Actual Free Speech Matters, Elon Musk’s Understanding Of It Puts Free Speech At Risk

Free Speech

from the not-the-free-speech-you're-looking-for dept

So, look, it’s been quite clear for a while now that Elon Musk has no clue what “free speech” actually means. We’ve covered this point from so many different angles that at this point anyone claiming that Elon Musk “supports free speech” is ignorant or stupid.

Constitutional scholar Steve Vladeck has a short, but useful article over at MSNBC highlighting that Musk’s “misunderstanding of free speech is a problem for us all.” And it raises an issue that deserves some discussion. Because, before this, I’d basically just thought his misunderstanding of free speech mostly just meant that he was making a mess of things for himself. But I’m now realizing it’s a much bigger problem for everyone else.

Much of the article just covers ground that we’ve covered before, on how little Musk actually understands about free speech. And only at the end does it get into why this is a larger problem:

It’s not exactly news that an eccentric billionaire with no formal legal training has no idea how the First Amendment works. But there are two problems in this case that make it newsworthy. First, Musk himself has claimed that one of his goals for Twitter is to increase “free speech” on the platform. If his definition of “free speech” is radically different from the current state of general public (and constitutional) discourse, it sure would behoove him to explain how — and why. And second, because of his impact and influence, Musk’s patent misunderstandings of what the First Amendment does and doesn’t protect (and to whom it does and doesn’t apply), and the actions he wrongly takes (or doesn’t take) in response, perpetuate misunderstandings among those who believe he has some special claim to expertise on the subject. As the Twitter Files document dumps continue, it’s clear that Musk not only lacks such expertise, he also seems wholly uninterested in developing one.

I think this is mostly correct. The fact that Musk has such a completely fucked up understanding of free speech means that no one can really say what he’s planning to do with the platform he now owns. To date, he’s shown no real inclination to define free speech.

But, I’d argue the problems go beyond what Vladeck has laid out here. As I’ve detailed in the past, Twitter was one of the strongest defenders of internet free speech in courts and in discussions with regulators and policymakers. The company was more willing to stand on principle than almost any other large internet company I can think of. The company would fight on for free speech where others caved.

And, the company famously would go above and beyond in going to court to fight for the free speech rights of its users, where other companies would often cave in and hand over information.

It is not at all clear if Musk’s very confused definition of free speech still includes any of that.

So it’s not just that Musk is confused and contributing to the miseducation of the public, but that those of us who have spent decades fighting for actual free speech online have lost a very important ally in that fight.

Filed Under: anonymity, disinformation, elon musk, free speech, steve vladeck
Companies: twitter

The First Amendment Needs To Protect Everyone (Even Homophobic Web Designers) To Protect Anyone

Free Speech

from the everyone-is-getting-this-case-wrong dept

In writing online about a case about online expression, I’ll open with a reference to some more online expression: the popular meme featuring the caption, “The worst person you know just made a great point.” And that’s where we are with this case just heard by the US Supreme Court: 303 Creative v. Elenis, where a homophobic website designer does not want to be forced by Colorado law to have to make websites for same sex weddings.

And she should not be forced to, because no matter what one thinks of her, or her views on gay marriage, the First Amendment should prevent anyone from ever being forced by the government to make a website they don’t want to make. It should prohibit such compelled speech regardless of the views implicated, their political popularity, or their social, moral, or ethical merit. And by “should” it is not merely a question of what the First Amendment ought to do, but, as discussed below, what the Supreme Court has already found it to do, and therefore should continue to find it to do.

So hers should not be a hard case to resolve in her favor. Unfortunately, as oral argument revealed, the heightened emotions surrounding her specific views, both for and against, are making it a hard case. By treating it as a referendum on gay rights the First Amendment analysis is ending up unduly complicated, entangled in questions about other constitutional rights, including several others found within the First Amendment itself, even though they only serve to obscure the otherwise obvious constitutional problem with the Colorado law. And one danger with this case is that, if the justices don’t tease apart the different analytical threads successfully, they could do some real doctrinal damage to all the rights the First Amendment protects, especially if they are motivated, as they adjudicate her constitutional challenge, to craft a result that tries to vindicate (or repudiate) the substance of this particular web designer’s views.

For instance, the subject of gay marriage often tends to invoke the First Amendment right of freedom of religion. But this right would be a bad basis upon which to resolve this case. Part of the reason it would be a bad idea is because the Supreme Court has, of late, already upended long-standing establishment clause doctrine to effectively preference certain religious views over others. A ruling in her favor for religious freedom reasons would continue that practice and produce an unstable result (and, at this point, so would a ruling against her, also on this basis). It would also be unnecessary to involve freedom of religion because there are far more compelling constitutional reasons to find in her favor. The only thing religion has to do with this case is that it turns out to be what informs her expressive views. But none of her views, or what informs them, is actually relevant. Because any law that targets these particular views (anti-gay marriage) could just as easily target any other views (for example, pro-gay marriage), regardless of what motivation informed them, religious or otherwise. And even if the court were to say that laws can’t target views informed by religion, it would still be a problem if laws could target views informed by any other reason. Even framed just in terms of online expression, either people are free to choose what websites to make, or they are not. If we instead hinge that freedom to choose what websites to make, or what views to express within them, on why people would make those expressive choices, then the constitutional right for people to choose what they want to say, whether through their websites or via any another expressive means, will already have been lost.

Meanwhile, another analytical red herring for the Court to resist here is the First Amendment right of freedom of association. It may however at first seem relevant because this right is often implicated where there are questions of discrimination, particularly in the offering of goods and services, because the freedom of association, which essentially is the right to discriminate, is often in tension with the right not to be discriminated against. The Court spent much of the oral argument exploring whether a professional web designer could refuse to provide web design services, but this line of analysis, important though it is in other contexts, is an irrelevant distraction here. One key reason it doesn’t belong here is because there appears to be evidence that the web designer in fact does provide design services to gay clientele; the issue in this case is only that she does not want to code websites celebrating gay weddings she does not wish to celebrate (or, indeed, potentially any even heterosexual wedding she also does not wish to celebrate), and regardless of the sexual orientation (or race, or religion, etc.) of the party contracting for her services. In other words, this case is only about the Colorado law trying to require her to create certain online expression she doesn’t want to create – it has nothing to do with her not wanting to serve any clientele she wasn’t inclined to serve, at which point contemplating the bounds of her right of association would be more salient. But here the issue is not about whom she wants to associate with but what she wants to say for them. While the Supreme Court might have the appetite to address now how public accommodations law needs to behave in the shadow of this First Amendment associative right, especially with respect to the provision of personal services, it is important for it to resist that temptation here. It is only the issue of mandated expression that is worth the Court’s attention and ripe for adjudication.

