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

Judge Rejects Devin Nunes' SLAPP Suit Over The Esquire Article He Really, Really Doesn't Want You To Read

Free Speech

from the have-you-read-it-yet? dept

A federal judge has happily dismissed one of Devin Nunes’ many SLAPP suits. This isn’t much of a surprise given what the judge had said back in May regarding Nunes’ Iowa-based SLAPP suit (reminder: Iowa has no anti-SLAPP law) against Esquire Magazine and reporter Ryan Lizza. The lawsuit was over this article that Devin Nunes really, really doesn’t want you to read: Devin Nunes?s Family Farm Is Hiding a Politically Explosive Secret. Reading that will make Rep. Devin Nunes very, very sad.

Back in May, the judge made it clear that he didn’t think there was much of a case here, but gave Nunes a chance to try to save the lawsuit. As you can already tell, his lawyer, Stephen Biss, has come up empty in his attempt. The court easily dismisses the case with prejudice. First, the judge goes through the various statements that Nunes/Biss claim are defamatory and says “lol, no, none of those are defamatory.”

The statements at issue also do not assert provably false facts, nor do they imply the existence of undisclosed facts. The statements that plaintiff has a secret, hid or concealed his family?s move, or conspired with others to hide the move do not have ?precise core meaning for which a consensus of understanding exists.? … There is no precise meaning for how many people can know a fact for it to remain a ?secret? nor is there an accepted line between ?hiding? or ?concealing? a fact and simply declining to publicize it. Likewise, in this context there is no precise meaning of ?conspiracy.? For the same reasons, the challenged statements are not ?objectively capable of proof or disproof[.]?…

The context of defendants? statements also weighs in favor of being protected opinions. The context of the publication includes the ?social context? of the publication, which includes the style of writing and the intended audience…. The Article is written in a first-person perspective and includes numerous instances of Lizza?s subjective mental impressions. This weighs against the statements being reasonably construed as statements of fact as opposed to Lizza?s characterizations or opinions.

Incredibly, the ridiculous, performative, hyperbolic language that Biss employed in the lawsuit — calling Lizza a “left-wing political journalist, well known for his extreme bias towards Plaintiff” comes back to bite Nunes in this case:

The context also includes ?public context or political arena in which the statements were made.?… Plaintiff alleges that Lizza is a ?left-wing political journalist, well known for his extreme bias towards [p]laintiff.? …. At the time defendants published the Article, plaintiff was a sitting Republican congressman running for re-election…. In this public context, the Court must construe the Article in light of this nation?s ?profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.? … Accepting plaintiff?s allegations as true, any reasonable reader would construe the Article in light of Lizza?s well know political bias. Thus, any reasonable reader would understand defendants? use of terms like ?secret? or ?conspired? as the type of hyperbole that is to be expected in the political arena rather than an insinuation of fact…. In this public context, no reasonable reader could construe Lizza?s statements as facts rather than opinions.

Nunes would have lost either way, but it’s hilarious to see the ridiculous, over-the-top language his lawyer used come back directly to bite him.

Also, the judge points out that Lizza’s articles support the conjecture that Nunes is so upset about all this pretty strongly:

Finally, the statements at issue cannot be construed as implying undisclosed defamatory facts because Lizza disclosed the basis for his conclusions. As to the statements that plaintiff?s family?s move was a ?secret? or was ?concealed,? the Article states that Lizza was unable to find any mention from plaintiff or the press in plaintiff?s district mentioning the move…. The Article also mentions a Wall Street Journal editorial which discussed plaintiff?s family?s dairy farm and featured a Tulare, California dateline…. Nothing in the context of the Article otherwise implies that defendants? characterization is based on any other undisclosed facts.

Similarly, as to the conclusion that plaintiff and others conspired to hide the move, the Article points to two specific instances that support the statement. First, the Article notes that plaintiff appeared at a town hall with Congressman King in a town fifty miles from Sibley. The press release for the event did not mention plaintiff?s family ties to the district, and instead stated that plaintiff?s ?family has operated a dairy farm in Tulare County, California for three generations.? … Second, the Article discusses how the Dairy Star article about NuStar mentioned several members of the Nunes family, but omitted plaintiff…. Nelson told Lizza he omitted plaintiff at plaintiff?s family?s request…. These facts show the basis for defendants? conclusion that plaintiff and others ?conspired? to hide plaintiff?s family?s move, but do not imply the existence of other facts. The reader is ?free to accept or reject [defendants?] opinion based on their own independent evaluation of the facts.?

As for the statement in the article about Nunes trying to discredit the Russia investigation and “protect[ing] Donald Trump at all costs, even if it means shredding his own reputation and the independence of the historically nonpartisan committee in the process” is deemed rhetorical hyperbole:

This statement is a protected opinion for two reasons. First, the statement is ?rhetorical hyperbole? and is thus protected by the First Amendment. In, Adelson v. Harris, 774 F.3d 803, 807 (2d Cir. 2014), the court held that statements that plaintiff?s money was ?dirty? and ?tainted? was non-actionable rhetorical hyperbole protected by the First Amendment. Terms like ?battering ram,? ?at all costs,? and ?shredding? are similar rhetorical hyperbole as well.

Second, this statement also has no ?precise core of meaning for which a consensus of understanding exists? and thus is not objectively capable of proof or disproof….. There is no core meaning about what it means to use a committee as a battering ram, protect someone at all costs, or shred one?s own reputation. Even if these terms had a precise meaning, plaintiff has not explained how such statements could be proved or disproved. Plaintiff argues these statements ?accuse Plaintiff of abusing his position as Chairman of the House Intelligence Committee, obstruction of the Russia investigation, prejudice, impartiality and unethical behavior.? …. Plaintiff fails, however, to identify any provably false facts implied by the Article that would lead to these conclusions. Also, for the same reasons discussed in the previous section, the context of defendants? statements, particularly these statements about issues of fundamental public importance, must be construed as opinions entitled to protection in the context of political debate concerning a public official.

