Funneling Trump Rally Attendees Directly Into A Violent Anti-Trump Crowd Costs Officers Their Qualified Immunity

from the DO-NOT-CONGRATULATE dept

Law enforcement officers have no duty to protect citizens. So many offer up "protect and serve" as a credo, but the Supreme Court ruled cops have no obligation to uphold the first half of that saying and law enforcement agencies have made it pretty clear the second half isn't going to be getting much attention either.

While officers may have no obligation to protect citizens, they do have to ensure they don't make things worse for those they're serving. The line isn't drawn especially clearly, but if you're policing the denizens of a frying pan, you definitely shouldn't push them into the fire. (h/t Volokh Conspiracy)

The frying pan in this Ninth Circuit Appeals Court decision [PDF] was a June 2016 Trump rally held in San Jose, California. The fire was the anti-Trump protesters gathered outside the arena. Aware that Trump rallies tended to produce violent clashes (of ideologies, but mainly fists and other thrown objects), 250 officers were sent to patrol the scene.

Things started to go badly quickly. According to the plaintiffs, the city instructed officers to stand back and let pro- and anti-Trump forces work it out between themselves. The rationale? "Intervention might cause a riot." There is some pragmatism to this statement, but not a whole lot of wisdom. Either way, it does clearly show the city understands officers have no duty to protect. If beatings were going to occur on their watch, they weren't going to jump in the middle of it and possibly become part of the problem.

But it was clear to officers anti-Trump protests tended to include violent acts directed at pro-Trump rally attendees. It was even more clear in this case, as officers witnessed violent acts (or had acts reported to them) but refused to intervene. In fact, the 250 officers racked up only three arrests between them -- and every one of those included an "assaulting an officer" charge.

The only time the officers appeared to step up was to "assist" pro-Trump rally attendees make their way out of the arena… and directly into the crowd of violent protesters.

Two Attendees—Hernandez and Haines-Scrodin—claim that San Jose police “directed [them] to walk through the antiTrump protesters, rather than . . . allow[ing] [them] to turn south, in the direction of safety.” “Soon after following the[se] directions . . . , [they] were struck repeatedly in their faces and heads by anti-Trump protester, Victor Gasca.” “Several other anti-Trump protesters also battered Hernandez and Haines-Scrodin, while Gasca kept up his assault.” As a result, “Hernandez suffered a broken nose [and several] abrasions,” and “Haines-Scrodin . . . suffered [various] bodily injuries.”

Another Attendee, I.P., claims he experienced similar violence due to the City Defendants’ poorly conceived crowd-control plan. Just like Hernandez and Haines-Scrodin, he “exited the east-northeast exit of the . . . Convention Center, where a line of police officers prevented [him] from turning right, to safety” and instead “directed [him] to turn left, into the anti-Trump protesters.” “I.P. was struck in the back of his head” by one protester and “tackled . . . to the ground” by another.” “After being attacked, I.P. made his way [back] to [the] police skirmish line, and was only later allowed to cross the line to safety.”

These allegations are sufficient to survive a qualified immunity defense… twice. The district court found the officers' actions could not be excused under two theories. First, it could be credibly alleged the department did not adequately plan for the event, eventually resulting in this debacle. Alternately, it could be argued the officers increased the risk of harm by funneling rally attendees directly into a crowd that meant to do them harm. Either way, officers created this danger to leaving attendees and that particular Constitutional point has been settled for more than a decade.

The officers argued they created no more danger than already existed. Their defense was basically this: anti-Trump protesters would have beaten up pro-Trump rally attendees whether or not we showed up to "police" the event. The appeals court vehemently disagrees.

The argument proves too much. If the Officers could avoid liability because the Rally was already dangerous and the Attendees were bound to be hurt, so too could the officer in Wood on grounds that the plaintiff was traveling through a high-crime area, the officers in Penilla because the plaintiff was already severely ill, and the officer in Kennedy on grounds that the plaintiff’s neighbor was known to be unstable and violent. Under the Officers’ theory, liability would only attach when an official does “more than simply expose the plaintiff to a danger that already existed.”

What happened here, the court reminds the defendants, is that officers refused to let attendees steer away from the protesters to find other ways to exit the rally. Indeed, officers directed exiting attendees directly into the anti-Trump crowd. The danger may have already existed, but officers ensured attendees would have to face that danger head on.

Attendees allege here they would have made it “to safety” had the Officers not affirmatively directed them into the crowd of protesters. Accordingly, they have alleged sufficiently this prong of their state-created danger claim.

