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Does the First Amendment Protect False and Misleading Speech?


Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course
Posted: February 9, 2012 @ 5:06 pm

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Last week I wrote an article titled Stopping Online Piracy in the Age of Entitlement, which lamented the egregiously false claims made by those who challenged and protested the Stop Online Piracy Act (SOPA).  The truth is there are anarchists who simply believe that they have the right to steal creative works of others without paying for them and that causes real damage to businesses, to the economy and to workers who lose their jobs or are not hired.

A recent comment to the aforementioned article explained the problem perfectly.  The commenter — Big Greg — explained:

[T]heft of our company’s creative works occurs regularly and costs real money. The effort our small group is forced to spend policing our IP from both ignorant and purposeful Internet thieves is so unproductive. And, win or lose, the cost to play in federal court is so daunting. I’d much rather put that effort and those resources into growing a business, hiring creative staff and making tangible contributions to our customer’s lives.

Those who don’t want to believe the Chamber of Commerce statistics about how many jobs are lost as the result of rampant copyright infringement are more than welcome to stick their heads in the sand.  But where are the fact based arguments?  All I hear is “you can’t trust the Chamber.”  Fine, what is the truth?  Do you really believe the theft of intellectual property doesn’t cost jobs?  Sadly there are some that do seem to believe that, or who at the very least want to convince themselves and others that intellectual property theft is a victimless crime.  It is extremely naive to pretend that such theft doesn’t negatively impact the economy and jobs.

If a wild crowd of angry hooligans raged into your real world store and stole from you no one would question the damage, but the intellectual property anarchists find it acceptable that movies that cost $100 million or more to make are copied and freely distributed on the Internet on opening day.  Talk about intellectual dishonesty.

One of the things that irritated me the most about the SOPA debate, if you can even call it that, was the lying.  The New York Times was once known as the paper of record in the United States, but now it seems to print lie after lie as if it is their right under the First Amendment to spew falsehoods in an attempt to sway public policy.  I said in a comment to the aforementioned article that I thought it was about time the New York Times be sued for the lies they tell.

Subversion of the truth to forward a personal agenda or to dominate debate should not be protected speech under the First Amendment.  The press is supposed to protect and inform, not pick a side and then lie and misrepresent so that the chosen side prevails.  The First Amendment was never intended to provide media elite with the ability to dominate public discourse.

Before going any further, let’s set the table and expose the New York Times lie once again. In the New York Times Rebecca MacKinnon wrote:

The bills would empower the attorney general to create a blacklist of sites to be blocked by Internet service providers, search engines, payment providers and advertising networks, all without a court hearing or a trial.

For whatever reason MacKinnon choose to lie and build her entire argument around something that is provably false if only you read Section 102 of SOPA.  Section 102 of SOPA required the Attorney General to file an action in federal court, and Section 102 specifically explained how service of process is to be affected and what the Federal District Court Judge can Order in terms of a remedy against a website that blatantly engages in infringing activities.  So for MacKinnon, or anyone else, to say that SOPA violates due process or allows for penalties “without a court hearing or a trial” is simply false.  Either it is a lie purposefully intended to manipulate public policy and defend intellectual property thieves or it shows the utter clueless nature of the commentary allowed in the New York Times.

Let’s return to my comment that started the firestorm.  I wrote:

As far as SOPA, protests are fine. What is not fine, in my opinion, is lying to manipulate the outcome. The NY Times and others lied about the provisions of SOPA. Lying to prevail shouldn’t be protected speech under the First Amendment. The First Amendment doesn’t absolutely allow false speech or speech that misrepresents. Someone ought to sue the NY Times and other news agencies for the clearly false things they say that impact policy. Their lies shouldn’t be allowed to negatively impact decision making.

Yes, I had the audacity to say what is objectively correct.  There is no absolute right under the First Amendment to engage in false or misleading speech.  Despite the fact that this statement is legally 100% correct you would have thought I was engaging in treasonous behavior.  What made it all the more comical was that it was the anarchists who seemed most upset, both in comments on IPWatchdog and in a variety of Twitter and blog articles that sought to paint me as some kind of crazy.  You see the anarchists got so upset because the only play in their playbook is to lie and misrepresent in order to pull the wool over the eyes of enough people that they can get their way.  That is where America is currently and if you ask me that is wholly unacceptable.

The First Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

So Congress cannot make any law abridging the freedom of speech, or of the press.  Simple enough, right?  The only trouble is that the First Amendment does not actually mean what is says.  The First Amendment talks in broad, sweeping terms, but there are a plethora of instances where there are laws that affect the freedom of speech, and the freedom of the press.  For example, defamation law has always been considered to be consistent with the First Amendment despite the fact that individuals that engage in libel or slander are held to account for the false or misleading things that they say.  Even those who publish things that are found to be defamatory are held to account, so obviously that is one instance where laws are allowed to abridge the freedom to lie and/or misrepresent, as well as the right to publish lies and/or misrepresentations.

