Not A Good Look: Facebook's Public Policy Director In India Files A Criminal Complaint Against A Journalist For A Social Media Post

Free Speech

from the not-cool dept

In today’s insanity, Facebook’s top lobbyist in India, Ankhi Das, has filed a criminal complaint against journalist Awesh Tiwari. Tiwari put up a post on Facebook over the weekend criticizing Das, citing a giant Wall Street Journal article that is focused on how Facebook’s rules against hate speech have run into challenges regarding India’s ruling BJP party. Basically, the article said that Facebook was not enforcing its hate speech rules when BJP leaders violated the rules (not unlike similar stories regarding Facebook relaxing the rules for Trump supporters in the US).

Das is named in the original article, claiming that she had pushed for Facebook not to enforce its rules against BJP leaders because it could hurt Facebook’s overall interests in India. Tiwari called out Das’ role in his Facebook post, and it appears Das took offense to that:

In her complaint to the police, Das asked for an investigation to be opened against Tiwari for sexual harassment, defamation, and criminal intimidation. If charged and convicted, Tiwari could face fines as well as up to two years in prison for sexual harassment, up to two years for defamation, and up to seven years in prison for criminal intimidation, according to the Indian penal code.

The complaint appears to allege that she’s faced threats and harassment since Tiwari’s post:

In her complaint, Das said: ?Since August 14, I have been receiving violent threats to my life and body, and I am extremely disturbed by the relentless harassment meted out to me by the accused persons. The content, which even includes my photograph, is evidently threatening to my life and body and I fear for my safety as well as that of my family members. The content also maligns my reputation based on a news article and I am subjected to name-calling, cyber bullying and eve-teasing online.?

Even if this were true, teasing and name calling should not be criminal offenses. But, even more to the point, why is Tiwari being blamed for the action of others. He just posted a post, citing the WSJ article, and criticizing Das. Das has all the power in the world to simply… respond on Facebook (the company which she works for).

As the Committee to Protect Journalists notes, this is absurd. Das should drop these claims and apologize. I certainly recognize the impossible position Facebook is put in with regards to content moderation, and completely understand that there are multiple tradeoffs at play in how Facebook chooses to handle moderation of politicians around the globe. But none of that justifies taking out a criminal complaint. And Facebook’s response here is utter nonsense:

A Facebook representative told CPJ via email that the social media outlet takes the safety and security of its employees seriously, but said it does not comment on individual employee matters.

Sure, the complaint was taken out by Das, not Facebook, but Das is a representative of Facebook and this action reflects directly on the company.

Tiwari has now filed a counter complaint back against Das, which is not a great look either. His argument now is sort of the mirror image of Das’s, saying that since news of her criminal complaint has come out, he has faced threatening comments as well.

It seems like this is just a typical internet-style flame war, except the participants all think the police should be involved and their critics should go to jail. And that’s crazy. Take a breath everyone, drop the criminal complaints, and move on.

Filed Under: abuse, ankhi das, awesh tiwari, bjp, content moderation, criminal complaint, free speech, harassment, hate speech, india
Companies: facebook

Court Says First Amendment Protects Ex-Wife's Right To Publicly Discuss Her Ex-Husband On Her Personal Blog

Free Speech

from the [gestures-at-Dr.-Velyvis]-anyone-can-start-a-blog-on-Wordpress dept

What appears to be a very combative divorce between two very combative people in Marin County, California has reached the point of criminal charges. Not justifiable criminal charges, but criminal charges all the same.

Melissanne Velyvis has been very publicly documenting everything about her divorce proceedings and her ex-husband’s (Dr. John Velyvis) alleged domestic abuse. In an apparent attempt to silence her from discussing her personal life (which necessarily involved discussing his personal life), John approached a judge and secured a restraining order forbidding his ex-wife from publishing “disparaging comments.” Here’s Judge Beverly Wood making her feelings clear about Melissanne’s divorce-focused blogging:

“I really came into this hearing not wanting to issue this order and really hoping that I wouldn’t have to issue this order, but it has to stop,” Wood said, according to a transcript of the proceeding. “It really has to stop. And I need to tell you that if you don’t stop this, this can become a criminal matter. I don’t think you want to go there.”

The order was expansive. It not only banned future “disparaging” posts but ordered the removal of everything fitting that description Melissanne had posted in the past.

I am making an order that you remove any posting on social media on Internet regarding Dr. John Velyvis and that you not post anything on social media regarding Dr. Velyvis or his children directly or indirectly. […] I am going to order that you prevent disseminating any information about Dr. Velyvis to any parties absent a court order or subpoena.

Melissanne did not stop posting. Last December, Marin County prosecutors filed criminal charges over the violation of the restraining order. The prosecutor argued the prior restraint was Constitutional because the alleged harassment targeted by the order was unlawful.

Melissanne challenged the order. Seven months after being criminally charged for discussing her divorce and her ex-husband online, the restraining order has been dismantled by another county judge.

[Judge Roy] Chernus ruled on the petition on July 27. He agreed that the prior court order was an unconstitutional block on free speech, and said the criminal charge could not stand.

“In California, a court must find that ‘extraordinary circumstances’ exist in order to restrain the defendant’s right to share independently obtained information about another adult with other willing adults,” Chernus wrote. “The fact the public sharing of these comments might be humiliating to the targeted adult, or cause emotional distress or even cause harm to the subject’s professional reputation, does not rise to the level of a compelling or extraordinary circumstance.”

The ruling [PDF] (thanks, Volokh Conspiracy!) makes it clear the order is only unconstitutional as far as it applies to Melissanne’s online postings. Other elements regarding “unwanted contact” still apply.

The court cites a handful of other divorce proceedings in which similar restraining orders were found unconstitutional. Just because one of the parties may feel harassed by the other party’s discussion of ongoing acrimony doesn’t make it unlawful for the party to engage in this speech. Unless the speech falls into narrow categories (like defamation or true threats), the speech is Constitutionally protected.

