Court: Lawsuit Can Continue Against Library That Moved All LGBTQ Children’s Books To The Adult Section

Free Speech

from the maybe-try-being-less-of-an-asshole? dept

The First Amendment doesn’t just protect what you say. It also protects your right to hear what others say. It guarantees a right to published information. It protects a whole lot of stuff certain politicians sincerely wish it didn’t because it gets in the way of pushing their bigoted ideals.

Right now, there’s a wave of anti-LGBTQ legislation sweeping the country. Legislators — pretending they care about children — are trying to prevent everyone from accessing certain creative expression (or saying certain things) these politicians don’t agree with.

And pretty much every time they engage in this form of censorship, they get smacked down by courts. The Constitution doesn’t care about your hateful feelings. Rights must be respected, even by petty would-be tyrants undeserving of anyone’s respect.

A lawsuit, filed by patrons of a county library in Arkansas, has been allowed to move forward by a federal court. The First Amendment lawsuit plausibly alleges the library’s decision to move anything determined to be “LGBTQ” from the children’s section to the adult’s section violates the First Amendment right to equitable access to information. (via Courthouse News Service)

Here’s how this started, according to the decision [PDF] that moves this lawsuit forward:

[I]n late 2022 or early 2023 the Crawford County Library System implemented a policy under which its library branches must remove from their children’s sections all books containing LGBTQ themes, affix a prominent color label to those books, and place them in a newly-created section called the “social section.” Plaintiffs allege this policy was imposed on the Library System by the Crawford County Quorum Court in response to political pressure from constituents who objected, at least partly on religious grounds, to the presence of these books in the children’s section.

The use of a court to pressure a (government-funded) library into doing something it had never felt a need to do before is already a pretty plausible First Amendment cause of action. If the quorum court hadn’t imposed this policy, there’s a good chance the library would never have bothered stigmatizing certain content.

This sort of thing is not an anomaly in the United States, much less Arkansas in particular.

This is not the only lawsuit currently pending in the Western District of Arkansas that concerns children’s books in public libraries. In Fayetteville Public Library et al. v. Crawford County, Arkansas et al., Case No. 5:23-cv-5086, a host of public libraries, librarians, library patrons, nonprofits, and booksellers sued various state actors, challenging the constitutionality of Arkansas Act 372 of 2023 (“Act 372”). Section 1 of Act 372 defines a new Class A misdemeanor called “furnishing a harmful item to a minor.” Section 5 requires that “[e]ach county or municipal library shall have a written policy for addressing challenged material that is physically present in the library and available to the public,” and imposes certain minimum criteria that libraries must incorporate into those policies.

It’s a movement in Arkansas, propelled by bigoted legislators and assisted by bigoted residents and the occasional county quorum court. No doubt the listed lawsuit will end with in a loss for the government but, for the time being, these litigants want this particular county library to stop violating the First Amendment.

The state argued the plaintiffs had no standing to bring a lawsuit against the library. Wrong, says the court:

The amended complaint alleges that all three Plaintiffs are “members and users of the Crawford County Library System,” and that their minor children “are also users of the Crawford County libraries.” Their pleadings also allege that the County’s library system has segregated children’s books with LGBTQ themes onto separate shelves in the adult section of the library and affixed stigmatizing labels to them signaling controversial content, and that the motivation for this policy was at least in part religious. Since Plaintiffs are members and users of these libraries, one can reasonably infer from the pleadings that they have directly encountered the shelves at issue here. And Plaintiffs obviously find this practice unwelcome, as they have brought this lawsuit with the goal of ending it. That is sufficient to confer standing upon them to bring their Establishment Clause claim, at least at this early stage of the lawsuit.

It also argued no injury had been suffered because the books were merely moved (and marked with the county’s LGBTQ equivalent of the scarlet letter…), rather than removed. Wrong again, says the court.

As for Plaintiffs’ claim that the County’s policy restricts their First Amendment right to receive information: the County argues Plaintiffs have not been injured because their access to the books in question has not been restricted. Children are still allowed to roam the adult section, and there are no formal limitations on who may browse or check out the books at issue here. However, this argument confuses restriction with outright prohibition. When a plaintiff shows that her ability to access information has been impeded by state action, however minimally, then that is a sufficiently concrete injury to confer standing for a First Amendment claim.

Moving the books is problematic on its own. Making sure anyone who tries to access them has to carry around a “marked” book is worse.

Plaintiffs allege that the County has removed children’s books from the children’s sections of its libraries where children and their parents would expect to find them, and has attached stigmatizing labels to them that could subject individuals who browse them or check them out to embarrassment or opprobrium from library staff members or other patrons. This is a sufficiently concrete burden on Plaintiffs’ ability to access information to give them standing to bring this lawsuit.

