Tesla claims California false-advertising law violates First Amendment | Hacker News Reader

Tesla claims California false-advertising law violates First Amendment

arstechnica.com

108 pointsthg122 comments

Even if it falls under free speech, which it definitely doesn't AFAICT, it'd be essentially the same as allowing any food producer to just forego an ingredients list. Because surely, accurate ingredients are compelled speech and thus a free speech violation.

The Supreme Court may soon decide to change how regulatory agencies can enforce those practices.

https://www.govexec.com/management/2023/11/supreme-court-app...

It's not clear that this would affect how a state agency regulates, or their regulatory power. Federal and State authority are derived from different sources.

I assume ingredient lists, which the parent comment referred to, are handled federally.

Correct, this is the part of the article expressing this concept:

> Despite Tesla's free speech claim, the US and state governments can enforce laws banning deceptive practices that harm consumers. "Beyond the category of common-law fraud, the Supreme Court has also said that false or misleading commercial speech may be prohibited," a Congressional Research Service report last year stated. "For constitutional purposes, commercial speech is speech that does no more than propose a commercial transaction or that relates solely to the speaker's and audience's economic interests. Accordingly, the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC) can regulate deceptive commercial speech without violating the First Amendment."

https://www.law.cornell.edu/wex/commercial_speech

The very first requirement in the Central Hudson test is that the commercial speech not be misleading. This move from Tesla is either done to waste time or get free advertising. It’s certainly accomplished the latter.

"Elon the free speech warrior"...feels like I've heard this tune before.

It is interesting how widely Constinution and laws can be interpreted. Why not regulate speech that criticizes the government because it causes harm, seeds distrust in government institutions and misleads voters to make the wrong choice.

A good starting point for understanding First Amendment constraints on government power to regulate deception is the U.S. Supreme Court's declaration of "common ground" in Gertz v. Robert Welch, Inc.:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues.

You can read more about Deception and the First Amendment in this UCLA Law Review article: https://www.uclalawreview.org/wp-content/uploads/2019/09/34_...

Of course the problem is that „fact“ is ill-defined. I am sure Iran will agree with above statement, it’s just that their set of facts is different from those of US judges.

> I am sure Iran will agree with above statement, it’s just that their set of facts is different from those of US judges.

For censoring speech, we have before us two options:

Option A is to ban "mistruths", and to go down the philosophical pursuit of determining what is "fact" and what is fiction, which will change based on milieu, sentiment, those in power, etc., and will be argued endlessly. Then we need to get into "unintended mistruths" vs "intentional mistruths", etc.

Option B is to allow most speech and to only focus on tortious fictions (libel/slander).

I think most sane people would choose Option B. And yes, Iran will disagree with the "facts" of the American populace, as I assume a German will disagree as well :)

You can express it however you like, and say "tortious fiction" for false. Doesn't change that in the end, somebody has to decide what is true and false, and this will always be a matter of opinion. So option A and B are not really different. I am sure Germans would also agree that "most speech" is allowed.

By "tortious fiction" I meant that there's an injured party, hence libel and slander being mentioned. I.e, one can say "mistruths" as long as they don't slander another person and cause them measurable harm.

Option A is eager evaluation. Option B is lazy

It’s not slander if it’s true, right?

Tortious *fiction* means it's not true, right?

To the point of a lot of this discussion, isn't Option A already in operation for most commercial purposes?

Contract law often gets into what is a statement of "material fact" vs. what is a statement of opinion. For example, a company can be sued for a statement like "contains 100% beef" and not for "delicious beef flavor" if the item in question has no beef in it. These torts are different from libel or slander, but they are often upheld in court. Misrepresentations can also be classified into honest mistakes or knowingly committing fraud. I think "most sane people" would argue the ability to sue over false claims of material fact are important commercial regulations.

I think - and this is not well expressed elsewhere, so either I'm on to something, or I'm not - but all these regulations are about potentially harmful truth claims. So libel and slander fall into this; so do misleading advertisements. We want people to speak, but we also want people (and far more so, businesses) to tell the truth.