Another statement — regarding Nunes’ family selling their California dairy farm and moving to Iowa for a new farm — the judge notes that Nunes made no effort to claim that this statement is false, even though it was listed as one of the defamatory statements in the lawsuit:

Plaintiff has not alleged that any aspect of this statement is false, nor does plaintiff?s brief articulate how this statement is defamatory. Plaintiff appears to admit the statements to the extent it alleges that plaintiff?s parents, brother, and sister-in-law currently live and work in Sibley, Iowa…. Regardless, nothing about this statement is defamatory. None of the facts about plaintiff?s relation to various individuals and their real estate transactions tends to harm plaintiff?s reputation. As a matter of law this statement is not defamatory.

One by one the judge rejects each and every claimed defamatory statement for reasons like these. Another one gets rejected because it’s about Nunes’ family, not himself. Another for being “substantially true.” Basically just as we said when this suit was filed, none of this is even remotely defamatory.

Biss tried to get around the fact that none of the actual statements are defamatory by arguing that the article as a whole implied defamatory things and… that’s not how any of this works. And the judge knows that.

Plaintiff fails to state a claim for defamation by implication for two reasons. First, no reasonable person could draw plaintiff?s asserted implication from the Article. Second, even if a reasonable person could draw the implication, there is no indication that defendants intended or endorsed the implication.

He also suggests there are “defamatory inferences,” and again, the judge points out that the article does not support this claim:

Reading the entire Article in context, no reasonable reader could reach plaintiff?s alleged implication because the Article negates those implications. The Article states that plaintiff ?has no financial interest? in NuStar. … The Article also makes clear plaintiff is not involved in managing NuStar. … (noting that the Dairy Star article stated that NuStar was managed by Anthony Jr. ?with his son and wife? and noting in the next paragraph plaintiff is not mentioned anywhere in the Dairy Star article). No reasonable reader could understand the Article to imply the exact opposite of its text, i.e. that plaintiff had some financial or managerial interest in NuStar.

Likewise, no reasonable reader could read the Article to imply plaintiff conspired with others to hide NuStar?s use of undocumented labor. The Article is clear the conspiracy was ?to hide the fact that [plaintiff]?s family sold its farm and moved to Iowa[.]? …. Similarly, no reasonable reader could find the ?politically explosive secret? referenced in the title of the Article is NuStar?s use of undocumented labor. The Article states ?[s]o here?s the secret: The Nunes family dairy of political lore?the one where his brother and parents work?isn?t in California. It?s in Iowa.? … Given these express statements, no reasonable reader could infer that plaintiff was involved in a conspiracy to hide NuStar?s use of undocumented labor.

Then after all of that, the court also notes that Nunes failed to show actual malice, which, of course, is necessary in defamation cases involving public figures. And, as a reminder, “actual malice” does not mean “he didn’t like the guy.” It has a very specific meaning: that the statements were made knowing they were false or with reckless disregard for whether it was false or not. And, as the judge notes, there was no evidence to support this at all.

The cases plaintiff cites in support of his argument highlight the factual insufficiency of his complaint. For example, plaintiff asserts defendants acted with actual malice because they failed to observe journalistic standards, conceived of a storyline in advance and sought to find evidence to confirm that story, and relied on unreliable or biased sources in researching the Article…. These allegations, however, are ?naked assertion[s]? devoid of ?further factual enhancement,? and ?labels and conclusions,? that fail to plausibly assert actual malice….

[….]

The Court will not reiterate every factual deficiency in the amended complaint, but some examples are illustrative. Plaintiff alleges defendants ?relied on sources, including anonymous and unnamed persons, they knew were wholly unreliable and had an axe to grind against Plaintiff and his family.?… Plaintiff does not identify the sources, what axe the sources had to grind with plaintiff, or any factual basis from which the Court could plausibly find that defendants? sources were unreliable or that defendants knew or should have known they were unreliable. To the contrary, the Article itself refers to two unnamed, but not anonymous, sources who had firsthand knowledge of NuStar?s use of undocumented labor…. This is fundamentally different than the cases upon which plaintiff relies. See Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 315 n.10 (5th Cir. 1995) (noting that evidence of an ulterior motive can ?bolster an inference of actual malice,? and citing specific facts about the relationship between the parties from which the jury could have found that defendant made defamatory statements with actual malice); AdvanFort Co. v. Mar. Exec., LLC, No. 1:15-cv-220, 2015 WL 4603090, at *8 (E.D. Va. July 28, 2015) (finding that plaintiff could plausibly allege actual malice if plaintiff specifically asserted that defendant knew the author?s relationship with plaintiffs had ?gone sour? after their past ?unsuccessful business relationship?); Barreca, 683 N.W.2d at 123 (reversing summary judgment when record established defendant made defamatory statement based on one anonymous and unverified phone call, and portions of the statement at issue arguably showed defendant ?entertained serious doubts about the truth of the phone call?).

Similarly, plaintiff alleges defendants acted with actual malice because they republished the Article…. The amended complaint asserts defendants republished the Article by tweeting links to it…. This argument fails both factually and as a matter of law. Publishing a link to an existing story is not a republication of the story…. Even if tweeting links to the Article constitutes republication, the cases plaintiff cites are inapposite here.

For what it’s worth, the judge also makes a brief mention of the language that Biss used in the lawsuit to smear Lizza, regarding some rumors that went around about him. We had pointed out earlier that these claims seemed much more “defamatory” than anything Lizza wrote about Nunes. Lizza’s lawyers had asked the court to strike those statements from the motion, which the court denies as moot (since the whole case is being tossed) but does note:

The Court notes, however, the material identified by defendants … is immaterial, impertinent, and scandalous. Plaintiff?s personal attacks on Lizza have no bearing on this case. This is apparent because plaintiff never refers to the challenged allegations in resisting defendants? motion to dismiss. The allegations likewise are prejudicial to Lizza and have criminal overtones.

