The NY Times Got It Backwards: Section 230 Helps Limit The Spread Of Hate Speech Online

Free Speech

from the get-it-straight dept

A few weeks back, we wrote about the NY Times absolutely terrible front page of the Business Section headline that, incorrectly, blamed Section 230 for “hate speech” online, only to later have to edit the piece with a correction saying oh, actually, it’s the 1st Amendment that allows “hate speech” to exist online. Leaving aside the problematic nature of determining what is, and what is not, hate speech — and the fact that governments and autocrats around the globe regularly use “hate speech” laws to punish people they don’t like (which is often the marginalized and oppressed) — the entire claim that Section 230 “enables” hate speech to remain online literally gets the entire law backwards.

In a new piece, Carl Szabo, reminds people about the second part of Section 230, which is what says that websites aren’t held liable for their moderation choices in trying to get rid of “offensive” content. Everyone focuses on part (c)(1) of the law, the famous “26 words” that note:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

But section (c)(2) is also important, and part of what makes it possible for companies to clean up the internet:

No provider or user of an interactive computer service shall be held liable on account of?

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)

That part was necessary to respond to (and directly overrule) the ruling in Stratton Oakmont v. Prodigy, in which a colorful NY judge ruled that because Prodigy moderated its forums to keep them “family friendly,” it was then legally liable for all the content it didn’t moderate. The entire point of 230 was to create this balancing carrot and stick, in which companies would have incentive both to allow third parties to post content but also to make their own decisions and experiment with how to moderate.

As Szabo notes, it’s this part of (c)(2) that has kept the internet from getting overwhelmed by spam, garbage and hate speech.

Section 230(c)(2) enables Gmail to block spam without being sued by the spammers. It lets Facebook remove hate speech without being sued by the haters. And it allows Twitter to terminate extremist accounts without fear of being hauled into court. Section 230(c)(2) is what separates our mainstream social media platforms from the cesspools at the edge of the web.

[….]

While some vile user content is posted on mainstream websites, what is often unreported is how much of this content is removed. In just six months, Facebook, Twitter, and YouTube took action on 11 million accounts for terrorist or hate speech. They moderated against 55 million accounts for pornographic content. And took action against 15 million accounts to protect children.

All of these actions to moderate harmful content were empowered by Section 230(c)(2).

What isn’t mentioned is that, somewhat oddly, the courts have mostly ignored (c)(2). Even in cases where you’d think the actions of various internet platforms are protected under (c)(2), nearly every court notes that (c)(1)’s liability protections also cover the moderation aspect. To me, that’s always been a bit weird, and a little unfortunate. It gets people way too focused on (c)(1), without realizing that part of the genius in the law is the way it balances incentives with the combination of (c)(1) and (c)(2).

Either way, for those who keep arguing that Section 230 is why we have too much garbage online, the only proper response is that they’re wrong. Section 230 also encourages platforms to clean up the internet. And many take that role quite seriously (sometimes too seriously). But it has resulted in widespread experimentation on content moderation that is powerful and useful. Taking away Section 230’s protections, or limiting them, will make it that much more difficult.

Filed Under: content moderation, free speech, hate speech, section 230

Months After Christchurch Shooting, The Australian Government Is Issuing Site-Blocking Orders Targeting Footage Of The Incident

Free Speech

from the oh-right-we-were-supposed-to-be-doing-something dept

Following the Christchurch shooting in New Zealand, governments sprang into action to declare the internet to be the real villain. It wasn’t. And isn’t. But that didn’t stop a strange series of policies from being enacted.

The New Zealand censorship board declared footage of the shooting — captured by the shooter himself — illegal. Once it had made it illegal to share or possess, it went after those who did, resulting in at least one person being sent to prison for making the footage available online.

The Australian government followed suit. It declared the footage illegal, putting pressure on social media companies and service providers to take down uploaded copies “expeditiously.” This term wasn’t defined in the rushed legislation. Nor were companies given any guidance on what amount of time was considered “reasonable” to react to reports of uploaded footage in order to avoid $168,000 (per incident) fines. Presumably the Australian government would know reasonableness when it saw it and fine accordingly.

Companies did what they were vaguely instructed to do. So did Australian internet service providers. The Guardian reports blocking efforts began immediately, with ISPs targeting any site where the footage was hosted. To date, these efforts have resulted in the blocking of 43 websites. It appears ISPs are maintaining their own blocklists, since the government hadn’t bothered to hand down any guidance on its recently-passed “abhorrent content” law.

Months after the fact, the Australian government is finally codifying the block orders it’s issuing.

To avoid legal complications the prime minister, Scott Morrison, asked the e-safety commissioner and the internet providers to develop a protocol for the e-safety commissioner to order the websites to block access to the offending sites.

The order issued on Sunday covers just eight websites, after several stopped hosting the material, or ceased operating, such as 8chan.

To have these blocks lifted, sites have to take down the material. But the review process lags behind the takedowns. Block orders are only reviewed every six months by the e-safety commissioner’s office.

There are obviously speech concerns that aren’t being addressed by this process or the legislation that prompted these site-blocking efforts. The footage and the shooter’s manifesto are undeniably newsworthy. They are also of interest to researchers and any number of law enforcement agencies. Unilaterally declaring these illegal turns these parties into criminals. The law doesn’t appear to contain any exceptions for journalists, researchers, or anyone else who may have a legitimate reason to possess or share this content.