Not only does the state-created danger claim survive, but so do the plaintiffs' allegations of deliberate indifference.

Like the officers in Wood, Munger, and Kennedy, the Officers here were aware of the danger to the plaintiffs—they knew the anti-Trump protesters posed an immediate threat to the Attendees. According to the FAC, “as early as [6 p.m.] the day of the Rally, the San Jose police warned all officers deployed around [the] Rally that assaults had already been reported outside the [Convention Center].” And throughout the Rally, the Officers “witnessed the many violent criminal acts perpetrated by dozens of anti-Trump protesters” and yet continued to “direct[] [the Attendees] into the mob.” The allegations here, if true, demonstrate the Officers “act[ed] with deliberate indifference to a known [and] obvious danger.” Patel, 648 F.3d at 971–72 (citation and internal quotation marks omitted).

Indeed, the Officers’ actions are in some ways even more culpable than those of the officer in Kennedy. The Court there found the officer was deliberately indifferent because he was aware of Michael’s past acts of violence—that he “had . . . beaten [his girlfriend] with a baseball bat” and had once “li[t] a cat on fire.” Kennedy, 439 F.3d at 1064. Here, the Officers were not only aware that Trump rallies had drawn violent crowds in the past but had also received reports of violence on the day of the Rally and witnessed the violence firsthand during the Rally.

This is what happens when officers read the 2005 Supreme Court decision on "protect and serve" and decide it means they can do the exact opposite ("ignore and endanger?") and still escape liability. They can't, not when the violations are this blatantly obvious. There were other exit paths available to rally attendees. Officers decided they had only one -- one that ran right through people just waiting to take a swing at people whose politics they disagreed with. And for that, they'll be forced to defend themselves against these allegations and possibly allow San Jose taxpayers to find out exactly how expensive deliberate indifference is.


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  • identicon
    Daydream, 7 Aug 2018 @ 4:03pm

    Huh, they deliberately blocked the way for those who wanted to leave, and instead forced them to go near the violent anti-Trump protesters?

    If it were the other way around, if the police were bringing individual anti-Trump protesters over to the peaceful Trump rally, I would have said that maybe they were trying https://www.xkcd.com/438/ .

    (Weird; I would have thought it'd be the pro-Trump crowd who would be violent and the anti-Trump who would be 'good guys'. Why were the violent ones violent and why were they in the same place as a peaceful rally?)

    reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 7 Aug 2018 @ 4:25pm

      Re:

      In the end, both sides are violent, depending on who holds the various pendulums of power in that region. In this case, in a hotly liberal area like the south bay area, the Pro-Trump side is disadvantaged, and so its is the emboldened, more numerous anti-trump protestors that are emboldened and become violent. They have the mob on their side. With the police not generating a safe travel corridor, and funneling rally attendees into the violent protestors, and not subduing the actively violent protestors, the violence is only more emboldened.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2018 @ 4:29pm

      Re:

      Sorry, but both sides have some rather extreme and violent idiots. Additionally, both sides also have some reasonable and hopefully intelligent individuals. But at a pro-Trump event, guess which subset of the opposing side is likely to arrive there in protest?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Aug 2018 @ 5:02pm

        Re: Re:

        Pretty much this. Both sides are a problem and for more reasons that their respective violent factions. Simply calling them "sides" demonstrates a huge part of the problem.

        Intelligent discourse is all but dead in politics. Violence is the new form of "debate".

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Aug 2018 @ 6:36pm

        Re: Re:

        Sorry, but both sides have some rather extreme and violent idiots.

        Are we talking about the pro-Trump and anti-Trump sides, or police and non-police?

        (Were things reversed and people were forcing police to go somewhere they don't want to, the trial would already be done.)

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2018 @ 7:05am

      Re:

      The both sides argument .. isn't it wonderful.

      In a situation where mental midgets meet to determine who is more dumber, we attempt to extract political affiliation in the ever ill fated blame game.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 8 Aug 2018 @ 9:30am

      Re:

      Antifa are anti-Trump, and about as violent as German Brown Shirts in the late 1920s and early 1930s. Which is ironic given they claim to be literally anti-fascists.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Aug 2018 @ 9:39am

        Re: Re:

        Oh please.

        Antifa is the logical outcome of the right-wing 2nd amendment nutjobs showing up everywhere with their guns, just daring someone to challenge them. Short-sighted dipshits that thought everyone else was a snowflake and wouldn't *also* exercise their 2nd amendment rights.

