Fifth Circuit Denies Immunity To Cops Who Beat And Tased An Unresisting Man To Death

from the is-the-Fifth-finally-reversing-its-pro-cop-course? dept

The Fifth Circuit is a bit infamous for allowing law enforcement to do what it wants without worrying about too much pushback from judges. This is due in part to the Supreme Court's increasing insistence lower courts take a hands off approach to qualified immunity by encouraging them to avoid determining whether any rights violation has occurred. Instead, the Supreme Court has pushed lower courts to only determine whether or not a similar rights violation has occurred in the past, and whether past precedent justifies the stripping of immunity.

The end result has been less precedent established, which results in fewer determinations officers should have known their actions violated people's rights. Fortunately, the Supreme Court seems to be slowly recognizing the damage it's done over the past forty years. And the Fifth Circuit Appeals Court is now the home of Judge Don Willett, who issued a scathing attack on qualified immunity in 2018 in an opinion dealing with an allegedly unconstitutional search of a doctor's office.

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

Don Willett wrote this recent opinion [PDF] upholding the stripping of qualified immunity from officers who beat and tased an unresisting man as he suffered a mental health crisis. Here's how it opens, which gives you a good idea of where it's headed.

“What is the virtue of a proportional response?” an exasperated President Bartlet demands in a memorable scene from the first season of The West Wing. Anything more, the Chairman of the Joint Chiefs of Staff coolly advises, would be a “staggering overreaction . . . you’ll have doled out a $5,000 punishment for a fifty-buck crime.”

For those in positions of public trust—from Commanders in Chief (who must “take Care that the Laws be faithfully executed” ) to City of Gretna Police Officers (who “vow to protect life and property while safeguarding constitutional guarantees”)—proportional responses are good policy. We expect those charged with executing and enforcing our laws to take measured actions that ascend in severity only as circumstances require. A disproportionate response is unreasonable. And if it describes physical force inflicted by a police officer, it is unconstitutional.

After a middle school official reported a man "acting strange" near the school grounds, the "strange" man -- Kendole Joseph -- ran into a nearby convenience store and hid behind the counter. The two school resource officers were soon joined by twelve(!) Gretna police officers. Some of these 12 officers severely beat Joseph, ultimately ending his life.

The first officers went over the counter to "secure" Joseph. Somehow this involved multiple tasings and a nearly uninterrupted beating.

The convenience-store manager, who was behind the counter at the time, testified that Joseph looked scared and immediately “went face down.” Once on the ground, Joseph covered his face with his hands and assumed the fetal position. Seconds later, Officers Martin and Leduff followed Joseph over the counter. Officer Martin, weighing 300 pounds, immediately placed his full weight onto Joseph, who was still lying on the floor with his legs bent toward his chest. Officer Leduff began holding Joseph’s upper body down.

Apparently, this wasn't enough restraint. More force was deployed on the Joseph.

At that point, approximately thirty seconds after Officer Martin jumped over the counter, he ordered Joseph to put his hands behind his back and deployed his taser for eleven seconds.

As more officers poured into the store, the assault continued.

Officer Dugas handed a baton to Officer Martin, who jabbed it downward, striking Joseph at least twice with the pointed end.

Apparently nothing else was happening in Gretna that afternoon.

A few seconds later, Officers Varisco, Costa, and Rolland entered the store, followed shortly by Officer Faison. Officers Varisco and Faison observed from the front side of the counter, and Officers Costa and Rolland walked behind the counter. Officer Varisco reached over to offer his taser to the officers behind the counter. Officer Costa briefly observed from behind the counter, then entered the scrum, holding Joseph’s lower body down.

Yet another officer entered and the Taser was deployed again.

Officer Verrett then entered the store. Two seconds later, Officer Martin deployed his taser again, for three seconds.

The officers attempted to pull Joseph out from behind the counter. The methods used were… questionable.

Officers Martin, Thompson, Dugas, and Costa began attempting to drag Joseph from the narrower area behind the counter to the wider area, on the path to the door.

