One of the wonders of a digital world is that art preservation in many forms suddenly gets much, much easier. For all kinds of art, be it video games, music, drawings/paintings, etc., at the very least an uploaded digital simulacrum of the art means that it can’t be easily lost due to the pernicious lack of care by the creators of the art itself.
I’ve spent quite a bit of ink and time discussing how this applies to video games. And, beyond just the games themselves, which are obviously digital in nature, the peripheral art and culture that surrounds those games, such as game manuals. The truly frustrating part of those otherwise very cool stories is that it really shouldn’t be left to fans and hobbyists to do this kind of preservation and archiving. Why don’t gaming companies want to preserve their own cultural output somewhere? Publishers? Developers? It’s almost never them that does the hard work. That is typically done by a small number of fans in the public, who then risk being slapped around over intellectual property concerns by those whose job they’re doing.
Uploaded to Archive.org today by Gumball, all 285 issues of Nintendo Power are now unofficially available in .cbr format. At just over 40 gigabytes for the whole shebang, the vast majority of the collection comes courtesy of Retromags, a community-run project dedicated to archiving classic video game magazines. A couple of remaining issues were sourced via Reddit by Gumball. Scanned in full color, the collection is a wonderful way to browse through gaming and media history.
The escalating Reddit post is gaining a lot of attention and appreciation from gamers who have either been looking to complete their own collections or to find the couple of missing issues that weren’t in the Retromags collection. “I just wanted to get every issue in one place,” Gumball says in another Reddit reply. “The ones that I could not find were issues 208 and 285. Retromags did not have them [but] a dude over in the r/DHexchange happened to have both of these [and] allowed me to complete the set.
If you’re a gamer of a certain age, Nintendo Power magazines were the absolute best. And even if you aren’t, or if you happen to think that the magazine is pointless trash, that doesn’t really matter. Those magazines are still cultural output that are absolutely worth preserving. I plan to go through them myself and just drink in the nostalgia, thinking back to when I was a child diving into these magazines.
But this is Nintendo we’re talking about. And Nintendo has never been shy about attacking anyone who remotely comes close to stepping on their IP, even if, as in this case, the company can’t be bothered to do any of this archiving or preservation itself.
Unfortunately, Nintendo’s history with these sorts of efforts isn’t exactly comforting. But as physical media, especially printedmanuals and magazines like Nintendo Power, become harder to find, having access to archives like this is an essential way to preserve this history.
Hopefully Nintendo can manage to see that as well. Somehow, though, I suspect the lawyers already have pen to paper.
Let’s get this out of the way right up front: Senator Josh Hawley is not a Good Person. The former attorney general had the chance to be a good person, but instead became the poster boy for insurrection by raising his fist in support of Trump fans on their way to raiding the Capitol building in hopes of illegally keeping an un-elected president in office.
He was not great before this moment of infamy, either. He pledged himself to Donald’s causes, taking aim at tech companies and Section 230 immunity because his new boss thought the real problem with the internet was all the moderation efforts that resulted in fewer MAGA bigots baying for the blood of the president’s many, many, many enemies on social media platforms.
But before he was an extremely subservient senator, he was the Attorney General for the state of Missouri. Maybe he was ok at his job. His record has hits and misses, like anyone in the difficult position of appeasing political powers while at least tipping the hat occasionally towards the best interests of the public.
But Hawley hitched his star to Team Trump. To get to where he wanted to go, he got in on the grift. And for that, he’s been sanctioned. Most politicians will bend rules. The problem here is that the rules got bent while Hawley was still the state’s top law enforcement official — you know, the sort of person who punishes people who break the rules. And, conveniently, the person who can make final calls on public records requests to decide what the public can or can’t obtain.
A state judge held Tuesday that U.S. Senator Josh Hawley, while acting as the Missouri attorney general, intentionally withheld government communications to avoid damage to his 2018 Senate campaign.
Cole County Judge Jon Beetem, a Republican, found that the context behind the records requests in question supports the contention that the AG’s office acted in a knowing and purposeful manner in refusing to release the records.
It only took Judge Beetem 19 pages [PDF] to fine Hawley $12,000, a cost he may decide to offload on his supporters, since that’s the way Trump does it. It may not seem like much (it isn’t!), but it is the maximum fine allowed by law. That’s $5,000 for each “purposeful violation” and $1,000 for each “knowing violation.” One and the same, I would think, but I’m totally here for the compounding.
The court says Hawley began using a personal email address “as early as January 2017.” Not cool, especially since Hawley being state AG gave him “significant familiarity” with the state’s public records requirements. That’s against the rules.
AGO [Attorney General’s Office] policies instruct employees that they can ensure records concerning public business are retained by the AGO by providing them to the custodian of records. AGO policies also prohibit AGO employees from conducting AGO business on private emails.
So, there’s no way Hawley didn’t know what was the what when he decided to (1) use a private email address, and (2) deny requests that might have exposed his shittiness.
The court, however, exposes both. And then it goes further, tying what was withheld to Hawley’s Senate campaign:
Contrary to the AGO’s suggestion, the fact that the AGO was involved in a different lawsuit against DSCC [the public records requester and supporter of Hawley’s opposition in the Senate race] concerning a different Sunshine Law request does not sweep all DSCC requests under the Litigation Exemption. This is because the Litigation Exemption does not shield documents from production just because they concern potentially controversial subject matter that might someday become the subject of litigation.
The exemption doesn’t apply. The AGO’s office is required to produce all responsive records, even if the head of the office is trying to subvert that by using a personal email account to conduct government business. And the AGO’s office (along with AG Hawley) is not allowed to withhold records simply because their release might jeopardize the AG’s political campaign.