The Australian government is fine with this because the e-safety commissioner has unilaterally declared this content to be so bad there can be no legitimate reason for anyone to have it in their possession.

“The slippery slope argument I keep seeing [is] this is not obscene content or objectionable content [but] it’s clearly illegal. I don’t see any public interest in making this kind of material that is designed to humiliate and to incite further terrorist acts and hatred.”

Well, okay. I guess as long as a government official can’t see any public interest, there must be no public interest concerns. These blocking orders may be targeting specific content that’s fairly distinctive, but the e-safety commissioner’s statement ignores the breadth of the law, which targets far more than these two pieces of content.

The Sharing of Abhorrent Violent Material bill creates new offences for content service providers and hosting services that fail to notify the Australian federal police about or fail to expeditiously remove videos depicting “abhorrent violent conduct”. That conduct is defined as videos depicting terrorist acts, murders, attempted murders, torture, rape or kidnap.

There goes a whole lot of newsworthy content, including content that may have investigative or evidentiary value. The vagueness of the law encourages proactive efforts from social media companies, which is going to result in a lot of false positives, as well as the memory-holing of content that’s arguably of public interest, no matter how “abhorrent” that content may be.

Filed Under: australia, censorship, free speech, site blocking

YouTube Lets Indonesian Government Block Satirical Video That Criticizes The Indonesian Government

Free Speech

from the you're-not-helping dept

Recent protests in West Papua have made things uncomfortable for the Indonesian government. The protests were triggered by recordings of Indonesian military personnel taunting Papuans and calling them racial slurs. The Indonesian government responded to the protests by shutting down internet access and seeking to arrest a prominent West Papua civil rights lawyer for allegedly spreading “fake news.”

West Papua was formerly its own nation but it was handed over to the Indonesian government in 1969 following a “free choice” voting process that saw about 1,000 “delegates” chosen by the Indonesian military override the will of the country’s residents, making it officially a province under the Indonesian government’s control. That’s obviously not working out well for Papuans.

If you’re wondering how West Papua has arrived at this flash point, this hilarious/disturbing video produced by The Juice Media explains the whole thing. And it explains the Australian government’s complicity in the Indonesian government’s subjugation of the West Papuan people. (NSFW language throughout. Here’s an annotated script if you’d rather read about it.)

That explains where the nation is at now, and why its people want to be free of their Indonesian overlords. It also explains why no one nearby is riding to their rescue, since it’s clear the Australian government would rather maintain its ties with the regime presiding over West Papua than try to help clear a path to independence.

That also explains why The Juice Media was recently informed this video can no longer be viewed in Indonesia. It appears the government has filed a legal complaint targeting the video embedded above, resulting in it being blocked in Indonesia.

For whatever reason, The Juice Media is completely unable to challenge this decision by YouTube. A screenshot of the account’s dashboard doesn’t even show the complaint, nor does anything sent to the account by YouTube explain what law was broken or which government entity filed the complaint.

The problem with YouTube complying with local laws is that many local laws are written solely for the purpose of making censorship easier. Allowing the Indonesian government to target content it doesn’t like to keep its citizens from learning more about its abuses just ensures more abuses will occur. The cycle will continue until someone decides the spread of information is more important than staying in the good graces of authoritarians.

Filed Under: australia, censorship, free speech, honest ads, indonesia, satire, streisand effect, west papua
Companies: the juice media, youtube

Court Tosses $100 Million Defamation Suit Brought By Former Trump Spokesman Over Reporting On Court Documents

Defamation

from the that's-not-how-defamation-works dept

A federal court has dismissed a defamation lawsuit brought against the Splinter website by a former Trump staffer. Jason Miller, a Trump campaign spokesman, sued after Splinter published an article that included allegations made by another Trump staffer Miller had an affair with. The allegations being sued over weren’t your normal allegations. These allegations were made in court by A.J. Delgado, Miller’s affair partner who later had Miller’s child.

Whether or not the allegations made by Delgado were true is irrelevant. Miller may have been correct his reputation had been damaged by the publication of these court documents (but $100 million-worth?), but the fact remains they were court documents. Filing a defamation lawsuit over reporting on court documents is per se stupid.

The thing about allegations made in court is that, while they can be defamatory, they cannot be sued over. Miller understood at least this much, it appears, because he didn’t sue the staffer he had an affair with. He instead sued Splinter, which published an article containing the court document with the allegations in it. Miller may have thought he had found a softer target. But he was wrong, as the federal court points out.

Reporting on court documents is protected under New York law. Splinter invoked this law to defend its reporting. The court agrees the law applies. Because it does, it has no reason to examine any other of Miller’s claims. From the decision [PDF]:

Under New York’s fair report privilege, codified in section 74 of its Civil Rights Law, “A civil action cannot be maintained against any person, firm, or corporation, for the publication of a fair and true report of any judicial proceeding . . . .” N.Y. Civ. Rights Law § 74 (alteration and emphasis added). The purpose of the statutory privilege is to protect reports of judicial proceedings “made in the public interest.”

Because Splinter was honest about how it obtained this document and, crucially, included the document itself in its post so readers could draw their own conclusions about the contained allegations, the court finds it fulfilled the requirements of the state law on court document reporting.