And it is indeed ripe: while some have criticized the pre-enforcement challenge of the Colorado law, because ordinarily a plaintiff can only challenge a law that has already caused an injury, standing doctrine has long recognized how constitutionally untenable it would be to allow laws to create expressive injury and then have the courts say “oops.” When it comes to free expression, pre-enforcement challenges are often necessary and therefore permitted. While some justices fretted at oral argument that the pre-enforcement challenge left only a sparse record for review, it is independently important for the Supreme Court not to be deterred by the posture of this case and to reaffirm the ability to bring pre-enforcement challenges of laws that threaten free expression.

Especially because, at its core, this case is only a speech case. Ultimately the constitutional admonition to “make no law… abridging the freedom of speech” is the only part of the First Amendment that should be operative here, to prohibit the Colorado law and protect the speech rights of any web developer anywhere. Whether, however, the Court zeroes in on it will depend on whether it can recognize the speech issues implicated by website design and how expressive the act of coding a website is, including through the acts of generally authoring it as a vehicle for conveying certain expression and also literally writing the code that conveys it. And we all need to hope that it does, because one of the other significant dangers with this case is that if the Court does not acknowledge the speech impingements at the heart of this case, or see coding a website as somehow less expressive an activity than, say, typesetting a newspaper, it would then leave online expression much less constitutionally protected than offline expression (including for the online version of the newspaper). Per the Court in Reno v. ACLU, online expression is not supposed to be less protected. But unless it sees the Colorado law as being the equivalent of the old Florida law that had once tried to force newspapers to run op-eds it did not want to run – which the Supreme Court in Miami Herald v. Tornillo found was unconstitutional – it will be less protected. (And perhaps worse, it could turn Tornillo on its head and now open the door to a state law that wants to force the Miami Herald to run op-eds celebrating gay marriage. Or, if it could do that, then potentially it could also invite laws requiring op-eds condemning gay marriage too.)

Thus no matter how worthy the pro-marriage view, the bottom line in this case is that it is a view that law would be trying to force people to express, and it is that forcing that should be anathema to the First Amendment’s free expression clause. For good reason, too, because a less robust First Amendment doesn’t just hurt the views that we should detest; it also makes vulnerable those views that are best. It is why the Supreme Court was right to find the First Amendment protected the right of Nazis to march in Skokie despite their odious views, and it is why it also should find the First Amendment protects the right of the web designer to maintain her bigotry here, because even if the First Amendment is found in a particular case to protect the expression of a hateful view, what it is actually doing is ensuring that everyone remains equally free to stand against it. After all, this case isn’t just about this web designer and her intolerant views; it is about making sure that no one ever need to fear being forced by law to express any message about which they disagree, including hateful ones they don’t share.

And so we cannot let our relative opinion for the litigants who have brought these constitutional concerns before the Court outweigh our concern for the constitutional principles at stake. Nor can the Court itself, regardless of whether any particular justice favors or disfavors the web designer’s particular animus. Instead the Court needs to keep its focus on how laws like Colorado’s impinge on the rights of free expression everyone depends on, no matter what their views.

Filed Under: 1st amendment, free speech, gay marriage, supreme court, websites, wedding websites
Companies: 303 creative

First Circuit Trims First Amendment, Upholds New Hampshire’s Criminal Defamation Law

Free Speech

from the somehow-bound-by-law-to-contravene-rights dept

It’s 2022 and somehow nearly half the nation still has some form of criminal defamation law on the books. This is a holdover from the days before the US went independent — laws that allowed (usually) the government to treat speech it didn’t like as a criminal act.

Once the First Amendment went into effect, criminally prosecuting people for things they say should have been a concept relegated to the pre-Revolutionary past. Instead, the laws that remain in place are there because either they’re unused or no one has challenged the constitutionality of the laws.

Where they do remain in place, they’re often abused. And this abuse is most often perpetrated by government employees. This just makes sense. Government employees tend to know which laws they can misuse and most citizens assume the proper venue for libel allegations is in civil court.

The First Amendment still applies to defenses against criminal libel allegations, but the threat of prosecution (even if never pursued) is generally far more effective than the threat of a civil lawsuit, which requires the person making allegations to foot their own bill for litigation. When the government decides to use criminal defamation laws, it has access to theoretically unlimited funds obtained from taxpayers. That makes this the preferred route when government employees are offended by something someone says, since it’s not their own finances on the line if they’re wrong.

New Hampshire, one of the original colonies and first beneficiaries of constitutional rights and amendments, still has a criminal defamation law on the books. This law was used by law enforcement officials (namely, Exeter Police Chief William Shupe), who took exception to New Hampshire resident Robert Frese making social media posts and comments suggesting the police chief was “corrupt” for “covering up” for dirty Exeter police officers. Shupe’s allegedly non-corrupt cops arrested Frese. The charges were ultimately dropped but Frese decided to challenge the constitutionality of the law, considering he’d now been arrested twice for supposedly violating it.

As of late last year, it appeared Frese’s challenge would be successful. Oral arguments at the First Circuit Court of Appeals appeared to be going Frese’s way, with judges suggesting the law’s wording created a subjective standard for alleging violations, rather than an objective standard. In addition, as the ACLU pointed out in its contribution to Frese’s challenge, the law violated other rights by making it far more difficult to defend against these charges by removing access to court-appointed attorneys and eliminating jury trials.

Unfortunately, those early impressions were misleading. The First Circuit Appeals Court has ruled [PDF] that the state’s criminal defamation is constitutional, even if it does lend itself to abuse by public officials who are mad about online stuff.

This is the upshot of that decision:

Mindful of the Supreme Court’s guidance that “the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection[,]” we conclude that Frese’s allegations fall short of asserting viable constitutional claims.

Knowingly false statements are not protected by the First Amendment. But that’s something normally handled in civil courts. Should false statements be considered a criminal act? Probably not, but the Appeals Court (very reluctantly, especially in the concurrence) says the state is still constitutionally sound since it only targets unprotected speech.

That limitation (citing Supreme Court precedent) means Frese’s First Amendment challenge fails. The law, however, also allows cops to act as judge and jury, bringing misdemeanor charges without having to involve any level of judicial review and without the intervention of prosecutors. That the Exeter PD ultimately dropped the second set of charges under this statute doesn’t appear to matter. Frese’s Fourteenth Amendment claims are also foreclosed by the wording of the statute, which the Appeals Court says is narrow enough to survive constitutional scrutiny.

[W]e doubt that reasonable persons will have much difficulty in ascertaining objectively whether a false statement exposes the victim to public hatred, contempt, or ridicule, even if the public is defined to include professional and social groups to which the victim belongs. Frese offers no hypothetical example of how a factfinder might struggle unduly to determine whether a given set of facts demonstrates the requisite tendency of the false remarks.

The court’s end conclusion is this: the law may be easy to abuse but it probably wasn’t abused here, at least in terms of Frese’s first criminal charge. And with the second set of charges being dropped because they weren’t supported under the wording of the statute, the law is still constitutionally valid.

