Washington Court Says Local Pot Dealers Can Hang Up Christmas Lights That Spell 'POT'

Free Speech

from the stop-telling-people-you-have-pot,-pot-sellers dept

Buying and selling marijuana is legal in the state of Washington. There are several limits placed on these acts, but it’s pretty much the equivalent of alcohol. You have to be 21, can only buy a certain amount at a time, and can’t smoke it in public or drive under the influence.

What’s apparently illegal is playfully announcing your pot business sells pot using nothing but Christmas lights. (via Reason)

In 2017, Hashtag Cannabis in Redmond, Washington hung up some Christmas lights on the store that spelled out “P-O-T.” Here’s a really terrible photo of the contested display, taken from the county court’s ruling on Hashtag’s pot sign:

Ho ho ho now I have a gravity bong.

The local authorities — the Washington Liquor and Cannabis board — were not amused. The Board cited the store for violating restrictions on signage, claiming the string of Christmas lights exceeded the allowable size of 1,600 square inches by 2,300 square inches. It also said the sign was not “affixed” to the “permanent structure,” which seems a little weird because lights have to be affixed to something and in this case it was the business’ building. The Board also took issue with the word “POT” because it wasn’t part of Hashtag Cannabis’ business name.

Two years later, Hashtag Cannabis has struck a blow for the little guy with Christmas lights, a weed business, and maybe a little too much time on his hands. The ruling [PDF] says the state’s regulations run afoul of state free speech protections, as well as the US Constitution.

The state argued its ban on POT in Christmas light form was crucial to the government’s “substantial interest” in “curtailing minor children’s interest in and exposure to the marijuana trade.” Inarguably, this is a legitimate interest. However, the laws governing this speech aren’t all that legitimate.

Though the State’s position rises above speculation and conjecture, the advertising restrictions have too many conflicting provisions to directly and materially advance the State’s substantial interest in preventing underage consumption of marijuana.

First, the court points out the law would allow a kid-enticing display of POT Christmas lights as long as it was a bit smaller.

As to content, at argument, counsel for the State agreed that Hashtag could register the word Pot as a business or trade name and then display the word Pot on an otherwise-compliant sign in the store. It follows that, so long as the sign was permanently affixed, no larger than 1,600 square inches, and did not exceed the two-sign limit, it would be permissible.

More ridiculously, Hashtag Cannabis could have built a billboard right next to the store that was even bigger — containing the same message — and would not have violated the statute.

While the State argues that the restrictions in RCW 69.50.369(2) advance the State’s interest because they “minimize the risk of inordinately capturing the attention of children, youth, and young adults,” Respondent’s Answer at 11, other provisions in the regulatory scheme undermine the advancement of that goal. Hashtag could have a sign using the word Pot if it just registers that business or trade name, and it could conceivably have an entire billboard next door to its store with the word Pot.

None of this speech curtailment adds up to any meaningful attempt to steer kids away from pot.

If the State wishes to minimize the risk of capturing the attention of children, restricting retailers to two permanently-affixed signs displaying the business or trade name of no more than 1,600 square inches on premises, but allowing billboards off premises, and allowing retailers to register business or trade names such as Pot, does not directly advance that goal.

The county court doesn’t say the whole law has to go. This is a very narrow ruling. But it’s just wide enough to squeeze Hashtag’s unorthodox Christmas light signage past it.

The Court’s ruling is limited to the on-premises content, size, and affixing restrictions applicable to marijuana retailers, set out in RCW 69.50.369(2) and WAC 314- 55-155(2)(a). The lawful sale of recreational marijuana is relatively new, and it is perhaps not surprising if there is not much research into the effect of advertising on potential underage consumers. The Board could not address the constitutionality of the advertising restrictions. This Court can only say that, on this record, as supplemented, the advertising restrictions violate the U.S. and Washington constitutions. The Court’s ruling does not eliminate all advertising restrictions or suggest a free-for-all.

Go wild with the lights, weed dealers. The county court has your back.

Filed Under: advertising, christmas lights, pot, washington
Companies: hashtag cannabis

Turkish Court Says Government's Two-Year Ban Of Wikipedia Violates Freedom Of Expression Rights

Free Speech

from the I-see-you've-made-your-ruling.-Now-let's-see-you-enforce-it. dept

The world’s second-largest jailer of journalists — Recep Erdogan’s Turkish government — has just been pushed back against ever so slightly by the country’s Constitutional Court. The government’s long-running ban of Wikipedia has been overturned, the Associated Press reports.

Turkey’s highest court on Thursday ruled in favor of Wikipedia, saying the Turkish government’s two-year ban on the online encyclopedia constitutes a violation of freedom of expression, the state-run news agency reported.

This ruling is somewhat of a surprise, given the authoritarian stance of the government. This ruling is also no-brainer, but one probably viewed by President Erdogan as redundant. Of course, it’s a violation of free speech rights. That’s what it was intended to be.

The government’s ban of Wikipedia began in April 2017 when the site refused to remove content the Turkish government claimed was a “threat to national security.” This included content suggesting Turkey’s government supported ISIS and other terrorist groups. When Wikipedia refused to engage in censorship on the Turkish government’s behalf, the government pulled the plug on all versions of Wikipedia.