With the summary judgment standard in mind, review of the record shows the Article: (a) states the allegations come from an “explosive new court filing” in the “ongoing custody battle” between Plaintiff and Delgado (Article 2); (b) describes the “acrimony” between Plaintiff and Delgado (id. 4); (c) describes how Delgado obtained the information (see id.); (d) quotes the victim’s alleged reaction to the journalist, exactly as it is quoted in the Supplement (see id. (quoting Jane Doe stating: “Yes, that happened to me — how did you know? Who told you?” (internal quotation marks omitted)), see also Supplement 9 (same)); and significantly (e) embeds a full copy of the Supplement, so readers can review the Supplement without leaving the webpage (see Defs.’ SOF ¶ 91). Considering these undisputed facts, the Article is a substantially accurate report on the Supplement under New York law.

Always post documents. It’s amazing how many reporters treat court records as privileged information, limiting readers to the journalist’s interpretation of a ruling or filing. More generally, suing over reporting on court documents is a bad idea. If you can’t sue people for what they say about you in court, it would seem to follow that suing for reporting on what people said about you in court is a non-starter.

Filed Under: 1st amendment, aj delgado, court records, defamation, fair reporting, jason miller, splinter news

Devin Nunes Drops One Ridiculous Lawsuit, Only To File Another One

Free Speech

from the featuring-rico! dept

A month ago we wrote about Devin Nunes’ third lawsuit against his critics over their speech, and noted that he was promising in the press that more lawsuits were coming. We noted that the latest lawsuit was slightly odd in that he actually filed it in California, rather than Virginia (as with his first two lawsuits), and in California he could face real anti-SLAPP penalties (i.e., paying the other side’s legal fees). Perhaps that’s why that lawsuit was not actually filed by Nunes himself, but rather his campaign. If it got tossed out via anti-SLAPP, then suckers who donated to his campaign would foot the bill, rather than Nunes directly himself. Either way, we’ll likely never find out because as suddenly as that case was filed, it’s now been dismissed by Nunes. Amusingly, Nunes’ lawyer is claiming victory:

?We gathered further evidence which supports the plaintiff?s overriding concerns that dark money is being used to influence our elections,? Kapetan said. ?Given the new evidence recently discovered, the Nunes campaign committee voluntarily dismissed the lawsuit and the allegations underlining the lawsuit will be incorporated in a (racketeering) lawsuit filed in Virginia today.?

And that brings us to the new lawsuit that Nunes filed on Wednesday. It’s a $10 million racketeering (RICO) case against Fusion GPS and Glenn Simpson along with the Campaign for Accountability. You may recall them from such past news as the infamous “Steele Dossier.” Nunes has spent months insisting (incorrectly) that the Steele Dossier is some evidence of some massive overreach by US law enforcement or the intelligence community (leaving aside that under the previous administration Nunes was one of the most vocal cheerleaders for increased surveillance powers of the intelligence community) to spy on Americans. Yet when those powers may have been used (well within the law) to do surveillance on his friends, suddenly he’s clutching pearls?

Anyway, the new lawsuit is a real piece of work. It’s alleging racketeering by GPS Fusion and the Campaign for Accountability. As Ken “Popehat” White famously notes, IT’S NOT RICO, DAMMIT, and this case is no exception.

The Defendants are persons associated in fact (a RICO enterprise) who engage in interstate commerce by the use of one or more instrumentalities, including, but not limited to, the Internet, computers, telephones, mails and facsimile. In 2018, the Defendants received income derived, directly or indirectly, from a pattern of racketeering activity and have used or invested such income, directly or indirectly, in the establishment or operation of an enterprise engaged in, or the activities of which affect, interstate commerce. Through a pattern of racketeering activity, involving acts of wire fraud in violation of Title 18 U.S.C. § 1343 and acts of obstruction of justice in violation of Title 18 U.S.C. §§ 1503(a), 1512(b), 1512(d) and 1513(e), the Defendants have maintained, directly or indirectly, an interest in or control of an enterprise which is engaged in, or the activities of which affect, interstate commerce. While associated with such enterprise, the Defendants conducted or participated, directly or indirectly, in the conduct of such enterprise?s affairs through a pattern of racketeering activity. Between 2018 and the present, the Defendants have engaged in activity that is prohibited by Title 18 U.S.C. §§ 1962(a), 1962(b), and 1962(c).

The Defendants? ongoing and continuous racketeering activities are part of a joint and systematic effort to intimidate, harass, threaten, influence, interfere with, impede, and ultimately to derail Plaintiff?s congressional investigation into Russian intermeddling in the 2016 U.S. Presidential Election. In furtherance of their conspiracy, the Defendants, acting in concert and with others, filed fraudulent and retaliatory ?ethics? complaints against Plaintiff that were solely designed to harass and intimidate Plaintiff, to undermine his Russia investigation, and to protect Simpson, Fusion GPS and others from criminal referrals.