There is nothing on the face of the complaint, or in the Family Court judge’s judicially-noticed findings of fact to indicate any of defendant’s communications were previously found to be defamatory.

As stated in the DVPO, the Family Law judge found that defendant’s statements about Dr. Velyvis were intentionally harassing, damaged his reputation and interfered with his personal relationships.

Based on the authorities discussed above, these reasons are insufficient to justify such a broad prohibition. The court finds that the portion of the DVPO restraining defendant from posting on the internet or communicating any information about defendant’s ex-husband or his children is impermissibly overbroad and constitutes an invalid prior restraint under the federal and California constitutions.

Since the order is invalid, so is the criminal charge.

Violation of this portion of the DVPO, therefore, is not an actionable offense.

The protective order can still be violated but it can no longer be violated simply by posting content Dr. John Velyvis feels is disparaging or personally harmful. The First Amendment — and California’s own Constitution — protects the right of divorce participants to make each other as miserable as possible. Which is as it should be, since divorce is just as much an American tradition as free speech itself.

Filed Under: 1st amendment, california, divorce, free speech, john velyvis, marin, melissanne velyvis

Why Keep Section 230? Because People Need To Be Able To Complain About The Police

Free Speech

from the discourse-demands-it dept

The storm has passed and the charges have been dropped. But the fact that someone who tweeted about police behavior, and, worse, people who retweeted that tweet, were ever charged over it is an outrage, and to make sure that it never happens again, we need to talk about it. Because it stands as a cautionary tale about why First Amendment protections are so important ? and, as we’ll explain here, why Section 230 is as well.

To recap, protester Kevin Alfaro became upset by a police officer’s behavior at a recent Black Lives Matter protest in Nutley, NJ. The officer had obscured his identifying information, so Alfaro tweeted a photo asking if anyone could identify the officer “to hold him accountable.”

Several people, including Georgana Szisak, retweeted that tweet. The next thing they knew, Alfaro, Sziszak, and several other retweeters found themselves on the receiving end of a felony summons pressing charges of “cyber harassment” of the police officer.

As we’ve already pointed out, the charges were as pointless as they were spurious, because they themselves directly did the unmasking of the officer’s identity, which the charges maintained was somehow a crime to ask for. Over at the Volokh Conspiracy, Eugene Volokh took further issue with the prosecution, and in particular its application of the New Jersey cyber harassment statute against the tweet. Particularly in light of an earlier case, State v. Carroll (N.J. Super. Ct. App. Div. 2018), he took a dim view:

N.J. Stat. 2C:33-4.1a(2), under which Sziszak is charged, provides, in relevant part,

A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person ? knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person.

According to the criminal complaint, the government’s theory is that the post “caus[ed] Det. Sandomenico to fear that harm will come to himself, family and property.”

But the Tweet (and the retweet) aren’t “lewd, indecent, or obscene.” … [And] if the “lewd, indecent, or obscene” element isn’t satisfied, N.J.S.A. 2C:33-4.1(a)(2) doesn’t apply regardless of whether it was posted with the intent to “caus[e] Det. Sandomenico to fear that harm will come to himself, family and property.”

These “cyber harassment” statutes are often problematic, targeting for punishment what should be protected and often socially valuable critical speech. Cases like these, where they get applied to criticism of state power, highlight the Constitutional concern. Being able to speak out against the state is at the heart of why we have the First Amendment, and laws interfering with that ability offend the Constitution. In this case, even if the New Jersey law had been drafted in a sufficiently narrow way to not be unconstitutional on its face by ? in theory ? only targeting speech beyond the protection of the First Amendment, applying it in this way to speech that should have been protected made it unconstitutional.

But while it’s bad enough that the original tweeter had been targeted by the police for his speech, the aspect of the story that is most worrying is that police also targeted for prosecution people who had simply retweeted the original tweet. Section 230 should have barred such prosecutions. And before we so casually chuck out the statute, as so many propose, we need to understand why it should have applied here, and why it is so important to make sure that it still can in the future.

The First Amendment and Section 230 both exist to foster discourse. Discourse is more than just speech; it’s the exchange of ideas. The First Amendment protects their expression, and Section 230 their distribution. Especially online, where speaking requires the facilitation of others, we need both: the First Amendment to make it possible to speak, and Section 230 to make it possible to be heard.

This case illustrates why it is so important to have both, and why Section 230 applies, and must apply, to more than just big companies. Here, someone tweeted protected speech to notify the community of concerning police behavior. Section 230 ensured that the Internet platform ? in this case, Twitter ? could exist to facilitate that speech. And it’s good that Section 230 meant that Twitter could be available to play that role. But Alfaro only had 900 followers; Twitter helped him speak, but it was the retweeters who turned that speech into discourse by helping it reach the community. They had just as important a role to play in facilitating his speech as Twitter did, if not even more so.

It’s important to remember that the statutory text of Section 230 in no way limits its protection to big Internet companies, or even to companies at all. It simply differentiates between whoever created the expression at issue (and can thus be held to answer for it) and who facilitated its distribution online (who therefore can’t be). Given how important that facilitation role is in having meaningful public discourse, we need to ensure that everyone who performs it is protected. In fact, it may be even more important to ensure that individual facilitators can maintain this protection than the larger and more resourced corporate platforms who can better weather legal challenges.

Think about it: think about how many of us share content online. Many of us may even share far more content created by others than we create ourselves. But all that sharing would grind to a halt, if we could be held liable for anything allegedly wrong with that content. Not just civilly, but, as this case shows, even criminally.