> Why not regulate speech that criticizes the government because it causes harm

Why not use 1'st amendment to protect financial fraud? If Tesla wins, then you can lie about financial products, shares and bonds. Stock market and pensions will collapse withing a week.

> Why not regulate speech that criticizes the government because it causes harm, seeds distrust in government institutions and misleads voters to make the wrong choice.

The answer is extremely, extremely simple actually: because the outcome of that would be bad, while the outcome of controlling misleading advertising is good.

It really is that simple.

Plenty of people around the world (not me) think it would be good

People in other countries can think what they like, but in America the premise of banning criticism of the government would be extremely unpopular.

Criticizing the government is the key thing this clause should allow. Before that criticizing the king could lead to trouble.

Right, but not here, which is why it's not that way here.

> The answer is extremely, extremely simple actually: because the outcome of that would be bad, while the outcome of controlling misleading advertising is good.

I don't think that is how law should work. For some people the outcome of regulating free speech would be bad, many wouldn't care, and for many people (for example, for the President and his team, some of his supporters, members of the government) it would be great.

There is no such thing as "make something better for everyone". It is always "make better for one and worse for another". For example, if you raise minimum salary there will be people upset with that (people who pay the salary; people who see the prices raise).

Also it would be better if the law would be precise and there would be no need to interpret it in someone's favor.

That is how it actually does work. We elect leaders on the basis of them expressing some approximation of our desired future, they appoint judges who express some approximation of our desired future, everyone is constrained by each other and by each others' believable interpretations of some documents, and example case after example case is brought forth and tested on the basis of "will ruling this way yield a positive outcome for society?" where "outright rejection of the court and legislative system" is considered an intrinsically bad outcome.

> Also it would be better if the law would be precise and there would be no need to interpret it in someone's favor.

Sure would! Unfortunately we have no reason to believe this is even theoretically possible.

Let me guess, you have no problem with fraud laws though, right?

Because that's tyranny? The ability to criticize the government is a core tenant of a free society.

The basic principle is that free speech does not include the right to incite or conspire to commit a crime. Misleading commercial statements falls under that principle, while political opinions generally don't, again as long as they're not e.g. a conspiracy to break the law.

There have been some notable lapses in applying this principle in US history though.

The issue is that you can not make a law/regulation that says statement X about products Y is not allowed because its wrong/misleading. A court has to decide if it is wrong/misleading AFTER the fact and someone sued.

30 Years ago any statement about any modern vehicle feature would have been misleading no one had to preemptively make them illegal. Such "laws" should simply not exists.

>The issue is that you can not make a law/regulation that says statement X about products Y is not allowed because its wrong/misleading. A court has to decide if it is wrong/misleading AFTER the fact and someone sued.

Yes you can, and they have. You might like regulations to work that way, but they don't. The government has appointed agencies to determine what is wrong or misleading, and the authority of those agencies has been backed up by the courts.

Individuals and companies that disagree with specific ruling by agencies do have the right to go to court of course, and have done so.

You seem to have trouble understanding. No one questioned that such stupid laws do in fact exists. I was explaining why they _should_ not.

How on earth do you go from “companies probably shouldn’t be allowed to lie to consumers about product details”

“We should restrict speech against the government”

I don't think it's a serious statement, they're just taking it to a ridiculous extreme to demonstrate the point. Or maybe I completely misunderstood, who knows!

The problem is that “slippery slope” arguments don’t demonstrate anything.

Remember when the USA south kept saying “what’s next, marrying animals?!” With regard to legalizing equal marriage?

This shit doesn’t mean anything because rational people are capable of understanding nuance. So they’re literally just here to say stupid things and waste peoples time because we’re obligated to respond to this stupidity to make sure that nobody confuses lack of response with validity.

The Alien and Sedition Acts kind of were an attempt at that.

Though since its not law, as passed by legislation, this current supreme court, if it got the case and decided to hear it, could just as well throw all this out the window no?

They've proven multiple times they're willing to throw away decades of legal precedent over ideological motives already.