The one annoying part of the ruling has to do with anti-SLAPP laws. Even though, as noted, Iowa has no anti-SLAPP law, Lizza and Hearst sought to say that California’s strong anti-SLAPP law should apply (seeing as any reputational damage to Nunes would occur in California). The court rejects that on procedural grounds, saying that standard 12(b)(6) motion to dismiss procedures (and other rules of federal civil procedure) “pre-empt” California’s anti-SLAPP law, since they grant the same basic protections in getting cases tossed out early. That’s an argument that comes up frequently in anti-SLAPP cases. And while it’s true that a motion to dismiss can — at times — serve a similar purpose to an anti-SLAPP motion to strike, there are important procedural differences that protect free speech, including the attorney’s fees award that goes along with most anti-SLAPP laws, including California’s. Unfortunately, here, the court says that cannot apply.

This is yet another reason why we absolutely need a federal anti-SLAPP law with fee shifting as part of it. Still, overall, this is a good, clean ruling rejecting one of Nunes’ silly SLAPP suits. This result was inevitable, but still created a nuisance — which likely was the intent all along.

Filed Under: 1st amendment, anti-slapp, california, defamation, devin nunes, esquire, free speech, iowa, opinion, ryan lizza, slapp, slapp suit, steven biss

State Department Announces That Great Firewall For The US; Blocks Chinese Apps & Equipment

(Mis)Uses of Technology

from the this-is-not-good dept

Forget banning TikTok, the Trump State Department just suggested it wants to basically ban China from the internet. Rather than promoting an open internet and the concept of openness, it appears that under this administration we’re slamming the gates shut and setting up the Great American Firewall for the internet. Under the guise of what it calls the Clean Network to Safeguard America, last night Secretary of State Mike Pompeo announced a program that is full of vague statements, that could, in practice, fragment the internet.

This is incredibly disappointing on multiple levels. While other countries — especially China, but also Iran and Russia — have created their own fragmented internet, the US used to stand for an open internet across the globe. Indeed, for whatever complaints we had about the State Department during the Obama administration (and we had many complaints), its commitment to an open internet was very strong and meaningful. That’s clearly now gone. The “Clean Network to Safeguard America” consists of five programs that can be summed up as “fuck you China.”

• Clean Carrier: To ensure untrusted People?s Republic of China (PRC) carriers are not connected with U.S. telecommunications networks. Such companies pose a danger to U.S. national security and should not provide international telecommunications services to and from the United States.
• Clean Store: To remove untrusted applications from U.S. mobile app stores. PRC apps threaten our privacy, proliferate viruses, and spread propaganda and disinformation. American?s most sensitive personal and business information must be protected on their mobile phones from exploitation and theft for the CCP?s benefit.
• Clean Apps: To prevent untrusted PRC smartphone manufacturers from pre-installing ?or otherwise making available for download ? trusted apps on their apps store. Huawei, an arm of the PRC surveillance state, is trading on the innovations and reputations of leading U.S. and foreign companies. These companies should remove their apps from Huawei?s app store to ensure they are not partnering with a human rights abuser.
• Clean Cloud: To prevent U.S. citizens? most sensitive personal information and our businesses? most valuable intellectual property, including COVID-19 vaccine research, from being stored and processed on cloud-based systems accessible to our foreign adversaries through companies such as Alibaba, Baidu, and Tencent.
• Clean Cable: To ensure the undersea cables connecting our country to the global internet are not subverted for intelligence gathering by the PRC at hyper scale. We will also work with foreign partners to ensure that undersea cables around the world aren?t similarly subject to compromise.

So, take the talk of banning Huawei and ZTE on the networking side, and the rumblings about banning TikTok on the app side, and multiply by everything.

I certainly understand the arguments that certain Chinese companies and technologies may be conducting surveillance on Americans (even though investigations into both Huawei and TikTok haven’t shown anything out of the ordinary), but this approach is incredibly short-sighted. First of all, it goes against the basic American stance on openness, especially regarding the internet. That just damages what little moral high ground we had left to stand on regarding the internet.

Second, all this does is justify the Chinese approach. Make no mistake about it, China will turn around and use this to justify its (much worse) practices, by saying “look, even the Americans filter out “foreign” apps and services.” Giving the Chinese ammo like that is so incredibly short-sighted.

Third, so much of American technology is still made in China — including pretty much every electronic gadget and IOT and “smart” device that fills everyone’s homes these days. This is going to backfire in so many ways. The trade war and tariffs have already hit parts of the technology industry hard, and this move will certainly lead to retaliation in all sorts of ways — potentially having a massive impact on American firms being able to make use of factories and technology from China. That will have ripple effects throughout the economy and will likely limit certain innovation possibilities. Indeed, this may even allow Chinese firms to justify abusing technology to do the kinds of surveillance people are now freaked out about.

Fourth, it will allow China to expand its influence elsewhere in the world, showing how the US can’t be trusted and plays favorites with its own companies through protectionism.

In short, this is the kind of short-sighted policy that we’re all too familiar with from the Trump Administration, but which will do significant damage to the US in the process.

Filed Under: apps, censorship, china, clean network, great firewall, mike pompeo, networking equipment, technology, us
Companies: huawei, tiktok

Turkey Passes New Internet Censorship Law, Cites Germany's Awful 'Hate Speech' Law As Its Inspiration

Free Speech

from the how-cosmopolitan dept

Turkey’s president, Recep “Gollum” Erdogan, continues to use legislation to silence everyone that might possibly criticize or mock him. This has been an ongoing process, one that keeps getting worse with every iteration. A failed coup didn’t help calm things down in Turkey, which is apparently hoping to pass China and take the top spot on the “journalists jailed” chart.

The latest law has a supposedly noble goal, but there’s nothing noble about the propelling force behind it. The EFF reports another law giving the government even more censorship powers has been passed, thanks to Erdogan’s inability to handle criticism.

