Twitter Working to Limit Fake Stories, Accounts
By Jesse M. Brody, Partner, Advertising, Marketing and Media
In an effort to combat fake accounts, false stories and other abuses, Twitter is considering the use of a new feature to let users flag Tweets that contain misleading, false or harmful information, according to news reports.
Sources said the feature—which could appear in a drop-down menu next to Tweets—remains in the prototype phase and no decision has been made about its use. The social media site did not confirm the reports, with a spokesperson telling The Washington Post that the company had “no current plans to launch” such a feature but declining to comment on whether it was in the testing phase.
Twitter, in a blog post last month, indicated its intent to push back against abuse, writing that it was adding personnel and resources as well as working on new tools and processes. “Twitter’s job is to keep people informed about what’s happening in the world,” Vice President of Policy Colin Crowell wrote. “As such, we care deeply about the issue of misinformation and its potentially harmful effect on the civic and political discourse that is core to our mission.”
The company was light on details but noted that it is “working hard to detect spammy behaviors at source, such as the mass distribution of Tweets or attempts to manipulate trending topics,” and reducing the visibility of suspicious Tweets or accounts pending an investigation to determine whether a policy violation has occurred. When duplicative or suspicious activity is confirmed, “we suspend accounts,” Crowell noted. “We’ve been doubling down on our efforts.”
Twitter is not alone in its battle against the proliferation of “fake news.” Earlier this year, Facebook released a new tool that allows users to click on a button to dispute content they think might be false. If enough users click on the “dispute” button, the story is then sent to independent fact-checkers.
To read the Twitter blog post, click here.
Why it matters: Social media sites are struggling in their attempts to push back against the phenomenon of fake news, and they have resorted to crowdsourcing the fight, as demonstrated by the tool released by Facebook and reportedly being tested by Twitter. But critics have expressed skepticism about the effectiveness of such possible tools, and have expressed concerns that users could manipulate the system.
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State AGs Take on Scouting, Higher Ed in Enforcement
By Richard P. Lawson, Partner, Consumer Protection
In the latest enforcement efforts by state regulators, the New York attorney general (AG) announced a settlement with a scouting and recruiting business in which the National Scouting Report Inc. (NSR) paid $20,000 and agreed to make changes to its advertising. The AG of Massachusetts reached a $455,000 deal with DeVry University.
The New York AG’s Office accused NSR of making false claims on its website and advertising touting the success of its programs, including that it was the “highest rated scouting company” and that it was “resourced by more college coaches than all other scouting services combined.” In addition to these unverifiable claims, NSR overstated its college placement rates, the AG said, by advertising that 90 percent of all prospective student athletes received offers from schools, with 25 percent going to NCAA Division I programs.
Parents paid more than $3,000 to enroll in the program, which employed “scouts” who received just one week of training covering NSR’s sales techniques, the AG alleged, despite the company’s statements that the scouts were drawn from a variety of backgrounds and were all “well-trained before hitting the ground.” Some scouts even promised the impossible, telling one family it would be “no problem to get [their son] money to play” collegiate sports, and another family that the scout was “100% sure” he could get their child “into a good school.”
To settle the charges of false advertising and deceptive business practices, Alabama-based NSR agreed to reform its advertising, training and sales practices (including the removal of any language from its website that cannot be substantiated) and pay upward of $20,000 in penalties, costs and consumer restitution.
“Preying on the hopes and aspirations of New York’s young, devoted athletes is incredibly cynical,” AG Eric T. Schneiderman said in a statement. “Students who are attempting to use their athletic promise to further their educational opportunities should not have to worry about being exploited by those seeking to make a profit, without any consideration for their success.”
In Massachusetts, DeVry University agreed to pay $455,000 to the AG’s Office for allegedly making misleading claims about the employment prospects and salaries of its graduates. Based on these claims, students were unfairly and deceptively convinced to enroll at the school and take on federal loan debt, AG Maura Healey said.
The action—the office’s first settlement with an online-only school—was based on an investigation into claims made by DeVry from 2011 through 2015 on its website and in social media, print advertisements and television commercials, as well as during telephone and in-person presentations to prospective students.
Although the school “prominently” advertised that 90 percent of its graduates who sought employment had jobs in their field of study within six months of graduating, the investigation revealed that some DeVry programs had job placement rates as low as 52 percent.
The school also excluded graduates from its statistics by classifying them as “inactive” based on their failure to fulfill certain career services requirements and included graduates who were employed in jobs that would not reasonably be considered to be in their field of study, the AG said, or who were already employed in their field prior to either enrolling in or graduating from DeVry.
Pursuant to the Assurance of Discontinuance filed in Massachusetts state court, DeVry will pay a total of $455,000 and is prohibited from misrepresenting the employment outcomes or salaries of its graduates.
To read the press release from the New York AG’s Office, click here.
To read the Assurance of Discontinuance in In the Matter of DeVry University, click here.
Why it matters: State regulators have recently stepped up their efforts by putting advertisers on notice that enforcement actions can come from many different directions. The Massachusetts suit against DeVry mirrored a settlement the school reached with the Federal Trade Commission in December, when it agreed to pay $100 million for misleading prospective students with ads that hyped high employment success rates and income levels upon graduation.
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Anti-Logging Ad Protected by First Amendment
By Jeffrey S. Edelstein, Partner, Advertising, Marketing and Media
An environmental group’s anti-logging advertisement was protected by the First Amendment, the Oregon Court of Appeals has ruled, and the Port of Portland failed to meet the “heavy burden” necessary to prohibit the ad from being displayed at the Portland International Airport.