        You reap what you sow. If you go out looking for a fight, expect that at some point someone will take you up on it.

        reply to this | link to this | view in chronology ]

        • icon
          Hugo S Cunningham (profile), 8 Aug 2018 @ 10:04am

          Re: Re: Re:

          The Second Amendment does not empower aggressors to shoot down people they don't like, and NRA types have not been doing so (or we have heard about it by now). The masked stormtroopers of Antifa could claim a tit-for-tat relationship to masked KKK thugs, except that masked KKK thugs have gotten rather scarce in recent years.


          To the man with a hammer, everything is a nail. To the bully motivated by antifascism, everything is fascism.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Aug 2018 @ 10:19am

            Re: Re: Re: Re:

            The Second Amendment does not empower aggressors to shoot down people they don't like, and NRA types have not been doing so

            They're getting what they're advocating for - an armed society looking to protect their own interests. It's not like Antifa is any different than the NRA. They both share a common love for the second amendment - surely we don't think one side should be able to show up armed while the other should not, do we?

            reply to this | link to this | view in chronology ]

            • icon
              Cdaragorn (profile), 8 Aug 2018 @ 12:12pm

              Re: Re: Re: Re: Re:

              The number of false conclusions you're coming to in this is just astounding. People choosing to act violently and people choosing to own guns have absolutely nothing to do with each other and both of those conditions exist completely independent of the other all over the place as proof of that.
              I also find it hilarious that you ignore the last 200 years of history so you can pretend that something that hasn't changed at all is somehow the cause of this wave of violence.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 8 Aug 2018 @ 12:50pm

                Re: Re: Re: Re: Re: Re:

                People choosing to act violently and people choosing to own guns have absolutely nothing to do with each other and both of those conditions exist completely independent of the other all over the place as proof of that.

                Sure. But the point you're missing is that the people advocating for carrying weapons everywhere because they might need to "stop a robbery in progress" (or insert your favorite NRA excuse) seem to be the ones shitting in their MAGA-drawers over Antifa doing exactly that.

                I just find it funny that so many badass 2A folks are so scared shitless of Antifa. I thought libs were snowflakes?

                reply to this | link to this | view in chronology ]

                • identicon
                  Constantine, 8 Aug 2018 @ 4:15pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Carrying a weapon for my protection (NRA) and assaulting people for saying something I don't like (Antifa), are not the same in any way, shape, or form. The fact that you conflate the two makes me question your intelligence.
                  Antifa are a bunch of pasty white, skinny-jean wearing cunts living in their parents basement, that hide behind their women when people fight back and only attack when they have numerical advantage and when their opponents are unarmed.
                  If the "badass 2A folks" were actually there with their weapons, Antifa wouldn't stand a chance. You notice they (Antifa) never show up in open-carry or concealed carry states, because they know as soon as they started assaulting people, they'd be cannon fodder. They like to show up in pussified left-coast towns like Berkeley and assault unarmed people going to hear someone speak, because they know that no one will be armed and the police will stand around and watch. They are gutless, spineless, nut-less turds and hopefully people will get fed up and start kicking the shit out of them ASAP.

                  reply to this | link to this | view in chronology ]

                  • icon
                    Thad (profile), 8 Aug 2018 @ 4:40pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    You notice they (Antifa) never show up in open-carry or concealed carry states,

                    They were in Charlottesville.

                    They are gutless, spineless, nut-less turds and hopefully people will get fed up and start kicking the shit out of them ASAP.

                    Tough talk for a guy on an Internet comments section.

                    Is "Constantine" your real name?

                    reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 8 Aug 2018 @ 7:43pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Bring it on fat boy.

                    reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 9 Aug 2018 @ 5:27am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I love your writing - can I send you money?

                    reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 8 Aug 2018 @ 10:40am

        Re: Re:

        Yes, and the trump crowd is completely peaceful in comparison.

        How many anti-trump protesters have run over people with their vehicles?

        reply to this | link to this | view in chronology ]

        • icon
          Hugo S Cunningham (profile), 8 Aug 2018 @ 5:29pm

          Re: Re: Re:

          The car-killer in Charlottesville is being prosecuted for murder, without political controversy. How many of the San Jose stormtroopers are being prosecuted (apart from the three dumb enough to attack the cops who were on their side)?

          reply to this | link to this | view in chronology ]

  • identicon
    Nemo, 7 Aug 2018 @ 5:02pm

    Just an "isolated incident" involving a "few bad apples"

    Nothing to see here, people, move along, move along.

