If ever there were an artist who seems to straddle the line of aggressive intellectual property enforcement, that artist must surely be Taylor Swift. While Swift has herself been subject to silly copyright lawsuits, she has also been quite aggressive and threatening on matters of intellectual property and defamation when it comes to attacking journalists and even her own fans over trademark rights. So, Taylor Swift is, among other things, both the perpetrator and the victim of expansive permission culture.

You would think someone this steeped in these concerns would be quite cautious about stepping on the rights of others. And, yet, it appears that some of the iconography for Swift's forthcoming album and merchandise was fairly callous about those rights for others.

Amira Rasool, founder of the online retailer The Folklore, accused the pop star last week of selling merchandise that ripped off the logo of her company, which sells apparel, accessories and other products by designers in Africa and the diaspora.

Rasool shared photos on Twitter and Instagram that showed cardigans and sweatshirts with the words "The Folklore Album" for sale on Swift's website.

Are those logos confusingly similar? Given the shared brand name... yeah, probably! While not exactly the same, particularly given the font and style choices, the overall placement of the words in each logo is similar enough that I can see a valid trademark issue here.

Now, let's be super clear about a couple of things. First, Swift has changed the logo after Rasool's complaint. She also reached out to Rasool and commended her organization and appears to have made a contribution to it as well. Rasool herself has responded appreciatively and has said the matter is closed. A monster Taylor Swift is not.

But that isn't really the point. In many instances, this is how trademark infringement issues happen. I have seen nothing to suggest that Swift's team knew of Rasool's organization and blatantly ripped off her logo. Maybe they did, maybe they didn't. But it's not tough to picture how this could have happened relatively innocently. And that immediately brings to mind the following question: would Swift have offered the same grace to the targets of her own enforcement as did Rasool? Given how aggressive she's been in trying to trademark all the things and then going after her own fans as a result, it seems doubtful.

But maybe this is the learning opportunity she needs. I won't hold my breath.

Senator Lindsey Graham very badly wants to push the extremely dangerous EARN IT Act across the finish line. He's up for re-election this fall, and wants to burnish his "I took on big tech" creds, and sees EARN IT as his path to grandstanding glory. Never mind the damage it will do to basically every one. While the bill was radically changed via his manager's amendment last month, it's still an utter disaster that puts basically everything we hold dear about the internet at risk. It will allow for some attacks on encryption and (somewhat bizarrely) will push other services to more fully encrypt. For those that don't do that, there will still be new limitations on Section 230 protections and, very dangerously, it will create strong incentives for internet companies to collect more personal information about every one of their users to make sure they're complying with the law.

It's a weird way to "attack" the power of big tech by forcing them to collect and store more of your private info. But, hey, it's not about what's actually in the bill. It's about whatever bullshit narrative Graham and others know the press will say is in the bill.

Either way, we've heard that Graham and his bi-partisan supporter for EARN IT, Senator Richard Blumenthal, are looking to rush EARN IT through with no debate, via a process known as hotlining. Basically, it's a way to try to get around any floor debate, by asking every Senator's office (by email, apparently!) if they would object to a call for unanimous consent. If no Senator objects, then they basically know they can skip debate and get the bill approved. If Senators object, then (behind the scenes) others can start to lean on (or horse trade) with the Senators to get the objections to go away without it all having to happen on the floor of the Senate. In other words, Graham and Blumenthal are recognizing that they probably can't "earn" the EARN IT Act if it has to go through the official process to have it debated and voted on on the floor, and instead are looking to sneak it through when no one's looking.

While Senator Wyden (once again) has said he'll do whatever he can to to block this, it would help if other Senators would stand up as well. Here's what Wyden had to say about it:

The EARN IT Act will not protect children. It will not stop the spread of child sexual abuse material, nor target the monsters who produce and share it, and it will not help the victims of these evil crimes. What it will do is threaten the free speech, privacy, and security of every single American. This is because, at its core, the amended EARN IT Act magnifies the failures of the Stop Enabling Sex Traffickers Act--SESTA--and its House companion, the Fight Online Sex Trafficking Act--FOSTA. Experts believe that SESTA/FOSTA has done nothing to help victims or stop sex trafficking, while creating collateral damage for marginalized communities and the speech of all Americans. A lawsuit challenging the constitutionality of FOSTA on First Amendment grounds is proceeding through the courts, and there is bicameral Federal legislation to study the widespread negative impacts of the bill on marginalized groups.