[A] new law, passed by the Turkish Parliament on the 29th of July, introduces sweeping new powers and takes the country another giant step towards further censoring speech online. The law was ushered through parliament quickly and without allowing for opposition or stakeholder inputs and aims for complete control over social media platforms and the speech they host. The bill was introduced after a series of allegedly insulting tweets aimed at President Erdogan’s daughter and son-in-law and ostensibly aims to eradicate hate speech and harassment online.

So, it obviously isn’t there to eradicate all hate speech and harassment. It’s there to eradicate hate speech and harassment targeting Erdogan and other members of the government. A law like this being implemented by this government — one with a long history of silencing/arresting/jailing critics — will only be used to target citizens who aren’t thrilled with their authoritarian “representatives.”

Of course, the Turkish government won’t bear the expense of keeping the country’s internet free of Erdogan-bashing. That will rest on social media platforms. Once served with an order to remove content that “violates personal rights” and/or the “privacy of personal life,” platforms will have 48 hours to take it down. If they don’t, they’ll face fines and — in an unprecedented move — the throttling of their bandwidth by up to 90% via local internet service providers.

To better facilitate censorship of Erdogan-related criticism, social media platforms will be forced to establish a local presence to expedite takedowns.

Once ratified by President Erdogan, the law would mandate social media platforms with more than two million daily users to appoint a local representative in Turkey…

The EFF’s report highlights another disturbing aspect of the new law: it was inspired by legislation in countries that respect personal freedom and expression far more than Turkey has under Erdogan.

When introducing the new law, Turkish lawmakers explicitly referred to the controversial German NetzDG law and a similar initiative in France as a positive example.

Germany’s “hate speech” law has been a solid generator of collateral damage since its inception. German lawmakers may believe they’ve ushered a new era of online enlightenment with the law, but it’s inspired a number of censorial governments to create their own versions and point to Germany when anyone asks why they’re silencing dissent and criticism. EFF says thirteen countries, including Venezuela, Malaysia, Russia, and the Philippines have all cloned NetzDG to better serve the continued restriction of their citizens’ free speech rights.

And while Germany’s law has effectively killed satire and chilled speech, at least it contains some limited restraints on the government via the court system. In Turkey (and other countries run by authoritarians), these checks and balances don’t exist. Turkey’s adoption of German legal principles takes the bad parts of the law and makes them even worse.

Filed Under: censorship, free speech, germany, hate speech, turkey

Tennessee Court Strikes Down Law Criminalizing Calling Political Candidates 'Literally Hitler'

Free Speech

from the literally-the-worst-law dept

Free speech keeps getting freer in Tennessee. The state was once home to a host of vexatious defamation lawsuits — including one where someone subjected to mild criticism sued a journalist over things someone else said. Thanks to the state’s new anti-SLAPP law, litigation is slightly less vexatious these days.

But there are still state laws posing threats to free speech by criminalizing stuff the First Amendment says is perfectly acceptable. Tennesseans for Sensible Election Laws (represented by Daniel Horwitz, whose work has made multiple headlines here at Techdirt) sued the state over a campaign law that made it a misdemeanor to publish false information about candidates.

The statute says this:

It is a Class C misdemeanor for any person to publish or distribute or cause to be published or distributed any campaign literature in opposition to any candidate in any election if such person knows that any such statement, charge, allegation, or other matter contained therein with respect to such candidate is false.

The plaintiffs argued the law effectively criminalized satire and hyperbole. It pointed out it risked prosecution if it distributed its campaign material, which used a word that literally no longer can be taken literally in every context: “literally.” From the decision [PDF]:

[T]he Complaint explains that the Plaintiff has described in its literature one State Representative as “Hitler”, who supported eugenics, i.e. state-sponsored chemical castration of convicted sex offenders. The Plaintiff’s analysis in its Complaint is that, “Because Representative Griffey is not, in fact, ‘literally Hitler,’ and because Tennesseans for Sensible Election Laws knows that Representative Griffey is not literally Hitler, Tennesseans for Sensible Election Laws’ campaign literature would violate § 2-19-142, thus subjecting members of Tennesseans for Sensible Election Laws to criminal prosecution carrying a sentence of up to thirty days in jail and/or a fine not to exceed $50.00.

Here’s the mailer the group says could get its members criminally charged:

The activist group says this is unconstitutional. It certainly seems to be, but the state’s Attorney General apparently believes prosecuting people for engaging in political speech isn’t a Constitutional issue. Here’s the opinion the state AG offered in support of the law:

A prosecution against a newspaper or other news medium under Tenn. Code Ann. 2-19-142 would not raise any constitutional objections…

This statement, made in 2009, has not aged well. The Constitutional challenge has arrived. And it’s victorious. The campaign focused criminal defamation law violates both the US Constitution and the state Constitution. And for several reasons (all emphasis in the original):

First, Tennessee Code Annotated § 2-19-142 punishes only false political speech in opposition to candidates for elected office, while permitting false speech in support of such candidates. Such viewpoint discrimination is incompatible with the First Amendment, and no compelling interest supports it.

Second, Tennessee Code Annotated § 2-19-142 exclusively penalizes false campaign literature opposing candidates seeking elected office, while permitting all other false campaign literature and all speech regarding noncandidates. Such content-based restrictions on speech similarly contravene the First Amendment.

Third, Tennessee Code Annotated § 2-19-142’s criminalization of “false” speech cannot be reconciled with the U.S. Supreme Court’s decision in United States v. Alvarez, 567 U.S. 709 (2012), which held that a statement’s falsity alone is insufficient to remove it from the ambit of protection guaranteed by the First Amendment.

Fourth, Tennessee Code Annotated § 2-19-142 is unconstitutionally overbroad because it prohibits a substantial amount of constitutionally protected speech, both in an absolute sense and relative to the statute’s legitimate sweep, and because a substantial number of instances exist in which § 2-19-142 cannot be applied constitutionally.

