Congrats To Elon Musk: I Didn’t Think You Had It In You To File A Lawsuit This Stupid. But, You Crazy Bastard, You Did It!

Free Speech

from the to-save-speech-we-need-to-censor-speech dept

So, yesterday we covered Elon Musk’s ridiculous censorial threat to sue Media Matters “the split second the court opens on Monday.” Of course, as we noted, you can file lawsuits 24/7. And yet, as the courts opened on Monday, there was nothing. As mentioned in the original post, I was away from internet access for most of Monday, and when I finally got back online I was told there was still no lawsuit.

But, then, on Monday evening, the lawsuit finally came, and it was glorious. Gloriously stupid.

Honestly, this feels like what you get when you have a rich but legally ignorant dude who announces on a Friday that there will be a lawsuit on Monday and finally finds some terrible lawyers who are actually willing to file something just to live up to that promise.

It’s not a good lawsuit. It’s barely even a lawsuit at all.

Let’s start at the top.

Problem 1: It was filed in Texas federal court, even as the complaint admits that exTwitter is a Nevada corporate entity, based in California, and Media Matters is a D.C.-based entity. The lawsuit barely makes any effort at all to justify the venue.

Indeed, what little justification they do present is not at all how any of this works. To get jurisdiction in Texas for non-Texas parties, they have to show that someone in Texas was involved, that the laws were violated by parties while they were in Texas, or were somehow directed at Texas parties. The complaint doesn’t even make an effort to do any of that. It just says “a substantial part of the events giving rise to the claims occurred herein.” But that’s not how any of this works.

Of course, we all know the real reason it was filed in a Texas federal court. While Texas has a pretty good anti-SLAPP law, the 5th Circuit had deemed that you can’t use it in federal court. If the lawsuit had been filed in the 9th Circuit, where exTwitter is, then California’s (or Nevada’s) anti-SLAPP law would apply.

Problem 2: The lawsuit flat out admits that Media Matters’ reporting was accurate. It makes a big deal of claiming that Media Matters “manipulated” things and “manufactured” the controversy but… still admits that Media Matters used the platform, and saw what it saw, and reported on it.

Media Matters executed this plot in multiple steps, as X’s internal investigations have revealed. First, Media Matters accessed accounts that had been active for at least 30 days, bypassing X’s ad filter for new users. Media Matters then exclusively followed a small subset of users consisting entirely of accounts in one of two categories: those known to produce extreme, fringe content, and accounts owned by X’s big-name advertisers. The end result was a feed precision-designed by Media Matters for a single purpose: to produce side-by-side ad/content placements that it could screenshot in an effort to alienate advertisers.

But this activity still was not enough to create the pairings of advertisements and content that Media Matters aimed to produce.

Media Matters therefore resorted to endlessly scrolling and refreshing its unrepresentative, hand-selected feed, generating between 13 and 15 times more advertisements per hour than viewed by the average X user repeating this inauthentic activity until it finally received pages containing the result it wanted: controversial content next to X’s largest advertisers’ paid posts.

Thus, on page 3 of the complaint, Musk’s newfound lawyers (not from a “BigLaw” firm like he usually uses) tell you that Media Matters did use the platform and did, in fact, see what it reported it saw. It’s just that exTwitter (i.e., Musk) doesn’t like how they they portrayed their usage of the platform.

Notably, the original article never made any claims suggesting that everyone was seeing ads on neo-Nazi content. They just said they saw these ads appearing next to neo-Nazi content, and the complaint admits as much.

So the complaint is “Media Matters set up an account that followed neo-Nazis, which we allow, and found ads next to that content, which we allow, but we’re mad because Media Matters should have followed other people instead.” That’s… not a cause of action.

Problem 3: The lawsuit admits that its real complaint is that it disagrees with how Media Matters framed the story. But, and I know Musk still can’t seem to wrap his brain around this rather important fact: part of free speech and a free press is that you don’t get to dictate how others cover stories about you.

You’d think that a “free speech absolutist” would get that. But Elon Musk appears to have deeply censorial instincts rather than free speech ones:

Media Matters omitted mentioning any of this in a report published on November 16, 2023 that displayed instances Media Matters “found” on X of advertisers’ paid posts featured next to Neo-Nazi and white-nationalist content. Nor did Media Matters otherwise provide any context regarding the forced, inauthentic nature and extraordinary rarity of these pairings

So, yeah, you might also notice that this is Musk admitting that “Neo-Nazi and white-nationalist content” appear on exTwitter and that Media Matters did, in fact, see ads appear next to that content. Great work.

Problem 4: The lawsuit admits that not just Media Matters saw these ads next to neo-Nazi content, even if not that many others saw those ads.

And in Apple’s case, only two out of more than 500 million active users saw its ad appear alongside the fringe content cited in the article—at least one of which was Media Matters

Again, throughout the complaint, it admits exactly what Media Matters reported.

Its only complaint is it doesn’t like how Media Matters reported it. But the 1st Amendment protects such editorial choices. As should any self-respecting “free speech absolutist.”

Problem 5: The lawsuit attacks Media Matters for… using exTwitter’s system the way exTwitter allowed them to. It claims Media Matters “manipulated” the platform, but then describes how it used it in a perfectly reasonable manner, and that exTwitter served up the ads. Media Matters didn’t make exTwitter show these ads. ExTwitter just showed them.

Literally, the complaint admits that exTwitter’s systems worked exactly the way they were designed to, showing ads on content that someone followed, and if someone follows neo-Nazis, then ads are likely to show on that content.

First, Media Matters set out on their attempt to evade X’s content filters for new users by specifically using an account that had been in existence for more than thirty days.

Next, Media Matters set its account to follow only 30 users (far less than the average number of accounts followed by a typical active user, 219), severely limiting the amount and type of content featured on its feed. All of these users were either already known for posting controversial content or were accounts for X’s advertisers. That is, 100% of the accounts Media Matters followed were either fringe accounts or were accounts for national large brands. In all, this functioned as an attempt to flood the Media Matters account with content only from national brands and fringe figures, tricking the algorithm into thinking Media Matters wanted to view both hateful content and content from large advertisers.

Even this did not produce Media Matters’ intended result. An internal review by X revealed that Media Matters’ account started to alter its scrolling and refreshing activities in an attempt to manipulate inorganic combinations of advertisements and content. Media Matters’ excessive scrolling and refreshing generated between 13 and 15 times more advertisements per hour than would be seen by a typical user, essentially seeking to force a situation in which a brand ad post appeared adjacent to fringe content.

So, now… going on exTwitter, following neo-Nazis that Musk refuses to ban, and following advertisers is manipulative? As is “reloading” your feed? Under what theory?

Problem 6: It claims Media Matters “defamed” exTwitter, but then doesn’t include a defamation claim. The lawsuit mentions defamation three times, but not in the claims. So it repeatedly pretends that it’s arguing defamation, even though it’s not:

On November 16, 2023, Media Matters published a false, defamatory, and misleading article with the headline, “X has been placing ads for Apple, Bravo, IBM, Oracle, and Xfinity3 next to pro-Nazi content,” claiming that X was responsible for anti-Semitic content being paired with X’s advertisers’ paid posts.

If it was actually defamatory, Musk would have sued for defamation. The problem was that it was not. So calling it defamatory and not alleging defamation in the claims kinda makes it clear that they’re really just suing because Musk is mad about the article.

Honestly, it reads like the poor lawyer who had to do this rush job thought he was filing a defamation claim, and so added in a few claims of defamation, then a more senior lawyer realized before filing that there’s no fucking way any of this is even remotely defamation, but no one bothered to take out the language about defamation.

Now, there is a “business disparagement” claim and that’s kind of like defamation, but… even harder to show? And it still requires proving actual malice, which this complaint doesn’t even attempt to do. It does do a “Media Matters hates conservatives,” but that’s not how actual malice works.

Problem 7: Other than the “business disparagement” claim, the only thing they can sue over are nonsense throw-in causes of action: “interference with contract,” and “interference with prospective economic advantage.”

