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Shiva Ayyadurai's Lawsuit Against A Massachusetts Official Actually Raises An Interesting 1st Amendment Question About Election Disinformation

from the he-has-a-point dept

It hasn't garnered that much public attention, but a couple weeks ago Shiva Ayyadurai decided to sue Massachusetts' Secretary William Galvin, claiming that efforts to have some of Shiva's tweets removed from Twitter violated the 1st Amendment. It may surprise many people to hear this, but I think Shiva has a point. And it actually raises some interesting (and somewhat new) 1st Amendment questions regarding social media, election disinformation, and the role of election officials in fighting disinformation online.

Now, as background for this, many people reading this likely know that I spent over two years engaged in a legal fight with Shiva after he sued us over a series of articles we had written highlighting how his claim to have invented email is not supported by the evidence. The case was eventually settled with no money changing hands and with all of our stories remaining up. And we have since presented even more evidence that Shiva Ayyadurai did not invent email. You might think that this would make me immediately disagree with him in any legal fight, but as I did in writing my original pieces about him and as I do now, I'm looking at the actual details, not whether or not I like or agree with any particular individual.

Over the last few years, Shiva has really embraced a Trumpian position in trying to build up a political base. He's been very supportive of the President, and in recent months has been an outspoken critic of both vaccines and Dr. Anthony Fauci. He's built up quite a large social media following and regularly espouses idea that I consider to be silly, misleading or unsupported by any evidence -- which seems somewhat par for the course, given his historical assertions. He's run for Senator in Massachusetts twice now. In 2018 he first sought the Republican nomination for the Senate to run against Elizabeth Warren, and then later switched to running as an Independent. After losing that race, he almost immediately declared that he would run again in 2020. He ran in the Republican primary, which he lost to Kevin O'Connor 158,590 votes to 104,782.

Perhaps not surprisingly, he was not happy about this result, and started making a bunch of wild, unsupported allegations of election fraud:

He then spent weeks trying to drum up a write-in campaign, while repeatedly using social media to allege election fraud. In an effort to show this, he filed some public records requests with Massachusetts, including (among other things) asking for scanned images of every ballot. In response, he was told that there were no responsive records because the machines that scan the ballots do not make images. In fact, the certification process flat out prohibits the machines from capturing ballot images. Furthermore, many of the machines don't even have the ability to capture images even if they could under Massachusetts laws.

This was the email that was sent to him in response to the request:

Good Morning‐

I am writing to acknowledge receipt of your request for records. Please note, that this Office does not maintain voter tabulation software, firmware or hardware. While this office certifies voting equipment, as required by law, we do not purchase or lease equipment. Once equipment is approved by this Office, cities and towns can purchase or lease such equipment. Accordingly, this Office has no records responsive to your request.

Further, to the extent you request the same information from local election officials, please note that the approval of digital scan equipment in Massachusetts specifically prohibits the capturing of ballot images.

Shiva responded asking to show what Massachusetts law prohibited digital scans from taking images of ballots, to which Tassinari responded with an attachment showing the certification documents of various ballot scanning machines used in Massachusetts and also stating directly:

Please note that while the ballot images are not stored, the actual ballots voted on at any federal election are secured and stored for 22 months in accordance with federal law. However, under state law, those ballots must remain sealed until such time as they can be destroyed.

In response to this, Shiva inflated his initial unsubstantiated claims of election fraud by falsely claiming that Massachusetts was "DESTROYING BALLOTS." In fact, he claimed that Massachusetts "Destroys Over 1 MILLION Ballots in US SENATE PRIMARY RACE" because they did not make images of every ballot.


Again, to be clear, Shiva's claims here are bullshit.

So here's where things get complex. The election official that Shiva spoke to felt, correctly, that these tweets were highly misleading. The federal government -- namely the FBI and CISA -- have been putting out alerts, including to election officials around the country, to be on the lookout for false information on social media "intended to cast doubt on [the] legitimacy of US elections" and has suggested that if spotted one of the things they might consider doing is the following:

If appropriate, make use of in-platform tools offered by social media companies for reporting suspicious posts that appear to be spreading false or inconsistent information about voter information or voting systems.

The woman who responded to Shiva, Michelle Tassinari, told the office's Communications Director, Debra O'Malley, who runs the Massachusetts Elections Division's Twitter account, that she should report Shiva's tweet to Twitter as false information about the election. O'Malley did so, received a notification that Twitter would investigate, and heard nothing further.

