State law: You can't say bad things about a business | Hacker News Reader

State law: You can't say bad things about a business

nytimes.com

135 pointspuppetmaster363 comments

I imagine these laws eventually will be overturned by the Supreme Court as contrary to the First Amendment. It involves punishment of core political speech, so it should be a relatively open-and-shut case.

The strongest argument in favor of the Constitutionality of these laws is that they are outlawing speech that could not have been made but for the violation of another law (i.e. common trespass and/or contract breach), but I'd be very surprised if the laws survived on those grounds. Newsgathering is often performed by trespassing, even newsgathering that's been previously upheld by the Court (e.g. Pentagon Papers, in which the author had unlawful access to classified materials).

The Supreme Court is no fan of the First Amendment. Notice that Citizens United was a 5-4 decision in the clearest core political speech case since the First World War[0]. And at least two of the Citizens United justices will probably be replaced by the next president and no likely presidential candidate is a big fan of the First Amendment.

[0] When villain Oliver Wendell Holmes wrote a majority opinion that arguing in public that military conscription was bad policy should be a criminal offense and the First Amendment didn't apply. There's no reason the Supremes can't just abolish the First Amendment for political convenience again.

clearest core political speech case

It might be a clear case to you, but there's a huge amount of controversy among legal scholars regarding Citizens United. Pretending this controversy doesn't exist and that the decision should be clear-cut doesn't help your point.

  Notice that Citizens United was a 5-4 decision in the 
  clearest core political speech case since the First World War

I'm sorry, what?

Do you know of another?

All the obscenity cases they ruled on. Each and every ruling had reasoning and precedent that would be directly impactful to any political ruling.

I definitely agree that this law violates the First Amendment and therefore suspect if a case came to the SCOTUS they would rule against it (assuming it even needed to get that high).

But my question is this: From my understanding, the First Amendment establishes limits on what government can and cannot do, it doesn't establish what a private entity can and cannot do. In this case the law allows a private business to sue a private individual, and while the law itself is established by government, the use of that law is not.

So maybe someone with more legal expertise than myself can answer: Is it possible to bring this issue before SCOTUS if it is only used by non-government? Have they effectively found a loophole by keeping government out of the actual lawsuits? Can you sue a law itself (would you have standing)?

The First Amendment is still implicated even in private disputes when one party requests that a court take some action that restricts the speech of the other party. The court can't take the requested action (e.g. an injunction stopping publication) if it violates the first amendment.

This is a bit of a simplification but the name in legal circles for the concept you are talking about is the "state action" requirement.

It's the worst example of government where businesses have more of a voice than people, and use their political influence to compel the government to basically act like a gang or the mafia to shut up dissenters.

It's really a tiny handful of jerks who say, "yes, it's a good thing that we bash little baby pigs heads in, by grabbing them by the hind legs, and throwing them head first into the ground, when we determine they are non-viable. But we desperately don't want the public to know that's how we get rid of non-viable pigs, because we know the public actually has something of a moral conscience, unlike us, and would stop eating our pigs if they knew this is how it worked. And that's just the beginning."

So the question is whether it's the private business that's abridging speech, or if it's the government. If this an extension of defamation law, then it's the former. If it's asking the government to do their own dirty work, then it's the latter. And I think it's the latter.

> But my question is this: From my understanding, the First Amendment establishes limits on what government can and cannot do, it doesn't establish what a private entity can and cannot do. In this case the law allows a private business to sue a private individual, and while the law itself is established by government, the use of that law is not.

The first amendment prohibits government (Congress, actually, but the 14th Amendment's due process clause has been read to apply, among other things, a virtually identical restriction to the states under the doctrine of incorporation) from making any law abridging the freedom of speech. Whether such a freedom-abridging law creates a cause of private action or public action is immaterial, it is the creation of the law itself that is prohibited.

(That said, most ag-gag laws involve both criminal penalties and private causes of action, and so do not actually meet the description of the government role being merely the creation of a law under which private parties act.)

>So maybe someone with more legal expertise than myself can answer: Is it possible to bring this issue before SCOTUS if it is only used by non-government? Have they effectively found a loophole by keeping government out of the actual lawsuits? Can you sue a law itself (would you have standing)?

You don't sue the law, you raise the unconstitutionality of the law as a defense against any attempt by any party (public or private) to use the law, e.g., by suing you or filing criminal charges against you.

Here's a recent example case: A judge recently dismissed a defamation suit against Bill Cosby on the grounds that he has a First Amendment right to deny accusations against him.

https://www.washingtonpost.com/news/arts-and-entertainment/w...