The court says its decision will not force every public agency to have access to every public employee’s private email accounts. That is not the conclusion it reaches. But it says the AG’s office suggested remedy is unacceptable.
The approach urged by the AGO, on the other hand, is unprecedented and creates a roadmap for abuse. It would allow the agency and its custodian to shield public records merely by storing them offsite. By simply choosing to conduct business over private email, or to work on private computers and devices, agencies could deny citizens the open government that the General Assembly sought to ensure and render the Sunshine Law toothless.
Then the court arrives at its conclusion: the AG’s office didn’t just violate law and policy to deny a request. It violated law and policy for the apparent purpose of preventing negative information from harming AG Hawley’s Senate run:
The Courts conclusion that the AGO‘s violations were knowing and purposeful is supported by the context surrounding these request, by the AGO’s conduct in response to the requests, and by the shifting rationales the AGO has offered to explain its failure to tum over responsive documents. To begin, the content of the requests and the respective motivations of both the AGO and DSCC provide essential context. Then-Attomey General Hawley was actively running for U.S. Senate at the time of these requests, which were submitted by a national party committee supporting his opponent. The requested documents showed—at a minimum—a questionable use of government resources, demonstrated by the fact that their eventual public release helped trigger an investigation by the Secretary of State’s Office into the potential misuse of government funds to support Attorney General Hawley’s Senate campaign.
By failing to produce the requested records, Mr. Hartman and the AGO prevented an opposing party committee from accessing documents potentially damaging to then-Attorney General Hawley’s political campaign. What is more, Mr. Hartman—the individual at the enter of the AGO’s failure to turn over these records—is included on much of the correspondence in question, was involved with the Hawley campaign as early as January 2017, and ultimately became Senator Hawley’s state director. This context compels the conclusion that the decision to withhold documents responsive to DSCC’s Sunshine Law requests was made by public officials who had personal and professional stakes in the documents not being released and in the success of then-candidate Hawley’s campaign.
Huh. It looks like Hawley’s policy-violating sin of omission may have helped him… I don’t know.. gain an unfair advantage in an election? I mean, there were better ways to handle this. Not that Hawley would know, but there are. I mean, if you’re concerned your political opponents might use information about election ethics violations against you maybe DON’T COMMIT CAMPAIGN ETHICS VIOLATIONS. Just a thought.
But if you can’t play it honest the first time, odds are you’re going to be dishonest the second time around. A $12,000 slap on the wrist isn’t going to make Hawley honest. But it does, at least, drag some more of his extremely dirty laundry out into the sunlight. Maybe the next time he’s up for election, Missouri residents will remember he cheated and lied to get where he is.
One chapter of my Walled Culture book (free download available in various formats) looks at how the bad ideas embodied in the EU’s appalling Copyright Directive – the worst copyright law so far – are being taken up elsewhere. One I didn’t include, because its story is still unfolding, is Canada’s Bill C-18: “An Act respecting online communications platforms that make news content available to persons in Canada”. Here’s the key idea, which will be familiar enough to readers of this blog:
The Bill introduces a new bargaining framework intended to support news businesses to secure fair compensation when their news content is made available by dominant digital news intermediaries and generates economic gain.
In other words, it’s a link tax, designed to make big digital platforms like Google and Facebook pay for the privilege of sending traffic to newspaper publishers. The full depressing story of the copyright industry’s greed is retold in Walled Culture. But a fresh perspective on this latest link tax comes from one of Canada’s top copyright experts, Professor Michael Geist. He has been writing blog posts about Bill C-18 and another terrible proposed copyright law, Bill C-11, on his blog for a while. They are well worth reading for anyone who wants to follow what is going on in Canada and in copyright generally. Geist has recently written a great post about Bill C-18, entitled “Why Bill C-18’s Mandated Payment for Links is a Threat to Freedom of Expression in Canada“:
The study into the Online News Act continues this week as the government and Bill C-18 supporters continue to insist that the bill does not involve payment for links. These claims are deceptive and plainly wrong from even a cursory reading of the bill. Simply put, there is no bigger concern with this bill. This post explains why link payments are in, why the government knows they are in, and why the approach creates serious risks to the free flow of information online and freedom of expression in Canada.
Geist explains how the Canadian government is being dishonest by trying to suggest the bill is not really about forcing platforms to pay for links, just forcing them to compensate news publishers in some way for using those links. Geist also points out how C-18 would require links to news material from big publishers to be paid for, but not those from small media outlets. That in itself reveals this bill is about rewarding a few corporations at the expense of smaller publishers. Also troubling is the fact that “the bill effectively says that whether compensation is due also depends on where the expression occurs since it mandates that certain venues pay to allow their users to express themselves.” Geist rightly points out that this would set a terrible precedent:
Once government decides that some platforms must pay to permit their users to engage in certain expression, the same principle can be applied to other policy objectives. For example, the Canadian organization Journalists for Human Rights has argued that misinformation is akin to information pollution and that platforms should pay a fee for hosting such expression much like the Bill C-18 model. The same policies can also be expanded to other areas deemed worthy of government support. Think health information or educational materials are important and that those sectors could use some additional support? Why not require payments for those links from platforms. Indeed, once the principle is established that links may require payment, the entire foundation for sharing information online is placed at risk and the essential equality of freedom of expression compromised.
That sums up neatly why the whole link tax idea is so pernicious. It seeks to privilege certain material over other kinds, and would turn the fundamentally egalitarian glue of the World Wide Web – links – into something that must be paid for in many cases, destroying much of its power.
