It's Apparently Bipartisan To Threaten To Punish Companies Via Antitrust Law For Speech You Don't Like

Free Speech

from the not-how-any-of-it-works dept

A little over a week ago, we wrote about how Senator Elizabeth Warren clearly went over the line in threatening to punish Amazon for its speech through the use of antitrust laws. As we noted (pretty clearly, though many ignored it) at the time, there may be plenty of other reasons to use antitrust laws against Amazon, but no government official should ever even jokingly suggest that he or she would use the power of the government (via antitrust) to punish an entity for speech.

In response, many Warren supporters got incredibly mad at me, insisting that because (1) Amazon is big and (2) Warren has supported this position before, then it’s perfectly fine for her to have said what she did. It was not.

On Friday, we got to see the same thing from the other side of the aisle. After Major League Baseball announced that it would move the All-Star Game out of Atlanta in protest of Georgia’s new voting law, Rep. Jeff Duncan from South Carolina, stated out loud on Twitter that he intended to punish the company by drafting legislation to remove MLB’s somewhat infamous antitrust exemption.

As we said with Warren, there may be very good reasons to remove MLB’s antitrust exemption. In fact, I’d argue there are compelling reasons to do so. But, announcing plans to do so as punishment for MLB’s clear protest over Georgia’s voting law is pretty clearly an affront to the 1st Amendment. Rep. Duncan is stating directly that he wants to punish a company for protesting a law that he agrees with. This creates a real chilling effect. It may not chill MLB directly, but it likely would chill many other companies from speaking out for fear of retaliation from Duncan and his colleagues in Congress.

It was wrong when Senator Warren did it, and it’s just as wrong with Rep. Duncan does it. It’s also wrong for Senators Ted Cruz and Mike Lee to do it, jumping on Duncan’s new bandwagon.

Punishing companies using antitrust laws (even if there are good underlying reasons to explore those antitrust issues) for their expression should never be supported, cheered on, or allowed. Just as we called on Warren to take back what she said, we now are saying Duncan, too, should take back his direct threat of punishment for speech. Unfortunately, since everything in politics these days seems to be it’s okay to punish “enemies” and to support “friends” this will never happen. But it sure would be nice if we had politicians with principles who knew that it’s wrong to punish anyone for speech, even if you disagree with their speech (and agree that the “punishment” is warranted for other reasons).

Filed Under: 1st amendment, antitrust, chilling effects, elizabeth warren, free speech, georgia, jeff duncan, mike lee, speech, ted cruz, threats, voting rights
Companies: amazon, mlb

Justice Thomas Goes Weird Again; Suggests Twitter Can't Moderate & Section 230 Violates 1st Amendment

Legal Issues

from the supreme-Quart-justice dept

Today was a weird one for Justice Thomas. Along with his bizarre and confusing dissent in the Oracle/Google case, he has done another one of his random walks down conspiracy theory nonsense lane on an unbriefed issue in which he gets to, once again, attack the 1st Amendment. He’s done this a few times now. Two years ago he did this in writing an unprovoked attack on the 1st Amendment regarding NY Times v. Sullivan. Last year, he did it with an unprovoked and bizarre attack on Section 230. And now he’s done it again.

Today, the Supreme Court declined to hear an appeal on the Knight 1st Amendment Center case, in which both the District Court and the Appeals Court made it clear that when a government official, using social media in an official capacity, allows replies on a posting (such as a tweet), they are creating a public forum in that space, and therefore cannot engage in viewpoint discrimination — including blocking individuals for speech they disagree with.

A bunch of very confused and clueless people have (incorrectly) taken to arguing that this somehow means that Twitter itself is a “public forum” and cannot moderate content. That has always been very, very wrong. The courts were clear that they were only talking about the space beneath a public official’s statements. The simplest way to think of it is this: If the government rents out an event hall to let the President give a speech, it cannot engage in viewpoint discrimination in blocking people from coming into the hall to hear the speech. That does not mean the event hall itself is now permanently a public forum, or that the event hall owners cannot block people they have banned from their property from attending the speech, or any other events.

And, basically, the argument has stayed with very confused and clueless people… until today, when Justice Thomas decided to put it front and center. It’s hard to state how ridiculous this is. Not for the first time, Justice Thomas seems to have become the old cranky uncle who believes in conspiracy theory nonsense. Everything about what he writes here would fit more neatly into a Breitbart comment section or an OANN rant. That it’s coming from a Supreme Court Justice is just crazy. Let’s break this down bit by bit.

Respondents have a point, for example, that some aspects of Mr. Trump?s account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.

Again, it does not seem odd at all. It’s how it usually works. It’s how it works in my example above, when the government makes use of a private forum. Private forums have their own property rights, in the same way that, say, a private baker can choose not to print a message it disagrees with on a cake, but the government itself could not write a law preventing that baker from printing protected messages on cakes. The whole nature of our Constitution is kinda based on the fact that the government has limited authority. It’s bizarre that Thomas argues it’s “rather odd” to say that the government has less authority than private entities. That’s how it’s always been.

The disparity between Twitter?s control and Mr. Trump?s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages

Again, this is exactly how it has always worked. A private building owner can choose not to rent to the President to give a speech. But if they do rent, the President cannot block attendees based on their viewpoints. This isn’t difficult.

Thomas then goes on a long Fox News-style rant about how the big internet companies have too much power, and that the Supreme Court will need to rule on that at some point. He suggests — again, despite no briefing or oral arguments on this matter, but clearly influenced by nutty conspiracy theorists — that it could be argued that sites like Twitter are common carriers or subject to public accommodation rules. Again, this is heard quite frequently among the conspiracy theory Trumpist set, but no serious legal analysis has suggested this is even remotely accurate.

The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny?especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech. See Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 684 (1994) (O?Connor, J., concurring in part and dissenting in part); PruneYard Shopping Center v. Robins, 447 U. S. 74, 88 (1980). There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.

In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ?carry? information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot ?be treated as the publisher or speaker? of information that they merely distribute. 110 Stat. 137, 47 U. S. C. ?230(c)

The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today?s dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search?at 90% of the market share?is valuable relative to other search engines because more people use it, creating data that Google?s algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms?last year, Google brought in $182.5 billion total, $40.3 billion in net income?would induce new entrants into the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.

There’s a hidden dig at Section 230 at the end of that second paragraph above — though one that completely misunderstand the nature of 230 and falsely suggests that it was intended to make these platforms act like common carriers (which is the exact opposite of the stated intention of the drafters of 230).

There’s also a weird (and confusing) dig at Mark Zuckerberg, Larry Page & Sergey Brin — claiming (incorrectly) that Zuckerberg has full control over Facebook and Brin & Page control all of Google.

To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.