And that chilling is not a good thing. One could certainly argue that people should take more care when they share content online and do the best they can in vetting it before sharing it, to the extent it is possible. Of course, it could also be fairly said that many people should use their right to free speech more productively than they necessarily do. But the reason we protect speech, even low-value speech, is because we need to make sure that the good, socially beneficial speech we depend on to keep our democracy healthy can still get expressed too. Which is also why we have Section 230: it is not possible to police all the third-party created content we intermediate, and if we want to make sure that the good, socially beneficial content can get through, to reach the people who need to hear it, then we need to make sure that we don’t have to. When we snip away at Section 230’s protection, or limit its application, we obstruct that spread and curtail the discourse society needs. We therefore do so at our peril.

Obviously in this case Section 230 did not prevent the attempted prosecution. Nor did the First Amendment, and that the police went after anyone over the tweet was an unacceptable abuse of authority that imposed an enormous cost. Discourse was damaged, and the targeted Twitter users may now think twice before engaging in online discourse at all, much less discourse intending to keep state power in check. These are costs that we, as a society, cannot afford to bear.

But at least by having both of these defenses available, the terrible toll this attempted prosecution took was soon abated. Think about how much worse it would have been had they not been. And ask why that is a future we should be continuing to spend any effort trying to invite. Our sole policy goal should be to enhance our speech protections, to impose costs on those who would undermine public discourse through their attempts at abusive process. The last thing we should be doing is taking steps to whittle away at them and make it any easier to chill discourse than it already is, and cases like this one, where people were trying to speak out against abuses of power, illustrate why.

Filed Under: criminal charges, georgana sziszak, kevin alfaro, new jersey, nutley, protests, retweets, section 230

Judge Forbids Facebook Users Being Sued By A Cop From Publishing The Cop's Name On Social Media

Defamation

from the [insert-Big-Lebowski-quote] dept

Eugene Volokh reports an Ohio court has hit a number of defendants in a libel lawsuit with an unconstitutional order forbidding them from posting the name of the man suing them. It’s no ordinary man, though. It’s a police officer who several attendees of a Cincinnati city council meeting have both identified and claimed used a racist hand sign while interacting with them.

A veteran Cincinnati police officer sued several citizens in early July, accusing them of defamation in a closely watched case that could be the beginning of a trend of police officers going after critics in court.

Several citizens accused the officer of possibly being associated with white supremacy or of being racist after spotting a video and picture of him allegedly flashing the “ok” sign at a City Council meeting in June – a meeting held to address concerns by those in the Black Lives Matter Movement.

They posted about it on Facebook and other online forums, leading the officer to file his lawsuit.

Nothing all that unusual about this. Someone with pretty thin skin was offended that other people said mean things about him and decided to sue about it. That the plaintiff is a police officer is a little different, but not unheard of. That the police officer talked a judge into allowing him to file pseudonymously and place his affidavit under seal is a bit stranger. From there, it just gets stranger and more unconstitutional

This is from Volokh:

I’ve also learned that the judge has issued a temporary restraining order—without any participation on the defendants’ part—ordering them not to “publiciz[e], through social media or other channels, Plaintiff’s personal identifying information.” The order doesn’t define “personal identifying information,” but the only Ohio statute that does define term (the identity fraud statute) defines it to include a person’s “name.”

Thus, the bloggers are banned from mentioning the police officer at all. They aren’t just banned from libeling him; even a post conveying accurate information, or expressing an opinion, about the police officer is forbidden, if it mentions the officer’s name.

This order [PDF] only targets future posts. That’s some prior restraint right there. And while the judge may have meant no one can publish anything like the cop’s home address or personal phone number, the lack of specificity allows it to be read as banning the use of the officer’s name.

Not that it’s all that difficult to figure out who this officer is. Multiple attendees (who are now defendants in this lawsuit) posted the officer’s name online and linked to what appears to be the officer’s Facebook account. Searching through the defendants’ social media profiles brings up the posts referring to the officer by name.

The officer’s Facebook page has had all of its posts deleted. The header image has been replaced with this, which appears to be a direct response to those accusing him of flashing the “ok” sign at the city council meeting.

Officer Ryan Olthaus — who was involved in the controversial killing of Dontez O’Neal in 2012 — goes by the name “Michael Ryan” on his Facebook page. The pseudonym being used in the lawsuit against these social media users is “M.R.”

That all seems to add up to Officer Pseudonym. His lawyer seems to feel the current, possibly unconstitutional order doesn’t go far enough, though. The officer would also like to see the defendants forced to remove any previous posts about him. His attorney argues the posts are libelous because [checks filing] they were made by people who don’t like cops.

Defendants posted these statements on their social media platforms, accusing Plaintiff of being a white supremacist in a climate of severe hostility toward police officers. Further, at least one Defendant threatened to dox Plaintiff — to reveal his personal identifying information online — seemingly for sport. Other posts include, “Fuck SWAT,” “Fuck 12,” “ACAB”, “1312” and many similar statements evidencing the Defendants’ hatred and malice toward the police, including the Plaintiff.

The court hasn’t ruled that any of the posts being sued over are actually libelous. So, at this point, the officer has no legal basis to demand their removal. The officer has already been granted one broad restriction on the posting of his personal information (which includes his name) by the suit’s defendants. Now, he wants to go even further. And he wants to do it while keeping his name from being tied to his dubious litigation.

Eugene Volokh (along with the Cincinnati Enquirer) are asking the judge to unseal the documents. And hopefully the defendants will challenge the restraining order and make the court rethink (or perhaps consider thoughtfully for the first time) its blanket ban on publishing this officer’s personal information.

Filed Under: 1st amendment, cincinnati, criticism, defamation, free speech, ohio, police, prior restraint, ryan olthaus

Clearview Hires Prominent First Amendment Lawyer To Argue For Its Right To Sell Scraped Data To Cops

Privacy

from the weird-but-possibly-consitutional dept

Clearview — the facial recognition company selling law enforcement agencies (and others) access to billions of photos and personal info scraped from the web — is facing lawsuits over its business model, which appears to violate some states’ data privacy laws. It’s also been hit with cease-and-desist requests from a number of companies whose data has been scraped.

