Vietnamese Government Pushes Plan To Restrict Dissemination Of News Stories By Social Media Platforms

Free Speech

from the information-wants-to-be-throttled dept

Every unhappy populace is unhappy in its own way, but every autocratic regime is the same. Vietnam may have embraced a form of capitalism that made it inviting to foreigners, but the government’s embrace has always been a bit on the strangulation side. Sure, Vietnam citizens may have more opportunities for earning money than running a rice paddy mostly free of Agent Orange, but the government is no more willing to tolerate criticism than it was back in the good old days of post-war Vietnam.

For years, the Vietnamese government has weaponized online services to control the narrative, pressuring local offices of US-based social media services to silence unhappy residents. When these tech companies pushed back, the Vietnamese government pushed back harder, demanding local retention of data to ensure it could apply its laws to US-based services.

To keep the local internet clear of dissenting voices, the Vietnamese government created a literal internet police force. “Force 47” employed thousands of flunkies tasked with burying “wrongful views” of government officials and activities. Unfortunately, US service providers largely allowed these voices to be silenced. Facebook sported an unseemly 90 percent compliance rate with Vietnamese government demands in 2017, assuring the government it could control the narrative on the largest social media platform in the world.

Having been rewarded with early concessions, the government increased its demands, mandating the removal of “wrongful views” from social media services within 24 hours of notification.

But apparently this still isn’t enough. As Fanny Potkin and Phuong Nguyen report for Reuters, the demands are increasing. No matter who’s providing social media services to Vietnamese residents, it will be the government who decides what citizens have access to.

Vietnam is preparing new rules to limit which social media accounts can post news-related content, three people familiar with the matter said, as authorities tighten their control over news and information sources in the country.

The rules, expected to be announced by the year-end and with details yet to be hammered out, would establish a legal basis for controlling news dissemination on platforms like Facebook and YouTube while placing a significant moderation burden on platform providers, two of the sources added.

If put into play, this would restrict most news dissemination to state-controlled press outlets, preventing citizens from accessing opposing views or independent journalism that punches holes in the official story. Targeting Facebook and YouTube ensures the most common destinations for social media users will become government echo chambers.

The alleged concern is that Vietnamese internet users might believe social media services are legitimate news sources. That’s an insult to the users, who most likely realize Twitter, Facebook, and YouTube do not produce their own news content. And it’s a handy way to leverage this deliberate misconception to prevent the sharing of actual news content by users — content that may conflict with official narratives.

As the report notes, the ruling Communist Party has long been in the censorship business and targets dissent both directly and obliquely to keep criticism to a minimum. The question isn’t whether the ruling party will turn this proposal into law. It most certainly will.

The real question is how obliging these services will be and how often they’ll comply with new government demands. There’s a lot at stake here and US-based companies will have to decide whether assisting the Vietnamese government in its new censorship push is an acceptable tradeoff for access to millions of users.

Vietnam is a top-10 market globally for Facebook with 60 million to 70 million users, according to 2021 data, and sources familiar with the matter said it generates around $1 billion in annual revenue for the company – surpassing France.

YouTube has 60 million users in Vietnam and TikTok has 20 million, according to 2021 government estimates, although Twitter remains a relatively small player.

None of the involved parties have issued statements or comments on the proposed rules. Obviously, the Vietnamese government hasn’t commented because it doesn’t need to waste its breath justifying more censorship. Vietnamese citizens can’t vote with their feet, much less their actual votes.

The lack of immediate objections by Facebook and YouTube are far more concerning. Perhaps they’re silent because they don’t want to tip their hands if they’ve chosen to subvert or rebel against these proposed mandates. But it could be they’re just silent because neither platform wants to lose access to millions of users, even if that means standing idly by while a repressed population experiences even more repression. And the less noise you make during the proposal process, the less attention you’re likely to draw when the rules go into effect. User retention lasts longer than news cycles — something that is far more profitable in the long run than principled stands. Hopefully, this isn’t the case, but as it stands now, there’s nothing on the record that contradicts this perception.

Filed Under: content moderation, force 47, news, sharing, sharing news, social media, vietnam

California Governor Signs Bill Forbidding The Use Of Rap Lyrics As Criminal Evidence

Free Speech

from the speech-that-may-be-violent-is-speech-nonetheless dept

Rap music has long conveyed the narrative of the streets. As such, its subject matter often details violence, police oppression, and criminal activities. And the expression itself often provides the only legitimate potential source of income for people living in impoverished, high-crime areas.

But it’s only in recent years that cops and prosecutors have decided streetwise narratives are admissions of criminal acts. No one ever arrested members of N.W.A. for fucking the police (sodomy?) or Dr. Dre for going “187 on an undercover cop” (murder one plus “blue lives matter” enhancements). But when cases seem a little light on evidence, prosecutors are now introducing lyrics to recorded songs as admissions of guilt or, at the very least, admissions of conspiracies to commit crimes.

This flips the First Amendment on its head, converting expressive speech to criminal evidence. Rap lyrics are protected speech… right up until prosecutors unilaterally decided that they aren’t. All they need are receptive courts — ones which view violent lyrics as indicative of criminal violence, converting artistic expression into damning evidence.

First Amendment challenges continue, forcing some courts to reconsider the admission of artistic expression as evidence. And this friction between law enforcement and the violent fantasies of citizens doesn’t just affect rap music. It also affects people with no connection to the rap world — ones who use the freedom of the internet (and the freedom of speech) to engage in speech that may be highly disturbing, but is nonetheless completely legal.

It’s an incredibly gray legal area, one that will only be resolved via years of litigation and evidence suppression motions. At the moment, the Supreme Court appears willing to grant some First Amendment leeway when it comes to speech involving the detailing of criminal acts, even if it has yet to rule definitively on the issue.

But that may change in the near future. The top court in the land seems less and less concerned with constitutional protections. And prosecutors all over the nation continue to roll the dice on favorable rulings when submitting rap recordings as evidence of criminal guilt.

But it won’t be nearly as easy to make the First Amendment subservient to judiciary activism or law enforcement overreach in the state of California. The state’s governor has signed a bill that effectively takes rap lyrics off the table in criminal prosecutions, as Eddie Fu reports for Consequence of Sound.

Creative expression has scored a major victory in California, as Governor Gavin Newsom has signed a bill restricting rap lyrics from being used as evidence in court. The Decriminalizing Artistic Expression Act was unanimously approved by the state’s senate and assembly back in August before being signed into law.

Per Variety, a virtual signing ceremony was held featuring speeches from rappers including Killer Mike, Meek Mill, Too $hort, YG, E-40, and more. CEO of the Recording Academy Harvey Mason Jr. and leaders from the Black Music Action Coalition and Songwriters of North America also joined the ceremony.

The bill [PDF] does not completely lock law enforcement out of using rap lyrics as evidence. But it does create a new set of restrictions that must be met before prosecutors can introduce rap lyrics as evidence of criminal culpability. The law says lyrics are not admissible unless:

A court may admit evidence described in subsection (a) if the Government, in a hearing conducted outside the hearing of the jury, proves by clear and convincing evidence—

(1)(A) if the expression is original, that defendant intended a literal meaning, rather than figurative or fictional meaning; or

(B) if the expression is derivative, that the defendant intended to adopt the literal meaning of the expression as the defendant’s own thought or statement;

(2) that the creative expression refers to the specific facts of the crime alleged;

(3) that the expression is relevant to an issue of fact that is disputed; and

(4) that the expression has distinct probative value not provided by other admissible evidence.

So, not necessarily impossible. But it does shift the burden to the government to credibly allege intent and a connection between the lyrics and the criminal act being prosecuted.

It’s an incremental shift but a valuable one. It takes the onus off the defendant to prove their artistic expression isn’t linked to criminal acts and ensures prosecutors will be far more careful when attempting to convert protected expression into criminal evidence.

Filed Under: 1st amendment, california, crime, evidence, free speech, rap lyrics

The Onion Files Hilarious Amicus Brief In An Important Case, And Actually Makes A Key Point In The Best Way Possible

Free Speech

from the put-the-onion's-editorial-board-on-the-supreme-court dept

In most cases, it does not do you any good to try to be funny in legal filings. In most cases, judges will not be that amused (even if those same judges sometimes try to make jokey rulings). In the world of the courts, the judges can be funny, but no one else should try. But every so often it works. The ACLU’s Eat Shit, Bob filing, for example, was pretty good.

But now The Onion has truly filed the best amicus ever. It’s one that honestly is so good it should probably never be tried again (even though I fear that many others are now going to try, and fail).

The case is actually one that we’ve been covering at Techdirt, though I never expected The Onion to weigh in on it. It goes back to 2016 when Parma, Ohio resident Anthony Novak (who enjoys writing comedy skits for fun) created a parody Facebook page for the Parma Police Department. It was pretty obviously a parody, talking about how the department “strongly discourages minorities” from applying for jobs at the police department. It also offered “free abortions” in a police van, and promoted a “pedophile reform event.” In short, it was a parody page mocking the Parma Police.

In response, the Parma police arrested Novak, claiming the parody page disrupted public services. Really. Novak spent four days in jail and then was tried but thankfully acquitted by a jury. Novak then sued the city of Parma for violating his civil rights. That case has bounced around the courts, but the rulings have not been great. The district court granted qualified immunity to the police. The 6th Circuit rolled that back in 2019 with what seemed like a good ruling at the time (with the court rightly noting “The First Amendment does not depend on whether everyone is in on the joke.”)

However, on remand, the lower court again decided that the cops get qualified immunity, saying that because some people didn’t get the joke, it violated the law.