Assuming Frese’s 2018 prosecution to have been brought without reasonable cause to believe that Frese knew that his speech had been false, then it was certainly wrongful, as implied by its dismissal. But that wrong had little, if anything, to do with what Frese claims is the statute’s vagueness. Certainly “knowing” an assertion to be false is not a vague element. Nor, for the foregoing reasons, do we think that a reasonable person has much difficulty in ascertaining whether speech subjects a living person to public hatred, contempt, or ridicule and what a “professional or social group” is in this context.

Judge Thompson’s concurrence agrees with the majority but raises questions about the law itself, which the Appeals Court says it cannot find unconstitutional. This is the biggest question:

Can the continued existence of speech-chilling criminal defamation laws be reconciled with the democratic ideals of the First Amendment?

Probably not, says Judge Thompson, pointing out where these laws go wrong: their genesis in laws hundreds of years old that criminalized criticizing the ruling party.

I will not explicate the ins and outs of that history here — and there is a great deal of important history to digest. For today’s purposes, it suffices to say these laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials. True, that is not today’s American system per se. But like it or not, that is where our system’s roots lie, and even in view of the rightly heightened standards we deploy when reviewing laws that restrict speech, see Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 62 (1st Cir. 2011), abrogated on other grounds by Ams. for Prosperity Found. v. Bonta, 141 S. Ct. 2373 (2021), it is remarkable that we are still confronting laws criminalizing speech at all.

That’s why this law should be kicked to the curb. Unfortunately, as composed and utilized by the state of New Hampshire, the Appeals Court can’t find anything to rule it unconstitutional. The state should take the law off the books, especially considering its roots in preventing criticism of the government. But without a ruling telling it to ditch the criminal defamation law, there’s nothing compelling the state government to delete it from the statutes. That task would require representatives to recognize it’s in the public’s best interests and act accordingly. And while some may be willing, it’s unlikely there’s an overwhelming majority of legislators willing to strike abusive laws from the books.

The laws persist. And they should generate plenty of criminal complaints. But they don’t. And there’s a good reason why they don’t: they’re most often deployed by savvy government officials who don’t like what people have said about them.

It seems to me that if these laws were robustly enforced, dockets in these states would be positively teeming with prosecutions. That’s not what happens. Why is that? Probably because there is no readily discernible boundary between what gossip or loose talk amounts to being criminal and that which does not. Instead, the boundary emerges case by case, lying solely in the eye of the charge-bringing beholder – or the ego of the person offended or called out by the speech. And this is troubling because it underscores the simple truth that a criminal defamation law can be wielded, weaponized by a person who disagrees with whatever speech has been uttered.

Speech will be stifled. That’s a given everywhere these laws are still in place. And it will always lead to abuse because the entire point of the law is to silence people.

It is not lost on me that proponents of criminal defamation laws see utility in having them as an alternative to civil suits to be deployed when, for example, an alleged defamer might be what we refer to as “judgment-proof,” i.e., even if a favorable verdict resulted from a civil defamation suit, the defamer wouldn’t have the cash available to cover any damages that were assessed. This assumes money damages are the best relief for a victim of defamation, and I cannot abide that premise. Does it not also invite criminal prosecution of people with less means?

And critically, having a criminal defamation route enables an end-run around the important constitutional restrictions imposed in civil defamation cases. And I haven’t spied any requirement that, to bring a criminal prosecution, one must demonstrate the criminal charge is being pursued because a civil suit just wouldn’t cut it for some legitimate reason or another. This brings me back to the reality that criminal defamation laws are all too easily wielded as a silencing threat of punishment for speech.

That’s the danger of leaving this law intact. But without a judicially sound reason to pull the plug on it, the Appeals Court is forced to find in favor of the state and the law it should have ditched decades ago.

Filed Under: 1st amendment, 1st circuit, criminal defamation, defamation, free speech, new hampshire, robert frese, william shupe

Court Tells Florida Town That Law Forbidding Resident’s ‘Fuck Trump’ Sign Is Unconstitutional

Free Speech

from the fuck-your-constitutional-violations dept

Welcome to America! Fuck everything! And not in the sexual sense, as any person would immediately understand unless, of course, they just want to hit people with criminal charges for maximizing the use of limited space to criticize the government.

Local governments tend to get pretty weird about “community standards” and “protecting children,” something that can possibly be chalked up to “thinking locally” rather than recognizing the baseline set by the US Constitution and its amendments, particularly the first of those amendments.

We’ve seen dubious actions catering to each side of the political aisle. In Texas, cops decided to seize a sign critical of the Republican party from a person’s yard under the theory the picture might offend children. (That it depicted the Republican elephant slipping its trunk under the skirt of a child in response to allegations against GOP Senate candidate Roy Moore for taking sexual liberties with minors went unmentioned in the city’s response.)

On the other side, a New Jersey municipal judge decided the First Amendment didn’t protect a home owner who placed anti-Joe Biden signs and flags in her yard, including the ever-popular phrase “Fuck Biden.” The local judge arrived at this conclusion by ignoring the obvious definition of the phrase to suggest it had something to do with actually engaging in sexual congress with the sitting president, which of course might be tough to explain to children.

Fortunately, the First Amendment is getting more respect in, of all places, Punta Gorda, Florida. As reported by Eugene Volokh, a judge recently declared the city’s obscenity law — the one that led to criminal citations for “Fuck Trump,” “Fuck Policing 4 Profit,” and “Fuck Biden” signs and flags displayed by resident Andrew Sheets — unconstitutional. For these so-called crimes, Sheets was fined $2500. He sued. And he has won.

The opening of the Florida circuit court opinion [PDF] makes it clear the city (seemingly deliberately) misread the law to target protected expression. That the intention of the law is to protect children makes no difference.

The City of Punta Gorda has embarked upon the task of protecting children. The record makes clear that city adopted the ordinance in hopes of advancing that goal. Punta Gorda argues that the ordinance is limited as it only applies to signs in public places which can be seen by children. In actual fact, that is no limitation at all.

As is relevant to this case, the ordinance bans signs that depict or describe sexual activities or organs. Fuck or Cunt can be about sex or not about sex, Sheets used Fuck as an interjection. By its express terms, the ordinance does not apply to the use of Fuck as an interjection. Sheets’ items used Fuck to emphasize the passion and force of his political opinion and his use of the word had nothing to do with sex. The use of R Cunts is arguably within the express terms of the ordinance. But is similarly used as a political statement, not a reference to the sexual organ.

By applying the rules of constitutional avoidance, by its plain terms, the ordinance does not apply to Sheets’ Items as they have nothing to do with sexual activities or organs.

The court cites a couple of extremely relevant bits of Supreme Court precedent, the latter of which has received plenty of coverage here at Techdirt.

Although factually different in some respects, this case is squarely within the reasoning of Cohen v. California (Fuck the Draft jacket case) and the distinction between a criminal charge and a civil fine provides no basis to uphold the ordinance in this case.