Yet, the authors of the EARN IT Act decided to take this kind of carveout and expand it further to State civil and criminal statutes. By allowing any individual State to set laws for internet content, this bill would create massive uncertainty, both for strong encryption and constitutionally protected speech online. What is worse, the flood of State laws that could potentially arise under the EARN IT Act raises strong Fourth Amendment concerns, meaning that any CSAM evidence collected could be rendered inadmissible in court and accused CSAM offenders could get off scot-free. This is not a risk that I am willing to take.

Let me be clear: The proliferation of these heinous crimes against children is a serious problem. However, for these reasons and more, the EARN IT Act is not the solution. Moreover, it ignores what Congress can and should be doing to combat this heinous crime. The U.S. has a number of important evidence-based programs in existence that are proven to keep kids safe, and they are in desperate need of funding to do their good work. Yet the EARN IT Act doesn't include a single dollar of funding for these important programs. It is time for the U.S. Government to spend the funds necessary to save children's lives now.

While a Wyden hold would block any attempt to get unanimous consent via the hotlining process, it would help quite a lot if other Senators were willing to speak up and stand with him as well. If it's just Wyden, then he'll face tremendous pressure to remove the hold. If more Senators join Wyden in saying this isn't okay, then Graham and Blumenthal will realize they have a bigger challenge in front of them.

Again, if you haven't been following this debate closely, everything that Wyden says above is accurate. EARN IT is an attack on both free speech and privacy (a twofer) without doing anything to actually deal with the problem of child sexual abuse material online. That is very much a law enforcement issue, and it's one which Congress has failed to provide the funds to law enforcement that it promised on this issue, and (even worse) the DOJ has simply ignored its requirement mandates to deal with this issue as required by Congress. The DOJ seems more focused on attacking tech companies and blaming them for its own failure to do its job.

The EARN IT Act is an incredibly dangerous piece of legislation, but it's also a complicated one -- one that many people don't understand. But Senators see something that says "protect the children" and they immediately think "well, of course we support that." But this bill doesn't protect children. It attacks free speech and privacy online in very insidious ways. Please call your Senators and ask them not to let this through.

Guys, I'm beginning to get the feeling that Senator Josh Hawley doesn't like Section 230. I mean, beyond creating a laughably inaccurate and misleading "True History of Section 230," Hawley has now introduced at least four bills to modify or end Section 230. Perhaps if he introduces 10 he'll get a free one. His latest, introduced last week would remove Section 230 for any internet company that has "behavioral advertising." Now I've been skeptical of the value of behavioral advertising in many cases, but this new bill is absurd.

Basically what the bill would do is say that any site that uses behavioral advertising loses 230 protections:

An advertisement server shall be held liable for any claim brought against a covered provider because of the application of subparagraph (B) if, after the covered provider directs the advertisement server not to serve or deliver behavioral advertising to users of the interactive computer service described in subparagraph (A)(iii)(I)(aa) provided by the covered provider (or if the advertisement server fails to provide reasonably accessible means to receive that direction from the covered provider), the covered provider unknowingly takes the action described in subparagraph (B)(i) because of an action taken by the advertisement server, including the failure of the advertisement server to provide the covered provider with a conspicuous disclosure regarding the category of advertisements to be displayed.’’.

Because all bills need to have terrible acronyms, this one is the Behavioral Advertising Decisions Are Downgrading Services Act -- or the BAD ADS Act.

No matter what you think of behavioral ads -- and again, I think they're generally quite lame and don't work nearly as well as people pretend -- the structure of this bill seems absurd. Why should 230 protections have anything to do with what kind of advertising model you use? What does one have to do with another? And what job is it of Congress to change whether or not you're protected from liability of 3rd party speech based on what kind of business model you use?

Again, this just seems like yet another example of Josh Hawley (who pretends to be a "small government" Republican) seemingly wanting to be the product manager for the internet. He doesn't like Section 230. He doesn't like behavioral advertising. So, no problem, as a Senator, he moves to outlaw them. Why? Because he doesn't like them. This seems like the kind of big government intrusions into private business that Hawley used to scream about.

Of course, being in the Senate, rather than actually working for a living as a product manager, means that Hawley doesn't have to deal with (or care about) the inevitable fallout from any such change to the law. It would almost certainly harm smaller companies which would be much more limited in what kinds of advertising they could use to support their own sites. As someone who would love to remove all behavioral advertising from our own site (and have tried to multiple times), we've found that the market just isn't there for non-behavioral ads right now. That means it would likely dry up revenue for a ton of sites. Google and Facebook could figure out ways to deal with it. Everyone else? Who knows.