Fifth, by restricting speech based on its content, by proscribing protected speech, and by criminalizing political speech based on viewpoint, Tennessee Code Annotated § 2-19-142 contravenes the more expansive protections of article I, section 19 of the Tennessee Constitution.

The court declares the law a violation of both the First and Fourteenth Amendments. The plaintiffs are free to call candidates they feel align with Hitler’s beliefs “literally Hitler,” even when said candidates are, obviously, not the long-dead German chancellor known affectionately as the “worst person in the world.”

Filed Under: 1st amendment, campaign laws, campaign literature, false information, free speech, tennessee

The FCC Knows Trump's Social Media Order Is A Joke, But Fecklessly Pretends Otherwise

Too Much Free Time

from the do-not-upset-dear-leader dept

We’ve mentioned at great length how Trump’s executive order to more heavily “regulate” social media is an unworkable joke. It attempts to tackle a problem that doesn’t exist (“Conservative censorship“) by attacking a law that actually protects free speech (Section 230), all to be enforced by agencies (like the FCC) that don’t actually have the authority to do anything of the sort. You can’t overrule the law by executive order or regulatory fiat, nor can you ignore the Constitution. The EO is a dumb joke by folks who don’t understand how any of this works, and it should be treated as such.

Instead, most press coverage of the move is still somehow framed as “very serious adult policy,” despite being little more than a glorified brain fart.

The FCC also knows the order is unworkable garbage that flies directly in the face of years of espoused (government hands off) ideology by Ajit Pai, Brendan Carr and friends. And yet, terrified of upsetting dear leader, Pai issued a totally feckless statement on Monday stating the EO would be pushed through the rule-making process, pretending as if this was all just ordinary, sensible tech policy:

This is, you’ll recall, the same guy who spent the last eight years insisting that fairly modest consumer protections governing telecom monopolies (net neutrality, privacy) was a vile example of “government run amok.” It’s the same guy whose entire policy platform revolves around the idea that hands off, limited government oversight universally results in near-mystical outcomes. The order to have the FCC regulate social media giants runs in stark contrast to nearly everything Pai professes to believe, including his adoration of free speech (since eliminating 230 would all but guarantee less of it). And yet he’s completely unwilling to make so much as a cautiously critical peep.

Even if Pai’s worried that he’ll just be replaced by Carr (whose somehow even worse about intellectual consistency) for showing the slightest shred of backbone, there are ways that Pai could express his disdain for this order without upsetting King Donald (perhaps just use big words). But Pai does nothing of the sort. He’s completely selling out everything he believes in to make Donald happy. Not only that, he attempts to frame the idea that we should shut down an idiotic assault on free speech before wasting everybody’s time as itself an attack on free speech.

As a result we’re wasting agency time and taxpayer resources (during a pandemic no less when 42 million Americans lack broadband, something actually under FCC authority) to pursue an inherently dumb and dangerous idea.

Now we move on to the next step in pretending this is real policy: opening the FCC comment system to 45 day of public comments. Except as we saw with the net neutrality repeal (in which the telecom industry used fake and dead people to support terrible and unpopular policy), the FCC doesn’t actually do much to prevent fraud or abuse. So anybody eager to see Silicon Valley saddled with additional regulatory oversight (like its ad competitors in telecom or K Street political operatives) are going to stuff the ballot box with nonsense, taking us further down the rabbit hole of pretending Trump’s EO is serious adult policy making.

In short we’ve got a garbage, unworkable proposal being shuffled through elaborate NTIA and FCC policy making system at taxpayer expense during a crisis, all “supported” by people too afraid of Donald Trump to show even the faintest hint of consistency or backbone. In other words, just another ordinary Monday in Washington.

Filed Under: ajit pai, commerce department, donald trump, executive order, fcc, free speech, ntia, public comments, section 230

Federal Court Can't See Any First Amendment Implications In Local Ordinance Blocking The Photography Of Children

Free Speech

from the I-guess-a-law-is-good-if-it-makes-something-illegal dept

You can’t always pick your fighter for Constitutional challenges. Sometimes you’re handed an unsympathetic challenger, which makes defending everyone’s rights a bit more difficult because a lot of people wouldn’t mind too much if this particular person’s rights are limited. But that’s not how rights work.

A pretty lousy decision has been handed down by a Minnesota federal court. A challenge of two laws — one city, one state — has been met with a judicial shrug that says sometimes rights just aren’t rights when there are children involved. (h/t Eric Goldman)

The plaintiff is Sally Ness, an “activist” who appears to be overly concerned with a local mosque and its attached school. Ness is discussed in this early reporting on her lawsuit, which shows her activism is pretty limited in scope. Her nemesis appears to be the Dar Al-Farooq Center and its school, Success Academy. Ness feels there’s too much traffic and too much use of a local public park by the Center and the school.

Here’s how she’s fighting back against apparently city-approved use of Smith Park:

Ness has taken it upon herself to document activity at site. That includes maintaining a public blog and Facebook page all about the “DAF/Success Academy controversy,” complete with photos and video of street traffic, kids being dropped off at school, and people otherwise going about their business.

Her legal representation in this lawsuit isn’t that sympathetic either.

The American Freedom Law Center, which claims that “the battle for America’s soul is being waged in the courtrooms across America” against “secular progressives and Sharia-advocating Muslim Brotherhood interests,” is co-counseling the case. The Southern Poverty Law Center calls that organization’s co-founder David Yerushalmi an “anti-Muslim activist” and “a leading proponent of the idea that the United States is threatened by the imposition of Muslim religious law, known as Shariah.”

Her lawyer says this has nothing to do with the school’s religious affiliation. Her co-counsel, David Yerushalmi, disagrees.

In a statement, he says Ness’ predicament is just “another example of encroachment on our liberties when Islam is involved.”