[…]

Given the most recent cases involving First Amendment challenges (Mahanoy, “Fuck school, Fuck cheerleading” case) and (Reed, municipal sign case) there can be little question that the U.S. Supreme Court jurisprudence has moved toward more protection for speech, not less.

The city, on the other hand, offered very little in terms of Supreme Court precedent in defense of its ordinance and its actions. Instead, it offered perhaps the weakest “for the children” argument possible.

In this case Punta Gorda argues only one compelling governmental interest: protection of children, specifically, only children that can read.

That there are limited beneficiaries isn’t enough to make an attempt at speech regulation “narrowly tailored.” The court says the law is wrong in both directions.

The ordinance is under inclusive and over inclusive. The ordinance prohibits speech that the record reflects was never seen by children. Punta Gorda claims that the limitation to places where children under 17 may see the signs is a narrow limitation. It is not. Children may be present anywhere in Punta Gorda and therefore that term is no limitation at all. The ordinance does not prohibit use of verbal indecency and that is a means of communication that many more children could understand.

The Punta Gorda ordinance is overbroad as it was actually designed to cause the preemptive self-silencing of speakers whose messages are entitled to constitutional protection. See, Reno v. ACLU, 521 U.S. 844 (1997). Whether termed vague or overbroad, the ordinance fails for the same reasons as the Statute in Reno.

Good try, says the court, but the Punta Gorda ordinance has to go.

In sum, Punta Gorda’s municipal heart is in the right place but there does not appear to be a constitutionally valid way to protect children from seeing (or displaying!) political signs with the word.

That’s how the Constitution works. The way Punta Gorda imagined it worked solely for the purpose of shutting down a critic of all things government (and one imagines it was probably the criticized police that objected most given Sheets directed fucks at both Biden and Trump) is no longer an option for the city.

And there’s even better news: Punta Gorda is not going to waste any more of its residents’ money to argue against their interests. The city will not be appealing this decision. There are a few city officials who still believe this decision (and the decades of court precedent at all levels backing it) is wrong, but have decided it’s not worth an unknown amount of future expense to continue trying to punish one person for speech some city officials objected to.

Filed Under: 1st amendment, andrew sheets, florida, obscenity, obscenity laws, punta gorda

Iowa City Officials Prove They Aren’t Fascists By Arresting An Activist Twice For Calling Them Fascists

Free Speech

from the way-to-make-the-activist's-point-for-him dept

I’m not here to make broad statements about the state of Iowa, its various governing entities, or its court system, but it does seem that the state periodically struggles with recognizing long-held, pretty much unassailable rights. Lots of assailing in recent years, with only one instance working out for the government, and even that’s unlikely to remain precedent for much longer because it’s so obviously wrong.

The city of Newton, Iowa has been busy setting itself up for a First Amendment lawsuit over the last couple of months. City council meetings — you know, the events where residents are invited to show up, comment, and express their opinions — have provided the basis for the inevitable lawsuit, what with city officials and city cops combining forces to eject and (in two cases) arrest a local activist who aligns himself with the Antifa movement. The latest removal/arrest occurred during the last week of October, as reported by William Morris for the Des Moines Register.

The public comment period during Monday’s meeting of the Newton City Council would be familiar from many Iowa government meetings: The speaker criticized the city’s police department, calling for it to be defunded and for the city to support non-criminal responses to traffic violations, drug use and other social problems.

But then the speaker, activist and Newton resident Noah Petersen, got more specific with his criticism, and things got heated, as seen in a video posted to YouTube by a fellow activist.

“I think the top two fascists in this town, Mayor Michael Hansen and the chief of police, need to be removed from power,” said Petersen.

Arrested when he refused Hansen’s order to leave the meeting, Petersen and supporters now are claiming the city violated his First Amendment rights.

Petersen and his supporters are correct. Adam Steinbaugh — who has provided an excellent Twitter thread covering the short sordid history of Newton’s violation of rights — explained exactly what’s wrong with this to the Des Moines Register reporter:

Adam Steinbaugh, an attorney with the national Foundation for Individual Rights and Expression, said Petersen’s latest arrest is a “pretty galling” example of citizens facing retaliation for exercising their constitutional right to free speech. Newton’s policy, barring speakers from disparaging any individual, is clearly unconstitutional, he said.

“People go to city council meetings to criticize government,” said Steinbaugh, whose organization has offered assistance in Petersen’s case. “If the government expects that those people that are showing up to public comment periods are there to praise them, you probably haven’t been in government very long.”

The police chief and the mayor claim being called “fascists” is “defamatory.” They’re definitely wrong about that. That’s just protected opinion. And Petersen’s latest ejection — which was coupled with a disorderly conduct arrest — occurred after the mayor claimed the rules for city council meetings forbade “derogatory remarks about any individual,” something that clearly runs contrary to the First Amendment, which specifically protects criticism of the government.

And since the officials here have claimed being referred to as “fascists” by a member of the public during a city council meeting is “defamatory,” why not quote directly from one of the most important Supreme Court First Amendment decisions (Times v. Sullivan), in which Justice Brennan wrote:

[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

In contrast, the mayor and chief of police obviously prefer close-ended, inhibited debate guided down the bowling lane of public comment by “just be nice” bumpers. When someone breaks the unconstitutional rules, the city has decided to compound the error by arresting the (not actually criminal) offender.

The activist’s recent comments were compelled by pretty fascist-looking actions by Newton police officers, who falsely arrested a man for driving under the influence (an arrest that occurred after the driver passed a breathalyzer test). This false arrest was later defended by the Newton PD as just good police work in which the officers remained “professional” during the bogus arrest despite being “insulted” and “disrespected” by the man they were falsely arresting.

Petersen — at another meeting — also highlighted the fact that one of the involved officers was subject to a no-contact order from a former girlfriend, something the city council chose to handle by suggesting bringing up publicly obtainable info was against the rules.

So, it’s been two consecutive meetings and two arrests for Petersen — something authorized by the mayor and carried out by a PD which already has problematic track record. Hilariously, the first criminal complaint against the arrested commenter lists the victim of the alleged “crime” as “society.” Nearly as hilariously, the second criminal complaint makes it clear Petersen was arrested for nothing more than being mean to city officials. (And by “hilarious,” I mean “clear evidence of First Amendment retaliation” that’s going to make any resulting lawsuit extremely difficult to defend against.)

On 10-24-2022 the defendant was speaking at the scheduled city council meeting. During his presentation the defendant began speaking negatively towards the Mayor of Newton and the Police Chief.

That’s pretty much an admission Petersen was arrested for criticizing the government. From what’s detailed here (and captured in multiple recordings from multiple council meetings), Petersen was not disrupting meetings. He was simply using his comment time to specifically criticize two town officials. And those officials decided they’d rather arrest the commenter than sit there and be criticized by a city resident. That’s when the real disruption begins, and all of the hubbub is caused by a mayor who feels that if residents can’t say anything nice, they shouldn’t say anything should be arrested.