There are, of course, also significant Constitutional questions about this. Why should liability for 3rd party content depend on what kind of business model your site uses? The two seem wholly disconnected, and it seems that this bill could be seen as an attack on free speech and free enterprise (both things Hawley pretends to support). As with many Hawley bills, this one appears to be mostly for show, to appeal to his base of ignorant people who think there's a culture war going on against "big tech" that plays out only by attacking Section 230.

I guess those "rule of law" folks don't care if a law is any good or will do what it intends to do without causing significant collateral damage. All they care about is that it's a law and, as a law, everyone should just subject themselves to it with a minimum of complaining.

The Attorney General is one of those "rule of law" people. Sure, he works for an administration that doesn't seem to care much about laws, propriety, or basic competence, but he's the nation's top cop, so laws and rules it is.

Bill Barr wants holes in encryption. He wants them so badly he's making up new words. "Warrant-proof encryption" isn't any different than regular encryption. It only becomes "warrant-proof" when the DOJ and FBI are talking about it, as though it was some new algorithm that only scrambles communications and data when the presence of a warrant is detected.

Far too many people in Washington think encryption is only valuable to criminals. Bills are in the works to compel encryption-breaking/backdooring. Some even handcuff these demands to Section 230 immunity -- a 2-for-1 special on shoveled shit straight from the federal government to Americans' favorite platforms and services.

Given how much the AG loves broad, abusive laws, it's no surprise he's going on the record to congratulate the author of another terrible law on her newest terrible piece of legislation.

Today, Attorney General William P. Barr issued the following statement on the introduction of a bill in the U.S. House of Representatives that would give law enforcement access to encrypted data with court approval in order to protect user privacy. The legislation was introduced by Representative Ann Wagner.

“I applaud Representative Wagner for introducing this critical lawful access legislation. Although strong encryption is vital, we cannot allow the tech industry to use encryption that blinds law enforcement and prevents it from thwarting or investigating serious crimes and national security threats, including terrorist plots, cyberattacks, and sexual exploitation."

Yes, let's applaud Rep. Ann Wagner. (Let's not.) Wagner was the sponsor behind FOSTA, the anti-sex worker law (d/b/a anti-sex trafficking legislation) that has been instrumental in roughly zero prosecutions -- the same prosecutions bill sponsors like Wagner claimed would be impossible without this new law.

That wasn't Wagner's only bogus claim. She also claimed the passage of FOSTA resulted in the immediate disappearance of 90% of "sex trafficking ads." This claim was proven false by fact checkers. The vast majority of the ads that vanished did so when Backpage shut down its adult ads prior to FOSTA's passage and prior to the DOJ's prosecution of the site's owners.

So, when Barr applauds Wagner, he's applauding someone who'll say almost anything to justify harmful legislation. This is the kind of person Barr admires because Bill Barr does the same thing, even though he's not writing new bills personally.

Here's some more of the "anything" Barr will say to applaud bad bill-making. Wagner's new thing is a clone of the Senate's "Lawful Access to Encrypted Data" bill. As you can guess by reading the bill's clunky title, it's another attempt to sacrifice encryption on the altar of law enforcement convenience, ensuring cops don't have to work too hard to collect evidence.

As we all are painfully aware, law enforcement agencies -- despite being around for more than 150 years -- have yet to solve a single crime. So it's imperative we give them access to gigabytes of communications and data so they can finally get around to putting a few criminals behind bars. That being said, here's what's being said by Barr in support of this bill. I have no idea what most of this has to do with anything, but it's full of things that sound bad.

The danger is particularly great for children, especially during this time of coronavirus restrictions when children are spending more time online. Survivors of child sexual abuse and their families have pleaded with technology companies to do more to prevent predators from exploiting their platforms to harm children. Unfortunately, these companies have not done enough, which is why this legislation is needed.

Well then. And I thought this administration was going to save kids from child predators by sending them to COVID-infested schools ASAP. But somehow this is the tech companies' fault, since they offer security to all users, even though a small percentage of users engage in criminal acts.

Barr finishes up his applause for Wagner and her LAED knockoff with what can only be a deliberate misreading of the issues at stake.

Privacy and public safety are not mutually exclusive. I am confident that the tech industry can design strong encryption that allows for lawful access by law enforcement. Encryption should keep us safe, not provide a safe haven for predators and terrorists.