Two years later, Jimmy Wales and Wikipedia petitioned the European Court of Human Rights, asking for a ruling reversing the ban and declaring it a violation of rights. Wikipedia has now secured a ruling doing these things, albeit from a court few people expected to side with the site. However, it may have been ECHR pressure that motivated this ruling. The ECHR expedited Wikipedia’s case, giving the Turkish government until the end of 2019 to justify the ban.

Apparently, no justification has been found. But this is only the beginning. The court has made its ruling. But the only thing that does — at least at this point — is keep the ECHR from handing down yet another judgment against Turkey. Not that those rulings have had any effect on the way the Turkish government goes about its business.

The ECHR has ruled against Turkey more than any other country. Ankara routinely ignores verdicts, choosing instead to pay court-ordered fines.

If it can ignore the European court, it can certainly ignore its own Constitutional Court. The ban may never be lifted. Erdogan seems willing to keep cutting checks if it helps keep pesky constituents in line and the government firmly in control of the narrative.

Filed Under: ban, censorship, cjeu, eu, free speech, recep tayyip erdogan, site blocking, turkey, web block, wikipedia
Companies: wikimedia

Federal Court Blocks Unconstitutional Arkansas Law That Prevents Plant-Based Food Companies From Using Meat Words

Free Speech

from the judiciary-once-again-asked-to-fix-stupid dept

Another case of nonexistent “customer confusion” is being litigated. Tofurky, the maker of several vegetable-based products, sued the state of Arkansas over its bogus [squints at Legiscan in disbelief] “Act To Require Truth In Labeling Of Agricultural Products That Are Edible By Humans” law.

The law, written at the behest of meat and dairy lobbyists, claims customers are “confused” by non-meat products that use meat-like words in their product descriptions. A law similar to this passed in Mississippi was recently found unconstitutional by a federal court, resulting in legislators rewriting the law to make it less, um, unlawful.

The Arkansas law has an added bonus not found elsewhere: wording targeting the use of phrase “cauliflower rice.” Why? Because Arkansas is home to the nation’s largest rice industry.

Not that any consumers were actually confused. If they had been, they would have approached lawmakers. Instead, the entities approaching legislators were entrenched interests claiming shoppers were too stupid to figure out veggie burgers don’t contain meat.

That law is now on death’s door, having been savaged by a federal judge calling bullshit on the state’s willingness to violate the First Amendment to make certain industries happy. (via AgWeek)

The ruling [PDF] blocks the state from enforcing the law while the rest of the particulars are sorted out, but it seems clear there’s no way the state can salvage this terrible legislation. Tofurky pointed out the law contains no exceptions for makers of plant-based meat alternatives, meaning the company has almost zero chance of ever complying fully with the law, even if it retools its packaging (at an estimated cost of $1,000,000) and does everything it can to keep Arkansas consumers from viewing ads targeting shoppers in states not saddled with idiotic laws.

The state argued that Tofurky’s use of words like “sausage,” “kielbasa,” “burger,” and “ham” confuse consumers despite Tofurky also using words like “white quinoa,” “all vegan,” “plant-based,” and a big “V” to distinguish its vegetarian and vegan products from the meats they emulate. The court says this argument is ridiculous.

The State appears to believe that the simple use of the word “burger,” “ham,” or “sausage” leaves the typical consumer confused, but such a position requires the assumption that a reasonable consumer will disregard all other words found on the label.

[…]

That assumption is unwarranted. The labels in the record evidence include ample terminology to indicate the vegan or vegetarian nature of the products. Additionally, “[t]here is no contention that any [consumer or potential consumer] was actually misled or deceived by” Tofurky’s packaging, labeling, or marketing.

It also pulls a delicious quote from a 2013 decision dealing with a different state’s attempt to carve out exceptions to the First Amendment on behalf of favored industries.

“Under Plaintiffs’ logic, a reasonable consumer might also believe that veggie bacon contains pork, that flourless chocolate cake contains flour, or that e-books are made out of paper.”

The court says the law is likely to be found unconstitutional. The state had other options to use to limit consumer confusion but decided to specifically craft a law that harmed plant-based food manufacturers and their free speech rights.

Tofurky identifies several in-effect federal and state laws directed at prohibiting deceptive labeling and marketing of food products, and consumer products more generally, with which Tofurky contends its food labeling complies; these laws have not been enforced against Tofurky’s labels based on the record evidence before the Court (Dkt. Nos. 1, ¶¶ 21-33; 15, at 11- 12). There also is no convincing argument as to why each of these laws is ineffective at policing the alleged deceptive or confusing practices the State purports to target. Further, as opposed to the prohibition in Act 501, the State could require more prominent disclosures of the vegan nature of plant-based products, create a symbol to go on the labeling and packaging of plant-based products indicating their vegan composition, or require a disclaimer that the products do not contain meat if further laws are deemed necessary to advance its stated purpose.

Because it went this route, the new law may as well have never been written, massaged, and put into effect. The state is blocked from enforcing it until Tofurky finishes succeeding on its First Amendment claims. Yeah, I’m writing it that way because that’s the only way this is going to turn out. The state doesn’t have a compelling argument up its sleeve that’s going to reverse what’s seen in this injunction order.

If legislators are going to close their minds and open their ears when lobbying dollars come calling, they’re going to end up creating stupid crap that puts Constitutional rights on the back burner to allow a few powerful incumbents to make a few extra dollars. Fortunately, the courts (for the most part) don’t care who’s donating to whose re-election campaign.