There are other examples as well.  The Federal Trade Commission describes its mission as preventing “business practices that are anticompetitive or deceptive or unfair to consumers; to enhance informed consumer choice and public understanding of the competitive process…” This mission is achieved, at least in part, by going after those who commit fraud or engage in misrepresentations.  For example, see this sampling of FTC actions that restrict speech that was fraudulent or deceptive, all from 2012:

The Securities and Exchange Commission similarly goes after publicly traded companies for making false or misleading statements.  To illustrate the point see, for example:

Still further, 37 CFR 240.14A-9 says:

No solicitation subject to this regulation shall be made by means of any proxy statement, form of proxy, notice of meeting or other communication, written or oral, containing any statement which, at the time and in the light of the circumstances under which it is made, is false or misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading or necessary to correct any statement in any earlier communication with respect to the solicitation of a proxy for the same meeting or subject matter which has become false or misleading.

Then there is trademark law, which also prevents false or misleading statements.  15 U.S.C. 1125(a)(1)(B) says:

Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false or misleading description of fact, or false or misleading representation of fact, which . . . misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person=s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

Moreover, recently the United States Supreme Court has said that it is not a violation of the First Amendment even when Congress removes works previously in the public domain and grants copyright protection to them.  See Supreme Court OKs Public Domain Works Being Copyrighted.

So to anyone paying attention to the law in general it would be obvious that there are a whole host of areas where laws prohibit false and misleading statements and none of these statutes or rules has ever been declared unconstitutional as violating the First Amendment, despite these laws frequently being at issue in cases before the Supreme Court.

But what about the Supreme Court?  Has the Supreme Court, who is the final arbiter of what the U.S. Constitution means, ever specifically said that there is no absolute right to engage in false or misleading speech?  Have they ever said that the First Amendment doesn’t protect false or misleading speech?  You bet!  See:

  • “Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.” Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)
  • “The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see Friedman v. Rogers, 440 U.S. 1 (1979), or that proposes an illegal transaction, see Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376 (1973). Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626 (1985).
  • “When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech and therefore justifies less than strict review. However, when a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands.” 44 Liquormart v. R.I., 517 U.S. 484 (1996).
  • “I have no quarrel with the principle that advertisements that are false or misleading, or that propose an illegal transaction, may be proscribed. Furthermore, I acknowledge this Court’s longstanding assumption that a consumer-fraud regulation that compels the disclosure of certain factual information in advertisements may intrude less significantly on First Amendment interests than an outright prohibition on all advertisements that have the potential to mislead.” Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324 (2010)(J. Thomas concurring in part and concurring in judgment).
  • “Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, commercial speech related to illegal activity.” Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980).

So I was right and those who want to believe that the First Amendment protects any and all false or misrepresenting speech were wrong.  But that begs the question.  If advertisers and businesses are so regulated and cannot make false or misleading statements, why should pseudo news organizations like the New York Times be allowed to make false or misleading statements?  The freedom of the press seems built upon the foundation that the press are the protectors of society by informing; performing a watchdog function.  Well excuse me for noticing that the press takes sides and has largely abdicated any watchdog function.  That being the case why shouldn’t they have to play by the same rules as all other for profit businesses?  Do pseudo news organizations like the New York Times really deserve special treatment when they simply pander to what their audience wants to hear?

With this in mind I return to the point that set this argument off.  In my opinion it is wholly unacceptable for pseudo news agencies like the New York Times to spew false and misleading information in order to impact debate and promote the side of the argument they have deemed most worthy to prevail.  I am sick and tired of lie after lie impacting public policy and impacting the outcome of elections.  It is subversive to engage in lying to achieve an end that affects the masses, plain and simple.  It is time to take the fight to those anarchists and arrogant elites who think they know better and are willing to lie to have their views dominate.

Heretofore the United States Supreme Court has said that we do need to tolerate lies and misrepresentations and the fact that such activities erroneously skew public policy debate is not a reason to prohibit that speech.  It is time to revisit those cases and that thinking in light of new societal realities.  The law prohibits false and misleading speech consistent with the First Amendment when damage is done and people are injured as the result of false or misleading speech.  Our country is being stolen out from under us by lies and misrepresentations and in the sound-bite era the masses remain blissfully ignorant.  Our elected leaders are crippled.  Even if they knew what the right things to do were they couldn’t ever do it for fear of angry mobs being incited by those who lie and misrepresent.