The issue isn't privacy. The Constitution may help ensure privacy by limiting the government's intrusion into our lives and homes, but what's really at stake here is security. And security -- of devices and files and communications -- is directly related to public safety. You can't claim to be a champion of public safety when you're willing to make it easier for malicious hackers to gain access to email accounts, personal messages, smartphones, hard drives, computers, social media accounts, and everything else encryption shields from outsiders.

An encryption hole handcrafted for cops is a hole anyone else can use once it's discovered. A backdoor built into hardware or software isn't only going to be exploited by law enforcement. If the assistance is compelled, companies won't be able to patch security issues -- not if the flaw exists to serve the government. Tech companies in Australia -- where compelled technical assistance is already law -- are seeing their customer bases shrink as people look for options that aren't deliberately broken. The same thing will happen here in the US if bills like this become law.

Bill Barr is willing to sacrifice your security. And he won't be giving you anything in return. We won't be safer. We'll be more vulnerable than we've ever been. And Rep. Wagner wants to help him screw you over, just like she did to countless Americans with FOSTA.

There are many things that big internet companies do that the media have made out to be scandals that aren't -- but one misuse of data that I think received too little attention was how both Facebook and later Twitter were caught using the phone numbers people gave it for two factor authentication, and later used them for notification/marketing purposes.

In case you're somehow unaware, two-factor authentication is how you should protect your most important accounts. I know many people are too lazy to set it up, but please do so. It's not perfect (Twitter's recent big hack routed around 2FA protections), but it is many times better than just relying on a username and password. In the early days of 2FA, one common way to implement it was to use text messaging as the second factor. That is, when you tried to login on a new machine (or after a certain interval of time), the service would have to text you a code that you would need to enter to prove that you were you.

Over time, people realized that this method was less secure. Many hacks involved people "SIM swapping" (using social engineering to have your phone number ported over to them), and then getting the 2FA code sent to the hacker. These days, good 2FA usually involves using an authenticator app, like Google Authenticator or Twilio's Authy or even better a physical key such as the Yubikey or Google's Titan Key. However, many services and users have stuck with text messaging for 2FA because it's the least complex for users -- and the issue with any security practice is that if it's not user-friendly, no one will use it, and that doesn't do any good either.

But using phone numbers given for 2FA purposes for notifications or marketing is really bad. First of all, it undermines trust -- which is the last thing you want to do when dealing with a security mechanism. People handed over these phone numbers/emails for a very specific and delineated reason: to better protect their account. To then share that phone number or email with the marketing team is a massive violation in trust. And it serves to undermine the entire concept of two factor authentication, in that many users will become less willing to make use of 2FA, fearing how the numbers might be abused.

As we noted when Facebook received the mammoth $5 billion fine from the FTC a year ago, while the media focused almost entirely on the Cambridge Analytica situation as the reason for the fine, if you actually read the FTC's settlement documents, it was other things that really caused the FTC to move, including Facebook's use of 2FA phone numbers for marketing. We were glad that Facebook got punished for that.

And now it's Twitter's turn. Twitter has revealed that the FTC is preparing to fine the company $150 million to $250 million for this practice -- noting that it violated the terms of an earlier consent decree with the FTC in 2011, where the company promised not to mislead users about how it handled personal information. Yet, for years, Twitter used the phone numbers and emails provided for 2FA to help target ads (basically using the phone number/email as an identifier for targeting).

There's no explanation for this other than really bad handling of data at Twitter, and the company should be punished for it. There are many things I think Twitter gets unfairly blamed for, but a practice like this is both bad and dangerous, and I'm all for large fines from the FTC to convince companies to never do this kind of thing again.

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The whole TikTok story keeps getting dumber. While we still believe that the weird moral panic about TikTok is overblown and Trump's threat to ban the company from the US over the weekend is crazy and unconstitutional, people are still taking things seriously. On Friday evening Trump said that he planned to issue an executive order banning the company (which is not quite how any of this works). He didn't actually do this. He also said he was against an American company like Microsoft buying TikTok, which apparently put the ongoing acquisition talks on hold.

Instead, Microsoft had to call up the President and grovel before him, before he apparently told the company it had until September 15th to work out a deal, and if no deal was made by then, he'd again "ban" TikTok (again, an almost certainly unconstitutional move that would not work). Still, it would be a mess, and I'm sure TikTok and ByteDance (the company's current owner) knows that it's probably best to take what it can get from Microsoft while it can. Of course, Microsoft also knows that it's in a good position because ByteDance has a ticking time bomb on its hands, and the value of TikTok could decrease drastically on September 15th if no deal is made. Even if a ban is unconstitutional, fighting it will take time and money.