There are a variety of myths about how the world works that get people really screwed up when they make big bets on trying to “fix” things. I think Elon Musk has fallen prey to a few of them in how he’s trying to run Twitter. First, he falsely believes (as was the widespread myth among many, especially in right wing circles) that Twitter’s content moderation/trust & safety efforts were driven mainly by extreme “woke” employees who were seeking to silence opinions and viewpoints they disagreed with. As we’ve discussed repeatedly, that’s never been the case. Twitter had a far more free speech-supporting position than any other site, and the trust & safety decisions were made based on what they believed was actually best for the site, which means trying to minimize hate and harassment as that drives both users and advertisers away.
A second big myth that Musk seems to have bought into is the idea that this is all a technical, rather than human, problem. And that he can just “hardcore” nerd harder his way through these challenges. But, that’s not true either. Yes, Twitter actually had some pretty sophisticated technology, which was mainly around scaling a massive many-to-many messaging system. But the real “product” innovation at Twitter was the human element, and the community that built up around it. And it was often that the community required the kind of moderation policies that Twitter put in place, otherwise the site would not have been nearly as useful or valuable to so many.
The key point in both of these things, though, is that the moderation policies are not being driven by ideological viewpoints of the employees of the company, but what actually worked best for Twitter. It’s unclear if Musk is realizing this as he speedruns the content moderation learning curve (such as by announcing his first big “innovation” in content moderation is “shadowbanning” — one of the main things his fans were sure he’d get rid of).
Either way, there’s a much larger point here. Elon bought Twitter because he felt that the current management was doing a terrible job with content moderation (among other things) and he thought it was obvious to him how to do it better. But he’s quickly learning that there are reasons that fences are put where they are, and you might not want to tear them down so quickly.
Anyway, for the first two weeks of his reign, Musk came to rely on Yoel Roth, a long time Twitter employee who was running trust & safety. Yoel knows the challenges of trust & safety better than just about anyone, and it seemed like a good thing that Musk appeared to trust him. However, Roth resigned, and has now published an op-ed in the NY Times that does an interesting job highlighting how you can’t actually just show up and run a website like Twitter the way you want and expect to stay in business. As Roth notes:
The truth is that even Elon Musk’s brand of radical transformation has unavoidable limits.
Roth then highlights three major outside forces that are well beyond Musk’s ability to control, even as he controls Twitter itself: advertisers, governments, and app store operators (i.e., Google and Apple). Each one has some interesting elements to them. We may not like the fact that any of these outside forces have so much power over Twitter (and I could make arguments for why all three are problematic), but the actual reality is that they do.
Advertisers (at least for now) remain critical to the business:
Advertisers have played the most direct role thus far in moderating Mr. Musk’s free speech ambitions. As long as 90 percent of the company’s revenue comes from ads (as was the case when Mr. Musk bought the company), Twitter has little choice but to operate in a way that won’t imperil the revenue streams that keep the lights on. This has already proved to be challenging.
Almost immediately upon the acquisition’s close, a wave of racist and antisemitic trolling emerged on Twitter. Wary marketers, including those at General Mills, Audi and Pfizer, slowed down or paused ad spending on the platform, kicking off a crisis within the company to protect precious ad revenue.
While Musk has whined about “activists” causing the advertisers to leave, and even implied in tweets that he might file lawsuits against the activists or “name and shame” the advertisers, this is simply the free market (and free speech!) at work. Businesses want to avoid brand risk, and especially when the returns from advertising on Twitter are low, why bother?
The reality of most social media is that this business (not social) reality has driven much of the decision making behind trust & safety teams and how they operate. And, I should be clear that it is rarely that advertisers are directly pressuring trust & safety teams to moderate content. In hours upon hours of interviews I’ve done with trust & safety professionals, there are very, very, very few examples where there was any direct pressure from the advertisers to make changes. But there’s a natural (and common sense) understanding that for advertisers to want to put their money into your site, they have to feel that the site is trustworthy and they won’t get burned.
Next up: regulators. We’ve been writing a bit about this of late as well. And Roth highlights the realities at play:
But even if Mr. Musk is able to free Twitter from the influence of powerful advertisers, his path to unfettered speech is still not clear. Twitter remains bound by the laws and regulations of the countries in which it operates. Amid the spike in racial slurs on Twitter in the days after the acquisition, the European Union’s chief platform regulator took to the site to remind Mr. Musk that, in Europe, an unmoderated free-for-all won’t fly. In the United States, members of Congress and the Federal Trade Commission have raised concerns about the company’s recent actions. And outside of the United States and the European Union, the situation becomes even more complex: Mr. Musk’s principle of keying Twitter’s policies on local laws could push the company to censor speech it has been loath to restrict in the past, including political dissent.
Regulators have significant tools at their disposal to enforce their will on Twitter and on Mr. Musk. Penalties for noncompliance with Europe’s Digital Services Act could total as much as 6 percent of the company’s annual revenue. In the United States, the F.T.C. has shown an increasing willingness to exact significant fines for noncompliance with their orders (like a blockbuster $5 billion fine imposed on Facebook in 2019). In other key markets for Twitter, such as India, in-country staff work with the looming threat of personal intimidation and arrest if their employers fail to comply with local directives. Even a Musk-led Twitter will struggle to shrug off these constraints.
While I think I’ve been pretty clear that I’m not at all comfortable with much of this regulatory oversight, especially when it touches on editorial discretion and speech issues (and when it appears to be about retaliation), it is a reality now. And Musk can’t just wish it away. Especially over in the EU, where they’ve built this entirely ridiculous structure for regulating content moderation issues online.