Approximately a day later, Twitter informed Shiva that he needed to remove those tweets. Once again, this appeared to anger Shiva. The fact checking site Lead Stories did a fact check of the whole thing, agreeing that Shiva's tweets were false, and also spoke to O'Malley who told the reporter that her office had notified Twitter.

And, thus, Shiva sued the Secretary of the Commonwealth, William Galvin asserting a violation of the 1st Amendment in having Twitter take down Shiva's protected speech (he also asserts it violated other aspects of the 1st Amendment, including the right to a free press, to petition the government and to peaceably assemble). He asked the court to award him the tidy sum of $1.2 billion dollars. And, just to be clear: while I think there's an interesting 1st Amendment issue here, there's no fucking way it's a $1.2 billion question.

Procedurally, things went a little weird: just a week after filing, Shiva's lawyer, Daniel Casieri, asked the court to withdraw as Shiva's counsel, saying that he had to withdraw but the reasons for doing so involved information that was protected by attorney-client privilege. Shiva then immediately asked the court to allow him to continue pro se (representing himself), which the court allowed.

There was then some more procedural weirdness that charitably could be explained as confusion in the hand-off of the case from Casieri to Shiva. Casieri had held a call with the government's lawyer, Adam Hornstine, in which Hornstine had raised questions about the legal authorities to support his motion for a temporary restraining order, highlighting both jurisdictional and substantive concerns. Hornstine also noted that Galvin had not been served, and asked Cassieri to email him a request to waive service which they would consider. Cassieri also promised not to file a new motion for the TRO until they had talked again. Then, before any of that happened, Cassieri resigned, and Shiva took over and filed a new memorandum in support of the motion. Hornstine highlighted the procedural problems in an affidavit to the court.

While all that was happening, Galvin (represented by Hornstine) opposed the TRO motion on multiple grounds, saying it was barred jurisdictionally (because you can't sue public officials for doing their official jobs), and that the government has its own right to free speech to say something is false.

On Friday, there was a hearing on Shiva's motion for a temporary restraining order (TRO) to stop Galvin's office from reporting more of his tweets. The judge was apparently quite skeptical of Shiva's arguments (and self-representation) and pointed out (correctly) that Twitter removing content by itself is not a 1st Amendment violation since it's a private company. Shiva's argument in response (which I'll discuss below) is that a government official putting pressure on Twitter to take down his speech is the 1st Amendment violation. He also claimed (correctly!) that false speech is generally protected (which is interesting to hear him say as he has regularly claimed otherwise in the past, including in reference to the lawsuit he filed against me and a period of time in which he frequently deployed the phrase "truthful free speech"). Perhaps he's learned something.

Both Tassinari and O'Malley appeared to testify, with O'Malley admitting under oath that she hoped that Twitter would delete Shiva's tweet, but she did not know if it would. The judge then pointed out that the Secretary should have just responded publicly with more speech denying Ayyadurai's claims. Eventually, Galvin and his office agreed that they would not report any more tweets to Twitter until after Election Day. The end result is that Galvin is free to respond to Shiva's nonsense tweets through tweets or other means, but will not use the reporting function to seek to take down those tweets, thus making the TRO request moot.

So, that's a lot of background without much analysis. Obviously, I think that Shiva's tweets are utter nonsense. Massachusetts didn't destroy any ballots and him presenting it that way is highly misleading. But... I actually think he has a legitimate 1st Amendment concern here, as highlighted by two separate lawsuits we've discussed before. The issue, as Shiva raised, is that when a public official makes moves to pressure a private company into silencing speech, that should be a 1st Amendment concern. I've highlighted this issue before and it's a non-partisan concern, as both Republicans and Democrats have a long history of doing this, especially in the age of the internet. We raised concerns over a dozen years ago when Senator Joe Lieberman demanded YouTube take down "terrorist" videos, and we've continued to report on that problem right up until a few days ago when we noted that Senators on both sides of the aisle seemed to be demanding that Facebook, Twitter, and YouTube remove certain content they dislike.

We should always be concerned when an elected official is making statements about how private companies must remove some constitutionally protected content -- even if the content is misleading. The 1st Amendment bars Congress from regulating speech for a reason.

I frequently point to Judge Posner's ruling in the Backpage v. Dart case from a few years back, in which Sheriff Thomas Dart tried to pressure credit card companies to stop serving Backpage. When Backpage claimed this violated its 1st Amendment rights, Dart argued in response that he was merely exercising his own 1st Amendment rights in sending a letter to the credit card companies. Posner pointed out that when you become a government official the rules change.