In 2013, Oregon Wild submitted a request to lease advertising space at the airport. The proposed advertisement contained a photograph of a tree-covered mountaintop, part of which had been clear-cut. The caption read, “Welcome to Oregon! Home of the Clearcut.” The ad also included a website address, www.ClearCutOregon.com.
The Port of Portland denied the request, deeming the ad to be “political advertising.” Pursuant to rules adopted by the Port, the agency does not permit advertising materials at the airport that contain religious or political messages. Oregon Wild sued, asserting that the rejection of the advertisement violated the free speech guarantees found in both the Oregon Constitution and the First Amendment to the U.S. Constitution.
On cross motions for summary judgment, a trial court sided with Oregon Wild, a ruling affirmed by the Oregon Court of Appeals.
After confirming that the action was not moot despite the fact the advertisement is no longer running, the panel rejected the Port’s argument that it was acting in a dual capacity as both a governmental and a proprietary entity, and that the advertising rules were simply an administrative policy that did not prohibit speech based on content.
“Nothing in the reasoning in the cases cited by the Port—which predominantly concern the Legislature’s ability to exercise control over a local government or the ability of a local government to partake of the state’s sovereign immunity—naturally extends to the context of governmental interference with free expression,” the court said. “The Port has not explained to us why the framers would have intended to give local governments greater latitude to restrict speech while acting in a proprietary capacity.”
Further, “the challenged policy is not simply about speech opportunities; the text expressly regulates based on the content of particular advertisements, prohibiting religious and political content while allowing commercial content,” the panel explained.
To read the opinion in Oregon Natural Resources Council Fund v. Port of Portland, click here.
Why it matters: The decision reiterates the strength of First Amendment protections and the uphill battle facing content-based restrictions on speech.
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Native Americans End Trademark Dispute With Redskins
By Richard P. Lawson, Partner, Consumer Protection
In light of the Supreme Court’s opinion in Matal v. Tam, a group of Native Americans agreed to drop their litigation against the Washington Redskins football team, ending a dispute that has lasted more than two decades.
The case began in 1992 when a group of Native Americans brought a cancellation proceeding before the Trademark Trial and Appeal Board (TTAB), arguing that six registrations for the professional football team were obtained contrary to Section 2(a) of the Lanham Act, which provides that no trademark shall be refused registration on account of its nature unless it “[c]onsists of … matter which may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”
The TTAB agreed that the mark disparaged Native Americans, and ordered the registrations canceled. But the case underwent several years of appeals, bouncing between federal district and appellate courts until it returned to the TTAB in 2014. Rejecting the Redskins’ laches defense and reviewing the entire record, the board noted that dictionary definitions began identifying “redskin” as an offensive term in 1966 and that general use of the term has dropped off since that time.
Concluding that “at a minimum” 30 percent of Native Americans found the term disparaging, the board said this amount was “more than substantial,” and again canceled the registrations.
The NFL team appealed, but the case was put on hold in the U.S. Court of Appeals, Fourth Circuit, pending Tam.
In that case, an Asian-American band dubbed “The Slants” sought to register the name for trademark protection. When registration was denied based on Section 2(a), the band sued, arguing that the provision violated their First Amendment rights. The en banc Federal Circuit agreed and struck down the rule on constitutional grounds. The U.S. Patent and Trademark Office (USPTO) appealed, and the nation’s highest court granted the agency’s writ of certiorari.
At oral argument, the justices expressed skepticism that the government has the authority to penalize speech with which it disagrees. And in a unanimous opinion, the Court struck down Section 2(a), with Justice Samuel Alito declaring that the provision “offends a bedrock First Amendment principle. Speech may not be banned on the ground that it expresses ideas that offend.”
While the provision was evenhanded in “viewpoint discrimination” and prohibited disparagement of all groups, it was nevertheless unconstitutional. “It applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue,” Justice Alito wrote. “It denies registration to any mark that is offensive to a substantial percentage of the members of any group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.”
The opinion cleared the way for The Slants to register their name—and for the Redskins to retain their trademark rights. Just two days after the Court published its opinion, the clerk of the court for the Fourth Circuit wrote to the parties, asking for their views on whether the need for oral argument remained in light of Tam.
In response, the Redskins told the court that because Section 2(a) was the USPTO’s sole basis for concluding their marks were not eligible for registration, “Tam thus mandates reversal of the district court’s judgment.” The NFL team requested that the court reverse the judgment, vacate the order to cancel the trademark registrations, and remand the case with instructions to grant summary judgment to the Redskins.
Putting an end to the long-running litigation, counsel for the Native Americans reached a similar conclusion. “We agree with Appellant that the Supreme Court’s decision in [Tam] is controlling,” the plaintiffs wrote. “As a result, there is no need for oral argument. In addition, we consent to the entry of an Order as described [by the Appellant].”
To read the Redskins’ response to the court, click here.
To read the plaintiffs’ response, click here.
Why it matters: The litigation may have officially come to a close, but the plaintiffs vowed to continue their fight against the use of the Redskins’ moniker by making efforts to persuade advertisers, politicians and fans to put pressure on the team to stop using the mark. “They feel that the litigation successfully accomplished their much more important objective of bringing to the public’s attention the issue of the team’s name and the use by sports teams of Indian names and imagery,” plaintiffs’ counsel said in a statement. “As a result of the litigation, the entire country has learned of Native American objections to the team’s name. The litigation led to national discussion of the appropriateness of the team’s name by the media and political leaders, including even President Obama, and, most importantly, by ordinary citizens from every walk of life.”
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