I'm not a lawyer but can point to 1960's court rulings invalidating real estate covenants that banned homeowners from selling to Blacks, Jews, and Mexicans. The supreme court invalidated the convents by flatly refusing to enforce them. In short the court said 'not your personal army.' Meaning the courts weren't going to accept lawsuits attempting to enforce racially based covenants.

tl;dr: Courts don't actually overturn laws or contracts instead they refuse to enforce them.

The racial-covenant case (Shelley v. Kraemer) is actually interesting for the departure from normal constitutional questions -- typically a court either upholds the constitutionality of a statute, or rules the statute unconstitutional and thus unenforceable.

In Shelley, effectively the court ruled that racial covenants, which were private contracts, were perfectly legal, perfectly constitutional and perfectly valid, but that the state government (which would normally enforce this type of contract) could not enforce racial covenants because doing so would require actions outside the powers of the state government.

Which comes back to whether either a state government or the federal government could enforce certain types of gag-order provisions in contracts, since the required action might similarly be outside the powers of the government.

A lawsuit is meaningless unless the government enforces the end result.

> I imagine these laws eventually will be overturned by the Supreme Court as contrary to the First Amendment.

Probably, and a case that may do that is already in the system; Idaho's ag-gag law has already been struck down by a Federal District Court, and a notice of appeal has been filed by the state with the Ninth Circuit. [0]

[0] http://www.foodsafetynews.com/2015/12/idaho-appeals-federal-...

>The strongest argument in favor of the Constitutionality of these laws is that they are outlawing speech that could not have been made but for the violation of another law

What is the precedent of this argument? I'm guessing it can be found in the justification behind certain laws which make certain speech illegal.

>violation of another law (i.e. common trespass and/or contract breach)

I thought breaching a contract was not a violation of the law. There will be civil consequences of course.

Whether a law was violated is a different question than what the remedies or penalties are from its violation. You have to establish the first before the second can even be contemplated by the court.

> I thought breaching a contract was not a violation of the law.

Breaching a contract is a violation of law (specifically, the subset known as contract law.)

> There will be civil consequences of course.

"Civil consequences" require a violation of the law.

Obviously, they don't require a violation of criminal law, but criminal law isn't the whole of the law.

Civil law is law.

Yes, but a contract isn't.

But contract law, which sets the rules for what is a contract, the conditions under which one is required to adhere to them (and the conditions in which one is not), and established remedies for when one does not adhere to them when legally required to do, is (as the name suggests) law.

Contracts are part of contract law, which the name suggests is a law. Of course contracts are legally binding documents, and a breach of contract is a violation of contract law (which is a civil, not criminal, offense).

Breaching a contract does not make you a criminal.

That doesn't mean it is not a violation of law, it means that it is not a crime. Crimes are subset of violations of law (specifically, they are violations of criminal law.)

Violations of contract law, or tort law, etc., are still violations of law, but not crimes. "X doesn't make you a criminal" is not equivalent to, nor does it imply, "X is not a violation of law."

It is technically correct to say "breach of contract is not a crime". But it isn't correct to say that "breach of contract is not illegal".

These practices should be completely exposed because they're dead-end businesses. There really should only be expensive meat from ethically treated animals raised on small farms for sale. And instead of investing money in shutting people up, the money should be invested in growing meat without animals, as the competition with the small farms. These giant agribusinesses are terrible.

It's dark comedy how "modern" agriculture insists upon the necessity of cruelty to animals as a business right, compared to how animals are raised and slaughtered in 3rd world countries today, and actually for most of human history. We're so completely stupid, and these companies just want to protect that stupidity and ignorance for profit.

I agree almost completely, but I think it's not adequate to simply point the finger at the producers, but also at the consumers, who demand prices so low that callous cruelty is essentially guaranteed. Of course, overall, we're mishandling resources massively to channel agricultural output into livestock, we need to actively reward eating less meat, rather than subsidizing ever more of it.

This appears to be similar to a Lemons market [1]. There is probably a better term for it in this case, but basically the consumer doesn't know what they are getting. They see a price point and maybe a fat %, but they don't know how the animal was treated, so they naturally will go for the lower price point items. This means producers will cut corners where it saves on cost, because they will not be held accountable. A solution would be some form of regulation controlling the way animals can be slaughtered. Whistle-blower laws should protect people who report violations, rather than the opposite we see here with ag-gag laws.

It is the same thing with the unsanitary practices exposed in The Jungle. Consumers didn't know know that their food was being processed in unsanitary ways. The exposure provided by Sinclair's book eventually led to the formation of an organization that would become the FDA, which regulates sanitary conditions for food production in the United States.

* [1] https://en.wikipedia.org/wiki/The_Market_for_Lemons

Oh please. Don't try to blame the consumers for this one. Some person at a grocery store or a restaurant has no realistic way of knowing how the meat he's buying was raised and slaughtered. What's he going to do, arrange a farm tour every time he gets something to eat? The best you can get is places like Whole Foods which claim their meat is more ethically treated, but even here you're just relying on their word and their fancy marketing.