That’s… not quite right. There is, again, a kernel of truth in the idea that siloed services are different than protocol-based distributed services. That’s a point I make all the damn time. But the conclusion elides (1) how protocols are actually managed and (2) how much control those three individuals actually have. It is true that those three have special voting power over their shares, but that does not give them the level of control that Thomas suggests. This also ignores the fact that in the last few years — despite Thomas’ claims — we have seen competitors springing up over and over again.

Then we get to the bit that is getting a ton of attention today. Thomas argues in a footnote that Section 230 itself might violate the 1st Amendment. We first saw this insane argument — and debunked it — a few months ago. It has no basis in reality. Yet here’s Thomas:

For similar reasons, some commentators have suggested that immunity provisions like ?230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship. See Volokh, Might Federal Preemption of SpeechProtective State Laws Violate the First Amendment? The Volokh Conspiracy, Reason, Jan. 23, 2021. According to that argument, when a State creates a private right and a federal statute pre-empts that state law, ?the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.? Railway Employees v. Hanson, 351 U. S. 225, 232 (1956); accord, Skinner v. Railway Labor Executives? Assn., 489 U. S. 602, 614?615 (1989).

There are all sorts of oddities here. First, the citation of Eugene Volokh’s piece entitled Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment?. Not that I’m against the Supreme Court randomly citing smart blog posts from thoughtful commentators, but it’s still… a little weird. And if you actually read Volokh’s piece, which itself is a response to the Vivek Ramaswamy and Jed Rubenfeld Wall Street Journal op-ed that I mentioned above, it seems fairly skeptical of the idea that 230 could possibly violate the 1st Amendment. Instead, it’s trying to set out the strongest possible argument for that, which Volokh seems to make reluctantly for the sake of argument, noting multiple times that he doesn’t necessarily agree with it, and it relies on a Supreme Court ruling that he believes is incorrect.

But the biggest oddity of all is… what the fuck is he actually trying to say here? His argument is that 230 might be unconstitutional because it might “pre-empt state laws that protect speech from private censorship.” Beyond putting a shiny gloss on Volokh’s argument, private censorship is allowed. That’s kind of important. I mean, Thomas wrote a whole concurrence in the Masterpiece Bakeshop case arguing this very point… in the other direction.

Either way, this is now the third time in which Justice Thomas has randomly mused about free speech in a way that seems designed to attack social media and in line with the nutty conspiracy theories seen on Fox News/OANN/Breitbart. It’s almost as if he’s living in a weird alternative reality bubble and disconnected from the real world. While he mentions it in passing in his weird dissent, he might want to actually reread the Halleck decision which he signed onto, and which makes it quite clear that private companies can moderate content how they see fit on their platforms.

Unfortunately, though, as with his last two random outbursts on these issues, it’s likely we’re going to see lots of confused and ignorant people citing Thomas’ random unbriefed musings as proof that their nonsense has legitimacy.

Filed Under: 1st amendment, clarence thomas, content moderation, free speech, section 230
Companies: twitter

Georgia Republicans Try To Punish Delta For CEO's Statement About Voting Rights Law

Free Speech

from the cancel-culture? dept

Punishing people or companies for their speech is never something any politician should ever be engaged in. It’s why we called out Elizabeth Warren recently. And now we’ll call out Republican legislators in Georgia, who tried (but failed) to punish Delta in direct response to its CEO’s comments. The details honestly don’t matter here, because all that matters is “politicians looking to punish speech” but we’ll give the basic background.

As you may have heard in the news, a week ago, Georgia passed a big new voting bill that has been quite controversial. In short, like many recent bills, in the name of “election integrity” the law is likely to make it more difficult for some people to vote. Once again, there remains vanishingly little evidence of voter fraud in elections, and bills like this one generally appear to be a fig leaf for trying to disenfranchise voters who are more likely to vote for Democrats.

Initially Delta put out a statement that applauded some of the provisions in the bill (the parts that did expand some early and absentee voting). But praising those aspects of the bill was seen as approving the entire bill, which angered lots of people — leading to calls to boycott Delta. It didn’t then take long for Delta’s CEO to come out with a surprisingly harsh condemnation of the law, which seemed like a pretty sharp turnaround from the original statement praising pieces of the law.

In response to that, Republican lawmakers in Georgia set out to take away certain tax breaks for Delta. Now, there may be perfectly good reasons to remove such tax breaks, but doing so directly in response to the CEO’s statement, is not how any of this is supposed to work. But, the legislators in question seemed so sure that this was the right culture warrior stance to take that they didn’t even try to hide the reasoning behind some made up argument. They just out and out admitted that this was punishment over speech:

?They like our public policy when we?re doing things that benefit them,? said House Speaker David Ralston, adding: ?You don?t feed a dog that bites your hand. You got to keep that in mind sometimes.?

While the House passed the resolution, the Georgia Senate did not, so the issue is effectively dead, but still immensely problematic from a 1st Amendment stand point. Some might argue that this is the flipside of the calls for a boycott, but that’s entirely different. A boycott (which, it should be admitted, are rarely effective) would be decisions by individual consumers. They can do that. Politicians out-and-out retaliating for speech is a quintessential 1st Amendment problem.

This isn’t a Republican or Democrat issue. As noted, we’ve called out both Republicans and Democrats for this tactic. If you have legitimate reasons to legislate, that’s fine. But legislation should never be punishment for speech.

Filed Under: free speech, georgia, punishment, republicans, voting rights
Companies: delta

Months After LAPD Officers Attacked A Journalist, Prosecutors Are Trying To Charge The Journalist For Failing To Disperse

Free Speech

from the that's-one-way-to-mishandle-criticism dept

Cops have been using protests against police violence to engage in police violence against journalists. The addition of federal cops to the heated mix in Portland, Oregon made this worse. The new cops amped it up so much journalists had to seek a protective order telling cops to stop doing things they knew they shouldn’t be doing, like targeting journalists with things like pepper spray and rubber bullets.

But they’re going further. Wading into the policing of protests — something already fraught with First Amendment concerns — cops are arresting journalists simply for covering demonstrations. An attempted prosecution of a reporter in Iowa ended with an arrested journalist being cleared of all charges. That it ever reached the point it needed to be handled by a judge and jury is an indictment of local cops and local prosecutors. (But not the kind of indictment that leads to prosecutions, unfortunately.)

A similar case is underway in Los Angeles. A reporter for website L.A. Taco released footage of him being attacked by LAPD officers while covering the city’s chaotic “celebration” of a World Series win.

For months, nothing happened. Then, despite officers not arresting him last October, the city has decided to prosecute him for the criminal act he was never arrested for.

Lexis-Olivier Ray, a freelance journalist who covered the upheaval for the news website L.A. Taco, was not among those arrested. But last month he received a letter from the Los Angeles city attorney’s office notifying him that he faced a criminal charge for failing to follow an LAPD officer’s order to disperse during the tumult.