What was once a toy for billionaires has become a toy for cops, who are encouraged to test out the software by running searches on friends and family members. Clearview claims it’s been instrumental in fighting crime, but evidence of this remains nonexistent.

Now, the company appears to be going on the offensive. Clearview has already argued — through its legal rep, Tor Ekelund — that Section 230 of the CDA insulates it against lawsuits over its use of third-party content. It’s a novel argument, considering Clearview isn’t actually the third party. That would be the original hosts of the content. Clearview is something else and it’s not clear Section 230 applies to these lawsuits, which are about what Clearview does with the content, rather than over the content itself.

The New York Times reports Clearview has hired a prominent First Amendment lawyer — one that has defended the paper in the past — to make the argument that selling government agencies data scraped from the web is protected speech.

Floyd Abrams, one of the most prominent First Amendment lawyers in the country, has a new client: the facial recognition company Clearview AI.

[…]

“Floyd Abrams is without peer as the nation’s pre-eminent First Amendment attorney, and it is clear that there are potentially groundbreaking First Amendment issues relating to the cases involving Clearview AI,” said Lisa Linden, a spokeswoman for the company.

Abrams is the lawyer who gave us the Citizens United decision — the one that allows companies and other “non-persons” to express their political beliefs through unrestricted campaign donations. If the arguments fall along these lines, Abrams will be claiming that Clearview has the First Amendment right to “talk” about other people to government agencies and private customers. If people want to talk about themselves on the open web, Clearview can’t be prevented from “discussing” what it’s observed with anyone who asks questions about who these people are. Of course, Abrams was also a lawyer for Hollywood who insisted that copyright being used to take down websites, while possibly censoring speech, wasn’t really a 1st Amendment concern, which has always raised questions about how committed he is to the 1st Amendment as opposed to just supporting the interests of his clients.

Abrams was unaware of Clearview before being asked to represent it. The Times notes the lawyer doesn’t even own a smartphone. But he’s willing to push a First Amendment argument that roughly aligns with those made by other law enforcement tech companies: that collecting data en masse from public places and selling access to this data to the government is protected speech.

Mr. Abrams said that in his view, while the technology involved was novel, the premise of the cases was a company’s right to create and disseminate information.

This may be protected under the First Amendment, but it’s not all that useful to its Section 230 arguments. The lawsuits it’s facing deal with what Clearview does with the content it scrapes, not the content itself, so the Section 230 argument seems pointless. The First Amendment question is far more interesting. And, as odious as the company is, limiting its right to gather and disseminate data by trimming back the First Amendment would likely result in a lot of unpleasant collateral damage.

Filed Under: 1st amendment, facial recognition, floyd abrams, free speech, privacy
Companies: clearview, clearview ai

Devin Nunes Is Still Suing A Satirical Cow & A Political Consultant, But Judge Rejects Attempt To Bring Twitter Back

Free Speech

from the will-it-ever-end? dept

Back in June, we wrote about how a judge had sided with Twitter in the very first of Rep. Devin Nunes’ long series of frivolous SLAPP suits, saying that the company was clearly protected from lawsuit by Section 230 and that it did not need to reveal the identity of the two satirical Twitter accounts who had mocked Devin Nunes so mercilessly that he decided to ignore his oath to protect the Constitution (which, last I checked, still includes the 1st Amendment) and sued.

Some assumed that this was the end of the lawsuit. It was not. First of all, the lawsuit against the two satirical accounts (one claiming to be Devin Nunes’ cow and one claiming to be Devin Nunes’ Mom) along with political consultant Liz Mair, were still alive and kicking unfortunately. But also, Nunes is still attempting to bring Twitter back into the case. He has filed a proposed amended complaint that his lawyer — the ever ridiculous Steven Biss — argues should get around Section 230 and make Twitter a party to the lawsuit. And… just as I originally finished writing this story, Judge John Marshall rejected that attempt. At around the same time, Liz Mair has filed her attempt to get the case against her dismissed in both this case, as well as in the second case Nunes filed against her.

Let’s start by looking at the proposed amended complaint. As “amended complaints” go, following a judge completely dismantling your legal arguments, this is… not very amended. Indeed, I scrolled through both the original and the amended complaint and they appear to be identical, page for page (if there are any changes, they are so minor as to be cosmetic, and I couldn’t see any), right up until the very, very end. While the original complaint had five claims (negligence, defamation per se, insulting words, common law conspiracy, and injunction), the new one has… six. After it includes the identical (as far as I can tell) first five claims, it adds in a sixth: “aiding and abetting.” This is Biss’s weak ass attempt to bring Twitter back into the case and get around Section 230:

Twitter aided and abetted the defamation of Nunes, the violations of § 8.01-45 of the Code, and the conspiracy by Mair, Mair Strategies, @DevinNunesMom and @DevinCow. It is, therefore, jointly liable for those torts….

Twitter actively participated in, aided and abetted Mair, Mair Strategies, @DevinNunesMom and @DevinCow?s intentional torts by (a) knowingly hosting and monetizing the abusive, hateful and defamatory content ? providing both a voice, exposure to a massive audience and financial incentive to the defamers ? thereby material contributing to the defamation, (b) using its algorithms and targeting capabilities to surreptitiously and deceptively shadow-ban Nunes, impeding his speech, and, thereby, amplifying the defamation of Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others, (c) intentionally abandoning and refusing to enforce its Terms of Service and Twitter Rules against Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes with the express purpose to facilitate the defamation, (d) completely ignoring lawful complaints about offensive content and by allowing that content to remain accessible to the public and to be republished, (e) by permitting its platform to be populated and used by bots whose sole purpose it was/is to republish the false and defamatory statements by Mair, Mair Strategies, @DevinNunesMom, @DevinCow and others who post defamatory statements about Nunes, (f) by selectively encouraging defamation of Nunes in order to further a left-wing political agenda, to undermine public confidence in Nunes and to benefit his opponents and opponents of the Republican Party. In this case, Twitter contributed materially to the illegal conduct of defamers Mair, @DevinNunesMom and @DevinCow. Twitter provided a ?public square? for these Democratic political operatives. Twitter intended to generate and proliferate the false and defamatory statements about Nunes in order to influence the outcome of the 2018 Congressional election and to intimidate Nunes and interfere with his important investigation of Russian involvement in the 2016 Presidential Election. Twitter used its platform, including its proprietary algorithms, selectively to convey its corporate/institutional viewpoint, its position on issues and candidates for office, such as Nunes, to influence the outcome of elections, such as the 2018 election for California?s 22nd Congressional District, and as a dumping ground for opposition research.