Moreover, the middle class in this country is disappearing, so people on the bottom end have less and less money to spend on decent food, so of course they're going to get whatever's cheapest. It's not like the grocery store advertises, "buy this cheaper meat here where the cows have been tortured to death, rather than this more expensive meat where they haven't".

You can only blame consumers when the consumers actually have sufficient information to make an informed choice, and make the wrong choice anyway. Laws like this aim precisely to prevent consumers from having this information. This is why we need decent government to make capitalism and "free markets" work as well as possible: it's the government's job to keep the playing field level and fair, and laws like this are counter to this goal because they tilt the field in favor of the most evil companies who want to hide how they make stuff so that consumers can't make an informed choice.

Yes, consumers are stupid, but ignorance is bliss and they like it this way. Put all the pro capital punishment people into a room and ask them to vote on a law requiring public executions in the town square and oh, no we don't want that, we like state sponsored murder to be behind closed doors, the children after all! Etc.

It's a defect in our culture. We're babies. We don't like the reality of some of our choices, it causes cognitive dissonance, so we just white wash reality, and bad mouth the people who try to point to reality, just to coddle the ignorant. And now they don't have to think about it, AND OH MY GOD IT'S ALL SO MUCH BETTER WITH BACON!

Yes, definitely. It was unfortunate that the recent Dietary Guidelines issued by the USDA did not include more meat-related stipulations.

Not that the USDA report is the end-all-be-all, but I do think it has substantial power over the decisions we (Americans in general) make at the grocery store.

Cruelty aside, does anyone else feel that 'proper' food has become a luxury item?

They constantly replace things like cheese, beef, bread and so on with worse and worse imitations until people forget what they even used to be like.

Related joke:

Q: Do you know what they used to call organic grass fed beef? A: Beef.

>does anyone else feel that 'proper' food has become a luxury item?

Your posit is kind of silly and lacking historical context. 120 years ago when your beef was grass fed beef you may easily find yourself starving to death in winter, or too poor to buy it. Good beef, for anyone who did not live on a farm has always been a luxury item.

Now comes the green revolution (and the clean revolution before it) and nearly everybody in America can afford beef so the explosion of corn farms and CAFOs occurs around the country. But wait, that's not all, it's not just Americans that want beef, it's just about anybody out there. Oh, yea, there was only 1.7 billion of us in 1900, now there are 7.5 billion people out there and the vast majority of them in range of refrigerated shipping.

So yea, you came from the richest nation in the world that produced a huge amount of a luxury item, and completely neglected that you were eating a luxury item the entire time.

>[you] neglected that you were eating a luxury item the whole time.

Well I did include bread and cheese in the list as well.

I could also have included eggs, and most vegetables.

"Should be"? "Ethically"? On what basis and under what code of ethics do you operate? You understand that your view of ethics is only one among many, and you have no right to impose yours on other people by force... Right?

I highly doubt this law will survive for long.

However, that it (and laws like it) was actually considered seriously enough to pass brings up big questions about the character of those lawmakers who voted for it.

Here's a link to the actual text of the bill: http://www.ncleg.net/Applications/BillLookUp/LoadBillDocumen...

Pay particular attention to section b paragraph 2.

"duty of loyalty to the employer"

Wow. That's quite the one-way street.

This is about North Carolina's extreme position. I think the title should indicate that.

That said, one would hope this gets overturned as it basically wants to keep all the dirty laundry in any industry out of scope for whistle blowers by exposing whistleblowers to fines of up to 5000/day of recording activities. That's chilling.

It's kind of stunning that the legislature overrode the governor's veto.

People yell and scream about campaign finance being a problem in the US, I'm starting to think the bigger problem is that parties have set themselves up to have advantages getting people on ballots.

In Michigan (where I live), party backed candidates have a substantially easier time getting on ballots (they only need 1/2 the signatures on the relevant petitions) and there are term limits on state representatives, so party leaders and "Lansing bureaucrats" end up having a lot of influence on what happens at the state level.

Say some district had an independent rep that they really liked. By state law, they can only send them to do their business for a couple of terms, then the parties get their chance to stand up a patsy (<--I'm a little cynical I guess).

This is the strongest argument against term limits: it biases teams of warm bodies over individuals.

The partisan politics on this issue are pretty interesting. The NC governor (who unsuccessfully vetoed this law) is a Republican. But Republicans in the state legislature voted[1] 67-3 to override the veto. Democrats voted 33-12 to uphold it.

[1]: http://www.ncleg.net/gascripts/voteHistory/RollCallVoteTrans...

The Idaho law was struck down already. It was a "knee-jerk reaction" bill that the governor pushed thru as quickly as possible (when the video of Bettencourt's place came out, he was getting death threats). But everyone knew the law wouldn't last long.