And that’s obviously the point of this unconstitutional exercise: to “out” patrons who express an interest in content the government (under pressure from resident bigots) has decided needs to be not only segregated, but clearly marked as something the government dislikes.

The state also argued there was no First Amendment right to access information, at least not in this context. It quoted a Supreme Court decision dealing with public school libraries and claimed this meant public county libraries weren’t subject to this part of First Amendment protections. Unsurprisingly, it’s wrong here as well.

This argument is simply wrong, on two fundamental levels. First, Supreme Court majorities have in fact repeatedly acknowledged, in a wide variety of contexts, that the First Amendment protects the right to access information. See, e.g., Stanley v. Georgia, 394 U.S. 557, 564 (1969) (“It is now well established that the Constitution protects the right to receive information and ideas.”) (collecting cases); see also Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (“The right of freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to receive, the right to read . . . .”). The precise contours of that right may sometimes be complicated or unclear, but there can be no reasonable debate as to whether the right exists and enjoys First Amendment protection.

Second, although the County is correct that Pico dealt with the right to access information in a school library rather than in a library that was open to the general public, this indicates that the right’s scope is broad—not narrow.

In that case, dealing with a public school library, the Supreme Court weighed the right to access against the limitations on minors’ rights that are part of the school experience. In cases like these, schools may have more latitude to restrict access to information for other overriding government concerns. Even if the court had decided public schools had blanket permission to restrict access to information (and it didn’t), that doesn’t apply to a case involving a county library accessible by anyone, not just minors/students.

Right now, the bigot-propelled status quo will remain in place. The lawsuit moves forward but the books still remain segregated and labelled. As the court notes, an injunction preventing the library from moving books would prevent it from featuring popular books or moving frequently requested books to a more easily accessed area. But the lack of injunction doesn’t mean there’s no plausible First Amendment allegations.

Eventually, this will end in the desegregation of these books or the county passing a law attempting to codify its First Amendment violation. Either way, the government will lose and the people will win. And yet, it’s clear to anyone observing the state of the nation that losing lawsuit after lawsuit is doing nothing to deter bigots from violating rights in hopes of oppressing certain people and suppressing certain views.

Filed Under: 1st amendment, arkansas, crawford county, lgbtq, libraries

Despite Some Progress, iFixit Says Apple’s Dedication To ‘Right To Repair’ Still Sucks

(Mis)Uses of Technology

from the we've-changed-but-not-really dept

Apple has never looked too kindly upon users actually repairing their own devices, or using lower cost independent repair services. The company’s ham-fisted efforts to shut down, sue, or otherwise imperil third-party repair shops are legendary. As are the company’s efforts to force recycling shops to shred Apple products (so they can’t be refurbished and re-used).

Recently, Apple has made a few pivots on this front, including, most notably, its apparent about face on California right to repair legislation. And while Apple has also made some modest progress in backing off its attempt to monopolize repair (see: its Self-Service Repair Program), outside organizations like iFixit say the tech giant still has a long, long way to go.

iFixit recently dropped the reparability score for the iPhone 14 from a recommend 7 out of 10 to a do-not-recommend 4. Why? The organization took heat from hardware geeks who noted the 7 out 10 score wasn’t accurate because Apple is still using “parts pairing” to ensure that independent, affordable repair is either cumbersome as hell or simply impossible.

From a pure hardware perspective the reparability architecture of the iPhone has definitely improved, but only if you follow Apple’s sanctioned process and buy the parts from Apple. If you buy the parts independently, the new parts you or your independent repair shop installed won’t work due to Apple’s sophisticated software protections:

“Today, you need one more thing: a software handshake, using Apple’s System Configuration tool. It contacts Apple’s servers to “authenticate” the repair, then “pairs” the new part to your system so it works as expected. Of course, it can only authenticate if Apple knows about your repair in advance, because you gave them the exact serial number of your iPhone, and they’ve pre-matched it to a display or battery. This is only possible if you buy the screen or battery directly from Apple. Forget harvesting parts—which is a huge part of most independent repair and recycling businesses. It’s also impossible to pair any aftermarket parts—which means only Apple-authorized repairs can truly restore the device to full functionality.”

That’s a lot of environmental waste and added consumer costs and restrictions created by a company that claims to have seen the light on “right to repair.” And as iFixit notes, Apple implements systems like this without much in the way of meaningful transparency:

“In a move that will not surprise close observers of Apple, they have developed the system without notifying the people who do the actual repair work that it impacts.”

Tech industry lobbyists are increasingly using their influence to ensure right to repair laws don’t cover the most problematic industries on right to repair (like medical equipment, game consoles, or autos), then they’re increasingly using software restrictions to make make affordable, independent repair as cumbersome and annoying as possible. All while soaking up media praise for having seen the light.

