If you want to enter the land of the pedantic-literal:
She didn't say she wanted to stop them from criticizing them - she -said- she wanted to break them up so they couldn't heckle.
How does one take that to mean that she wants to prevent their free speech? Breaking them up does not stop them from criticizing her before, during, or after that breakup.
You're inferring a whole lot from one trailing sentence - and ignoring both a.) common sense and b.) the substance of the rest of the tweet - which YES does modify the meaning of that last sentence when you consider it all together.
One of the things that will be happening in this Congress is debate over Section 230. A likely approach that progressives will take is to demand that Google Facebook Twitter moderate certain speech to retain 230 protection. They will use examples that nail them permanently. AOC will tweet about hateful speech directed at her. Maybe she says "We have to take action against Google because Google lets this awful speech happen."
Under Patterico's analysis, I think we end up with a First Amendment violation. Which would trouble me -- surely the First Amendment is not meant to be an inhibitor of debate.
If you’re talking about a debate in Congress, the Speech or Debate Clause protects legislators from court action predicated on what they say there. However, I still think it is terrible for legislators to talk, even on the floor of the House or Senate, about taking government action to stop criticism of congressmen and women — even if “hateful,” assuming the speech is legal. That is absolutely contrary to the spirit of the First Amendment.
Given the contents of her tweet, I could see how any actions she takes against Amazon from here could be considered or at least characterized as attacks on their 1st Amendment rights.
The funniest thing about her tweet was when she noted she did not write these particular loopholes- unlike those she did write
How does anyone defend Warren in this? She is a sitting senator who has publicly warned a private entity not to heckle her or there could be *consequences*. How is this not an abuse of power? While I understand that tribal affiliation (and hate of big corporations) too frequently determines how people respond, I cannot take seriously anyone who defends Warren in this.
The best response to this is more public heckling of Senator Warren.
Still not sure if Warren's tweet is necessarily a First Amendment violation, but Patterico's citation to the Backpage decision makes a pretty good argument that it is. But regardless of that, Warren's tweet comes very close to violating, and may violate, the legal ethics rule that a lawyer may not threaten someone with criminal prosecution in order to gain an advantage in a civil matter. As a former law professor Warren surely is aware of the rule. Not to get all cynical or anything, but if Warren were an (R) senator instead of a (D) the state bar in Massachusetts (assuming that's where she is admitted) would probably open an investigation. But I hope they don't -- there are too many threats and investigations these days, we don't really need another one. Maybe a simple admonition that she go and tweet no more?
Her comments are ridiculous and I have no idea why anyone would defend them.
I'm a lot more interested in whether it's an actual First Amendment violation on its own. Your view is certainly plausible, but based just on this one case discussed it doesn't seem as clear cut to me. The quote about "threatened imposition" must as always be considered against the facts of the case.
In that case, the sheriff is threatening credit card companies by telling them they better stop doing something they're otherwise lawfully entitled to do or else they'll face consequences. Do not accept business from Backpage, or bad things will happen.
That's dissimilar from this, I think. Warren seems intent on taking down Amazon and Big Tech with or without regard to whether they do or don't do certain things. It's like if a prosecutor says about a obstreperous defendant, "This defendant is going to be convicted of murder and then he can keep making his empty threats from the cell where he'll spend the rest of his life." The "threat" of spending life in prison is a consequence that flows from what I'm already planning to do, and which I have the power to do for reasons unrelated to speech.
In that sense, Warren's already intending to take down Big Tech via legal means. So their "inability" to criticize her is just a consequence of what she already plans to do, which is itself lawful. That doesn't have a ready parallel to the Backpage case.
Moreover, Warren's claim is just so stupid that I'm not sure it could be construed as threatening. (Relatedly, is there some intent requirement with respect to the threat?) Even if her plans to dismantle Big Tech succeed, Amazon is still free to criticize Senators.
Anyway, I'm not at all sure I'm right. Just pointing out the sorts of things I would be thinking of exploring if I were to write a brief in opposition.
"Even if her plans to dismantle Big Tech succeed, Amazon is still free to criticize Senators."