The city is violating the First Amendment on the regular. It released an (unsigned) statement claiming it has only subjected Petersen’s speech to reasonable “time, place, and manner restrictions.” But it’s pretty clear the city’s restrictions only engage when these officials don’t like what residents are saying. The city’s statement cites appellate precedent, but conveniently ignores the fact that this ruling says any time, place, and manner restrictions must be content-neutral. As Adam Steinbaugh points out in his comments to the Des Moines Register, Newton’s restrictions don’t appear to fit this description:

Newton’s policy, by contrast, explicitly targets speech officials consider to be “derogatory,” Steinbaugh said.

“If you say, as here, ‘Mayor, you are a fascist or your police chief is a fascist,’ that is prohibited. But if you say, ‘Mayor, you and your chief are proud, upstanding American patriots,’ that would be permitted under the policy, so it is inherently viewpoint-discriminatory,” Steinbaugh said.

If there’s any justice in this nation, this will end badly for the mayor and his chief of police. This is clearly punishment meant to silence a particularly persistent critic who still shows up to offer criticism despite being arrested twice for doing this. If these two don’t like being called fascists, maybe they should stop acting like fascists, rather than prove the activist’s point for him repeatedly.

Filed Under: 1st amendment, fascists, iowa, michael hansen, newton, newton city council, noah petersen

Elon Musk’s First Move Is To Fire The Person Most Responsible For Twitter’s Strong Free Speech Stance

Free Speech

from the not-a-great-start dept

Last night, Elon Musk closed his on-again, off-again, on-again deal to buy Twitter, and his very first order of business was to fire a bunch of top executives. This was not necessarily unexpected. When new owners come in, they will often clean house, and the text messages revealed as part of the lawsuit while Musk was trying to get out of the deal made it clear that Musk could not stand CEO Parag Agrawal. So it seemed obvious that Agrawal would be gone immediately, but Musk also fired (at least) the other top executives who know how the company works: CFO Ned Segal, head of legal and policy Vijaya Gadde, and General Counsel Sean Edgett. That’s not a great sign for an orderly transition, as those are the executives who understood Twitter’s business the best.

And while it’s no surprise that he fired Gadde (he had criticized her in an extremely misleading way back in April, leading to a barrage of harassment that he did nothing to stop), it still should be noted that this is a huge loss for free speech. I said as much on Twitter last night, and had hordes of people calling me every name you can imagine, but this is a point worth defending, even if (especially if?) clueless people want to attack me for it. I just ask that if the premise of this post makes you mad, at least read all the details, and respond to the actual points — not whatever simplistic narrative you think is true.

Gadde did more for free speech on the internet than almost anyone else I can think of. It is difficult to overstate how important she has been in protecting free speech over the past decade. This post will only brush the surface of some of what she’s done.

But first, let’s respond to the main criticism I received for pointing this out. Lots of people insist that she was “chief censor” and that she “banned the sitting President” or that she “interfered in the election by blocking the Hunter Biden story!” and other such claims. Someone even told me she “banned half the US.” All of these complaints misunderstand the nature of free speech, and how it actually works.

First, it should be noted that of all the mainstream social media platforms out there, Twitter was by far the most permissive and the most resistant to rules that would shut down accounts. It had a significantly lighter touch on moderation than Facebook, Instagram, YouTube, Snapchat and TikTok. Some of this predated her role at the company, but once she took over legal, she continued to make sure the company was far more open to user speech than nearly every other platform (and that even includes the various MAGA platforms that pretend to be about free speech but are quick to ban critics).

On top of that, she made sure that when content moderation did happen, it was based on a set of principles and policies. You can disagree with where she came down on those policies (and I often did!) but she and others at the company worked hard to make sure that they weren’t making decisions in an arbitrary fashion, but based on a policy. Indeed, this is where the whole Hunter Biden laptop story went wrong. As we’ve written a bunch of times, links to the NY Post story were blocked because of a belief that the story violated Twitter’s “hacked materials” policy. That policy had been in place for a while before the laptop story came out, and in fact we had criticized that policy specifically because it seemed clear that it could interfere with journalism in the public interest (and that had happened when Twitter banned an account for linking to leaked law enforcement documents — i.e., info that was embarrassing to cops, who tend to be more right wing than left wing, countering the narrative that Twitter only blocks pro-right wing info). Twitter eventually changed that policy, which was the right call. But, again, it shows that the company had a policy and enforced it against content that favored different political viewpoints. Indeed, not enforcing the same policy against the NY Post would have been an example of Twitter giving more leeway to conservatives than liberals.

Gadde also spent a lot of time trying to think through ways to make the site welcoming for more users without banning or shutting down accounts. She recognized that every decision had serious tradeoffs. If you allow too much abuse, harassment, and rule breaking, then that can actually work against speech by driving it away, and causing people to stay silent (you know, what the “cancel culture” crowd claims is “self-censorship”); but there’s also value in diverse viewpoints and a wide variety of opinions. She tended to default more towards allowing more speech than less, but knew that a free-for-all on a single site did not actually lead to more overall speech (which is why the few “free-for-all” sites are not very large).

This is part of the reason Twitter kept on experimenting with new methods of handling trust & safety that were less restrictive than banning people entirely. It was among the first, for example, to introduce fact checks and “more information” boxes. Ridiculously, tons of people claimed that those information boxes were censorship, when they were actually a perfect example of the “more speech” approach that Twitter tried to default to in most cases, allowing the company to leave up more speech.

And, contrary to widespread belief, Twitter wasn’t in the business of “banning conservatives.” They were mostly focused on stopping jerks from harassing people. Multiple studies have showed that there’s no evidence that Twitter’s enforcement was actually biased against conservatives. It was biased against people being jerks and creating real-world harm.

That takes us to the eventual Presidential ban, which many of Trump’s fans insist is evidence of bias. But, the reality is that Twitter bent over backwards to leave Trump on the platform despite years of him violating its rules. The company really did everything to keep him on the platform (including the aforementioned fact checking bits, adding more speech) and only took this action after actual violence had broken out, and the company reasonably worried that Trump was agitating for more such violence. It was never about speech, but about not being complicit in encouraging violence. As we noted, and has proven true, Trump has never had any problem getting whatever message he wants out there. But that doesn’t mean that any individual private company needs to help him.

Indeed, this is the key point that I’ve been making for years, and that many people have trouble with: the ability of websites to moderate as they see fit, to create their own rules, and build their own communities (which can include taking enforcement action against those who break the rules) is actually essential for free speech online. Because, without it, websites wouldn’t be willing to host any third party speech at all. There would be many, many fewer places online where you could speak if websites couldn’t craft their own rules.