They're allowed to put all sorts of things on food packaging because of "free speech". One example is misleading unprotected terms of provenance.

e.g., Port wine made in California isn't really Port wine, but it's allowed on the market under that name.

Funny enough the only thing that really is protected like this is Scotch Whisky due to a trade agreement that has us hunting down any producer in the USA that advertises an American whiskey as a Scotch whisky.

Don't forget that "free range" chicken doesn't mean shit, neither does "grass fed" beef.

False advertising on food is everywhere in the USA.

No. None of those have anything to do with the principle of free speech.

Port wine has a legal definition in the US. You can't sell it as champagne or as cola.

However, it is true that ingredient, food and drink labels may have different definitions from those used in other countries, or from what you personally think they should be.

But they still have actual definitions that have to be followed. (Except for subjective, non-technical terms like "tasty", "artisanal", etc.)

Since when is a ingredients list and ad? None of the ads related laws apply to ingredient lists. This utter nonsensical comparison that isn't rooted in any law, just a random idea some journalist apparently had.

Also since Tesla does not officially make ads (may have changed recently, probably the reason why they looked into the law), this whole claim relates to the law limiting speech not to anything Tesla ever said in anything that could be considered an ad. The issue here is that the law forbids certain statements. That alone is the issue. Whether or not Tesla could/would/want to make these statements about heir car and if they would be truthful is completely irrelevant.

There isn't any allegation that the law was broken, the allegation is that the law limits speech that could be truthful and protected. (I'm not the court I wont decide if this is correct.)

Open Tesla website. Does it show information about a product it's seling? That's an ad. Have they provided information about said products elsewhere? Where those... advertised to people, let's say, via the CEO on a publishing platform?

> The agency argued that a Tesla disclaimer, which says the "features require active driver supervision and do not make the vehicle autonomous," is not enough to make the advertising truthful. The "disclaimer contradicts the original untrue or misleading labels and claims, which is misleading, and does not cure the violation," the DMV said.

Is this not the same as saying the fine print does not override marketing claims? Does that not apply to all the cases of sneaky clauses hidden in the TOS by most businesses? Especially wrt privacy and selling data, etc?

There is a difference between the fine print adding conditions and the fine print going "not actually the case jinx". They say the latter is happening by asserting the fine print contradicts the marketing claims.

This is a bad game of telephone where people discussing what they think Tesla lawyers said but not what they really said.

1. Tesla lawyers are not claiming that whatever Tesla said is fine because first amendment.

2. They are claiming that the laws DMV is using to go after tesla is invalid under first amendment.

Hopefully you can see the difference and see that everyone here argues 1. but not the 2.

The article is pretty clear so draw your conclusion about the state of online discourse.

Actually, I'm not seeing much practical difference between the two. Could you elaborate on what you deem is obvious?

The idea is that regardless of the truth/falsity of Tesla’s speech, the law is so broad that it impermissibly restricts lots of true speech.

Ah - that makes sense - but does not seem to be OP's original claim.

He charged extra saying there would be a robotaxi network for cars sold in around 2016/2017. It's almost 2024: the cars are getting close to EOL. If the law is struck down couldn't it be done in part?

They’re also claiming that even though they are continuing to break the law, the statute of limitations starts when the government first noticed the illegal behavior.

> One of the state laws that Tesla complains about is Cal. Veh. Code § 24011.5, which says that companies "shall not name any partial driving automation feature, or describe any partial driving automation feature in marketing materials, using language that implies or would otherwise lead a reasonable person to believe, that the feature allows the vehicle to function as an autonomous vehicle."

So, they are saying that, even though they are totally lying, hypothetically, someone could build a “partial driving feature” that makes the vehicle “autonomous”?

While there is some of the former here, the latter is adequately addressed.

A claim that the discussion is entirely mistaken is a quite commonly seen characteristic of the state of online discourse.