    And no one had better mention feeling less safe at the sight of a cop, either. That is the /real/ crime, not trusting the police to keep you safe.

    Not a mob of 250 cops sending innocent people into another violent mob, to meet whatever fate had in store for them there. That's ok, because #Bluelivesmatter (more than yours), and #Backtheblue, as well, because if you don't, fine, upstanding police might not be protected enough by all the special protections they have.

    Playgrounds and suburbs are already a war zone, the police remind us, although where the craters and mangled corpses in jumbled wreckage are, I have no idea.

    Back the Blue; it's good for them, and okay for you.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 7 Aug 2018 @ 5:18pm

      Re: Just an "isolated incident" involving a "few bad apples"

      "And no one had better mention feeling less safe at the sight of a cop, either."

      Why not? If people have had bad experiences with cops, or follow the various websites that depict the many bad acts by cops feel less safe around cops, why is that wrong?

      Right, you believe that cops are good, and our country right or wrong. Well, not all of us feel that way, and it is perfectly normal to love ones country, but dislike when they do wrong.

      "And no one had better mention feeling less safe at the sight of a cop, either.">

      Or what?

      reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 7 Aug 2018 @ 5:34pm

        Re: tl;dr

        I...didn't think the sarcasm was very subtle.

        reply to this | link to this | view in chronology ]

        • icon
          Anonymous Anonymous Coward (profile), 7 Aug 2018 @ 5:54pm

          Re: Re: tl;dr

          Well, maybe. I didn't detect sarcasm, I smelled anger. Then my anger detector might be off.

          reply to this | link to this | view in chronology ]

          • identicon
            Christenson, 7 Aug 2018 @ 6:22pm

            Re: Re: Re: tl;dr

            Angry Satire, it's a thing you know!

            And that one is *not* the example for Poe's Law.

            reply to this | link to this | view in chronology ]

          • identicon
            Nemo, 7 Aug 2018 @ 6:52pm

            Re: Re: Re: tl;dr

            And here I thought that if the quotes weren't a tip off that I was quoting police supporters, the Barbrady quote I led off would do it.

            However, I can't help but wonder how you came to conclude that a Blubacker would call any group of police a "mob", let alone admit that #bluelivesmatter does indicate that their lives matter more.

            And how the hell did everyone miss the nod to the Stallone Dredd?

            reply to this | link to this | view in chronology ]

        • identicon
          Nemo, 7 Aug 2018 @ 6:26pm

          Re: Re: tl;dr

          Neither did I, or I would have spoilered my sarcasm.

          ACC may rest assured that I am not viewing the world through brand-new BluBackers.

          reply to this | link to this | view in chronology ]

    • identicon
      Unanimous Cow Herd, 7 Aug 2018 @ 7:49pm

      Re: Just an "isolated incident" involving a "few bad apples"

      "Playgrounds and suburbs are already a war zone, the police remind us, although where the craters and mangled corpses in jumbled wreckage are, I have no idea."

      Chicago

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 8 Aug 2018 @ 9:32am

      Re: Just an "isolated incident" involving a "few bad apples"

      It's basically Pokemon: Police Edition. Contain, capture, then let them fight.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Comment is free here! -- So is the Censoring! All , 7 Aug 2018 @ 5:03pm

    Same as when forced through Techdirt's gauntlet of rabid dogs.

    As I've mentioned once or twice, dissent is not treated fairly here, but has comments censored, while the fanboy-pirate-trolls are allowed to write whatever wish without any ever being hidden, let alone reprimanded.

    Sure, it's a less risky gauntlet but still exact analogy.

    Oh, spare me that I don't have to write here, as the principle is clear: UNFAIR HIDDEN EXERCISE OF PARTISAN POWER.

    And it's always done by those who most often claims open to discussion and love the First Amendment.

    reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 7 Aug 2018 @ 5:12pm

      Moderation is a platform operator saying “we don’t do that here”. Discretion is you saying “I won’t do that there”. Censorship is a government agent saying “you can’t do that anywhere”.

      (BTW: I now have that entire spiel on a text expander macro just for comments like yours. Get used to seeing it.)

      reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 7 Aug 2018 @ 5:19pm

        Incidentally...

        The terms of service on InfoWars, of all sites, spells this concept out:

        Remember: you are a guest here. It is not censorship if you violate the rules and your post is deleted. All civilizations have rules and if you violate them you can expect to be ostracized from the tribe.