Where? From Speakers' Corner? While to some degree I like the Karma of Amazon being deplatformed, I think the lie that anyone can just go find some other place to speak would be as great in that case as it is now.
I assume that even under Warren's fantasy/plans, Amazon would still exist. It's not like Amazon would just go away or be removed from the internet. As long as they exist, they can still tweet their snark.
That's why I think her threat is incredibly stupid: I can go out and write snotty tweets all I want. I don't see how an antitrust action would force Amazon to abandon its twitter accounts, but I find antitrust law really boring so I admit I'm just totally speculating.
They certainly have the physical ability to tweet. The question is whether they will be chilled, if someone with a fair amount of power threatens to use it against them.
I’m not persuaded by your argument. First of all, I don’t think that it is a defense to a First Amendment violation that one intended to do the threatened coercive act anyway, any more than it would be a defense to a bribery charge against a judge that I he would have thrown the case in favor of the defendant anyway. The sheriff in the Backpage case could always say he Intended to arrest money launderers regardless, but that does not seem like it would have saved him.
If you want to draw an analogy to a prosecutor, a more apt analogy would be a prosecutor who says “people who criticize me tend to get charged with crimes like murder” who then charges someone with murder who has criticized him. I am not positive that would get the murder charge dismissed, but it could — and more to the point, it could and would get the prosecutor sued, possibly disbarred, and almost certainly removed from the case. In short, the threat would be a First Amendment violation regardless of whether charges were ever filed or whether charges were otherwise warranted. You just don’t get to threaten to use the coercive power of the state to squelch speech you don’t like. Period.
From my perspective, you're begging the question by saying the threat was coercive. The concept of coercion implicitly suggests that there's some possibility of swaying behavior or that the party making the threats wishes to influence the other party's behavior; e.g., the sheriff in the Backpage case wants the credit card companies to stop doing lawful conduct, so the coercive element rests in what he's trying to do through the threat.
In a weird way, Warren's intent to go after them makes it less of a problem because Amazon knows that regardless of what they do or don't do, it won't matter. She already plans to go after them for reasons that aren't connected to speech.
I'm confused by your bribery example. Who is being charged with what, here? It's not a defense to a bribery charge if I, the attorney, try to bribe the judge. But that's because, I think, I don't know what the judge intends to do.
But that is nowhere close to this example, in my view. This brings me back to the coercive aspect: the harm there is in what I, the attorney, wanted to happen, not whether it would have happened or whether it had any effect on the judge. Note that the Backpage court says the credit card companies were engaged in lawful activities. It doesn't advance things much to say that the sheriff intended to arrest money launderers anyway, because that's irrelevant to the fact pattern: they weren't engaged in money laundering.
I agree that the "people who criticize me tend to get charged with crimes like murder" example is closer, but I think you're involving different things in your response. My example was speech against speech; the prosecutor is annoyed at the combative defendant and remarks that his speech will continue behind prison walls. Your example involves a statement--"tend to get charged"--that connects the speech to the charging decision. It suggests that but for the added element of criticism of the prosecutor that the defendant may not have been charged with murder.
If Warren said, "And companies that send snotty tweets to Senators tend to get looked at for antitrust violations", I'd think that would indeed be a First Amendment violation.
In any event, I'm not at all defending Warren and I agree it's a problematic statement. But I think it's problematic first and foremost for normative reasons.
"From my perspective, you're begging the question by saying the threat was coercive."
I don't think the issue is whether the threat was coercive, but whether the threat was a threat to use coercive measures. Which is, I think, a very subtle but meaningful difference. The case I quoted in the piece says: "A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights." But it also says "such a threat is actionable and thus can be enjoined even if it turns out to be empty." An empty threat can be a threat to employ coercive tactics yet fail to be coercive on its own. This is the distinction I think your comment largely elides.
"The concept of coercion implicitly suggests that there's some possibility of swaying behavior or that the party making the threats wishes to influence the other party's behavior"
Wait: you don't think Warren wants Amazon News to stop writing tweets she considers snotty? Really? Is that what you took from her tweet?