No arrest happened that night. A report written a week later by an officer raised this allegation. But it wasn’t until February he was even informed he was considered a criminal suspect.

This looks suspiciously like retaliation by the LAPD for Ray’s release of his recording of their abuse targeting him — a recording that racked up more than 400,000 views. Further examination of police actions and statements made in response to inquiries by the LA Times confirms this suspicion.

The LAPD has no explanation for why officers did not arrest Ray that night for violating an order to disperse. It also had no explanation why none of the 19 people arrested were charged with failing to disperse or why only a person who identified himself as a journalist would be the only subject to this order to disperse.

Then there’s this, which shows the LAPD is either incapable or unwilling to follow its own guidance on handling interactions with journalists.

The LAPD’s handling of Ray’s case seemed to run counter to orders it gave its own officers following the Dodgers celebrations. Two days after Ray’s video went viral, LAPD Deputy Chief Dominic Choi issued a departmentwide memo instructing officers and field commanders to respect the rights of reporters during demonstrations whether or not they had formal press credentials.

Nothing adds up to a legitimate criminal prosecution. But whatever the LAPD can do to hurt the journalist that hurt them by doing little more than providing uncut footage of being attacked by officers, they’ll do. There’s no heat of the moment, split-second decision making going on here. At best, bad judgment was displayed by some officers last October. That could have been the end of it. But now the LAPD has compounded its errors and it will be lucky to escape this debacle without being sued.

Filed Under: 1st amendment, free speech, journalism, lapd, lexis-olivier ray, los angeles

Utah Governor Vetoes Ridiculous Unconstitutional Content Moderation Bill; Makes His Brother-in-Law Sad

Free Speech

from the silly-nonsense dept

Earlier this month, we noted that, to close out its session, the Utah legislature decided to pass two separate blatantly unconstitutional bills. One requiring porn filters on internet-connected devices, and the other that tried to overrule Section 230 (something states can’t do) and require all “social media corporations” to employ an “independent review board” to review content moderation decisions. It also says that social media companies must moderate in an “equitable” manner (whatever that means).

We went through all of the reasons why the bill was unconstitutional, as did others in Utah. In response, the bill’s sponsor, Senator Michael McKell, gleefully told a local TV news station that he looked forward to wasting Utah taxpayers’ hard earned money by defending it in court (he didn’t say that it would be wasting the money — that’s just us noting that it would be throwing away their money since the law is so clearly unconstitutional).

Thankfully, Utah Governor Spencer Cox (who happens to be Senator McKell’s brother-in-law) has decided to veto the bill — his very first veto (as we noted earlier, he chose to sign the other unconstitutional bill about porn filters).

Oddly, Cox’s office released two separate statements regarding the veto — only one of which notes that the bill was likely unconstitutional, while the other one seems to act like the bill just needs a few technical tweaks. It’s almost as if he’s trying to have it both ways and address two different audiences with two very different statements. The official veto statement makes it clear that the bill has serious constitutional issues:

Whatever course of action we take to protect online speech should seek to fully uphold the values enshrined in the First Amendment. While it is clear that something must be done, I believe that S.B. 228 raises significant constitutional concerns. And while I am proud that Utah is leading the effort to protect individuals’ speech on the internet, I believe we will be well served to continue further coordination with our sister states to ensure faire access to the nation’s largest public square.

Um, yeah, no. The government does not get to force anyone to host anyone’s speech. That’s not how it works. At all. The very notion of it is against the principles of the 1st Amendment.

The other statement, that Senator McKell himself posted to Twitter (after whining about the fact that his brother-in-law vetoed his bill) pretends that there are real serious issues involved in all of this, rather than silly, unconstitutional performative nonsense.

That statement doesn’t even mention the constitutional issues and instead suggests that there were merely “technical issues” that got in the way (apparently some in Utah think the 1st Amendment’s prohibition on compelled speech, as well as the Constitution’s Commerce Clause are merely “technical issues”).

Gov. Spencer Cox vetoed S.B. 228 Electronic Free Speech Amendments, with consent from the Senate President, Speaker of the House and bill sponsors. After conversations with the legislative and executive branches, this action was jointly determined as the best path forward due to technical issues. Censorship by tech companies is a serious concern, and this action will not hinder nor prevent Utah from finding the right policy solution.

?The sponsors of this bill have raised valid questions about the impact social media platforms can have on public discourse and debate,? said Gov. Cox. ?Our country continues to grapple with very real and novel issues around freedom of speech, the rights of private companies and the toxic divisiveness caused by these new forms of connection, information and communication. While I have serious concerns about the bill, I appreciate the willingness of the bill?s sponsors to continue to seek a better solution. Utah must be a leader in this space and I look forward to engaging with legislators and social media companies to address these legitimate concerns.?

S.B. 228 had made significant headway and elevated Utah?s position in conversations with big tech corporations. Utah policymakers along with the governor will work closely with stakeholders to ensure all Utahns have an equal opportunity to exercise their First Amendment right.

Um, yeah, you see, the 1st Amendment blocks the government (including the government of Utah) from making laws that impact individuals’ rights to free expression. The government cannot seek to force private companies to host speech. So the very idea that they need to step in to make sure that “Utahns have an equal opportunity to exercise their First Amendment right” is nonsense.

Even more bizarre is that Cox allows his brother-in-law, who wrote the bill, to put in a completely nonsensical statement into the press release claiming (laughably) that it’s actually the content moderation decisions of private companies that must violate the 1st Amendment:

?I appreciate the commitment from stakeholders who have agreed to work with the Legislature to craft a better solution that will increase transparency within social media corporations,? said Sen. Mike McKell. ?Censorship practices are un-American and likely unconstitutional. In Utah, we defend the right to freely express opinions and views, regardless of political or religious affiliation. The outcome of S.B. 228 is not ideal; however, the issue of free speech and online censorship remains a priority and policy will continue to be refined throughout interim.?

That’s not how any of this works. You don’t get to force private companies to moderate the way the government wants them to moderate. That is what’s unconstitutional. Utah: elect better people who will actually stand up for your constitutional rights, not try to demolish them while pretending that their attacks on the Constitution are no problem at all.

McKell further notes that as soon as the legislature is back in session he’ll introduce a new version of his unconstitutional bill. I will take a wild guess and predict it will be equally unconstitutional. Especially since almost everyone involved in this ridiculous process keeps saying the same stupid things:

?Free speech is one of our most cherished American values and essential to democracy,? said President J. Stuart Adams. ?With the rise of social media, the issue of censorship has become increasingly prevalent, and the need for corporation transparency has proven necessary. While I support the concept and ideas of S.B. 228, after conversations with Gov. Cox, Speaker Wilson Sen. McKell and Rep. Brammer, we decided continuing the discussion regarding online censorship will be the most productive path forward. Together as Americans, we must ensure the right to speak freely remains intact, and I look forward to addressing this issue in the near future.?