“The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive .... What matters is the distinction between attempts to convince and attempts to coerce. A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant’s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.”

Of course, the central issue in that case was whether or not Dart was threatening to take action if the credit card companies did not comply with his request:

As a citizen or father, or in any other private capacity, Sheriff Dart can denounce Backpage to his heart’s content. He is in good company; many people are disturbed or revolted by the kind of sex ads found on Backpage’s website. And even in his official capacity the sheriff can express his distaste for Backpage and its look-alikes; that is, he can exercise what is called “[freedom of] government speech.”... A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens. “[A] government’s ability to express itself is [not] without restriction. … [T]he Free Speech Clause itself may constrain the government’s speech.”

So, then, the question is whether or not O'Malley reporting the tweet to Twitter was a "threat to squelch the free speech of private citizens." And I think there's a pretty strong argument that it was. You can argue back that using the report feature that is built into Twitter is not actually doing anything other than providing speech, but even O'Malley admitted she hoped it would lead to the tweet being removed, and there's not much reason to use the report feature except because you hope that Twitter will then remove the speech. And since the report was apparently coming from the same person who managed Massachusetts' election division's Twitter account, you would expect that Twitter would take it extra seriously.

This may feel strange to some -- that election officials who are (righteously) fighting off disinformation around elections should not be entitled to use the very tools that Twitter provides to everyone to report such disinformation -- but there is a logic to it. And to highlight that, I'll point to another case we've mentioned frequently: Knight First Amendment Institute at Columbia v. Donald Trump, in which it was established that government officials using Twitter in their official capacity cannot use the block feature, because it violates the 1st Amendment. Based on that case, there's a very strong argument to be made on the same conceptual basis that such officials also cannot use the report feature to report election disinformation if it is constitutionally protected speech.

Admittedly, that does create an awkward situation for election officials, who often are on the frontlines battling election mis- and disinformation. If they are privately alerting social media companies to this information, there's a decently strong argument that it violates the 1st Amendment in the same manner that Trump (or any elected official) using the block button violates the rights of public citizens. That feels... uncomfortable for a wide variety of reasons. It obviously feels like election officials should be able to call out and alert social media companies when they see disinformation regarding the election. And the social media companies remain free to make their own final decisions.

But, if you flip the story around a bit, you might see why it would be a good thing that officials should not be able to make use of these mechanisms. It is not hard to think of a scenario under which certain election officials might simply try to use claims of mis- and disinformation against candidates they dislike, or with whom they disagree, rather than in situations in which there is actual disinformation. In such cases, we should not want the weight of an "election official" making such claims to social media companies. As the judge suggested here, though did not need to rule on, officials can (and probably should) say that some information is false, and can say so publicly where it can be reviewed, discussed, and debated. Social media companies can then decide how they want to deal with that information (and certainly other citizens can report the tweets and point to the public refutations). And, if those social media companies decide to delete that content, that is their own right, under the 1st Amendment.

But, as much as I believe he is spewing election disinformation nonsense and misleading his followers, Shiva may have a very legitimate 1st Amendment right to do so without government officials directly seeking to suppress his speech through the use of a reporting tool.

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Filed Under: 1st amendment, adam horstine, ballots, content moderation, daniel casieri, debra o'malley, election disinformation, elections, foia, free speech, massachusetts, michelle tassinari, public records, report, shiva ayyadurai, william galvin


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  • icon
    Thad (profile), 2 Nov 2020 @ 10:53am

    Shiva then immediately asked the court to allow him to continue pro se (representing himself), which the court allowed.

    Well, you know the old saying: anyone who represents Shiva Ayyadurai has a fool for a client.

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

  • icon
    Khym Chanur (profile), 2 Nov 2020 @ 11:01am

    Did Ayyadurai merely want to do his own ballot counting? Because that's all he could do with the ballot images if the names and addresses were redacted from the ballot images (in a world were those images actually existed).

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

    • icon
      Thad (profile), 2 Nov 2020 @ 11:17am

      Re:

      I think what Ayyadurai wanted is exactly what he got: he wanted a letter stating that the machines don't take pictures of ballots so that he could claim "Massachusetts is destroying ballots!"

      While Ayyadurai has greatly exaggerated his contributions, there's no denying that he has more-than-basic technical competence. I find it very difficult to believe that he doesn't know how optical scanners work, and that they are not digital cameras. He knew that what he was asking for was nonsensical gibberish, and he asked for it anyway. He got exactly the result he intended.