Filed Under: 1st amendment, arkansas, labels, meat, plan-based foods

Billionaire Sheldon Adelson Is Trying To Use An Anti-SLAPP Law To Get Out Of Paying Anti-SLAPP Damages And It Ain't Working

Free Speech

from the what-is-it-with-these-billionaires-and-their-slapp-suits dept

Billionaire casino mogul Sheldon Adelson has been known to be a bit litigious at times. Way back in 2015, when there was an effort underway to overturn Nevada’s very good anti-SLAPP law, there was speculation that Adelson was behind the effort, due to him losing a case thanks to that law. It turns out that the remnants of that particular case are still going, despite dating all the way back to events in 2012. The issue involves the National Jewish Democratic Council posting a link concerning operations in Adelson’s Macau casinos. The case went through a variety of different courts and was dismissed under Nevada’s anti-SLAPP laws.

But a variation on that case continued because when NJDC then sought compensatory and punitive damages for the original SLAPP suit, Adelson tried to flip the script and argued (among many other things) that the lawsuit against him for such damages was, itself, a SLAPP suit. Earlier this fall, the judge said that’s not how any of this works.

Adelson next moves for dismissal under Nevada?s anti-SLAPP law. He puckishly avers that his initial defamation suit ? even though it was dismissed as a SLAPP ? was itself protected conduct under the anti-SLAPP statute. He therefore argues that he is entitled to dismissal of this damages suit because it, too, qualifies as a SLAPP.

[….]

Under Adelson?s reading of these two provisions, any anti-SLAPP damages action can itself qualify as a SLAPP if the previously dismissed SLAPP was a ?good faith communication?? i.e., if the previous suit was not ?objectively baseless.? (Dkt. No. 30 at 6.) This interpretation of the statute, however, creates an oddity. It would be peculiar, to say the least, if Nevada wrote its anti-SLAPP statute to shield litigants who file SLAPPs from liability in a subsequent anti-SLAPP damages action. The twin aims of the statute are to protect defendants from litigation costs and to deter plaintiffs from bringing SLAPP claims. John, 219 P.3d at 1281. Those compensatory and deterrent purposes would be substantially undermined if the statute?s damages provision applied only to the subset of SLAPP lawsuits that could be demonstrated to be objectively unreasonable or brought in subjective bad faith.

The court still explores this issue and then notes… sorry, Sheldon, that ain’t gonna fly:

Adelson has not even attempted to meet his burden of production. For example, in order to establish that the communication was made in ?good faith,? the movant must provide evidence that the communication was ?truthful or . . . made without knowledge of its falsehood.? … But Adelson has not provided any evidence whatsoever? ?written or oral, by witnesses or affidavits,? … ? that the allegations in his initial lawsuit were truthful or brought without knowledge of their falsehood. Thus, Adelson has failed to demonstrate that his initial lawsuit was a ?good faith? communication. Because he has failed this threshold showing, Adelson?s special motion to dismiss is denied.

Adelson asked the court to reconsider this point, and a few days ago, the court again told Adelson that this is not how any of this works. Adelson tried to argue that he was held to a different standard when decrying this as a SLAPP suit than the folks on the other wide were held to when they called his original lawsuit a SLAPP suit. Part of the issue was that Nevada’s anti-SLAPP law changed a bit between the first lawsuit and the latest one:

Adelson descries an inconsistency. But these holdings are easily reconciled. At the time of Adelson v. Harris, the Nevada statute provided only that the special motion to dismiss was to be ?[t]reat[ed] . . . as a motion for summary judgment.?… Accordingly, the Court in Adelson v. Harris properly applied the summary-judgment standard to conclude that Adelson ?fail[ed] to demonstrate a genuine issue of material fact on the issue of good faith.?… In 2013, however, the Nevada legislature ?removed the language likening an anti-SLAPP motion to dismiss to a motion for summary judgment and set forth a specific burden-shifting framework.?… Under that framework, it is now the movant?s initial burden to ?establish[], by a preponderance of the evidence, that the claim is based upon a good faith communication.?… In this case, Adelson submitted no evidence whatsoever on the issue. Accordingly, Adelson failed to meet his burden, as required by the post-2013 statute, and his anti-SLAPP motion was properly denied.

In a footnote, the court also mocks Adelson trying to add “new facts” that were not brought up originally, and also points out that even if Adelson had met the burden described above, it still wouldn’t have resulted in the case being dismissed, since the Plaintiffs had a legitimate claim for damages according to Nevada’s anti-SLAPP law:

Further, as Plaintiffs correctly note, even if Adelson were deemed to have met his initial burden, he would still be disentitled to dismissal. The burden would then shift to Plaintiffs to demonstrate ?a probability of prevailing on the claim.?… And because the sole precondition to prevailing on the claim for compensatory damages is the district court?s grant of a special motion to dismiss, Plaintiffs would be able to do so.

While I doubt this case is anywhere close to over, despite all these years, it’s looking increasingly like Adelson will, in fact, have to pay up.

Filed Under: anti-slapp, damages, defamation, free speech, nevada, sheldon adelson

Nevada's Top Court Says The State's Journalist Shield Law Also Applies To Bloggers

Journalism

from the not-just-for-papers dept

Some good news for journalists in Nevada, via FourthAmendment.com. A decision made earlier this year by a state court has been reversed, resulting in an expansion of the protections offered by the state’s journalist shield law.