Finally, perhaps just as problematic is the power of Apple and Google as the gatekeepers to get on phones:
There is one more source of power on the web — one that most people don’t think much about, but which may be the most significant check on unrestrained speech on the mainstream internet: the app stores operated by Google and Apple.
While Twitter has been publicly tight-lipped about how many people use the company’s mobile apps (rather than visiting Twitter.com on a browser), the company’s 2021 annual report didn’t mince words: “Our release of new products … is dependent upon and can be impacted by digital storefront operators” that decide the guidelines and enforce them, it reads in part. “Such review processes can be difficult to predict and certain decisions may harm our business.”
“May harm our business” is an understatement. Failure to adhere to Apple and Google’s guidelines would be catastrophic, risking Twitter’s expulsion from their app stores and making it more difficult for billions of potential users to access Twitter’s services. This gives Apple and Google enormous power to shape the decisions Twitter makes.
Roth notes that Apple and Google take this role seriously, even if in patently ridiculous ways:
In my time at Twitter, representatives of the app stores regularly raised concerns about content available on our platform. On one occasion, a member of an app review team contacted Twitter, saying with consternation that he had searched for “#boobs” in the Twitter app and was presented with … exactly what you’d expect. Another time, on the eve of a major feature release, a reviewer sent screenshots of several days-old tweets containing an English-language racial slur, asking Twitter representatives whether they should be permitted to appear on the service.
Just as an aside, um, who the fuck searches for “#boobs” and what is wrong with them?
Anyway, much of this makes me… uncomfortable. We had some discussion about this when Parler was yanked from the app stores. It’s more troubling for Apple/iOS than Google, because Android does allow sideloading, even if it keeps making it more difficult. But, in the end, even if you’re not in the app store, you can access the services via the web (even on mobile). It would be nice if mobile app stores were more open, and there were more competition.
But, again, this is a current market reality.
All three of these outside forces could change over time. And Musk could take steps to help change them. But none will change quickly, and many of Musk’s actions over the last couple of weeks actually make it more difficult to avoid these issues, rather than less.
There are, of course, other outside forces at play as well, including a big one: users. If you don’t make your website welcoming, people will go elsewhere. No one signs on to a website looking to be harassed, abused, and yelled at.
Roth notes that a key reason he left Twitter was that Musk’s view of trust & safety did not seem to be driven by principles or carefully developed policies. Rather, it seemed focused on Musk’s whims of the day:
It’s this very lack of legitimacy that Mr. Musk, correctly, points to when he calls for greater free speech, and for the establishment of a “content moderation council” to guide the company’s policies — an idea Google and Apple would be right to borrow for the governance of their app stores. But even as he criticizes the capriciousness of platform policies, he perpetuates this same lack of legitimacy through his impulsive changes and tweet-length pronouncements about Twitter’s rules. In appointing himself “Chief Twit,” Mr. Musk has made clear that at the end of the day, he’ll be the one calling the shots.
It was for this reason that I ultimately chose to leave the company: A Twitter whose policies are defined by unilateral edict has little need for a trust and safety function dedicated to its principled development.
Of course, there’s quite a lot of irony here. One of the reasons Musk insisted he needed to take over was the false belief that the earlier trust & safety policies were driven by ideology, and that he needed to come in and set forth some basic principles to make it “fairer.” Yet the reality, as we see it, is that the old system was driven by thought-out policies with processes to enforce them. Not always policies you or I might agree with, and not always enforced all that well, in part because it’s impossible to do it well, but there were policies and there were processes.
And now Musk is basically doing it all by edict… or random polls.
Thus, we’re in this funny(ish) state whereby everything that Musk and his fans insisted was true was not… but now that Musk is in charge, he’s implementing things in exactly the way he thought they were implemented before and railed about.
Oh, and on that note, Roth drops this little tidbit in the middle of the article:
In response, Mr. Musk empowered my team to move more aggressively to remove hate speech across the platform — censoring more content, not less.
Huh. Look at that. Meanwhile, people are still yelling at me when I point out that the previous regime was more supportive of free speech than anyone realizes.
Florida governor Ron DeSantis appears to believe he’s the successor to Donald Trump’s short-lived throne. While Trump was president, DeSantis did everything he could to appeal the same voter base. Trump rather listlessly announced he’ll run again in 2024, but it’s a fair bet DeSantis will try to become Trump 2.0 if it appears the Republican base isn’t ready to ride Trump’s presidential Vomit Comet for another four years.
DeSantis has pushed through laws that violate the First Amendment in hopes of bypassing Section 230 immunity, targeting social media companies over perceived “anti-conservative” bias. He’s also decided the First Amendment shouldn’t apply to certain people and companies if they choose to espouse views that don’t align with his. That’s the gist of the Stop W.O.K.E. Act (since rechristened the “Individual Freedom Act” in an attempt to divorce itself from the rights-crushing it’s intended to inflict), which forbids speech if the speech is anything other than an echoing of the DeSantis party line.
This law has already been blocked twice by a federal court. In that decision, the court found in favor of the plaintiffs and said it was highly likely the new law was unconstitutional. Here’s what the Northern District of Florida said then, via Judge Mark Walker:
In the popular television series Stranger Things, the “upside down” describes a parallel dimension containing a distorted version of our world. See Stranger Things (Netflix 2022). Recently, Florida has seemed like a First Amendment upside down. Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely. But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely. Compare NetChoice, LLC v. Moody, 546 F. Supp. 3d 1082, 1084 (N.D. Fla. 2021), with § 760.10(8)(a)–(b), Fla. Stat.