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

      • icon
        Khym Chanur (profile), 2 Nov 2020 @ 11:22am

        Re: Re:

        I dunno, I once read an interview of his on Ars Technica and he seemed to be the type to believe his own hype. It actually disturbed me a tiny bit at how delusional he came off.

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

  • icon
    Stan (profile), 2 Nov 2020 @ 11:03am

    Imagine, if you will...

    How a conversation between Trump and Ayyadurai would go if they ever met:

    Ayyadurai: "I'm a genius and I invented email"

    Trump: "No, I'm the genius who invented email. You didn't invent it. That's fake news !"

    Ayyadurai: "No, I invented email"

    Trump: ""No, I invented email"

    Ayyadurai: "No, I invented email"

    Trump: ""No, I invented email"

    (disable BREAK key; repeat arguement infinitely)

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

  • icon
    Stephen T. Stone (profile), 2 Nov 2020 @ 11:03am

    I can’t believe I actually agree with something Shiva Ayyadurai said/did.

    …oh hey, look at the broken clock on my wall: It’s stopped on the current time.

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

    • identicon
      Pixelation, 2 Nov 2020 @ 11:58am

      Re:

      "…oh hey, look at the broken clock"

      In this case, a cuckoo clock.

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

    • icon
      Samuel Abram (profile), 2 Nov 2020 @ 4:28pm

      Re:

      …oh hey, look at the broken clock on my wall: It’s stopped on the current time.

      You have a 24-hour clock?

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

    • icon
      Scary Devil Monastery (profile), 3 Nov 2020 @ 3:16am

      Re:

      A sign of the times. The headline "Man famous for not inventing email manages to have a point!" ought to be material for a very slow news day.

      But considering the protagonist in the story it is no less staggering than Trump suddenly turning up and saying "OK, so I was really wrong about covid. My Bad".

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

  • identicon
    Anonymous Coward, 2 Nov 2020 @ 11:12am

    Though ol' Shiva, non-inventor of email, might be credited here with drawing attention to a potential problem, he doesn't have a whole lot to take to court.

    a violation of the 1st Amendment in having Twitter take down Shiva's protected speech

    The government did not "have Twitter take down" anything. They notified Twitter of possible misinformation. Twitter make their own decisions and took their own actions. I don't think this constitutes a violation of the 1st Amendment since the government did not directly censor anyone nor did they demand someone else do it on their behalf.

    Any way you slice it, Shiva is a delusional loser. I hope this case costs him everything.

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

    • icon
      Stephen T. Stone (profile), 2 Nov 2020 @ 11:23am

      The government did not "have Twitter take down" anything. They notified Twitter of possible misinformation. Twitter make their own decisions and took their own actions.

      The argument being made — and it isn’t as bad an argument as you’d like to think it is — says an agent of the government informing Twitter of the misinformation in the hopes that Twitter would take it down constitutes a 1A violation. Whether the government “demanded” the content be taken down is a bit beside the point. That the government took actions that were clearly meant to invoke Twitter’s TOS and force deletion of the tweets in question is precisely the point — and whether that counts as censorship under the First Amendment is a valid question.

      Everything Shiva has said and done in this situation, outside of raising that question, is bullshit. But on that one singular question, Shiva has raised a good point. I doubt his chances of succeeding in court, but the question he raised deserves an answer nonetheless.

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

      • identicon
        Anonymous Coward, 2 Nov 2020 @ 12:21pm

        Re:

        But the government officials are also citizens, so you'd be curbing their free speech if you said they couldn't report to Twitter that these statements were misleading or false.

        The proof you'd need is that Twitter chose to take them down because they believed they were required to by the government. If not (which is probably the case), Twitter made the decision, not the government, therefore there is no violation. There was no court order. There was no law cited. There was no enforcement. The government didn't "do" anything.

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

        • identicon
          Anonymous Coward, 2 Nov 2020 @ 12:46pm

          Re: Re:

          But the government officials are also citizens, so you'd be curbing their free speech if you said they couldn't report to Twitter that these statements were misleading or false.

          Not quite. The argument goes more like "citizens who are employed by the government can report misinformation to Twitter as long as they make sure it's obvious they're making the report as a citizen and not a government agent."

          Basically meaning, no contact via government phones, email, computers, etc. and no citing position within the government as a reason the offending tweet should be removed.