Checked the article, you're right, the headline is deceptive. It seems like the laws Tesla is referencing are things like "You must not call something autonomous unless it meets <some arbitrary definition of autonomous>". Meanwhile, "autonomous" is not a binary value, and it's hard to draw a line where autonomy begins. Reminds me of the "we'll know it when we see it" definition of pornography put forth by congress at one point.

But regulators have done that going on a century now, and it has held up in court. The FDA has long lists of definitions of what you can and can't call chocolate, milk, cheese, beef, etc.

Then they should do it in this instance as well. Until there's guidance, "autonomy" is just a word like any other and open to interpretation. In those instances, free speech should protect any company using the term and I say this as someone who 100% believes Tesla's advertising was deceptive.

I'd say only 30-40% of the population can grasp nuance like this and its the source of so. much. headache.

OT, but there are three Tesla stories on the top page right now. This is advertising.

It’s probably organic. It often happens that the HN front page coalesces briefly on a theme. People see an article on a topic, research it a bit, and post what they find (or just repost something they remember from last week). And similarly it gets more upvotes on the “new” page because interest in the topic is active.

This is called Baader-Meinhof Phenomenon [0][1]. Every time that you buy a new car, you see the same one everywhere you look: "hey! I just read one article about Tesla, here's 3 more!" when there is usually several articles each day about Tesla.

Notes:

0 - https://science.howstuffworks.com/life/inside-the-mind/human...

1 - https://en.wikipedia.org/wiki/Frequency_illusion

There are a surprising number of Apple and Tesla posts lately. While I am not yet convinced it is being outright paid for, but there does seem to be a higher concentration of specific brand advocacy here than there used to be. I wonder if it has to do with so many people also being share holders with a vested interest in their success?

> I wonder if it has to do with so many people also being share holders with a vested interest in their success?

Would also explain why every single "union vs Tesla" story disappears so quickly from the frontpage.

I’ve made a similar observation before. Most “negative” Tesla posts disappear quickly, even though they seemingly have enough votes and comments to stay up. Probably flagged to death.

And a surprisingly high number of people here are defending a false advertising. Wow.

Comments wrt Tesla/Musk-related stories are also much less diverse and more rage-laden in content. Sentences are also more likely to start with The Brand Name than otherwise, as it'd be worded in universe in The Truman Show. It's just weird.

The limits of this kind of commercial speech are very well settled.

Misleading commercial speech has no first amendment protection.

Tesla is just trying to generate news

Agreed.

First amendment protections should only apply to individuals anyway. Tesla doesn’t have a sane argument here since Tesla is not a person.

(I recognize there’s a whole bag of worms around corporations and attempts to treat them like individuals in the eyes of the law.)

The US Supreme Court says that corporations are people, and therefore every civil right that applies to humans applies to corporations. I suppose that will make things easier for aliens (if they ever move to Earth) to have the same civil/legal rights as humans. I guess replicants will all need to incorporate in order to avoid being slaves (to avoid a Bladerunner future).

That's patently false. The Fifth Amendment right against self-incrimination, for example, doesn't apply to corporations.

The supreme court said that people don't lose their first amendment rights just because they form a political advocacy group.

They also literally said “corporations are people”.

Corporations are groups of people. And citizens united was a political advocacy group.

That logic doesn't pass muster. Imagine if a state passed a similar law and then started piling fines on newspapers for misleading reporting.

Clearly, the mere fact that the newspaper is a corporation doesn't dissolve its speech rights (nor should it).

Like with the Pepsi jet commercial?

Daydream: California makes it legal to claim "First Amendment!" when making false statements to Tesla. Including statements made in contracts, employment agreements, etc.

Can we stop treating corporations as people?

Treating corporations as people is the biggest own goal of Neoliberalism. Now we are discussing fictional right to free speech of a fictional entity and imagining how it would affect an average Joe. For some reason we have to have the same law regulating speech of an average Joe and of a fictional entity that does not die and is controlled by ever changing charade of shareholders, each holding 1% or whatever.

I often defend autopilot's use with real drivers. I've driven with it extensively and have seen how other people actually use the system. There are abuses, but no more than I've seen with other systems. And none of them have been fooled into thinking that it is autonomous when it is not.