Everyone has the right to speak freely. What they do not have the right to do is to force others to host their speech or to tell them how they can make editorial and moderation decisions. That is an attack on their 1st Amendment rights. It would be nice if elected officials in Utah could understand this fundamental point behind the 1st Amendment. Tragically, that seems unlikely.

Filed Under: 1st amendment, compelled speech, content moderation, michael mckell, spencer cox, utah

Appeals Court Judge Attacks Fundamental Principle Of 1st Amendment Law, Because He Thinks The Media Likes Democrats Too Much

Free Speech

from the ooooooh-boy dept

Two years ago, Supreme Court Justice Clarence Thomas shocked a lot of people by arguing — somewhat out of nowhere — that the Supreme Court should revisit the NY Times v. Sullivan ruling. If you’re unaware, that 1964 ruling is perhaps the most important and fundamental Supreme Court ruling regarding the 1st Amendment. It’s the case that established a few key principles and tests that are incredibly important in stopping vexatious, censorial SLAPP suits — often by those in power, against those who criticize.

Now, a DC Circuit appeals court judge — and close friend of Thomas’s — is suggesting that the court toss that standard. And his reasons are… um… something quite incredible. Apparently, he’s mad that the media and big tech are mean to Republicans, and he’s worried that Fox News and Rupert Murdoch aren’t doing enough to fight back against those evil libs, who are “abusing” the 1st Amendment to spew lies about Republicans. As you’ll see, the case in question isn’t even about the media, the internet, or Democrats/Republicans at all. It’s about a permit in Liberia to drill for oil. Really. But there’s some background to go through first.

The key part of the Sullivan case is that, if the plaintiff is considered a “public figure,” then they need to show “actual malice” to prove defamation. The actual malice standard is widely misunderstood. As I’ve heard it said, “actual malice” requires no actual malice. It doesn’t mean that the person making the statements really dislikes who they’re talking about. It means that the person making the statements knew that the statements were false, or made the statements “with reckless disregard for the truth.” Once again, “reckless disregard for the truth” has a specific meaning that is not what you might think. In various cases, the Supreme Court has made it clear that this means that the person either had a “high degree of awareness” that the statements are probably false or “entertained serious doubts as to the truth” of the statements. In other words, it’s not just that they didn’t do due diligence. It’s that they did, found evidence suggesting the content was false, and then still published anyway.

This is, obviously, a high bar to get over. But that’s on purpose. That’s how defamation law fits under the 1st Amendment (some might argue that defamation law itself should violate the 1st Amendment as it is, blatantly, law regarding speech — but by limiting it to the most egregious situations, the courts have carved out how the two can fit together). Five years ago, 1st Amendment lawyer Ken White noted that there was no real concerted effort to change this standard, and it seemed unlikely that many judges would consider it.

Unlike, say, Roe v. Wade, nobody’s been trying to chip away at Sullivan for 52 years. It’s not a matter of controversy or pushback or questioning in judicial decisions. Though it’s been the subject of academic debate, even judges with philosophical and structural quarrels with Sullivan apply it without suggesting it is vulnerable. Take the late Justice Scalia, for example. Scalia thought Sullivan was wrongly decided, but routinely applied it and its progeny in cases like the ones above. You can go shopping for judicial candidates whose writings or decisions suggest they will overturn Roe v. Wade, but it would be extremely difficult to find on… chemtrail-level, but several firm strides in that direction. Nor is the distinction between fact and opinion controversial ? at least not from conservatives. There’s been some back and forth over whether opinion is absolutely protected (no) or whether it might be defamatory if it implies provably false facts (yes) but there’s no conservative movement to make insults and hyperbole subject to defamation analysis. The closest anyone gets to that are liberal academics who want to reinterpret the First Amendment to allow prohibitions of “hate speech” and other “hurtful” words. It seems unlikely that Trump would appoint any of these.

In short, there’s no big eager group of “overturn Sullivan” judges waiting in the wings to be sent to the Supreme Court. The few academics who argue that way are likely more extreme on other issues than Trump would want.

And that’s why Clarence Thomas’s attack on the Sullivan standard was so shocking two years ago. It came basically out of nowhere. Thomas tried to make it all about “originalism”, suggesting that if the framers of the Constitution didn’t set up different standards for public figures, neither should the Supreme Court. Indeed, what was motivating Thomas’ anger at the Sullivan standard seemed to be… that it let too many people be mean to public figures. He even seemed to argue that defamation law should be flipped to be more protective of public figures, since apparently those public figures are delicate little flowers who can’t be forced to face pointed criticism. From his statement:

Far from increasing a public figure?s burden in a defamation action, the common law deemed libels against public figures to be, if anything, more serious and injurious than ordinary libels. See 3 Blackstone *124 (?Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man?); 4 id., at *150 (defining libels as ?malicious defamations of any person, and especially a magistrate, made public by either printing, writing, signs, or pictures, in order to provoke him to wrath, or expose him to public hatred, contempt, and ridicule? (emphasis added)). Libel of a public official was deemed an offense ??most dangerous to the people, and deserv[ing of] punishment, because the people may be deceived and reject the best citizens to their great injury, and it may be to the loss of their liberties.??

In the two years since he wrote that, thankfully, there’s been little other movement in the courts to attack the Sullivan standard. Indeed, as White had suggested, any move to do so seems to be viewed as blatantly conspiratorial. However, now an appeals court judge has done exactly what Thomas seemed to be signaling he wanted. And, perhaps not surprisingly, that judge happens to be not just a close friend of Clarence Thomas, but the judge who convinced Clarence Thomas to become a judge in the first place.

Judge Laurence Silberman has been on the DC Circuit since 1985, and has been on “senior status” since 2000. But apparently he’s got a real bone to pick with the Sullivan standard. In an absolutely incredible back-and-forth majority opinion and dissent in a defamation case, it is made quite clear that Silberman hates the Sullivan actual malice standard, believes the media is super biased and mean to conservatives, and is no fan of the two other judges on the panel, Judge Sri Srinivasan (currently the Chief Judge on the DC Circuit) and Judge David Tatel.

Both the majority opinion, by Tatel with Srinivasan joining, and the dissent, snipe at the other side in quite pointed ways. But we’ll get to that. First, the details of the case. Without going too deep into the weeds, it involves a deal in which Exxon sought to buy an oil drilling license from Liberia. There had been concerns about corruption regarding oil licensing deals in Liberia in the past — including the very specific plot that Exxon was seeking to drill in. Liberia had put together a committee to help oversee these kinds of negotiations. After the deal — the largest ever for Liberia — was completed, the National Oil Company of Liberia awarded bonuses to the negotiators on the committee. Two of those negotiators, Christiana Tah and Randolph McClain, were Liberia’s Minister of Justice and the CEO of the National Oil Company of Liberia. Each received a $35,000 bonus.