Officer Costa then kicked Joseph twelve to thirteen times while holding onto the counter. During this time, Officer Verrett entered the scrum. Officer Martin then punched Joseph in the head three times. Officers Martin, Thompson, Dugas, Costa, Faison, and Verrett resumed their efforts to drag Joseph toward the wider area, while Officer Leduff observed. Once in the wider area, Officer Martin punched Joseph in the face three times. Officer Bartlett then jumped over the counter and began holding Joseph down. Seconds later, Officer Costa punched Joseph in the head six times.

A little over three minutes later, the beaten man was in cuffs and lying prone in the backseat of a cop car, face down. Medical professionals noted Joseph was unresponsive and performed CPR. Two days later, Joseph died from injuries suffered at the hands of these officers. The injuries were extensive.

In total, Joseph endured twenty-six blunt-force injuries to his face, chest, back, extremities, scrotum, and testes.

And it doesn't appear any of them were justified.

Throughout the eight-minute encounter, Joseph was on the ground, experiencing acute psychosis, and continuously yelling. Officer Bartlett recalled Joseph “yelling random things” and pleading for someone to “call the police.” Officer Faison and the store manager recalled him pleading for someone to “call the real police.” Officer Leduff recalled Joseph calling for his mother and “saying all types of things,” including that he was “about to be killed.” The store manager recalled Joseph calling out for his mother and repeatedly yelling, “My name is Kendole Joseph,” and “I do not have a weapon.”

This isn't just the plaintiff's testimony. Joseph's health crisis and the officers' reactions were captured by the store's CCTV system.

[A]lthough Joseph may have disobeyed officer commands by entering the store, Joseph did not attempt to leave the store. Rather, he immediately dropped onto the floor in the fetal position. Joseph did not attempt to strike any officer; he flailed his legs and wiggled his body but made no contact with any officer. This version of the facts, the district court ascertained, was consistent with the video evidence. What is more, the district court observed, the video suggested that Joseph was not struggling against the officers at all “[f]or substantial portions” of the encounter.

Once a suspect is "subdued," force deployment needs to cease. This doesn't just mean once the suspect is cuffed and in the back of a squad car. As the Fifth Circuit points out, Joseph was "subdued" during pretty much the entirety of this encounter.

If the suspect lacks any means of evading custody—for example, by being pinned to the ground by multiple police officers—force is not justified. So even if Joseph failed to comply and struggled against the officers at certain points throughout the encounter, that resistance did not justify force indefinitely.

This is where you can tell it's Willett writing the opinion. There's a path the Fifth Circuit could have taken -- one wholly supported by Supreme Court rulings. But Willett decides he's not going to take the path of least resistance and simply search for on point precedent.

While we have discretion to leapfrog the merits and go straight to whether the alleged violation offended clearly established law, we think it better to address both steps in order to provide clarity and guidance for officers and courts.

The Fifth Circuit says the case must go to trial. There are potentially provable rights violations in the plaintiff's allegations. More importantly, the Fifth Circuit says it does not need a prior case on point to strip immunity. There's enough caselaw in the circuit that would have made officers aware severely beating a man who was both pinned to the ground and prevented from escaping by as many as 12 officers was unconstitutional.

On Plaintiffs’ facts, as Joseph lay on the floor behind the convenience-store counter in the fetal position, repeatedly asking for help and exclaiming that he was not armed, Officer Martin did not request compliance or warn Joseph before tasing him, using his baton on him, or punching him. Officer Costa did not command or warn Joseph before kicking or punching him. Officers Martin and Costa did not reserve their tasings, punches, and kicks as responses to active resistance. They put force first. The evidence here permits a finding that—unlike the proportionately responding officers in Pratt and, instead, like the disproportionately responding officers in Newman, Ramirez, and Cooper—Officers Martin and Costa violated clearly established law by failing to attempt less forceful alternatives and by continuing to inflict force despite Joseph committing no crime, posing no threat, and giving no active resistance.