But wait?  You don’t have a First Amendment right to yell “FIRE” in a crowded theater or a First Amendment right to incite a riot.  Witness the Oakland Occupy movement.  Witness protests in the mid-West that threaten politicians and shut down government buildings.  I hardly recognize America any more.  Journalists have always been largely liberal, but now they seem to be a fully owned subsidiary for the entitlement society that is willing to say anything and do anything to get their way.

Truly protecting content creators and punishing those who willfully and intentionally engage in copyright infringement not only makes perfect common sense, but it also would be good for the economy.  Hopefully Congress will figure that out as debate renews on ways to prohibit online piracy.

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Posted in: Copyright, Gene Quinn, IP News, IPWatchdog.com Articles, US Supreme Court

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

40 comments
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  1. Gene –

    Who is to determine what is false or misleading in an opinion? If absolute truth, whatever that is, were the standard, politicians and commentators would be locked up. (Pants on Fire?) The misrepresentation may be bad but setting up Truth Panels has the ring of the Moscow Show Trials (see Arthur Koestler’s Darkness at Noon) or the leaders of the Chinese Cultural Revolution.

    Your citations are to restrictions on commercial, not political speech. Your quote from Schenck v. US leaves out important parts. If someone shouts “fire” in a crowded theater, the shout must be false, it must cause a panic, and there must be a clear and present danger of an evil that Congress may prohibit.

    Louis Brandeis put it aptly: the remedy to be applied is more speech, not enforced silence. Whitney v. California.

  2. I can easily see where a particular religious viewpoint could be considered false and misleading despite the sincere belief of its followers. Not that such things have historical precident of leading to horrific persecution in other times and places……

  3. Gene,

    Does the mere reading of an affidavit by a judge constitute a “hearing”?

    Your argument seems to hinge on the contents of Rule 65 of the FRCP to which SOPA refers?

    http://www.law.cornell.edu/rules/frcp/rule_65

    SOPA allows the AG to seek a Temporary Restraining Order under Rule 65. Rule 65(b) states:

    (1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

    (A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

    (B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

    Here, Rule 65(b)(1)(B) requires that efforts made to give notice — such as those that SPOE 102(b)(3) — be made.

    So, if the mere submission of an affidavit and an effort to give notice is all that is required for a TRO, where’s the hearing? Does the mere reading of an affidavit buy a judge constitute a hearing? If it does not, then the NYT reporter is not int incorrect.

    If there are other parts of SOPA or the FRCP that I’ve missed, then please point them out.

  4. Gene:

    I agree with your premise. I also would point out that it used to be that you might get slanted coverage (editors have always been able to insert their leanings into the overall presentation of news) but you were warned when you were getting a true article of advocacy by it being labeled as an OpEd piece. The news was the news and when a paper wanted to present their own opinion or press for a particular action or outcome, they did it through the OpEd page. The NYT OpEd page had great sway, as did the OpEd work for many of the other great papers in the US. Now, there really is no need for the OpEd page as it seems that advocacy has been inserted into the news.

    People complain about biased reporting and whatnot with regard to Fox News and other outlets and I agree. NPR has always been a favorite news source for me, even though I have much more conservative leanings that most of the hosts. However, I generally trust heir NEWS reporting and can filter out those things that are more reflective of the bias of the presenter. I don’t even watch Fox News as there is no way to tell what is news and what is advocacy. The NYT is doing the same thing from the other side of the aisle. I can’t trust what I read as being news.

    Unfortunately, we, the readers of this blog, are probably in the top category of discriminating consumers of information received from the world at large. Heck, you even read and quoted the statutes, the CFR, court cases, etc., as a basis for your commentary. on the other side you have people trying to deliberately mislead the general population, also a very discriminating bunch.

    Sadly, the largest portion of those protesting SOPA and PIPA were using “its on the Internet so it must be true” and “look, Google took down their page in protest, so this must be for real” as the source of their nuanced view of the situation. They aren’t reading the NYT, the Christian Science Monitor, the LA Times, the SF Herald or the Wall Street Journal.

    Best of luck with your crusade from your bully pulpit.

    ars

  5. The second-to-last paragraph of my previous post (Post No. 2) should read:

    So, if the mere submission of an affidavit and an effort to give notice is all that is required for a TRO, where’s the hearing? Does the mere reading of an affidavit buy a judge constitute a hearing? If it does not, then the NYT reporter is not incorrect.

  6. IMHO you are presenting a question of a fairly low relevance. It is my belief that almost everyone believes hurts business as it is currently practiced and most people believe it is wrong. Even some of the major protestors openly acknowledged these things as foregone conclusions. The real issue is SOPA, i.e., whether SOPA is a good solution to the problem. Do you believe it is the best solution to the problem or do you think there may be other, more worthy, approaches?