Now, like the heroine in Stranger Things, this Court is once again asked to pull Florida back from the upside down. Before this Court is a motion for a preliminary injunction, asking this Court to enjoin a host of Government officials from enforcing portions of the Individual Freedom Act—a law that prohibits employers from endorsing any of eight concepts during any mandatory employment activity. Because the challenged provision of the Act is a naked viewpoint-based regulation on speech that does not pass strict scrutiny, Plaintiffs’ motion for a preliminary injunction, ECF No. 18, is GRANTED in part.
This lawsuit, filed by tech company Honeyfund, challenged the portions of the law that pretty much forbade it from engaging in practices aimed at increasing diversity in its workforce. This trampled all over the rights of private companies to enact policies and require training that aligned with their beliefs.
More to the point, the IFA does not ban all mandatory employee trainings. Nor does it ban mandatory trainings addressing certain concepts. No, the IFA only prohibits trainings that endorse the covered concepts. Indeed, the IFA grants employers free rein to hold mandatory trainings addressing any of the eight concepts so long as those trainings condemn or take no position on those concepts.
Take that idea further. Because the IFA covers any required activity, an employer could require every employee to read Woke, Inc., Inside Corporate America’s Social Justice Scam but could not require employees to read The Color of Law. Worse still, a nonprofit corporation devoted to promoting the idea that white privilege exists could not hold a required meeting at which it endorses the concept of white privilege. But a nonprofit holding the opposite view could freely hold meetings criticizing the concept of white privilege.
The law has been blocked again. (That’s thrice, for those of you counting at home in the King’s English!) Judge Mark Walker has granted an injunction to public university students and officials who sued over Stop W.O.K.E./IFA’s restrictions on their speech when discussing certain topics with students. And the decision [PDF] (via FIRE) opens with another reference to a well-known piece of fiction.
“It was a bright cold day in April, and the clocks were striking thirteen,” and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of “freedom.” To confront certain viewpoints that offend the powers that be, the State of Florida passed the so-called “Stop W.O.K.E.” Act in 2022—redubbed (in line with the State’s doublespeak) the “Individual Freedom Act.” The law officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of the opposite viewpoints. Defendants argue that, under this Act, professors enjoy “academic freedom” so long as they express only those viewpoints of which the State approves. This is positively dystopian.
The clock “strikes thirteen” most famously in George Orwell’s “1984.” The reference is in the footnote:
GEORGE ORWELL, 1984 at 1 (1961). In this case, Defendants’ “argument is like the thirteenth chime of a clock: you not only know it’s wrong, but it causes you to wonder about everything you heard before.”
This is only the opening paragraph. And if the court is citing “1984” to reference the government, its laws, and its arguments, it is not going to go well for a government residing in the United States.
The government is so far into the wrong here the court spends 139 pages repeatedly excoriating it for attempting to silence speech it doesn’t like and elevating speech it does. That’s not how this works, and Judge Walker makes sure DeSantis and his legislative co-conspirators know it.
At the center of this injunction is the amendments the “Individual Freedom Act” put into force to, well, eliminate individual freedoms. The law amended the Florida Educations Equity Act (FEEA) to prohibit “training or instruction that espouses, promotes, advances, inculcates, or compels” students or employees to “believe,” among other things, that inherent racism, racial privilege, and other forms of bigotry exist. It also forbids instructors from referencing privilege or racism, or suggesting things like reparations paid to descendants of slaves might be good idea.
In essence, the law hoped to prevent (under the threat of punishment) white people from feeling “guilty” for being a part of (or a beneficiary of) an inherently racist system. The state law says only certain speech is allowed when it comes to these subjects. Anything else breaks the law. The court says this isn’t how America works.
To begin with, the law is internally contradictory.
At oral argument, Defendants conceded that concept six—as mentioned above, that “[a] person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion”—is another way to describe affirmative action. When asked directly whether concept six is “affirmative action by any other name,” defense counsel answered, unequivocally, “Your Honor, yes.” Thus, Defendants assert the idea of affirmative action is so “repugnant” that instructors can no longer express approval of affirmative action as an idea worthy of merit during class instruction.
Which will lead to this:
Stated otherwise, you can discuss affirmative action as a historical fact, and you can certainly condemn it as a failed policy, but because the idea of affirmative action is so odious, so repugnant, so vile, and so dangerous that it offends the basic principles of common decency, you cannot have a guest speaker submit their views in favor of affirmative action, even to a class of law students.
As the court points out, this means even Supreme Court Justice Sonia Sotomayor would not be allowed to discuss her own personal experience on campus because she has views that conflict with the state government’s preferred views on affirmative action.
The law unequivocally decides which speech is protected based on the viewpoints expressed. Content-based restrictions have always been considered unconstitutional. The state wants judicial blessing for viewpoint-based censorship. The district court won’t allow it.
In short, the State of Florida cannot do an end-run around the First Amendment by declaring which viewpoints are so repugnant to lawmakers that their mere utterance, on a single occasion, is per se severe or pervasive and prohibiting their expression under an anti-discrimination law. Here, “[w]here pure expression is involved,” the FEEA’s prohibition on “training or instruction that espouses, promotes, advances, inculcates, or compels” students or employees to believe certain concepts “steers into the territory of the First Amendment.” For these reasons, unlike in Bishop, this second factor adds little weight to Defendants’ side of the scale. The State of Florida’s position as a public employer and its asserted interest in combatting racism or sexism does not justify enforcing a viewpoint-based restriction targeting protected speech.