These are the kinds of claims that terrible lawyers often include with defamation claims to try to make the lawsuit more scary, and they’re usually dismissed with the defamation claims when judges say “um, you’re really just trying to say defamation in another way here.”

None of the causes of action make any sense here. What Media Matters did was find these ads and accurately report what it found. If that causes advertisers to bail, that’s not “interference with a contract.” It’s… just reporting. If accurate reporting causes someone to end a business relationship, you don’t get to sue over it.

Problem 8: The lawsuit names Media Matters employee Eric Hananoki as a defendant and then never makes a single claim against him. It mentions (mostly in footnotes) that Hananoki has written articles critical of Musk, including the article in the complaint. But, um, if you file a lawsuit against a particular party, you have to say in the lawsuit how that party actually violated the tort in question. And the lawsuit doesn’t even bother trying.

Honestly, Hananoki has the easiest “motion to dismiss for failure to state a claim” argument ever. Normally, you have to respond to the claims made about you and how, even if true, you didn’t violate the law in question. Hananoki doesn’t even need to do that. He can just point out that the lawsuit literally makes no claims against him.

Problem 9: The lawsuit insists advertisers bailed because of this article, but conveniently leaves out the fact that Elon Musk endorsed an antisemitic conspiracy theory a day earlier, and has been promoting bigoted nonsense content for months now. Also, advertisers are free to leave if they want.

Finally, this isn’t exactly a “problem” with the lawsuit, but I’ll just note the conflict in two separate statements:

X Corp. and Elon Musk are a critical Media Matters target because X is the most prominent online platform that permits users to share all viewpoints, whether liberal or conservative, and Mr. Musk is the most prominent voice on the platform and a passionate supporter of free speech.

That’s in paragraph 41 on pages 11 and 12. On Page 14 in the prayer for relief we get this:

A preliminary and permanent injunction ordering Defendants to immediately delete, take down, or otherwise remove the article entitled “As Musk Endorses Antisemitic Conspiracy Theory, X Has Been Placing Ads for Apple, Bravo, IBM, Oracle, and Xfinity Next to Pro-Nazi Content From Its Web” from all websites and social media accounts owned, controlled, or operated, directly or indirectly, by Defendants;

So… within the span of about 2 to 3 pages we are told that Elon Musk and exTwitter are passionate supporters of free speech that allow “all viewpoints” to be shared and that Musk is filing this lawsuit to force Media Matters to take down speech that he admits is absolutely true, but where he doesn’t like how they portrayed things.

Anyway, kudos to Elon. This really takes stupid SLAPP suits to incredible new levels. I didn’t think you’d be able to find a lawyer who would file a lawsuit so stupid, that makes you look this ridiculous, but you did it. Just like people doubted your ability to shoot rockets into space or make popular electric vehicles, I should not have doubted your ability to file absolutely nonsense SLAPP suits that are this laughable.

Filed Under: ads, business disparagement, defamation, elon musk, slapp, texas
Companies: media matters, twitter, x

If You Kill Two People In A Car Crash, You Shouldn’t Then Sue Their Relatives For Emailing Your University About What You Did

Free Speech

from the insult-to-injury dept

Holy shit.

So, in 2021 there was a car accident in Atwater California that killed a married couple, Pam and Joe Juarez. According to police reports at the time, a 20-year-old Stanford student, King Vanga, struck their car from behind. Here’s how ABC 30 reported on the matter:

The California Highway Patrol says Pam, 56, and Joe, 57, were driving west on Santa Fe Avenue approaching Spaceport Entry in Atwater.

They were just minutes away from their son’s house.

Officials say that’s when 20-year-old King Vanga collided into the back of their car at a high rate of speed.

The Juarez’s spun out and their vehicle caught fire.

Vanga overturned into a fence.

The Juarez’s died at the scene.

Vanga had minor injuries was booked into the Merced County Jail for driving under the influence of drugs and/or alcohol and vehicular manslaughter.

The filed police reports claim that the officers believed Vanga was under the influence of alcohol, saying they smelled alcohol, though they were unable to administer a field sobriety test. He was still charged with a DUI, along with the vehicular manslaughter charges.

Vanga has since sued the police, claiming that the police violated his rights by attacking and tasing him, and that he “never drinks” and therefore the DUI charges are bogus. A blood test that was analyzed later by the California DOJ found that he had no traces of alcohol in his blood at the time, so it is entirely possible that he wasn’t actually drunk. Whether or not he was actually drunk or not seems like a fairly minor point in all of this, given that two people died in an accident where Vanga drove into the back of their car at high speed.

The family of Pam & Joe Juarez were understandably upset by their death, and a few family members sent emails to Stanford to alert them to what had happened, and alert them that they did not feel that Vanga had live up to Stanford’s code of conduct.

Vanga, somewhat incredibly, has decided to sue the family members of the couple he killed, claiming that their emails to Stanford were defamatory, because (a) they mention the DUI based on the police report and public reporting and (b) some of them said he “murdered” their family members, rather than merely killing them.

Let me repeat that, because it is quite incredible. It is undisputed that Vanga rear-ended another car, leading to the death of the two people in that car. Some of family members of the dead couple sent understandably angry letters to Stanford, the university Vanga attended. And now Vanga has sued those family members for relying on a potentially inaccurate police report, and using the word “murder” for what he did.

This is the SLAPPiest of SLAPP suits.

And now one of the defendants, Priscilla Juarez (a daughter-in-law of the deceased couple), has brought on Ken “Popehat” White to represent her against this insult-to-injury lawsuit. White has now filed an anti-SLAPP motion on Juarez’s behalf that calls out just how crazy this situation is:

Plaintiff King Vanga, a privileged student at an elite university, killed Defendant Priscilla Juarez’s in-laws and is now suing her for privately complaining about it. He is doing so in an overt effort to extort from her a promise not to encourage his criminal prosecution. This is a shocking and contemptible abuse of the justice system. Fortunately, the system that lets King Vanga abuse and harass his victims also provides a remedy – California’s robust anti-SLAPP statute. Plaintiff’s First Amended Complaint (“FAC”) is a classic SLAPP, and this Court should dismiss it and award Ms. Juarez her fees and costs.

It’s undisputed that King Vanga was in a car accident that killed Jose and Pamela Juarez, Ms. Juarez’ husband’s parents. It’s also undisputed that Merced County charged Plaintiff with vehicular manslaughter and DUI causing great injury, and that the press widely reported that Plaintiff was intoxicated at the time of the accident. Based on the criminal charges against Plaintiff, the press coverage she reviewed, and statements by police officers on the scene, Ms. Juarez wrote an email (“the Email”) to Stanford University stating her opinion that Plaintiff had violated its honor code, based explicitly on the criminal charges and press coverage. There’s no indication that Stanford disciplined Plaintiff. Instead, Plaintiff got a copy of the Email through a FERPA request, used it as an opportunity to sue Ms. Juarez for defamation, and made an extortionate demand that he would not drop the suit unless Ms. Juarez stopped talking about him killing her in-laws and stopped pushing for his prosecution.

California’s anti-SLAPP statute protects Ms. Juarez from King Vanga’s loathsome and immoral abuse of process. Ms. Juarez easily meets the first prong of the anti-SLAPP test, as her Email was sent in relation to an ongoing judicial proceeding and was an exercise of her right to free speech on an issue of public interest. But Plaintiff cannot carry his burden of showing a probability of prevailing. Most of the Email was Ms. Juarez’ overt opinions and conclusions, and was absolutely protected by the First Amendment. To the extent Ms. Juarez repeated factual allegations in the criminal complaint against Plaintiff and the extensive news coverage of the accident, Plaintiff cannot show that Ms. Juarez was negligent to rely on it.

Such a rule would mean that crime victims could never comment on crimes based on criminal charges and news coverage. Ms. Juarez’s statement is also protected by California’s common interest privilege. Finally, Plaintiff cannot provide admissible evidence of damages resulting from the Email. The Court should grant this Motion, dismiss this utterly shameful FAC, and award Ms. Juarez her attorney fees and costs.