Global Witness, a non-profit that tries to highlight corruption and human rights violations related to “natural resource exploitation” put out a report alleging that these bonuses were bribes to get the deal to go through. Accusing someone of accepting a bribe is, at least on its face, a much more serious claim and could actually be defamatory (unlike many cases we see where people scream defamation over opinions). However, this case ran into a big problem: the lack of actual malice, which allowed the district court to dismiss the case relatively quickly (as an aside, Global Witness also sought to use DC’s anti-SLAPP law, but unfortunately since the DC Circuit has said for years that DC’s anti-SLAPP law cannot be used in federal court that failed at both the district and the appeals court level).

Here, the majority opinion explains (in quite readable fashion!) the actual malice standard, and why Tah and McClain failed to establish it. For those who want a nice summary of how actual malice works, the opinion is a good summation:

The actual malice standard is famously ?daunting.? McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996). A plaintiff must prove by ?clear and convincing evidence? that the speaker made the statement ?with knowledge that it was false or with reckless disregard of whether it was false or not.? Jankovic III, 822 F.3d at 589?90 (second part quoting New York Times Co., 376 U.S. at 279?80). ?[A]lthough the concept of reckless disregard cannot be fully encompassed in one infallible definition,? the Supreme Court has ?made clear that the defendant must have made the false publication with a high degree of awareness of probable falsity,? or ?must have entertained serious doubts as to the truth of his publication.? Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667 (1989) (alteration omitted) (internal quotation marks omitted); see also id. at 688 (using these formulations interchangeably). The speaker?s failure to meet an objective standard of reasonableness is insufficient; rather the speaker must have actually ?harbored subjective doubt.? Jankovic III, 822 F.3d at 589.

But soon after this, the barbs at Silberman begin. The ruling notes that Silberman seems to have his own objective in dissenting — even highlighting that the plaintiffs in the case didn’t even make the argument Silberman so desperately seems to want them to make.

The dissent thinks this is an easy case. ?In Global Witness?s story,? the dissent asserts, ?Exxon was the briber,? Dissenting Op. at 1, yet the report admits that ?Global Witness ha[d] no evidence that Exxon directed NOCAL to pay Liberian officials, nor that Exxon knew such payments were occurring,? Report at 31.

Critically, however, neither Tah nor McClain advances this theory?in their briefing to us, they never even mention the sentence on which the dissent relies. They make four specific arguments in support of their claim that Global Witness possessed actual malice, supra at 8, not one of which is that Global Witness had no evidence that Exxon was the briber, and for good reason. At most, the report implies that NOCAL, not Exxon, was the briber, thus rendering any lack of evidence as to Exxon?s direction or knowledge of the payments totally irrelevant.

The opinion then even calls out Silberman for trying to coax the lawyers to make the argument he wanted them to make instead of the argument they were actually making:

Indeed, when our dissenting colleague surfaced his theory at oral argument, it was so foreign to appellants? counsel that our colleague had to spoon-feed him after he failed to get the initial hint. See Oral Arg. Tr. at 10 (?Well, no, it?s worse. Isn?t it stronger than that, counsel? We have no evidence.?). As our dissenting colleague himself has made clear, ?we do not consider arguments not presented to us.? Diamond Walnut Growers, Inc. v. NLRB, 113 F.3d 1259, 1263 (D.C. Cir. 1997) (en banc). Or put another way, ?appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.? Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

Ooof. And, indeed, when you read the dissent, you can see why Tatel was so annoyed. Silberman pretty clearly has a point he wants to make and he’s going to make it whether or not Tah and McClain raised the issue in the case or not. And that point is (1) the actual malice standard is bad, (2) mainstream media companies are bad because they support Democrats, (3) big tech is bad because it support Democrats, and (4) to some extent, Silberman thinks his colleagues on the bench are bad. Oh, but Fox News, Rupert Murdoch, and his buddy Clarence Thomas are all good. It’s… quite incredible. I mean, check out this statement:

My disagreement with the district court is limited to the actual malice question (my disagreement with the Majority is much broader).

A key part of the disagreement is whether Exxon or NOCAL was considered the “briber” in this case, though the reason that’s important seems fairly tortured, so I won’t even get into it here. Suffice it to say, Silberman believes that the story Global Witness wrote is “inherently implausible” and therefore that should satisfy the standard for defamation. But in discussing it, Silberman again throws tremendous shade on his colleagues:

The Majority?s assertion that this argument was never made by the Appellants leads me to wonder whether we received the same briefs. In my copy, Appellants argue that ?Global Witness subjectively knew that it had not been able to determine whether the payments of $35,000 to Christiana Tah and Randolph McClain were corrupt bribery payments. Yet . . . Global Witness proceeded to present to readers the defamatory message that in fact [] Tah and [] McClain had taken bribes.? Appellant Br. 36 (emphasis in original). That sounds to me a whole lot like accusing Global Witness of publishing its story with no evidence to back it up. The Majority, moreover, faults me for assessing the inherent (im)plausibility of Global Witness?s story, without a specific request from Tah and McClain to do so. But (as discussed) ?inherently implausible? is a legal standard by which we assess Appellants? arguments?not an argument to be advanced.

And from there, Silberman is off to the races, he spends a few pages accusing the majority of making stuff up, before finally getting around to the point he really wants to make. He wants to take Justice Thomas up on the offer to get rid of the actual malice standard entirely:

After observing my colleagues? efforts to stretch the actual malice rule like a rubber band, I am prompted to urge the overruling of New York Times v. Sullivan. Justice Thomas has already persuasively demonstrated that New York Times was a policy-driven decision masquerading as constitutional law. See McKee v. Cosby, 139 S. Ct. 675 (2019) (Thomas, J., concurring in denial of certiorari). The holding has no relation to the text, history, or structure of the Constitution, and it baldly constitutionalized an area of law refined over centuries of common law adjudication. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 380?88 (1974) (White, J., dissenting). As with the rest of the opinion, the actual malice requirement was simply cut from whole cloth. New York Times should be overruled on these grounds alone.