To sum up:

We are entitled to count on law enforcement to use no more force than necessary. And we are entitled to enforce that standard as a matter of constitutional law when officers fail to honor it.

No qualified immunity will be standing between two officers and the trial awaiting them. And it's more precedent that puts cops on notice that excessive force won't be rewarded with judicial passes in the future.

Filed Under: 5th circuit, duston costa, eddit martin, gretna, kendole joseph, police, qualified immunity

Trump's FCC Nominee Asked Fox News To Help Destroy Section 230 To Help Elect More Republicans

from the free-speech? dept

We've written a few times about Nathan Simington, who is currently nominated to take over Michael O'Rielly's seat at the FCC. As you'll recall, O'Rielly's renomination was withdrawn after he dared to give a talk in which he noted, accurately, that the 1st Amendment means that the government cannot regulate how private companies handle content moderation. Simington, in contrast to O'Rielly, has been at the center of various efforts to force social media companies to host speech they do not wish to host (a clear violation of the 1st Amendment, which does not allow for the government to compel speech).

Simington was the guy who apparently wrote the original executive order that kicked off the ridiculous (and still unconstitutional) FCC review process of Section 230. He also works at NTIA, which is run by Adam Candeub, a guy who has spent the last few years attacking (or misrepresenting) Section 230, after he filed a failed lawsuit against Twitter on behalf of a white supremacist. When the lawsuit was filed, Candeub appeared not to understand 230 when I engaged with him in an email exchange. Since then he's spent the intervening years, trying to change 230 to match his false belief of what it should be.

So, perhaps it shouldn't be too surprising that it's now been revealed that Simington and Candeub appeared to spend some time over the summer trying to get Fox News' bloviating talking heads to start attacking Section 230 as well, hoping that this would spur the FCC on towards action (again, which legally it cannot do) against the law.

Simington, a senior adviser in a key Commerce Department tech agency, wrote that the popular Fox News host could help sway the FCC to act on Trump's proposal before Election Day. He also suggested that democracy hinged on the ability of the commission — which has not traditionally regulated social media — to target Silicon Valley companies.

The actual letter to a Fox News staffer, in which Simington notes that this is part of a scheme with Candeub (who is cc'd) is really stunning. Having a government official asking a media personality to assist the government in pushing through an unconstitutional attack on the 1st Amendment is staggering -- and should immediately raise questions as to why either Simington or Candeub are part of the government. Simington flat out admits that he's trying to force the FCC to take action to help support the President and others "down ballot" in the election.

That is not supposed to be how government officials act. Campaigning/electioneering efforts are not supposed to be done by current government staff who are paid by our taxpayer dollars. This is a hugely problematic stance, and should call into question both Simington and Candeub's role in government. It certainly should preclude Simington from being considered for a position on the FCC itself.

As discussed, my boss, Dept. Ass't Sec'y Adam Candeub (CC'd), is strategizing about how best to present the NTIA's petition to the FCC re CDA 230. We hope that FCC rulemaking will uphold press and communication freedoms while restraining social media companies from behavior that, absent certain case law re CDA 230, would be illegal.

As you know, this is a hot issue right now, not merely per the President's major social media executive order, but also (1) Senator Cruz's recent actions re Twitter, coming out of his long-standing concerns about the partiality and bias emerging from social media's de facto content creation via moderation, promotion and demotion, and (2) Senator Hawley's new social media bill.

We therefore hope that there might be some way of engaging with Ms. Ingraham on our piece of this issue. Any additional support we might be able to obtain could help to get the FCC on board more quickly and thereby ensure a freer, fairer social media landscape going into the elections this fall. This is of concern both to the presidency and also down-ballot, and given the emerging role of social media as a replacement for mass media, our democracy will be weakened if we cannot respond to this issue quickly and effectively.

If you have some time tomorrow, I'd love to talk further about this, whether re engaging with Ms. Ingraham or generally for our own planning.