Filed Under: cellular, hardware, independent repair, iphone, right to repair, tinker, wireless
Companies: apple, ifixit

Boise State’s Silly Trademark For ‘Non-Green Football Fields” May Finally Get Challenged

Trademark

from the black-and-blue dept

Almost exactly seven years ago, we discussed the absolute silliness that was Boise State University somehow getting the USPTO to grant it a trademark for a football field that is “non-green.” If you’re not a college football fan, some context is in order. Decades back, the school didn’t want to pay to have its field resodded with grass, so it instead put in cheaper turf that was colored royal blue. If you’ve never seen the field on television or in person, it’s absolutely ugly. So ugly, in fact, that it’s also absolutely awesome and has become a distinctive part of the BSU brand. Because of that, getting the original trademark the school got for the blue-colored field made some sense. But in 2010, the school managed to expand the mark to include all fields that are “non-green.” From my original post on the matter:

Now, we could sit around and argue whether or not having a blue football field was a thing fit to be trademarked. Personally, considering the specific color the school used, I could buy an argument that fans that see the field do indeed think of Boise State. I certainly do. But the school expanded the trademark in 2010 to fields not just blue, but fields that are “non-green.” And that’s crazy. Bradlee Frazer, an IP attorney working with the school, has stated that any non-green athletic field carries with it the risk of confusion pertaining to Boise State. He can say that all he wants, but such a stance likely wouldn’t survive a challenge from another school.

But those challenges have never come, mostly because Boise State is quite liberal with freely licensing the ability to have non-green fields to other schools.

And that has continued to be true. Colleges and high schools that have decided to use non-traditional color schemes for their football fields have traditionally sought approval from BSU. And, to be clear, BSU has continued to be fairly sanguine about approving such uses, so long as there is no real callback to BSU. Because of that, the obviously and overtly broad trademark BSU has hasn’t ever been challenged.

That may be changing. SUNY Morrisville, a Division 3 school, recently put in its own synthetic turf, colored deep black. And the school reportedly didn’t seek any sort of approval from BSU in doing so.

By going emo, the school joined a handful of select college programs that have, over the last two decades, broken from the traditional gridiron greens, including Coastal Carolina, Eastern Washington, Eastern Michigan and Central Arkansas.

And yet, in joining the ranks of these non-verdant outliers, SUNY Morrisville went a step bolder by breaking a norm that has been dutifully conformed to by the other nonconformists: seeking permission from Boise State University, which, in 1986, became the first university to implement a non-traditional athletic field color with its now-famous, blue “smurf turf.”

And now we get to see whether BSU really wants to try to enforce its trademark and claim this is infringement, or else it risks breaking the precedent that all these schools need to seek permission for football fields that are not colored the traditional grass-green.

I certainly hope BSU does try to enforce its mark, if only so that SUNY Morrisville can fight back and get this stupid trademark invalidated, or at least pared back to covering the royal blue colored field. I can’t account for how or why the USPTO allowed such an overly broad trademark to be approved in the first place, but I am damned sure that any competent attorney for SUNY Morrisville could get it rescinded upon challenge.

Filed Under: football fields, non-green field, trademark
Companies: boise state, suny morrisville

Council Of Europe Says Most Use Of NSO’s Pegasus Spyware Is Probably Illegal

Legal Issues

from the nice-racket-you-got-there,-NSO dept

I mean, that’s what we all were thinking, right? When you carve out a niche selling to outlaws, there’s a good chance your product will be used illegally, no matter who’s buying it.

That’s how it all plays out for NSO Group and its infamous Pegasus zero-click phone exploit — one capable of fully compromising targets’ phones. And what a list of targets it is! Journalists, human rights activists, opposition leaders, religious leaders, lawyers, and dissidents were all included on the list of NSO malware targets obtained by journalists in 2021.

Two years of bad news followed. Not just negative press, but investors, founders, and even the Israeli government backing away slowly from this suddenly toxic asset. At its peak, NSO had a long list of customers, most of them doing their own citizens dirty with routine human rights abuses. At its current nadir, NSO limps along, trying to find someone willing to pay it to put itself out of its self-inflicted misery.

This report [PDF], compiled by the Council of Europe and written by the Netherlands’ Pieter Omtzigt, says what everyone knows. But it says it for the benefit of those who know, but still refuse to stop engaging in abusive deployments of the Pegasus malware.

Here’s the main takeaway, as summarized by Suzanne Smalley for The Record.

The PACE’s Committee on Legal Affairs and Human Rights, which produced the report, asked at least 14 European Union countries which have bought or used the tools, including the Netherlands, Germany, Belgium and Luxembourg, to “clarify the framework of its use and applicable oversight mechanisms” within three months.

Additionally, the report singles out Poland, Hungary, Spain, Greece and Azerbaijan, which have already weathered public scandals related to their use of the NSO Group’s Pegasus spyware and similar tools, to undertake “effective, independent and prompt investigations” on all confirmed and alleged cases of spyware abuse.