The same people who tend to declare universities to be places where students go to get “brainwashed” are opposed to the robust discussion of opposing views. They only want one side presented: their side. Anything else, under this law, is an illegal act. Brainwashing is fine, says the governor and his legislative cohorts, so long as it’s the sort of brainwashing we like. The court says this is some bullshit.
According to the State of Florida, so long as professors avoid promotion of one side of a particular idea—or do the State of Florida’s bidding and condemn those ideas that the State has deemed unworthy— professors need fear no consequences from the State. But to step out of line during class and utter a single expression of approval of one of the State of Florida’s disfavored ideas is to risk discipline or even termination. In other words, the State of Florida says that to avoid indoctrination, the State of Florida can impose its own orthodoxy and can indoctrinate university students to its preferred viewpoint. This extravagant doublespeak flies in the face of “the invaluable role academic freedom plays in our public schools, particularly at the post-secondary level . . . .”
The court is also irritated by the state playing word games in hopes of salvaging the clearly-unconstitutional law [emphasis in the original]:
Defendants’ decision to avoid referencing any respected lexicon is unsurprising given that Defendants’ preferred construction of “objectivity” ignores any plain meaning of the term and fails to square with any commonsense understanding. Indeed, in Honeyfund, counsel for Defendants—who, as mentioned above, are the same lawyers now representing Defendants in the cases at issue here—relied upon the Merriam Webster Dictionary to define “objective,” noting that “ ‘to discuss a concept in an objective manner’ is, obviously, to discuss it by ‘expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudice or interpretation.’ ” Honeyfund, 2022 WL 3486962, at *14. But now, defense counsel ignores Merriam-Webster and doubles down on the idea that “objective” equals discussing without approval and/or criticizing or condemning the specified ideas.
And the state doubled down on its shifting definition of “objectivity” in this case.
Defendants further displayed their nonsensical reading of “objective” during the hearing on Plaintiffs’ motions. When asked whether a professor who wished to instruct on one or some of the eight concepts in an “objective” manner would run afoul of the challenged provisions by inviting knowledgeable guest speakers to discuss both the pros and the cons of one of the concepts, defense counsel argued that the “statute is very clear,” and you would have to analyze the two guest speakers “apart from each other, not necessarily in conjunction with each other.” In so doing, defense counsel suggested that a guest speaker who promoted one of the eight concepts as part of a classroom debate where all sides of the issue were represented would still run afoul of the law. Thus, according to defense counsel, “objective” instruction allows for only one side of the debate in Florida’s public universities—or for no debate at all.
The law is blocked. Again. The injunction goes into place. And because it’s so immediately obvious the plaintiffs are in the right, the injunction is not being stayed pending the inevitable appeal by the state. It’s not often that passed laws are this much in the wrong, but that seems to be the cottage industry Governor DeSantis is trying to cultivate.
In its conclusion, the court references “1984” one more time:
In this case, the State of Florida lays the cornerstone of its own Ministry of Truth under the guise of the Individual Freedom Act, declaring which viewpoints shall be orthodox and which shall be verboten in its university classrooms.
Florida aims to silence people its ruling party doesn’t agree with. The court won’t allow it.
One thing is crystal clear—both robust intellectual inquiry and democracy require light to thrive. Our professors are critical to a healthy democracy, and the State of Florida’s decision to choose which viewpoints are worthy of illumination and which must remain in the shadows has implications for us all. If our “priests of democracy” are not allowed to shed light on challenging ideas, then democracy will die in darkness. But the First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark.
Governor DeSantis is a big fan of speech he agrees with. Everything else he feels he should be able to legislate into nonexistence. He’s wrong. And he’s just a tinpot governor with dictatorial aspirations. Unfortunately, he has a lot of support in the state. Apparently many residents of Florida would prefer the state was more like Fidel Castro’s Cuba and less like the United States of America. Fortunately, the courts are the opposite of beholden. They are the bulwark against government abuse. DeSantis is learning this with every consecutive decision that blocks his performative lawmaking.
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Going to put this up front, because I expect a bunch of people to not read and assume something very incorrect: I think there are valid arguments (even pretty strong ones) for why it makes sense for social media platforms to allow Donald Trump on them (there are also valid arguments against it). But, conducting a poll is the stupidest possible way to make that decision. It’s Musk’s platform, and he’s free to run it however he wants, even making the stupidest possible decisions. But it should raise questions among its users whether or not they wish to embrace such a platform, and just how much damage Musk will do in pursuit of stunts.
Making serious decisions, which can have massive impact on people’s lives, through stunts is not just reckless, but it foreshadows much more dangerous decision-making to come.
Now, to the details: as you’re probably aware, over the weekend Elon Musk ran a poll on Twitter asking people whether or not Donald Trump’s Twitter account should be reinstated:
This is despite his earlier claim that no decisions would be made on changes to trust & safety policies or the reinstatement of accounts until a “content moderation council” could be convened:
While the poll started out with Trump heavily, heavily favored (which perhaps says something about Musk’s staunchest supporters), over the course of 24 hours, it moved more and more towards even, but ended (as you can see above) barely in the “yes” column. Musk then immediately announced that the public had spoken and he was reinstating the account, repeating the very, very stupid Latin phrase “vox populi, vox dei” (some recently departed Twitter employees informed me that he’s been saying this all the fucking time in meetings, and people are mocking him for it behind his back, but he seems to think it makes him sound cool).
