Tuesday Talk*: Prior Restraint and The Geo-Fence Around the Jury Box

As Walter Olson argues, the scientific evidence that glyphosate, the active ingredient in Roundup weed killer, does not cause cancer is strong, if not irrefutable. Not being qualified to render an opinion, I demur, but that hasn’t stopped judges from letting the cases proceed, or juries from finding for plaintiffs. The law has always had a troubling relationship with science.

But Monsanto, maker of the chemical, found a curious mechanism to fight back, inside the courtroom yet outside. Much as anyone who uses the internet is painfully aware the advertisements pushed at them are miserably misdirected (no, Google, I already bought the widget, so it’s less than enticing to include a widget ad on every pop-up ad). But an alternative is available, as Monsanto figured out. And it was not shy about using it.

Plaintiff attorney Steven Brady with the San Francisco-based Brady Law Group, said Monsanto has been sending in-app pop-up ads to people inside the Alameda County Administration Building, where the trial is being held.

Brady specifically accused Monsanto of geofencing, a process by which one can use GPS, Wi-Fi or cellular data to draw a virtual boundary around a specific location. It can trigger text messages, alerts, notifications or send targeted ads on social media.

Apparently, a dedicated party can use the internet to pinpoint specific pop-up ads to a very narrow geographical area. In this case, the courthouse where the Roundup case was being tried, in order to “talk” to the nice folks within. That group of folks just happens to include the jurors deciding the case, and they weren’t getting special discounts on weed killer.

At a hearing on the motion Thursday, Brady told the judge: “These aren’t ads selling Roundup, they’re touting safety and scientific studies in this building. It’s going too far,” he said.

While jurors are admonished not to read stories about the case or engage in investigation outside the evidence produced in the courtroom, they have no control over the flotsam pushed into their face by the powers in control of the ether. And Monsanto, having the capital necessary to buy ad time with its preferred content, seized the opportunity to make its case beyond the witness stand directly to the jurors.

The defense argued that it’s doing nothing more than fighting fire with fire.

In their opposition filed Wednesday, Monsanto’s lawyers called the plaintiff motion “unconstitutional, unnecessary, and dripping with hypocrisy,” because plaintiff law firms have been engaged in a blitz of advertising “disparaging Roundup across multiple media platforms in the San Francisco Bay Area.”

The opposition also pointed to a $5 million ad campaign in 2018 by plaintiff law firms that intensified this year. The campaign included an ad featuring environmental crusader Erin Brockovich, saying “corporations [are] putting their profits over our safety and it’s happening now with Monsanto.”

The defense lawyers also noted that they had moved for a mistrial at the outset of the current trial, “because the jury pool in this case was bombarded with 2,187 anti-Roundup television and radio ads from Dec. 1, 2018 to March 21, 2019, in the local media market alone.”

While the lawyer solitications for Roundup cases, including their unchallenged claims of liability, have been ubiquitous, they use the ordinary means of general television and radio commercials. If they fly in the face of science, so what? That’s for judges and  jurors in a courtroom to decide. And that’s why Monsanto targeted the decision-makers directly.

Except the two mechanisms aren’t quite comparable. Putting out ads to the public that Roundup causes cancer may well create a public perception that it’s indisputable, despite the absence of valid scientific evidence to support it, because the general public gets to believe whatever it wants, Jurors, however, are constrained to decide based on the evidence in the courtroom, including expert scientific evidence as the gatekeeper, the judge, permits.

So was the judge in this case, Alameda County Superior Court Judge Winifred Smith, outraged? Not so much.

The judge disagreed.

“You’re talking about the First Amendment,” Smith said. “Prior restraint is serious and I can’t do that.” She added the plaintiffs’ attorneys were asking her to “assign a subjective intent that I don’t know exists.”

But is it prior restraint when technology has the capacity to geofence the message to the courthouse, to the jury box? When the message being shoved down jurors’ throats is expressly directed to the jury’s fact-finding purpose, and circumvents evidentiary rules and due process entirely. Is Monstanto not seeking to tamper with the jury?

Prior restraint, as a First Amendment concept to silence in advance the exercise of free speech and press, is unconstitutional. But as with most rights, there are long-established limits, and decorum within the courtroom is one of them. Just as a party has no right to speak at will during trial, disregard the court’s instructions to sit down, shut up and let opposing counsel ask questions and the witness answer, the freedom to speak gives way to the maintenance of order at trial, for otherwise there can be no trial and chaos ensues.

And the purpose of Monsanto’s targeted campaign was clearly to influence the jury beyond the reach of the court. The irony of jury nullification activists being convicted for handing out pamphlets outside the courthouse should be duly noted.