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

        • icon
          Stephen T. Stone (profile), 2 Nov 2020 @ 12:46pm

          The proof you'd need is that Twitter chose to take them down because they believed they were required to by the government.

          Correction: The proof needed would be evidence that Twitter admins chose to take down those tweets because they took more seriously a report from an agent of the government than they did a report from some rando. Twitter admins wouldn’t need to think they were obligated by law to take down the tweets — they’d need only to believe a report from the government deserved preferential treatment.

          The prevailing idea here is that Twitter admins should show no favor or affection toward government employees — which is to say reports made by government employees shouldn’t receive more consideration than any other report. If such reports do, we have a possible 1A violation. That would require the courts to look at the situation and determine if it is a violation.

          Which is why we’re talking about the court case mentioned in this article: Shiva Ayyadurai, the man who falsely claims to be the sole inventor of modern email, raised a point about whether the government censored him and the courts are looking to see if this is the case. While he raises a good point, his chances of winning are…less than good.

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

          • identicon
            Anonymous Coward, 2 Nov 2020 @ 2:20pm

            Re:

            The prevailing idea here is that Twitter admins should show no favor or affection toward government employees — which is to say reports made by government employees shouldn’t receive more consideration than any other report. If such reports do, we have a possible 1A violation.

            No. You're describing actions taken by Twitter, not by government officials. Twitter decides what to censor. If Twitter decides to voluntarily heed the warnings from government officials without any influence or fear of negative effects for not doing so, it's still just a private entity making a decision of what speech to carry on their private platform. The 1st Amendment restricts the actions of the government, not Twitter.

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

            • identicon
              Anonymous Coward, 2 Nov 2020 @ 2:31pm

              Re: Re:

              To add to this: Would you call it a First Amendment violation if government officials (like Dr. Fauci) reported to Twitter that people were spreading dangerous misinformation about Covid-19 on their platform and Twitter decided to remove the content?

              If so, then anyone listening to the government as a source of factual information would have their free speech curbed because they wouldn't be allowed to do anything with the information they got from the government.

              Ayyadurai's claim isn't more valid just because he's a failed candidate. Twitter made a decision of what to do with information it received.

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

              • icon
                Stephen T. Stone (profile), 2 Nov 2020 @ 2:52pm

                Would you call it a First Amendment violation if government officials (like Dr. Fauci) reported to Twitter that people were spreading dangerous misinformation about Covid-19 on their platform and Twitter decided to remove the content?

                If Dr. Fauci used official government communications channels to make the report? Yes. If he used his own private account to make the report? No.

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

                • identicon
                  Anonymous Coward, 3 Nov 2020 @ 11:23am

                  Re:

                  I didn't see anywhere that the government official used official government communications channels. Do you have a citation for that?

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

                  • identicon
                    Anonymous Coward, 3 Nov 2020 @ 11:34am

                    Re: Re:

                    Do you have a citation for that?

                    Doc 15: Opposition To Plaintiff's Motion, on p.13

                    [The Secretary's] staff used these official social media accounts to post a report to Twitter alleging that the Plaintiff made false statements about an election.

                    (Emphasis added.)

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

                    • identicon
                      Anonymous Coward, 3 Nov 2020 @ 12:01pm

                      Re: Re: Re:

                      … staff used these official social media accounts…

                      For support of defendant's characterization of their use of an “official” account in making their report to Twitter, see Doc 15-1: Affidavit of Debra O'Malley, on p.2

                      5. … the Elections Division’s Twitter account…

                      (Emphasis added.)

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

                      • identicon
                        Anonymous Coward, 3 Nov 2020 @ 4:25pm

                        Re: Re: Re: Re:

                        Reporting via an account isn't an official act. Twitter requires you to sign into an account in order to report a tweet. The account used is irrelevant unless you can prove Twitter thought they were legally required to heed that account's reports.

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

        • identicon
          Anonymous Coward, 24 Nov 2020 @ 5:54am

          Re: Re:

          As a government official the shady Mr. Galvin has restrictions. Duh!

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

    • icon
      That One Guy (profile), 2 Nov 2020 @ 11:25am

      Re:

      The government did not "have Twitter take down" anything. They notified Twitter of possible misinformation. Twitter make their own decisions and took their own actions. I don't think this constitutes a violation of the 1st Amendment since the government did not directly censor anyone nor did they demand someone else do it on their behalf.