He at least acknowledges that it would be “difficult” to get the Supreme Court to “overrule such a ‘landmark’ decision,” noting correctly that it would “incur the wrath of press and media.” And it would, because it would open up the media (and basically everyone else) to a bunch of censorial SLAPP suits. Silberman then reminisces about pushing the Supreme Court to overrule another “similarly illegitimate constitutional decision” — one that has been quite important in allowing people whose civil rights were violated by police to seek redress. He goes on to whine that other judges, including then Supreme Court Justice Kennedy, got upset with him for urging such an overturning of precedent. Kennedy, responding to Silberman, suggested that “we must guard against disdain for the judicial system.” Silberman seems to relish his contrarian position:

To the charge of disdain, I plead guilty. I readily admit that I have little regard for holdings of the Court that dress up policymaking in constitutional garb. That is the real attack on the Constitution, in which?it should go without saying?the Framers chose to allocate political power to the political branches. The notion that the Court should somehow act in a policy role as a Council of Revision is illegitimate. See 1 The Records of the Federal Convention of 1787, at 138, 140 (Max Farrand ed., 1911). It will be recalled that maintaining the Brezhnev doctrine strained the resources and legitimacy of the Soviet Union until it could no longer be sustained.

He then goes through the details of the Sullivan ruling, arguing that it was clear judicial activism, and insists that such a ruling would never have happened today. Then he complains that it has given the press way too much power:

There can be no doubt that the New York Times case has increased the power of the media. Although the institutional press, it could be argued, needed that protection to cover the civil rights movement, that power is now abused. In light of today?s very different challenges, I doubt the Court would invent the same rule.

As the case has subsequently been interpreted, it allows the press to cast false aspersions on public figures with near impunity.

And then it’s all “those media orgs are so mean to my friends.”

Although the bias against the Republican Party?not just controversial individuals?is rather shocking today, this is not new; it is a long-term, secular trend going back at least to the ?70s. (I do not mean to defend or criticize the behavior of any particular politician). Two of the three most influential papers (at least historically), The New York Times and The Washington Post, are virtually Democratic Party broadsheets. And the news section of The Wall Street Journal leans in the same direction. The orientation of these three papers is followed by The Associated Press and most large papers across the country (such as the Los Angeles Times, Miami Herald, and Boston Globe). Nearly all television?network and cable?is a Democratic Party trumpet. Even the government-supported National Public Radio follows along.

Uh… what?

Also, big tech is bad:

As has become apparent, Silicon Valley also has an enormous influence over the distribution of news. And it similarly filters news delivery in ways favorable to the Democratic Party. See Kaitlyn Tiffany, Twitter Goofed It, The Atlantic (2020) (?Within a few hours, Facebook announced that it would limit [a New York Post] story?s spread on its platform while its third-party fact-checkers somehow investigated the information. Soon after, Twitter took an even more dramatic stance: Without immediate public explanation, it completely banned users from posting the link to the story.?).

What does this have to do with a case regarding oil drilling in Liberia? You know as much as I do. But don’t worry, Judge Silberman wants you to know that at least there’s Rupert Murdoch to step in and balance the scales at least somewhat. Really. I’m not kidding.

To be sure, there are a few notable exceptions to Democratic Party ideological control: Fox News, The New York Post, and The Wall Street Journal?s editorial page. It should be sobering for those concerned about news bias that these institutions are controlled by a single man and his son. Will a lone holdout remain in what is otherwise a frighteningly orthodox media culture? After all, there are serious efforts to muzzle Fox News. And although upstart (mainly online) conservative networks have emerged in recent years, their visibility has been decidedly curtailed by Social Media, either by direct bans or content-based censorship.

He also has another footnote attacking the 1st Amendment rights of the internet companies, which he insists — without any actual evidence, because none exists — are “biased” against his Republican friends.

Of course, I do not take a position on the legality of big tech?s behavior. Some emphasize these companies are private and therefore not subject to the First Amendment. Yet?even if correct? it is not an adequate excuse for big tech?s bias. The First Amendment is more than just a legal provision: It embodies the most important value of American Democracy. Repression of political speech by large institutions with market power therefore is?I say this advisedly?fundamentally un-American. As one who lived through the McCarthy era, it is hard to fathom how honorable men and women can support such actions. One would hope that someone, in any institution, would emulate Margaret Chase Smith.

He then proceeds to complain about how the media and big tech are helping Democrats.

There can be little question that the overwhelming uniformity of news bias in the United States has an enormous political impact. That was empirically and persuasively demonstrated in Tim Groseclose?s insightful book, Left Turn: How Liberal Media Bias Distorts the American Mind (2011). Professor Groseclose showed that media bias is significantly to the left. Id. at 192?197; see also id. at 169?77. And this distorted market has the effect, according to Groseclose, of aiding Democratic Party candidates by 8?10% in the typical election. Id. at ix, 201?33. And now, a decade after this book?s publication, the press and media do not even pretend to be neutral news services.

It should be borne in mind that the first step taken by any potential authoritarian or dictatorial regime is to gain control of communications, particularly the delivery of news. It is fair to conclude, therefore, that one-party control of the press and media is a threat to a viable democracy. It may even give rise to countervailing extremism. The First Amendment guarantees a free press to foster a vibrant trade in ideas. But a biased press can distort the marketplace. And when the media has proven its willingness?if not eagerness?to so distort, it is a profound mistake to stand by unjustified legal rules that serve only to enhance the press? power.

And that’s how it closes. Even if there are legitimate reasons to question the “actual malice” standard, to go on an unhinged Fox News-style rant about “anti-conservative bias” seems particularly ridiculous. It sure looks like Silberman has been spending a bit too much time believing propaganda, and is seeking to torpedo a free press in response.

Filed Under: 1st amendment, actual malice, bias, big tech, clarence thomas, dc circuit, free speech, laurence silberman, liberia, media, news, oil drilling, section 230, supreme court

China Warns Microsoft That LinkedIn Isn't Suppressing Enough Voices

Free Speech

from the now-that's-censorship dept

As a bunch of US lawmakers keep threatening new laws that would force websites to remove more content, we should note just how much such moves reflect what is happening in China. The NY Times reports that Microsoft is in hot water in China, because LinkedIn apparently has been too slow to block content that displeases the Chinese government. As the article notes, LinkedIn is the one major US social network that is allowed in China — but only if it follows China’s Great Firewall censorship rules.

If you’re not familiar with how that works, it’s not that the government tells you what to take down — it’s just that the government makes it clear that if you let something through that you shouldn’t, you’re going to hear about it, and risk punishment. And it appears that’s exactly what’s happened to Microsoft:

China?s internet regulator rebuked LinkedIn executives this month for failing to control political content, according to three people briefed on the matter. Though it isn?t clear precisely what material got the company into trouble, the regulator said it had found objectionable posts circulating in the period around an annual meeting of China?s lawmakers, said these people, who asked for anonymity because the issue isn?t public.

As a punishment, the people said, officials are requiring LinkedIn to perform a self-evaluation and offer a report to the Cyberspace Administration of China, the country?s internet regulator. The service was also forced to suspend new sign-ups of users inside China for 30 days, one of the people added, though that period could change depending on the administration?s judgment.