"I'm confused by your bribery example. Who is being charged with what, here? It's not a defense to a bribery charge if I, the attorney, try to bribe the judge. But that's because, I think, I don't know what the judge intends to do."
I meant to be referring to a solicitation or acceptance of bribes by a judge. If the judge was planning to throw the case anyway, does that constitute a defense?
"If Warren said, 'And companies that send snotty tweets to Senators tend to get looked at for antitrust violations' I'd think that would indeed be a First Amendment violation."
I'm failing to see the meaningful distinction between that and a pledge to "fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets."
I appreciate the response. At the risk of repetition, I'm not at all convinced by the position I'm taking. I'm sort of approaching it like a bench memo.
I agree with your subtle distinction about coercion versus threat of coercion, and in fact that's why I said in a weird way her prior position helps her. I’m thinking of the general principle that an objective basis for something generally precludes the argument that subjective motivations override the objective basis, such as Whren v. United States. The Backpage case involves a coercive action by the sheriff that has no objective basis that can be divorced from the coercive aspect. That isn’t true here, I think. Warren’s proposals to break up Big Tech is therefore different (or rather, potentially different. I still haven’t decided whether I’d end up buying what I’m selling).
In fact, I may be giving the subjective motivations versus objective bases idea too much credit because I vaguely recall that First Amendment issues might be a sort of exception to that principle. I know there’s a pretty recent case out there about retaliatory arrests and the intersection of objective basis to arrest versus subjective motivations for why the arrest was made. (And yeah, I know they’re quite different scenarios.) I should probably go re-read it.
"Wait: you don't think Warren wants Amazon News to stop writing tweets she considers snotty? Really? Is that what you took from her tweet?"
No, of course she does. But in light of the fact she intends to try and break them up anyway, that seems secondary. And even if it is primary, I’m not even sure it would matter as a legal matter. It certainly warrants (hehe!) criticism regardless.
"I meant to be referring to a solicitation or acceptance of bribes by a judge. If the judge was planning to throw the case anyway, does that constitute a defense?"
I can’t quite articulate why I think that’s different, and maybe that's because it isn't! I’m doing this reply as I eat lunch, so I’ll have come back to it. But it’s a good question and nudges me towards your side of things.
"I'm failing to see the meaningful distinction between that and a pledge to 'fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.' "
I think I’ve touched on this: if the antitrust laws would allow the government to break them up without respect to the speech issue, the subjective motivation would perhaps be irrelevant. Like I said, I may be locked too much into thinking of this like a Whren situation, and IIRC part of the reason the Court ruled the way it did was the impossibility of creating a test where you could actually prove the subjective motivations.
In any event, I’m enjoying the Twitter responses from the dunces who think you were the one BadLegalTakes was mocking. It’s really something to see people so sure of their completely mistaken views. At least it ensures a steady supply of work for us lawyers.
I’m not aware of any parallel doctrine in First Amendment law that allows a subjectively noxious use of power to retaliate against or try to prevent speech to be saved because there is an objective basis for the use of power. I can’t say for sure no such doctrine exists, but I think language in Judge Posner’s Backpage opinion suggests it does not: “ A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmak-ing authority over the plaintiff, or in some less-direct form.” It does not sound like the issue turns on whether the use of power is a “use” (one that has objective merit) or a “misuse” (one that does not).
Warren and Amazon are both ethically challenged entities and in this exchange nothing new was divulged. Warren has made Amazon an issue and Amazon has made themselves an issue - both deserve to be broke up. Both are long overdue
i remain unimpressed yet leery of her bullshit. i think she's a power-hungry socialist that cloaks it fairly well, at least enough to seem "for the people."
Yeah. This is ridiculous.
If you want to enter the land of the pedantic-literal:
She didn't say she wanted to stop them from criticizing them - she -said- she wanted to break them up so they couldn't heckle.
How does one take that to mean that she wants to prevent their free speech? Breaking them up does not stop them from criticizing her before, during, or after that breakup.