Novak’s conduct also confused some members of the public, leading them to believe that his was the real Parma Police Facebook page. When [Detective] Connor consulted with Law Director Dobeck, they reasoned that Novak’s conduct may have violated Ohio Rev. Code § 2909.04(B) with the following elements: 1)“knowingly;” 2) “using a computer;” and 3) “to disrupt, interrupt, or impair the functions of any police … operations.” And Connor’s investigation resulted in a finding of probable cause on each of those prima facie elements.

Unfortunately, this time the 6th Circuit upheld the lower court ruling, saying that “because the officers reasonably believed they were acting within the law” they get qualified immunity.

Novak has asked the Supreme Court to weigh in on whether or not a police officer is entitled to qualified immunity for arresting someone solely for speech parodying the government. It also asks the court to reconsider the entire doctrine of qualified immunity.

With that as background, The Onion has stepped up to the plate and filed an amicus brief urging the Supreme Court to hear the case. And it is so, so good. Again, I would not recommend that anyone else ever try this, but in this case it works. The entire brief is a parody highlighting how parody is funny, even if some people don’t get the joke. You get a sense of where this is going right from the jump:

The Onion is the world’s leading news publication, offering highly acclaimed, universally revered coverage of breaking national, international, and local news events. Rising from its humble beginnings as a print newspaper in 1756, The Onion now enjoys a daily readership of 4.3 trillion and has grown into the single most powerful and influential organization in human history.

In addition to maintaining a towering standard of excellence to which the rest of the industry aspires, The Onion supports more than 350,000 full- and parttime journalism jobs in its numerous news bureaus and manual labor camps stationed around the world, and members of its editorial board have served with distinction in an advisory capacity for such nations as China, Syria, Somalia, and the former Soviet Union. On top of its journalistic pursuits, The Onion also owns and operates the majority of the world’s transoceanic shipping lanes, stands on the nation’s leading edge on matters of deforestation and strip mining, and proudly conducts tests on millions of animals daily.

The Onion’s keen, fact-driven reportage has been cited favorably by one or more local courts, as well as Iran and the Chinese state-run media.

Calling out the fact that media in India and China have fallen for articles in The Onion highlights how powerful governments can and do fall for parody all the time.

The Onion admits its bias in filing the amicus brief:

Americans can be put in jail for poking fun at the government? This was a surprise to America’s Finest News Source and an uncomfortable learning experience for its editorial team. Indeed, “Ohio Police Officers Arrest, Prosecute Man Who Made Fun of Them on Facebook” might sound like a headline ripped from the front pages of The Onion—albeit one that’s considerably less amusing because its subjects are real. So, when The Onion learned about the Sixth Circuit’s ruling in this case, it became justifiably concerned.

First, the obvious: The Onion’s business model was threatened. This was only the latest occasion on which the absurdity of actual events managed to eclipse what The Onion’s staff could make up. Much more of this, and the front page of The Onion would be indistinguishable from The New York Times.

Second, The Onion regularly pokes its finger in the eyes of repressive and authoritarian regimes, such as the Islamic Republic of Iran, the Democratic People’s Republic of North Korea, and domestic presidential administrations. So The Onion’s professional parodists were less than enthralled to be confronted with a legal ruling that fails to hold government actors accountable for jailing and prosecuting a would-be humorist simply for making fun of them.

Third, the Sixth Circuit’s ruling imperils an ancient form of discourse. The court’s decision suggests that parodists are in the clear only if they pop the balloon in advance by warning their audience that their parody is not true. But some forms of comedy don’t work unless the comedian is able to tell the joke with a straight face. Parody is the quintessential example. Parodists intentionally inhabit the rhetorical form of their target in order to exaggerate or implode it—and by doing so demonstrate the target’s illogic or absurdity.

Put simply, for parody to work, it has to plausibly mimic the original. The Sixth Circuit’s decision in this case would condition the First Amendment’s protection for parody upon a requirement that parodists explicitly say, up-front, that their work is nothing more than an elaborate fiction. But that would strip parody of the very thing that makes it function.

It then ventures into a slightly more serious discussion on the nature of parody itself and why it’s important — including the part where parody is often expected to fool some of those who come across it. It talks about the importance of The Onion’s motto, “Tu stultus es,” which translate to “You are dumb.” This is, as they note, actually an important part of parody:

The Onion’s motto is central to this brief for two important reasons. First, it’s Latin. And The Onion knows that the federal judiciary is staffed entirely by total Latin dorks: They quote Catullus in the original Latin in chambers. They sweetly whisper “stare decisis” into their spouses’ ears. They mutter “cui bono” under their breath while picking up after their neighbors’ dogs. So The Onion knew that, unless it pointed to a suitably Latin rallying cry, its brief would be operating far outside the Court’s vernacular.

The second reason—perhaps mildly more important—is that the phrase “you are dumb” captures the very heart of parody: tricking readers into believing that they’re seeing a serious rendering of some specific form—a pop song lyric, a newspaper article, a police beat—and then allowing them to laugh at their own gullibility when they realize that they’ve fallen victim to one of the oldest tricks in the history of rhetoric.

There is a lot more in there, including both relevant citations and a lot more jokes. It’s worth reading the whole thing, because not only will you laugh, you may learn a bit about how parody and the 1st Amendment work.

I will include one more bit, though, just because it’s… so good at both being funny and making the relevant point by doing so:

This is the fifteenth page of a convoluted legal filing intended to deconstruct the societal implications of parody, so the reader’s attention is almost certainly wandering. That’s understandable. So here is a paragraph of gripping legal analysis to ensure that every jurist who reads this brief is appropriately impressed by the logic of its argument and the lucidity of its prose: Bona vacantia. De bonis asportatis. Writ of certiorari. De minimis. Jus accrescendi. Forum non conveniens. Corpus juris. Ad hominem tu quoque. Post hoc ergo propter hoc. Quod est demonstrandum. Actus reus. Scandalum magnatum. Pactum reservati dominii.

See what happened? This brief itself went from a discussion of parody’s function—and the quite serious historical and legal arguments in favor of strong protections for parodic speech—to a curveball mocking the way legalese can be both impenetrably boring and belie the hollowness of a legal position. That’s the setup and punchline idea again. It would not have worked quite as well if this brief had said the following: “Hello there, reader, we are about to write an amicus brief about the value of parody. Buckle up, because we’re going to be doing some fairly outré things, including commenting on this text’s form itself!”

Taking the latter route would have spoiled the joke and come off as more than a bit stodgy. But more importantly, it would have disarmed the power that comes with a form devouring itself. For millennia, this has been the rhythm of parody: The author convinces the readers that they’re reading the real thing, then pulls the rug out from under them with the joke. The heart of this form lies in that give and take between the serious setup and the ridiculous punchline. As Mark Twain put it, “The humorous story is told gravely; the teller does his best to conceal the fact that he even dimly suspects that there is anything funny about it.”

I have no idea if the Supreme Court will take this case. I have my doubts, since they seem to love qualified immunity for the most part. But who knows. Perhaps The Onion’s humorous approach has gotten them to think at least a little more deeply about the case.

Either way, it will stand out as one of the best, funniest amicus briefs in a long time. Oh, and also, as you might expect, one that is way funnier AND much more on point than the one filed by the ridiculously bad wannabe The Babylon Bee, which recently filed its own amicus brief… against the 1st Amendment rights of companies.

Filed Under: anthony novak, humor, ohio, parma, parody, supreme court
Companies: the onion

There Are Real Threats To Free Speech Everywhere. Cancel Culture Is Far Down The List

Culture

from the cancel-me-already dept

I’ve written a few times lately about the overreaction many people seem to have to claims that “cancel culture” is a “threat to free speech.” Obviously, there are some examples of people overreacting to speech they dislike, but more often than not, the claims of “cancel culture” are really assholes upset that they’re being held accountable for being assholes. Even in the few cases that do appear to be unjust overreactions to speech, it feels like the people who make the biggest deal about it are actually those who are hiding behind those rare legitimate cases to hide their own fear of facing consequences for their own speech. A friend has referred to this as “cancelled man syndrome,” in which people who know they’re spewing questionable nonsense are scared to death of finally being called on it. It’s perhaps a close relation to “imposter syndrome,” but rather than having to just deal with your internal insecurities, you deal with it by insisting it’s unfair for people to criticize you too vocally.

Adam Serwer, over at the Atlantic, has a good article on all of this, and comes up with his own term for it: “the tyranny of the ratio” (“the ratio” being what happens when you tweet something so monumentally stupid, that you have way more responses calling you out than either likes or retweets). Of course, “the ratio” is just a form of counter speech. It can sometimes be wrong, certainly, but it’s not an attack on free speech. But, as some fear facing such a maelstrom, they seem to associate pointed criticism with at least “attempts” at cancelling.

Serwer’s piece is entitled The Right to Free Speech Is Not the Right to Monologue, and it’s worth reading. It talks about lots of the usual crew, who bemoan cancel culture, trying to turn the stabbing of Salman Rushdie into some sort of commentary on cancel culture (it seems that lots of pundits want to co-opt Rushdie’s situation with their own pet causes). As Serwer notes, though, the supposed “culture of free speech” is always under threat in some form or another, and on the grand scale of things, arguing that people are screaming at you on social media, seems rather benign compared to the past:

Free speech requires a robust exchange of views without the coercion of threats and violence, and self-censorship in response to social pressure is a genuine risk. Yet by definition, there is no free speech if one person is allowed to make an argument and another is not allowed to object to it. Nor has there ever been a time in American history when freedom of speech was not threatened with proscription by the state, or when one could express a controversial opinion and not risk social sanction. In short, the culture of free speech is always under threat.