For all the talk of “the new public square,” as we’ve noted in the past, it’s the internet itself that is the new public square, and there are tons of different communities forming in that public square, each with their own rules. And it’s that diversity that enables so much speech online. Different places where different people can speak, and where there are different rules and norms and accepted behavior. It’s not all just one free for all, because that would just be pure noise and no signal. Twitter has been one key piece of all that. And much of that is because of Gadde’s leadership on these very issues.

And that’s not even getting to the ways in which Twitter has been a strong and true defender of actual free speech around the globe. First off, unlike Facebook and many, many other social media companies, Twitter from the beginning did not try to enforce any kind of “real names” policy, and not only allowed, but often encouraged people to use aliases and remain anonymous. This has been incredibly important in setting up Twitter as a tool for free speech, in that anonymity has enabled whistleblowers and critics to be able to express themselves without fear of direct reprisal.

But, even more importantly, unlike almost any other internet company I can think of, Twitter has embraced the fact that anonymity is protected by the 1st Amendment to fight in court over and over and over again against attempts to reveal anonymous users’ identity. It would even step into cases where it was not a party, and where most other companies would not just stand aside but simply cough up subpoenaed or government-requested data. Indeed, from early on Twitter was known to stand up against government demands for data back when most internet companies were happy to hand it over.

When it comes to pushing back against governments and their attempts to crack down on speech, Twitter’s record is undeniably stronger than just about any other company. When all the other big internet companies settled with the federal government regarding keeping secret how often it was demanding info on their users, Twitter filed and fought a First Amendment lawsuit to be able to reveal as much information as they could.

That’s supporting free speech, and much of that was driven by Gadde and her leadership.

And, that wasn’t just in the US. Twitter was among the most vocal companies pushing back on foreign governments and their demands for information or their demands to censor people. Just as one example, in India, the government demanded that Twitter remove users critical of the government, and Twitter fought back, even as the government threatened to jail Twitter employees. And when India passed a law to give the government more control over internet censorship, Twitter sued the Indian government. In fact, this lawsuit was something that Elon Musk complained about, suggesting that he’s way more willing to go along with government demands. Indeed, Musk also praised the EU’s new Digital Services Act, which is a highly censorial bill that demands all sorts of content takedowns and other censorial actions. Twitter, under Gadde’s leadership, was one of the most vocal companies in calling out how the Digital Services Act could harm speech online.

Even as we speak, one of the biggest free speech cases facing the Supreme Court this term has Twitter as a party. But Musk just fired the company’s two top legal executives who were responsible for filing the cert petition to get the Supreme Court to hear the case. I have no idea what that means, but I fear a potential shift in legal strategy.

There are many more examples, some public, many that are not public at all. But I can think of no other internet executive who has done as much for actual free speech online than Vijaya Gadde. Some people have said that whoever else Musk puts in place could just continue what she’s done, and I hope that’s the case. But, again, as hopefully some of this thread has highlighted, there has been no one at any other internet company who has been willing to do as much as she has done on these issues, so replacing her with anyone else is likely to be a downgrade. I would have said the exact same thing even if Musk hadn’t taken over and she’d left the company while it was still run by the old regime. Gadde leaving Twitter is a loss for free speech — and that seems especially true given Musk’s other comments about anonymity, about the case against India, and about the DSA.

No matter what narrative you believe, Twitter has been by far the biggest defender of free speech online over the past decade, doing way more than much larger companies, and much of that was driven by Gadde’s commitment to free speech. The firing is a loss for Twitter. It’s a loss for Musk. And it’s a loss for free speech for all of us.

Filed Under: 1st amendment, anonymity, content moderation, elon musk, free speech, nsls, vijaya gadde
Companies: twitter

Brazil’s Governments Amps Up Anti-Free Speech Tactics Ahead Of National Election

Free Speech

from the gotta-keep-the-public-in-check-if-you-want-to-keep-on-winning dept

The Brazilian government — under the “leadership” of Donald Trump Mutual Admiration Society member Jair Bolsonaro — has been steadily cracking down on free speech under the guise of saving the public from “fake news” and other misinformation.

Over the past few years, it has ramped up efforts to eradicate content and reporting that it calls “fake news,” a term that refers to criticism of the ruling party, criticism of the ruling party’s efforts, punching holes in official narratives, or debunking the ruling party’s favored conspiracy theories.

In early 2018, it handed over the job of policing social media platforms to the actual police. The federal police were given permission to bring guns to a word fight to ensure compliance with demands that anything the government declared “fake” be removed as close to immediately as possible. The federal police seemed to relish this new directive, stating that it would continue to police social media whether or not the proposed censorship law was passed by Brazil’s government.

Since then, even more mandates have been handed down to social media services to make it easier for the government to track and trace critics and dissidents. A 2020 “fake news” proposal would have forced service providers to collect and retain a ton of data and metadata indefinitely for examination by the government (which means the federal police) whenever it felt something was “fake” and/or (even more vaguely) threatened national security.

In 2021, the legislation was altered to remove logging requirements and the collection of users’ national ID information before allowing them to open accounts. While that aspect of the proposed legislation got a bit better, the rest of the “fake news” law got much, much worse. It mandated unmasking of users by social media services, granted the government permission to simply shut down troublesome parts of the internet to quell dissent, and allowed the government to pretend IP addresses alone were capable of accurately identifying users who spread so-called “fake news.”

Ahead of a runoff election between far right incumbent Jair Bolsonaro and his opponent, Luiz Inacio Lula da Silva, Brazil’s government has granted itself an expansion of censorship powers and increased its direct policing of social media content.

The Superior Electoral Court (TSE) unanimously approved rules to maintain the integrity of the upcoming electoral process by fighting against the spread of misinformation that may compromise the fierce presidential campaign between far-right incumbent Jair Bolsonaro and leftist challenger Luiz Inacio Lula da Silva, as well as the elections overall.

The president of the TSE, Minister Alexandre de Moraes, declared that once the collegiate decides that a particular post contains disinformation content, it will be removed, together with all other identical publications. He emphasized that after “[v]erifying that that content has been repeated, there will be no need for a new representation or judicial decision, there will be an extension and immediate withdrawal of these fraudulent news.”

While the involvement of the court suggests an impartial review of alleged “fake news,” the increasing focus on what President Bolsonaro believes is fake news suggests something else. The court is here to serve the laws that are in place, rather than simply protect the citizens of Brazil from government overreach.

There is no carrot for social media services. Only a very expensive stick. Content the court declares illegal needs to be removed within two hours. Services face fines of $19,000/hour for every hour (I assume pro-rated fines are also in place) the content remains visible past that point.

The laws Bolsonaro thought might deter criticism of him and his party are now being used against him, which is its own form of justice, I guess. But it is also limiting political debate and appears to be restricting journalists from reporting on the candidates’ sordid pasts/presents.

The TSE has already ordered some disinformation videos to be taken down, including ones that say Lula consorts with Satan and Bolsonaro embraces cannibalism. The campaigns have also been ordered by the court to pull online ads saying the leftist will legalize abortion and the incumbent entertains pedophilia.