I've even defended the name Autopilot, since we've accepted names like "ProPILOT" which are no different in my mind.

Having said that, Tesla's phrasing for FSD is awful, and horribly misleading. I see the effects of this among non-owners all of the time. They really do think the system is fully self driving, when it is not.

The company should be forced to stop this practice. It is deliberately deceptive.

This case together with Meta's case that the FTC is unconstitutional shows a concerted effort from US big tech to do away with any type of US consumer protections. Truly, a country where corporations have more rights than its citizens.

Never argue with idiots. They drag you down to their level and beat you with experience.

It's the court's job to argue with idiots. Saves the rest of us some time and grief.

Previously discussed yesterday: https://news.ycombinator.com/item?id=38611432

The obvious solution is to permit corporations the same free speech as natural persons, but revoke their limited liability protections if they tell lies. AFAIK there's no constitutional requirement to let natural persons escape the harm they do by blaming it on a fictitious person. Limited liability is a privilege.

A company is not a person

A company is not a natural person.

I’m guessing you have to be a true believer to be a Tesla lawyer, but I wonder what the paralegals think

Don’t have to be a true believer. Plenty of people willing to spout bullshit for pay.

The lawyers are paid to represent the point of their clients, and that's what they do. What they personally think is definitely not getting on the outside. Or shouldn't.

Let’s just godwins law this immediately. Nazi soldiers were paid to round up undesirables and execute them, and that’s what they did. We still took issue with it. Your argument is fundamentally the same as “just following orders”

I miss the days when the work of lawyers wasn't being scrutinized on social media..

Lawyers represent a client. What they personally believe has nothing to do with it.

According to you, if it takes a true believer to be a Tesla lawyer, what does it take to be a public defence lawyer that represents murderers and sexual offenders?

Zealous representation is a critical part of the justice system for criminal law as pertains to individuals.

Actual people. People who aren't fictional.

I've yet to see a good, ethically sound argument that corporations inherently deserve the same. They're not people. They aren't subjected to the same kinds of penalties as people even when they kill people. The stakes are different and so are the affordances a reasonable person can demand. So it seems eminently reasonable to consider the ethics of a lawyer representing a client just as one would consider the ethics of any vendor doing business with a shithead.

> They aren't subjected to the same kinds of penalties as people even when they kill people.

This is the biggest injustice in the world today. So much corporate harm is caused by their impunity. If I commit some kind of fraud that results in deaths of 10 people, I will probably get life sentence. But corporations do it routinely and nobody goes to jail.

They are only people when it suits them.

They should receive the same representation, IMO.

Divorced from emotion, representation even for the most despicable of organizations powers the feedback loop of the judicial system, allowing it to set precedents, identify holes in law, etc.

I think the dynamics of defence and prosecution don't end at "One defends, one prosecutes". Defence forces Prosecution to devise a bulletproof case, they promote rigorous case preparation and ensure legal integrity. It's the same reason why we have opposition parties in politics. Without defence, how comprehensive would the prosecutions case be? Further illegal activity commited by the defendent gets uncovered all the time by prosecution, during the trial, due to the pressures applied on the prosecution by the defence.

Yes, the chemical companies actively poisoning the people should be burned to the ground, but, for the judicial system to function, they should receive zealous representation, and those representing them, should not be viewed as less-than.

That's my current take on it. Happy to be called naive and discuss this further.

This is the most compelling argument I've seen for it, so for real, kudos for that.

That said, I think in practice this opens the door to decontextualizing any work done for a shitty corporation, not just legal representation. Obviously, I do not believe anyone should be legally enjoined from representing any defendant. And I think there is not just necessity but some nobility in a zealous defense of an individual, even a terrible one. On the other hand, we live in a rhetorically stupid time, and "well how can you judge me for working for the Torment Nexus?" is already something people dare believe. This reads to me as an inevitable way to buttress that position in practice.