        (Note: The link goes to an archived version of the TOS page. I am not about to give InfoWars any traffic.)

        reply to this | link to this | view in chronology ]

        • identicon
          Unanimous Cow Herd, 7 Aug 2018 @ 7:52pm

          Re: Incidentally...

          In the realm of the 1st Amendment, you are correct. You are absolutely wrong in every other respect.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 8 Aug 2018 @ 5:38am

            Re: Re: Incidentally...

            So in the realm that only matters for this academic discussion he's right. But you feel like he's personally attacking you so you still want to complain?

            reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Aug 2018 @ 6:35pm

        Re:

        Censorship is a government agent saying “you can’t do that anywhere”.

        That's your opinion, not a fact. dictionary.com, Merriam Webster, Wiktionary all have definitions covering non-government actions. Dictionary.com calls a censor "any person who supervises the manners or morality of others."

        In other words, keep that macro ready, because you're walking against the crowd with your definition. You can declare success when the phrase "government censorship" is agreed as redundant.

        (That said, I'm laughing at the irony of that Infowars quote. It's fair to use their definition against them.)

        reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 7 Aug 2018 @ 6:55pm

          you're walking against the crowd with your definition

          Oh, cool, I’m a radical now. When do I get to kick the asses of Courtney Love and Marilyn Manson?

          But references to late-’90s alt-rock aside, I stand by what I said. Moderation and discretion, as outlined in my spiel, could technically be referred to as “censorship” if you really want to get anal about it. True censorship—the kind that the First Amendment was written to protect—is neither moderation nor discretion.

          You have the choice to act like an asshole on a platform that hosts your speech. If you choose to do it and the platform boots you, that is moderation. If you choose not to do it, that is discretion. If you choose to do it and the government/legal system tries to punish you for it so you never do it ever again, that is (attempted) censorship.

          reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 7 Aug 2018 @ 7:00pm

            Re:

            True censorship—the kind that the First Amendment was written to protect [against]…

            Geez, I was so busy planning out things for my new radical status that I left out the most important word in that sentence. That’ll teach me to avoid the dreamer’s disease.

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 7 Aug 2018 @ 7:51pm

            Re:

            Moderation and discretion, as outlined in my spiel, could technically be referred to as “censorship” if you really want to get anal about it. True censorship—the kind that the First Amendment was written to protect—is neither moderation nor discretion.

            You're welcome to your own definition, but the non-government defintions referenced are not some obscure archaic things included as footnotes for completeness; it's not "anal" to say non-government actions can qualify. Of course the First Amendment won't protect us from such (so far it's been the opposite—platforms have a First Amendment right to moderate). It specifically limits congress, not all of us.

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 7 Aug 2018 @ 8:15pm

              Re: Re:

              the non-government defintions referenced are not some obscure archaic things included as footnotes for completeness; it's not "anal" to say non-government actions can qualify.

              A bookstore refusing to sell a certain book can be a form of censorship, but it is also moderation—a platform (the bookstore) choosing to say that a specific form of expression (the book) is not welcome on, and will not be associated with, that platform. I can refuse to spout obscenities here on Techdirt, which can be a form of censorship, but it is also discretion—my choosing not to use certain words on a platform so that I look like less of a fucking asshole than I really am. (…shit, there goes my discretion.)

              Government intervention in the publication and distribution of protected speech and expression is censorship and nothing else. The force of law preventing speech from being shared or even made cannot be euphemised away, and it sure as hell cannot be called “discretion” or “moderation”. I stand by my spiel and I will continue to use it until Mike puts it in the spamfilter with Blue’s ramblings and Hamilton’s insanity.

              reply to this | link to this | view in chronology ]

              • identicon
                Christenson, 7 Aug 2018 @ 8:41pm

                defining censorship

                Censorship, generally, means forbidding certain speech and making consequences for it. We Techdirt wonks think that means the gubmn't, but...

                My high school definitely censored the yearbook and school newspaper.

                And we definitely talk about critics self-censoring.

                I'd also call the ban on live hyperlinks in Techdirt's comments censorship, but not in a pejorative sense. I've seen my half-completed comments disappear when I'm all thumbs, thank you for censoring those, Techdirt. Another website I know shadow-bans the famous seven curse words of the FCC; we call it auto-nanny, but it's really censorship.

                But most of what is happening is really moderation... readers flag stuff as bad, and it sits largely unread. That's even more true with the "first word" and "last word" flags, which promote some stuff.

                reply to this | link to this | view in chronology ]

                • icon
                  Stephen T. Stone (profile), 7 Aug 2018 @ 11:28pm

                  Re: defining censorship

                  My high school definitely censored the yearbook and school newspaper.