Plaintiff was injured in his business, property and reputation by Defendants? racketeering activity and tortious misconduct. Plaintiff brings this action (a) to recover money damages for injuries caused by the Defendants? racketeering activity, (b) for disgorgement of the ill-gotten gains and fruits of Defendants? unlawful enterprise, (c) to impose reasonable restrictions on Defendants? future activities, including Defendants? use of fraudulent opposition research and fraudulent ?ethics? complaints to intimidate members of Congress and other law enforcement officers in the performance of their official duties, (d) to enjoin the Defendants from committing wire fraud and from obstructing justice, and (e) to order the dissolution or reorganization of Fusion GPS and the CfA so as to prevent or restrain the Defendants from committing fraud, lying to the Federal Bureau of Investigation (?FBI?), Department of Justice (?DOJ?), Congress and Senate, obstructing justice, and violating Title 18 U.S.C. § 1962 in the future.

The details are basically that Nunes thinks that political research against him and corresponding ethics complaints are racketeering. That is not how any of this works. Indeed, if opposition research and filing ethics complaints is racketeering, basically every politician might be guilty of racketeering.

As noted by Nunes’ lawyer, it is true that this new lawsuit includes some overlap with the California lawsuit that was just dropped — mainly about his anger at some of his critics filing perfectly legal FOIA requests for Nunes’ wife’s emails (Nunes’ real complaint here seems to be with how FOIA works for state employees, but to him it’s all RICO):

Upon information and belief, Fusion GPS and/or CfA directed Seeley to make a request under the California Public Records Act (?PRA?) for emails received by Plaintiff?s wife, Elizabeth, an elementary school teacher. Seeley?s request targeting Plaintiff?s wife ended up costing the Tulare County Office of Education thousands of dollars in unnecessary cost and expense. Seeley published Elizabeth Nunes? emails online and included the names and email addresses of numerous school administrators and teachers, resulting in extensive harassment of these innocent, hard-working citizens of Tulare County, including hateful accusations that they teach bigotry and racism. [https://www.scribd.com/user/399236302/Michael-Seeley]. In fact, the school was so concerned about security problems resulting from this situation that it adopted enhanced security measures.

As we stated when the original lawsuit was filed, you can certainly understand why this is annoying and frustrating, but it’s a perfectly legal use of FOIA until the laws are changed.

Like the previous lawsuits, this one has little likelihood of going anywhere. Doing opposition research and filing ethics complaints with Congress is not racketeering in any sense of the law. But, of course, once again we have a lawsuit in Virginia over protected speech activity. It’s too bad Virginia has a relatively weak anti-SLAPP law.

Filed Under: anti-slapp, devin nunes, glenn simpson, rackeering, rico, slapp, steele dossier, virginia
Companies: campaign for accountability, gps fusion

Pro Tip: Don't Send A Completely Bogus Defamation Threat To A Website That Employs A Former ACLU Badass

Free Speech

from the just-a-suggestion dept

If you happen to recognize the name Jamie Lynn Crofts, it may be from the truly amazing amicus brief she filed two years ago in the nutty SLAPP lawsuit that coal boss Bob Murray filed against comedian John Oliver after Oliver did a (very funny) segment about coal and coal jobs that talked a fair bit about Bob Murray. Crofts, at the time working for the ACLU in West Virginia, filed an amicus brief that was truly wonderful to behold, including sections entitled “The Ridiculous Case at Hand” and “Anyone Can Legally Say “Eat Shit, Bob!” and “You Can’t Sue People for Being Mean to You, Bob” and “You Can’t Get a Court Order Telling the Press How to Cover Stories, Bob.”

Anyway, it appears that Jamie has since moved on from the ACLU, and it appears that she’s now regularly writing about legal issues for Wonkette, and doing a pretty damn good job of it as well, looking through her recent stories. I wish I’d known that before, as I would have followed her coverage much more closely. However, Jamie truly shines when dealing with bullshit censorial threats, and apparently the performance artists known as “Diamond and Silk” decided to send a laughably sketchy “cease and desist” letter to Wonkette over some of their coverage of Diamond and Silk and whatever it is that they do. Jamie’s response is entitled In The Matter Of Diamond And Silk’s Very Real Lawyer v. Wonkette: Bring It, Sh*thead, which maybe gives you a sense of the spirit of her reply.

Normally, in this space, we’d go through and highlight the absurdity of the threat letter, but, honestly, we can’t do half as good a job as Jamie does (we probably couldn’t do 20% as good a job). So you should go read the whole thing, but here’s a snippet.

They gave us 24 hours to STOP THE BESMIRCHES, lest we FACE THE WRATH of the consummate professional who wrote this letter.

Libelizing and Slanderification!

Let’s talk about how the law actually works, here. Here in the US of A, we have this little thing called the First Amendment. And because of it, you don’t get to sue people for being mean to you. In fact, making fun of assholes is a proud American tradition, much like obesity and electing white supremacists.

Even private citizens can only sue for false statements of fact that harm their reputation. And for public figures, which Diamond and Silk unfortunately and undeniably are, it’s a lot harder. Public figures have to show that any actual false statements were made “with actual malice.”

It’s a pretty basic thing in American law that you don’t get to sue media organizations — or mommybloggers — just because you don’t like what they have to say. The US Supreme Court has been pretty clear throughout the years that political speech, in particular, receives the most protection. That’s because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U.S. 64 74-75 (1964).