      What makes the case tricky and a potential violation is that there is a very real difference between some random person reporting a tweet versus an official government account doing it, as one of those is likely to be taken far more seriously and carry more weight due to their position.

      While this instance didn't seem to reach the point of the other case mentioned in the article where there was a very real threat involved on the part of the government actor and therefore there was absolutely a first amendment violation it does still make for a questionable case, and one where it might be better to let the asshole 'win' if it means not setting precedent that might end up screwing over non-assholes.

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

      • identicon
        Anonymous Coward, 2 Nov 2020 @ 1:51pm

        Re: Re:

        Does this mean that Twitter should be asked to change its rules so that if a government entity requests "fact checking" on a Tweet that Twitter flags it rather than deletes it? It would be one thing if Galvin or someone in the MA Sec State office responds to a tweet (which may or may not be seen), but its nowhere near as visible as when Twitter puts its FactCheck flag on the Tweet itself.

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

        • icon
          Stephen T. Stone (profile), 2 Nov 2020 @ 1:53pm

          Does this mean that Twitter should be asked to change its rules so that if a government entity requests "fact checking" on a Tweet that Twitter flags it rather than deletes it?

          Possibly.

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

      • icon
        BernardoVerda (profile), 2 Nov 2020 @ 3:34pm

        Re: Re:

        The problem is not merely that the party making the complaint (and thus at least suggesting a restriction on someone's speech) is a part of the government, but arguably also in a position to punish Twitter for disregarding the complaint.

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

  • icon
    That One Guy (profile), 2 Nov 2020 @ 11:13am

    As distasteful as it may be to agree with that scumbag unfortunately this seems to be a case of needing to support an asshole to avoid creating precedent that could be used against non-assholes down the line, because as the article rightly notes having public officials in the position of telling or 'suggesting' that companies should be taking down stuff that they claim is 'misinformation' is really not something that should be seen as desirable given the kinds of public officials in office right now.

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

    • icon
      Thad (profile), 2 Nov 2020 @ 11:19am

      Re:

      Indeed.

      I like to remind people that laws are enforced by human beings, not perfect frictionless spheres.

      And when people say that it would be a good idea to restrict people's ability to spread misinformation, it's useful to remind them who is currently the head of the Executive Branch, and what his criteria are for determining that a statement is "fake news".

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

  • identicon
    Anonymous Coward, 2 Nov 2020 @ 11:31am

    Bantam Books v Sullivan (1963)

    The issue, as Shiva raised, is that when a public official makes moves to pressure a private company into silencing speech…

     

    Bantam Books v Sullivan (1963)

    MR. JUSTICE BRENNAN delivered the opinion of the Court.

    The Rhode Island Legislature created the "Rhode Island Commission to Encourage Morality in Youth," whose members and Executive Secretary are the appellees herein, and gave the Commission inter alia ". . . the duty . . . to educate the public concerning any book, picture, pamphlet, balled, printed paper or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth . . . .

    “The Commission's practice has been to notify a distributor on official Commission stationery that certain designated books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age.”

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

  • icon
    NotTheMomma (profile), 2 Nov 2020 @ 11:33am

    Being from Massachusetts, I would like to say that Shiva and Lombardo are both idiots and neither earned their degrees, in my opinion. Shiva lost to a guy who ran a low-key campaign but had a larger following. He ran mostly from word of mouth and not huge billboards that just said "VOTE DR SHIVA" with nothing else to offer.

    /rant

    That being said, I fail to care about anything he says as most of it are lies, just like Trumpy.

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

  • identicon
    SirWired, 2 Nov 2020 @ 12:07pm

    I think it's clearly distinguishable from the BackPage case

    In the backpage case, the request was sent by not just any government official, but one that could conceivably take official action against the company. In this case, the elections commission has no jurisdiction whatsoever over Twitter. There's not even a hint of any ability she has to take an official action other than filing the request.

    I think this is an example of government speech, rather than government-backed speech suppression. It'd be a very different answer if the request had come from the AG's office, etc.

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

    • icon
      Mike Masnick (profile), 2 Nov 2020 @ 12:11pm

      Re: I think it's clearly distinguishable from the BackPage case

      I definitely understand this thinking. And maybe it's correct. But not obviously. From the Backpage ruling: "The fact that a public-official defendant lacks direct regulatory or decisionmaking authority over a plaintiff, or a third party that is publishing or otherwise disseminating the plaintiff’s message, is not necessarily dispositive .... What matters is the distinction between attempts to convince and attempts to coerce."