                  I would call that an edge case in re: the difference between “censorship” and “moderation”. While it can be seen as both, the position of a school as a state institution makes figuring out which side to put it on a challenge. Does the school have a right to moderate the school newspaper? I would guess there are legal rulings on the matter, but I am too damn exhausted to look that up right now.

                  we definitely talk about critics self-censoring

                  Again, that is discretion. However, I am willing to break out of my prior orthodoxy on this point and admit to an exception: discretion caused by threats of violence. That shit is censorship, pure and simple. (See? I can change my mind!)

                  the ban on live hyperlinks in Techdirt's comments

                  LOLwut.

                  I've seen my half-completed comments disappear when I'm all thumbs

                  Again: LOLwut.

                  Another website I know shadow-bans the famous seven curse words of the FCC; we call it auto-nanny, but it's really censorship.

                  That is the platform operator moderating what speech is acceptable under the rules of the platform. You are free to post those words anywhere else that would host them—including Techdirt, if’n you have the guts.

                  most of what is happening is really moderation... readers flag stuff as bad, and it sits largely unread. That's even more true with the "first word" and "last word" flags, which promote some stuff.

                  See? Now you get it.

                  And thanks to that bit up there about threats of violence, I’ve altered my little spiel:

                  Moderation is a platform operator saying “we don’t do that here”. Discretion is you saying “I won’t do that there”. Censorship is someone saying “you can’t do that anywhere” alongside threats of either violence or government intervention.

                  reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 8 Aug 2018 @ 6:43am

                    Re: Re: defining censorship

                    I do want to chime in on self-censorship is far too often yelled about by certain groups.

                    Most 'self-censorship' is really "Oh we didn't know people would take it that way" and make changes to things to get back to their true intent.

                    An artist who bleeps himself in a radio edit is 'self-censoring' as it's clear they want to use the words in their original work but 'keeping it clean' for a wider audience.

                    An artist that redraws or retracts a character that was accidentally supporting some racist, sexist or other unintended message is just making a correction.

                    reply to this | link to this | view in chronology ]

                    • icon
                      Stephen T. Stone (profile), 8 Aug 2018 @ 11:20am

                      Re: Re: Re: defining censorship

                      Like I said, discretion. “I won’t do that there” can mean any of the examples you listed above: “I won’t say this stupid thing on Twitter”; “I won’t say these words on the radio”; “I won’t write this character in that way again”.

                      If discretion is triggered by threats of violence, however—“I won’t say this stupid thing on Twitter because I’ll get death threats from assholes”—it becomes flat-out censorship.

                      reply to this | link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 8 Aug 2018 @ 7:27am

                    Re: Re: defining censorship

                    While it can be seen as both, the position of a school as a state institution makes figuring out which side to put it on a challenge.

                    You seem hesitant to fully accept that something can be both, though you've said it a few times. Your example is censorship, and perhaps also "moderation" (depending on the details... something like a public financial report wouldn't count because it would already be "moderate", even if the administration doesn't want that information easily accessible).

                    I'll leave it to the courts to determine whether your example is illegal censorship, and to the public to determine whether it's acceptable. It's not relevant to this discussion.

                    reply to this | link to this | view in chronology ]

                    • icon
                      Stephen T. Stone (profile), 8 Aug 2018 @ 11:14am

                      You seem hesitant to fully accept that something can be both, though you've said it a few times.

                      No, I am not hesitant. The position of a public school as a government institution makes harder the determination of whether a refusal to run content in a school newspaper is censorship alone or can also be considered moderation. Such a situation is complicated and, admittedly, a bit over my head.

                      reply to this | link to this | view in chronology ]

                      • icon
                        Stephen T. Stone (profile), 8 Aug 2018 @ 11:21am

                        Re:

                        That said: I do appreciate people taking my shit to task here, as it has given me the chance to better articulate, inform, and alter my views as I consider new perspectives and information. 👍

                        reply to this | link to this | view in chronology ]

                  • identicon
                    Christenson, 8 Aug 2018 @ 9:26am

                    Re: Re: defining censorship

                    Hot Damn! I've changed his fucking mind! lol, the funny part about auto-nanny is that it's on a porn site chat and it's an accident that came along for the ride when they replaced chat.

                    My school was public, but there are plenty of private ones, too... the example I have in mind is one day the school newspaper printed a bit of sexual innuendo, and we all knew about it because of the black magic marker line through it on all the copies, effectively Streisanding it. The legality of this never crossed anyone's mind; the kids involved were in trouble over it and that was what we all expected.