In March, Judge James Wilson — overseeing a defamation lawsuit filed by Storey County Commissioner Lance Gilman against blogger Sam Toll — decided the journalist shield law only protects journalists who work for printed newspapers. While it acknowledged the 1969 law also covers television journalists, it refused to extend these protections to Sam Toll and his blog, the Storey Teller.

Toll was actually a member of the Nevada Press Association at the time he was sued, but Judge Wilson said that didn’t matter because the alleged defamation occurred before he received these credentials. Wilson ordered Toll to divulge his sources. Toll challenged this decision, resulting in the state’s Supreme Court letting the lower court know it can’t define “journalism” so narrowly.

The decision [PDF] says the court needs to buy a few more dictionaries. The definition of “print” the lower court used isn’t the only one available.

Because “newspaper” was not defined by NRS 49.275, the district court relied on the definition of newspaper in other statutes as well as in a dictionary. When examining statutory definitions, the district court found that in order to constitute a newspaper, the media source must be “printed.” This was consistent with the dictionary definition of newspaper the district court used, which also stated a newspaper is “printed.” Therefore, because Toll’s blog was not printed in physical form, the court ruled it could not be a newspaper. However, if the district court had pursued the literal meaning of “print” further, it would have found that it could apply to digital media as well as physical form. In one dictionary, “print” is defined as “to make a copy of by impressing paper against an inked printing surface.” Print, Webster’s Third New Int’l Dictionary (2002). However, in another dictionary, “print” is defined as “to display on a surface (such as a computer screen) for viewing.” Print, Merriam-Webster’s Collegiate Dictionary (11th ed. 2020). Because “print” possesses two definitions that are equally applicable to this statute, the district court erred in limiting itself to only one.

The court then cites the Supreme Court’s Kyllo decision, which expanded Fourth Amendment protections to cover intrusive searches that don’t actually involve the government entering the home. In the Kyllo case, thermal imaging was used to “search” a house for occupants without actually going inside the residence. As the court points out here, protections offered by law shift over time, even if the original wording remains unchanged. If the Fourth Amendment protects against searches that don’t actually involve entering the home, it stands to reason the definition of journalism goes farther than covering printed newspapers only.

While the drafters of NRS 49.275 knew what a newspaper was, they likely did not contemplate it taking digital form. But just because a newspaper can exist online, it does not mean it ceases to be a newspaper. To hold otherwise would be to create an absurd result in direct contradiction to the rules of statutory interpretation. In Kyllo, the court considered technological advancements and arrived at the conclusion that one can “search” in more than one way. See 533 U.S. at 31-33. We consider technological advancements as well and arrive at the conclusion that one can “print” in more than one way.

The court doesn’t go so far as to say a blog is a newspaper, but Sam Toll and his blog shouldn’t be excluded from the state’s shield law just because Toll’s journalistic output isn’t printed on paper.

While we decline to resolve whether or not a blog falls under the definition of a newspaper, we conclude that a blog should not be disqualified from the news shield statute under NRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form.

The case goes back to the lower court with Commissioner Gilman’s demand that Toll identify his sources blocked. Without this, it’s unlikely Gilman will be able to continue pursuing his defamation lawsuit. This decision is a win for the state’s independent journalists, who are now protected by a law that hasn’t been revised since 1975. “Print” isn’t just ink and dead trees and hasn’t been for years. The state’s top court recognizes this and now the rest of the state’s courts are on the same digital page.

Filed Under: bloggers, journalism, journalists, lance gilman, nevada, sam toll, shield law

Tennessee Doctor Decides He Wants To Take The State's Anti-SLAPP Law For A Spin, Files Bogus Defamation Lawsuit Over A Negative Review

Defamation

from the like-SLAPPing-yourself-in-the-face dept

More nonsense is being perpetrated in Tennessee, the recent home to an inordinate amount of stupid defamation lawsuits. The timing on this one is a bit off. Tennessee just adopted a new anti-SLAPP law — one that actually has some teeth.

After receiving a stinging — but not apparently defamatory — review of his services, Dr. Kaveer Nandigam of Nandigam Neurology decided to sue his patient for $25,000. Here’s the review (which is still live on Yelp) that prompted the lawsuit:

This “Dr’s” behavior today was totally unprofessional and unethical to put it mildly. I will be reporting him to the State of TN Medical Review Board and be filing a formal complaint. How this guy is in business is beyond me. Since when did they start allowing Doctors, to throw a complete temper tantrum in front of Patients and slam things when they get upset? He does not belong in the medical field at all.

Here’s the background on the alleged temper tantrum, as told to Matthew Torres of Nashville’s News Channel 5.

After being referred to Nandigam Neurology, [Kelly] Beavers brought her 67-year-old father for dizziness and memory loss, which may have been early signs of dementia. There have been prior interactions with the staff but never with the doctor until the last visit. Beavers says the interaction seemed fine at first, but that the doctor then threw a temper tantrum and slammed his clipboard when he realized she was recording the appointment on her cell phone, which is something she has done with other doctor visits.

“Sometimes we all have things we forget, so that’s why I record every doctor’s visit. I want to make sure that I’m doing everything right,” she explained. “He literally snapped and demanded my phone.”