Ness became involved when the mosque opened its school and obtained a Conditional Use Permit for Smith Park that allowed students to use it during school days. Ness believes the permit is being violated on a daily basis by students’ “excessive” use of park facilities that makes it “impossible” for nearby residents to use it at the same time.

To document these supposed violations, Ness has approached children in the park and parked across the street to take photographs/record DAF students using the park. She had two run-ins with local law enforcement before filing her lawsuit. After the most recent law enforcement encounter, Bloomington police attempted to charge Ness with felony harassment, but the Hennepin County Attorney’s office declined to bring charges against her. Bloomington prosecutors also declined to prosecute Ness.

Ness sued, claiming the laws cited infringed on her Constitutional rights and that the ongoing threat of prosecution has resulted in her curtailing her documentation of park use by the school.

The problem is the laws. Ness’ behavior is problematic but it shouldn’t be criminally problematic. First, the state’s harassment law — as quoted in the court’s opinion [PDF] — does not require prosecutors to prove intent.

Subdivision 1. Definition. As used in this section, “harass” means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.

Subd. 1a. No proof of specific intent required. In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.

Then there’s an additional ordinance — one put in place by the city of Bloomington after Ness’ two run-ins with the local PD — that criminalizes Ness’ documentation of park activities.

(24) No person shall intentionally take a photograph or otherwise record a child without the consent of the child’s parent or guardian.

This is amazingly broad. It criminalizes journalism and the recording of criminal acts by minors. This revision appears to have been crafted solely to target Ness and her activism. Ness was also a frequent commenter at Bloomington city council meetings until filing this lawsuit.

The court says Ness has no standing to challenge the laws. According to the judge, she does not face a credible threat of prosecution. The decision cites the two refusals to prosecute, as well as prosecutors’ statements on the issue.

Ness claims she intends to monitor an issue—the non-compliant use of DAF’s facilities and the use of Smith Park—by filming and photographing the activity in the physical vicinity of DAF, which may include filming and photographing people. Compl. ¶¶ 36, 47, 70, 71; Ness Decl. ¶¶ 6, 18, 28. Ness does not claim a desire to surveil individuals or track their location by filming or photographing them once they leave DAF’s neighborhood. As Ness herself has stated, “I try to make this as not about people . . . . It’s not specifically about an individual. It’s about the City collectively not doing their job.” Jones Decl. Ex. 1 at 18:49–18:53. Thus, as the County Attorney and the City both acknowledge, Ness’ intended conduct is not proscribed by the Harassment Statute because she is not tracking or monitoring a particular individual.

But then the court goes on to quote police officers’ implicit threats of arrest as evidence Ness won’t be subjected to further law enforcement scrutiny or prosecution.

Ness relies on the police report from the incident, which states that Officer Meyer “asked [Ness] to stop filming,” and that “Ness was advised that she could be charged with harassment if the parents and principal felt intimidated by her actions.” Compl. ¶ 54. However, the bodycam footage of the encounter establishes that Sgt. Roepke expressly told Ness “this is a public place, . . . you have a right to . . . take pictures in a public place or video or, or anything like that. There’s not an issue with that. . . . [B]ut if you’re doing it in a means to intimidate them or to harass them, then it becomes a problem.” Jones Decl. Ex. 3 at 1:50. Sgt. Roepke also told Ness “if you want to take some pictures, come and take some pictures and then move on.” Id. at 7:50. When Ness described the August 2019 encounter to Detective Bloomer months later during her interview, Ness stated that Sgt. Roepke “clarified” Ness’ conduct was not harassing behavior, and told her to “be careful and read the statute.” Jones Decl. Ex. 5 at 36:22–36:43. The police report of the August 2019 incident, particularly when viewed together with Sgt. Roepke’s statements and Ness’ own recollection of the incident, does not rise to the level of a credible threat of prosecution. Ness’ decision to chill her speech, after being told by Sgt. Roepke that she had a right to take videos and that her conduct was not harassing behavior, was not based on an objectively reasonable fear of prosecution.

Unfortunately, this supposedly “unreasonable” fear of prosecution stems directly from the law, making it a lot more reasonable than the court says. Prosecutors do not have to prove intent. And, as the officer stated clearly, all it would take is for subjects of Ness’ recordings to feel harassed. It doesn’t matter whether or not Ness intended to harass anyone. That’s pretty open-ended and that makes her fear of prosecution a lot more reasonable.

The court agrees Ness has standing to sue the city of Bloomington over its ban on filming children.

The City Defendants argue that “[e]ven if Ness had standing to sue, her facial challenge to the ordinance under the first Amendment would fail.” City Defs.’ Mem. Supp. Mot. Dism. [Docket No. 68] at 10 (emphasis added). However, the City Defendants’ briefing does not include an argument for why Ness might lack standing to challenge the City Ordinance. Ness’ intended conduct will include photographing and filming children in a City park without parental consent. This conduct is proscribed by the City Ordinance, and the City has not disavowed an intent to charge Ness with violating the City Ordinance if she were to engage in this conduct. Under these circumstances, Ness’ decision to chill her speech due to the existence of the City Ordinance is objectively reasonable. Ness has standing to challenge the City Ordinance.

But it says she has nothing to sue about because the ordinance does not affect her First Amendment rights.

Here, the City Ordinance makes no distinction based on who is the photographer or recorder, what use will be made of the photograph or recording, or what message will ultimately be conveyed. Because the limitation on its face does not draw distinctions based on a speaker’s message or viewpoint, it is content neutral.

Neutral, except as to the content of the recordings, which is what’s targeted by the city’s ban. But the court says the definition of “content” hinges on what the speech conveys, rather than what it contains.

Ness also points out the ordinance is unconstitutional because it fails to do what it purports to do: protect children from being recorded. The court disagrees, saying the ordinance is adequate enough to achieve its aims.