A few minutes after that tweet went up, Trump’s account came back. As of me writing this, Trump has not tweeted again from the account. When asked, he has insisted that he’s staying on his own flailing platform Truth Social. According to SEC filings, part of Trump’s deal with Truth Social is that he signed a contract obligating him to use the site rather than other social media. There’s a literal clause in the agreement that his social media activity must appear exclusively on Truth Social for at least six hours. It’s in the section on “license agreement” and notes:
From December 22, 2021, until the expiration of 18 months thereafter, (the “TMTG Social Media Exclusivity Term”), President Trump has agreed to first channel any and all social media communications and posts coming from his personal profile to the Truth Social platform before posting that same social media communication and/or post to any other social media platform that is not Truth Social (collectively, “Non-TMTG Social Media”) until the expiration of “DJT/TMTG Social Media 6-Hour Exclusive” which means the period commencing when DJT posts any social media communication onto the Truth Social Platform and ending six (6) hours thereafter; provided that he may post social media communications from his personal profile that specifically relates to political messaging, political fundraising or get-out-the vote efforts at any time on any Non-TMTG social media platforms. Unless notice is given, the TMTG Social Media Exclusivity Term extends in perpetuity for additional 180-day terms.
Of course, Trump’s signature on a licensing agreement is about as trustworthy as Elon’s promise of no reinstatements until his content moderation council met.
For what it’s worth, in addition to reinstating Trump, Musk reinstated various other awful people, mocked the head of the ADL, Jonathan Greenblatt, (who I have policy differences with, but Musk’s doing so immediately resulted in a bunch of Twitter users gleefully sharing anti-Semitic comments, claiming Musk was signaling to them directly) and made it clear he is in favor of chaos for the sake of chaos with no concern over what harm it might do.
Well, there was one exception to that. Musk has said a few times now that he won’t reinstate Alex Jones, and when pressed on it, claimed that it was because “My firstborn child died in my arms. I felt his last heartbeat. I have no mercy for anyone who would use the deaths of children for gain, politics or fame.”
And, of course, this partly demonstrates the problem. Musk recognizes the potential harms in one area of trauma that he has personally experienced, but seems to not care one bit about harms others have experienced.
In some ways, it’s the worst of what people assume about content moderation on most websites: that it’s driven entirely by the whims of an out of touch billionaire CEO. In most cases, that’s not true. Here, Elon is making it clear that’s how it will work on his Twitter.
Perhaps equally problematic was that, this weekend, after Jordan Peterson played the “white man’s gambit” of arguing for less anonymity, and Jack Dorsey piped in to suggest that would be a bad idea, Musk popped in to note that “Verification through the payment system plus phones, but allowing pseudonyms is the least bad solution I can think of.”
Again, this is telling. Musk is focused on “the least bad solution” that he can think of, rather than, perhaps, talking to any of the many, many people who have actually studied this issue and found that forced verification is extremely dangerous for free speech, especially for those with legitimate reasons to fear for their safety. People speaking out against authoritarian rulers. People blowing the whistle on malfeasance. Victims of domestic violence or sexual assault calling it out.
But, again, Musk hasn’t experienced any of that personally, so why should it matter?
Bringing this back around to the point: it’s impossible to do content moderation well at scale. Everyone makes tons of mistakes. But there are real lessons out there on things that work well and things that are stupid and dangerous. And Musk is making it clear that he wants to ignore all of those lessons, and redo all the mistakes, perhaps making them worse in the process. It’s possible that he’ll run the learning curve and eventually land back where things kinda were before, but with less clarity and understanding, but we sorta predicted that back in April.
I’m not necessarily upset that Trump’s account is back (whether he tweets or not). I do think, however, the process by which Musk got there demonstrates a near total lack of concern for how any of this can and should work, and especially no concern for the harm he can do to others in the process.
Back when Twitter initially decided to issue a permanent ban on Trump, I wrote a long post detailing how such a decision could not be an easy one, and there were plenty of arguments against it. But, in the end, the various platforms had to weigh a variety of factors, including how responsible they wished to feel concerning the attempted overturning of an election. Similarly, when the Oversight Board was reviewing Facebook’s decision to ban Trump, we filed a comment that did not take a stand on either side of the central question, but did advocate for a much better process in how Facebook makes such a decision. We concluded that comment by noting:
There may not be any one right answer, or even any truly right answer. In fact, in the end the best decision may have little to do with the actual choice that results but rather the process used to get there.
And that takes us back to Musk’s decision making here. If you’re going to do content moderation and trust & safety, having some sort of underlying process and principles is important. That’s not to say they can’t change over time, or that they won’t face challenges as every possible edge case shows up, such that you realize that nearly every case feels like an “edge case” that doesn’t neatly play into the rules. But you need to have some sort of basic concepts behind what you’re doing.
Throwing it entirely open to a vote is, to put it mildly, crazy. I mean, for all of Musk’s silly pretentious “vox populai, vox dei” stuff, plenty of people have pointed out that the phrase originates from Alcuin of York in a letter to Charlemagne in 800, in which he warns that believing such a thing is dangerous:
“And those people should not be listened to who keep saying the voice of the people is the voice of God, since the riotousness of the crowd is always close to insanity.”
Of course, like so many things, there are situations where a “democratic” vote makes sense, and many where it does not. A purely democratic vote can be used to oppress a minority, for example. Also, a simple poll on Twitter… is not a representative sample. There are all sorts of problems with it. First of all, Musk set up a simple yes/no option, when it could be a lot more nuanced that. But by framing it the way he did, those are the only choices. Then there are the questions of who actually saw it and who voted. That’s not public at all.