                    There's definitely some overlap between moderation and censorship; I still quibble with your definitions.
                    Moderation includes "we don't do that here", but also includes the comment voting system, replies from the site owners, and *can* include censoring (completely removing) content, such as Techdirt never showing spam and my all thumbs ill-formed submissions. Censorship is completely removing content, involuntarily, usually with at least the threat of consequences. Recall we had network censors in the 1960s.

                    reply to this | link to this | view in chronology ]

                    • icon
                      Stephen T. Stone (profile), 8 Aug 2018 @ 11:16am

                      Moderation includes "we don't do that here", but also includes the comment voting system, replies from the site owners, and can include censoring (completely removing) content, such as Techdirt never showing spam and my all thumbs ill-formed submissions.

                      All of those things are still moderation/“light” censorship. Our usual goatfucking trolls can go print their same comments anywhere else that would host them, if they had the guts and the brains to do it. I view censorship in a much stricter light—that is, as an attempt to prevent others from being able to speak their mind anywhere as opposed to a single platform.

                      reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 8 Aug 2018 @ 6:21am

              Re: Re:

              If the platform you are using is "censoring" you move to another platform.

              Censorship is a problem when it's your government doing it because you can't easily just click a back button and go live under a different government.

              If TechDirt, Facebook, or YouTube is your life and you are having conniptions over your ability to speak freely in someone else's 'house' how about you turn off your computer for a while and live in the real world.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 8 Aug 2018 @ 7:33am

                Re: Re: Re:

                If TechDirt, Facebook, or YouTube is your life and you are having conniptions over your ability to speak freely in someone else's 'house' how about you turn off your computer for a while and live in the real world.

                I think you're misunderstanding. We're talking about the definition of censorship, not the acceptability of such. Sure, those sites are free to censor, unlike the government (of course, when they make bad decisions we can still bitch about it elsewhere; their freedom to censor shouldn't free them from criticism).

                reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 8 Aug 2018 @ 8:12am

                  Re: Re: Re: Re:

                  The text book definition of censorship taken in a vacuum of academic study... sure.

                  But this discussion isn't in a vacuum, it wasn't triggered by a level headed discussion about the merits of censorship.

                  This is a frothing at the mouth troll or mentally stunted man-child yelling about censorship as if it's their god given right to spew shit everywhere and everyone else is forced to eat it.

                  reply to this | link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 8 Aug 2018 @ 10:48am

                  Re: Re: Re: Re:

                  While what you type is not incorrect, it is possible you are overlooking the very real issue where some people actually think there are laws saying private companies are not allowed to censor them. There is no such law in the US. And then there are some who think the 1st amendment says they can not be criticized for their speech.

                  reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2018 @ 5:19pm

      Re: Same as when forced through Techdirt's gauntlet of rabid dogs.

      Here, have a free downvote since you didn't come here to discuss, but to complain that:
      *We don't treat you fair
      *Mike doesn't treat you fair
      *Mike has no right to moderate
      *We have no right to downvote your off topic comments
      *We are all reading the constitution wrong and you have a sovereign right to do... something?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2018 @ 5:31pm

      Different lyrics same tune.

      Getting born in the state of Mississippi
      Papa was a copper, and her mama was a hippy
      In Alabama she would swing a hammer
      Price you got to pay when you break the panorama
      She never knew that there was anything more than poor
      What in the world does your company take me for?
      Black bandanna, sweet Louisiana
      Robbing on a bank in the state of Indiana
      She's a runner
      Rebel, and a stunner
      On her merry way saying baby, watcha gonna?
      Looking down the barrel of a hot metal forty-five
      Just another way to survive

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Aug 2018 @ 5:47pm

        Re: Different lyrics same tune.

        So I'm really not sure, are you just posting that to prove that copyright is good? Or bad?

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2018 @ 6:18pm

      Re: Same as when forced through Techdirt's gauntlet of rabid dogs.

      Yes, mean comments or clicking a flag button are exactly the same as actual violence.

      reply to this | link to this | view in chronology ]

    • identicon
      Nemo, 7 Aug 2018 @ 6:44pm

      Re: Same as when forced through Techdirt's gauntlet of rabid dogs.

      You do realize that you are not discussing the topics of the article, right? Your sole connection to the post at all is that you misrepresent police sending innocent people into a hostile, violent crowd, where many were actually beaten to your inability to post things voluntarily here with the site protecting you from users flagging you into oblivion for saying stupid things.