Or, Microsoft/LinkedIn could do the right thing and tell the Chinese government “sorry,” and just stop doing business in China. The NY Times article even notes that LinkedIn doesn’t even get that much usage in China. So why bother with this hassle in a way that makes the company look so bad?

Also, I’ll just note the grand irony of Microsoft doing this just a week or so after Microsoft’s President Brad Smith testified before Congress on how “technology companies” must support “democracy.” Of course, in that context, Smith was just doing it to attack Google and the open web. But, hey, as long as it can get money from China, apparently all that “democracy” stuff isn’t so important to Microsoft any more.

Filed Under: censorship, china, great firewall, social media
Companies: linkedin, microsoft

Judge Tosses Laughably Stupid SLAPP Lawsuit The Trump Campaign Filed Against The NY Times

Defamation

from the because-it-was-never-meant-to-win dept

A little over a year ago we wrote about a laughably stupid SLAPP suit that the Trump campaign, represented by Charles Harder, filed against the NY Times. As we noted at the time, the lawsuit appeared to have no intention of succeeding — it was purely performative nonsense. The lawsuit claimed that an opinion piece by Max Frankel was defamatory because it noted that whether or not there was any explicit collusion between the Trump Campaign and Russia, it didn’t matter, since both sides seemed to expect certain outcomes and allowed them to act accordingly.

We also pointed out that the lawsuit completely misrepresented the article, pretending that Frankel’s thesis — again, that there didn’t need to be any explicit deal — was Frankel saying that there was “collusion” between the two. The case made no sense no matter how you looked at it. Frankel’s article was an opinion piece — and opinions aren’t defamatory. It didn’t allege what the campaign’s lawsuit says it alleged, and there was no way in hell it could possibly meet the actual malice standard necessary for defamation.

It took a year, but the Supreme Court of New York (which, contrary to its name, is more like a district court), has tossed out the lawsuit, though denying the NY Times’ request for sanctions against Harder. As we expected, this was not a difficult decision for the court to come to. First, it was obviously opinion, and thus not defamatory:

First, while the complaint alleges that the terms used in the article, such as ?deal? and ?quid pro quo,? are defamatory and false, Mr. Frankel?s commentary in his article is nonactionable opinion, and the overall context in which the article was published, in the opinion section of the newspaper, signaled to the reader that ?the broader social context and surrounding circumstances [indicate] that what is being read . . . is likely to be opinion, not fact.? Gross v. N.Y. Times Co., 82 N.Y.2d 146, 153 (1993) (internal quotation marks and citation omitted). This is because ?[t]he dispositive inquiry, under either Federal or New York law, is ?whether a reasonable [reader] could have concluded that [the articles were] conveying facts about the plaintiff.?? 83 N.Y.2d at 152 (alterations in original) (quoting 600 W. 115th St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 139 (1992)); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) (finding that statements of opinion are not actionable because ?there is no such thing as a false idea?).

Then there’s the actual malice problem — in that the campaign failed to make any real arguments that would show that Frankel knew his statements were false or were made with reckless disregard for the truth (meaning he had substantial doubts about their truth):

Third, even if Mr. Frankel?s commentary was actionable as factual assertions, and even if such assertions were of and concerning the Trump campaign, the complaint fails to allege facts sufficient to support the requirement that the Times published the challenged statements with actual malice, meaning ?knowledge that [the statements] were false, or [made] with reckless disregard for the truth.?… In this regard, bias, or ulterior motive does not constitute actual malice… This heavy burden exists because news organizations function as a platform for facilitating constitutionally protected speech on issues of public concern and courts will not impose defamation liability against these entities absent a clear showing of actual malice.

There was one other reason for the dismissal… which I am a bit confused about. The judge claims that the Campaign (the plaintiff in this case) has no standing, since the comments in the article were not about it:

Second, the challenged statements are not ?of and concerning? plaintiff, which is a necessary element for a defamation action. For example, in Lazore v. NYP Holdings, Inc., 61 A.D.3d 440 (1st Dep?t 2009), the Appellate Division, First Department dismissed a complaint alleging defamation because ?the offending statements were directed against a governing body . . . , rather than against its individual members.? 61 A.D.3d at *1. Further, a corporate entity has no standing to sue over statements that concern an entity?s employees or affiliates, but not the entity itself…. Here, the focus of Mr. Frankel?s column was the former President?s associates and family members, not the Trump campaign itself.

I find that a lot less compelling, since the thrust of the article was about the Campaign, as represented by the President’s associates and family members, but either way this case was getting dismissed for the other reasons.

As for sanctions, the judge rejects them… with no explanation at all. However, with New York now having a shiny new more useful anti-SLAPP law, I do wonder if the Times might now use that to seek fees…

Filed Under: 1st amendment, actual malice, anti-slapp, charles harder, defamation, donald trump, max frankel, new york, opinion, slapp, standing

Kentucky Senators Pass Bill That Would Make It A Crime To Say Mean Things To Cops

Free Speech

from the finally-getting-'contempt-of-cop'-added-to-the-law-books dept

A bill [PDF] that’s likely headed to a dead end at the governor’s desk or a state court targets protected speech that might make some cops angry. The bill may end up dead, but the Kentucky Senate still needs to explain how it let the bill pass, considering it contains this very, very stupid addition, presumably courtesy of the bill’s sponsor, Sen. Danny Carroll — a former police officer.

The bill converts free speech into a second degree misdemeanor. And it only targets speech that targets certain public employees.

Accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.

That’s right. Seven of ten Senators want to make it illegal to say bad things to police officers. Anything that “provokes” a cop is off-limits. And it assumes cops are “reasonable and prudent people.” Maybe they are. But “reasonable and prudent” public servants — especially those frequently engaged in heated situations where they’re supposed to be the keepers of peace — should have a higher bar to reach before they react to these undefined fighting words.

We should expect more from our cops. These state Senators want us to expect less. This conduct was never illegal before, but following protests in the state over killings by cops, people like Danny Carroll want to codify “contempt of cop.”

Carroll insinuates cops are weak individuals who aren’t able to keep their cool when confronted by unhappy members of the public. Maybe this is what’s actually true. And a law like this allows them to act on their worst impulses and — never mind the First Amendment — actually punish people for engaging in what should be protected speech.

Behold your jackbooted snowflakes, apparently in need of protection from… syllables.

“In these riots, you see people getting up in officers’ faces, yelling in their ears, doing everything they can to provoke a violent response,” Carroll said, according to the Louisville Courier-Journal.

Yeah. That’s kind of thing is going to happen during protests. And it’s not a crime anywhere. According to Carroll’s former cop mentality, it’s the people who need to be punished for making cops angry, rather than cops for violating people’s First Amendment rights.

The beatings will continue until police morale improves.