In almost every era of U.S. history, the bounds of free expression have been contested. In the founding era, patriots tarred and feathered royalists. Before the Civil War, southern states passed laws that could be used to prosecute the dissemination of abolitionist literature and sought to prevent the Postal Service from delivering antislavery pamphlets, saying they would foment insurrection by the enslaved. Mobs followed the abolitionist Frederick Douglass across the North, throwing rotten eggs, stones, and menacing slurs at the orator at speaking events.  After Reconstruction, white supremacists destroyed the office of Ida B. Wells’s newspaper, The Free Speech and Headlight, following the publication of an editorial arguing that lynchings of Black men accused of raping white women were in fact punishment for consensual relationships. The Red Scares of the 20th century saw Americans forced from their jobs and prosecuted for leftist beliefs or sympathies on the grounds that those were tantamount to a commitment to overthrowing the government. Out of that crucible emerged a civil libertarian concept of free speech that many have mistaken for timeless rather than a product of a certain history and a particular arrangement of political power. The idea that certain forms of speech or expression justify or provoke violence, let alone that blasphemy does so, is not an invention of modern social-justice discourse.

From there, he highlights how there are many actual threats to free speech that are happening right now, every day, and which don’t seem to be mentioned by the pearl-clutching crowd of “oh no cancel culture” worriers. Perhaps it’s because these threats are a lot more structural than they are ideological, and also, if anything, both the state-level threats and the mobbing threats can be seen perhaps more often from the right than the left (contrary to the popular narrative).

Yet, as Aaron R. Hanlon recently wrote in The New Republic, this wave of censorship laws in Republican-controlled states bears scant mention among many of the most prominent self-styled defenders of free speech, or at least, far less than the tyranny of the ratio. But we do not become little Rushdies when our inboxes and mentions are inundated with deranged filth from disturbed strangers, as a result of the public-facing profession we chose and the technological advancements that make us more accessible to such people.

It is not minimizing the power of digital mobs to say that spending decades with the state-backed threat of an assassin’s blade at your throat is coercion of a different magnitude. The wrath of an online mob can be harrowing: harassment, outrageous falsehoods, and threats are not pleasant to bear, and can threaten not just your mental health but your livelihood, and in extreme cases your safety. To pretend that seeking to avoid such an experience does not condition what people say and how they act would be foolish. But to pretend that this is a left-wing ideological phenomenon rather than a structural one, when educators, medical providers, election officials, and others from all walks of life are being driven underground by right-wing influencers who can conduct a mob like an orchestra, would be equally foolish.

As Serwer notes, some of this is a spectrum, and it may be more difficult to identify what is and what is not appropriate, but I’d argue that’s also what is allowing the claims of “cancel culture” to be adopted as a shield by those who don’t want to face even the slightest bit of actual accountability.

 State censorship and violent compulsion are relatively easy to identify and oppose, if not always easy to prevent. When does accountability become harassment? When does protest become coercion? What views should be acceptable to state in polite society, and which should be appropriately shunned by decent people? When does a voice of criticism become the howl of a mob? When does corporate speech become corporate censorship? No society in human history has ever had simple answers to these questions. In a free society, sometimes people will choose to be horrible, and there is little to do other than make a different choice and counsel people to do the same.

Presenting these dilemmas as similar to an attempt to silence someone with a theocratic death mark is trivializing, and ahistorical. There has never been a golden age when anyone could say what they wanted without consequence, only eras in which one shared perspective was dominant.

There’s much more in the full piece that is worth reading, so make sure you go read the whole thing. However, it also calls to mind a few other recent pieces on this general topic. Ken “Popehat” White, last month, wrote an excellent piece in which the subhead (to me) tells the story more than the the headline: “Cancel Culture” Has Victims, But You’re Probably Not One Of Them.

In it, he discusses yet another case of two Harvard professors whining that one of them has been “cancelled, in a sense” because people… walked out on his speech.

Mr. Silverglate is a Harvard graduate and professor, crusading attorney and defender of rights, repeatedly published author of important books, founder of the Foundation for Individual Rights In Education, and a sought-after gripping speaker. He has not been fired, expelled from any organization, depublished, or even (so far as I know) shunned on Martha’s Vineyard. Here’s what happened: he was invited to speak to private high-school students on the subject of free expression, he used the racial epithet commonly known as the n-word in the course of accurately quoting the title of Prof. Kennedy’s book, he did so several times, some of the students walked out, he continued to speak with the rest of the students, later the school sent its community an apology for the epithet being used in the classroom and said it was inappropriate, and the school wouldn’t print Mr. Silverglate’s response. In other words, some people (rightly or wrongly, rationally or irrationally) didn’t like some of his free expression and responded with their own free expression. If there have been other consequences, he hasn’t mentioned them.

The two professors (Harvey Silverglate and Randall Kennedy) then took to the internet to bemoan this sordid state of affairs, pulling a “woe is me, the cancelled academic” because students walked out on Silverglate. As White notes, they don’t even seem to acknowledge the student’s expressive rights, but rather focus solely on their own fragile egos.

One of those things is not like the other. Walking out isn’t shouting down or blocking. Moreover, Mr. Silverglate and Prof. Kennedy apparently believe that dropping the n-word is acceptable but walking out on Mr. Silverglate for dropping it is not “acceptable.” They seem to posit a known and absolute standard of decorum under which one is proper and the other just isn’t. They do not seem to acknowledge that some people may be as passionate about the n-word being inappropriate at school as they are passionate that it’s proper, or that people who feel that way have a legitimate interest in expressing their dissent. They don’t seem to recognize the irony of decrying incivility in the context of a fundamental dispute over what’s civil. Nor do they consider that even if we agree that the n-word can be appropriate at school, that people might disagree about whether a particular use is pedagogy or mere provocation, education or edgelordism. One senses that the authors believe their role is to dispense wisdom and the role of the students of Milton Academy is to sit there and take it.

In turn, this reminds me of a whining screed in the NY Times that highlights the other side of this. NYT opinion columnist Pamela Paul has been writing a bunch of slightly weird columns, including one back in July that was, ostensibly, about how some publishers are getting scared away from publishing books, because they fear social media backlash. The piece does make some half-hearted “both sides” arguments in highlighting Republicans actually looking to ban books, but mostly focuses on “the left” speaking up (i.e., presenting their own speech) to try to explain why some books shouldn’t be published at all.

You can understand why the publishing world gets nervous. Consider what has happened to books that have gotten on the wrong side of illiberal scolds. On Goodreads, for example, vicious campaigns have circulated against authors for inadvertent offenses in novels that haven’t even been published yet. Sometimes the outcry doesn’t take place until after a book is in stores. Last year, a bunny in a children’s picture book got soot on his face by sticking his head into an oven to clean it — and the book was deemed racially insensitive by a single blogger. It was reprinted with the illustration redrawn. All this after the book received rave reviews and a New York Times/New York Public Library Best Illustrated Children’s Book Award.

And again, yes, you can find examples that feel unfair, but are they truly up there as “censorship,” as Paul’s article claims?

Yet, as Julian Sanchez rightly notes, there’s a somewhat throwaway line in Paul’s piece that inadvertently tosses out her entire thesis.

In case you’re unable to see it, the part that Sanchez quotes from Paul’s piece reads:

It is certainly true that not every book deserves to be published. But those decisions should be based on the quality of a book as judged by editors and publishers, not in response to a threatened, perceived or real political litmus test. The heart of publishing lies in taking risks, not avoiding them.

But, as Sanchez explains in retort:

Here’s where it breaks down most clearly, I think. Because once you make this acknowledgement, you’re haggling price, and it’s obscure why an editor’s judgment should only take one kind of market reaction—expected demand—into consideration.

And this, to me, gets at the root of all of these debates. It’s easy to scream cancel culture, or censorship, or the idea that people are resistant to ideas they disagree with (which is not, actually, supported by the data). But many of these things turn on the actual marketplace of ideas. You or I might disagree with where things came out in the end, but in many of these cases, it does appear that editors, or publishers, or schools, or whoever else is being accused of “bowing to the mob” are actually paying attention to what that “marketplace” is saying. And that includes understanding how the market might respond to the publication of a book, or having a speaker who is unwilling or unable to take into account listener’s views, or whatever else the issue may be.

Again, no one is saying that this always works out fairly. It doesn’t. Mobs can go off the rails, and treat people unfairly. That’s always been the case. And some organizations may overreact to a mob, when they should stand up and push back on them. But, almost all of this actually is speech itself.

It’s messy. It’s not always accurate, but it’s how speech happens. To whine about “cancel culture” seems to be mostly missing the point. It seems a lot more like attempts to be able to speak up without consequence, and to not have to face the reactions to your own speech with expression from others.

In the first article we discussed above, Serwer notes that it’s not always easy to see where the line is. And that’s true. But if we’re going to support the “culture of free speech,” it would certainly help if people stopped treating mere offense as an attempt to “cancel,” and recognized the vast differences between state attempts to silence speech and the expressive wishes of others.

Filed Under: cancel culture, censorship, culture of free speech, free speech, marketplace of ideas

Germany’s Government Continues To Lock People Up For Being Extremely Online

Free Speech

from the watch-your-fingers,-folks dept

Germany’s uncomfortable relationship with free speech continues. The country has always been sensitive about certain subjects (rhymes with Bitler and, um, Yahtzee), resulting in laws that suppress speech referring to these subjects, apparently in hopes of preventing a Fourth Reich from taking hold.