  7. IMHO you are presenting a question of fairly low relevance. It is my belief that almost everyone believes piracy hurts business as it is currently practiced and most people believe it is wrong. Even some of the major protestors openly acknowledged these things as foregone conclusions. The real issue is SOPA, i.e., whether SOPA is a good solution to the problem. Do you believe it is the best solution to the problem or do you think there may be other, more worthy, approaches?

    NOTE: This message was added to correct some minor grammatical errors.

  8. Hope-

    I just deleted your first comment, which seems identical except for corrections you note.

    Do I believe SOPA is the right approach? Having watched the way legislation is made closely in the patent arena I would say that my default position on legislation is that it can always be improved.

    I didn’t weigh in on SOPA while the firestorm was brewing because I hadn’t really followed it closely enough to opine whether it or PIPA were the “right approach.” I do know that something desperately needs to be done. The reason I am diving in now is to attempt to expose the completely false criticisms of SOPA and PIPA. If there are better solutions then that should be the criticism. They should not have been defeated through lies, which seems pretty clearly to have been what happened. With that in mind it seems that most (not all) of those who challenged SOPA are of the belief that nothing should be done to provide protections for content creators. Faced with an absolute choice between SOPA or nothing I would most definitely vote YES on SOPA. It is truly sad that everything has to be an absolute choice any more.

    -Gene

  9. West Coast Guy-

    How much litigation do you do? You do realize the process you describe is the same for every single area of law? Temporary Restraining Orders are always ex parte and that is why any decision lasts only for a few days.

    So do you have a problem with any and all Temporary Restraining Orders? Is it your position that TROs violate due process? That would be a nearly laughable legal position to have given that they exist throughout all areas of the law and have NEVER been found to violate due process. So what is the problem here exactly?

    Perhaps you should actually read Section 102 and the provisions on service of process. You would agree that when process is served and the case moves forward there is a hearing, right?

    I’ve been assuming you are a lawyer, but your posts make that assumption increasingly difficult to believe. It seems you fail to understand the most basic concepts of procedure and what due process is and how the system works.

    Are you an attorney?

    -Gene

  10. Thanks Alan.

    I do watch Fox News and think that the straight news programs are about as good as anyone else’s, although some of the evening line-up is quite difficult to bear. I find myself bouncing between Fox and CNN for balance, occasionally listening to NPR and CSPAN, then reading a variety of things on the web. I like Politico myself because they seem to have folks on a variety of sides. It is disheartening to have to consult so many different news outlets to triangulate the truth. While I am increasingly not a fan of Google (variety of reasons) I think YouTube makes a lot of this easier because you can frequently find full footage of what the various news agencies distort.

    I long for accountability. Even an apology when folks get it wrong (like they will since we are all human) that isn’t buried on page C-11.

    Cheers.

    -Gene

  11. Gene,

    You didn’t answer my question which was: Does the mere reading of an affidavit by a judge constitute a “hearing”?

    You claim that the New York Times and Ms. MacKinnon has lied when they stated the following:

    “So for MacKinnon, or anyone else, to say that SOPA violates due process or allows for penalties “without a court hearing or a trial” is simply false.”

    SOPA violates due process? No, and Ms. MacKinnon is incorrect.

    SOPA allows for penalties without a court hearing or a trial? If a cease and desist order is a penalty and an ex parte application for a TRO is not a hearing, then Ms. MacKinnon is partially correct, and you are partially wrong.

    Question: Does the mere reading of an affidavit by a judge constitute a “hearing”?

  12. Gene,

    I am an attorney. Are you?

  13. West Coast Guy-

    Yes, I am an attorney, but it is really quite difficult for me to believe you are.

    Are you familiar with TROs? How much litigation experience do you have? Anyone who is at all familiar with litigation well knows that a TRO is the start of a process and it is considered a hearing in front of a court. It is the first hearing of an issue, the orders last only a very brief period of time, and then the other party has the ability to be heard. For you to suggest that a District Court Judge preliminarily hearing a matter ex parte is “without a hearing” and violates due process shows a complete and total lack of understanding of our judicial system.

    MacKinnon is not correct, and neither are you.

    -Gene

  14. West Coast Guy-

    Perhaps you should brush up on TROs. See:

    http://www.law.cornell.edu/wex/temporary_restraining_order

    It is well accepted that a district court judge considering evidence presented by affidavit in an ex parte proceeding without notice is acceptable due process. It is simply incorrect to say that a Judge considering the issues in a TRO is “without hearing.” You will notice in the link above explanation that these orders are preliminary in nature and are a part of an overall process where the defendant will be afforded the opportunity to be heard.

    Perhaps you should also look at Section 102 of SOPA which discusses service of process. If this is “without hearing” then why would there be specific provisions governing service of process. I note that you have never addressed that issue in any comment because it completely eviscerates your entire misguided argument.