The issue isn’t the recording. Tennessee is a one-party consent state, so Beavers didn’t need to ask permission before recording her father’s visit to Nandigam Neurology. The doctor’s demand she delete the recording is what’s out of line here. Beavers did delete the recording, but she wasn’t happy, and she turned to Yelp to express her displeasure.

Nandigam’s lawsuit (which multiple sites have covered but apparently no one can be bothered to post the complaint) claims Beavers’ review contains “false, disparaging, and misleading statements.” This is boilerplate and isn’t going to get the plaintiff very far — not when the review contains nothing more than Beavers’ opinion on the doctor’s behavior. She’s not part of the state’s medical board so she can’t actually make a factual declaration about unethical behavior. She can only present her subjective take on medical/professional ethics and she obviously felt being yelled at and told to delete a recording crossed that line.

The more interesting claim is this one:

The lawsuit also suggested that the second defendant “was specifically recruited” by Beavers to post false and misleading statements.

This drags the son of one of Beavers’ friends into the lawsuit. Allegedly, her friend’s son posted a negative review to Google after hearing about her experience. Dr. Nandigam frames this as a “conspiracy.” It’s a hot take and it probably won’t play well in court.

The downside is Beavers will have to defend herself against this bogus lawsuit. She’s started a GoFundMe for legal fees. Hopefully, the state’s new anti-SLAPP law will allow her to escape this suit before she has to spend too much money. And, if the court decides in her favor, she should be able to recover her legal fees from a doctor who has done more to damage his own reputation than Beavers’ single negative review ever could have done.

Filed Under: anti-slapp, kaveer nandigam, kelly beavers, reviews, slapp, suing patients, tennessee
Companies: nandigam neurology

Robyn Openshaw, 'The Green Smoothie Girl,' Threatening SLAPP Suits Over Mediocre Reviews

Defamation

from the don't-do-this dept

Various health fads come and go. One particular one that I guess has been around for a bit is the idea of drinking “green smoothies.” This was made popular by Robyn Openshaw, who is called “The Green Smoothie Girl” and has written a bunch of books, all around her views on approaches to losing weight and health, including the aforementioned green smoothies, and various “detox” plans. There’s also something about “vibrations,” but that’s about as deep into the weeds as I was going to get on her views on staying healthy.

I have no opinion on whether or not any of that stuff works or is good for you (do your own research!) but it does appear that the Green Smoothie Girl, Robyn Openshaw, is not at all happy about negative reviews. People who merely posted on Facebook saying that Openshaw’s claims were “unproven” among other things, started receiving threatening messages demanding that these mildly negative reviews be taken down or they would face lawsuits:

Someone at least claiming to work for Robyn was contacting people with ridiculously baseless threats. The threats are so ridiculous as to be laughable:

Sarah Jane, my employer is Robyn Openshaw, Influence Brands, and GreenSmoothieGirl.

You have until midnight tonight, to remove your negative reviews on her various companies. We have screenshotted your slander and cyberbullying and will engage our attorneys and PI’s to send you a FORMAL C&D, should you not wish to comply, as well as file a lawsuit against you which will include damages to her….

[….]

… as we work together to gather information and file complaints, as well as court costs, in our state (not yours.)

As soon as your name is in the lawsuit for damages, slander, and cyberbullying with charges in all applicable case law, we will hold you accountable for those charges as lon gas it takes. You can probably infer that this will be very expensive.

Most of that is word salad, with a few nonsense legal terms tossed in for shits and giggles. But, it’s a nice touch to flat out admit in the threat to file a SLAPP suit that you’re doing it because it will “be very expensive.” Good to admit that that’s your intention upfront, right?

I would imagine this will end up in the media as well.

You don’t say…

Should you choose to delete all your false reviews, we will not subpoena Facebook for all your information and pursue legal action against you. We will just watch your actions in case you do any more, and at that point we will take ALL of the evidence to the authorities.

The authorities? I love legal threats that don’t know the difference between civil complaints and criminal charges, but, hey. It all sounds vaguely about the law.

But wait, there’s more:

There are some true classics in here.

I highly recomment you take quick action to remove the negative reviews, as they legally qualify under many laws/statutes as slander and bullying, and the law holds you accountable for the financial and other losses businesses incur due to your actions–even the time we employees spend having to document your actions and pursue you, will be collected in a court judgment against you.

That review must have been pretty bad, right? Nope:

Since then First Amendment lawyer Ari Cohn has been cataloging more and more insanity around these threats. We’ve heard of some unique interpretations of Section 230 in the past, but this might be the craziest:

That includes an image first of someone asking for info on a commenter be sent to Openshaw so “he can be served legally and peacefully” and then shows Openshaw stating the following, which appears to likely be her mangling how Section 230 works:

Lannette Syck also attorney confirms I am not liable for what I say here. This is my page.

They are the ones out of bounds. They come on my page and the pages of my business.

Um… what?

And, of course, it quickly came out that they were sending these kinds of messages to others who wrote negative reviews as well. And, as we all know by now, you’re not doing vexatious legal threats correctly if you don’t eventually get around to doing the RICO. And I think we can say mission accomplished on that one:

That’s a message, direct from Openshaw’s account (rather than an “employee”) saying:

She wasnt a commenter. She committed felony tortious interference and RICO.

let her know it’s slander and tortious interference when I can prove she’s not a customer or follower and she was told to go attack my page by pharma mafia troll.