Also, it's not clear if there would be much competition for TikTok from anyone other than Microsoft. I mean, Facebook and Mark Zuckerberg would love to buy it, but pretty much everyone knows that there's no way in hell that would get approved by the Justice Department. Even if Facebook weren't already facing a shit ton of antitrust scrutiny from Congress, the FTC, and state Attorneys General, the Bill Barr DOJ has made it clear that it will abuse antitrust to hurt companies Trump is mad at. And contrary to some conspiracy theories, Trump and friends still insist that Facebook is "biased" against them (it's not). So that wipes out most of the large internet companies that would actually have the capital to buy TikTok. There could be a surprise buyer, but it remains a fairly limited market, at best.

Still, things went from just stupid to downright bizarre on Monday when President Trump announced that he thought most of the money from a TikTok acquisition should go to the US Treasury:

"The United States should get a very large percentage of that price, because we're making it possible," Mr Trump said.

"It would come from the sale, which nobody else would be thinking about but me, but that's the way I think, and I think it's very fair," he added.

This is dumb on so many levels. First of all, people have been discussing the possibility of ByteDance having to sell TikTok to get away from questions about its Chinese ownership since long before Trump ever heard of TikTok. So the idea that it's only because of him is just yet another one of his narcissistic fever dreams. Second, you're not "making it possible" any more that the local organized crime fixer "makes it possible" for your restaurant to not burn down if you pay up your protection money. That's called extortion and it's not the kind of thing that the President should be advocating for. Third, it's incredibly stupid because even just saying that gives the Chinese government a ton of ammunition, as they started deploying almost immediately:

The state-run China Daily newspaper said on Tuesday that Beijing would not accept the "theft" of a Chinese technology company.

It also warned in an editorial that China had "plenty of ways to respond if the administration carries out its planned smash and grab".

Considering how much US officials have been whining and screaming about supposed Chinese attempts to "steal American intellectual property," giving the Chinese government a talking point to argue that the US government "does the same thing" is just a huge diplomatic stupidity.

Everything about this story is ridiculous, but it's 2020, and you always know that President Trump can take a stupid story and make it stupider.

After initially obtaining an FCC license for up to 1 million Starlink satellite broadband customers in the United States, Space X last week quadrupled that estimate, and is now hopeful that 5 million Americans will sign up for service. To be clear: Space X's service won't be taking on traditional broadband providers in major metro areas. Instead, the company will be using thousands of low orbit satellites (with lower latency than traditional satellite broadband) to deliver marginally decent service to under-served rural Americans, assuming it winds up being profitable longer term.

In a country where an estimated 42 million can't get any broadband at all (during a raging pandemic, no less), any little improvement helps. By and large, most major outlets have framed Starlink as a massive disruption of the broadband industry:

"Starlink is the company’s ambitious plan to build an interconnected network of about 12,000 small satellites, to beam high-speed internet anywhere in the world. To date, SpaceX has launched more than 500 Starlink satellites. In addition to getting the satellites in orbit, SpaceX will need to build a vast system of ground stations and affordable user terminals if it is going to connect consumers directly to its network."

But those thinking that Starlink is going to truly disrupt the broadband industry at large probably shouldn't be holding their breath. Even the industry-cozy FCC has expressed skepticism about Musk's latency claims. And Musk himself has made it clear the service won't be a big threat to incumbent broadband providers because there just won't be enough capacity available to offer the service in major metro areas. No limit of marketing hype will be able to defeat the law of physics:

"The challenge for anything that is space-based is that the size of the cell is gigantic... it's not good for high-density situations," Musk said. "We'll have some small number of customers in LA. But we can't do a lot of customers in LA because the bandwidth per cell is simply not high enough."

Again, that's not to say Starlink won't be a positive advancement for rural broadband users, but it's mostly a play aimed at a niche market American companies have, time and time again, deemed to costly to serve after some initial flirtation. In time, Space X may as well. Given there have been so many failed attempts to disrupt the heavily monopolized residential US telecom sector (especially in low orbit satellite), it makes sense to wait for a fully commercial launch -- and to see what pricing and weird usage restrictions are applied -- before getting too excited about Starlink's potential for meaningful innovation.