This is… not how any of this works. At all. You can’t just ignore Section 230 by claiming a website “aided and abetted” the bogus other claims you’re arguing.

And thus it did not take long for Judge Marshall to reject this in a short letter — not even getting at the ridiculous amended complaint, but rather pointing out that Biss is just bad at his job and filed his request for leave to amend way too late:

The Plaintiff in oral argument on the motion to dismiss referenced leave to amend to file an amended complaint even though there was no notice of hearing filed for that to be heard on June 12, 2020. The Plaintiff did not file a motion for leave to amend to add a count against Twitter until July 28 four days after the order had been entered dismissing Twitter from the case and over a month after Plaintiff had been notified of the dismissal of Twitter by the court’s opinion letter.

The court denies Plaintiff’s request for leave to amend as the dismissal of Twitter as a defendant occurred prior to the filing of a motion for leave to amend.

In other words, as will be no surprise to regular readers of this saga, Steven Biss is bad at his job.

As for Mair, she is trying to (quite rightly) get out of both of the nonsense SLAPP suits that Nunes has filed against her, and her arguments in both cases is the legal equivalent of “WTF is this, I don’t even…” but in legalese.

First, many (if the “statements” addressed in the Complaint consist only of hyperlinks or editorialized descriptions, rather than the exact words of the alleged defamatory statement. Count II must be dismissed as to each and every one of these statements: “Good pleading requires that the exact words spoken or written must be set out in the declaration in knee verba. Indeed, the pleading must go further–that is, it must purport to give the exact words.” … Particularly in a case brought by an elected official against private citizens who dared to challenge his qualifications for office, the core requirements of defamation law must be respected.

Then her lawyer points out that even if Nunes had shown defamatory statements by Mair, which he has not, he hasn’t shown actual malice (which means that Mair knew they were false, or said them with reckless disregard to whether or not they were true), which is the required standard for defamation of a public figure. The actual malice standard — for very good reason — is where many vexatious SLAPP suits go to die:

As the Virginia Supreme Court has recognized, “the burden of proving ‘actual malice’ is upon the plaintiff[,] who must demonstrate by clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement.”… This demanding standard applies with full force even where criticism “include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”…

The Complaint fails that standard. Its allegations of “actual malice” are conclusory and thus inadequate…. This deficiency is not cured by Rep. Nunes’s repeated allegations that Mair harbored “hate[],” “disdain,” and “ill will” towards him…

In fact, the Complaint’s non-conclusory allegations defeat an inference of actual malice…. Most of Mair’s allegedly defamatory statements were based directly on news reports and court filings whose truth Mair had no reason to doubt…. There is thus no valid basis to infer that she acted with a “high degree of awareness of probable falsity.”

And then, of course, there’s the other reason why most SLAPP suits from angry, insecure, brats tend to fail: what they got mad about is usually someone’s opinion. As it was here.

Here, many of the alleged defamatory statements by Mair rank as opinions. Those include (but are not limited to) declaring that Rep. Nunes is “a clown with big league ethical issues,” calling him “Dirty Devin,” deeming controversial use of PAC funds to be “a legal problem, not just an ethical or optics-related one,” stating that Rep. Nunes should be held accountable for “having voted for warrantless wiretapping and unlimited surveillance of Americans’ emails ([including] Carter Page’s),” and stating that Congress should “prioritize review of Rep. Nunes’ investment and involvement in the Alpha Omega Winery, and the facts reported by the Fresno Bee.” None of these statements can be described as objectively “true” or “false.” Each is a subjective opinion and thus shielded by the First Amendment.

That conclusion is confirmed by context. Mair was commenting in the political arena about the news of the day, and “[p]otentially defamatory statements” that are “made during the course of an ongoing public controversy” are “likely to be understood to be rhetorical opinion” rather than “assertions of fact.” Judge Robert D. Sack, 1 Sack on Defamation: Libel, Slander, and Related Problems…. If Rep. Nunes is allowed to hold citizens liable for expressing political opinions, then Americans throughout the Nation will face legal peril as they engage in democracy.

There’s a lot more in the response but those are the key points on the defamation claims. The other claims are just silly add-ons that are just attempts to add emphasis and try to get around the obviously bogus defamation claims. I will note the dismantling of the “conspiracy” claims is particularly fun:

In his efforts to establish a conspiratorial agreement, Rep. Nunes relies mainly on allegations that three of the Defendants tweeted about similar subjects and occasionally retweeted or liked each other’s tweets…. But if that were the standard, millions of Americans would be shocked to learn that they are enmeshed in all manner of conspiracies. It would not comport with the First Amendment of the US. Constitution–or Article I, Section 12 of the Virginia Constitution–to treat routine political speech on social media as a coordinated plot.

Mair does try to make use of Virginia’s (unfortunately weak, though hopefully soon to change) anti-SLAPP law. The argument in the satirical tweets lawsuit also includes the fact that Nunes appears to have sued Mair over the same basic points in his second SLAPP lawsuit (the one against McClatchy and Mair) saying that he’s trying to get two shots at this same issue in separate courts — and says it’s “improper claim splitting.”