But the censorship of speech extends far beyond the lingering aftereffects of Germany’s supremely troubled past. The government has passed laws outlawing speech with the vaguest of contours, like “hate speech” and “fake news.” And it has swung a pretty powerful hammer to ensure cooperation, stripping away intermediary immunity to hold platforms directly accountable for user-generated content. You know, like a nation run by authoritarians, except ones that enact penalties for references to a certain former authoritarian.

Germany may wish to escape its abusive past. But its speech-related laws encourage abuse by powerful people. Allow this timeline to run without interruption long enough, and you’re staring down the barrel of history.

Maybe it won’t be the second coming of national socialism. But it might just be the conversion of Germany into something resembling the USSR farm team East Germany was until the fall of the Berlin Wall. As this New York Times report details, people are being arrested for being careless online — something that suggests far too many local politicians desire a Stasi of their own.

When the police pounded the door before dawn at a home in northwest Germany, a bleary-eyed young man in his boxer shorts answered. The officers asked for his father, who was at work.

They told him that his 51-year-old father was accused of violating laws against online hate speech, insults and misinformation. He had shared an image on Facebook with an inflammatory statement about immigration falsely attributed to a German politician. “Just because someone rapes, robs or is a serious criminal is not a reason for deportation,” the fake remark said.

The police then scoured the home for about 30 minutes, seizing a laptop and tablet as evidence, prosecutors said.

If the police already had copies of the posting, it doesn’t make much sense for them to search a home and seize devices. But that’s what they do. And, according to the New York Times article, this happens nearly one hundred times a day all over the nation, day after day after day.

Normally, when someone suggests efforts like these produce a chilling effect, governments issue statements affirming support for free speech and obliquely suggest the original commenter is misinformed or misinterpreting these actions. Not so with Germany. The chilling effect is the entire point — something the government freely admits.

German authorities have brought charges for insults, threats and harassment. The police have raided homes, confiscated electronics and brought people in for questioning. Judges have enforced fines worth thousands of dollars each and, in some cases, sent offenders to jail. The threat of prosecution, they believe, will not eradicate hate online, but push some of the worst behavior back into the shadows.

This means the earlier efforts — those forcing social media platforms to immediately and proactively remove anything the German government might find offensive — haven’t worked as well as politicians hoped. It was an impossible demand, one made by people who don’t believe anything is impossible if it’s backed by a government mandate and (most importantly) entirely the responsibility of other people.

Since the government can’t make social media companies perform the impossible, prosecutors have decided to go after internet users, who are far easier to threaten, intimidate, and jail into silence. Chilling is what we do, say prosecutors, citing the supposed success similar tactics have had in the fight against online piracy(!):

Daniel Holznagel, a former Justice Ministry official who helped draft the internet enforcement laws passed in 2017, compared the crackdown to going after copyright violators. He said people stopped illegally downloading music and movies as much after authorities began issuing fines and legal warnings.

“You can’t prosecute everyone, but it will have a big effect if you show that prosecution is possible,” said Mr. Holznagel, who is now a judge.

Since it’s almost impossible to tell what will trigger police action and prosecution, German citizens are likely engaging in self-censorship regularly. Sarcasm, irony, parody, shitposting… all of this is under scrutiny, since it’s apparent the government isn’t capable of performing anything but a straightforward reading of user-generate content. It would be almost comical if it weren’t for the police raids, prosecutions, device seizures, and jail time.

No national figures exist on the total number of people charged with online speech-related crimes. But in a review of German state records, The New York Times found more than 8,500 cases. Overall, more than 1,000 people have been charged or punished since 2018, a figure many experts said is probably much higher.

This effort siphons resources from law enforcement agencies asked to police more serious criminal acts — the kind that result in actual victims who can show actual harm, rather than the theoretical harm posed by posts that fall outside of the boundaries set by the German government’s escalating desire to regulate speech.

But that doesn’t mean local police aren’t welcoming the new duties. Some seem to particularly relish literally policing the internet.

Authorities in Lower Saxony raid homes up to multiple times per month, sometimes with a local television crew in tow.

Internet use is under constant surveillance. This always-on monitoring provides law enforcement with targets. Arrestees who refuse to submit to device searches aren’t slowing down investigators. Electronics are sent to crime labs and subjected to forensic searches by Cellebrite devices. Millions of dollars fund these efforts… and for what?

Swen Weiland, a software developer turned internet hate speech investigator, is in charge of unmasking people behind anonymous accounts. He hunts for clues about where a person lives and works, and connections to friends and family. After an unknown Twitter user compared Covid restrictions to the Holocaust, he used an online registry of licensed architects to help identify the culprit as a middle-aged woman.

“I try to find out what they do in their normal life,” Mr. Weiland said. “If I find where they live or their relatives then I can get the real person. The internet does not forget.”

That’s what the government is going after. Germany is in the business of punishing stupidity. But only certain forms of stupidity. Far more threatening posts are ignored by law enforcement. An activist interviewed by the NYT said she was doxxed and threatened by online commenters. When she took this info to law enforcement, officers responded by giving her a brochure about online hate and telling nothing that was said broke any laws. Doxxing is ok. Threats are ok. Making an extremely terrible analogy? A criminal offense.

So is this:

Last year, Andy Grote, a city senator responsible for public safety and the police in Hamburg, broke the local social distancing rules — which he was in charge of enforcing — by hosting a small election party in a downtown bar.

After Mr. Grote later made remarks admonishing others for hosting parties during the pandemic, a Twitter user wrote: “Du bist so 1 Pimmel” (“You are such a penis”).

Three months later, six police officers raided the house of the man who had posted the insult, looking for his electronic devices.

While it’s somewhat understandable that speech restrictions have been put in place in hopes of preventing history from repeating, the government’s desire to turn ignorance into criminal activity is hugely problematic. Laws like this are never taken off the books. They either linger forever or are subjected to endless expansions, allowing the government to start serving its own interests rather than those it imagines the general public values. There’s no impending slippery slope here. Germany is already headed down it.

Filed Under: chilling effects, content moderation, fake news, free speech, germany, hate speech, insults, piracy, surveillance

Saudi Prosecutors Are Targeting A US Citizen For Tweets Criticizing The Government

Free Speech

from the broad-power,-thin-skin dept

The Saudi government is decidedly unconcerned that other nations may have concerns about its censorship efforts. I mean, if need be, it will murder and dismember critics who prove unwilling to be silenced by less drastic efforts.

Having some of the keys to the oil kingdom helps, providing leverage against foreign governments that may want to issue sanctions or publicly criticize the wealthy and powerful nation. Its power over its own citizens is undeniable. Quasi-legislative responses to issues like misinformation and cybersecurity have given the Saudi government even more weaponry to deploy against citizens who refuse to bend a knee.

And the government will go extraterritorial if needed. Thanks to careless purveyors of powerful malware (yeah, that’s you, NSO Group), the Saudi government is able to target foreign citizens with exploits that fully compromise their communication devices.

This case, brought to our attention by Sarah McLaughlin, contains a couple of wrinkles that may make it more difficult to convince the Saudi government to end its investigation of a US citizen over critical tweets.

Here’s what’s happening now, as detailed by Human Rights Watch’s call for an end of this US citizen-targeting oppression effort:

Saudi prosecutors should drop an investigation possibly leading to formal criminal charges against a US citizen living in Saudi Arabia for “disrupting the public order,” Human Rights Watch said today. Carly Morris, 34, believes the allegation relates to her statements on social media voicing concerns about how Saudi Arabia’s discriminatory male guardianship system has affected her and her 8-year-old daughter.

A legal summons reviewed by Human Rights Watch orders Morris to appear at the public prosecution court in Buraydah in al-Qassim province on September 18, 2022. Article 103 of the criminal procedure law, cited in the summons, authorizes prosecutors to arrest and detain a person who is under investigation.

The person targeted by the investigation says she believes it was prompted by tweets she made earlier this year that criticized the Saudi’s government’s shifting of all power in relationships to the male partner — something that prevents the US citizen from leaving the country with her daughter, seeking medical care for her child, or deciding where her child attends school.

Morris’ situation went from uncertain to untenable shortly after she arrived in the country, as reported in August by Middle East Eye. Carly Morris married a Saudi resident in 2012 after meeting him on a Muslim dating site. They divorced in 2018. In 2019, her ex-husband convinced her and her daughter to visit him. She’s been trapped in the country ever since.

Morris was able to visit the kingdom on a tourist visa, which was to expire after 30 days. They had only planned on staying that long. Since Tala’s father was a Saudi citizen, she was able to visit the country on a laissez-passer, a temporary travel document to permit the child to enter the country with her father. 

Morris’ ex-husband seized their documents and refused to give them back. Before her visa expired, she says he “entered and exited” her out of the country. She now has multiple stampings of visas on her passport.

Her ex-husband soon registered a hotel room under his name, and for the past three years, that is where Morris and her daughter have been staying. Every week, he’d come by and drop off groceries, food, and water. Then, on 30 March 2022, he reportedly picked Tala up in the early morning and she was never returned. All phone calls went unanswered.

Under Saudi law, the male controls legal guardianship. This is still in place despite a Saudi court granting Morris full custody of her daughter. On top of that, Morris’ ex-husband had converted her daughter’s US citizenship to Saudi citizenship. Morris is now free to leave, but cannot take her daughter with her. Seeing no other form of recourse, Morris publicly criticized the government and these laws on Twitter, setting off a chain of events that has culminated with the Saudi government apparently seeking to bring criminal charges against the US citizen. Her ex-husband was instrumental in this push to punish Morris, filing his own “slander and defamation” criminal complaint against her.