    I’d really love for you to show a single instance where the TRO process, which is authorized by FRCP 65 and by rules of procedure in all 50 states, has been found to violate the constitutional guarantee of due process. I’d love for you to point out where the TRO process has ever been found to be one that does not include a hearing. The fact that you don’t like ex parte hearings to decide a TRO is certainly your right, but to pretend they don’t exist or are not well accepted as a part of the judicial process is really quite ridiculous.

    So what is your agenda? Do you represent flagrant copyright infringers? You have also been commenting in support of trademark scammers sending false or misleading notices to trademark applicants and owners. Do you just represent the under belly of society? Are you anti-IP? What is your story?

    -Gene

  15. Gene,

    All of those words and all you needed to say was “yes.”

    “MacKinnon is not correct, and neither are you”

    That’s funny, I’ve never taken a position in this issue. I’ve asked one question and made conditional conclusions. You’re reading way too into my comments something that isn’t there. Ye ole strawman argument arises.

    But you know you’re supporting a weak position when you have to resort to disparging the commentor.

    Paraphrasing the old addage, “If you side is weak on the law, then emphasize the facts; if weak on the facts, then emphasize the law; if weak on both, go after the person.”

  16. Gene,

    Don’t make this about due process because I agree with your position; due process is afforded under SOPA, and the reporter is wrong. Enough of the due process strawman, please.

    My comments have concerned the meaning of “hearing” only.

    You seem to be wrong about an ex parte applicatoin being a hearing, and the link you provided indicates this:
    From http://www.law.cornell.edu/wex/temporary_restraining_order

    “If the judge is convinced that a temporary restraining order is necessary, he or she may issue the order immediately, without informing the other parties and without holding a hearing.”

    Without holding a “hearing,” the judge may issue a TRO.

    If true and if a cease and desist order is a penalty, then the reporter is partially correct.

  17. West Coast Guy-

    I am not wrong. It is legally incorrect to say that there is no hearing when a Judge issues an ex parte TRO. MacKinnon didn’t understand enough about that to make an accurate statement. She could have said that an order could be issued without the defendant having an opportunity to address the charges, but then she would have to take issue with every other area of law where that is also true, such as is typically the case when a woman seeks an order against her boyfriend or husband, for example. The left has no issue with a woman getting an ex parte order against her boyfriend or husband, so why should they have an issue with the Attorney General getting a TRO against a website that engages in flagrant copyright infringement?

    You know as well as I do (or you should know) that what MacKinnon said was to misrepresent SOPA. She wanted people to believe that the Attorney General didn’t have to go to Court and could just create a blacklist without any judicial oversight. Clearly that is not the case. If you want to say she wasn’t lying fine, if you want to say she didn’t say things that were false, also fine. I will disagree, of course. Having said that, no one who objectively looks at what MacKinnon said can come to any other legitimate conclusion than she was misleading. I think she was false and she lied on purpose and that is my right to think that. It is abundantly clear, however, that she was at the very least saying things that were intended to create a false impression.

    For you or any lawyer to say that a Federal District Court Judge considering an affidavit of the Attorney General and making an order without a hearing is simply not accurate.

    Have you ever participated in what lawyers refer to as “an ex parte hearing” in front of a Judge considering a TRO? Based on your comments I suspect the answer is no. I have though. I know what happens in Chambers. Getting a TRO is certainly not guaranteed by any stretch, and to suggest or pretend there is not going to be a thoughtful consideration of the affidavit and weighing of the facts even in an ex parte process shows a failure to understand how Judges approach TROs.

    -Gene

  18. West Coast Guy-

    It is ironic that you claim my position is weak and that you are not taking a position. Certainly you are taking the position that MacKinnon was either correct or partially correct… you’ve said that repeatedly. So you can pretend if that helps you get through your day, but MacKinnon was not correct and neither are you.

    Also, you continue to dodge my questions about your experience and agenda? Why? What is it that you are hiding and don’t want us to know about your bias? Your silence is really telling, as is your defense of flagrant and abusive practices by copyright infringers and clearly abusive practices of companies selling worthless publishing services to trademark applicants and owners.

    So how about you start telling us who you are and why you enjoy siding with those who misrepresent?

    -Gene

  19. Gene,

    “Also, you continue to dodge my questions about your experience and agenda? Why? What is it that you are hiding and don’t want us to know about your bias? Your silence is really telling, as is your defense of flagrant and abusive practices by copyright infringers and clearly abusive practices of companies selling worthless publishing services to trademark applicants and owners.

    So how about you start telling us who you are and why you enjoy siding with those who misrepresent?”

    I am not the issue.

  20. West Coast Guy-

    Yes, you are the issue. I’d really like to know why you so vigorously defend those who engage in rampant copyright infringement and those who misrepresent.