But what if Monsanto hadn’t been able to pinpoint its message, and like the lawyers seeking clients, had bombarded the airwaves with the message that there was no sound scientific evidence to support the claim that Roundup causes cancer? If that would be acceptable, as the equivalent message to the plaintiffs’ lawyers, is it less acceptable because technology provided the means to geofence their target audience?

*Tuesday Talk rules apply. Do not aggravate me, please.

10 thoughts on “Tuesday Talk*: Prior Restraint and The Geo-Fence Around the Jury Box

  1. Richard Kopf


    I agree with the trial judge. Do nothing save, perhaps, for a cautionary instruction that might read like this:

    “Ladies and Gentleman, there are “pop up” references to the defendant’s product on at least one internet search engine. You are not to read them just like you are not to read any newspaper article or watch any television story involving this litigation. And, I stress, as I have stressed before, that you are to do no research on the matter before you whether on the internet or otherwise.”

    All the best.


    PS I admit to possessing a 1.33-gallon container of Roundup® Ready-To-Use Weed & Grass Killer III with Comfort Wand® out in the garage. After the blizzard bearing down upon us, as quickly as I can I will begin my spring ritual of killing the damn ivy that invades the mortar on our white brick fence. By the way, I like a silent spring. Robins are nasty.

    1. Loki Coyote

      While in this case it may just be some ads on a search engine, it’s very possible that the ads are extremely focused, and delivered via both display ads (such as banner ads on a variety of websites) and mobile ads (full screen ads in games and applications on your mobile phone). All these type of ads are delivered via a real-time bidding system scheme at cost-per-thousand displays of your ad, which means the more focused your target audience, the more per display you can afford to pay.

      I can’t be sure how they did it, but if I were to try to deliver ads to the jury, it’d be done in a few steps:
      1) geofence the jury pool room and the court room, and collect all device IDs that appeared in both rooms. Then exclude any device IDs that had been previously seen at the courthouse.
      2) with this pool of device IDs, bid on every possible ad display auction that includes any device in this pool; this will be entirely mobile devices, as only they send device IDs.
      3) collect the IPs that all those device IDs are coming from. For any “home” IPs (Comcast, charter, etc), which will happen when their mobile devices join home wireless networks; and then also bid on every ad auction coming from those IPs. This will include non-mobile devices, such as laptops and desktop computers.

      This does involve a significant amount of technical complexity, but there are multiple adtech companies that offer similar services.

  2. Hunting Guy

    I don’t know why, but while reading the post, this came to mind.

    Taking his seat in his chambers, the judge faced the opposing lawyers, Santa and Banta.
    “So,” he said, “I have been presented, by both of you, with a bribe.”
    Both, Santa and Banta squirmed uncomfortably.
    “You, advocate Santa, gave me Rs 60,000. And you, advocate Banta, gave me Rs 50,000.”
    The judge reached into his pocket and pulled out a check. He handed it to Santa, and stated, “Now then, I’m returning Rs 10,000, and we’re going to decide this case strictly on its merits.”

  3. Igor Kaplunov

    You know when you tell a person something technical and they nod but their eyes are blank. I do some user support in technical field and this happens often enough that I will ask “Please explain to me in your own words what I just told you.” I doubt you can do that to a judge though unfortunately.

  4. L. Phillips

    It appears to me that the defense not only fought fire with fire, but did so in a manner more financially cost effective to their client than a blast across the spectrum of broadcast media. Somewhat like setting a small spot fire to slow a wind blown multi-acre wildfire in its advance down a narrow canyon by depriving it of fuel.

    So is the question how large the spot fire has to be in order to qualify as non-controversial?

  5. Nemo

    While I can see the geofencing point made here has some merit, I’d never get past the voir dire and onto any jury tasked with reviewing the matter. That’s because I’m aware of the massive, science-free, muti-year, multi-organization Hate-Monsanto campaign. It hasn’t been a conspiracy, per se, but it’s had much the same effect, given that enough agendas are involved to keep the pressure on their Monsatan, since all these different groups have effectively formed a never-ending parade of misinformation, disinformation and litigation.

    So I can’t blame Monsanto too much for their ploy, considering they aren’t just fighting the advertising efforts of the plaintiffs, but the past efforts to the same end by others. Guess I just can’t focus down tightly enough to exclude all the past propaganda from my evaluation. (Though I hope I stayed focused enough to keep from annoying SHG the M-AE too much.)



  6. D-Poll

    My personally favoured, Menckian solution would be to provide jury instructions on installing adblocking.

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