What’s really fun about the truth requirement is that it means you get to request documents from the other side and argue in court about whether or not the particular statements are, in fact, true. So if Calcite and Burlap actually sued us for this, one of the actual issues would be whether Wonderbitch really does hate them for being so dumb. And they’d have to show that their “reputation,” such as it is, was harmed by what she wrote.

Discovery would be LIT.

Not only would we get to explore exactly how Quartz and Cotton-Poly Blend prop up white nationalism, we’d get to ask them why they think our articles are false and what kind of sketchy sources they get their money from.

I swear there’s a lot more there and it just gets better and better and better. So go read it. And, yeah, maybe don’t send a bogus legal threat letter to a site that employs a former ACLU 1st Amendment lawyer who is famous for filing a brief in court about how it’s legal to say “Eat Shit, Bob!”

Filed Under: defamation, diamond and silk, jamie lynn crofts, threats
Companies: wonkette

Knight Institute Warns Rep. Ocasio-Cortez That She, Like Trump, Can't Block People On Twitter

Free Speech

from the as-noted dept

Earlier this summer, we wrote about the 2nd Circuit appeals court affirming a district court ruling against Donald Trump, saying that it’s a 1st Amendment violation for him to block followers on Twitter. The reasoning in the decisions was a bit nuanced, but the short version is that (1) if you’re a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express. The four conditions do need to be met — and the lower court at least noted that such public officials can still “mute” people. That is, the officials don’t need to listen — but they cannot limit access to the narrow public space that is created in response to their official social media posts.

Right after that ruling came down, we pointed out that someone had already sued Rep. Alexandria Ocasio-Cortez for blocking people on Twitter as well, and our analysis was that she certainly seemed to be violating the 1st Amendment in the same way as Trump was. Now, the Knight 1st Amendment Institute, which filed the initial lawsuit against Trump, has sent a letter to Ocasio-Cortez making the same point. This is interesting, because when the original lawsuit against AOC was filed, and the media requested comment from the Knight Institute, there was at least some hesitation, saying that they needed to look at all of the details. Now that the details have been explored, it appears that the Knight Institute has come to the same conclusion.

As the letter makes clear, the @AOC account meets all the criteria that the court required to say that blocking is not allowed. Apparently Ocasio-Cortez is trying to argue that the @AOC account is a personal account, and she had another more official account. But, as the Knight letter explains, that’s not at all accurate:

Based on the facts as we understand them, the @AOC account is a ?public forum? within the meaning of the First Amendment. You use the account as an extension of your office?to share information about congressional hearings, to explain policy proposals, to advocate legislation, and to solicit public comment about issues relating to government. Recently, for example, you used the account to discuss new ?policy approaches we should consider wrt immigration,? and to ask the public, ?[w]hat commissions would you want to see Congress establish?? The account is a digital forum in which you share your thoughts and decisions as a member of Congress, and in which members of the public directly engage with you and with one another about matters of public policy. Since you first took office, the number of users following the @AOC account has reached more than 5.2 million. Many of your tweets staking out positions on issues such as immigration, the environment, and impeachment have made headline news. The @AOC account is important to you as a legislator, to your constituents, and to others who seek to understand and influence your legislative decisions and priorities.

Multiple courts have held that public officials? social media accounts constitute public forums when they are used in the way that you use the @AOC account, and they have made clear that public officials violate the First Amendment when they block users from these forums on the basis of viewpoint. Most relevant here, the U.S. Court of Appeals for the Second Circuit recently concluded that President Trump violated the First Amendment by blocking users from his Twitter account, @real- DonaldTrump, because ?he disagree[d] with their speech.? In another recent case, the Fourth Circuit held that the chairperson of a local county board violated the First Amendment by blocking an individual from her Facebook page.

In pending litigation, your attorneys have argued that the @AOC account is not subject to the First Amendment because it is a personal account. As we have explained above, that characterization is incorrect. Further, while we understand that you have another account that is nominally your ?official? one, the fact remains that you use the @AOC account as an extension of your office. Notably, the Second Circuit rejected President Trump?s argument that his account is a personal one even though he has other accounts?@POTUS and @WhiteHouse?that are nominally official. The Court wrote, ?the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.?

So far, AOC responded to this by saying that she’s only blocking 20 accounts and that she’s blocking them for “harassment,” rather than viewpoint discrimination.

But, again, as the lower court said in the Trump case, the remedy there should be “muting,” not blocking. I get that being a public figure on Twitter is not always fun — and especially for polarizing political figures (which both Trump and Ocasio-Cortez undoubtedly are). And I get that it must suck to have assholes clog up your feed. I’m barely known and, while I use Twitter’s block button sparingly, I have found it useful at times. But I’m not a publicly elected official using my account for official business as an elected politician. The fact that one of the accounts AOC is blocking is a media outlet, even one as ridiculous as The Daily Caller, only highlights the 1st Amendment concerns here.

I’ve seen some people supporting the case against Trump, but not supporting it against AOC (and I’ve also seen the reverse). In most cases, though, those opinions seem to be driven mainly by whether or not one feels politically aligned with one or the other politician. And, while I have seen some good faith arguments that “harassment” should be considered something different, there is a very slippery slope there. Put that into Trump’s hands and he’ll just as quickly claim that everyone who is criticizing him is “harassing” him as well. We have a 1st Amendment for a reason, and politicians on both sides of the traditional aisle should respect that.