The threat to Morris’ freedom (even as limited as it currently is) is real. Human Rights Watch notes that two other women have been jailed for decades on similar charges.

Saudi courts have recently convicted and sentenced at least two other women on similar charges for their peaceful online speech. On August 9, an appeals court sentenced Salma al-Shehab, a Saudi doctoral student at the University of Leeds, to 34 years in prison for “disrupt[ing] the order and fabric of society.” That same day, Saudi courts sentenced Nourah bin Saeed al-Qahtani to 45 years in prison for “using the internet to tear the [country’s] social fabric.”

This is where the US government should intervene. It may make things uncomfortable, but if it doesn’t stand up for one of its own, it will only encourage the Saudi government to continue targeting foreign citizens with criminal charges over speech that would not be illegal in their native lands.

Filed Under: carly morris, free speech, human rights, saudi arabia

Finally, Some Good News: Federal Anti-SLAPP Law Introduced

Free Speech

from the free-speech-ftw dept

It’s been seven years since Congress last introduced a federal anti-SLAPP law (and that was six years after the previous attempt). So here we are, and once again we’ve finally got a federal anti-SLAPP law introduced in Congress, this time by Rep. Jamie Raskin, who recently held a hearing focusing on SLAPP lawsuit attacks against environmental activists (which is where many SLAPP cases have been filed, though the issue is much broader than that).

Again, if you’re unfamiliar, the rich and powerful often will file obviously bogus lawsuits against those who criticize them, knowing that even if they’re going to lose, the time, cost, and stress of a lawsuit is still really damaging (and in many cases, leads those criticizing the rich and powerful to back down and shut up). These are called SLAPP lawsuits, for Strategic Lawsuit Against Public Participation.

Some states (a little more than half right now) have anti-SLAPP laws that aim to protect speakers who are victims of such SLAPP suits. The fundamental way in which anti-SLAPP laws work are that they allow the defendant to argue that the case is a SLAPP, which halts the process for expensive things like discovery, and requires that the plaintiff show some proof that the case is actually legitimate. If they can’t do that, the case is dismissed, and frequently the plaintiff has to pay the defendant’s legal fees.

That is, while it can still be stressful and time consuming, it hopefully gets kicked out of court much more quickly, and can end up costing the plaintiff more money in that they have to cover the legal fees of the person they filed the bogus lawsuit against.

Unfortunately, many states don’t even have anti-SLAPP laws, and even among those that do, it’s a really mixed bag of quality. We’ve seen more and more states start passing such laws, but it’s slow going. Also, there is no federal anti-SLAPP law, and many federal courts have (questionably) decided that state anti-SLAPP laws don’t apply in federal court (there’s a long, boring, procedural argument for why that is, which I think is incorrect). But still, having a strong federal anti-SLAPP law set the floor that can apply across all states and in federal court would be a huge win for free speech.

So special thanks to Rep. Raskin for introducing it.

Raskin’s bill is not perfect — it’s not quite how I’d draft a federal anti-SLAPP law, and I worry a bit that the language of what it covers may limit it and cut out too many SLAPP suits, but on the whole it’s a huge step forward and has many good features. And, this is a case where getting something in place like this is way better than the lack of any protection in place now. If you want a good analysis of where the bill differs from state anti-SLAPP laws, you can read this analysis from EarthRights, who supports the bill.

Key differences include a more limited definition of what cases the bill can be applied to (specifically, the definition of what is “a matter of public concern”), making the fee shifting to be rebuttable rather than mandatory (so plaintiffs can argue why they shouldn’t have to pay defendants’ legal bills) and more efforts to not scare off plaintiffs (kinda required otherwise plaintiff trial lawyers would throw a shitfit). I understand why all of these are included, though I worry about the impact of each. But, on the whole, it’s a good bill, and it’s way better than what we have now (i.e., nothing but a hope and a prayer that Twiqbal and a tidy 12(b)(6) motion to dismiss gets you effectively the same thing — which it does not).

Unfortunately I fear that, like earlier anti-SLAPP bills, this one won’t get very far. That seems to be the way these days. Protecting free speech is boring. Attacking it is the new hotness. But, giving up shouldn’t be an option. Having this bill introduced is a good first step — and it would be great to build some momentum in support of it.

This is good news. At a time when we could really use good news.

Thank you, Rep. Raskin.

Filed Under: 1st amendment, anti-slapp, federal anti-slapp, free speech, jamie raskin

5th Circuit Rewrites A Century Of 1st Amendment Law To Argue Internet Companies Have No Right To Moderate

Free Speech

from the batshit-crazy dept

As far as I can tell, in the area the 5th Circuit appeals court has jurisdiction, websites no longer have any 1st Amendment editorial rights. That’s the result of what appears to me to be the single dumbest court ruling I’ve seen in a long, long time, and I know we’ve seen some crazy rulings of late. However, thanks to judge Andy Oldham, internet companies no longer have 1st Amendment rights regarding their editorial decision making.

Let’s take a step back. As you’ll recall, last summer, in a fit of censorial rage, the Texas legislature passed HB 20, a dangerously unconstitutional bill that would bar social media websites from moderating as they see fit. As we noted, the bill opens up large websites to a lawsuit over basically every content moderation decision they make (and that’s just one of the problems). Pretty quickly, a district court judge tossed out the entire law as unconstitutional in a careful, thorough ruling that explained why every bit of the law violated websites’ own 1st Amendment rights to put in place their own editorial policies.

On appeal to the 5th Circuit, the court did something bizarre: without giving any reason or explanation at all, it reinstated the law and promised a ruling at some future date. This was procedurally problematic, leading the social media companies (represented by two of their trade groups, NetChoice and CCIA) to ask the Supreme Court to slow things down a bit, which is exactly what the Supreme Court did.

Parallel to all of this, Florida had passed a similar law, and again a district court had found it obviously unconstitutional. That, too, was appealed, yet in the 11th Circuit the court rightly agreed with the lower court that the law was (mostly) unconstitutional. That teed things up for Florida to ask the Supreme Court to review the issue.

However, remember, back in May when Texas initially reinstated the law, it said it would come out with its full ruling later. Over the last few months I’ve occasionally pondered (sometimes on Twitter) whether the 5th Circuit would ever get around to actually releasing an opinion. And that’s what it just did. And, as 1st Amendment lawyer Ken White notes, it’s “the most angrily incoherent First Amendment decision I think I’ve ever read.”

It is difficult to state how completely disconnected from reality this ruling is, and how dangerously incoherent it is. It effectively says that companies no longer have a 1st Amendment right to their own editorial policies. Under this ruling, any state in the 5th Circuit could, in theory, mandate that news organizations must cover certain politicians or certain other content. It could, in theory, allow a state to mandate that any news organization must publish opinion pieces by politicians. It completely flies in the face of the 1st Amendment’s association rights and the right to editorial discretion.

There’s going to be plenty to say about this ruling, which will go down in the annals of history as a complete embarrassment to the judiciary, but let’s hit the lowest points. The crux of the ruling, written by Judge Andy Oldham, is as follows:

Today we reject the idea that corporations have a freewheeling First Amendment right to censor what people say. Because the district court held otherwise, we reverse its injunction and remand for further proceedings.

Considering just how long Republicans (and Oldham was a Republican political operative before being appointed to the bench) have spent insisting that corporations have 1st Amendment rights, this is a major turnaround, and (as noted) an incomprehensible one. Frankly, Oldham’s arguments sound much more like the arguments made by ignorant trolls in our comments than anyone with any knowledge or experience with 1st Amendment law.

I mean, it’s as if Judge Oldham has never heard of the 1st Amendment’s prohibition on compelled speech.

First, the primary concern of overbreadth doctrine is to avoid chilling speech. But Section 7 does not chill speech; instead, it chills censorship. So there can be no concern that declining to facially invalidate HB 20 will inhibit the marketplace of ideas or discourage commentary on matters of public concern. Perhaps as-applied challenges to speculative, now-hypothetical enforcement actions will delineate boundaries to the law. But in the meantime, HB 20’s prohibitions on censorship will cultivate rather than stifle the marketplace of ideas that justifies the overbreadth doctrine in the first place.

Judge Oldham insists that concerns about forcing websites to post speech from Nazis, terrorist propaganda, and Holocaust denial are purely hypothetical. Really.

The Platforms do not directly engage with any of these concerns. Instead, their primary contention—beginning on page 1 of their brief and repeated throughout and at oral argument—is that we should declare HB 20 facially invalid because it prohibits the Platforms from censoring “pro-Nazi speech, terrorist propaganda, [and] Holocaust denial[s].” Red Br. at 1.

Far from justifying pre-enforcement facial invalidation, the Platforms’ obsession with terrorists and Nazis proves the opposite. The Supreme Court has instructed that “[i]n determining whether a law is facially invalid,” we should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a “tendency . . . to summon forth an endless stream of fanciful hypotheticals,” and this case is no exception. United States v. Williams, 553 U.S. 285, 301 (2008). But it’s improper to exercise the Article III judicial power based on “hypothetical cases thus imagined.” Raines, 362 U.S. at 22; cf. SinenengSmith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension between overbreadth adjudication and the constitutional limits on judicial power).

These are not hypotheticals. This is literally what these websites have to deal with on a daily basis. And which, under Texas’ law, they no longer could do.

