Ask an Expert: What Is Free Speech?

Legislation includes a “duty of loyalty” of participants in an ID system to individuals

Follow for live coverage of the nationwide peaceful protests to condemn President Trump's escalating abuses of power.

WASHINGTON, D.C. -- Today, the Supreme Court decided in Cox v. Sony, a landmark copyright case, that internet service providers (ISPs) should have limited copyright liability for user behavior that infringes copyrighted materials. The decision is a win for freedom of expression online. An amicus brief on behalf of the American Civil Liberties Union, the ACLU of Virginia, and the Center for Democracy and Technology, authored by leading copyright scholars with the firm Lex Lumina, urged the court to limit the circumstances where service providers could be subject to secondary copyright liability last fall. The Court reviewed a decision by the Fourth Circuit that inflicted massive penalties on an ISP that failed to routinely shut off Internet access for IP addresses based on a copyright holder’s mere accusation that the address had been used to infringe on copyrighted materials. In practice, that holding would have forced ISPs to shut off Internet access for entire families, businesses, hotels, airports, and libraries, all because of an allegation of infringement against one user. This kind of collective punishment has troubling implications for online speech. “If defined too broadly, secondary copyright liability for internet-service providers can pose a serious threat to free speech online,” said Evelyn Danforth-Scott, staff attorney with the American Civil Liberties Union. “The ruling below gave internet service providers every incentive to shut off internet access first and ask questions later. In our increasingly connected and digital world, where we use the internet to speak, listen, research, and create, limiting this kind of liability helps safeguard all of our First Amendment rights.” “First Amendment interests are at risk when an Internet service provider like Cox risks crippling liability just because a relative few of their customers are violating copyright law,” said Jennifer Granick, surveillance and cybersecurity counsel with the ACLU’s Speech, Privacy, and Technology Project. “Internet service providers can’t see or remove copyright infringing material moving through their system, and the ruling below would have forced them to block anyone using a flagged IP address from using the Internet. We’re pleased that this Court limited the scope of contributory copyright liability to protect people’s First Amendment interests in accessing the wealth of Internet-stored information and in making their voices heard online." The case arose when several record companies and music publishers, including Sony Music Entertainment, sued Cox Communications, an Internet service provider, for not kicking users off their services who had allegedly used file sharing technologies like BitTorrent. In Sony’s telling, Cox’s failure to block IP addresses flagged by copyright holders contributed sufficiently to the end users’ infringing activities as to subject Cox itself to statutory copyright liability. A jury awarded Sony and its co-plaintiffs a billion dollars in damages, and in 2024, the Fourth Circuit Court of Appeals affirmed in part: It held that Cox Communications was liable for secondary copyright infringement because it hadn’t taken enough steps to disconnect users who were allegedly downloading pirated works. The ACLU brief urged the Court to take a narrower view of secondary copyright liability by adopting the same contributory liability rules that apply in other contexts to make sure speech distributors don’t unduly constrain the marketplace of ideas. In Smith v. California, for example, the Court held that imposing criminal liability on a bookstore for selling obscene books would incentivize them to stringently self-censor, stripping the shelves bare to avoid any potential fines or punishment. Similarly here, broadly-defined secondary copyright liability would give ISPs a strong incentive to bar users from the Internet based merely on an unproved accusation of illegal activity at their IP address. As in Smith, the brief argued, passive inaction in the face of unverified complaints should not be a basis for liability, and in today’s ruling the Supreme Court agreed. The brief, filed in September by the American Civil Liberties Union, the ACLU of Virginia, and the Center for Democracy and Technology, represented by co-counsel Lex Lumina LLP, Professors Chris Sprigman, Rebecca Tushnet, and Mark Lemley can be viewed here. This case is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.

NEW ORLEANS – The Fifth Circuit ruled today in Ford v. Mckesson that a lower court erred in finding that prominent civil rights activist Deray Mckesson cannot be held liable for unlawful conduct of other people attending the protest he was at in 2016. The protest was held to celebrate the life of Alton Sterling, a Black resident who was shot and killed by two on-duty police officers. No jury has yet heard the case or determined if Mckesson is liable, but today’s decision opens the door for a trial to proceed. “This decision is disappointing not only for me personally, but for each and every person who cherishes the right to protest,” said DeRay Mckesson. “The purpose of this lawsuit was not just to silence me, but to make people afraid to show up to protests because they might get sued for someone else’s behavior. That is an affront to our First Amendment freedoms, and even after nearly ten years, I will not stop fighting this ludicrous suit in order to protect all of our rights to protest, organize, and imagine a world beyond policing.” The plaintiff, a former police officer, was hit by a rock-like object at the protest and argues that Mckesson, who was also present but did not throw the object, should be liable for the injury. In 2024, a lower court granted summary judgment to Mckesson and found that the plaintiff failed produce enough evidence to establish that Mckesson planned the protest or caused the officer’s injuries. “This decision is wrong on the facts and on the law,” said Vera Eidelman, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project. “Opening the door for a jury to hold our client liable for someone else’s behavior at a protest would make any person think twice before attending a protest. Allowing a trial to move forward on such a thin record seriously threatens our First Amendment rights to organize and attend protests without fear of burdensome litigation. This battle is not over, and we will continue to seek justice for our client and for protesters everywhere.” Since 2016, this case has been at the Fifth Circuit, the Louisiana Supreme Court, and the U.S. Supreme Court on the question of whether the theory at its center—that protest organizers can be liable for the unlawful acts of a third party at a protest not because they intended the illegality but because they “negligently organized” the protest such that the illegality was foreseeable—violates the First Amendment. After the Fifth Circuit accepted the theory, the Supreme Court declined to again hear Ford v. Mckesson in April 2024. Despite the Court’s denial of the cert petition, Justice Sonia Sotomayor wrote a statement emphasizing the Court’s 2023 decision in Counterman v. Colorado, which held that negligence can never be the proper standard when it comes to political speech and that intent is necessary for incitement, should govern “any future proceedings in this case.” The case then returned to district court, where Mckesson moved for and won summary judgment. Mckesson argued that the theory continues to violate the First Amendment and that, even if it is viable, Ford failed to meet his burden of proving the facts at the center of the case. Mckesson is represented by David Goldberg, counsel of record on Mckesson’s legal team and attorney with Donahue, Goldberg & Herzog; the American Civil Liberties Union; and the American Civil Liberties Union of Louisiana.