The fine is $5000 per day of recording. I'm fairly certain that any TV show/movie using this material will not have much issue with $5000.

But they wouldn't necessarily be the target of the fine. The individual who actually recorded the footage would be the likely target of the lawsuit, and in many cases that person could be operating either alone, or for an advocacy group that might not have much funding to cover such fines.

An interesting question is where the NYT and NC Democrats stand on analogous exposes of Planned Parenthood.[1] If exposing evil Ag businesses is OK, what's the difference if somebody feels the same about any clinic that performs abortion? From a free speech perspective it's hard to see the distinction.

[1] http://www.nytimes.com/2015/07/22/us/with-planned-parenthood...

The difference there is that the videos told an entirely fabricated story. Treating this as merely a partisan issue is misdirection.

The people who made the anti-abortion video in question broke a variety of laws (unrelated to whistle-blowing), and made up a narrative that was completely at odds with reality.

http://www.reuters.com/article/us-plannedparenthood-texas-id...

On the other hand, the videos and documentation that ag-gag laws are intended to outlaw are videos that are merely displaying the illegal/unethical behavior of factory farms; they outlaw (or attempt to outlaw, as they may not hold up in court) protected free speech. If someone were to break a variety of laws unrelated to whistle-blowers and fabricate stories about factory farms, then you could compare it to that anti-abortion video.

> The difference there is that the videos told an entirely fabricated story.

That's not actually the relevant difference, even if it is a difference. The difference with the PP videos case is that the charges there were for things that would be a crime whether or not the purpose was gathering information for publication and whether or not there was secret filming going on, unlike ag-gag laws which directly target gathering and publicizing information (whether the story they is accurate or distorted.)

Thought the same thing. Different state, but a TX judge ruled very, very similar action against PP a crime. Others who say "they told a false story" should realize that's a matter of perspective. I'm sure there are those who say the videos depicting cruel treatment of animals are "edited to convey something different from reality". This logic would also apply to every Michel Moore "documentary" ever.

> Different state, but a TX judge ruled very, very similar action against PP a crime.

No, the indictments against the video makers weren't for anything analogous to what "ag-gag" laws address; the indictments were for criminal violations of generally-applicable laws that apply whether or not a video is being made and whether or not the purpose of the act is to present information about a particular business: they were for falsifying government documents with intent to defraud, and for violating a law prohibiting offers to purchase human organs.

This is very different from laws which directly prohibit actions because they are taken to publicize (whether accurately or in a distorted manner) what a business is doing. This is just saying that an intent to make a video doesn't exempt you from generally applicable criminal laws.

Has anyone said that doing exposes on planned parenthood should be illegal? I didn't see that in the reference, and without that, no, it's really not an interesting question.

Yes, the folks who did the PP videos are being prosecuted as well as sued. [1]

[1] http://www.nytimes.com/2016/01/26/us/2-abortion-foes-behind-...

They weren't indicted for publishing a story. They weren't indicted for writing or producing a story.

They were indicted for doing illegal things to try to obtain information to use in their story. In a similar way, someone trying to do an exposé by breaking into a business' office at night to steal records would be subject to criminal prosecution -- not for the story, but for the tactics used to obtain information for the story.

(and of course the same grand jury also returned no indictment of Planned Parenthood on the claims made in the story, but either way illegal tactics to obtain information are illegal)

Maybe this law could protect lawyers, like those exposed on 60 minutes this week, from further sting operations on their money laundering business.

Was just listening to the podcast audio last night. A casual perusal of the connections between the business world and politics (especially local political leaders) would reveal the extreme conflicts of interest in cases such as these. These people aren't protecting anonymous "businesses" or a disembodied "economy", they're protecting their friends, and many times themselves.

Better call Saul!

This just makes North Carolina look like a backwards plutocratic sh*thole.

Does this prevent someone from blowing the whistle anonymously? Isn't there some risk in forcing people to be anonymous? e.g. I know I can't go to the government for help, so I have to post something on WikiLeaks instead?

I say we get as many people as possible to botcott companies in such states. Also, send them a letter saying they did, tell them how much the competition is making on the new business, and say that continues until the law is repealed.

Make it impact their numbers until companies push (or pay) lawmakers to reverse it. Or don't and better areas prosper.

If you can contractually give up your right to a jury trial, or to a trial at all (eg. binding mediation clause), why can't you contractually give up your right to free speech.

You can give up your right to bring a civil suit, it doesn't impact your right to a jury in a criminal trial. That's a very important difference.

Why not contractually give up rights to privacy, freedom, and all the rest? The problem here is that you can't contractually give up your right to a jury trial and that the courts act as if you can is a travesty to justice.

I don't believe you ought to be able to give up either.

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