    You obviously have an agenda. I’m just exposing you and calling you out so everyone understands that they need to take everything you say with at least one enormous grain of salt. Your nonsensical positions that favor deceit and misrepresentations are telling.

    What are you afraid of?

    -Gene

  21. Gene,

    This week, you have discussed two issues to which I’ve commented. The first issue addressed Global Business Option and its offer to IP Watchdog to publish its TM in GBO’s publication. I read your article, and I agree that these guys aren’t legit (especially now since I discovered and told you that they are misrepresenting themselves are being in the TM publication biz field when really they are in the health care field; see Post Nos. 18-20). However, as a lawyer, I place myself in the judge’s chair, and frankly, you haven’t persuaded me that it conduct rises to the level of unlawful conduct or you’ve made the prima facie elements of tortuous conduct; GBO is skirting the legal line but hasn’t crossed it with what you’ve received in the mail. Now, factor into the equation of GBO’s representation to the Florida Secretary of State that GBO is in the health care biz and I’ve made a case of misrepresentation and other tortuous conduct for you. You’re welcome, and go after them you watchdog. You seem to take a failing of persuasion personally because I’m not jumping on your bandwagon, but my comments should be taken professionally and not personally as if I have some sort of agenda.

    The second issue is today’s issue involving whether or not the NYT’s reporter lied when she claims that no “hearing” is held before penalties are enforced. You have not persuaded me that an “ex parte application” is a “hearing” per se, so the cease and desist TRO seems to be issued without a hearing which would make the reporter partially correct. On the one hand, you seems to say that there is such a critter as an “ex parte hearing” when lawyers meet in chambers and the judge reviews the affidavit. On the other hand, from the link you yourself provided to Cornell, it says that without holding a “hearing,” the judge may issue a TRO. Hence, as a lawyer and placing myself in the judge’s chair, I can see where the NYT’s reporter is not lying with respect to her comments about penalty without a “hearing” because your personal definition of an ex parte hearing differs from that of Cornell. Please don’t take it personally.

  22. Gene,

    Does being a devil’s advocate against some of your positions mean that I have an agenda? No, it does not.

  23. Gene et al.

    While the above comments are interesting, Gene’s title question asked whether the First Amendment protects false and misleading speech. This may be a topic for a great debate with Eugene Volokh. Not having read his blog or heard from Eugene in years, I would guess his answer would be a resounding “No!” and for the reason I cited. To determine whether speech or writing is false or misleading, one would have to determine, first, what is the truth. That question came up in another context in a famed trial around the year 33 AD in Jerusalem. Francis Bacon put it, ” ‘What is truth?’ said jesting Pilate and would not stay for an answer.”

    Underlying Gene’s angst over what may have been written against SOPA and PIPA is his desire to protect intellectual property from various forms of misappropriation. Few, if any, here would argue with that goal. But do we, as Justice Frankfurter wrote (perhaps after a tale by Charles Lamb), “Burn the house to roast the pig”? Will SOPA and/or PIPA, in protecting intellectual property rights so stifle the internet that it may, for all but a few purposes, be rendered useless. That is the question with which we, Congress, and the courts must wrestle.

    Tifoso

  24. All –

    Years ago I co-taught a doctoral seminar on Information Retrieval at a major university. I strongly recommend you all use a meta search engine such as metacrawler. com.

    Search engines do not search the net with every request. They have databases which they search. They also have engines called by various names, “spider” being my favorite. The spider searches the web and builds the database. But what if you call Google, for example, and the hit you want is not on Google but, maybe Yahoo has it. You could be out of luck.. However, if you use metacrawler.com, you should find it.
    Meta search engines do not search directly. They call the other search engines such as Google, Yahoo, and Bing.

    Besides, you do not have to wade through all the ads and other commercial clutter from the rear of a male bovine.

    I have no financial or other interest in metacrawler.

  25. West Coast Guy-

    I’ve grown tired of you. If you want to continue a debate/discussion with me you will answer my questions about who you are and what your bias is that has you advocating on behalf of those who blatantly infringe copyrights and willfully mislead to scam trademark owners.

    -Gene

  26. tifoso,

    Without having a substantive reason, I am partial to dogpile.com

  27. Anon –

    IIRC, Metacrawler also checks dogpile.com. So you get dogpile plus the others for one call – and no ads.

    Metacrawler was developed at Univ of Washington in its AI group back when I was doing more work in Artificial Intelligence (calling it AI brings up visions of dairy farms). Give it a test. See if there is something dogpile will find which metacrawler will not. There must be something that satisfies these conditions.

    Tifoso

  28. “Our country is being stolen out from under us by lies and misrepresentations and in the sound-bite era the masses remain blissfully ignorant.”