So while I think you and I are fully agreed on representation in a legal court, I do think the court of public opinion--being functionally the last one really left to us as individuals within the polity--is probably fair game on that front. They are not, after all, actual people, and we are, so...

> According to you, if it takes a true believer to be a Tesla lawyer, what does it take to be a public defence lawyer that represents murderers and sexual offenders?

It takes to be a true believer in the rule of law, and the role of a defence lawyer in the system.

> I miss the days when the work of lawyers wasn't being scrutinized on social media.

Nah. People are free to criticise whatever they want to. There is no harm to it, and they absolutely have their right to express their opinion.

It is an important form of public participation.

> Nah. People are free to criticise whatever they want to.

I agree. But I don't agree that there's no harm to it. Tiktokers and Tweeters with zero understanding of the judicial system go online to harass the lawyers of whatever team they disagree with. That's causing harm. A parallel can be drawn between such behavior and that of people harassing actors who portrayed a villain in a movie/show really well - see Jack Gleeson and the death threats he received for playing King Joffrey too well in GOT.

To be clear, I am not saying we should impose limits on what can be said about lawyers. I'm merely stating I miss the days when social media addicts did not feel compelled to comment on legal matters.

I think it is a false comparison. Public defender has a role to defend these who could not afford to defend themselves. In addition they protect suspects, not criminals. Not even slightly comparable to the case here.

Lawyers represent clients, regardless of guilt. Only shitty lawyers do otherwise.

Lawyers get paid to bend the law in your favour. There is nothing moral about it.

So defrauding someone is free speech? This is a hollow argument. Consumer rights should come first in any scenario because consumers are the vast majority.

The fact that this is even up for debate shows how much power corporations have in the US.

Is this Tesla admitting they are guilty of false advertising?

No. What an ignorant question to ask. Any halfway decent lawyer would pursue all available avenues to defend their client. Challenging the Constitutionality of a law is not an admission that the client has violated said law.

Any halfway decent lawyer would try to prove that their client hasn't violated a law before trying to prove that the law is invalid.

Have they defined what autonomous means?

Autonomous has a definition, and it's easily understood by normal people:

>denoting or performed by a device capable of operating without direct human control.

This is in direct contradiction to how Tesla says FSD is to be used:

>Full Self-Driving (Beta) is a hands-on feature. Keep your hands on the steering wheel at all times, be mindful of road conditions and surrounding traffic, and always be prepared to take immediate action.

The fact that we are still arguing about this, when there are literally autonomous taxis driving around San Francisco, is really strange.

But my car can operating without direct human control, just for a limited time/in limited circumstances.

Same as Waymo, but their time/circumstance limitations are less

As always, there's no principle involved here. This is just neoliberalism run amok. Deregulation and privatization aren't lofty goals or even efficient. They're simply mechanisms for wealth transfer from the poor to the wealthy, either directly or via the government.

Legally, this is a silly argument that will go nowhere. After all, isn't defamation just "free speech"?

This is just vice signaling. It's like virtue signaling but instead you're demonstrating your bad character.

This has to be an onion article

The Big Lebouski defense.

Then in the end is just some retaliation against Musk to make possible US to spy on twitter

Not two seconds ago I just watched Elon Musk break into my house, steal the copper out of my walls, kick my dog, and piss on the ashes of my dead grandma. Fortunately, libel is legal now because idiots continue not to understand how the first amendment works.

Libel in the US is very hard to fight because the first amendment makes so many things legal, a good example of what is almost certainly legal, your statement about Elon Musk.

No, libel in the US is very hard to fight because Sullivan is terrible jurisprudence.

He also entered into a binding verbal agreement to give me $5 billion.

what is the point you're trying to make? it went over my head.

He's trying to say that California's law banning false advertising must be Constitutional because libel is illegal.

It's a non-sequitur though. Libel and false advertising are not the same thing.

Why would this not be legal?

Have you thought throught the consequences of making something like this illegal?

The fact companies in the US have "personhood" is a huge fucking problem with this damn country.

Elon being Elon again - has he paid the Twitter folks and office rentals yet ???.

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