Filed Under: 1st amendment, alexandria ocasio-cortez, donald trump, free speech, harassment, public officials, public spaces
Companies: knight institute

Indiana Appeals Court Decides Badmouthing A Cop On Facebook Is A Crime

Free Speech

from the more-authoritarianism-please dept

The Indiana Court of Appeals has handed down an opinion that says criticizing a police officer — at least in this case — is a criminal offense.

Constance McGuire’s son died in police custody after his arrest, apparently of a meth overdose. (That lawsuit can be read here.) Shortly after this, McGuire posted several comments about the arresting officer. They were unpleasant and crude, but they were also the sort of anger you often see following the death of a loved one while they were in the nominal care of others.

The appeals court opinion [PDF] opens with direct quotes of McGuire’s posts.

At some point, McGuire posted several statements on Facebook mentioning Officer Dodd. These statements were visible to over 1,000 people who were “friends” with McGuire on the social media platform. Officer Dodd was not within that group of people. However, a concerned citizen contacted Officer Dodd and passed along the statements. In those statements, McGuire asserted that Officer Dodd killed her son. She also said: “Yes he set my son up to die. He did do it and so did KPD so y’all better watch out for me cuz I’m coming for all of younand if u work n that Jail I’m comn for u to so u better watch out this mother is on a rampage and ready to shoot to kill.” Ex. 1.3 In one post, McGuire wrote: “Fuck Jeremy Dodd like I said he a whole bitch kill urself u bastard.” Id. At the end of the post, McGuire wrote: “Everyone share.” Id. McGuire also wrote: “FUCK KPD OFFICER JERemy DODD yes I said it loud and proud FUCK U PIG DO SUMTHN BITCH if u don’t know now u kno.” Id. McGuire also mentioned Officer Dodd and said that “when it comes to my kids anyone can get it.”

For this, she was charged and convicted of Harassment. The state statute defines that as:

“A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication . . . uses a computer network . . . or other form of electronic communication to . . . transmit an obscene message or indecent or profane words to a person . . . commits harassment, a Class B misdemeanor.”

McGuire argued she did not “transmit” her communications to Officer Dodd. He was never tagged in any posts and was only made aware of them when someone who had read the posts passed them on to the officer. While the posts contain some violent imagery (“kill urself,” “this mother is on a rampage and ready to shoot to kill”), there’s no evidence McGuire ever directly threatened Officer Dodd or ever intended to do anything more than vent on Facebook.

So, what she said wasn’t a “true threat,” which would have placed her speech outside of the First Amendment’s protections. The state conceded as much. Not directly, but through its decision to pursue harassment charges, rather than intimidation charges.

The state’s broadly-written harassment statute made this possible. The Indiana Appeals Court, unfortunately, sees nothing wrong with applying an overly-broad statute to protected speech. First, the court says the posts were indeed obscene because they contained profanity and the suggestion Officer Dodd end his own life. If the Appeals Court is going to consider profanity a violation of the state’s harassment statute, social media users in this state are going to find it very hard to avoid breaking the law when complaining about other people online.

The court then applies a standard the state itself didn’t use to find McGuire’s speech unprotected by the First Amendment. McGuire wasn’t charged with intimidation, which involves the use of threats. She was charged with harassment, which is a completely different thing. Despite that, the court finds the posts unprotected by declaring her speech threatening.

Here, McGuire engaged in some political expression in that parts of the posts concerned tragic events arising from a traffic stop involving Officer Dodd. Yet, McGuire also said she was “coming for” law enforcement and was “on a rampage and ready to shoot to kill.” Ex. 1. Moreover, McGuire repeatedly directed posts toward Officer Dodd and suggested that he commit suicide. We conclude, when viewed in context, the instant speech was not unambiguously political. This conclusion aligns with that of the trial court, which remarked that “there is a fine line between a [constitutional] right and harassment” and McGuire had “cross[ed] that line.” Tr. Vol. II at 32. Because the speech was not unambiguously political, we apply standard rationality review. See Whittington, 669 N.E.2d at 1370. Upon such review, we conclude the State—in electing to prosecute McGuire—could have reasonably concluded that the speech posed a threat to peace, safety, and well-being. See id. at 1371. Thus, the speech could be regulated without running afoul of Article 1, Section 9.

This is all completely backwards, according to the dissenting opinion. The application of a different standard to work around the state’s overly-broad harassment statute does the state’s work for it, allowing it to keep its harassment conviction while applying a “true threat” standard to McGuire’s speech.

My colleagues assert that there is sufficient evidence that McGuire had “no intent of legitimate communication.” IND. CODE § 35-45-2-2(a). They also attempt to apply the “true threat” analysis to the facts of this case. However, I believe the State has fallen short of proving beyond a reasonable doubt that McGuire’s intent to communicate was not legitimate or that they were “indecent” or “profane.” I.C. § 35-45-2-2(a)(4)(B). In addition, the “true threat” analysis does not apply to this case because it applies to cases of intimidation, a statute which prohibits threats. Throughout this short bench trial, the State presented a case focused on proving that McGuire threatened Officer Dodd and that it was concerned that the “threats” might be carried out. While the concern may very well have been warranted, the State had a statute available to it designed to punish “true threats” against Officer Dodd. It could have charged McGuire with intimidation. I.C. § 35-45-2-1. Indiana’s intimidation statute prohibits persons from communicating threats. In fact, it specifically defines eight separate types of threats that may be prosecuted. I.C. § 35-45-2-1(d)(1)-(8). Instead, the State chose to prosecute McGuire under Indiana’s harassment statute; a statute that does not mention anywhere in its text the word “threat,” and a statute that does not define the statutory elements concerning what is “legitimate communication,” “indecent,” or “profane words.” I.C. § 35-45-2-2(a)(4)(B).