In the filing to get out of that other case, Mair notes that this time she’s only being sued for an alleged conspiracy, which is also utter nonsense:

This lawsuit is a direct assault on the freedom of speech. Devin Nunes (a Member of Congress) has sued Liz Mair (a private citizen) for tweeting articles critical of his conduct while in public office–and for sharing an opinion critical of him with a reporter at McClatchy.

Nunes does not allege in this case that Mair committed defamation. Instead, he seeks to hold Mair liable for allegedly defamatory statements published by McClatchy. To do so, he posits that Mair somehow entered into an illegal conspiracy with McClatchy. But the most essential element of any conspiracy claim is an agreement–a meeting of the minds–to carry out unlawful acts together. And the Complaint comes nowhere close to adequately alleging the existence of such a conspiratorial agreement: it fails to allege the requisite details about when, where, and how this agreement supposedly came into being; it papers over those defects with conclusory assertions; and it resorts to exceedingly unreasonable inferences from a mere handful of factual allegations. Simply put, sharing political opinions with a newspaper–and then tweeting, retweeting, and liking relevant articles by that newspaper–do not suggest the existence of an illegal conspiracy. They are signs that we live in a democracy where people can express political opinions and criticize elected officials on social media platforms. For good reason, no court has ever upheld a conspiracy theory–based mainly on tweets and retweets–like the one that Nunes has advanced here.

That is reason enough to dismiss the Complaint. Yet there is more: in order to impose liability on Mair for allegedly conspiring with McClatchy to defame him, Nunes must adequately allege that McClatchy actually defamed him. None of the alleged defamatory statements described in the Complaint, however, are actually defamatory: most of them are not pleaded with their exact words and so must be dismissed; Nunes has failed to allege that any of them was published with actual malice; and most of them are categorically non-actionable as a matter of law.

It is ridiculous that these cases have gone on this long and are still continuing. For what it’s worth the @DevinCow account has a GoFundMe campaign set up for its legal fees, and Mair is accepting funds via her Swamp Accountability Project page.

One hopes the judges in these two cases recognizes how insane all this is and benchslaps Nunes and Biss.

Filed Under: 1st amendment, anti-slapp, defamation, devin nunes, devin's cow, free speech, liz mair, satire, section 230, slapp, steven biss
Companies: twitter

Tweeters Were Criminally Charged For The Crime Of Trying To Identify A Police Officer… Who The Police Revealed In The Charging Docs

Free Speech

from the that's-DETECTIVE-'This-Bitch,'-mister dept

The Nutley, New Jersey Police Department fears for the safety of its officer. It fears so much it tried to bring criminal charges against people who retweeted a tweet asking Twitter users to identify an officer who was policing a protest. Georgana Sziszak is one of the five people charged for interacting with the tweet, as Adi Robertson reports for The Verge.

The Nutley Police Department filed its complaints in late July over a tweet posted during a June 26th protest. The now-deleted message included a photo of a masked on-duty police officer with a request that “If anyone knows who this bitch is throw his info under this tweet.” Because of the mask, the officer is not readily identifiable from the photograph, and there do not appear to be any replies revealing his identity.

The original poster and the retweeters are charged with cyber harassment, a fourth-degree felony punishable by up to 18 months in jail. Activist Georgana Sziszak, one of the retweeters, revealed the complaint in a GoFundMe campaign last week.

The original poster didn’t find any takers for their request for the identity of the masked officer. The Nutley PD has, however, doxed its own officer by filing this criminal complaint. Here’s the tweet — since deleted — asking for the officer’s identity:

If you can’t read/see the tweet, it says:

If anyone knows who this bitch is throw his info under this tweet

The Nutley PD knows who “this bitch” is and has provided all the info the original tweet was seeking:

The department charged Sziszak and others on behalf of Detective Peter Sandomenico, who the complaint identifies as the officer in the tweet. It alleges that the photo and accompanying caption threatened the officer “acting in the performance of his duties, causing Detective Sandomenico to fear that harm will come to himself, family, and property.”

Yes, it’s decorated officer Peter Sandomenico — an officer whose salary is 884% higher than the median salary in the town he serves. Sandomenico was once honored by the department for “going above and beyond” and was photographed receiving this really vague commendation. He was also photographed twice for NJ Cops Magazine, where he attended a ceremony honoring Nutley’s “Police Officer of the Year.” Sandomenico is a state delegate for his police union.

Like far too many officers around the nation, Peter “PJ” Sandomenico appears to have removed anything identifying him personally while working at the protest in Nutley. This sort of thing never plays well with the public, which often responds by crowdsourcing officer info — not necessarily to harass officers but to let officers know their efforts to dodge accountability have been undone.

Of course, after this story started getting attention, the Essex County Prosecutor’s office announced it was dropping the charges with a weak excuse:

The prosecutor?s office confirmed the five people who were charged and told the Asbury Park Press on Friday that ?we concluded there was insufficient evidence to sustain our burden of proof.?

Even though the charges were dropped, this was still a blatant attack on the 1st Amendment rights of protesters — many of whom may now be scared off from documenting law enforcement activities during these protests out of fear of facing a similar nuisance fight.

The First Amendment protects the right to photograph on-duty officers. It also protects the speech that accompanied the tweeted photo, which only asked for someone to identify the cop, not to encourage violence against the officer. The imagined parade of horrors springing from the identification of Detective Peter “PJ” Sandomenico belongs solely to the minds at the Nutley Police Department, which provided info that the five charged Twitter users failed to dig up. Great job, guys! Perhaps the PD will again be cited for going above and beyond by violating the Constitution to protect an unidentified officer the PD decided to identify on its own. Presumably when the PD does it, it results in less fear for Sandomenico’s safety.