    I think many people would agree with that statement in its entirety. However, they might have a different idea than Gene of what “lies and misrepresentations” are ruining the country (such as many of those made about our current President, those made every hour by a certain television network, etc.). Yet I strongly suspect that you might (just maybe) disagree with them about what is a “lie” and what is a “misrepresentation.”

    Perhaps this is why even knowing falsehoods about the government (as opposed to commercial speech/marketing, in your examples) are examples of generally protected first amendment speech.

    You say we ought to “rethink” those cases. Well, perhaps you should “rethink” your opposition to them. The general philosophy of the first amendment is that for “undesirable” content that is nevertheless protected, the solution to “bad” speech is… more speech. This is certainly true regarding any kind of content-based prior restraint on political speech.

    Any solution other this would involve someone deciding what political speech is “false” and what is “true” (whether a government agency through prior restraint, or judges hearing private actions). While that decision is routinely made by judges in cases that do not involve core political speech, I think you might hesitate before actually advocating that we apply that approach to political speech.

    After all, if you want to see one example of the effects of such an approach, just look north. Canada has prevented “false or misleading” news for a long time. The result is a media that would make you consider the NYT a bastion of conservatism, in relative terms. Maybe — just maybe — the “deciders” (whoever they are) of the “truth” question will result in a media environment you aren’t thrilled with. In our current system, Stephen Colbert’s quote “reality has a well-known liberal bias” is an example of comedy, as opposed to a potentially enforced legal command. It seems odd that small-government types would want to add “truth police” to the list of desired functions of the government.

  29. Wow. Talk about false and misleading speech! Guess you are first in line for the pokey, then. For starters there is a clear legal definition of “theft” and a clear legal definbition of “infringement” and they are NOT THE SAME. So, before you start criticising others, stop using the innacurrate and inflammatory “theft” and “stealing” language when what you are talking about is INFRINGEMENT.

  30. You lost all credibility with the following statement…

    “If a wild crowd of angry hooligans raged into your real world store and stole from you no one would question the damage, but the intellectual property anarchists find it acceptable that movies that cost $100 million or more to make are copied and freely distributed on the Internet on opening day. Talk about intellectual dishonesty.”

    Yes – talk about intellectual dishonesty: There is no way you can equate making a copy and threft of real-world goods. When a real-world good is stolen, its gone, never to be sold again by its owner. However, making a copy leaves the original intact, and in many cases has no impact whatsoever on its market.

    WhyNotAskMe dot org

  31. WhyNot Ask Me-

    Of course I didn’t lose credibility for those who are open minded and right thinking. You on the other hand…

    Stealing is stealing. It is wrong in the real world and wrong in the digital world. The fact that you choose to plant your head in the sand is a YOU problem.

    If you can take your head out of the sand long enough, can you please defend your indefensible statement that suggests that stealing copyrighted material doesn’t affect the market. That is just about the most dumb thing I have ever heard anyone say. Please explain how and why someone who steals something and doesn’t pay for it isn’t harming the market.

    Please keep comments real and intellectually honest.

    -Gene

  32. and in many cases has no impact whatsoever on its market.

    This is simply not defensible. A single case – perhaps. But to be intellectually honest, we are not talking about single cases – not with digital works and not with the web.

    Further, the physical copy remaining ignores the actual rights transgressed. Makes me think that you do not have a clue as to the law you want to discuss (or ignore).

    Try again (after informing yourself).

  33. Thank you for the opportunity to clarify my comment.

    Your original statement evoked images of “a wild crowd of angry hooligans raging”, in the same context as discussing copies freely distributed on the internet, as if there was some comparability between physical violence and copyright infringement. “A wild crowd of angry hooligans raging” is a pretty frightening, violent image. I don’t think it is intellectually honest to evoke such imagery. I know of no association of physical violence whatsoever connected with distribution of unauthorized copies.

    “Can you please defend your indefensible statement that suggests that stealing copyrighted material doesn’t affect the market.”

    Hmm… You need to be careful here not to read things into my comment that I didn’t say. I made no such suggestion as broad as you imply. I said “in many cases has no impact whatsoever on its market.”. It should be obvious that passing a copy of an mp3 to someone who can’t afford it or who never would buy it has no impact whatsoever on the market. Where that is right or wrong I leave to the reader to decide, but right and wrong is a different issue than market impact. It should be equally obviously there must be cases where the opposite is true, and file sharing can seriously harm the market. There is no one size fits all argument.

    I would say that there are anecdotal reports from many artists that “piracy” has helped raise their profile and promoted their work. One author that immediately springs to mind is Paulo Coelho, and a band that springs to mind is NineInchNails.