Some things to note before we take a deeper look at the report:

First, it was composed by a representative of a government that has been (at least somewhat) critical of the EU’s attempts to undermine encryption with client-side scanning mandates. Second, the countries named as participants in likely illegal surveillance include Greece and Spain. Greece has been dealing with the fallout of illegal spying efforts utilizing other malware created by yet another Israeli-based spyware company. Spain has been engaged in open oppression of Catalan dissidents and wholeheartedly believes the EU should give it even more power to repress those who seek to have this region’s independence recognized by the Spanish government.

The other countries on the list have rarely been considered havens of personal freedom, with Poland being a bit more progressive in its protection of human rights than Hungary or Azerbaijan. That being said, Poland hasn’t exactly kept its hands entirely clean when it comes to domestic surveillance.

The problem is the malware itself, which is extremely powerful and, for most targets, undetectable. Given these aspects, the Parliamentary Assembly of the Council of Europe (PACE) doubts any use of the spyware could possibly comply with European law.

The Parliamentary Assembly notes that Pegasus is a highly intrusive surveillance spyware, which grants the user complete and unrestricted access to all sensors and information of the targeted mobile phone. It turns the smartphone into a 24-hour surveillance device, accessing the camera and microphone, geolocation data, e-mails, messages, photos, videos, passwords, and applications. While some spyware tools require some action on the part of the victim, such as clicking on a link (for instance, Predator) or opening an attachment, Pegasus is installed through a so-called “zero click attack”. Given its unprecedented level of intrusiveness into the private life of the targeted individual and all the target’s contacts, the Council of Europe Commissioner for Human Rights and the European Data Protection Supervisor have expressed serious doubts as to whether its use could ever meet the proportionality requirement and therefore be human-rights compliant.

This is followed by the name-and-shame portion of the presentation. The Council notes the malware has been deployed in both Poland and Hungary to spy on journalists, opposition leaders, lawyers, prosecutors, and activists. In Spain, 65 infections of phones possessed by Catalan pro-independence activists have been verified. Azerbaijan has both deployed it against its own people (journalists, activists) as well as targets in Armenia.

Since almost any deployment of Pegasus will, at the very least, likely violate European privacy laws, the Council requests that all EU nations inform the Assembly about any past, present, or planned Pegasus use, provide redress to those illegally-targeted, apply sanctions (if needed) against the entities deploying the malware, and conduct investigations to determine whether any past deployments have flown under the oversight radar.

The report delivers more details on potentially illegal Pegasus deployments throughout the rest of the report. Most of these were uncovered by security researchers, like the invaluable Citizen Lab. None of the discovered infections were the result of self-reporting by government agencies who purchased NSO spyware. In a few cases, government investigations have uncovered abusive deployments by government entities, but most of the legwork is still being done by the private sector.

While the Council is entitled to make these demands of EU nations, it doesn’t actually have the power to make any of this happen, unfortunately. Back to Suzanne Smalley and The Record:

The Council of Europe was established in the wake of World War II to promote human rights and democracy. While it cannot enact laws, it describes itself as being able to “push for the enforcement of select international agreements reached by member states on various topics.” 

It’s not much, but maybe it will be enough. NSO is on the ropes and very few self-respecting governments want to be caught with Pegasus on their hands. There will always be competitors willing to fill the void created by NSO should it choose to exit the market. But maybe efforts like these will make EU nations think twice before doing business with malware merchants more than happy to get in bed with any autocracy that will have them.

Filed Under: council of europe, malware, privacy, spyware
Companies: nso group

Last Week 5th Circuit Said Gov’t Can’t Pressure Websites, This Week It Says Gov’t Mandated ‘Health’ Messages Are Perfectly Fine

Free Speech

from the when-republicans-do-it,-it's-fine dept

It can always get dumber. And when we’re talking about the 5th Circuit, you have to assume it will always get dumber. And that’s what has happened now with the 5th Circuit issuing a stay on an injunction that had blocked an obviously unconstitutional law. But we’ll get to those details in a moment.

Just last week we wrote about the decision in the 5th Circuit saying that the government cannot coerce websites regarding how they moderate content. We noted that this seemed to be in near total conflict with last year’s 5th Circuit ruling saying that of course governments can tell websites how to moderate (the only point on which they are consistent is that “it’s okay when Republicans do it, and not okay when Democrats do it”).

But that ruling last year was even crazier than it sounds. As you may recall, Texas passed this law, HB 20, that told social media websites how they had to moderate (or not moderate) certain content. A federal district court issued an injunction blocking the law, laying out in great detail how very, very, very obviously unconstitutional the whole thing was. It appeared that the judge in that case knew full well that the 5th Circuit was likely to muck it up and was trying to convince them not to.