There’s much more in the anti-SLAPP motion to strike. It details how Priscilla not only read the news about this, which accurately reported what Vanga was charged with, but also that family members had spoken with the arresting officer, who told them of his belief that Vanga was intoxicated. Whether or not that turned out to be true, it certainly shows that Juarez had a justification for saying what she said.

It also highlights how the first time she heard about Vanga denying being intoxicated was when he filed his lawsuit against the police, which was long after she had sent her email to Stanford.

And then there’s this:

After filing the lawsuit, Plaintiff’s counsel sent Mrs. Juarez an email offering to drop the lawsuit if Ms. Juarez agreed “not to make or publish any disparaging statements about Mr. Vanga in the future” and “not to encourage the criminal prosecution of Mr. Vanga, including by communicating with government officers or protesting at any conference, hearing, or trial involving Mr. Vanga.” (Juarez Decl. at ⁋21; Exhibit 9). Mrs. Juarez did not agree to abandon her First Amendment right to advocate for her in-laws.

Gross.

Again, it is entirely possible that the cops were wrong in believing Vanga was intoxicated. We’ve covered many cases on this very site about cops being wrong. So if Vanga wants to sue the cops, more power to him.

But suing the family of the people who died because he rear-ended their car, for sending a private email to Stanford (over which the University took no action), based on public reporting and what officers on the scene said, is fucking crazy. It’s yet another example of abusing the courts to silence someone, and in this particular case adding real insult to actual injury.

The court should grant the motion to strike and make him pay through the nose for this gross abuse of the legal process to silence speech.

This is why we have been arguing for years for more and better anti-SLAPP laws. Luckily, California has a strong one. But many states do not. And even in many states that do have one, it cannot apply in federal court. We need every state to have a strong anti-SLAPP law and we need a federal anti-SLAPP law.

Filed Under: anti-slapp, atwater police, california, chp, defamation, jose juarez, king vanga, pamela juarez, police reports, priscilla juarez, slapp

‘Free Speech Absolutist’ Elon Musk Promises To Sue Media Matters To Silence Their Speech

Free Speech

from the new-champion-in-free-speech-hypocrisy dept

The fakest “free speech absolutist” who ever lived is at it again. As you may recall, earlier this year, Elon Musk sued the Center for Countering Digital Hate (CCDH) claiming that its report documenting an alleged “surge of hateful content” on exTwitter somehow violated contracts (after first threatening to sue for defamation, but not actually suing for defamation).

Just last Thursday, CCDH filed its anti-SLAPP motion in that case.

Apparently unhappy with how it is faring in the marketplace of ideas, X Corp. asks this Court to shut that marketplace down—to punish the CCDH Defendants for their speech and to silence others who might speak up about X Corp. in the future. Thus, X Corp. seeks “at least tens of millions of dollars” in damages based on how advertisers reacted to what the CCDH Defendants said about X Corp. in their public reports. Conspicuously, X Corp. has not asserted a defamation claim—understandably so, since it cannot allege that the CCDH Defendants said anything knowingly false, nor does it wish to invite discovery on the truth about the content on its platform. Instead, X Corp. has ginned up baseless claims purporting to take issue with how the CCDH Defendants gathered data that formed the basis for their research and publications. Each theory is flimsier and more absurd than the last….

[….]

X Corp.’s claims are riddled with legal deficiencies on their own terms. They also all share one fundamental flaw: at its core, X Corp.’s grievance is not that the CCDH Defendants gathered public data in violation of obscure (and largely imagined) contract terms, but that they criticized X Corp. (forcefully) to the public. In essence, X Corp. seeks to dodge the requirements that the First Amendment imposes on defamation claims by asserting other claims that are no less entwined with the CCDH Defendants’ speech.

What happens in that case will be interesting to follow. As we’ve noted, we’ve frequently disagreed with CCDH’s research, and think they’re prone to exaggeration and misunderstanding. But that doesn’t mean they can’t say what they want to say. The marketplace of ideas that Musk keeps pretending to support would mean that he has every opportunity to reply. But suing is using the power of the state to silence speech, and that’s what the 1st Amendment is supposed to stop.

But “free speech absolutist” Elon Musk simply cannot stand anyone criticizing him at all.

As you likely know, on Thursday, Media Matters released a report detailing how they found big name advertisers’ ads next to blatant neo-Nazi content. This came just a day after Elon wholeheartedly endorsed the ridiculous made up antisemitic “replacement theory” trope.

Soon after that happened, as we noted, IBM pulled its advertising from exTwitter. All day Friday there were more and more reports of big advertisers pulling their ads, including Apple (which has been one of the biggest, if not the biggest advertiser left on exTwitter). Also pausing ads: Disney (another big one), Comcast/NBCUniversal, Lionsgate, Warner Bros. Discovery, Paramount, Sony Pictures… and even the EU?

The movie studios were big advertisers on the site, so that’s gotta hurt.

But rather than trying to be better, on Friday night Elon went into typical Elon mode. He announced on exTwitter a plan to sue Media Matters first thing Monday morning (this morning):

If you can’t read that, it’s Elon posting a poorly edited document (which we’ll get to in a moment) and tweeting:

The split second court opens on Monday, X Corp will be filing a thermonuclear lawsuit against Media Matters and ALL those who colluded in this fraudulent attack on our company.

Their board, their donors, their network of dark money, all of them …

So, um, first of all, as threatened, this is a SLAPP suit. A blatant SLAPP suit and a clearly vexatious one. Also, under what fucked up theory of liability does one get to sue Media Matters’ board and donors? This is not how any of this works.

Now, let’s get to the document in the image. Here’s what it says, broken up with some commentary:

Stand with X to protect free speech

This week Media Matters for America posted a story that completely misrepresented the real user experience on X, in another attempt to undermine freedom of speech and mislead advertisers.

Above everything, including profit, X works to protect the public’s right to free speech. But for speech to be truly free, we must also have the freedom to see or hear things that some people may consider objectionable. We believe that everyone has the right to make up their own minds about what to read, watch, or listen to – because that’s the power of freedom of speech.

Despite our clear and consistent position, X has seen a number of attacks from activist groups like Media Matters and legacy media outlets who seek to undermine freedom of expression on our platform because they perceive it as a threat to their ideological narrative and those of their financial supporters. These groups try to use their influence to attack our revenue streams by deceiving advertisers on X.

Hey, free speech absolutist: activists using their free speech to criticize you is free fucking speech too. It’s hilariously hypocritical that Musk says here that “for speech to be truly free, we must also have the freedom to see or hear things that some people may consider objectionable”… in an announcement of a plan to sue an organization for speech Musk personally finds objectionable.

Similarly you do not actually “believe that everyone has the right to make up their own minds about what to read, watch, or listen, to” when you are making that claim in a document about how you are going to sue an organization to remove them from that marketplace of ideas, such that people are not, in fact, able to make up their mind. You’re seeking to silence someone for their speech.

Here are the facts on Media Matters’ research:

• To manipulate the public and advertisers, Media Matters created an alternate account and curated the posts and advertising appearing on the account’s timeline to misinform advertisers about the placement of their posts. These contrived experiences could be applied to any platform.
• Once they curated their feed, they repeatedly refreshed their timelines to find a rare instance of ads serving next to the content they chose to follow. Our logs indicate that they forced a scenario resulting in 13 times the number of ads served compared to the median ads served to an X user.
• Of the 5.5 billion ad impressions on X that day, less than 50 total ad impressions were served against all of the organic content featured in the Media Matters article.
  • For one brand showcased in the article, one of its ads ran adjacent to a post 2 times and that ad was seen in that setting by only two users, one of which was the author of the Media Matters article.
  • For another brand showcased in the article, two of its ads served adjacent to 2 posts, times, and that ad was only seen in that setting by one user, the author of the Media Matters article.
• Media Matters’ article also highlights nine posts they believe should not be allowed on X. Upon evaluation, only one of the nine organic posts featured in the article violated our content policies, and we’ve taken action on it under our Freedom of Speech, Not Reach enforcement approach.