You're inferring a whole lot from one trailing sentence - and ignoring both a.) common sense and b.) the substance of the rest of the tweet - which YES does modify the meaning of that last sentence when you consider it all together.
Boo. I boo you sir.
"she -said- she wanted to break them up so they couldn't heckle.
How does one take that to mean that she wants to prevent their free speech?"
This is self-refuting. Read it again out loud.
Is this sarcasm? It has to be.
It's reflective of what scores of Warren fans are telling me on Twitter. I think it's serious.
I thought it was satire too, but after reading your twitter feed.....
Hm.
One of the things that will be happening in this Congress is debate over Section 230. A likely approach that progressives will take is to demand that Google Facebook Twitter moderate certain speech to retain 230 protection. They will use examples that nail them permanently. AOC will tweet about hateful speech directed at her. Maybe she says "We have to take action against Google because Google lets this awful speech happen."
Under Patterico's analysis, I think we end up with a First Amendment violation. Which would trouble me -- surely the First Amendment is not meant to be an inhibitor of debate.
If you’re talking about a debate in Congress, the Speech or Debate Clause protects legislators from court action predicated on what they say there. However, I still think it is terrible for legislators to talk, even on the floor of the House or Senate, about taking government action to stop criticism of congressmen and women — even if “hateful,” assuming the speech is legal. That is absolutely contrary to the spirit of the First Amendment.
Query — would that apply to the official Twitter account of the Congressperson/Senator
Given the contents of her tweet, I could see how any actions she takes against Amazon from here could be considered or at least characterized as attacks on their 1st Amendment rights.
The funniest thing about her tweet was when she noted she did not write these particular loopholes- unlike those she did write
How does anyone defend Warren in this? She is a sitting senator who has publicly warned a private entity not to heckle her or there could be *consequences*. How is this not an abuse of power? While I understand that tribal affiliation (and hate of big corporations) too frequently determines how people respond, I cannot take seriously anyone who defends Warren in this.
The best response to this is more public heckling of Senator Warren.
Great article. I really like how to explained, with reference how her tweet was itself a violation of the first amendment.
Still not sure if Warren's tweet is necessarily a First Amendment violation, but Patterico's citation to the Backpage decision makes a pretty good argument that it is. But regardless of that, Warren's tweet comes very close to violating, and may violate, the legal ethics rule that a lawyer may not threaten someone with criminal prosecution in order to gain an advantage in a civil matter. As a former law professor Warren surely is aware of the rule. Not to get all cynical or anything, but if Warren were an (R) senator instead of a (D) the state bar in Massachusetts (assuming that's where she is admitted) would probably open an investigation. But I hope they don't -- there are too many threats and investigations these days, we don't really need another one. Maybe a simple admonition that she go and tweet no more?
Her comments are ridiculous and I have no idea why anyone would defend them.
I'm a lot more interested in whether it's an actual First Amendment violation on its own. Your view is certainly plausible, but based just on this one case discussed it doesn't seem as clear cut to me. The quote about "threatened imposition" must as always be considered against the facts of the case.
In that case, the sheriff is threatening credit card companies by telling them they better stop doing something they're otherwise lawfully entitled to do or else they'll face consequences. Do not accept business from Backpage, or bad things will happen.
That's dissimilar from this, I think. Warren seems intent on taking down Amazon and Big Tech with or without regard to whether they do or don't do certain things. It's like if a prosecutor says about a obstreperous defendant, "This defendant is going to be convicted of murder and then he can keep making his empty threats from the cell where he'll spend the rest of his life." The "threat" of spending life in prison is a consequence that flows from what I'm already planning to do, and which I have the power to do for reasons unrelated to speech.
In that sense, Warren's already intending to take down Big Tech via legal means. So their "inability" to criticize her is just a consequence of what she already plans to do, which is itself lawful. That doesn't have a ready parallel to the Backpage case.
Moreover, Warren's claim is just so stupid that I'm not sure it could be construed as threatening. (Relatedly, is there some intent requirement with respect to the threat?) Even if her plans to dismantle Big Tech succeed, Amazon is still free to criticize Senators.