Senator Richard Blumenthal (a long term vocal critic of Section 230) seems to recognize how problematic this is:

“This email shows that Mr. Simington was an active and eager soldier in President Trump’s attempted assault on the First Amendment," Blumenthal said in a statement to POLITICO. "Mr. Simington was willing to bully the very agency he’s been nominated to join in order to do the electoral bidding of the Republican party on the taxpayer dime.

"I am demanding that Mr. Simington explain himself in follow-up questions for the record, and I certainly hope he will be more forthcoming in his written responses than he was during his hearing,"

In any normal administration this would be a massive scandal, abusing the power of government to help a specific party/candidate. Remember all the (mostly exaggerated) fuss about the IRS paying extra attention to conservative non-profits? That was one of the biggest scandals of the Obama era, in part because it was government employees supposedly making decisions based on politics (even though the details showed it wasn't quite that bad). This is worse. Here they are flat out admitting that they are trying to work with Fox News to use the levers of government to unconstitutionally change the law in order to help their preferred political party win in an election.

Filed Under: adam candeub, election, fcc, free speech, laura ingraham, michael o'rielly, nathan simington, ntia, politics, section 230
Companies: fox news

Disappointing: Netflix Decides To Settle With Chooseco LLC Over 'Bandersnatch' Lawsuit

from the sigh dept

Well, it's been quite a stupid and frustrating run in the trademark lawsuit between Netflix and Chooseco LLC, the folks behind Choose Your Own Adventure books from our youth. At issue was the Black Mirror production Bandersnatch, in which the viewer takes part in an interactive film where they help decide the outcome. The main character is creating a book he refers to as a "choose your own adventure" book. Chooseco also complained that the dark nature of the film would make the public think less of CYOA books as a result. Netflix fought back hard, arguing for a dismissal on First Amendment grounds, since the film is a work of art and the limited use or reference to CYOA books was an important, though small, part of that art. The court decided that any such argument was better made at trial and allowed this madness to proceed, leading Netflix to petition for the cancellation of Chooseco's trademark entirely. This story all seemed to be speeding towards an appropriately impactful conclusion.

But reality has apparently turned us to the wrong page of the story. Netflix and Chooseco have reached a settlement, predictably short on details save for one very specific area.

On Monday, at a status conference before U.S. District Court Judge William Sessions III, the parties revealed that they had reached a settlement. While terms weren't released, the parties did tell the judge of one slightly unusual condition — the judge's February 2020 opinion denying Netflix's dismissal motion would have to be vacated. Sessions agreed to the demand. He chose to pretend he never questioned whether Netflix's film was explicitly misleading.

I'll admit that last bit has me a bit flummoxed. I haven't run into this sort of thing previously, where a case is settled and a previous order by a judge refusing dismissal of said case is vacated. I have pinged a couple of lawyers and have gotten mostly shrugs. The most I can say about it from digging around is that Netflix may not have wanted some precedent-setting ruling like this officially on the books for one reason or another.

The rest of the settlement details are not for public consumption. Without those details, it's difficult to know just who won out here, though it's notable that Chooseco appears to be keeping, and even expanding, it's trademark rights on "Choose Your Own Adventure." I could speculate that the threat to the mark was enough to get the company to mostly back off Netflix.

But that's the frustration here, honestly. Netflix raised some important First Amendment concerns in its defense, concerns that deserve a day in court. For now, at least, this one dumb lawsuit is over.

Filed Under: 1st amendment, bandersnatch, black mirror, choose your own adventure, free speech, trademark
Companies: chooseco, netflix

Daily Deal: The 2021 All-In-One AWS, Cisco And CompTIA Super Bundle

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

The 2021 All-In-One AWS, Cisco, and CompTIA Super Bundle has 22 courses and over 240 hours of content to help you prepare to sit for various IT certification exams from Amazon, CompTIA, and more. The courses cover the latest best practices for working in the cloud and many have practice tests you can take to help prepare yourself for the real deal. This bundle is on sale for $99. Use the code SAVE15NOV to save an additional 15% off of this bundle and others deals in the store.