Somewhat incredibly, the 5th Circuit mucked it up in spectacular fashion, overturning the injunction and reinstating the law immediately with zero explanation. Normally, when you issue a ruling stopping an injunction (or issuing one) you… explain why. But the three judge panel just issued a one-line ruling saying that the motion was granted. No explanation. This resulted in a mad dash to the Supreme Court which (perhaps surprisingly!) told the 5th Circuit that this was procedurally inane, and put the law back on hold.

Eventually, many, many, many months later, the 5th Circuit explained its reasoning in an opinion authored by Judge Andy Oldham, reinstating the law again (which was then put on hold while it was appealed to the Supreme Court, where we’re still waiting to see what happens). Oldham’s reasoning basically overturned a century’s worth of “settled” 1st Amendment law.

So, anyway, that’s the history from last year. Onto this year. Earlier this year, Texas passed a law requiring both age verification and a mandatory “health warning” message on all adult content websites. The Free Speech Coalition sued to stop the law going into effect (as it was scheduled to do on September 1st) and, as we reported, the court reasonably granted the injunction blocking the law, noting that it was pretty clearly a violation of the 1st Amendment for both the age verification bits and for the mandatory health warning, which forces adult websites to say that “Texas Health and Human Services” has claimed that pornography leads to eating disorders, impaired brain development and an increase in demand for child exploitation even though, as the judge blocking the law noted, Texas Health and Human Service’s department never found any such thing.

As the court clearly notes “this is compelled speech.”

Anyway, with the court rejecting it, we figured there would be some time for it to go through the usual appeals process.

But we did not count on good ol’ 5th Circuit Judge Andy Oldham. Because a three judge panel that includes Oldham reinstated the law, putting an “administrative stay” on the preliminary injunction that blocked the law in the first place. Once again, the ruling gives no details at all. It’s two sentences this time (up from one the last time), and just effectively removes the preliminary injunction, meaning that the law is immediately in effect. The only difference from last year’s similar nonsense is that the court says the appeal is “expedited” to the next available oral argument panel.

5th Circuit lawyer Raffi Melkonian wrote on Bluesky that there’s some procedural weirdness to all this, noting the 5th Circuit will often issue an administrative stay while considering a motion for a stay, but here it’s not even yet considering the actual stay because it’s saying that it will deal with it during oral arguments.

Either way, the law is now in effect and we have no idea what that means because the 5th Circuit has explained nothing.

And, again, between these two 5th Circuit rulings, a week and a half apart, we are being told by the very same court that governments cannot do anything to coerce speech on some platforms, but absolutely can compel speech on other platforms.

If that seems contradictory, the reality is that what the 5th Circuit is saying, in a truly partisan way, is that when Republicans compel speech, that’s fine. It’s not only fine, but the court doesn’t even need to explain why it passes constitutional muster. When Democrats highlight content that could lead to harm for websites to look at and decide for themselves if they want to host it, that is the worst censorship scandal in the history of America, and the government should be barred from speaking to the companies at all.

The 5th Circuit is a joke, and its main court jester seems to be Andy Oldham.

There is no workable theory of the 1st Amendment here. There is nothing but a distorted partisan filter.

Filed Under: 1st amendment, 5th circuit, age verification, andrew oldham, andy oldham, compelled speech, free speech, hb 1181, texas
Companies: free speech coalition

Daily Deal: Multi-Use Cleaning Pen for AirPods & Earbuds

from the good-deals-on-cool-stuff dept

It’s hard to keep your devices clean. And if you have any AirPods, you’ll know how difficult it can be to clean the nooks and crannies of the device—especially when they’re so tiny! Now it’s a whole lot easier with the Multi-Use AirPods Cleaning Pen. It helps you clean hard-to-reach areas or any other corners. You can easily remove all wax and dust from headphones without damaging them. The AirPods Cleaning Pen is designed with a flocked sponge, a high-density brush, and a metal tip that can be used with many digital devices such as Bluetooth earbuds, mobile phones, computers, and more. It’s on sale for $16.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Judge Tells Trump Durham Report Doesn’t Prove Hillary Clinton Conspired Against Him To [Squints At 2016] LOSE Election

Legal Issues

from the mfer-apparently-unable-to-take-the-W dept

Former president Donald Trump has been engaged in plenty of questionable litigation. And not just during and following his mercifully short-lived stint as the supposed leader of the free world.

But this still remains one of the weirdest lawsuits Trump has filed. This lawsuit — which he has already lost — claims the Democratic Party and Hillary Clinton conspired to rig the election… he won. That’s right, he sued over what he claimed was a rigged 2016 election. Not 2020. 2016. The one he actually won. Yeah, I don’t know what to make of that either. It’s a lot easier to prove a conspiracy when you come out on the losing end. I’m not sure what Trump wanted from this lawsuit. He couldn’t have been any more of a president than he already was. Even if there was a conspiracy (there wasn’t), there were no damages. He was, for four very long years, the Commander-in-Chief.