Anyway, I'm not at all sure I'm right. Just pointing out the sorts of things I would be thinking of exploring if I were to write a brief in opposition.
"Even if her plans to dismantle Big Tech succeed, Amazon is still free to criticize Senators."
Where? From Speakers' Corner? While to some degree I like the Karma of Amazon being deplatformed, I think the lie that anyone can just go find some other place to speak would be as great in that case as it is now.
I assume that even under Warren's fantasy/plans, Amazon would still exist. It's not like Amazon would just go away or be removed from the internet. As long as they exist, they can still tweet their snark.
That's why I think her threat is incredibly stupid: I can go out and write snotty tweets all I want. I don't see how an antitrust action would force Amazon to abandon its twitter accounts, but I find antitrust law really boring so I admit I'm just totally speculating.
They certainly have the physical ability to tweet. The question is whether they will be chilled, if someone with a fair amount of power threatens to use it against them.
I’m not persuaded by your argument. First of all, I don’t think that it is a defense to a First Amendment violation that one intended to do the threatened coercive act anyway, any more than it would be a defense to a bribery charge against a judge that I he would have thrown the case in favor of the defendant anyway. The sheriff in the Backpage case could always say he Intended to arrest money launderers regardless, but that does not seem like it would have saved him.
If you want to draw an analogy to a prosecutor, a more apt analogy would be a prosecutor who says “people who criticize me tend to get charged with crimes like murder” who then charges someone with murder who has criticized him. I am not positive that would get the murder charge dismissed, but it could — and more to the point, it could and would get the prosecutor sued, possibly disbarred, and almost certainly removed from the case. In short, the threat would be a First Amendment violation regardless of whether charges were ever filed or whether charges were otherwise warranted. You just don’t get to threaten to use the coercive power of the state to squelch speech you don’t like. Period.
From my perspective, you're begging the question by saying the threat was coercive. The concept of coercion implicitly suggests that there's some possibility of swaying behavior or that the party making the threats wishes to influence the other party's behavior; e.g., the sheriff in the Backpage case wants the credit card companies to stop doing lawful conduct, so the coercive element rests in what he's trying to do through the threat.
In a weird way, Warren's intent to go after them makes it less of a problem because Amazon knows that regardless of what they do or don't do, it won't matter. She already plans to go after them for reasons that aren't connected to speech.
I'm confused by your bribery example. Who is being charged with what, here? It's not a defense to a bribery charge if I, the attorney, try to bribe the judge. But that's because, I think, I don't know what the judge intends to do.
But that is nowhere close to this example, in my view. This brings me back to the coercive aspect: the harm there is in what I, the attorney, wanted to happen, not whether it would have happened or whether it had any effect on the judge. Note that the Backpage court says the credit card companies were engaged in lawful activities. It doesn't advance things much to say that the sheriff intended to arrest money launderers anyway, because that's irrelevant to the fact pattern: they weren't engaged in money laundering.
I agree that the "people who criticize me tend to get charged with crimes like murder" example is closer, but I think you're involving different things in your response. My example was speech against speech; the prosecutor is annoyed at the combative defendant and remarks that his speech will continue behind prison walls. Your example involves a statement--"tend to get charged"--that connects the speech to the charging decision. It suggests that but for the added element of criticism of the prosecutor that the defendant may not have been charged with murder.
If Warren said, "And companies that send snotty tweets to Senators tend to get looked at for antitrust violations", I'd think that would indeed be a First Amendment violation.
In any event, I'm not at all defending Warren and I agree it's a problematic statement. But I think it's problematic first and foremost for normative reasons.
"From my perspective, you're begging the question by saying the threat was coercive."
I don't think the issue is whether the threat was coercive, but whether the threat was a threat to use coercive measures. Which is, I think, a very subtle but meaningful difference. The case I quoted in the piece says: "A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights." But it also says "such a threat is actionable and thus can be enjoined even if it turns out to be empty." An empty threat can be a threat to employ coercive tactics yet fail to be coercive on its own. This is the distinction I think your comment largely elides.