Filed Under: 1st amendment, chilling effects, criminal charges, free speech, intimidation, new jersey, nutley, protests

Hong Kong Uses New National Security Law To Arrest Prominent Pro-Democracy Media Tycoon

Free Speech

from the exactly-the-reason-the-law-was-writtenq dept

Hong Kong’s new national security law — foisted upon it by the Chinese government — has nothing to do with securing the nation and everything to do with silencing pro-democracy voices. It criminalizes advocating for secession from China, as well as other forms of dissent, under the bogus theory that speaking out against the government makes Hong Kong — and China — less secure.

Basically, the new law equates dissent with terrorism and punishes accordingly. Life sentences possibly await arrested pro-democracy protesters and advocates. The government has put its words into action, using the new law to effect dozens of arrests. But one recent arrest shows the Chinese government doesn’t care what the rest of the world thinks about its anti-democracy tactics.

In the highest-profile attack yet on free speech and press freedom in Hong Kong, police on Monday arrested Jimmy Lai, a prominent pro-democracy media tycoon, and raided the offices of his newspaper, demonstrating China’s resolve to silence dissent and bring the city to heel.

The government claims it wants to ensure the safety of residents and shut down riots. But the law, in practice, means arresting one of the most recognizable pro-democracy advocates — one who’s run a successful business for years and has met with prominent politicians around the world. This arrest is China racking the slide of its anti-freedom shotgun, letting the rest of its citizens know that no one is untouchable.

The entire arrest was recorded by employees of Lai’s newspaper, the Apple Daily. As officers carted away “evidence,” they took time to threaten those witnessing the raid.

The live footage showed a tense scene in the newsroom. When an editor demanded to know the exact boundaries of the area being searched, he was shoved by shouting officers. “Remember his face,” an inspector said, raising his index finger. “If he still behaves like this, give him a warning. And if he doesn’t listen to the warning, arrest him.”

Livestream footage also showed plainclothes officers at a restaurant owned by one of Mr. Lai’s sons in Hong Kong’s Central district. The officers loaded a crate filled with electronic devices they had seized into a private vehicle and did not respond when reporters asked if they were national security officers and whether they had search warrants.

While Lai faced charges earlier this year for participating in “unauthorized” protests, this arrest has everything to do with the new law. Lai is accused of “colluding with a foreign country or external elements” — something that’s vague enough to cover the everyday elements of his international business dealings. The New York Times notes Lai visited Washington, DC last year to meet with the Vice President and the Secretary of State, but the new law supposedly only applies to activities occurring after its implementation this June.

Hong Kong will not remain democratic or independent. The Chinese government will run it the way it runs China. The Chinese government agreed to limit its interference into Hong Kong’s governance for fifty years when it acquired it from Great Britain. It may not have to replace the Hong Kong government with its own to achieve its goals. With laws like this — and the acquiescence of Hong Kong political leaders — the Chinese government can violate the spirit of the agreement for next 27 years without violating the letter of its “hands-off” assurances to the British government and the residents of Hong Kong.

Filed Under: censorship, china, democracy, free speech, hong kong, intimidation, jimmy lai, national security, pro-democracy

San Diego Police Officers Are Using An Old Sedition Law To Punish People For Swearing Around Cops

Legal Issues

from the fuck-the-police-but-especially-these-guys dept

It’s pretty well established that offensive hand gestures are covered by the First Amendment, even when it’s a cop receiving the finger. This free speech has resulted in “contempt of cop” arrests and citations, but there hasn’t been a federal court yet willing to recognize a police officer’s “right” to remain unoffended. And if the First Amendment is violated by cops in retaliation for flipping the bird, there’s going to be some Fourth Amendment violations as well.

Somehow the Constitution hasn’t gotten around to removing a terrible law from the books in San Diego, California. In this city, it’s still a criminal act to say rude things within hearing distance of a cop. (It’s actually illegal if anyone can overhear it, but only police officers have the power to turn something mildly offensive into a criminal citation.)

On the morning of July 15, 2019, Jawanza Watson and a coworker were walking to the coworker’s car after finishing their shifts at Firehouse Bar in downtown San Diego. It was close to 2 a.m.

“I was drunk, you know. I was having a good time. I know that I was feeling myself,” Watson, who now lives in Minneapolis, told VOSD. “And I was rapping a song, but it had cursing in it.”

Watson remembers a police car rolling up slowly beside him and his coworker, windows down. An officer got out and stopped Watson, he said, claiming that the lyrics he’d been singing had been directed at the police.

[…]

The officer wound up giving Watson a ticket for violating section 56.30 of the city code, which reads: “(It) is declared to be unlawful for any person within the said City of San Diego to utter or use within the hearing of one or more persons any seditious language, words or epithets.”

Yes, this law — which has been in effect since 1918 (the same year the federal government passed its Sedition Act, which led directly to the “fire in a crowded theater” trope) — is still being used by cops in San Diego to punish people for saying things the cops don’t like.

The enforcement of this law appears to be an SDPD crime of opportunity. Records obtained by the Voice of San Diego show the PD has handed out “seditious language” citations 83 times since 2013. The only records containing any information about citizens cited show that 8 of 11 recipients of seditious language tickets in 2018 were Black.

Is it seditious to sing rap lyrics out loud? Is it seditious to direct those lyrics at a cop, as was claimed by the officer citing Jawanza Watson? Of course not. It can only be criminal if it’s linked to an “imminent crime” against the government. Being drunk and boisterous in public can be its own criminal violation, but rapping out loud is just free speech. Unfortunately, no one in San Diego has raised a Constitutional challenge yet, allowing the outdated law to live on.

There’s been no Constitutional challenge because the cops abusing the law are somewhat smart about it. They downgrade the charge to a criminal infraction, ensuring no misdemeanor paperwork will be filed and make its way to the prosecutor’s office. Anything along those lines might result in someone lawyering up and getting this tool of official harassment struck down. Local prosecutors seemed to be about as surprised by the law’s existence as the recipients of these tickets.