      And I know you say stupid things, because you said this stupid thing in a tone that suggests that you believed it was an intelligent argument. It was not.

      If TD users were to flag this comment of mine into oblivion because they thought it was stupid, I am not going on a crusade against Masnick about it. Besides, he's yours to arch, and I don't want to get you into trouble with the Guild. You don't need PL showing up on some dark night, to have a discussion with you.

      But please let me know if your one-man crusade ever reaches the Promised Land, and you are granted immunity from flagging. I want to be around to sell popcorn for that.

      reply to this | link to this | view in chronology ]

    • identicon
      Agammamon, 7 Aug 2018 @ 9:35pm

      Re: Same as when forced through Techdirt's gauntlet of rabid dogs.

      Sorry, but there's nothing 'hidden' about Techdirt's 'unfair' exercise of partisan powers.

      I don't see why you're so worked up about this. If Mike wants to run a site that caters to 'fan-boy-pirate-trolls' is that not his right? Or is there some set of laws that tell us which topics each website is legally mandated to cover? Because I thought private meant private.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    arjen, 7 Aug 2018 @ 5:23pm

    you

    UNFAIR HIDDEN EXERCISE OF PARTISAN POWER.

    And it's always done by those who most often claims open to discussion and love the First Amendment.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2018 @ 6:22pm

    Just another isolated incident.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2018 @ 7:45pm

    Why would anti-trump protesters or the police want trump supporters to start to fear for their lives and start carrying far more lethal weapons than a bike lock or billboard? If people start to feel not only scared but also that they will be forced into a confrontation, that is exactly what will start happening. The left could regain a lot of their lost high ground if they would do something about their own violence against others.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2018 @ 10:32pm

      Re:

      I don’t see you condemning Nazi violence at Charlottesville so racists who live in glass houses...

      reply to this | link to this | view in chronology ]

      • identicon
        David, 8 Aug 2018 @ 4:19am

        Re: Re:

        Well, most sentences I happen to write aren't condemning Nazi violence at Charlottesville either. If that makes me a racist, then there are a whole lot of racists. Like Martin Luther King Jr, Mahatma Ghandi, Jesus Christ (well actually, the latter said "it is not meet to take the childrens' bread and cast it unto the dogs" when asked to help a Syrophoenician so he's not a particularly shining example for a non-racist anyway).

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2018 @ 4:48am

      Re:

      The left could regain a lot of their lost high ground if they would do something about their own violence against others.

      But I thought the left was full of snowflakes?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2018 @ 10:51am

      Re:

      Funny how the trump vs anti-trump thing is seen thru right/left political shades.

      reply to this | link to this | view in chronology ]

  • identicon
    Avideogameplayer, 8 Aug 2018 @ 12:53am

    The new police motto: Let them kill themselves and let God sort them out...

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 8 Aug 2018 @ 7:53am

      'Now you and them fight.'

      In this case it seems it was actually worse than that, as they deliberately steered people into what the lawsuit claims the police knew was a hostile situation.

      That's not just 'let em tear each other to pieces', it's '... and if they don't do so on their own, let's make sure that they do.'

      'Reckless endangerment of the safety of others' would seem to be the least of their crimes in the situation described if the lawsuit is at all accurate.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Tutorial windows 10, 8 Aug 2018 @ 1:18am

    Now you can play dvd on windows 10 without any registration or download.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 8 Aug 2018 @ 2:21am

    Well, good

    It was becoming kind of hard to distinguish criminal insanity defenses from qualified immunity defenses. Both rely on an inability to distinguish legal and criminal acts but they aim for delivery to the booby hatch and the bobby hutch, respectively.

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 8 Aug 2018 @ 3:37am

    So basically it would be the exact same if all cops were fired and police extinct. Except that cops wouldn't be protecting themselves collectively anymore.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2018 @ 7:58am

      Re:

      NOt sure why the police were even there? They all could have gone home. If they have no obligation to protect anyone, they sure didn't bother to do anything about arresting a bunch of THUG Anti-Trump criminals.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Aug 2018 @ 2:12pm

    Seeds of civil war

    When a large portion of Americans demonize another large portion of Americans to the point where the other side should be deserving a beating or killed, we sow the seeds of civil war. The last time we seriously did this it ended badly for everyone.
    The protestors in this story and those in Charlotte should think about that... and commentors defending such behavior might want to consider that too.

    reply to this | link to this | view in chronology ]


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