The federal court saddled with this absurd lawsuit dumped it last September, summarizing it this way:

Plaintiff’s theory of this case, set forth over 527 paragraphs in the first 118 pages of the Amended Complaint, is difficult to summarize in a concise and cohesive manner. It was certainly not presented that way.

And it punctuated its decision with this:

More troubling, the claims presented in the Amended Complaint are not warranted under existing law. In fact, they are foreclosed by existing precedent, including decisions of the Supreme Court.

But, as we’re all painfully aware, Trump is incapable of accepting undeniable losses. Three months after this decision, Trump’s lawyers were hit with $76,274.23 in sanctions. Here’s what the court said then:

Not just initiated by a shotgun pleading, this was a shotgun lawsuit. Thirty-one individuals and organizations were summoned to court, forced to hire lawyers to defend against frivolous claims. The only common thread against them was Mr. Trump’s animus.

Plaintiff deliberately misrepresented public documents by selectively using some portions while omitting other information including findings and conclusions that contradicted his narrative. This occurred with the Danchenko Indictment, the Department of Justice Inspector General’s Report for Operation Hurricane, and the Mueller Report. It was too frequent to be accidental.

Every claim was frivolous, most barred by settled, well-established existing law. These were political grievances masquerading as legal claims. This cannot be attributed to incompetent lawyering. It was a deliberate use of the judicial system to pursue a political agenda.

Two months later, Trump’s lawyers were sanctioned again by the same court. This time, the fees totaled nearly $1 million. The court was still as irate as ever:

This case should never have been brought. Its inadequacy as a legal claim was evident from the start. No reasonable lawyer would have filed it. Intended for a political purpose, none of the counts of the amended complaint stated a cognizable legal claim.

Somehow, Trump (and the lawyers that still dare to represent him) believe this series of resounding defeats are still contestable. Trump submitted a filing referring to the Durham Report released in May of this year. He apparently hasn’t read it. It doesn’t say what he thinks it does. It does not show there was an overarching conspiracy to deprive him of an election win (you know, in the election he WON). The report resulted in nothing more than a guilty plea from one former FBI lawyer, who admitted he altered an email to generate (bogus) probable cause for the continued surveillance of short-lived Trump-coattail rider Carter Page.

The court’s latest ruling [PDF] is similarly exasperated with Trump’s insistence on wasting its time with baseless claims and non-actionable allegations. That much is clear almost immediately. Here’s how this ruling opens:

On May 12, 2023, Special Counsel John H. Durham submitted his Report on Matters Related to Intelligence Activities and Investigations Arising Out of the 2016 Presidential Campaigns (“Durham Report”). Plaintiff and his lawyers tout the Report as “newly discovered evidence” and they now ask me to reconsider my previous rulings. But far from “seismically alter[ing] the legal landscape of this case” (DE 331 at 6), the Durham Report changes nothing. Nor could it really.

Even if the Durham Report uncovered the sort of vast conspiracy alleged by Plaintiff (it plainly did not), it would not change the many legal conclusions I made in the Order dismissing Plaintiff’s lawsuit. And whatever the Durham Report can be said to have uncovered, for purposes of this case, it does not change my findings that Movants acted in bad faith in bringing this lawsuit and that this case exemplifies Mr. Trump’s history of abusing the judicial process. Therefore, for the reasons set forth below, Plaintiff and his lawyers’ Motion for Indicative Ruling Based Upon New Evidence is denied.

Oof. I mean, that’s what a normal litigant would say. Who knows what someone like Trump might say when reading this smackdown of another (of what will presumably be several) attempts to revive a case that’s been (as was said in The Thick of It) “Brian Jones*” since day one.

^{*Dead in the water}

The point is hammered home a few pages later, following the discussion of legal standards, which is something Trump and his lawyers need to be constantly be reminded of.

I struggle to even imagine anything that the Durham Report could say to warrant a change in any of those conclusions—the sum of which foreclosed Plaintiff’s claims and led to sanctions. And after reading all 306 single-spaced pages of the Durham Report, I am not convinced that anything it does say merits the extraordinary relief of granting a Rule 60(b) motion.

The court notes that the Durham Report was released after its dismissal of the lawsuit (and two consecutive sanctions orders), making it pretty much inadmissible. And even if it theoretically could be considered “new evidence,” Trump’s legal team has already made the assertion that there’s nothing really new about the contents of the report.

I also reject Movants’ argument that “[w]hile much of the information contained within the Durham Report may have been reported in the press or asserted in legal proceedings prior to the Durham Report’s release, the existence of this same information in a report of an official government investigation is fundamentally different and new.” (DE 336 at 9) (emphasis added). That is exactly the opposite of “newly discovered evidence.”