Hilary Nemchik, a spokeswoman for the San Diego city attorney’s office, which prosecutes misdemeanors, said her office hadn’t been aware police were enforcing a section of the municipal code prohibiting seditious language. She called it “antiquated” and said deputy city attorneys would not prosecute anyone for it.

It’s not just one cop’s personal toy. The tickets examined by VOSD showed nine different officers had issued seditious language citations in 2018. This includes one citation that sounds like the SDPD considers itself more of a KGB.

Each of the 11 most recent seditious language tickets were written in downtown San Diego — except one, which the defendant received in his own home in southeastern San Diego.

There are a lot of things that define America and swearing in your own home without fear of retaliation from the government is one of them. But not when the SDPD is running things. The law, which was supposed to protect the government from being overthrown, is being used to inflict monetary pain on people who say things cops don’t like.

Filed Under: cursing, free speech, offensive speech, police, protests, san diego, san diego police, sedition

Trump Issues Ridiculous Executive Orders Banning TikTok And WeChat

Free Speech

from the that's-not-how-any-of-this-works dept

While he had said he would do it last weekend, and then said he’d wait until September 15th (but that he wanted a finder’s fee if TikTok was sold to Microsoft), last night the Trump White House issued two executive orders regarding apps from Chinese companies. The first one claims it’s banning TikTok and the second one says it’s banning WeChat (which isn’t even that popular in the US, though it is hugely popular in China). He separately sent a letter to Congress about the TikTok ban.

As many people expected, Trump is trying to use the IEEPA, the same (already questionable) authority he used to put tariffs on a bunch of products from China at the beginning of his nonsense tradewar. This is only supposed to be used in cases of unusual or extraordinary threats — and let’s be totally blunt: TikTok is not an unusual or extraordinary threat to anything beyond President Trump’s massive ego.

Of course, among the many problems with this, the IEEPA includes exceptions and a big one is that it does not apply to “any information or informational materials.” And I’d argue (and I imagine TikTok’s lawyers will argue) that means he can’t ban apps via an executive order under the IEEPA. But, of course, that will have to be fought out in court (and might become moot if ByteDance finalizes its sale to an American company).

Still, this is all nonsense:

I, DONALD J. TRUMP, President of the United States of America, find that additional steps must be taken to deal with the national emergency with respect to the information and communications technology and services supply chain declared in Executive Order 13873 of May 15, 2019 (Securing the Information and Communications Technology and Services Supply Chain). Specifically, the spread in the United States of mobile applications developed and owned by companies in the People?s Republic of China (China) continues to threaten the national security, foreign policy, and economy of the United States. At this time, action must be taken to address the threat posed by one mobile application in particular, TikTok.

TikTok, a video-sharing mobile application owned by the Chinese company ByteDance Ltd., has reportedly been downloaded over 175 million times in the United States and over one billion times globally. TikTok automatically captures vast swaths of information from its users, including Internet and other network activity information such as location data and browsing and search histories. This data collection threatens to allow the Chinese Communist Party access to Americans? personal and proprietary information ? potentially allowing China to track the locations of Federal employees and contractors, build dossiers of personal information for blackmail, and conduct corporate espionage.

Again, tons of apps suck up this same information — and most of our devices are built in China. The idea that TikTok is being used for “blackmail” or “corporate espionage” is beyond ludicrous. And, yeah, fine, federal employees perhaps shouldn’t have an app like TikTok on their phone, but just tell federal employees not to use it. Don’t ban it from the US.

And then there’s this:

TikTok also reportedly censors content that the Chinese Communist Party deems politically sensitive, such as content concerning protests in Hong Kong and China?s treatment of Uyghurs and other Muslim minorities. This mobile application may also be used for disinformation campaigns that benefit the Chinese Communist Party, such as when TikTok videos spread debunked conspiracy theories about the origins of the 2019 Novel Coronavirus.

So… because TikTok moderates some content, the US will censor all the content? How does that make any sense at all?

In terms of what the actual order does, it bars any US person or company from conducting any transaction with TikTok’s parent company ByteDance, or any subsidiary. That would likely mean that neither Apple nor Google could carry the app in their mobile app stores, which would effectively bar it from the US (and potentially large parts of the rest of the world, as well).

The WeChat order is effectively the same, barring transactions with WeChat’s parent company Tencent Holdings “or any subsidiary of that entity.” Of course, that raised a bunch of alarm bells among gamers. Tencent owns or has invested in basically every gaming company out there, and fully owns Riot Games, makers of League of Legends. It also holds a 40% stake in Epic Games.

Honestly, it sounds like, in typical Trumpland fashion, no one in the White House recognized this. So after people started to freak out, they clarified that they didn’t mean to include the gaming companies:

Of course… that could change. And who knows? A plain reading of the order certainly should bar League of Legends as well. And, of course, part of this demonstrates the absolute ridiculousness of these “bans” in the first place: lots of apps (and even more devices and equipment) come from China. Doing a blanket ban is idiotic and short-sighted. Not only will it not work, not only will it deprive people of useful technology, but it justifies the Chinese approach of splintering and fragmenting the internet and censoring foreign companies. It’s an extremely dangerous game the President is playing here, with a poorly-aimed sledge hammer.

And that doesn’t get into the fact that just banning WeChat alone will be devastating for tons of American citizens and residents with family in China. While WeChat may not be particularly popular within the US, its popularity in China means that many relatives in the US rely on WeChat to communicate with family. Cutting them off is, again, embracing the Chinese Great Firewall approach.

Again, I don’t believe that the President actually has this authority, even under his already extremely broad interpretation of the IEEPA. That means there will almost certainly be multiple lawsuits over all this, and (I’m guessing) a request for a temporary restraining order to block those orders from going into effect. But still, if on Wednesday night the Trump White House made it clear it wanted to splinter the internet, last night it started to carry out that goal in practice.

Filed Under: 1st amendment, china, donald trump, executive order, free speech, ieepa, protectionism
Companies: bytedance, tencent, tiktok, wechat