Ness argues that the City Ordinance is underinclusive because if a person takes a step outside a City park and films children from the street, the City Ordinance will not be violated. Ness contends this underinclusiveness undermines the City’s claimed interest in protecting children’s privacy and preventing them from being exploited or intimidated. However, requiring would-be recorders to collect images from a distance, rather from inside a City park, makes it less likely that a child in the park will feel frightened or that the child’s identity will be ascertainable. Thus, the City’s important government interest in protecting children is not undermined by allowing a person to record children from just outside a City park’s boundaries.

Finally, the judge says the ends justify the means. The judge appears to believe laws are “narrowly tailored” if they accomplish what they set out to do.

As discussed above, the City Ordinance promotes the important government interest in regulating the competing uses of City parks and protecting children’s privacy and sense of safety and freedom from intimidation while playing in a City park. This interest would be achieved less effectively without the City Ordinance. The City Ordinance is narrowly tailored.

Sure, and the city’s attempts to achieve other interests would undoubtedly be more effective if the Constitution didn’t exist. But it does. And the court is supposed to be a check against government overreach, not an enabler of government efficiency.

The lawsuit is dismissed. The court says Ness can film kids from outside of the park’s boundaries without fear of prosecution. Of course, this is what Ness was doing when she was approached by officers who told her to “take her photos” and “move on.” Even if Ness complies with the terms of the ordinance the city appears to have passed just to stop her from doing what she was doing, she still faces the possibility of being subjected to further police action. And even if prosecutors refuse to press charges, there’s still the hassle of the arrest, and the loss of time and freedom during the detainment. These harms aren’t imaginary. The law written to make it more difficult for one Bloomington resident to engage in documentation of perceived permit violations stays on the books.

Most people will probably be fine with this outcome. After all, it mainly affects someone whose interest in park usage seems to be primarily motivated by bigotry. This is all but confirmed by her choice (or acceptance) of the American Freedom Law Center’s legal representation. But bad people can still raise legitimate Constitutional complaints. This isn’t a victory for Bloomington. It’s a loss for its residents who are subject to a badly written law. Even if they have no desire to violate the ordinance, the law can still be wielded against citizens engaged in legitimate activities (like news gathering), thanks to this court’s support.

Filed Under: 1st amendment, activist, children, free speech, photography, privacy, sally ness

Portland Journalists Ask For Sanctions As Federal Agents Continue To Assault Reporters And Legal Observers

Free Speech

from the aaaaaand-I'm-proud-to-be-an-Americaaaan-where-at-least-I-[pepper-spray] dept

Protests related to the killing of George Floyd by Minneapolis police officer Derek Chauvin have passed the two-month mark in Portland, Oregon. In response to unfettered liberalism, the Trump administration has sent in the troops. Officers from ICE, CBP, US Marshals Service, and other federal agencies flooded into Portland with the ostensible aim of protecting federal property, like the courthouse targeted by protesters.

Instead of a measured response to defuse tensions, federal officers engaged in Gestapo tactics. Unidentified officers in unmarked vehicles began removing protesters from the streets, hauling them away to unknown locations for questioning. Those released after being detained were given no paperwork commemorating their interaction with America’s secret police, nor were they told why they had been detained.

This wasn’t the only broadside against Constitutional rights. Federal officers also attacked journalists and legal observers. This didn’t just violate social contracts. It violated the First Amendment. Local journalists and observers sued. And they obtained a restraining order from a federal court blocking federal agents from attacking clearly identified journalists and observers. The court noted that local law enforcement — which had been hit with an earlier restraining order — was able to abide by the court-ordered rules of engagement. The court said the federal government offered no plausible argument why it would be impossible to abide by the same restrictions.

The [federal] police are rioting.

The plaintiffs are back in court asking for sanctions to be brought against the federal government for refusing to abide by the restraining order. (h/t Mike Scarcella)

The opening of the motion [PDF] contains some invective, but it appears to be justified.

On July 23, 2020, the Court issued a temporary restraining order prohibiting federal agents from assaulting and dispersing journalists and legal observers. Within hours, federal agents began violating the Court’s TRO and have continued to do so every night since. These violations are not inadvertent. They are intentional acts by a lawless president, who has sent his paramilitary forces to shoot up the streets of Portland, choke downtown in a haze of toxic chemical fumes, and generate reelection soundbites—in blatant disdain of public safety, the rule of law, and the most fundamental principles of our Constitution.

The plaintiffs aren’t wrong. Trump has made it clear he’s only sending federal agents into “liberal” cities. This may score points with his voter base but it’s doing nothing for the rest of America, which has expressed its disdain for the tactics deployed in Portland.

These tactics are forbidden — not just by the Constitution, but by a court order directly addressing the targeting of journalists and protesters. And yet, the government persists.

On July 23, a federal agent shot reporter Jonathan Levinson while he was trying to take a photo. No protesters were near him. A federal agent also shot journalist Brian Conley, when he was trying to video an arrest. Later that night, federal agents tear-gassed Mr. Conley. The same night, federal agents shot reporter Rebecca Ellis and separately prevented her from documenting their dispersal of protesters.

On July 24, federal agents shot legal observer Haley Nicholson in her chest, just above her heart, from four feet away. Impact munitions should not be used at distances of less than 15 feet or above the waist.

On July 25, federal agents deliberately sprayed toxic chemicals into the faces of multiple legal observers, including Bruce Knivlia and Kat Mahoney, at point blank range. They were all clearly identified in blue ACLU vests and green NLG hats. They also shot photojournalist Kathryn Elsesser, who was also clearly marked with “PRESS” on her helmet.

On July 26, a federal agent temporarily left an advancing line of agents to kick a flaming tear-gas canister directly at a group of clearly marked journalists.

On July 27, Plaintiffs contacted government counsel to raise these blatant violations. (Declaration of Matthew Borden (“Borden Decl.”), Ex. 1.) Instead of investigating and providing information as promised, the federal defendants claimed that they were unaware of what agents and commanders were involved and offered nothing to extenuate their violations of the TRO. That night, the federal agents heaped on more acts of contempt.