Clueless trolls don’t know c&d is a warning.

Should they want to remove the fraud review before they get served.

They can disregard, their choice, and get served.

All the fake reviews posted within 48 hours of supertroll BKM telling others to attack my page, plus tagging her troll friends right here on my page to go post fake reviews.

We have all the screen shots.

Felony convictions are a matter of public record and can keep you from getting a job or a loan.

Felony convictions? For posting a mildly negative review? That’s not how any of this works.

Also, she seems to think that violating Facebook’s terms of service is the same as violating the law. And cyber consultants something something something.

That’s another message from Robyn’s own account:

[Redacted], would you like to take your troll posts down–on your page, and the comment on mine–or would you prefer my cyber security specialist serve you at your work with my attorneys’ C&D and lawsuit for defamation and violating Facebook’s bullying policies, and you have violated both–which are here:

* descriptions of photos that degrade someone’s appearance or character.
* targeting someone with threats

Your choice. Let me know by midnight tonight, because I have some legal actions to initiate tomorrow. If there is a cyber bullying lawsuit, we will seek all my legal and cyber consultant fees.

Sounds credible!

And apparently, RICO isn’t enough, because eventually, you need to take it up a notch. To terrorism.

That appeared to be a bit of an “airing of grievances” by Robyn with those who left negative comments, and includes this whopper:

My attorney will subpoena Facebook Monday so I can sue her for damages and engage Facebook to find her actual identity and any other fake profiles where she spreads hate speech and terrorism.

And there’s more. This time, a message from “Drew Millz.”

Well, the c&d is obviously informal, as it said, from a non attorney (who is talking to attorneys as she vets them for who is most qualified to sue the rolls doing damage to her business, harassing, and other cyber crimes).

And when the suits against those doing damage to her business are filed, they will of course all be based on actual law.

Well, phew. Actual law. Like the 1st Amendment? Might want to look that one up before suing over speech.

All of you can discuss at will but if you do damage to Ms Openshaw and her publishers’ properties or slander or harass you will face legal consequences.

Some will be served at home and some at work so be mindful if you are the type of person to harm strangers’ IP and web properties.

Some of you have done it to many people and we are collecting that evidence to make this a larger order and TRO than just Ms Openshaw.

But no one sending the INFORMAL c&d claimed to be an attorney.

The informal c&d stated these options are being considered.

The legal team about to represent Ms Openshaw in these actions feel there is RICO justification for two of the supertrolls.

RICO justification? Informal C&Ds? This is just so much fun, I might have to go drink an orange smoothie to celebrate. Anyway, the informal cease and desist letters then turned into “draft” C&D letters, because that makes no sense at all. Also, they promise to drag the people they’re threatening to Utah to defend this, once again effectively admitting that this is vexatious.

There’s also a separate Twitter account that first claimed Openshaw was already sending subpoenas and also looking for a lawyer (i.e., sending subpoenas before having a lawyer?!?):

Robyn Openshaw, public figure THE #1 health site , is seeking a top attorney that specializes in cyber bullying. She has been very public that she is going to sue a number of the trolls & is already subpoenaing their info and says it will ALL be in public court of law record! thx

And when more knowledgeable people pointed out how silly this claimed, the responses got worse:

She didn?t have to get any of the information subpoenaed. Asking the universe will provide. This is going to be an epic case that will set a precedence and she said these trolls are going to pay. With more than money.

Asking the universe will provide.

If her knowledge of health and wellness is at the same level as her knowledge of the law, well, I’d maybe stay away from green smoothies.

The threats on Facebook have continued — with the latest coming from a brand new profile under the name “Jeff Johnson” claiming that Openshaw doesn’t want to harm anyone’s right to free speech — but somehow calling out her bogus threats is an attack on her free speech. Because, of course:

That one also includes some fun insults about “under employed lawyers” and warnings about more lawsuits.

I get that people not fawning over you may feel bad. And that negative reviews may hurt. But hitting back with bogus legal threats, then doubling down with even more threats that are in no way reflective of the actual law, is no way to go through life.

Filed Under: cyberbullying, defamation, free speech, green smoothie girl, reviews, robyn openshaw, slapp, threats

Judge Orders Man Who Violated Recording Ban To Publish An Essay About Respecting The Court AND To Delete All Negative Comments From Readers

Free Speech

from the you-weren't-doing-anything-with-your-free-speech-rights-anyway dept

Eugene Volokh of the Volokh Conspiracy highlights a very unusual court order that seems to think the First Amendment is only for people who haven’t pissed off judges.

The background of the case is this: Davin Eldridge frequently attended proceedings at the Macon County Courthouse. Despite signs stating that recording devices were prohibited in the court, Eldridge brought in recording devices and recorded proceedings.

He was caught on more than one occasion, with Eldridge’s latest attempt at not-all-that-much-subterfuge-tbh interrupted by the presiding judge. From the court order [PDF]:

While in the courtroom, defendant was observed sitting on the second row with a cell phone, holding it “shoulder-chest level” towards the front of the courtroom. The officer went over to defendant and instructed him to put his phone away. Defendant replied, “I’m not doing anything.” The Honorable William H. Coward, Superior Court Judge of Macon County, was presiding over a criminal matter at that time. Judge Coward was informed that a live posting of the hearing in session was streaming from a Facebook page. Based on that information, Judge Coward interrupted the hearing to issue a reminder that recordings of courtroom proceedings were prohibited by law. At the conclusion of the hearing, Judge Coward viewed the Facebook postings by defendant, which included footage of the inside of the courtroom and the prosecutor presenting his closing argument.