So, in a true “marketplace of ideas” you present those points, and then you let everyone “make up their own minds” about what to believe. You don’t sue. Suing over such speech is anti-free speech.

But, here’s the real kicker: in this post, Musk admits that what they published was in fact what happened. The fact that they may have set up a special account and tried to just follow sketchy accounts does not change the facts. They saw blatant neo-Nazi content on the site and it had ads next to it from big name advertisers.

In other words, in this screed, Elon is flat out admitting that Media Matters’ report was factually accurate. He’s only disputing their interpretation of those facts. And… that’s not defamatory.

Also, admitting that 8 out of the 9 neo-Nazi posts they called out are fine under your policies is not quite the claim you think it is.

Here’s a summary on this all:

1. X will protect the public’s right to free expression. We will not allow agenda-driven activists, or even our own profits, to deter our vision.

Except if that public points out things that make Elon mad. Then, free expression is out the window. What a fucking hypocrite.

2. Everyone has a choice on X. User and brand control on X is superior to a year ago.

Everyone, that is, except for activists who criticize you. Those people get sued with a SLAPP suit designed to silence them.

3. Data wins over allegations. Media Matters does not reflect the user experience on X.

The data shows that their report was accurate. You just disagree with their interpretation. Which, again, is free speech.

As we’ve seen in some parts of the world, when free expression is taken away, it is very dangerous and hard to get back – that’s why the people who came before us fought so hard to protect. Without freedom of speech we lose the checks and balances critical to a thriving democracy. We must defend our individual rights as if our lives, and flourishing society, depend on it.

Yes. This is why we need strong anti-SLAPP laws at both the state and federal level to stop this kind of nonsense. What Elon is doing here is not “defending free speech,” it’s literally attacking it.

If you’re really in on protecting free speech, then we all need to protect it completely.

Stand with X to protect free speech.

… “by suing a non-profit for speech that criticizes us.”

This is not free speech at all. This is Elon believing that free speech is only the speech he likes, and anything that criticizes exTwitter must be against free speech, because it drives support away from exTwitter which (in his mind alone) is fighting for free speech. This is authoritarian bullshit. It’s “we have to kill these protestors to protect our freedoms” kind of nonsense.

Also, Elon, the advertisers pulling their ads? It’s not because of Media Matters. It’s because you fucking endorsed a bonkers antisemitic conspiracy theory the same week. Part of free speech is the right not to associate with speech. Companies criticizing you is free speech. Same thing when companies choose not to associate with you.

And, not surprisingly, Elon’s biggest fans are cheering this on. A bunch of bluechecks cheering him on for “fighting for free speech” by… promising to sue an organization for its free speech. These people are delusional.

It sure seems like all their “free speech” support is pretty fucking conditional on whether or not they like the speech, huh?

And, because these stories can always get dumber, on Sunday there was an exchange in which someone (falsely) suggested that what Media Matters did (signing up for an account, following neo-Nazis, reporting that they saw ads) is the equivalent of fraud (it’s not). And that resulted in world’s worst human being candidate Stephen Miller tweeting that “fraud is both civil and criminal” and suggesting that “conservative state Attorneys General” should look into it, because he doesn’t even remotely care one bit about pretending that he’s not talking about having law enforcement prosecute speech because of ideological differences.

Musk, who I must remind you pretends to be a “free speech absolutist”, responded to Miller’s blatant call for having “conservative” AGs file criminal charges over speech because of ideological differences by cheering it on, followed by Missouri’s Andrew Bailey saying that his team was investigating:

Here’s where I remind you that AG Bailey is one of the two state AGs leading the case (currently before the Supreme Court) arguing that “the government should never try to influence how social media moderates.” That case started out as Missouri v. Biden (though the Supreme Court version is Murthy v. Missouri). Either way, Bailey is AG of Missouri.

So his argument appears to be “the Biden administration cannot pressure social media, but the Missouri government absolutely can.” Or, more accurately “it’s unconstitutional when Democrats do it, but it’s absolutely fine when Republicans do.”

I’m curious to see if any of those supporting Missouri’s case will admit that Bailey is a fucking hypocrite here?

Anyway, we’re posting this Monday morning, though as Ken White helpfully pointed out to Elon, you don’t have to fucking wait until Monday morning to file a lawsuit in the age of electronic filings:

So, who knows, it’s possible the lawsuit has already been filed (though, as Ken pointed out over on Bluesky, “only a twat would rush to file a complicated lawsuit.”) However, I’m traveling today, so if an actual lawsuit was filed, I’ll find out about it later, and see what (if anything) is worth covering some other time.

Filed Under: advertisers, andrew bailey, antisemitism, elon musk, free speech, marketplace of ideas, slapp suits, threats
Companies: apple, disney, ibm, media matters, twitter, x

DSA Framers Insisted It Was Carefully Calibrated Against Censorship; Then Thierry Breton Basically Decided It Was An Amazing Tool For Censorship

Free Speech

from the our-new-truth-czar-is-overreaching dept

A few weeks ago, I highlighted how EU chief Digital Services Act enforcer, Thierry Breton, was making a mess of things sending broadly threatening letters (which have since been followed up with opening official investigations) to all the big social media platforms. His initial letter highlighted the DSA’s requirements regarding takedowns of illegal content, but very quickly blurred the line between illegal content and disinformation.

Following the terrorist attacks carried out by Hamas against Israel, we have indications that your platform is being used to disseminate illegal content and disinformation in the EU.

I noted that the framers of the DSA have insisted up, down, left, right, and center that the DSA was carefully designed such that it couldn’t possibly be used for censorship. I’ve highlighted throughout the DSA process how this didn’t seem accurate at all, and a year ago when I was able to interview an EU official, he kept doing a kind of “of course it’s not for censorship, but if there’s bad stuff online, then we’ll have to do something, but it’s not censorship” dance.

Some people (especially on social media and especially in the EU) got mad about my post regarding Breton’s letters, either saying that he was just talking about illegal content (he clearly is not!) or defending the censorship of disinformation as necessary (one person even told me that censorship means something different in the EU).

However, it appears I’m not the only one alarmed by how Breton has taken the DSA and presented it as a tool for him to crack down on legal information that he personally finds problematic. Fast Company had an article highlighting experts saying they were similarly unnerved by Breton’s approach to this whole thing.

“The DSA has a bunch of careful, procedurally specific ways that the Commission or other authorities can tell platforms what to do. That includes ‘mitigating harms,’” Keller says. The problem with Breton’s letters, she argues, is that they “blow right past all that careful drafting, seeming to assume exactly the kind of unconstrained state authority that many critics in the Global South warned about while the DSA was being drafted.”

Meanwhile, others are (rightfully!) noting that these threat letters are likely to lead to the suppression of important information as well:

Ashkhen Kazaryan, senior fellow of free speech and peace at the nonprofit Stand Together, objects to the implication in these letters that the mere existence of harmful, but legal, content suggests companies aren’t living up to their obligations under the DSA. After all, there are other interventions, including warning labels and reducing the reach of content, that platforms may be using rather than removing content altogether. Particularly in times of war, Kazaryan, who is a former content policy manager for Meta, says these alternative interventions can be crucial in preserving evidence to be used later on by researchers and international tribunals. “The preservation of [material] is important, especially for things like actually verifying it,” Kazaryan says, pointing to instances where evidence of Syrian human rights offenses have been deleted en masse.

The human rights civil society group Access Now similarly came out with concerns about Breton’s move fast and break speech approach might come across.

Firstly, the letters establish a false equivalence between the DSA’s treatment of illegal content and “disinformation.”’ “Disinformation” is a broad concept and encompasses varied content which can carry significant risk to human rights and public discourse. It does not automatically qualify as illegal and is not per se prohibited by either European or international human rights law. While the DSA contains targeted measures addressing illegal content online, it more appropriately applies a different regulatory approach with respect to other systemic risks, primarily consisting of VLOPs’ due diligence obligations and legally mandated transparency. However, the letters strongly focus on the swift removal of content rather than highlighting the importance of due diligence obligations for VLOPs that regulate their systems and processes. We call on the European Commission to strictly respect the DSA’s provisions and international human rights law, and avoid any future conflation of these two categories of expression. 