It's also worth noting that existing telecom monopolists just love using emerging technologies as justification for regulatory apathy (read: we don't need oversight because the sector is just so darn competitive). As we saw with failed broadband over powerline (BPL) technology or wireless tech like WiMax, that usually involves radically over-hyping emerging competitors as mystical panaceas in a bid to suggest that reasonable adult oversight of the sector is no longer needed. That's certainly the tactic being used for 5G (another technology that won't be as disruptive as claimed for a laundry list of reasons), and I'd wager that Space X and Amazon's low orbit satellite experiments will soon be abused in the policy arena by AT&T, Comcast, and Verizon in much the same way -- even if the actual impact on incumbent businesses will likely be negligible.

Free speech keeps getting freer in Tennessee. The state was once home to a host of vexatious defamation lawsuits -- including one where someone subjected to mild criticism sued a journalist over things someone else said. Thanks to the state's new anti-SLAPP law, litigation is slightly less vexatious these days.

But there are still state laws posing threats to free speech by criminalizing stuff the First Amendment says is perfectly acceptable. Tennesseans for Sensible Election Laws (represented by Daniel Horwitz, whose work has made multiple headlines here at Techdirt) sued the state over a campaign law that made it a misdemeanor to publish false information about candidates.

The statute says this:

It is a Class C misdemeanor for any person to publish or distribute or cause to be published or distributed any campaign literature in opposition to any candidate in any election if such person knows that any such statement, charge, allegation, or other matter contained therein with respect to such candidate is false.

The plaintiffs argued the law effectively criminalized satire and hyperbole. It pointed out it risked prosecution if it distributed its campaign material, which used a word that literally no longer can be taken literally in every context: "literally." From the decision [PDF]:

[T]he Complaint explains that the Plaintiff has described in its literature one State Representative as “Hitler”, who supported eugenics, i.e. state-sponsored chemical castration of convicted sex offenders. The Plaintiff’s analysis in its Complaint is that, “Because Representative Griffey is not, in fact, ‘literally Hitler,’ and because Tennesseans for Sensible Election Laws knows that Representative Griffey is not literally Hitler, Tennesseans for Sensible Election Laws’ campaign literature would violate § 2-19-142, thus subjecting members of Tennesseans for Sensible Election Laws to criminal prosecution carrying a sentence of up to thirty days in jail and/or a fine not to exceed $50.00.

Here's the mailer the group says could get its members criminally charged:

The activist group says this is unconstitutional. It certainly seems to be, but the state's Attorney General apparently believes prosecuting people for engaging in political speech isn't a Constitutional issue. Here's the opinion the state AG offered in support of the law:

A prosecution against a newspaper or other news medium under Tenn. Code Ann. 2-19-142 would not raise any constitutional objections…

This statement, made in 2009, has not aged well. The Constitutional challenge has arrived. And it's victorious. The campaign focused criminal defamation law violates both the US Constitution and the state Constitution. And for several reasons (all emphasis in the original):

First, Tennessee Code Annotated § 2-19-142 punishes only false political speech in opposition to candidates for elected office, while permitting false speech in support of such candidates. Such viewpoint discrimination is incompatible with the First Amendment, and no compelling interest supports it.

Second, Tennessee Code Annotated § 2-19-142 exclusively penalizes false campaign literature opposing candidates seeking elected office, while permitting all other false campaign literature and all speech regarding noncandidates. Such content-based restrictions on speech similarly contravene the First Amendment.

Third, Tennessee Code Annotated § 2-19-142’s criminalization of “false” speech cannot be reconciled with the U.S. Supreme Court’s decision in United States v. Alvarez, 567 U.S. 709 (2012), which held that a statement’s falsity alone is insufficient to remove it from the ambit of protection guaranteed by the First Amendment.

Fourth, Tennessee Code Annotated § 2-19-142 is unconstitutionally overbroad because it prohibits a substantial amount of constitutionally protected speech, both in an absolute sense and relative to the statute’s legitimate sweep, and because a substantial number of instances exist in which § 2-19-142 cannot be applied constitutionally.

Fifth, by restricting speech based on its content, by proscribing protected speech, and by criminalizing political speech based on viewpoint, Tennessee Code Annotated § 2-19-142 contravenes the more expansive protections of article I, section 19 of the Tennessee Constitution.

The court declares the law a violation of both the First and Fourteenth Amendments. The plaintiffs are free to call candidates they feel align with Hitler's beliefs "literally Hitler," even when said candidates are, obviously, not the long-dead German chancellor known affectionately as the "worst person in the world."