The court also points out that if this was truly “new” evidence, you’d think Trump would have asked to file an amended complaint. But that didn’t happen. Instead, his legal team lobbed the Durham Report into the court and claimed that alone justified a re-examination of Trump’s (bogus) claims — the claims that said Hillary Clinton, et al conspired to rig an election TRUMP WON.

This was not good faith litigation. This was exactly what the court called it months ago. It was Trump weaponizing the legal system for political purposes. And this attempt to revive the suit has only provided the court another opportunity to criticize Trump and his litigation tactics.

Movants ignored the unfavorable parts of Special Counsel Durham’s indictments. See, e.g., (Indictment ¶ 36, United States v. Danchenko, No. 21-cr-00245, (E.D. Va. Nov. 3, 2021)) (“According to [Mr. Dolan], individuals affiliated with the Clinton Campaign did not direct, and were not aware of, the aforementioned meetings and activities with Danchenko and other Russian nationals.”) (emphasis omitted). And in alleging that Plaintiff was “banned from different social media platforms, including Twitter” as a result of “the misinformation campaign waged by Hillary Clinton,” (Amended Complaint ¶ 524 n.277), Movants at best made it up and at worst flatly lied. See Twitter Inc., Permanent Suspension of @realDonaldTrump, Twitter Blog (Jan 8, 2021), (suspending Mr. Trump following January 6th attack on the Capitol because his tweets posed “the risk of further incitement of violence.”).

And:

A shotgun pleading, especially one of this length and scope, was not an academic error—it had real-world, negative consequences for Defendants and this Court. Defendants were forced to spend an enormous amount of time and money untangling a web of largely irrelevant facts and frivolous legal conclusions. And this Court diverted an unusual amount of resources and time to properly adjudicate this dispute. The Eleventh Circuit has likened a shotgun pleading of this nature to obstruction of justice. That Movants pressed on, even after Defendants raised the relevant Eleventh Circuit caselaw in their initial motions to dismiss, is inexcusable.

In conclusion, fuck this litigant in particular.

Movants pursued this lawsuit in bad faith for the improper purpose of dishonestly advancing a political narrative. As I previously explained, Mr. Trump is a prolific and sophisticated litigant who is repeatedly using the courts to seek revenge on political adversaries. This case is straight out of that playbook. Nothing in the Durham Report changes that.

There will likely be no sanctions for this move, if only because the court doesn’t expect the defendants to respond to this obviously frivolous and desperate move by Trump and his lawyers. If Trump wants a conspiracy, I’m sure he’ll be able to find all the theories he wants. But what he won’t ever be able to do is prove that any of these theories are real.

Filed Under: donald trump, durham report, election lawsuit, hillary clinton, john durham

As Net Neutrality Debate Reheats, Remember The Real Problem Is Telecom Monopoly Power

Broadband

from the here-we-go-again dept

With the Biden FCC now having a full slate of commissioners and a full voting majority, the net neutrality debate has already started to heat back up. That means a renewed effort by broadband giants to try and downplay the need for net neutrality rules, usually via lazy op-eds run in lazy publications like The Hill, often written by organizations with undisclosed financial conflicts of interest.

Like this lovely missive by the telecom-industry funded “Innovation and Technology Policy Center (ITPC),” which attempts to claim that the Trump FCC dismantling of popular net neutrality rules “saved the internet,” and that restoring the rules would harm the “vibrant and competitive” U.S. broadband market:

“Such regulations are entirely unnecessary in today’s vibrant and competitive broadband marketplace, and to restore them would be finding a solution in search of a problem.”

That the telecom industry is already using proxy organizations to make up nonsense about a monopoly-dominated, barely competitive U.S. broadband industry being “vibrant” speaks for itself. These kind of posts are comically lazy, and mindlessly repurpose false claims like the idea that net neutrality (for the brief window it existed) hurt U.S. broadband investment (which is documented as false):

“This decision hampered capital investments with a 20 percent reduction in spending during the two years they were in effect and delayed new broadband deployment and innovation.”

The folks making these kinds of posts don’t really care about factual reality. They just repeat the same false claims over and over again in the hopes of seeding them into the brains of a lazy public and press. And as we saw with the last two decades of net neutrality bickering, it generally works. Here I am deflating the same claims industry marionettes have been making for twenty straight years.

As noted previously I’m not entirely convinced yet that the Biden/Rosenworcel FCC actually has the backbone to fully revisit net neutrality. I imagine they’ll implement something that sounds much like net neutrality, but lacks the full legal backing of the original, 2015 ruling. I expect them to half-ass it. I hope to be surprised.

But instead of spending another decade bickering and debating with telecom-backed proxy organizations paid to be inflexible, I think it’s important to keep the conversation centered on the real problem: concentrated, unchecked telecom monopoly power and the corrupt politicians that protect it.