Finally, for months (literally until a month ago), Musk insisted that Twitter was full of bots, not people. And, even here, he admitted partway through the vote that “bots” were voting. Though, of course, he insisted that it was only the people voting “no” who must be bots and “troll armies.” Again, that certainly does not suggest that anything about this poll is “the voice of the people.” Not only is he admitting that much of it is not, in his belief, he is publicly stating his own bias regarding what the correct answer should be.
Through all of this, Musk has made clear that the content moderation practices for Twitter are now whatever he thinks of, on a whim, that will be most entertaining for himself. He has no real process. He has no real principles. He does not care one bit about past lessons. He does not care about what damage or danger his whims may cause. None of that matters to him.
And voting is not how content moderation decisions should be made, at least not without significant effort and education going into the process. Merely asking people “yes or no” without detailing the tradeoffs, or the nuances, or the specific reasons why suggests a lack of concern not just for how all of this plays out, but for having an informed public weighing in at all.
He is, of course, free to do all of that (within certain limits). But it does not mean that people will enjoy being on is site, or that advertisers will feel comfortable putting their brands on the site. It has convinced me to spend less time there, as it does not feel safe at all, and I no longer have any confidence that there are people in a decision-making role at the company who can be trusted to want to do the right thing, even when the right thing may be impossible to do.
Musk does not care about doing the right thing. He cares about attention. It’s a choice he is free to make. But it’s not one that I need to support.
We’ve noted for decades how, despite all the political lip service paid toward “bridging the digital divide,” the U.S. doesn’t actually have any idea where broadband is or isn’t available. The FCC’s past broadband maps, which cost $350 million to develop, have long been accused of all but hallucinating competitors, making up available speeds, and excluding a key metric of competitiveness: price.
You only need to spend a few minutes plugging your address into the FCC’s old map to notice how the agency comically overstates broadband competition and available speeds. After being mandated by Congress in 2020 by the Broadband DATA Act, the FCC struck a new, $44 million contract with a company named Costquest to develop a new map, just unveiled for the first time.
According to the FCC, this new map is the first step in a long process to accurately identify where broadband is (or isn’t), kind of important for people making broad policy decisions:
“Our pre-production draft maps are a first step in a long-term effort to continuously improve our data as consumers, providers and others share information with us,” FCC chairwoman Jessica Rosenworcel said in a statement. “By painting a more accurate picture of where broadband is and is not, local, state, and federal partners can better work together to ensure no one is left on the wrong side of the digital divide.”
A first glimpse at the map shows many of the same problems we saw with the last map. It still doesn’t bother to mention price, a key metric in determining broadband accessibility. And it still claims service availability in a lot of locations that don’t have service. For example, I live a few miles from the center of Seattle under a Comcast monopoly, and the map still claims I can get Lumen (Centurylink) fiber:
Still, there’s several useful improvements this time around. For one, the FCC promises it will do a better job of holding ISPs accountable for false coverage claims. Two, the agency says it will stop using flawed methodology that declared an entire census block “served” with broadband if ISPs claimed that just one home in that census block could receive broadband.
That it took thirty years to get here tells you just how influential broadband industry lobbying has been. Telecom monopolies have spent decades lobbying against better maps and a more modern definition of broadband (currently 25 Mbps down, 3 Mbps up), knowing full well that a more accurate picture of competitiveness might give somebody in the federal government the crazy idea to try and fix it.
I’ve spent most of 2022 talking to states and city leaders trying to deliver better broadband, and most of them are very concerned about the challenge process the FCC is implementing to let third parties challenge industry claims.
Of particular concern is that many under-resourced, under-staffed, under-funded small ISPs, states, and municipalities won’t be able to afford to challenge industry claims, causing them to lose out on a once in a lifetime broadband funding opportunity made possible via the $50 billion in broadband subsidies created by COVID relief and infrastructure legislation:
“I think states that have their stuff together may be able to respond,” she said. “But states that don’t have strong broadband offices with a geographic information system (GIS) component will be hard-pressed to respond. I am hopeful the data will be more accurate from the ISPs, but the FCC left lots of wiggle room for them. Lots of it.”
Maine and New York, for example, have built their own elaborate broadband mapping and confirmation systems after decades of frustration with terrible FCC data. They have the staff, money, and resources to challenge false Comcast claims that they offer service in select areas.
But for every New York and Maine, there are countless states/cities/towns that will either lack the resources and expertise to file meaningful challenges, or lack the interest to stand up to monopolies. Which is to say it’s going to be an ongoing project to ensure the integrity of this data in the face of monopoly influence, and FCC history doesn’t leave a lot of room for optimism on that front.
The new maps will be used to prioritize who gets the billions in broadband funding coming down the road. And telecom monopolies are already busy exploiting state corruption, working overtime in a variety of ways all across the country to ensure the majority of that money goes to them, and not to absolutely any company, municipality, cooperative, and utility looking to challenge them.
The Biden FCC insists this is just the first step in a long process aimed at improving better data. And it’s a big improvement just to see the government admit that past data has been lacking. At the same time, it’s absolutely gobsmacking that 35 years and $400 million later and the federal government has only just started trying to use hard data to inform broadband policy decisions.
There’s a reason it took this long to get here, and it’s not simply because it was too difficult, expensive, or time consuming. It’s because U.S. telecom monopolies, and the armies of think tankers, consultants, lobbyists, and other proxy voices they employ, have waged a successful, multi-decade war to downplay monopoly power, gut federal oversight, and protect a very broken (but very profitable) status quo.