Secondly, the DSA does not contain deadlines for content removals or time periods under which service providers need to respond to notifications of illegal content online. It states that providers have to respond in a timely, diligent, non-arbitrary, and objective manner. There is also no legal basis in the DSA that would justify the request to respond to you or your team within 24 hours. Furthermore, by issuing such public letters in the name of DSA enforcement, you risk undermining the authority and independence of DG Connect’s DSA Enforcement Team.

Thirdly, the DSA does not impose an obligation on service providers to “consistently and diligently enforce [their] own policies.” Instead, it requires all service providers to act in a diligent, objective, and proportionate manner when applying and enforcing the restrictions based on their terms and conditions and for VLOPs to adequately address significant negative effects on fundamental rights stemming from the enforcement of their terms and conditions. Terms and conditions often go beyond restrictions permitted under international human rights standards. State pressure to remove content swiftly based on platforms’ terms and conditions leads to more preventive over-blocking of entirely legal content.

Fourthly, while the DSA obliges service providers to promptly inform law enforcement or judicial authorities if they have knowledge or suspicion of a criminal offence involving a threat to people’s life or safety, the law does not mention a fixed time period for doing so, let alone one of 24 hours. The letters also call on Meta and X to be in contact with relevant law enforcement authorities and EUROPOL, without specifying serious crimes occurring in the EU that would provide sufficient legal and procedural ground for such a request. 

Freedom of expression and the free flow of information must be vigorously defended during armed conflicts. Disproportionate restrictions of fundamental rights may distort information that is vital for the needs of civilians caught up in the hostilities and for recording documentation of ongoing human rights abuses and atrocities that could form the basis for evidence in future judicial proceedings. Experience shows that shortsighted solutions that hint at the criminal nature of “false information” or “fake news” — without further qualification — will disproportionately affect historically oppressed groups and human rights defenders fighting against aggressors perpetrating gross human rights abuses. 

No one is suggesting that the spread of mis- and disinformation regarding the crisis is a good thing, but the ways to deal with it are tricky, nuanced, and complex. And having a bumbling, egotistical, blowhard like Breton acting like the dictator for social media speech is going to cause a hell of a lot more problems than it solves.

Filed Under: censorship, digital services act, disinformation, dsa, eu, thierry breton
Companies: meta, tiktok, twitter, x, youtube

Stop Letting Nonsense Purveyors Cosplay As Free Speech Martyrs

Free Speech

from the oh,-i-do-declare-westminster dept

A few people have been asking me about last week’s release of something called the “Westminster Declaration,” which is a high and mighty sounding “declaration” about freedom of speech, signed by a bunch of journalists, academics, advocates and more. It reminded me a lot of the infamous “Harper’s Letter” from a few years ago that generated a bunch of controversy for similar reasons.

In short, both documents take a few very real concerns about attacks on free expression, but commingle them with a bunch of total bullshit huckster concerns that only pretend to be about free speech, in order to legitimize the latter with the former. The argument form is becoming all too common these days, in which you nod along with the obvious stuff, but any reasonable mind should stop and wonder why the nonsense part was included as well.

It’s like saying war is bad, and we should all seek peace, and my neighbor Ned is an asshole who makes me want to be violent, so since we all agree that war is bad, we should banish Ned.

The Westminster Declaration is sort of like that, but the parts about war are about legitimate attacks of free speech around the globe (nearly all of which we cover here), and the parts about my neighbor Ned are… the bogus Twitter Files.

The Daily Beast asked me to write up something about it all, so I wrote a fairly long analysis of just how silly the Westminster Declaration turns out to be when you break down the details. Here’s a snippet:

I think there is much in the Westminster Declaration that is worth supporting. We’re seeing laws pushed, worldwide, that seek to silence voices on the internet. Global attacks on privacy and speech-enhancing encryption technologies are a legitimate concern.

But the Declaration—apparently authored by Michael Shellenberger and Matt Taibbi, along with Andrew Lowenthal, according to their announcement of the document—seeks to take those legitimate concerns and wrap them tightly around a fantasy concoction. It’s a moral panic of their own creation, arguing that separate from the legitimate concern of censorial laws being passed in numerous countries passed, there is something more nefarious—what they have hilariously dubbed “the censorship-industrial complex.”

To be clear, this is something that does not actually exist. It’s a fever dream from people who are upset that they, or their friends, violated the rules of social media platforms and faced the consequences.

But, unable to admit that private entities determining their own rules is an act of free expression itself (the right not to associate with speech is just as important as the right to speak), the crux of the Westminster Declaration is an attempt to commingle legitimate concerns about government censorship with grievances about private companies’ moderation decisions.

You can click through to read the whole thing…

Filed Under: free seech, matt taibbi, michael shellenberger, moral panic, twitter files, westminster declaration
Companies: twitter

Supreme Court Asked (Again!) To Rule That Recording Cops Is Protected By The 1st Amendment

Free Speech

from the this-issue-is-never-going-to-just-go-away dept

You’d think this legal question would be settled by now. Smartphones have been in everyday use for more than a decade. Citizen journalists have been part of our daily life ever since the advent of affordable portable cameras. The internet has democratized publication, lowering the barrier between observation and accountability.

Cops hate this. But the law seems pretty much settled: recording public officials performing their public duties in public is an obvious use of First Amendment rights. If cops can declare there’s no privacy expectation when you’re out in public, they can’t suddenly claim being filmed while they are in public is somehow a problem.

But they do. And they have. States with poorly written wiretapping laws have seen them abused for years by cops who don’t like being recorded. And anywhere there’s no appellate precedent saying otherwise, cops have been rolling the dice on exoneration by arresting people for the “crime” of making a permanent record of their public activities.

For some reason, the Supreme Court has yet to deliver a definitive ruling on the matter. This reconciliation is long overdue. It’s hardly even a matter of debate. Recording public officials is something that definitely serves the public interest, even if these officials would beg to disagree to the point of having someone arrested.

The Supreme Court is being given another chance to set nationwide precedent and settle this matter completely. Given its reluctance to draw bright lines when it comes to cops, we’ll continue to hold our breath and applause until the dispensation arrives.

The Institute for Justice has filed a brief [PDF] siding with Dijon Sharpe in his lawsuit against the Winterville (North Carolina) police department. Sharpe sued the PD years ago (many, many years ago) after his phone was grabbed by cops during a 2014 traffic stop. Sharpe was a passenger in the car. When he tried to film the stop, he was accosted by both officers at the scene:

Officer Helms noticed this activity and attempted to take Sharpe’s phone, reaching through Sharpe’s open car window. [J.A. 9, 55, 75.] Officer Helms and his partner Officer William Ellis then told Sharpe he could record the stop but could not stream it to Facebook Live because that threatened officer safety.

The officers then threatened him with an arrest if he tried to broadcast the recording. Sharpe sued, pointing out these actions were not only arguably unconstitutional but given tacit blessing by PD policy, which apparently made it acceptable to threaten people with arrest for doing nothing more than observing a traffic stop through the lens of their phone camera.

This case arrived at the Fourth Circuit Appeals Court earlier this year. The Fourth Circuit did establish precedent in this case. It stated affirmatively that the act of recording police officers was protected by the First Amendment. Unfortunately, it said there was no way these officers could have known that and granted them qualified immunity.

That’s where this appeal to the nation’s top court begins. But the Institute of Justice isn’t just asking for a reversal of immunity. It wants what will make this reversal possible (although not likely, given the circumstances): an affirmative declaration from the Supreme Court that recording police officers is protected by the Constitution.

The brief opens with a criticism of qualified immunity cases in general that has a direct application to the case at hand. It asks the court to create an unqualified bright line for First Amendment protection that won’t force petitioners to play a game of Battleship with federal courts in hopes of sinking future qualified immunity arguments. (Emphasis in the original.)