[…]

The Bolsonaro camp has complained that the TSE has told it not to run ads calling Lula “corrupt” and a “thief” because bribery convictions that put him in jail were later annulled by the Supreme Court.

Brazilian broadcasters have also said they have been prohibited from using the words “ex-convict,” “thief” or “corrupt” when speaking about Lula. The broadcaster lobby ABERT protested that such decisions were interfering with freedom of expression.

By contrast, Bolsonaro allies complain that the TSE has not stopped opponents from accusing the president of “genocide” for his handling of the COVID-19 pandemic that killed 680,000 Brazilians.

Fun stuff all around. An authoritarian is learning what terrible laws can do when you’re forced to allow your political opponents to avail themselves of the same (dubious) protections. Unfortunately, it’s not just the party in power or the party planning to take power by accusing opponents of cannibalism that are being constrained here. The fines and additional scrutiny are likely provoking proactive content moderation by platforms, which means content that isn’t technically illegal is being buried because it cuts too close the vague language of the law. And journalists are finding it more difficult to report on candidates because the court has declared some words off limits.

Even if Bolsonaro is finding himself a bit hamstrung by his own legal mandates, he at least has to be happy it’s resulted in a pretty effective chilling effect on social media services and journalism outlets. Not every win is a blowout. But a win, no matter how ugly, is still a win.

Filed Under: brazil, elections, fake news, free speech, jair bolsonaro

Saudi Arabia Imprisons An American Citizen For 16 Years Over Critical Tweets

Free Speech

from the evil-empire-stuff dept

The Saudi government, led by crown prince Mohammed Bin Salman, doesn’t care to be criticized. It routinely punishes its own citizens for insulting the nation’s ruler. It occasionally murders and dismembers critics for refusing to be silenced. And now it’s prosecuting and imprisoning US citizens for exercising their First Amendment rights.

Last month, the Saudi government charged an American citizen currently residing in Saudi Arabia for “disrupting the public order” with social media posts criticizing the government’s handling of domestic matters like divorce and child custody. The US citizen, Carly Morris, was lured back to Saudi Arabia by her ex-husband, a Saudi citizen. Once there, her ex-husband basically kidnapped their daughter, converted her US citizenship to Saudi citizenship, and cut off all contact. Morris was free to leave, but she would have to leave her daughter behind despite a Saudi court granting her full custody. And now she’s possibly facing more than a decade in prison if the government decides to prosecute her.

What’s only theoretical (at this point) in Carly Morris’s case is the reality for US citizen Saad Ibrahim Almadi, a project manager who resides in Florida. Almadi isn’t an anti-Saudi activist. He’s just a regular guy who is understandably (and correctly) critical of the Saudi government and the crown prince. He just made the mistake of trying to visit his family in the country he had criticized a handful of times over the past several years. Here’s Josh Rogin, writing for the Washington Post.

Almadi is not a dissident or an activist; he is simply a project manager from Florida who decided to practice his right to free speech inside the United States. But last November, when he traveled to Riyadh to visit family, he was detained regarding 14 tweets posted on his account over the previous seven years. One of the cited tweets referenced Jamal Khashoggi, the Post contributing columnist who was murdered by Saudi agents in the Saudi Consulate in Istanbul in 2018. Other tweets criticized the Saudi government’s policies and the corruption in the Saudi system.

“He had what I would call mild opinions about the government,” his son Ibrahim told me. “They took him from the airport.”

Seems like nothing a crown prince or an oil-rich nation would feel too concerned about. But MBS and his government not only took offense, but also ran him through a rigged justice system that ensure the bullshit charges would stick and take more than a decade of freedom from a man who criticized a foreign government while on his own soil, utilizing his enshrined First Amendment rights.

The charges are indeed bullshit. And they’re even more bullshit than the usual bullshit found in laws that criminalize criticizing the government.

Almadi was charged with harboring a terrorist ideology, trying to destabilize the kingdom, as well as supporting and funding terrorism.

All of that from a handful of critical tweets sent out over a period of seven years. Not only did the Saudi government hit him with these charges, it also rung him up for not surrendering himself to authorities for posting “criminal” tweets.

He was also charged with failing to report terrorism, a charge related to tweets Ibrahim sent on a separate account.

On October 3, Almadi was sentenced to 16 years in prison. He also received a 16-year travel ban. This means Almadi possibly won’t leave prison until he’s 87. And then he has to wait another sixteen years before he can return to United States.

The State Department claims it’s playing hardball with MBS to get Almadi released. But it’s going to take far more than “intensively raising concerns” about Almadi’s imprisonment with senior Saudi officials. This is a government that murdered and dismembered a critic in its own foreign embassy building. And “moving through the process” to determine whether Almadi is actually “wrongfully detained” is a useless waste of time that signals to the Saudi government that it could easily get away with something like this again, although it may mean slightly altering the criminal charges to better meet the State Department’s standards for allowing foreign governments to imprison US citizens.

The Saudi government has nothing to fear from the US government. Former president Donald Trump parroted and amplified the Saudi government’s denials about its involvement in Khashoggi’s murder, helping bury the story to ensure his arms deals with the kingdom remained intact. And the only strong language directed at the Saudi government by President Biden has been over the kingdom’s refusal to keep oil prices low. It’s no wonder the State Department can’t offer anything more than a promise to occasionally complain about this extraterritorial punishment of a US citizen for tweeting government criticism from US soil — an act that broke no local laws and did not take place while Almadi was in a country where such statements are illegal.

Filed Under: carly morris, free speech, mbs, saad ibrahim almadi, saudi arabia, tweets

Some Good News: Planet Aid Agrees To Pay $1.9 Million To Settle Its SLAPP Suit Against Reveal News

Defamation

from the anti-slapp-rules-protect-speech dept

Once again, we need good anti-SLAPP laws in every state and a strong federal anti-SLAPP law. It’s the best defense against vexatious, censorial lawsuits. Reveal News from the Center for Investigative Reporting does some really good reporting, with a focus on big, important issues. Reveal wrote a series of articles about the non-profit Planet Aid. A key part of their research showed that Planet Aid got over $100 million in grants from the US government, and used that money in questionable ways.