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

Filed Under: daily deal

Kentucky Judges Reject Proposal For More Warrant Approval Transparency

from the more-boilerplate-and-bullets-for-county-residents,-I-guess dept

Scrutiny of warrants and the judges who approve them has stepped up in Louisville, Kentucky after a no-knock raid ended in the killing of an innocent resident by police officers. The shooting of Breonna Taylor sparked protests, reform efforts, and at least one judge's personal moratorium on no-knock warrants.

Cops don't like to talk about their warrants. Affidavits are often filed under seal. Sometimes the seal is lifted once the warrant is served. In other cases, it takes a concerted effort and a court order to make these documents public.

Judges apparently don't like to talk about warrants either. At least, this appears to be the case in Jefferson County, where judges signing warrants are all but impossible to identify by their signatures.

[Charles] King’s was one of 231 Jefferson County search warrants executed since January 2019 and examined by the Kentucky Center for Investigative Reporting and WDRB News. That review found dozens of flashy loops, “scribble scrabble,” and identical swirls derived from an electronic image file. Few judges took the time to sign their whole name. Only one printed her last name underneath her signature.  

On the vast majority of search warrants — nearly 72% — the names of the judges who approved them were illegible.

The warrant that led to the raid of King's place contained a single paragraph of narrative -- one that made no mention of any efforts by officers to verify allegations of drug dealing -- and an illegible signature. This makes it impossible to tell who's approving obviously deficient warrant requests. It also makes it pretty easy to forge one, if one were so inclined.

While it's understandable that signatures will deteriorate over time, especially when the signature is in high demand, it's not like it's impossible to counteract this natural declination.

Jefferson District Court Judge Julie Kaelin, takes the extra step of printing her name beneath her signature.

The reason is simple, Kaelin says — she wants to be transparent.

“It is problematic to not be able to look at a warrant and see which judge signed it,” she said. “I don’t want anyone to ever think I’m hiding behind an illegible signature.”

This judge went one step further. She proposed a set of rules for warrant approval that would have increased accountability and transparency from all parties involved.

Under the proposed rule change, which was shared with and reviewed by KyCIR, conversations between judges and law enforcement officers seeking a warrant would be recorded; only specific judges could review a search warrant request on a given day; and a judge who refuses to grant a warrant would be required to file the documents with the Jefferson County Circuit Court Clerk.

Judge Kaelin hopes these measures would "boost confidence in the judiciary," which is always a good thing, especially when controversial searches are still commonplace. This would also cut down on "judge shopping" by law enforcement officers, who may find some judges more compliant (or less attentive) than others.

It appears most of the Jefferson County judiciary isn't interested in bettering its relationship with the people who pay their salaries. Following several days of deafening silence, the Jefferson District court system finally admitted it wasn't going to change anything about its warrant approval process.

The judges met Tuesday to consider the proposal in a secret meeting. In the days that followed, Jefferson District Court Chief Judge Anne Haynie and court administrator Kelsey Doren did not respond to repeated requests about the outcome of the meeting.

On Friday afternoon, Doren said via email that the proposal failed. Minutes from the District Court’s judges’ regular monthly meetings “are confidential,” she said. Doren did not respond to a request for an interview with Chief Judge Haynie.

So much for the presumed openness of the courts. And so much for being receptive to any incremental increases in accountability and transparency. It will be business as usual in Jefferson County, where deficient warrant requests are rewarded with illegible judicial approval. If residents are killed by cops during raids predicated on boilerplate affidavits, so be it. Who needs checks and balances when there's a drug war to be fought?