Eldridge was ordered to return to the court later that day to be spoken at by Judge Coward. Eldridge did not do this.

Four days later, the court ordered Eldridge to show why he should not be held in contempt of court for his recordings and his failure to return to the court on November 28. Eldridge responded by trying to have Judge Coward recused. This was denied and Eldridge was given a 30-day jail sentence.

Eldridge appealed this finding of contempt and the denial of his recusal request. The North Carolina Appeals Court affirmed everything Judge Coward’s court had handed down (including Judge Coward’s non-recusal). Unfortunately, this means the state Appeals Court saw nothing wrong with the punishment handed down by Judge Coward — one that looks like a whole lot of imposition on Eldridge’s First Amendment rights and the introduction of some unjustified (and likely impossible) moderation demands.

Along with a suspended sentence and fines and fees, the court ordered Eldridge to do this:

[D]raft a 2,000-3,000 word essay on the following subject: “Respect for the Court System is Essential to the Fair Administration of Justice,” forward the essay to Judge Coward for approval, and following approval, post the essay on all social media or internet accounts that defendant owns or controls or acquires hereafter during his period of probation and attributed to defendant, without negative comment or other negative criticism by defendant or others, during said period of probation…

Compelled speech is fine, says the Appeals Court. Actually, it doesn’t say exactly that because Eldridge never bothered to raise a First Amendment argument. But that’s the end result of this opinion, which upholds the sentence handed down by Judge Coward, including the compelling of speech by Eldridge and — even more questionably — demands he police his post for any negative comments from third parties and remove them. But the court condones this imposition on Eldridge, which implicates not only his First Amendment rights but those of readers of his posts.

Such conditions are reasonably related to the necessity of preventing further disruptions of the court by defendant’s conduct, and the need to provide accountability without unduly infringing on his rights.

I doubt that. The other punishments might be reasonable and not “unduly infringing” but Coward’s court isn’t going to end up any more respected by Eldridge just because it forced him to write an essay about respecting the court. It may deter him from blowing off the “No Recordings Allowed” signs in the future but it won’t change anyone’s minds about Judge Coward’s apparent lack of respect for Constitutional rights.

This is pointed out by the dissenting opinion, which says this part of Eldridge’s sentence is just completely wrong.

The probation condition imposed by the trial court requiring Defendant to write and publish an essay about respect for the courtroom on his social media and internet accounts and to delete any negative comments made by third-parties on this essay bears no reasonable relationship to Defendant’s rehabilitation or to his crime and raises serious First Amendment concerns.

The dissent is okay with the compelled speech — the writing of the essay. This “bears a reasonable relationship” to the contemptuous recordings Eldridge engaged in, says the dissent. Policing comment threads? Not so much.

It holds Defendant responsible for what is essentially the behavior of others; and while there is some truth to the adage that we are only as good as the company we keep, the relevant community in this context is incredibly diffuse, extending through cyberspace. The lack of reasonable relationship between Defendant’s crime and his rehabilitation to the requirement that he monitor comments made on the essay and delete any critical comments violates the statutory requirement contained in N.C. Gen. Stat. § 15A-1343(b1)(10). My vote therefore is to vacate this condition of his probation.

Good call, although the compelled production of an essay on respecting the courts seems just as troubling as the requirement to monitor it for negative comments. Either way, it doesn’t matter. The dissent has weighed in but it’s the majority’s opinion that matters. The First Amendment is no match for an angry county judge.

Filed Under: 1st amendment, compelled speech, content moderation, court order, davin eldridge, free speech, respect, william coward

Four Congressional Reps Ask Bill Barr To Restart His War On Porn

Free Speech

from the we-got-tired-of-dealing-with-issues-our-constituents-want-us-to-deal-with dept

A handful of Congress members seem to think we need a War on Porn to go with our War on Drugs and our War on Terror. They think they have the right person in the DOJ to get this war machine mobilized.

Yes, it’s Bill Barr. The same man who decided the DOJ should start pushing obscenity prosecutions back in 1992 when he was Attorney General is being petitioned by a moral minority in the House to Make America Unconstitutional Again.

The letter, signed by Reps Jim Banks, Mark Meadows, Vicky Hartzler, and Brian Babin, asks Bill Barr to turn the DOJ into an anti-porn organization again. A statement accompanying this attempted First Amendment broadside was sent to the National Review by Rep. Banks. It includes two links to Fight The New Drug — the group of non-medical/psychological experts behind the push to label porn a “public health crisis” — and one to the UK’s infamous Daily Mail, to give you some idea what sources these reps consider credible.

As online obscenity and pornography consumption have increased, so too has violence towards women. Overall volume of human trafficking has increased and is now the third-largest criminal enterprise in the world. Child pornography is on the rise as one of the fastest-growing online businesses with an annual revenue over $3 billion. The United States has nearly 50% of all commercialized child pornography websites. Pornography is ubiquitous in our culture and our children are being exposed at younger ages. Nine in every ten boys under the age of 18 have seen porn. Children are struggling with pornography addiction.