Oldham continually focuses (incorrectly and incoherently) on the idea that editorial discretion is censorship. There’s a reason that we’ve spent the last few years explaining how the two are wholly different — and part of it was to avoid people like Oldham getting confused. Apparently it didn’t work.

We reject the Platforms’ efforts to reframe their censorship as speech. It is undisputed that the Platforms want to eliminate speech—not promote or protect it. And no amount of doctrinal gymnastics can turn the First Amendment’s protections for free speech into protections for free censoring.

That paragraph alone is scary. It basically argues that the state can now compel any speech it wants on private property, as it reinterprets the 1st Amendment to mean that the only thing it limits is the power of the state to remove speech, while leaving open the power of the state to foist speech upon private entities. That’s ridiculous.

Oldham then tries to square this by… pulling in wholly unrelated issues around the few rare, limited, fact-specific cases where the courts have allowed compelled speech.

Supreme Court precedent instructs that the freedom of speech includes “the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977); see also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). So the State may not force a private speaker to speak someone’s else message. See Wooley, 430 U.S. at 714.

But the State can regulate conduct in a way that requires private entities to host, transmit, or otherwise facilitate speech. Were it otherwise, no government could impose nondiscrimination requirements on, say, telephone companies or shipping services. But see 47 U.S.C. § 202(a) (prohibiting telecommunications common carriers from “mak[ing] any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services”). Nor could a State create a right to distribute leaflets at local shopping malls. But see PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1980) (upholding a California law protecting the right to pamphleteer in privately owned shopping centers). So First Amendment doctrine permits regulating the conduct of an entity that hosts speech, but it generally forbids forcing the host itself to speak or interfering with the host’s own message.

From there, he argues that forcing websites to host speech they disagree with is not compelled speech.

The Platforms are nothing like the newspaper in Miami Herald. Unlike newspapers, the Platforms exercise virtually no editorial control or judgment. The Platforms use algorithms to screen out certain obscene and spam-related content. And then virtually everything else is just posted to the Platform with zero editorial control or judgment.

Except that’s the whole point. The websites do engage in editorial control. The difference from newspapers is that it’s ex post control. If there are complaints, they will review the content afterwards to see if it matches with their editorial policies (i.e., terms of use). So, basically, Oldham is simply wrong here. They do exercise editorial control. That they use it sparingly does not mean they give up the right. Yet Oldham thinks otherwise.

From there, Oldham literally argues there is no editorial discretion under the 1st Amendment. Really.

Premise one is faulty because the Supreme Court’s cases do not carve out “editorial discretion” as a special category of First-Amendment-protected expression. Instead, the Court considers editorial discretion as one relevant consideration when deciding whether a challenged regulation impermissibly compels or restricts protected speech.

To back this up, the court cites Turner v. FCC, which has recently become a misleading favorite among those who are attacking Section 230. But the Turner case really turned on some pretty specific facts about cable TV versus broadcast TV which are not at all in play here.

Oldham also states that content moderation isn’t editorial discretion, even though it literally is.

Even assuming “editorial discretion” is a freestanding category of First-Amendment-protected expression, the Platforms’ censorship doesn’t qualify. Curiously, the Platforms never define what they mean by “editorial discretion.” (Perhaps this casts further doubt on the wisdom of recognizing editorial discretion as a separate category of First-Amendment-protected expression.) Instead, they simply assert that they exercise protected editorial discretion because they censor some of the content posted to their Platforms and use sophisticated algorithms to arrange and present the rest of it. But whatever the outer bounds of any protected editorial discretion might be, the Platforms’ censorship falls outside it. That’s for two independent reasons.

And here it gets really stupid. The ruling argues that because of Section 230, internet websites can’t claim editorial discretion. This is a ridiculously confused misreading of 230.

First, an entity that exercises “editorial discretion” accepts reputational and legal responsibility for the content it edits. In the newspaper context, for instance, the Court has explained that the role of “editors and editorial employees” generally includes “determin[ing] the news value of items received” and taking responsibility for the accuracy of the items transmitted. Associated Press v. NLRB, 301 U.S. 103, 127 (1937). And editorial discretion generally comes with concomitant legal responsibility. For example, because of “a newspaper’s editorial judgments in connection with an advertisement,” it may be held liable “when with actual malice it publishes a falsely defamatory” statement in an ad. Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Rels., 413 U.S. 376, 386 (1973). But the Platforms strenuously disclaim any reputational or legal responsibility for the content they host. See supra Part III.C.2.a (quoting the Platforms’ adamant protestations that they have no responsibility for the speech they host); infra Part III.D (discussing the Platforms’ representations pertaining to 47 U.S.C. § 230)

Then, he argues that there’s some sort of fundamental difference between exercising editorial discretion before or after the content is posted:

Second, editorial discretion involves “selection and presentation” of content before that content is hosted, published, or disseminated. See Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 674 (1998); see also Miami Herald, 418 U.S. at 258 (a newspaper exercises editorial discretion when selecting the “choice of material” to print). The Platforms do not choose or select material before transmitting it: They engage in viewpoint-based censorship with respect to a tiny fraction of the expression they have already disseminated. The Platforms offer no Supreme Court case even remotely suggesting that ex post censorship constitutes editorial discretion akin to ex ante selection.17 They instead baldly assert that “it is constitutionally irrelevant at what point in time platforms exercise editorial discretion.” Red Br. at 25. Not only is this assertion unsupported by any authority, but it also illogically equates the Platforms’ ex post censorship with the substantive, discretionary, ex ante review that typifies “editorial discretion” in every other context

So, if I read that correctly, websites can now continue to moderate only if they pre-vet all content they post. Which is also nonsense.

From there, Oldham goes back to Section 230, where he again gets the analysis exactly backwards. He argues that Section 230 alone makes HB 20’s provisions constitutional, because it says that you can’t treat user speech as the platform’s speech:

We have no doubts that Section 7 is constitutional. But even if some were to remain, 47 U.S.C. § 230 would extinguish them. Section 230 provides that the Platforms “shall [not] be treated as the publisher or speaker” of content developed by other users. Id. § 230(c)(1). Section 230 reflects Congress’s judgment that the Platforms do not operate like traditional publishers and are not “speak[ing]” when they host usersubmitted content. Congress’s judgment reinforces our conclusion that the Platforms’ censorship is not speech under the First Amendment.

[….]

Section 230 undercuts both of the Platforms’ arguments for holding that their censorship of users is protected speech. Recall that they rely on two key arguments: first, they suggest the user-submitted content they host is their speech; and second, they argue they are publishers akin to a newspaper. Section 230, however, instructs courts not to treat the Platforms as “the publisher or speaker” of the user-submitted content they host. Id. § 230(c)(1). And those are the exact two categories the Platforms invoke to support their First Amendment argument. So if § 230(c)(1) is constitutional, how can a court recognize the Platforms as First-Amendment-protected speakers or publishers of the content they host?

Oldham misrepresents the arguments of websites that support Section 230, claiming that by using 230 to defend their moderation choices they have claimed in court they are “neutral tools” and “simple conduits of speech.” But that completely misrepresents what has been said and how this plays out.

It’s an upside down and backwards misrepresentation of how Section 230 actually works.

Oldham also rewrites part of Section 230 to make it work the way he wants it to. Again, this reads like some of our trolls, rather than how a jurist is supposed to act:

The Platforms’ only response is that in passing § 230, Congress sought to give them an unqualified right to control the content they host— including through viewpoint-based censorship. They base this argument on § 230(c)(2), which clarifies that the Platforms are immune from defamation liability even if they remove certain categories of “objectionable” content. But the Platforms’ argument finds no support in § 230(c)(2)’s text or context. First, § 230(c)(2) only considers the removal of limited categories of content, like obscene, excessively violent, and similarly objectionable expression. It says nothing about viewpoint-based or geography-based censorship. Second, read in context, § 230(c)(2) neither confers nor contemplates a freestanding right to censor. Instead, it clarifies that censoring limited categories of content does not remove the immunity conferred by § 230(c)(1). So rather than helping the Platforms’ case, § 230(c)(2) further undermines the Platforms’ claim that they are akin to newspapers for First Amendment purposes. That’s because it articulates Congress’s judgment that the Platforms are not like publishers even when they engage in censorship.

Except that Section 230 does not say “similarly objectionable.” It says “otherwise objectionable.” By switching “otherwise objectionable” to “similarly objectionable,” Oldham is insisting that courts like his own get to determine what counts as “similarly objectionable,” and that alone is a clear 1st Amendment problem. The courts cannot decide what content a website finds objectionable. That is, yet again, the state intruding on the editorial discretion of a website.

Also, completely ridiculously, Oldham leaves out that (c)(2) does not just include that list of objectionable categories, but it states: “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” In other words, the law explicitly states that whether or not something falls into that list is up to the provider or user and not the state. To leave that out of his description of (c)(2) is beyond misleading.

Also notable: Oldham completely ignores the fact that Section 230 pre-empts state laws like Texas’s, saying that “no liability may be imposed under any State or local law that is inconsistent with this section.” I guess Oldham is arguing that Texas’s law somehow is not inconsistent with 230, but it certainly is inconsistent with two and a half decades of 230 jurisprudence.

There’s then a long and, again, nonsensical discussion of common carriers, basically saying that the state can magically declare social media websites common carriers. I’m not even going to give that argument the satisfaction of covering it, it is so disconnected from reality. Social media literally meets none of the classifications of traditional common carriers. The fact that Oldham claims, that “the Platforms are no different than Verizon or AT&T” makes me question how anyone could take anything in this ruling seriously.