    Here are two papers that discuss file sharing on the internet and conclude there has been no negative impact to the recording industry…

    http://www.rufuspollock.org/economics/p2p_summary.html
    http://www.unc.edu/~cigar/papers/FileSharing_March2004.pdf

    On the other side, I have read of what a struggle it has been for some games developers, who find their games pirated before they are even released. Obviously there are some serious concerns here. In the end, I take no stand on these issues in this argument. I would suggest that hysterical comparisons between file sharing and violent mobs, and blanket statements saying a copy is the same as physical theft of a real world object does not serve to elucidate the problem.

  34. WhyNot AskMe-

    I understand how you can come to your position now. You are clueless and uniformed.

    You write: “I know of no association of physical violence whatsoever connected with distribution of unauthorized copies.”

    It is well known that drug cartels and organized crime are heavily engaged in intellectual property theft. The money is better than for illegal drugs, there is less effort required and jail time if caught is minimal.

    You say: “It should be obvious that passing a copy of an mp3 to someone who can’t afford it or who never would buy it has no impact whatsoever on the market.”

    I see, so if people can’t afford it then they have a right to steal it. Interesting theory, but explains a lot about you. You are clearly wrong. What about those people who now have a free digital copy and can replicate that free copy as many times as they want and distribute? What you fail to realize, perhaps intentionally or through ignorance, is that the copyright owner has a set of rights and distribution is one of those rights. So there is a taking even if there is no monetary damage. Having said that, it is naive in the extreme to think that widespread theft by indigent cause no monetary damage. By the way, how do these indigent folks afford computer access and devices to play the stolen material? Oh… right… they can afford the latest gadgets and computers but wouldn’t pay to go to the movie or rent the DVD, so no injury.

    You are a joke. Please educate yourself before commenting here. I know you are new here, but we prefer thoughtful, reasoned commentary that is factually correct. Not the unicorn laden fantasy that you seem to want to peddle.

    -Gene

  35. WhyNot AskMe,

    Let it go and don’t lower yourself to making disparging remarks about Gene. When Gene resorts to making disparging comments, it’s Gene being Gene when faced with thoughtful arguments. No matter how smart thought proking your comments are, he won’t be convinced, and the more you try, the more disparging his remarks will be.

    Both of you have made good points.

  36. Dear Gene,

    You win. You have convinced me that I am clueless and uniformed, naive in the extreme, and a joke. I will will try to educate myself before attempting further comment on your blog. Sorry I have no time to say more, as I need to tend to my unicorns now. Thanks for the conversation, and have a nice day.

  37. when faced with thoughtful arguments

    Haven’t seen any from WhyNot AskMe.

    Gene may tend to the bombastic and hyperbolic, but here, in the full sense of a legal discussion, he is absolutely right.

    Further, disparaging remarks – when so deserved, can be an important tool in shaping norms. I don’t buy the be-a-friend-to-everyone shtick. There is power and clarity in being direct and not mincing words. If a position is brainless, that person should be told that he needs to actually inform himself of the law on that issue. Far too often the ideological miscreants will abuse the notion of civility in order to plaster their worthless garbage over every available medium. Hey, I don’t mind opposing views. Not at all. I do mind mindless opposing views disassociated with legal foundations. If you don’t care enough to get the basics right, why should I care if I hurt your feeligns a little by showing how little you know on the subject? Feel sad about that? Get a puppy. Or better yet, ditch the tripe and educate yourself, and then, and only then if you still maintain your beliefs, you might be able to express them in a logical and legally valid manner. To me, “play nice” means not showing up spouting the latest line from tech-dirt and beign unable to comprehend just why such crrp makes your hands smell so bad from handling it.

  38. wrong again, Gene:
    http://www.abajournal.com/news/article/the_first_amendment_and_the_right_to_lie

  39. what about the recent case: United States v. Alvarez, linked above, that basically supports the protected first amendment right to lie?Perhaps you need to revisit this issue?

  40. Abernathy-

    Let me try this one more time so even you can understand.

    There is NO constitutional right to lie. That is asinine, not what the Supreme Court said and you are intentionally misrepresenting. For that you will be banned from further comment here on IPWatchdog.com.

    Notwithstanding, allow me to point out the many situations in which there is NO right to lie that is guaranteed by the Constitution. You cannot lie under oath in Court — that is illegal, called perjury and there is no constitutionally protected right to lie in Court. That alone makes your position the most easily defeated position I have ever taken on.

    There is no right to engage in false and misleading statements. There are numerous laws to prevent that, which are constitutional. Take a look at 15 USC 1125, for example.

    There is no constitutional right to engage in fraud. Fraud is illegal in every state and at the federal level.

    There is no constitutional right to lie to prosecutors or federal investigators. If you lie to prosecutors or federal investigators you have committed a crime.

    Your position is absolutely ridiculous and shows an utter contempt for logic and reason.

    -Gene