Filed Under: 4th amendment, judges, kentucky, secrecy, transparency, warrants

Mine, Mine, Mine! Nintendo Neuters The Cool Ways People, Groups Are Using 'Animal Crossing'

from the nintendon't dept

To be honest, Animal Crossing was always going to be a hit. It's just the perfect distillation of the Nintendo experience: a cutesy social experience couched in harmless video game fun. Still, one unanticipated side effect of the global COVID-19 pandemic was how plenty of people and groups turned to the game for new and innovative ways of connecting with others. Examples abound, including players building a real-world economy around the game's resources, TV stars plying a version of their trade in the game, protests and social movements springing up in the game's world, and even the use of the game as part of the presidential election campaign. Mostly absent was any pushback from the gaming community. Instead, these few instances of crossover from real world to gaming world appeared to simply show the power of what Nintendo had created: an open and innovative gaming experience based on community and unbridled social interaction.

That description, of course, is about as historically un-Nintendo as it gets, so perhaps it's not entirely surprising that a recent update from Nintendo over its usage terms for the game seems to squarely aim to neuter much of this. In a post titled "Animal Crossing: New Horizons usage guidelines for businesses and organizations", which you can read for yourself in its entirety, Nintendo prohibits groups and organizations from doing the following:

However, please observe the following points when you engage in these activities.

Please be aware of the game rating and do not engage in activities that go beyond the rating.

Please refrain from using the Game inappropriately or creating any content within the Game that would be considered vulgar, discriminatory, or offensive. Please also refrain from bringing politics into the Game.

Please do not share false information about the Game with anyone, and do not deceive others while using the Game (e.g. falsely indicating you are separately licensed or otherwise approved by Nintendo).

Please do not leverage the Game as a marketing platform that directs people to activities or campaigns outside the game (including directing people to a sales page, distributing coupons, sweepstakes, giveaways, requiring consumers to follow social network services accounts, gathering customers’ information, or other invitational activities).

You are not allowed to obtain any financial benefit from using the Game (including selling your Custom Design or earning any advertising revenue with the Game content).

Now, some of these prohibitions are reasonable, albeit quite vague. No, you shouldn't falsely imply sanctioning by Nintendo; no, you shouldn't break the game's age rating through your actions.

But reading those guidelines pretty clearly also prohibits several of the cool interactions we detailed in the opening. Making any money from selling the game's resources to other gamers. Starting social movements within the game. And if all politics in the game are banned, there goes the innovative organizing use by Biden or other politicians as well.

And on that last bit about removing all politics from the game world: good fucking luck. This is a game built on social interaction and, since politics in 2020 has managed to invade every last crevice of our over-bloated society, it's going to come up. I imagine Nintendo mostly wants to limit official campaign actions within the game, which is stupid in and of itself. Still, building a social game and then telling customers how they can be social is simply not going to work.

Again, it's not surprising: this is as Nintendo as it gets. But it is certainly disappointing.

Filed Under: animal crossing, culture, politics
Companies: nintendo

Another Drug Lab Scandal -- One That Took Kids From Their Parents -- Ends In Prison Time

from the behold-the-motherfuckery-of-your-tax-dollars-at-work dept

Another horror story involving the government and a drug-testing lab is finally coming to a close. And the owner of the drug lab is going to jail.

Unlike others we've covered, this drug lab didn't contain employees who falsified drug tests that landed people in jail. But the outcome for the innocent was nearly as miserable. Faked drug tests performed by Brandy Murrah, the owner of A & J Lab Collections, resulted in parents losing their children.

As Ozark police continue to investigate reports of falsified drug and paternity cases involving a company contracted by the Department of Human Resources, families are coming forward with claims forged documents impacted their homes.

Jennifer Seavers is one of them.

“There’s not a day that goes by that I don’t cry, and I just want to bring my babies home as any parent would want to do,” Seavers said.

Seavers says she used the Department of Human Resource’s Pike County drug testing vendor, Brandy Murrah of A & J Lab Collections, as part of her custody battle for her youngest girls, Madilyn and Jennifer Grace.

Seavers said Murrah provided false positive drug tests, which prompted a judge to order restrictions on her access to her children - further complicating the custody battle.

This victim dug into the lab work supposedly performed by Murrah and found her test had been faked. The doctor that supposedly signed off on it had never seen the paperwork or reports generated by Murrah, who forged the doctor's signature on the documents.