I’m also going to skip over the arguments for why the “transparency” bits are constitutional according to the 5th Circuit, other than to note that California must be happy, because under this ruling its new social media transparency laws would also be deemed constitutional even if they now conflict with Texas’s (that’ll be fun).

There are a few notable omissions from the ruling. It never mentions ACLU v. Reno, which seems incredibly relevant given its discussion of how the internet and the 1st Amendment work together, and is glaring in its absence. Second, it completely breezes past Justice Kavanaugh’s ruling in the Halleck case, which clearly established that under the First Amendment a “private entity may thus exercise editorial discretion over the speech and speakers in the forum.” The only mention of the ruling is in a single footnote, claiming that ruling only applies to “public forums” and saying it’s distinct from the issue raised here. But, uh, the quote (and much of the ruling) literally says the opposite. It’s talking about private forums. This is ridiculous. Third, as noted, the ruling ignores the pre-emption aspects of Section 230. Fourth, while it discusses the 11th Circuit’s ruling regarding Florida’s law, it tries to distinguish the two (while also highlighting where the two Circuits disagree to set up the inevitable Supreme Court battle). Finally, it never addresses the fact that the Supreme Court put its original “turn the law back on” ruling on hold. Apparently Oldham doesn’t much care.

The other two judges on the panel also provided their own, much shorter opinions, with Judge Edith Jones concurring and just doubling down on Oldham’s nonsense. There is an opinion from Judge Leslie Southwick that is a partial concurrence and partial dissent. It concurs on the transparency stuff, but dissents regarding the 1st Amendment.

The majority frames the case as one dealing with conduct and unfair censorship. The majority’s rejection of First Amendment protections for conduct follows unremarkably. I conclude, though, that the majority is forcing the picture of what the Platforms do into a frame that is too small. The frame must be large enough to fit the wide-ranging, free-wheeling, unlimited variety of expression — ranging from the perfectly fair and reasonable to the impossibly biased and outrageous — that is the picture of the First Amendment as envisioned by those who designed the initial amendments to the Constitution. I do not celebrate the excesses, but the Constitution wisely allows for them.

The majority no doubt could create an image for the First Amendment better than what I just verbalized, but the description would have to be similar. We simply disagree about whether speech is involved in this case. Yes, almost none of what others place on the Platforms is subject to any action by the companies that own them. The First Amendment, though, is what protects the curating, moderating, or whatever else we call the Platforms’ interaction with what others are trying to say. We are in a new arena, a very extensive one, for speakers and for those who would moderate their speech. None of the precedents fit seamlessly. The majority appears assured of their approach; I am hesitant. The closest match I see is caselaw establishing the right of newspapers to control what they do and do not print, and that is the law that guides me until the Supreme Court gives us more.

Judge Southwick then dismantles, bit by bit, each of Oldham’s arguments regarding the 1st Amendment and basically highlights how his much younger colleague is clearly misreading a few outlier Supreme Court rulings.

It’s a good read, but this post is long enough already. I’ll just note this point from Southwick’s dissent:

In no manner am I denying the reasonableness of the governmental interest. When these Platforms, that for the moment have gained such dominance, impose their policy choices, the effects are far more powerful and widespread than most other speakers’ choices. The First Amendment, though, is not withdrawn from speech just because speakers are using their available platforms unfairly or when the speech is offensive. The asserted governmental interest supporting this statute is undeniably related to the suppression of free expression. The First Amendment bars the restraints.

This resonated with me quite a bit, and drove home the problem with Oldham’s argument. It is the equivalent of one of Ken White’s famed free speech tropes. Oldham pointed to the outlier cases where some compelled speech was found constitutional, and turned that automatically into “if some compelled speech is constitutional, then it’s okay for this compelled speech to be constitutional.”

But that’s not how any of this works.

Southwick also undermines Oldham’s common carrier arguments and his Section 230 arguments, noting:

Section 230 also does not affect the First Amendment right of the Platforms to exercise their own editorial discretion through content moderation. My colleague suggests that “Congress’s judgment” as expressed in 47 U.S.C. § 230 “reinforces our conclusion that the Platforms’ censorship is not speech under the First Amendment.” Maj. Op. at 39. That opinion refers to this language: “No provider or user of an interactive computer service” — interactive computer service being a defined term encompassing a wide variety of information services, systems, and access software providers — “shall be treated as the publisher or speaker of any information provided by another content provider.” 47 U.S.C. § 230(c)(1). Though I agree that Congressional fact-findings underlying enactments may be considered by courts, the question here is whether the Platforms’ barred activity is an exercise of their First Amendment rights. If it is, Section 230’s characterizations do not transform it into unprotected speech.

The Platforms also are criticized for what my colleague sees as an inconsistent argument: the Platforms analogize their conduct to the exercise of editorial discretion by traditional media outlets, though Section 230 by its terms exempts them from traditional publisher liability. This may be exactly how Section 230 is supposed to work, though. Contrary to the contention about inconsistency, Congress in adopting Section 230 never factually determined that “the Platforms are not ‘publishers.’” Maj. Op. at 41. As one of Section 230’s co-sponsors — former California Congressman Christopher Cox, one of the amici here — stated, Section 230 merely established that the platforms are not to be treated as the publishers of pieces of content when they take up the mantle of content moderation, which was precisely the problem that Section 230 set out to solve: “content moderation . . . is not only consistent with Section 230; its protection is the very raison d’etre of Section 230.” In short, we should not force a false dichotomy on the Platforms. There is no reason “that a platform must be classified for all purposes as either a publisher or a mere conduit.” In any case, as Congressman Cox put it, “because content moderation is a form of editorial speech, the First Amendment more fully protects it beyond the specific safeguards enumerated in § 230(c)(2).” I agree.

Anyway, that’s the quick analysis of this mess. There will be more to come, and I imagine this will be an issue for the Supreme Court to sort out. I wish I had confidence that they would not contradict themselves, but I’m not sure I do.

The future of how the internet works is very much at stake with this one.

Filed Under: 1st amendment, 5th circuit, andy oldham, content moderation, hb 20, leslie southwick, social media, texas

Court To Public University: Yeah, It’s A 1st Amendment Problem When You Delete Comments You Don’t Like

Free Speech

from the being-governed-by-Aggies dept

Just a somewhat periodic reminder: publicly-funded colleges are government entities. Almost every public university is. Sometimes, they seem to forget what they are and act in ways governments can’t — not without violating rights.

That inability to remember constraints imposed on it by inalienable rights is causing problems for Texas A&M University. And its arguments in court aren’t doing it any favors. A perennial protagonist has gone after the university in both regular courts and the court of public opinion. Its latter court appearances has prompted two civil rights lawsuits, detailed here by Eric Goldman.

Texas A&M (TAMU) does medical experiments on dogs. PETA objects to these experiments and commented on TAMU’s social media pages. TAMU blocked PETA, which led to a prior lawsuit that settled. The settlement terms included: “TAMU would not exercise viewpoint discrimination against PETA, its supporters, or members when administering its Facebook page; nor would it set automatic or manual blocking filters on PETA’s comments made to TAMU’s Facebook page, provided that TAMU could remove comments not in compliance with its Facebook Usage Policy.” Was there ever any doubt that this “resolution” would create further conflict?

Now, it’s well-known PETA courts controversy, routinely engages in highly performative anger, and otherwise often acts like a nuisance, rather than a public interest group. Every now and then, it manages to raise a valid issue.

And it’s not wrong here. And the settlement it obtained was never going to be enough to satisfy the demands of the Constitution.

A second lawsuit followed. PETA claims the settlement still allows the university to violate its First Amendment rights. The judge handling this case agrees with PETA, at least as far as procedural things are concerned. The lawsuit can move forward.

The judge is far less impressed with Texas A&M’s arguments in support of its motion to dismiss. Theoretically, A&M is the adult in the room. But you’d never be able to tell that from its terrible defense of ongoing censorship (real or theoretical) of PETA’s comments.

The court says [PDF] PETA has raised valid issues. This isn’t to say PETA will win. But it does definitely say Texas A&M can’t win — not with this settlement and not with these horrendous arguments.

The issue arises from comments PETA and its supporters added to a remote livestream of the school’s May 2020 graduation ceremony. PETA alleges the university [TAMU] deleted 137 of its 553 comments (most at Facebook, a few at YouTube).

The person representing the school is President M. Katherine Banks, named directly as the defendant in this follow-up suit. The school (through Banks) argues there’s no alleged injury, no ongoing injury, no potential future injury, and that the settlement made this all not worth arguing again in court.

First, Banks argued she shouldn’t even be named as a defendant, since it was her predecessor who crafted the inadequate settlement now being sued over. The court says she’s still on the hook. After all, lawsuits against other government agencies don’t simply end because the named defendant is no longer in office. The responsibility lies with the head of the government entity, whoever that currently happens to be.

Despite the inordinate number of pages devoted to this issue, which include a sur-reply, an advisory, and a reply to that advisory, I have no trouble finding that President Banks has a sufficient connection to the enforcement of TAMU’s social media policies. All that is required is that PETA allege enough facts that I can plausibly infer an enforcement connection. It is undisputed that President Young, TAMU’s previous President, executed a settlement agreement, in his official capacity, regarding the enforcement of TAMU’s social media policies against PETA. This action makes it entirely plausible that President Banks, as President Young’s successor, has at least “some connection” to the challenged behavior in this litigation. That is all that is required of this “straightforward inquiry.”

The court goes on to note that Banks provided plenty of precedent to support her argument, but none that actually supported her argument in this context. There is no precedent that agrees with the current university president’s argument she cannot be sued as the putative head of the entity engaging in the alleged violations.