"The concept of coercion implicitly suggests that there's some possibility of swaying behavior or that the party making the threats wishes to influence the other party's behavior"
Wait: you don't think Warren wants Amazon News to stop writing tweets she considers snotty? Really? Is that what you took from her tweet?
"I'm confused by your bribery example. Who is being charged with what, here? It's not a defense to a bribery charge if I, the attorney, try to bribe the judge. But that's because, I think, I don't know what the judge intends to do."
I meant to be referring to a solicitation or acceptance of bribes by a judge. If the judge was planning to throw the case anyway, does that constitute a defense?
"If Warren said, 'And companies that send snotty tweets to Senators tend to get looked at for antitrust violations' I'd think that would indeed be a First Amendment violation."
I'm failing to see the meaningful distinction between that and a pledge to "fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets."
I appreciate the response. At the risk of repetition, I'm not at all convinced by the position I'm taking. I'm sort of approaching it like a bench memo.
I agree with your subtle distinction about coercion versus threat of coercion, and in fact that's why I said in a weird way her prior position helps her. I’m thinking of the general principle that an objective basis for something generally precludes the argument that subjective motivations override the objective basis, such as Whren v. United States. The Backpage case involves a coercive action by the sheriff that has no objective basis that can be divorced from the coercive aspect. That isn’t true here, I think. Warren’s proposals to break up Big Tech is therefore different (or rather, potentially different. I still haven’t decided whether I’d end up buying what I’m selling).
In fact, I may be giving the subjective motivations versus objective bases idea too much credit because I vaguely recall that First Amendment issues might be a sort of exception to that principle. I know there’s a pretty recent case out there about retaliatory arrests and the intersection of objective basis to arrest versus subjective motivations for why the arrest was made. (And yeah, I know they’re quite different scenarios.) I should probably go re-read it.
"Wait: you don't think Warren wants Amazon News to stop writing tweets she considers snotty? Really? Is that what you took from her tweet?"
No, of course she does. But in light of the fact she intends to try and break them up anyway, that seems secondary. And even if it is primary, I’m not even sure it would matter as a legal matter. It certainly warrants (hehe!) criticism regardless.
"I meant to be referring to a solicitation or acceptance of bribes by a judge. If the judge was planning to throw the case anyway, does that constitute a defense?"
I can’t quite articulate why I think that’s different, and maybe that's because it isn't! I’m doing this reply as I eat lunch, so I’ll have come back to it. But it’s a good question and nudges me towards your side of things.
"I'm failing to see the meaningful distinction between that and a pledge to 'fight to break up Big Tech so you’re not powerful enough to heckle senators with snotty tweets.' "
I think I’ve touched on this: if the antitrust laws would allow the government to break them up without respect to the speech issue, the subjective motivation would perhaps be irrelevant. Like I said, I may be locked too much into thinking of this like a Whren situation, and IIRC part of the reason the Court ruled the way it did was the impossibility of creating a test where you could actually prove the subjective motivations.
In any event, I’m enjoying the Twitter responses from the dunces who think you were the one BadLegalTakes was mocking. It’s really something to see people so sure of their completely mistaken views. At least it ensures a steady supply of work for us lawyers.
I’m not aware of any parallel doctrine in First Amendment law that allows a subjectively noxious use of power to retaliate against or try to prevent speech to be saved because there is an objective basis for the use of power. I can’t say for sure no such doctrine exists, but I think language in Judge Posner’s Backpage opinion suggests it does not: “ A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmak-ing authority over the plaintiff, or in some less-direct form.” It does not sound like the issue turns on whether the use of power is a “use” (one that has objective merit) or a “misuse” (one that does not).
The reasonable debate between you and Johnny Agreeable is illuminating. Thank you both.
Does federal civil rights law address threats made under color of authority? Does it cover 1st Amendment rights?
Warren and Amazon are both ethically challenged entities and in this exchange nothing new was divulged. Warren has made Amazon an issue and Amazon has made themselves an issue - both deserve to be broke up. Both are long overdue
i remain unimpressed yet leery of her bullshit. i think she's a power-hungry socialist that cloaks it fairly well, at least enough to seem "for the people."