Here are a couple of sworn declarations [PDF] by journalists and observers [PDF] who have been attacked by federal officers. More declarations can be found here.

If sworn declarations aren’t enough, there’s also video:

Here’s a copy [PDF] of the depressing communication the law firm representing the journalists had with DHS counsel Joshua Gardner. When asked for information about the agencies he represents, Gardner had almost nothing useful to say.

First, Gardner said he had no idea what policies or directives were guiding agents’ actions. He promised to “check” on those. The DHS’s lawyer also claimed agents had seen protesters “masquerading” as journalists. When asked for proof of these claims, Gardner was unable to cite any such instance being observed by a federal officer. Finally, the government’s lawyer claimed he had no information about any officers observed violating the restraining order or any details about supervisors tasked with communicating the specifics of the order to federal agents.

Chances are, very few agents have been formally made aware of the order’s specifics. Ignorance is, at least for the moment, bliss. Those who don’t know can’t be blamed for their actions. Or, at least, not as easily. Plausible deniability in all things, including the continued violations of rights in contempt of a court order. But this ignorance may be less blissful than usual. The restraining order made it clear officers were to be made aware as soon as possible because the usual lawsuit escape hatch was being removed by the court issuing the order.

Because the Court considers any willful violation of this Order, or any express direction by a supervisor or commander to disregard or violate this Order, to be a violation of a clearly established constitutional right and thus not subject to qualified immunity in any action brought against any individual employee, officer, or agent of the Federal Defendants under Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971), notice of this Order must be widely disseminated.

If you’re paying close attention, you can see the loophole being exploited. “Willful violations” are tough to prove when no one has received updated instructions. And if no one orders anyone to violate the court order, supervisors can’t be held accountable either. It’s a perfect storm of non-accountability. And that’s what appears to be going on in Portland.

The plaintiffs are asking for justice and respect for their rights. They’re asking for the federal government to play by the rules. Federal agents are responding with “Fuck you. Make me.” The federal government is priming the powder keg while pretending to care about buildings and statues. If a federal court can’t make federal agents play by the Constitutional rules, who can?

Filed Under: 1st amendment, arrests, attacks, dhs, journalists, legal observers, portland, protests, restraining order, tro

ProPublica Releases NYPD Discipline Records Its Union Thought It Had Talked A Court Into Keeping Secret

Free Speech

from the lololololoooooooooooool dept

Forty-five years after a law was passed in New York allowing public agencies to withhold employees’ disciplinary records from the public, it was finally taken off the books by the state’s legislature. The law — known by its statute number “50-a” — hadn’t really been an obstacle to the limited transparency begrudgingly extended by the NYPD until the department suddenly decided it was no longer interested in sharing information about disciplined officers with journalists.

The decision to start following the letter of the law occurred in 2016. Four years later, the state legislature erased it, making these records accessible again. The Police Benevolent Association (PBA) — one of two NYPD unions — sued to block the release of records created by the city’s Civilian Complaint Review Board (CCRB). The PBA secured a temporary restraining order earlier this month, blocking the release of these records. The federal judge also forbade the ACLU from releasing documents it had already obtained until the PBA’s appeal has been addressed.

Here’s the strange thing: the New York branch of the ACLU isn’t a party to this suit. The PBA sued the city and mayor over the records. The ACLU is going to fight the bizarre order from Judge Katherine Polk Failla. But ProPublica also has a copy of these records. And it’s not going to bother with speaking to Judge Failla. After all, it’s not a party to this lawsuit either. The temporary restraining order the PBA obtained is permanently worthless.

Today, we are making this information public and, with it, providing an unprecedented picture of civilians’ complaints of abuse by NYPD officers as well as the limits of the current system that is supposed to hold officers accountable. We’ve published a database that lets you search the police complaints so you can see the information for yourself. Data experts can also download the data.

The database doesn’t include everything obtained from the CCRB. It only includes information on officers who’ve had at least one substantiated allegation against them. Even so, the data set includes 4,000 officers, more than 10% of the NYPD’s workforce.

There are more caveats as well, but they don’t make the NYPD look any better. The data set is further limited by the CCRB’s reach, which has been deliberately limited by the NYPD itself.

Investigators are often not able to reach conclusions on cases, in significant part because they must rely on the NYPD to hand over evidence, such as footage from body-worn cameras. Often, the department doesn’t do so, despite a legal duty to cooperate with CCRB investigations.

On top of that, the term “exonerate” is used very loosely by the CCRB. In some cases, the CCRB was able to substantiate claims of abuse but found that the abusive acts were actually permitted by the NYPD’s lax guidelines on force deployment.

Even with all the limitations, it’s still possible to detect patterns of abusive behavior by certain officers. As ProPublica notes, more than 300 officers have at least five substantiated allegations. A small group of officers are apparently angling for union leadership positions.

Thirty-four officers have had 40 or more allegations against them.

This release by ProPublica is a major step towards the transparency the NYPD has spent years fighting. It provides some insight into the NYPD’s disciplinary issues. While the records may only cover a small percentage of the total force, the high number of substantiated allegations against a number of still-employed officers makes it clear it takes an incredible amount of abuse before one of New York’s finest finds themselves out of a job. As ProPublica notes, you’re more likely to end up out of a job if you expose an officer’s record of abuse. Compare the fate of the leaker to that of the uniformed killer of Eric Garner:

The city investigator who revealed the existence of the officer’s record was forced to resign in 2017; the officer himself wasn’t fired until 2019.

The best part of this is that the records are now public and there isn’t anything the PBA — or the NYPD officers it represents — can do about it. This release was probably inevitable, what with the repeal of 50-a. But rather than having to sit through rounds and rounds of motions and appeals, the public has access to records the NYPD would have never released on its own.

Filed Under: ccrb, discipline records, free speech, journalism, nypd
Companies: aclu, propublica