The idea that a university’s head is an appropriate party for challenging the university’s actions seems so unobjectionable in a variety of contexts that I have not located cases holding otherwise, and President Banks certainly has not pointed me toward any.

The inability of TAMU’s president to find supporting precedent continues. Banks claimed no Constitutional injury in terms of future posting by PETA can be alleged because PETA failed to provide the school with details about its planned future actions in regards to TAMU social media content. Ridiculous, says the court. The allegation is enough to satisfy PETA’s standing requirements in this case. The arguments raised by Banks range from insipid to dangerous. If the university held off on deletion of PETA comments until after litigation concluded, but resumed shortly thereafter, what is even the point of having a court system?

[P]laying President Banks’s argument out to its logical conclusion shows how misguided it is. Were PETA to repost its original comments to TAMU’s social media sites and TAMU to delete them again, PETA would have the same standing it does now. But if—as is much more likely to occur given that litigation is ongoing—PETA were to repost its original comments to TAMU’s social media sites and TAMU did not delete them, I would nevertheless find that PETA has standing.

As the Supreme Court has repeatedly held:

It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power.

You can’t escape a lawsuit simply because you choose to not do the thing prompting the lawsuit temporarily. You cannot escape a lawsuit by making temporary concessions in hopes of eluding injury claims. Once you’re in it, you’re in it. Prove your case or face judgment.

PETA also claimed the limitations of the original settlement, along with TAMU’s refusal to engage outside of litigation, makes it unlikely PETA could be fully “restored” without the intervention of the court. President Banks claims otherwise. And, wow, is she wrong.

President Banks also argues that PETA’s restoration injury is not sufficiently imminent because it is premised on “three contingencies:

(1) individuals will watch TAMU’s over 500-day-old videos; (2) these viewers will read the comments posted to the videos; and (3) these viewers would have seen PETA’s deleted comments (if they were restored) while missing PETA’s many other non-deleted comments.” The only case President Banks cites in support of this metaphysical argument is Glass, 900 F.3d 233, a case as inapposite in this context as it was in the context of PETA’s posting injury.

A rights violation is still a violation whether or not only the entity suffering the violation notices it.

Just as a falling tree produces vibrational waves in the air, viewpoint discrimination offends the Constitution regardless of whether anyone is in the hypothetical forest to hear (or, in this case, read) it. Phrased differently, it does not matter whether anyone wants to read PETA’s comments; PETA has a right to put them in TAMU’s public forum.

How wrong can one university rep be? Very very very very wrong, apparently.

President Banks contends that PETA cannot assert organizational standing because it does not satisfy Article III’s standing requirements. But I have already determined that it does. That ought to be the end of the standing inquiry. However, President Banks argues that “to assert organizational standing, PETA must show that TAMU’s conduct ‘perceptibly impaired’ its mission.” Phrased differently, President Banks argues that it is not enough that PETA alleged a violation of its First Amendment right to free speech; PETA must also allege that the violation of its free speech rights perceptibly impaired its mission. This is obviously wrong.

Once again, cherry-picking rulings that seem to support your arguments is a losing strategy if the selective selection of cases don’t say the things you think they say.

Tellingly, none of the cases President Banks cites in support of this argument are cases regarding constitutional violations. The Constitution does not require this much. PETA “has alleged violations of its First Amendment . . . rights and thereby satisfied the irreparable injury requirement.”

The lawsuit moves forward and all claims, including PETA’s §1983 allegation, survive. TAMU is a government entity. No matter how much it may dislike PETA’s appearances in the court of public opinion, it cannot do what it did and expect to remain in constitutional good graces.

Filed Under: 1st amendment, comments, free speech
Companies: peta, texas a&m

Judge Blocks ‘No Recording Cops Within 8 Feet’ Law Even Arizona Cops Don’t Want To Defend

Free Speech

from the law-enforcement-wisely-decides-to-not-argue-against-the-public's-interests dept

In 2016, Arizona state senator John Kavanaugh tried to make it much more difficult to record police officers. He authored a bill that would create a 20-foot “no recording” zone around cops, supposedly in the interest of officer safety.

That bill went nowhere. It contained obvious First Amendment problems and reeked of protectionism that armed officers of the law do not need, much less deserve. The idea should have died forever, especially when public sentiment turned definitively against law enforcement, following the murder of unarmed black man, George Floyd, by white Minnesota police officer Derek Chauvin — a conviction that probably wouldn’t have been obtained without the assistance of a recording taken by Minnesota resident.

With that in mind — along with the apparent First Amendment issues — Kavanaugh went back to the “no recording” well again in 2021. This time, he trimmed down the diameter to eight feet, under the obviously mistaken assumption the First Amendment wouldn’t be troubled by this shorter length.

Here’s the excuse Kavanugh offered for his First Amendment Violation 2.0 bill:

Kavanagh, of course, argues that he’s just trying to prevent “violence and misunderstandings.”

He also told the Arizona Mirror that this is to prevent “the destruction of evidence and preventing police officers from harm.”

Despite there being no public demand for this legislation and despite its clear constitutional problems, the bill was signed into law by Governor Greg Ducey, who is apparently every bit as idiotic as those forwarding him this legislation.

In defense of his second assault on established rights, Sen. Kavanaugh offered up this defense in his op-ed published by AZ Central.

I agreed to run this bill because there are groups hostile to the police that follow them around to videotape police incidents, and they get dangerously close to potentially violent encounters. The Tucson police officers who asked me to run this bill said that in their area some of these people videotape from 1 to 2 feet behind them, even when they’re arresting people.

This statement makes it appear Arizona law enforcement supports this broadside attack on the First Amendment. Maybe some of them do. But the law was immediately challenged by a bunch of Arizona news agencies, along with the ACLU. The lawsuit seeking an injunction pointed out the obvious constitutional deficiencies.

That challenge has (at least temporarily) succeeded. A federal court has blocked the law until all the legal issues can be sorted out.

An Arizona law that would make it illegal to create video recordings of police in certain circumstances will not go into effect Sept. 24 as planned, after a federal judge temporarily blocked its enforcement.

The judge on Friday morning granted a temporary injunction of the law, essentially putting the law on hold while a court case challenging it plays out.

If you want precedent (specific to this district), you’ve got it, says the Arizona federal court in its decision [PDF]:

Under the first Winter factor, the moving party must show that it is likely to succeed on the merits. Here, Plaintiffs have done so. As Plaintiffs observe in their Motion, the Ninth Circuit has recognized that there is a “clearly established” right to “record law enforcement officers engaged in the exercise of their official duties in public places” under the First Amendment. Askins v. Dep’t of Homeland Sec., 899 F.3d 1035, 1044 (9th Cir. 2018) (citing ACLU of Ill. v. Alvarez, 679 F.3d 583, 597 (7th Cir. 2012); Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir. 1995) (recognizing that an individual videorecording policing of protest was “exercising his First Amendment right to film matters of public interest.”)). The United States Supreme Court has also recognized a right to gather news. Branzburg v. Hayes, 408 U.S. 665, 681 (1972). Recording video of police officers performing their duties and distributing the video to the public is a news-gathering activity—it serves the Public’s First Amendment right to “receive information and ideas.” Richmond Newspapers v. Virginia, 448 U.S. 555, 576 (1980) (citation omitted); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978) (“the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”).

When a clearly established right meets a piece of boot-licking legislation, it’s the Constitution that almost always wins. That’s what the court foresees, hence the injunction.

Now, the injunction can be lifted if the Arizona government (in any and all of its forms) can convince the court this restriction is minimal, narrowly crafted to serve a legitimate government interest, and cannot be achieved without this law. Good luck with that. Despite state senator John Kavanaugh’s claims that law enforcement back his law, it appears no form of law enforcement in the state is willing to go to court to fight for the 8-foot law’s survival.

lol. lmao.

The lawsuit named Attorney General Mark Brnovich, Maricopa County Attorney Rachel Mitchell and Maricopa County Sheriff Paul Penzone as defendants. The AG’s office is almost always a defendant in litigation challenging state laws, while the Maricopa County officials will be tasked with enforcing the new law.

But Brnovich’s office on Sept. 1 told the court that it will not oppose the preliminary injunction.

The AG claims it’s “not the proper party” and will be informing legislators that they might need to mobilize county and city prosecutors to defend the law. That’s some fine buck-passing by a named defendant. But it shows the state AG does not believe the law is worth the expending its own resources to defend.

There’s no buck-passing here, however. Other law enforcement entities are flat-out uninterested in helping the state keep this bad law on the books.

[T]he next day, the Maricopa County Attorney’s Office said that neither it nor the Sheriff’s Office would defend the law or oppose the motion to block the law from going into effect.

And that’s coming from the curb-stompingest, rights-violatingest sheriff’s office in the nation.

Even the president of the state senate, Karen Fann, refused to say for sure whether the state itself would intervene in the lawsuit to save the law from being declared constitutionally dead.

“The executive branch’s role is to enforce and defend the laws passed by the Legislature and signed by the governor. We are currently considering all options and will not comment further on pending lawsuits,” she said through a spokeswoman.

If anyone should intervene, it’s the idiots who thought this was a good idea, starting with Senator John Kavanaugh. And if Governor Greg Ducey truly believed this law was necessary and actually lawful, he and his office should make an appearance in court to explain why the state government felt compelled to protect cops who don’t seem to feel they need this protection while undercutting the rights of Arizona citizens who were never asked directly if they thought cops should be shielded from additional accountability.

Filed Under: 1st amendment, arizona, free speech, recording police