To overcome the judge-made scavenger hunt of finding “clearly established” caselaw, lower courts (and police officers) often find themselves slicing and dicing factual differences to excuse constitutional violations. In right-to-record cases, then, lower courts improperly focus on who is recording, how the video is being recorded, or other immaterial factors that muddle the analysis and result in police officers escaping liability for their constitutional violations.

That’s exactly what happened here. Respondents, the district court, and the Fourth Circuit all narrowly focused on how Petitioner recorded the police (through Facebook Live) and who was doing the recording (a passenger) to excuse the officer’s retaliation. But under the First Amendment and this Court’s qualified immunity precedent, it shouldn’t matter what app or device Petitioner used to record the police—or whether Petitioner saved the video to his device, on some cloud-based service, or through a website like Facebook. Nor should it matter whether a journalist, a bystander, a passenger, or anyone else is doing the recording. Instead, a right to record the police is a right to record the police. This case gives the Court the chance to articulate a clean rule at the proper level of generalization.

It’s a good argument. But the Supreme Court is the biggest part of the problem stated above, thanks to its ever-expanding absolution of cops via qualified immunity. So, it’s not the sort of argument that’s going to endear the IJ with the justices.

But endearment be damned! This issue is well past its sell-by date. This court in particular needs to get off its be-robed ass and establish the bright line that seems obvious to everyone who isn’t a cop being sued for First Amendment violations. There’s barely even a circuit split here. Most appellate courts have made this declaration already. The few holdouts are those that haven’t seen a case they like or simply haven’t been forced to accept what’s plainly obvious because the nation’s top court has refused to state what’s plainly obvious: there is a First Amendment right to record. That the Supreme Court refuses to engage in this discussion is inexplicable.

Indeed, this Court had the same opportunity to set such a rule in 2021, when it denied a petition that asked whether the right to publicly film the police was clearly established in 2014. Frasier v. Evans, 142 S. Ct. 427 (Nov. 1, 2021) (petition denied). Yet still today, lower courts continue to get this issue wrong because the Court has never articulated the right to record once-and-for all. If the Court passes on the same question again, other circuits, like the Second, Sixth, Eighth, and D.C. Circuits, could use this as an excuse to argue that the right is not clearly established. This Court can forever answer that question here.

Whether or not the Supreme Court ultimately deigns this case to be worth its limited attention span remains to be seen. But the longer the Supreme Court dodges the issue, the more people will be harmed by officers who engage in First Amendment retaliation just because no court precedent has explicitly told them not to.

In the end, lower courts and states will continue to excuse retaliation from police officers when someone records the police until this Court steps in. Even worse, many would-be speakers would just not record in the first place. That chilling effect would diminish government transparency and our protections under the First Amendment.

If the Supreme Court ignores this case, at least four circuits will still allow cops to pretend some recordings are more equal than others. This case involves some really strange assertions by officers — that recording was fine, but broadcasting wasn’t — that have been granted credence by two consecutive courts’ unwillingness to grapple with the larger issue because they’ve decided to get bogged down in the (ultimately meaningless) details of this particular recording.

Bright lines are needed, especially if judges are going to trip over small details to ensure they don’t have to set a higher bar for police accountability. No court should aspire to this level of incoherence:

For instance, should it matter if a bystander, the target of an investigation, a journalist, a social media influencer, a YouTuber, a victim, a neighbor, a local news outlet, or a passenger is the person doing the recording? Or does it just matter that someone is recording
the police in public? This Court can definitively resolve that question.

Likewise, does it matter if the recording is broadcast live on local television, shot on a professional video camera, stored on an iPhone, instantly shared through Zoom, shared in real-time through WhatsApp or FaceTime (or any other app, including Twitch, Snapchat, or TikTok), captured through a cloud-based service, recorded through Facebook Live, or shot on whatever new and changing recording technology is developed in the coming weeks, months, and years?

Sure, some First Amendment activity can be subject to time-and-place restrictions. But nowhere does this Amendment even suggest its only applies to only certain people or certain forms of publication.

The Supreme Court needs to clean up this mess. Unfortunately, the obviousness of this is so blinding it almost guarantees the Laziest Court in the Land will boot this off the docket without so much as an off-topic blog post from Justice Thomas.

Filed Under: 1st amendment, 4th circuit, dijon sharpe, qualified immunity, recording cops, recording police, supreme court

KOSA Won’t Just Silence LGBTQ Voices; It Will Also Be Used To Hide Abortion Info From The Internet

Free Speech

from the pay-attention dept

We’ve highlighted in great detail how KOSA (the Kids Online Safety Act), sponsored by Senators Richard Blumenthal and Marsha Blackburn, which currently has an astounding 46 cosponsors, will be used to stifle LGBTQ voices. We know this because Republicans keep telling us that’s exactly how they plan to use it.

But, that’s not the only things the bill will be used to censor. Susan Rinkunas, at Jezebel, has a great article about how it will also be used to suppress abortion info from the internet.

Eva Galperin, director of cybersecurity for the Electronic Frontier Foundation (EFF), said letting AGs be the arbiter of what’s considered harmful is dangerous given the right-wing views many of them have on abortion. For example, 19 of 27 Republican AGs said this summer they wanted police to be able to investigate people for abortions. “I can’t think of anything that was more likely to cause anxiety and depression than being forced to carry a fetus to term that you don’t want,” Galperin told Jezebel.

Erasing abortion from the internet is a Republican fever dream. State lawmakers in South Carolina and Texas have introduced bills to censor abortion information online, though they have yet to advance. The Texas proposal seeks to ban internet providers from hosting information about abortion, and the bill text specifically names abortion pill site Aid Access, Plan C, and telehealth sites that don’t serve Texas, as sites that should be censored. The South Carolina bill appeared to use The National Right to Life Committee’s model legislation on censoring abortion, which essentially wants to make it illegal for anyone to provide information on getting an abortion, whether “over the telephone, the internet, or any other medium of communication.”

KOSA could help states achieve all these goals—and with the gleam of Congressional bipartisanship. If it passed, people would try to impede it with lawsuits arguing a First Amendment violation, but platforms would likely still censor content either on their own or in response to threats from AGs, and lawsuits can take years.

Some people — including Democrats who support the law — keep insisting that the bill won’t actually be abused this way, but they’re wrong. You can read the bill and see the problems. It imposes a vague “duty of care” on websites to prevent “harmful” content in six designated areas from reaching minors. Democrats supporting KOSA will argue that LGBTQ content and abortion info do not fall neatly into those six categories, but they’re not the ones who get to decide.

State Attorneys General do. Because they get to enforce the law.

And that’s why Heritage and Blackburn are so willing to say it will target LGBTQ content. Because they know that they can make that work. While abortion info might be slightly further afield, the categories covered by the duty of care are still vague enough and open to interpretation enough, that red state AGs can have a field day. In particular, sites have a duty of care to magically “prevent and mitigate” any information that can lead to anxiety, depression or other mental health disorders. How long will it be until a red state AG produces a study claiming that abortion leads to anxiety and depression?

This is why activists are rightly concerned:

Just a threatening letter to websites or platforms could cause a chilling effect. To wit, a group of Republican AGs wrote to pharmacy chains in February warning them not to dispense the abortion drug, mifepristone, and Walgreens caved. Websites could also move to pre-emptively ban content they believe right-wing AGs would find objectionable because they don’t want to deal with the cost and hassle of lawsuits. Just look at what happened when states including Texas, Arkansas, and Louisiana passed laws putting age restrictions on porn: Pornhub responded by blocking traffic coming from multiple states rather than paying the cost to verify users’ ages. Plus, content moderation is an “inexact science,” Venzke said, and platforms and sites will end up taking down posts that don’t actually violate the bill.

“I view [KOSA] as a blank check for Attorneys General to be able to intimidate in any way that they can,” Philips told Jezebel. “They wouldn’t even need to necessarily pass this [state] legislation if you give them this tool,” she said, referring to proposals in Texas and South Carolina.

Galperin agreed that sites are likely to over-censor or “comply in advance” in order to avoid lawsuits. “To people who say, ‘Oh, surely the platforms will not do this,’ I recommend taking a look at the way that platforms have responded to SESTA/FOSTA,” Galperin said. She’s referring to the 2018 bills Stop Enabling Sex Traffickers Act (SESTA) and Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which were ostensibly meant to fight trafficking but resulted in the censorship of sex workers.