The dissent then points out the state’s conviction relies on a broad statute that criminalizes a lot of protected speech. That it chose to go this route with criminal charges indicates it knew it couldn’t actually make a case using the more narrowly-crafted law.

It is clear from the record that the State sought to prosecute McGuire because it was worried about whether her Facebook posts naming Officer Dodd would result in violence. While the State’s concern was warranted, we must still follow the law concerning First Amendment rights. It is well settled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg, 395 U.S. at 447 (emphasis added). There was simply no evidence introduced at trial that McGuire’s Facebook posts were directed at producing imminent lawless action and that it was likely to occur.

[…]

If my colleagues believe that McGuire’s comments were a “true threat,” then they must acknowledge that the State’s concern was the intimidating nature of McGuire’s Facebook posts; in other words, the likelihood that she or someone else would carry out those threats. See Brandenburg, 395 U.S. at 447 (requiring proof that the threat of imminent lawless action was also likely to occur). Yet, the State’s decision to charge McGuire with harassment and not under Indiana’s intimidation statute is extremely telling about its own belief in the lack of evidence surrounding McGuire’s intent.

In short, the state knew it likely couldn’t make intimidation charges stick, so it went with a law the dissent calls out as unconstitutional. The correct thing for the court to do was toss the charges and criticize the law. Instead, the majority decided to apply a standard lifted from another law to make the charges stick. Because it has done so, there’s precedent on the books that will encourage government employees and officials to pursue harassment charges because someone has said mean things about them on social media. That may not have been the court’s intent, but that’s the outcome.

Filed Under: 1st amendment, constance mcguire, free speech, indiana, jeremy dodd

Hong Kong ISPs Refuse To Help China Censor The Internet

Broadband

from the swimming-upstream dept

China’s no stranger to censorship online, given it runs one of the most sophisticated internet censorship operations on the planet. Like many governments upset with the idea of free expression online, China has also long waged a war against VPNs and proxies that let the public bypass this ham-fisted techno-blockade.

But the repression and censorship China enacts within its core territories have been harder to implement in Hong Kong, where internet traffic isn’t forced through China’s massive censorship firewall. Case in point: when reports began circulating that China was considering censoring access to certain websites and services, the Hong Kong Internet Service Providers Association (HKISPA) issued a statement saying thanks but no thanks. A core complaint by the ISPs was the fact that the use of encryption and VPNs means that such efforts are largely pointless:

“Technically speaking, given the complexity of the modern Internet including technologies like VPN, cloud and cryptographies, it is impossible to effectively and meaningfully block any services, unless we put the whole Internet of Hong Kong behind large scale surveillance firewall.”

Should China’s government proceed anyway, the ISPs were quick to note that any ham-fisted attempt to cordon off Hong Kong from the rest of the world would only stifle industry in the city:

“By the above token, HKISPA would like to warn that, imposing any insensible restrictions on the open Internet would only result in more restrictions, as the original restrictions wouldn?t be effective, and ultimately the result is putting Hong Kong?s Internet behind a big firewall. Therefore, any such restrictions, however slight originally, would start the end of the open Internet of Hong Kong, and would immediately and permanently deter international businesses from positing their businesses and investments in Hong Kong.”

Telegram is widely being used to help coordinate the ongoing protests. As a result, the company has been facing massive DDOS attacks that are likely being launched by the Chinese government. Regardless, Hong Kong ISPs say they’ll refuse any government demands to censor the platform:

“ISPs in Hong Kong are all law abiding, but they may not circumvent technical and financial constraints of the business which may make executive orders to impose network restrictions not easily implementable. We request that the government consult the industry in resolving these constraints, and consult the society at large before imposing any such restrictions.”

As on other fronts, China’s government is a stumbling and confused mess when it comes to governing a free thinking, successful city, and any efforts to apply tactics used in China’s mainland (most notably the 1989 Tiananmen Square protests) is likely to only make existing tensions worse.

Filed Under: censorship, china, hong kong, internet, internet blockade, isps, protestors, protests

Don't Let The Bret Stephens Bite: NY Times' Hypocritical 'Free Speech' Columnist Flips Out After Being Called A Bedbug

Free Speech

from the a-streisanding-for-the-ages dept

I will admit being only marginally aware of Bret Stephens in the past — as someone the NY Times seems to employ to write really dumb opinion pieces that get people angry with how dumb they are. This latest bit of Bret Stephensisms isn’t going to improve that impression. One of Stephens’ big things, apparently, is whining about “the left” not believing in free speech any more, and complaining about things like “safe spaces on campus.” Here are two recent examples:

If you’re unable to see those, they’re two columns by Stephens, with the first one entitled “Free Speech and the Necessity of Discomfort,” and the second one entitled, “Leave Your Safe Spaces: The 2017 Commencement Address at Hampden-Sydney College.” No matter what your stance is on “the necessity of comfort” or “safe spaces,” once should at least conclude that Bret Stephens has positioned himself as one who believes that free speech is important, and people should chill out before getting offended.