“I’m not saying the officers do that, but there has to be a provision within that statute to allow officers to react to that. Because that does nothing but incite those around that vicinity and it furthers and escalates the riotous behavior,” he continued.

Carroll could not be more wrong. Cops should not be “allowed” to “react” to angry people saying angry things — not by internal policy and very definitely not by state mandate. That’s not how the law works and that sure as shit isn’t how the Constitution works.

Everything Carroll offers in defense of his indefensible bill is… well, indefensible.

Carroll noted the bill wasn’t about limiting lawful protest “in any way, shape, form or fashion.”

“This country was built on lawful protest, and it’s something that we must maintain — our citizens’ right to do so. What this deals with are those who cross the line and commit criminal acts,” he said.

Ah, but it does limit lawful protests. It makes it illegal to say mean things to cops, which is something that happens at lawful protests. And no one crosses the legal line by being mean to cops. The law makes the logic of his statement conveniently circular. Make something that wasn’t previously illegal illegal and suddenly things that never “crossed the line” into criminality will now will cross the line into criminality.

Saying protesters shouldn’t do things that are illegal is incredibly disingenuous when you’re passing an anti-protest omnibus that makes angering a police officer using nothing more than words a criminal offense.

And that’s not the only thing the bill does. It redefines “riot” to mean any group of more than five people that “substantially obstructs law enforcement or other government functions.” It provides sentence enhancements for engaging in rioting even if the person did not directly engage in the riots but committed a crime anywhere else “with knowledge that a riot was occurring.” It denies probation or early release for anyone convicted of this new crime. It turns resisting arrest and obstructing traffic from misdemeanors to felonies if it occurs while a riot is taking place.

And it fights defunding efforts by mandating steadily increasing funding for law enforcement agencies:

Governmental entities responsible for the funding of the various law enforcement agencies shall maintain and improve their respective financial support to the Commonwealth’s law enforcement agencies…

It’s a whole pile of retaliation with some stupid dumped on top of it. These legislators think cops shouldn’t have to deal with the consequences of their actions — consequences that sometimes include violent riots. But then they don’t think cops should just have to stand there and take when angry people shout angry things at them. These legislators are wrong about almost all of this, but especially wrong about that. If the governor doesn’t send this pile of idiocy packing, a court will soon enough.

Filed Under: 1st amendment, insults, kentucky, police, speech, taunting

Iowa Prosecutors Move Ahead With Prosecuting A Journalist For Being Present At A Protest

Free Speech

from the those-people-are-interested-in-facts!-get-'em! dept

There’s an ongoing trial in (of all places) Iowa that cuts to the heart of First Amendment protections for journalists. Andrea Sahouri, an award-winning journalist for the Des Moines Register, was arrested last May during a protest resulting from the killing of an unarmed black man by Minnesota police officer Derek Chauvin.

Despite attempting to identify herself as a member of the press, Sahouri was hit with a tear gas canister, pepper sprayed, and arrested for “failure to disperse.” According to Des Moines police, Sahouri wasn’t wearing any press credentials, something that has been acknowledged by both Sahouri and her editor at the Register.

However, it’s also not clear at this point that any order to disperse had been given, making anyone — much less a journalist — subject to arrest for not immediately leaving the area. The lack of press credentials could be a problem, but it’s also being argued Sahouri was known by officers and should have been recognized as someone covering the protest, rather than participating in it. Journalists generally aren’t subject to orders to disperse.

Her newspaper issued this statement in its editorial against her prosecution:

Journalists cover protests to serve as the eyes and ears of the public, to ensure free speech and assembly rights are upheld and to seek out the truth of what unfolds, whether a protest is peaceful or violent and whether law enforcement’s response is viewed as proportional or excessive.

And this clash of press freedom vs. riot control isn’t limited to Iowa. It’s been happening all over the nation. Journalists have been targeted with riot control weapons as well as arrested for covering protests. And there are similar cases all around the nation, as the Register points out:

The U.S. Press Freedom Tracker has documented an alarming increase in arrests and detainment of journalists in 2020: at least 126, compared to nine in all of 2019. Most of them, like Sahouri’s, happened at protests as Americans took to the streets to demand change from their government, after the deaths of George Floyd and other Black Americans at the hands of police, and preceding and following the tumultuous November election.

Prosecutors believe they’re doing nothing wrong, even though testimony at the trial appears to show Sahouri was moving away from police officers and the area they were seeking to control when she was arrested. This is the defensive statement issued by the prosecutor’s office:

“We strongly disagree with how this matter has been characterized and will do our talking in the courtroom, which is the proper place to deal with this case.”

The talking in the courtroom has begun. And there’s already at least one troublesome detail. The officer performing the arrest could have presented an almost-indisputable record of the incident, but chose not to.

First, there’s the footage that’s actually available, which would appear to show the journalist moving away from police — something that suggests she was exiting the area in response to an order to disperse.

Sahouri and Robnett can be seen coming around the corner shortly before police, but the camera angle does not show the spot where they were actually arrested.

Then there’s the arresting officer, Luke Wilson, who — despite being engaged in crowd control efforts — decided none of it was worth documenting.

Wilson did not activate his camera for the arrest, and although it is possible to retrieve video after the fact, it was not done in time to save the footage from being overwritten. Wilson says he thought he activated the camera when he disembarked from a police vehicle, but didn’t notice in the resulting chaos that it was not on.

Seems like something you’d want to verify before entering a chaotic scene that implicates any number of Constitutional rights and criminal acts. But the officer claims it was so chaotic he couldn’t be bothered to expend the second or two needed to ensure his body camera was on. Even if we believe Wilson’s lack of recording was accidental, it shows officers aren’t following body camera protocol and will still choose to verify recording status only when it’s convenient to them.

Then there’s the police department itself. Its officers entered the scene broadcasting conflicting instructions:

Squad car public address systems can be heard in the background telling people to “disperse” and also “protest peacefully.”

So, it can’t be argued by the PD that a clear order to disperse had been given. If Sahouri wasn’t engaged in violent acts or non-peaceful protesting — something that’s not only unlikely given her position as a journalist, but also according to the footage available — the officers had no justification for this arrest. You can’t tell people to do both but only choose to arrest those that followed one of the two orders: peaceful protesters.

This case isn’t over yet. It will go before a jury. The facts don’t look good for the Des Moines PD, which not only arrested a journalist, but did so despite her following at least one of the conflicting orders being issued by officers.

It might be a stretch to say there’s been a concerted effort by law enforcement to target journalists during these protests. But it’s undeniable that some officers and agencies have deliberately gone after journalists merely for documenting crowd control efforts. No one willing to engage in unjustified force wants to have their actions documented. And when that’s the mindset, even those thoroughly protected by the First Amendment are considered enemies of the state.

Filed Under: 1st amendment, andrea sahouri, free speech, iowa, journalism, protests