Philips also made the comparison to SESTA/FOSTA: “Sex workers in this case are calling attention to KOSA for the same reasons—they’re saying that this is going to be a tool for censorship and I believe them. We should believe them. They are proof and have been on the ground trying to call attention to how bipartisan efforts to censor the internet have affected the most marginalized people on the internet.”

KOSA “in some ways is more of a threat,” said Venzke. “Whereas SESTA/FOSTA tied much of its liability to federal criminal law, there is nothing in KOSA that so limits the legislation’s scope.” KOSA is about mitigating harms from anxiety and depression, which is extremely broad and subjective: “The portions of the duty of care are untethered to any particular legal definitions.”

And, again, we’re left wondering why so many Democrats, who claim that protecting abortion (not to mention LGBTQ rights) is important, are still co-sponsoring KOSA?

Filed Under: abortion info, duty of care, kosa, speech, state attorneys general

Hey Ricky Schroder: Porn Is Protected By The 1st Amendment

Free Speech

from the only-in-the-Fifth-Circuit dept

Do you all remember Ricky Schroder? He is a former child actor who became prominent thanks to TV series like Silver Spoons and NYPD Blue. While I could reminisce about old TV for hours, it is worth noting that Ricky Schroder has become a darling for the far-right. You might remember him from his greatest hits of yelling at a Costco worker in Los Angeles for refusing him access to the store in 2021 for not wearing a facemask, per the local mask requirements created to protect against the spread of COVID-19. In recent months, Schroder entered right-wing political advocacy and lobbying by establishing the so-called ‘Council on Pornography Reform.’ Conservative news outlet The Western Journal was the most recent media to cover Schroder’s work to “protect the kids” and push legal textualism.

Without really noticing at the time (my bad), the Council on Pornography Reform and a coalition of other terrible far-right and anti-pornography groups filed an amicus brief with the Fifth Circuit Court of Appeals at the end of September. Currently, adult industry companies and the industry’s advocacy organization, the Free Speech Coalition, are fighting an appeal brought by the state of Texas dealing with the state’s age verification and porn labeling law, House Bill (HB) 1181. The plaintiffs, made up of the parent companies of the largest pornography brands in the world, were able to convince Senior U.S. District Judge David Alan Ezra of the Western District of Texas to block HB 1181 before it entered into force on September 1. Mike Masnick, Ari Cohn, Corbin K. Barthold, others, and myself have written for Techdirt and other outlets (Cohn’s column on the Ezra ruling at The Daily Beast), all commenting that Judge Ezra’s decision that corresponds to existing case law and the intent of Justice William J. Brennan Jr.’s interpretation of the First Amendment to cover a broad “freedom of expression.” Pornography is included. However, the Fifth Circuit, the appeals court equivalent of the short bus, issued an administrative stay on the preliminary injunction Ezra produced, allowing House Bill 1181 to be enforced while litigation plays out. The administrative stay was granted after then-acting Texas Attorney General Angela Colmenero appealed the Fifth Circuit to hear arguments about overturning the Ezra injunction.

The appeal was granted, and oral arguments were heard on October 4. A decision from the court has yet to be handed down. According to PACER, two amicus briefs were filed. The brief I first noticed was, naturally, the amicus submitted by famed First Amendment counsel Robert Corn-Revere on behalf of the American Civil Liberties Union, TechFreedom, Electronic Frontier Foundation, Foundation for Individual Rights & Expression, Center for Democracy & Technology, and Media Coalition Foundation. These groups urged the three-judge panel to uphold the lower court’s injunction and to affirm that House Bill 1181 violates the First Amendment of adult entertainment websites and adult users of these sites logging on from Texas IP addresses. But the second amicus brief was filed by counsel representing Schroder’s group, the Council on Pornography Reform, and a slate of other far-right astroturfing groups. These groups include Michael Flynn’s America’s Future, the Public Advocate of the United States, and a few conservative textualist groups with terrible or no websites. Note that Public Advocate, founded by Eugene Delgaudio, has been classified as a hate group by the nonprofit Southern Poverty Law Center for general and anti-LGBTQ+ hate.

The Western Journal reported on October 16 that the amicus brief is a step to “protect children” from pornography and what these groups view as obscene. Central to their argument is saying that the U.S. Constitution, let alone the First Amendment, only protects “political speech.” This is an obnoxious argument used by conservatives for decades to try and limit interpretations of the First Amendment to cover forms of expression that are literally outlined in the amendment and do not protect what they would argue are implied rights of expression. To wit, the amicus brief refers to Justice Brennan’s definition of “freedom of expression” as “devoid of meaning.” They also apply an antiquated definition of obscenity that predates the Miller test to guide the analysis of the Fifth Circuit. Counsel for the anti-porn groups literally makes up terms to refer to utilizing a less-nuanced textualist review of the law. The call for the Fifth Circuit to overturn Ezra’s ruling and apply a so-called “textually faithful” analysis of the law. But what’s more disconcerting is a reliance on case law and previous decisions affirming a right to expression, implied or not, as a protected element of the First Amendment. As long as no law has been broken, the standard for classifying something as illegal or even “obscene” is entirely subjective. Obscenity case law is by no means simple or consistent. Nevertheless, U.S. courts in recent decades have decided that obscenity applies primarily to content that is classified as child sexual abuse material, other types of content depicting the exploitation of real-life human children, non-consensual intimate images (NCII; also known as ‘revenge porn’), and other depictions of sexual violence and exploitation. 

The Miller test is the standard used in most obscenity cases, in part, because it requires a judge or jury to determine whether specific material meets the threshold of being obscene. Obscenity is in the eye of the beholder. Since First Amendment concerns for the vast majority of people often do supersede the concerns of a tiny minority, obscenity in any interpretation of the First Amendment has to be legitimately illegal, heinous content. Why do you think the obscenity provisions built into laws like the Communications Decency Act, the Child Online Protection Act, and the Child Pornography Prevention Act were all struck down by the Supreme Court for First Amendment violations? These statutes infringed on the First Amendment rights of the vast majority of users of the internet. At that, it is worth reminding you all that the court found that CPPA was broadly violating the First Amendment rights of adult performers and producers who create virtual taboo and fetish material. The Supreme Court in Ashcroft v. Free Speech Coalition affirmed this view.

Beyond the obvious ideological undertones of the anti-pornography groups (they reference the Holy Bible in the amicus brief), it shows a willful ignorance of First Amendment case law that anyone–an 8th-grade civics student, a first-year law student, a doctor, a bus driver–could beat in a court of law. You’d hope that an actor who once played a cop on TV could figure that out. I implore the Fifth Circuit Court of Appeals to not fall for these flawed arguments.

Michael McGrady covers the tech side of the online porn business, among other things. He is the contributing editor for politics and legal at AVN.com.

Filed Under: 1st amendment, 5th circuit, adult content, free expression, free speech, porn, ricky schroder
Companies: council on pornography reform, free speech coalition

Appeals Court Tells State Of Florida It Still Can’t Enforce Its Unconstitutional Anti-Drag Show Law

Free Speech

from the still-in-the-wrong,-Florida dept

Florida’s legislative bigots have already been told twice. I guess they need to hear a third time.

The state passed a law that outlawed drag shows, resulting in it being sued by a venue that often hosted drag shows, Hamburger Mary’s. The lawsuit claimed the new law violated several rights, first and foremost being the First.

The district court agreed. It granted an injunction to Hamburger Mary in June, blocking the law from being enforced while the court sorted out the (un)constitutionality. The state tried to argue this wasn’t about protected speech, but rather just a modification of an existing obscenity law that had never been found unconstitutional. The court disagreed, using the government’s own words against it.