Oh, and he sometimes tweets about free speech too, and has some more tweets that he’s likely to regret before all this is over:

In the first tweet, he’s quoting David French, saying “Our nation cannot maintain its culture of free speech if we continue to reward those who seek to destroy careers, rather than rebut ideas.” Remember that one. And the second is “The right to offend is the most precious right. Without it, free speech is meaningless. That’s what Charlie Hebdo was about.”

Okay. That’s a little background on Bret Stephens’ professional opinion on free speech and people being offended when he’s acting all intellectual-like. Now let’s take a look at Bret Stephens’ unprofessional opinion on free speech and people being offended, when someone calls him a bedbug.

On Monday morning, an assistant editor of the NY Times opinion section, Stuart Thompson, tweeted: “Breaking — There are bedbugs in the NYT newsroom.” Lots of people made jokes about this. My favorite, from Lindsey Barrett, mocked the NY Times’ unwillingness to call racism racism by rewriting it as: “I think you mean there’s an insect-tinged problem in the NYT newsroom.” She made some more jokes about bedbugs, including a fake headline by Bret Stephens: “‘There Are No Bedbugs and If There Were, The Caustic Twitter Socialists Put Them There and Bed Bugs Are Good, Actually’ –half a column by bret stephens, who was itching too vigorously to finish it” That one got lots of likes and retweets. But it’s not the tweet that exposed Bret Stephens as the free speech hypocrite many people seemed to always assume he was.

Instead, it was a not even that funny tweet from Dave Karpf, an Associate Professor at George Washington University:

Then, last evening, Karpf noted that while that original tweet (cue ominous music: at the time…) had only 9 likes and 0 retweets, and did not in any way tag Stephens himself, Stephens took it upon himself to not just complain about the tweet to Karpf, but to cc his university provost:

We’ll get to the contents of the letter in a moment. But, first, let’s revisit those tweets from Stephens about free speech. He talked about how the right to offend was so important. And also was apparently against “those who seek to destroy careers rather than rebut ideas.” Of course, there’s no good reason for Stephens to cc the GWU provost except in a weak, thin-skinned, hypocritical attempt to destroy Karpf’s career.

And let’s not avoid the contents of Stephens’ email. Because, it’s weird.

Dear. Dr. Karpf,

Someone just pointed out a tweet you wrote about me, calling me a “bedbug.” I’m often amazed about the things supposedly decent people are prepared to say about other people — people they’ve never met — on Twitter. I think you’ve set a new standard.

I would welcome the opportunity for you to come to my home, meet my wife and kids, talk to us for a few minutes, and then call me a “bedbug” to my face. That would take some genuine courage and intellectual integrity on your part. I promise to be courteous no matter what you have to say.

Maybe it will make you feel better about yourself.

Please consider this a standing invitation. You are more than welcome to bring your significant other.

Cordially,

Bret Stephens

It certainly sounds like Stephens “took offense” to Karpf’s random joke. Perhaps he felt being a NY Times Opinion columnist gave him a “safe space” from criticism? It must be that, or otherwise, to think that calling him a “bedbug” is a “new standard” of Twitter-based discourse, suggests someone who is so shielded from the way Twitter arguments normally play out as to be a poor judge of what the “new standards” are of insults. And, yes, you could argue that Stephens’ creepy invite to come over to his house (with Karpf’s significant other) and insult him to his face, is a request for “more speech,” in response to “speech.” But, we should remind everyone that Stephens’ cc’d the George Washington University provost.

Anyway, if you couldn’t already guess what happened next, I should tell you that Merriam-Webster chose last evening to (not for the first time), tweet out their explanation of the Streisand Effect. Whenever the dictionary starts adding to my own mentions, you know something good is going down.

And, so, yes, within just a few hours, Karpf’s tweet mocking Stephens, that had just 9 likes and 0 retweets, has many thousands of retweets and tens of thousands of likes. And, tons and tons of people are now associating Bret Stephens with bedbugs. Here’s just a few fun tweets.

Like bedbugs, those tweets just keep on coming. On my Twitter account, at least, Bret Stephens, was the top “trending” topic for many hours last night. Note how many likes and retweets all of those tweets have. Bret Stephens has taken a throwaway line that most people ignored and ensured that, for years, people will associate him with bedbugs.

Incredibly, overnight, rather than realizing that he’d fucked up, Stephens apparently decided to dig deeper and make it worse. First, he shut down his Twitter account, laughably claiming that Twitter “is a sewer” that “brings out the worst in humanity.” He then went on MSNBC and compared being called a “bedbug” to the worst “totalitarian regimes,” while also (laughably, ridiculously) trying to argue that cc’ing the GWU provost wasn’t about trying to get Karpf fired. He claims he just wanted the provost to know what his staff was doing. Which… come on. No one believes that.

Of course, like bedbugs, I’m guessing that the NY Times won’t get rid of Bret Stephens either.

Filed Under: bedbugs, bret stephens, david karpf, getting people fired, hypocrite, insults, offensive speech, safe spaces
Companies: george washington university, ny times