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

  • icon
    Ashigaru Spearman (profile), 2 Nov 2020 @ 1:29pm

    Waste of time and energy

    By giving this guy ANY sort of support (deserved or not) you only give him oxygen and perpetuate his tomfoolery. A broken clock is right twice a day and its irrelevant if he is correct in this instance. The argument that you "must support his argument lest a bad precedent be established" is silly response and is likewise a waste of time.

    I've never understood this line of argument. Its all irrelevant when it gets to the SC anyway. Cite the precedents you like and ignore the ones you dont. Lawyers do that in every argument.

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

    • icon
      Stephen T. Stone (profile), 2 Nov 2020 @ 1:39pm

      The argument that you "must support his argument lest a bad precedent be established" is silly response

      Give me one good reason why supporting someone I dislike in their efforts to establish a good legal precedent is “silly”. Because last I checked, even assholes have civil rights — and their speech was as protected under the First Amendment as anyone else’s, regardless of whether you agree with it.

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

    • icon
      That One Guy (profile), 2 Nov 2020 @ 2:09pm

      Re: Waste of time and energy

      Cite the precedents you like and ignore the ones you dont. Lawyers do that in every argument.

      Only to get a rude awakening when the opposing lawyer or judge points out that they ignored a precedent that shuts their argument down flat, leaving their case in trouble if not completely dead.

      If you don't care that bad precedent could be set because you don't like the person it's being used against then you leave yourself wide open to having that very same precedent used against you or someone you do support, because the protections that shield assholes are the very same ones that shield non-assholes.

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

      • icon
        BernardoVerda (profile), 2 Nov 2020 @ 3:39pm

        Re: Re: Waste of time and energy

        "First they came for the assholes, but I said nothing..."

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

        • icon
          Scary Devil Monastery (profile), 3 Nov 2020 @ 4:11am

          Re: Re: Re: Waste of time and energy

          That may just be the best summary of Niemöller's old line I ever read.

          Yeah, dictators and authoritarians succeed because the first people they go for is the low hanging fruit. The assholes everyone is happy to see gone or marginalized.

          After that, well, the law is changed, there is precedent, so now it's open season on everyone who didn't object when the people getting shanked were just the unpleasant asshats and there you are, standing with the crowd, making sure to wave the little swastika pendant happily as der führer drives by, hoping none of the geheime staatspolizei are watching you losing your smile.

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

    • icon
      Thad (profile), 2 Nov 2020 @ 2:59pm

      Re: Waste of time and energy

      Its all irrelevant when it gets to the SC anyway.

      What you're saying is that it's okay if the court decides that the government can weigh in on whether or not a statement is true and force it off the Internet, and that if, say, I criticize Trump, he determines it's Fake News, and under this precedent my statement is removed, that's fine, because all I have to do is go through the years-long, ruinously expensive process of appealing it all the way to the Supreme Court to overturn it.

      I suspect you have not thought this through.

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

    • identicon
      Anonymous Coward, 2 Nov 2020 @ 4:14pm

      A bold and risky gambit

      Cite the precedents you like and ignore the ones you dont. Lawyers do that…

      Via Google featured snippets… “Lawyers have a duty to disclose adverse legal authority even if it hurts their case”, ABA Journal, June 2019

      [C]ourts look suspiciously at lawyers who claim that they didn’t cite a case because it is merely tangentially adverse. A federal district court in Maryland referred to this position as a “bold and risky gambit”… The better practice for attorneys is to cite cases that seem to be adverse and then distinguish them.

      A “bold and risky gambit”.

      Some lawyers do that. Guess that's why some lawyers get paid the big bucks.

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

    • icon
      Tanner Andrews (profile), 15 Nov 2020 @ 12:33am

      Re: Waste of time and energy

      Cite the precedents you like and ignore the ones you dont. Lawyers do that in every argument.

      That is not how it is supposed to work. An attorney is expected to address the unfavorable precedent, at least if it is close enough to relevant to the case. The most likely way to address it is to distinguish it: the facts there differ in some key way from your facts.

      In real life, we may not have time to address every case in an area of law which generates lots of cases, but being prepared will still help.

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

  • identicon
    Anonymous Coward, 2 Nov 2020 @ 1:32pm

    But don't forget

    Shiva is a well-known asshat and I am disinclined to believe anything he says because it is ALWAYS about money for him. When he doesn't get what he wants he falls back on (what I call) his 'Steve Martin Soliloquy" from the movie The Jerk.