Net neutrality rules were an imperfect, stopgap measure to stop powerful telecom monopolies from abusing their market power to harm consumers and competitors alike. And while the rules were useful, the real underlying problem with U.S. broadband is caused by concentrated regional monopolization, industry consolidation, feckless regulatory oversight, and a pointed lack of competition.

U.S. policymakers aren’t actually interested in fixing this problem, in part because companies like AT&T and Comcast wield massive lobbying influence, but also because those monopolies are tethered to our first responder networks and domestic surveillance systems. Companies like AT&T are, in many ways, part of the government itself, making sabotaging consumer protection efforts easier than ever.

Yes, we’re keen on throwing untold billions in subsidies at the problem every few years, but when it comes to holding giant telecom monopolies accountable for consumer abuses or even outright fraud, federal policymakers have been napping for the better part of the last decade. Whatever this next round of ridiculous net neutrality bickering looks like, don’t let it take your eye off the actual ball.

Filed Under: broadband, competition, fcc, high speed internet, monopolies, net neutrality

A Small Percentage Of Skyrim’s Sales Were On Non-Microsoft Platforms; Its Sequel Will Be Microsoft Exclusive

Overhype

from the to-spite-your-face dept

So, the fact that Microsoft would be taking the next game in the Elder Scrolls series, the 6th game, to Xbox and PC exclusively isn’t the world’s biggest surprise. Xbox chief Phil Spencer made waves back in 2021 (before all the drama surrounding Microsoft’s future acquisition of Activision Blizzard) noting that he saw advantages to making Elder Scrolls 6 exclusive to Microsoft systems. That wasn’t seen as a fully official statement of fact, however, and fans held out hope that maybe Microsoft would change its mind. With some recent reveals of internal Microsoft documents coming out of the Microsoft/FTC battle, however, we can pretty much put all that hope to rest.

The trend line is pretty clear in the image above. As time has gone on since Microsoft acquired Zenimax, more and more titles have been pulled back into Microsoft platform exclusives. Notably, this is also in contradiction to statements Spencer himself made years ago about exclusivity, in which he often made comments suggesting that wasn’t something Microsoft was particularly interested in.

Okay, so it’s interesting, but mostly confirming what was already being anticipated, so why are we talking about it? Well, because taking the next Elder Scrolls title exclusive deserves a bit deeper of a dive than we’ve done previously. Microsoft clearly has some kind of strategy in mind with all of this, but I can’t for the life of me figure out what it would be. The obvious answers really point to only three potential options: Microsoft wants to use exclusives to push more Xbox sales, to push more gamers into PC gaming and off of consoles, or some combination of the two.

Here’s the problem, though. The best sales figures I can find suggest that by August of this year the PlayStation 5 has outsold the Xbox Series X/S roughly 15 million to 11 million, respectively. And the sales delta in favor of Sony has been growing steadily over the past year, likely as supply crunch issues for the PlayStation get resolved. Sure, you say, but that’s what Microsoft is trying to combat.

Well, okay then, let’s look at sales figures for Skyrim, the prequel to the forthcoming Elder Scrolls 6. Now, the caveat that comes with those sales figures is that they are frustratingly incomplete. Steam isn’t particularly forthcoming with sales figures around specific titles, but the suspected sales figures for PC sit around 15 million units for the original version, and another 11 million for the Special Edition that was released in 2016. Xbox sales for the original version are just under 9 million on the 360 and just under 2 million on the Xone. That’s 44 million sales in total. I can’t seem to find sales figures I trust for the Special Edition on the Xbox Series X/S, but you would expect it to be something like a third less than the original, as was the case with the PC versions. Let’s call it 6 million, which might be a bit high. So we’ve got roughly 50 million unit sales of Skyrim on Microsoft systems.

Here’s the thing: recent reports indicates that Skyrim surpassed 60 million total unit sales several months ago. Let’s say the current total gross sales figures sit at something like 61 million. That would mean that Skyrim, not a Microsoft exclusive, sold something like 82% of its total units on Microsoft platforms. That isn’t the same as being totally exclusive, but it’s awfully damned close for one of the best selling games of all time.

And yet Microsoft sees taking its sequel exclusive as a strategic move. But to accomplish what, exactly? Sell more Microsoft systems? The majority of the last game was sold on Microsoft systems anyway, so what’s the point? What percentage of the 10 million or so folks who bought Skyrim on other platforms will buy an Xbox or PC instead of a PS6 because this game and few others are exclusives? The answer isn’t half. It’s probably not even a quarter. It’s probably less than one-tenth, though admittedly this is speculation, but speculation based on past evidence.

So would the additional sales of those systems really be enough to offset taking what will be one of the most hotly anticipated games ever out of several money-making platforms?

I have a hard time believing that’s the case.

Filed Under: elder scrolls, exclusives, skyrim, video games
Companies: microsoft