Planet Aid was not happy about this and sued Reveal in what seemed to obviously be a SLAPP suit to silence their reporting. The case has gone on for years. In 2021, the district court tossed it as a SLAPP suit, mainly around the absences of actual malice, making the defamation claim futile. Planet Aid appealed to the 9th Circuit, which, in August of this year, upheld the lower court ruling. The main focus of the appeal was whether or not Planet Aid and its director are limited purpose public figures (i.e., whether or not the “actual malice” standard applies). The court finds it obviously is:

Planet Aid regularly engages with the press and actively cultivates a public image. It issues frequent press releases to generate attention regarding its charitable programs and activities. For instance, Planet Aid issued numerous press releases over the years to advertise the environmental benefits of its efforts to collect and resell donated clothing. Other examples of Planet Aid’s public self-promotion abound

And… some of that public figureness… kinda confirms Reveal’s reporting:

From its inception, Planet Aid has drawn public attention and comment. For decades, the global press has reported on its relationship with a controversial web of charitable organizations accused of misusing funds and its association with a Danish cult. In 1993, a few years before Planet Aid was incorporated, the Edmonton Journal reported that “an international organization that specializes in collecting used clothes for southern Africa,” was “attracting criticism from Denmark to the Arctic Circle” because many “Europeans who donate their old [clothes] don’t know the garments end up being sold at market prices in Africa—with much of the profit filtered into what seem less than altruistic causes.” This organization, known as “Humana” was reportedly affiliated with the Development Aid People to People (“DAPP”) network. According to the article, “[t]hrough a complex web of financial interests, the Humana/DAPP network runs a financial system out of the Cayman Islands” that includes “holding companies,” “Caribbean fruit plantations,” and “a yacht dealership.” The article further alleged that Humana and DAPP began as a group of radical Danish school teachers in the early 1970s, called “Tvind.”

The 9th Circuit finds all of this a pretty easy call:

We have little difficulty in concluding that genuine public controversies existed at the time the Reporters published their statements about Planet Aid and Lisbeth Thomsen. Long before the Reporters published any articles about Planet Aid, countless news outlets published articles questioning Planet Aid’s integrity and examining the extent to which its charitable funds were being used for their intended purposes. Planet Aid was repeatedly linked by the press to the founder of a Danish charity who was prosecuted for illegally diverting charitable funds. Additionally, Planet Aid raised over a $100 million in charitable funds. It received tax exemptions from the U.S. government to help the poor. This was a genuine public controversy; the extent to which Planet Aid’s funds were being used for their intended purposes has ramifications both for American taxpayers and for the advertised recipients of those charitable funds.

So, given that they’re public figures, and that there is nothing showing actual malice (indeed, quite the opposite), California’s anti-SLAPP law kicks the case out of court, and says Planet Aid needs to pay Reveal’s legal fees:

Because Planet Aid and Thomsen are limited-purpose public figures, their defamation claim can survive an antiSLAPP or summary judgment motion “only if the evidence in the record would permit a reasonable finder of fact, by clear and convincing evidence, to conclude that [the Reporters] published a defamatory statement with actual malice.” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 508 (1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255–256 (1986). Actual malice is a subjective test; it means that the Reporters must have published a statement with “knowledge that it was false” or “reckless disregard of whether it was false or not.” N.Y. Times, 376 U.S. at 280. Reckless disregard, in turn, means that the Reporters “in fact entertained serious doubts as to the truth” of the statement in question. St. Amant v. Thompson, 390 U.S. 727, 731 (1968). The district court undertook a thorough and detailed analysis of the actual malice assertions. The record supports the district court’s conclusion. Therefore, we agree with the district court that, for the reasons stated by the district court in its order, a reasonable fact finder could not find, by clear and convincing evidence, that the Reporters acted with actual malice.

And, now, rather than fight over how much it needed to pay, Planet Aid has agreed to pay $1.9 million to close out the case — the largest anti-SLAPP award under California’s law.

The parties have now resolved all remaining issues, including by Plaintiffs’ agreement to pay Defendants $1,925,000, in satisfaction of Defendants’ entitlement to attorney’s fees and costs pursuant to California Civil Code Section 425.16.

In a statement about this agreement, it’s noted that the money will be used to repay insurance, but then to support further pro bono efforts by the big law firms that handled the case: Davis Wright Tremaine and Covington & Burling.

The $1.925 million settlement will be apportioned to CIR’s insurance company, which paid a portion of CIR’s legal fees at the outset of litigation, while the bulk of the remainder will be used by Covington & Burling and Davis Wright Tremaine to support ongoing pro bono matters.

Anti-SLAPP laws work. They help protect important journalism.

Filed Under: 9th circuit, anti-slapp, california, charity, defamation, free speech, investigative reporting, slapp suits, usaid
Companies: center for investigative reporting, planet aid, reveal

Turkey Still Thinks It Hasn’t Jailed Enough Journalists, Add Prison Sentences To Its ‘Fake News’ Law

Free Speech

from the until-all-that's-left-are-government-approved-journalists dept

Turkey continues to fall back in the freedom field. Or maybe it’s surging ahead in the oppression field! Maybe that’s the list it wants to top.

Whatever the case, Turkey’s government has followed the lead of Recep Tayyip Erdogan, converting critics to criminals and seizing control of a large percentage of the press apparatus so Erdogan and his government lackeys seldom have to hear a discouraging word.

The government’s “Communications Directorate” directly controls several press outlets. Those who haven’t been taken over are routinely hit in the pocketbook when the government pulls ad buys in response to reporting not deemed sufficiently “ethical.” Truly independent outlets are going extinct, thanks to the government’s insistence on jailing as many critical journalists as possible, all while pretending critical coverage is pretty much just terrorism.

The government has also gotten into the “fake news” business. It is combating disinformation in its own particularly brutish way. With elections on the way, the ruling party is doing what it can to ensure it stays in the ruling position. A recently-passed law targeting disinformation was just made much worse, tacking on jail time for those who share content the government has declared suddenly illegal.

Turkey criminalized the spread of what authorities describe as false information on digital platforms, giving the government new powers in the months remaining before elections.

The measure, proposed by the governing AK Party and its nationalist ally MHP, is part of a broader “disinformation” law that was adopted by parliament on Thursday. It mandates a jail term of one to three years for users who share online content that contains “false information on the country’s security, public order and overall welfare in an attempt to incite panic or fear.” 

It’s nice that “in an attempt to incite panic” is tacked on at the end. It almost makes it appear as though Turkish prosecutors might have to prove intent. Somehow, I doubt that last phrase will matter much when the government starts enforcing this law. It will be the rest of it that matters most.

This will allow the government to jail anyone who contradicts the official narrative when discussing matters related to national security, public order, or “overall welfare.” Discussing terrorist attacks or document leaks? Security. Talking about protests against the Turkish government? Public order. Pointing out public utility problems or social services failures? Overall welfare

There’s enough in this vague wording to criminalize nearly any criticism of the government, especially if the government takes the step (and it will) of denying allegations are true. If the official response is ignored (or maybe even if it isn’t!), the content becomes “disinformation” and the government can start rounding people up.

Journalists will be the most natural target since everything covered by this vague wording is of public interest. Those sharing this content will be next. And the few brave souls who venture onto social media platforms to discuss their subjective experiences will be right there with them.

The Turkish government is little more than a bundle of chilling effects at this point. This latest law just converts implied threats into actual jail time.

Filed Under: disinformation, fake news, free speech, journalism, recep tayyip erdogan, turkey