. 

In 2011, the Supreme Court decided the case of Brown v. Entertainment Merchants Association, holding that California's 2005 law banning the the sale of "violent" video games to minors violated the First Amendment. Cato filed a brief in that case that documented the history of complaints about uniquely violent entertainment and the effectiveness of industry self-regulation--such as the MPAA movie ratings, the ESRB ratings for video games, and the Comics Code--over ham-handed government oversight. The Court cited Cato's brief in its opinion.

Due to Brown, any federal law regulating violent video games is likely to be struck down by the courts. That doesn't mean, however, that Trump and other government agents can't make things uncomfortable for the industry. Most likely, we'll just hear a bunch of complaining about "these kids today" from older generations. Everything old is new again, particularly when new forms of entertainment come around that are foreign to older generations.

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February 20, 2018 4:15PM

New York Attorney General Schneiderman Goes After Citizens United’s Donors

New York Attorney General Eric Schneiderman demands out-of-state charities disclose all donors for his inspection. He does not demand this of all charities, only those he decides warrant his special scrutiny. Schneiderman garnered national attention for his campaign to use the powers of his office to harass companies and organizations who do not endorse his preferred policies regarding climate change. Now, it seems he seeks to do the same to right-of-center organizations that might displease him. Our colleague Walter Olson has cataloged Schneiderman’s many misbehaviors.

He’s currently set his sights on Citizens United, a Virginia non-profit that produces conservative documentaries. While Citizens United has solicited donations in New York for decades without any problem, Schneiderman now demands that they name names, telling him who has chosen to support the group. Citizens United challenged this demand in court, arguing that to disclose this information would risk subjecting their supporters to harassment and intimidation.

These fears are not mere hyperbole. If the name Citizens United rings a bell, it’s because the organization, and the Supreme Court case of the same name, has become the Emmanuel Goldstein of the American left, complete with Democratic senators leading a ritualistic two minutes hate on the Senate floor. In 2010, the Supreme Court upheld its right to distribute Hillary: The Movie, and ever since “Citizens United” has been a synecdoche for what Democrats consider to be the corporate control of America. Is it unwarranted to think that their donors might be subjected to the sort of targeted harassment suffered by lawful gun owners, or that Schneiderman might “accidentally” release the full donor list to the public, as Obama’s IRS did with the confidential filings of gay marriage opponents?

The Supreme Court has long recognized the dangers inherent in applying the power of the state against the right of private association. The cornerstone here is 1958’s NAACP v Alabama. For reasons that hardly need be pointed out, the NAACP did not trust the state of Alabama, in the 1950s, to be good stewards of its membership lists. “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs,” wrote Justice John Marshall Harlan II, who went as far as to compare such demands to a “requirement that adherents of particular religious faiths or political parties wear identifying arm-bands.” More recently, Justice Alito pointed out in a similar context that while there are undoubted purposes served by reasonable, limited disclosure requirements, the First Amendment requires that “speakers must be able to obtain an as-applied exemption without clearing a high evidentiary hurdle” regarding the potential harms of disclosure.

But the Second Circuit Court of Appeals has decided it knows better than the Supremes. On Thursday, it ruled that Citizen United’s challenge should be thrown out without even an opportunity to prove their case. In the process, it effectively turned NAACP into a “Jim Crow” exception to a general rule of unlimited government prerogative to panoptic intrusion into citizen’s political associations. While there can be no doubt that the struggle for civil rights presented a unique danger for its supporters, this should not mean that only such perils warrant First Amendment protection.

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