The county also began digging into Murrah's drug testing and found more of the same.

Murrah had an agreement with the Dale County Department of Human Resources to perform drugs test on individuals involved in dependency, or custody, cases. She was not involved in any criminal cases.

Investigators said they launched their probe May 2 after evidence of drug screening reports that were provided to the Dale County Department of Human Resources by Murrah were found to be falsified. Ozark police Sgt. Cody Evans said multiple other drug screening reports provided to DHR are also believed to have been forged by Murrah.

It's unclear whether Murrah's actions were prompted by animosity towards her victims or just plain laziness. It really doesn't matter. Her actions ripped families apart and destroyed people's futures. But in the end, at least some justice was served.

Judge William Filmore decided Murrah, the former owner of an Ozark lab test collection company, will spend 15 years in prison after hearing testimony from those who said she falsified lab reports that led to their children being taken away.

Murrah pleaded guilty in September, agreeing to 15 years on a felony charge of perjury and 12 months on each of 16 misdemeanor counts of forgery to run concurrently.

This will give victims some closure. But it will only provide limited comfort. Their lives went through serious upheaval. Seavers isn't the only victim. Grace Newton went through the same nightmare. She fought through her drug problems to get her kids back only to have the state take away her three-month-old infant after a drug test handled by Murrah came back positive. This was reversed after a negative drug test, but for three weeks, the state became her baby's new parent, thanks to Murrah.

But here's the thing: it shouldn't take citizens wronged by a government contractor to suss out malfeasance and wrongdoing. The system residents are paying for with their tax dollars needs to be more proactive with its oversight. Rigorous oversight is difficult. But, ultimately, it's worth the time and effort. It's better to be perceived as skeptical than as a group of public servants willing to throw the public to the subcontracted wolves.

Filed Under: brandy murrah, drug testing lab, forged results, law enforcement
Companies: a&j lab collections

Will Parler Users Treat Its 'Glitch' That Hid Georgia Election Content The Same Way They Treated A Twitter Glitch?

from the hypocrites dept

It's been absolutely fascinating -- though not at all surprising -- to watch a ton of Trumpists mentally struggling with the process of understanding the nature, importance, and necessity of content moderation online over the last few months via Parler. As you may recall, after whining about being moderated on sites like Twitter and Facebook, a bunch of Trump fans started using Parler, a site that was only recently revealed to have been cofounded by Rebekah Mercer (Parler fans like to claim that their users are migrating from Twitter to Parler, but most of them are still using Twitter, because Parler is mostly them preaching to the converted).

Parler's founders (including Mercer) and its biggest fans have been insisting that Parler stands for "free speech" and that unlike Twitter, it won't moderate content. Indeed, despite claiming that it would only moderate "based off the FCC and the Supreme court" (whatever the fuck that means), we knew that the site would end up doing much more moderation, just like every other social media site.

In fact, we highlighted how Parler seemed to be doing a speedrun through the content moderation lessons of every previous social media network that comes on the scene, promising to do no moderation at all, and then quickly discovering that that's impossible. First, you have to moderate some content under law (such as child sexual abuse material). Second, there is plenty of content that you have strong legal reasons to moderate (such as copyright infringement, to avoid massive liability). Third, every site recognizes they need to deal with straight up spam. And lots of sites insist that they can just do that and nothing else. But then they discover that they have people on their platform trolling, harassing, and abusing others.

Last summer, we highlighted how Parler was banning trolls who were joining the platform just to make fun of Parler and its users. Hilariously, that post keeps getting comments every few days from Parler users saying things like "of course Parler has to ban you leftist trolls." Just a few examples from our comments. This guy says that he needs Parler as a sort of "safe space."

So, how does censorship feel to you? Parlor provides a place where people can escape the insults, bullying, Mental/emotional assaults. Try presenting a point of view without name calling, with facts and data, with an open mind and with a little thought toward strangers and how the vitriolic hates speech affects them. Then perhaps the lefties will be welcome.