The letter [PDF] reminds Bill Barr of his anti-porn roots and suggests he all but killed the industry nearly 30 years ago before the next administration decided fighting CHILD porn might be a better use of the DOJ’s resources.

There’s a moral panic to be had here. Not a new one, mind you. This moral panic has resulted in multiple states buying what these moralists-posing-as-researchers are selling, as well as the UK’s multiple failed attempts to mandate some sort of porn filtration system for the nation.

It begins with some dubious claims and gets stupider from there:

The Internet and other evolving technologies are fueling the explosion of obscene pornography by making it more accessible and visceral. This explosion in pornography coincides with an increase in violence towards women and an increase in the volume of human trafficking as well as child pornography. Victims are not limited to those directly exploited, however, and include society writ large. This phenomenon is especially harmful to youth, who are being exposed to obscene pornography at exponentially younger ages.

There has been no increase in violence against women. The number of reported rapes has been declining for four decades straight. So have other forms of violence, including intimate partner homicide. Correlation is not causation, as we all know, but attempting to correlate the increasing accessibility of porn with an “increase in violence” that doesn’t actually exist is a whole new level of intellectual dishonesty. The rest of the paragraph is deliberately vague, invoking some sort of existential threat the actual facts don’t back up. And sooner or later, someone’s going to need to be writing angry letters to the DOJ because fetuses are being exposed to porn, if the “exponentially younger ages” trend continues.

More honestly, this Gang of Four reminds AG Barr that none other than the President himself promised to wipe out porn. The “Children’s Internet Safety Policy” was signed by Trump in 2016, a few months before he was elected. It was crafted by Enough Is Enough, a non-profit warmly regarded by Fight The New Drug. The “pledge” included footnotes that complete the circular reasoning loop, citing the number of “public health crisis” declarations by state legislatures that groups like Enough Is Enough and Fight The New Drug pushed for and co-wrote as evidence of porn’s ability to upset the public health apple cart.

It’s all very stupid and the worst kind of virtue signalling. Unfortunately, it’s also likely to grab Barr’s attention. It’s not even subtle about its intentions to give Barr something he would love to run with because it’s just the sort of thing Barr would love to run with. It opens with “we write to you out of concern for the rule of law,” for fuck’s sake, which is Barr’s thing. No one loves the “rule of law” more than this blue-backing, encryption-threatening, civilian-bullying loudmouth, so this is basically saying the things he’s probably already thinking.

AG Barr has never been too concerned about what the Constitution says his agency can and can’t do. The First Amendment implications of running with this half-assed idea will be shrugged off as well. If Barr wants a war, he can have one. It just won’t be the war he expects.

Filed Under: 1st amendment, bill barr, brian babin, doj, jim banks, mark meadows, obscenity, porn, vicky hartzler, william barr

Russia Blocks All Of Shutterstock Due To 'Offensive' Image Involving The Russian Flag

Free Speech

from the shutter-to-think dept

We’ve talked quite a bit over the years about Rozcomnadzor, the Russian agency in charge of policing the internet for copyright infringing content… and really anything else that the Russian government decides it doesn’t like. The agency operates exactly as deftly as you would expect, routinely blocking entire sites that are in regular use in Russia over a tiny percentage of “illicit” use. The problem, of course, is that Rozcomnadzor often interprets “illicit” uses of the internet to mean embarrassing public Russian figures with ties to the government, criticizing the government itself, or using basic internet security tools such as VPN to keep the Russian government out of one’s internet use. This makes it all the more infuriating that American groups such as the MPAA have happily signed on with the Russian agency in an effort to protect copyright content, despite the agency’s more widespread aims.

It keeps happening. Recently, stock photo site Shutterstock — all of it — suddenly appeared on the Russia banned sites list. You might be assuming that this is a copyright issue, but it isn’t.

However, those who visit the URL detailed at the top of the notice will find what appears to be an image of a Russian flag placed in the middle of a pile of excrement. Russian authorities do not take kindly to their national symbols depicted in such a fashion and have laws in place to prevent it.

As a result, Russian ISPs are now blocking two Shutterstock-related IP addresses (one in Germany, one in the Netherlands) which are both operated by cloud company Akamai. Whether other sites using the same IP addresses are also being affected is currently unclear.

For good measure, Russia is also targeting the image.shutterstock.com domain. As highlighted by Russian digital rights group Roskomsvoboda, which first reported the news, this is particularly problematic since rather than tackling just a single URL, a whole HTTPS subdomain is in the register.

As a recap, because the Russian government is upset over someone putting an image online of the Russian flag in less than flattering circumstances, Shutterstock’s domain is blocked nationwide. This is about where I’d like to ping the MPAA and ask again about its support of Rozcomnadzor. After all, the MPAA signed on with the Russian agency over a concern on copyright protection, ostensibly so that creative types could sell their wares to legitimate buyers. With this overreaction of a site-wide block of Shutterstock, a whole bunch of stock photo artists have suddenly lost their ability to sell their creative works.

One also wonders just how long this can go on without a massive reaction by the internet-using Russian public. After all, with these massive overblocks, eventually the Russian government will run out of internet to deprive of its citizens.

Filed Under: censorship, rozcomnadzor, russia, russian flag, site blocking
Companies: shutterstock