The state claims that this statute seeks to protect children generally from obscene live performances. However, as explained infra, Florida already has statutes that provide such protection. Rather, this statute is specifically designed to suppress the speech of drag queen performers. In the words of the bill’s sponsor in the House, State Representative Randy Fine: “…HB 1423…will protect our children by ending the gateway propaganda to this evil — ‘Drag Queen Story Time.’ ”

Since the law was plainly aimed at suppressing a very particular form of speech, the court said the state couldn’t use it against anyone. The state immediately tried to enforce it. Or, at least, it tried to talk the court into letting it enforce it against anyone who wasn’t this specific plaintiff.

Again, the government lost. The court said the injunction applied to the law, not to the entity seeking the injunction. Any attempt to enforce it against anyone in the state of Florida would be a violation of the injunction. The court shot down the state’s terrible arguments with this paragraph:

Defendant has presented no evidence or compelling argument that she will suffer irreparable harm. Instead, she baldly proclaims that Florida “suffers a form of irreparable injury” any time it is enjoined from enforcing one of its statutes. See id. (quoting Maryland v. King, 567 U.S. 1301, 1303 (2012)) In Maryland, however, the Supreme Court’s statement was supported by evidence of ongoing, concrete harm to law enforcement and public safety. Defendant has presented no such support here. Her position that the state suffers irreparable harm any time it is enjoined from enforcing one of its statutes defies common sense and is not supported by any meaningful precedent.

Not willing to be deterred by successive losses, the state immediately appealed the injunction, asking the Eleventh Circuit Appeals Court to temporarily stay the injunction until the case was fully settled.

Ron DeSantis’ government is now a three-time loser. The Eleventh Circuit ruling [PDF] says the injunction stays in place for all the reasons listed by the lower court as well as a few of its own assertions and affirmations.

Once again, the state (represented here by Secretary of the Florida Department of Business and Professional Regulation Melanie Griffin) is asking to be allowed to enforce this law against anyone but Hamburger Mary’s. And, once again, Griffin and the government she represents are being told, “No.” The law is simply too bad to be allowed to be enforced.

The problem for Secretary Griffin is that statutes which are unconstitutionally overbroad are “properly subject to facial attack.” Secretary of State of Md. v. Joseph H. Munro, Inc., 467 U.S. 947, 968 (1984) (rejecting argument that state statute found to be overbroad should not “str[uck] down on its face”). As a result, a successful overbreadth challenge “suffices to invalidate all enforcement of th[e] law ‘until and unless a limiting construction or partial invalidation so narrows it as to remove the threat or deterrence to constitutionally protected expression.’” Virginia v. Hicks, 539 U.S. 113, 119 (2003) (emphasis in original) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). The Supreme Court has “provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—specially when the overbroad statute imposes criminal sanctions.”

That’s just the law of the land, Melanie. You know, the First Amendment and several decades of Supreme Court precedent. Protecting free speech is something the entire government is supposed to do, not just the federal judiciary.

And Griffin seemingly knows this. The appeal brief contains the state’s acceptance of the lower court’s take on the law that led to it issuing an injunction. And yet, the state still thinks these determinations should only apply to the entity suing it, not others in the state similarly situated. If the state is going to make that much of a concession, it boggles the mind to think it still has any legal footing to ask for even a partial lifting of the injunction.

To recap, the district court concluded that § 827.11 was likely overbroad and unconstitutional under the First Amendment, and Secretary Griffin does not take issue with that ruling in her motion for a partial stay. Given Supreme Court cases like Ashcroft and Eleventh Circuit cases like FF Cosmetics—which have affirmed preliminary injunctions barring enforcement of a statute or ordinance which is likely overbroad—Secretary Griffin has not made a substantial showing that the district court erred in crafting the preliminary injunction to prohibit her from enforcing § 827.11.

About as open-shut as it gets. There’s a dissent attached, though. It’s written by Judge Andrew Brasher, a Trump nominee who only had six months of federal court experience before being handed a job at the Appeals Court. As is to be expected, Brasher is no fan of equal rights or people who aren’t as white/straight as he is.

His dissent ridiculously asserts a state should be allowed to enforce a “facially unconstitutional” law simply because the plaintiff in the case admitted its own harms would be remedied if (duh) the law was never enforced against it. Apparently Brasher believes the rest of the state should be subjected to an unconstitutional law and the harms it causes up until the point those affected by an unlawful law decide to start suing about it. It’s an insane argument and one only a guy who doesn’t like drag shows or drag show performers could whip up to tack onto a straightforward ruling the states the obvious: a likely unconstitutional law can’t be enforced against anyone because it’s (double duh) unconstitutional.

Fortunately, that’s just the dissent. The injunction stays in place and the lower court’s ruling is kept intact. At the end of this, the Florida legislature will either need to scrap the law entirely or come up with a far more creative way to oppress people certain legislators just don’t care for.

Filed Under: 11th circuit, 1st amendment, drag shows, florida, free speech, hb 1423

Would Elon Pull ExTwitter Out Of The EU To Avoid The DSA Overreach?

Free Speech

from the perhaps-he-should,-but-he-won’t dept

This course of events was all too predictable. In May of 2022, while Elon was still in the “trying to buy Twitter” stage, we pointed out the absolute ridiculousness of him meeting with the EU’s Thierry Breton and saying that he fully endorsed the EU’s DSA approach. As we noted at the time, the whole framework of the DSA was set up to enable the EU to force websites like Twitter to suppress speech, and Elon’s endorsement of it (while claiming to be a “free speech absolutist”) suggested that it would be ridiculously easy for politicians around the globe to play Musk for a fool on speech suppression (something that has since been proven true on multiple occasions).

In fact, if you go back and watch the original video of Breton and Musk, you can almost see Breton snickering at knowing how much he had played Musk.

Of course, last week, Breton started shaking his censor stick at a bunch of social media companies sending many of them letters effectively demanding they remove disinformation or face massive fines under the DSA. As we noted, this was a dangerous and stupid thing for Breton to do, even if we agree that Elon’s been terrible for exTwitter and is wholly unprepared for dealing with the kind of disinfo flowing during a modern crisis. That’s no excuse for the government to demand censorship, however.

A day after sending his threat letter to Musk (not, by the way, Linda Yaccarino), Breton took things up a notch, initiating an official investigation into exTwitter under the DSA.

Today the European Commission services formally sent X a request for information under the Digital Services Act (DSA). This request follows indications received by the Commission services of the alleged spreading of illegal content and disinformation, in particular the spreading of terrorist and violent content and hate speech. The request addresses compliance with other provisions of the DSA as well.

Following its designation as Very Large Online Platform, X is required to comply with the full set of provisions introduced by the DSA since late August 2023, including the assessment and mitigation of risks related to the dissemination of illegal content, disinformation, gender-based violence, and any negative effects on the exercise of fundamental rights, rights of the child, public security and mental well-being.

In this particular case, the Commission services are investigating X’s compliance with the DSA, including with regard to its policies and actions regarding notices on illegal content, complaint handling, risk assessment and measures to mitigate the risks identified. The Commission services are empowered to request further information to X in order to verify the correct implementation of the law.

Now, according to Insider, Musk is considering just closing off the EU from exTwitter rather than deal with this.

I actually think this is the right move. Breton is throwing around his censorial weight, and it would be great if Musk actually did push back a little bit. At the very least, this could establish some boundaries on what the DSA actually enables an unelected bureaucrat like Breton to do regarding internet speech.

In recent weeks Elon Musk has suggested Twitter could stop being accessible in Europe in order to avoid new regulation enacted by the European Commission.

Musk is increasingly frustrated with having to comply with the Digital Services Act, according to a person familiar with the company. The Tesla billionaire, who acquired Twitter, now called X, a year ago for $44 billion, has discussed simply removing the app’s availability in the region, or blocking users in the European Union from accessing it, the person said.

That said, I find it difficult to believe he’d actually do it. As we’ve highlighted, traffic is down. Ad revenue is way, way down. No one’s signing up for “Premium,” and his new $1/year plan is likely to go down in flames as well.

Is he really going to cut off over 400 million EU residents? It… seems unlikely.

Filed Under: content moderation, disinformation, dsa, elon musk, eu, thierry breton
Companies: twitter, x