This is pretty hilarious, given how frequently Trumpists mock others for wanting "safe spaces" and insisting that "hate speech" is not a thing. And then there's this one from someone who thinks its obvious that the users trolling Parler should get banned:

Every last one of those crybabies up there just self-explained why they were banned. Lol "I created an account just to mess with conservatives." Yeah dude, I can see why you were banned. If you create an account just to screw with people, you're a troll and you SHOULD be banned regardless of the web site. If you create an account to debate and give general respect to everyone, then no, you're fine. The people above got exactly what they deserved. NO WEB SITE is going to allow harassment of any kind. Period.

Um. Yes, that was the very point of that post. That every site discovers it needs to deal with harassment. And that's a big part of the reason why people get kicked off of Twitter.

I find it hilarious that the same crew who insists that Twitter/Facebook are "censoring" them, immediately spins around and insists that it's totally obvious that Parler must remove "trolls, hate speech and harassment" without recognizing their own hypocrisy.

Anyway, sooner or later we were going to have a controversy in which Parler moderation impacted their Trumpist-style supporters, rather than just the folks jumping in to troll. And that day is today.

The Daily Beast has an article giving some of the important background. A SuperPAC connected to convicted political scammer Roger Stone is trying to get people to write in Trump's name in the two Georgia Senate runoff elections:

The most aggressive call to boycott or cast protest ballots in the two runoff races has, so far, come from a dormant pro-Trump super PAC with ties to Stone that unveiled a new initiative to retaliate against the Republican Party’s supposed turncoats by handing Democrats control of the U.S. Senate.

The group, dubbed the Committee for American Sovereignty, unveiled a new website encouraging Georgia Republicans to write in Trump’s name in both of the upcoming Senate runoff elections, which could determine the party that controls the upper chamber during President-elect Joe Biden’s first two years in office. The PAC argued that doing so will show support for the president in addition to forcing Republicans to address the wild election-fraud conspiracy theories floated by Trump supporters and members of his own legal team.

This entire campaign is somewhat bewildering, since (1) there is no way to write-in names during the run-offs and (2) it would seem to go against Trumpist interests to sink the support of the two Republican candidates. So it was somewhat amusing to suddenly find out that Parler is apparently blocking hashtags related to this campaign:

For what it's worth, Parler's recently hired policy executive says that the accusation may have been "a glitch" according to Newsweek. And I'd totally buy that is a possibility.

There seems to be no way to link directly to that Parler post, but it says:

This is false, as evidenced by the fact that this post showed up when I searched for the tag.

There may be a glitch, or a delay of some kind, because the initial screen summarizing the results showed “1 post,” and then when you click on that, you see a whole bunch.

Please people, don’t jump to conclusions. I know you’re accustomed to biased content curation, but we don’t do that here. Ask before jumping to conclusions.

However, I will note that when Twitter admitted that it had a glitch that filtered some people out of auto-complete and latest results in search, the same folks rushing to Parler now (such as Ted Cruz) insisted that it was obviously deliberate and to this day continue to falsely accuse Twitter of shadowbanning them. So it's pretty rich for Parler people to say "please people, don't jump to conclusions." The only reason Parler has any audience at all is because its insanely gullible userbase jumped to a bunch of false conclusions about Twitter moderation.

Again, Parler has every right to moderate however it sees fit. And getting rid of trolls and assholes is a perfectly legitimate thing to do. Also, glitches happen all the time. However, I find it amusing that once again, Parler is learning all the same lessons that Twitter learned over time -- and Parler's users (and employees) are demanding we give Parler the benefit of the doubt they never gave Twitter. So before Parler's fervent supporters rush into our comments to defend Parler, let me be clear: Parler has every right to do this. No one is mocking them for that. We're mocking them for (1) insisting that Parler wouldn't do this and (2) for the fact that you give Parler the benefit of the doubt that you refuse to give Twitter.

Filed Under: content moderation, georgia elections, glitch, roger stone, section 230, social media
Companies: parler, twitter