    However, not allowing any government official to ever report any content leads us down an equally dangerous path. Someone has to be the first to expose that guy who keeps yelling FIRE in a theater just for the lulz. Saying that person can't be a government employee is a weird position to take.

    And don't forget, Shiva is a well-known asshat.

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

    • icon
      Stephen T. Stone (profile), 2 Nov 2020 @ 1:42pm

      The precedent wouldn’t be about a government official not being able to ever report any content. It would be about a government official using official government communications channels to report content. A government official can always use their own private account to report content without involving the account belonging to the government.

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

  • identicon
    Anonymous Coward, 2 Nov 2020 @ 1:39pm

    It's not just a matter of a 1st Amendment violation; what's being reported is basically a violation of Twitter's TOS for spreading misinformation. Twitter isn't obliged to protect users who violate their TOS, regardless of who does the reporting, and spreading fearmongering misinformation is not something the platform is required to allow.

    To look at it another way, if it were non-election officials but private citizens who reported his tweets, having them removed or having him banned would be no different. It's true that people in government office using their position to report or block people may raise a 1st Amendment concern, but Twitter removing the tweets for TOS violations does not.

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

    • icon
      Stephen T. Stone (profile), 2 Nov 2020 @ 1:44pm

      It's true that people in government office using their position to report or block people may raise a 1st Amendment concern, but Twitter removing the tweets for TOS violations does not.

      Which is why the part of Shiva’s argument that makes the most sense — and is a legitimately good point — zeroes in on the issue raised in the first clause of your sentence while ignoring the issue raised in the second clause.

      No one here (with any goddamned sense) would argue that Twitter has no right to remove TOS-violating tweets. But removing them seemingly at the behest of the government is a legally thorny issue.

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

      • icon
        Mike Masnick (profile), 2 Nov 2020 @ 2:52pm

        Re:

        This is exactly my argument.

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

        • identicon
          Anonymous Coward, 3 Nov 2020 @ 9:27am

          Re: Re:

          One wrinkle though: the government has a vested interest in preventing misinformation from flooding the internet (at least sane governments do). As long as it can be shown that reporting a tweet does nothing but bring Twitter's attention to it, and that the tweet still rests on whether or not it lines up with the TOS, I don't know that it matters whether or not a government official or a private citizen reported it. The process on Twitter's end needs to be transparent to work, essentially, because even an official declaration that government officials can't report tweets won't stop them from reporting tweets by using separate 3rd-party individuals, and abusing the process if they so choose.

          Essentially what matters less here I think is the government policy and more Twitter's transparency in how reported tweets are handled and reviewed.

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

          • identicon
            Anonymous Coward, 3 Nov 2020 @ 10:15am

            Re: Re: Re:

            … the government has a vested interest…

            Please clarify exactly what you mean by “vested” in this phrase. Are you simply using it as a mere adjectival flourish?

            I would recognize the phrase “compelling interest” as a term of art in this first- and fourteenth- amendment context. But “vested” seems to me a term most frequently heard in a different —and I think inapplicable— context.

            So what exactly do you mean by “vested” in this context?

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

      • icon
        Scary Devil Monastery (profile), 3 Nov 2020 @ 5:23am

        Re:

        "Which is why the part of Shiva’s argument that makes the most sense — and is a legitimately good point — zeroes in on the issue raised in the first clause of your sentence while ignoring the issue raised in the second clause."

        Shiva may just have decided that being known as The Man Who Did Not Invent Email wasn't a good look and is now hoping to change that perception of himself.

        Of course, Shiva being Shiva probably means the next time we discuss him it'll be because he's claiming to have created the first amendment. And Baghdad Bob/Hamilton will be right here praising him to the skies for it.

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

  • identicon
    Glenn, 2 Nov 2020 @ 1:53pm

    It must be nice living in a fantasy world where you're king and not batshit crazy (or batshit crazy, same diff).

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

  • identicon
    Anonymous Coward, 2 Nov 2020 @ 3:47pm

    One mentally deranged idiot in politics is already one too many. Lost election because no one wants a second.

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

  • identicon
    ryuugami, 3 Nov 2020 @ 5:09am

    I have to say I'm a bit disappointed that those Twitter screenshots haven't been edited by crossing out the phrase "Inventor of Email".

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

  • identicon
    Anonymous Coward, 3 Nov 2020 @ 6:15am

    When you say he has a point

    ... do you mean in addition to the one on top of his head?

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


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