Philippines Lawmaker Introduces 'Fake News' Bill That Would Allow The National Police To Literally Police Speech

Free Speech

from the all-hail-the-internet-police-state dept

Fake news laws are so hot right now. Any government with an authoritarian bent is getting in on the action, stepping up domestic surveillance while trampling remaining speech protections — all in the name of “protecting” people from a concept they can’t clearly define.

It’s not just the places you expect. Sure, we may like to think this sort of opportunistic lawmaking may be relegated to places like Vietnam and Singapore, where governments have continually expressed their interest in deterring criticism of governments and kings and their shitty laws. But even our own President spends a great deal of time talking about “fake news” and the need to prevent journalists from criticizing the guy sitting in the Oval Office. And France’s government is looking at adding this to its long list of speech restrictions, even if only at “election time.”

The latest country to add a speech-squashing, government-expanding “fake news” bill to its roster of bad ideas is the Philippines. The proposal doesn’t use the terminology du jour, but “fake news” by any other name is still “fake news.” Here’s the immediate effect the “Anti-False Content Act” would have on the country’s population.

Introduced by Senator Vicente Sotto III, the bill strikes at the heart of Internet freedom, regulating if not outright policing the content of cyberspace in the Philippines. It mandates stiff prison terms and fines ranging from PHP 200,000 to PHP 2,000,000 against individuals who “create and/or publish” false and misleading content in social media sites, blogs and websites, as well as the “intermediaries” or platforms which carry the content, such as Facebook and Twitter.

Citizens are welcome to report “false content” to the government, which adds this to the tool chests of hecklers seeking a veto or online brigades wanting to put the color of law behind their deplatforming efforts. It’s “see something, say something” for the internet, which is going to turn out to be just as useless as any other iteration of “report your friends and neighbors” programs.

If citizens don’t step up, the government can initiate the complaint process itself. The three agencies authorized to do this are the Department of Justice, the National Bureau of Investigation, and the National Police. Not scary at all. If any of these entities think the public needs protecting, it can start hunting down “false content” purveyors and extracting fines from social media companies. The law affects everyone, not just users of major social media platforms. Individual blogs can be targeted, as can the nation’s news agencies.

Rather than allow more speech to act as a corrective measure, legislators want to limit speech further, ensuring the only speech remaining will be government-approved. This is bad enough, but the agencies allowed to make these judgment calls on questionable posts/publications are among the worst to be entrusted with the literal policing of speech.

The harm that false information can inflict is undeniable. But there is far greater harm in authorizing government agencies to decide what is fake or factual news, false or accurate conclusions, correct or mistaken findings. Assigning agencies who deal with criminality and violations of law guarantees a most limited scope for the arbitration of truth.

If passed, another government will have succeeded in converting buzzwords to authoritarian power moves. The world needs less of this, but it’s the rarest of governments that can see an opportunity to expand its power without acting on it.

Filed Under: censorship, fake news, free speech, philippines

SLAPP Suit In Virginia Tries To Silence Historian Highlighting Ancestry Of Guy Suing To Keep Confederate Statues In Charlottesville

Free Speech

from the free-speech? dept

Another day, another attempt by someone to silence people for saying something they don’t like. The latest is a history professor, who was briefly quoted in an article about another lawsuit. That lawsuit? An attempt by some Virginia residents to stop the removal of some Confederate monuments in Charlottesville, Virginia. One of the plaintiffs in that case is Edward Dickinson Tayloe II. The article, written in the publication “C-Ville” (as you’ve figured out, a publication about Charlottesville) goes a bit into the history of the Tayloe family — which goes back centuries in Virginia and apparently includes cotton plantation (and slave) owners.

The article contains two quotes from UVA history professor Jalane Schmidt. In the introduction to the article, she is quoted as saying the following about those who were suing to prevent the removal of Confederate monuments:

?You?ve got the bow tie, upscale people tied to the League of the South people who want to secede and are slavery apologists,? says activist and UVA professor Jalane Schmidt.

Later, in the section about Tayloe, she is quoted again:

Says Schmidt, ?For generations this family has been roiling the lives of black people, and this is what [plaintiff Tayloe] chooses to pursue.?

This comes after multiple paragraphs describing, in fairly great detail, the history of the Tayloe family and what one might easily consider to be cruel treatment of slaves. It also includes slightly more recent history, regarding Tayloe’s father, who, as the article notes:

… was vice-chair of the Charlottesville Redevelopment and Housing Authority when the decision was made to raze the African American community of Vinegar Hill over the objections of its residents, many of whom were unable to vote on the issue because of a poll tax.

Tayloe, it seems, was not happy about the article. So he sued C-ville, the reporter on the article (Lisa Provence), and Jalane Schmidt, the history professor. As the case is in a local Virginia court, the records are not as readily available as federal cases. However, the ACLU of Virginia has stepped in to defend Schmidt and has filed quite the response to what seems clearly to be a typical SLAPP suit — seeking to silence someone for stating things you don’t like.

As the filing notes, nothing in either of Schmidt’s quotes is defamatory — and, the filing claims, the complaint makes no effort at all to even show what statements are false statements of fact:

Plaintiff fails, as a threshold matter, to specify which of Professor Schmidt’s words are allegedly defamatory…. Rather, he states that the alleged defamation occurs in the “implications” arising from the article…. Regarding Professor Schmidt’s comment about the Tayloe family “roiling the lives of black people,” Plaintiff takes issue with the context of the quotation (“Schmidt’s assertion is offered without refutation or counterpoint”) but fails to explain why the statement in and of itself is defamatory or has a defamatory implication

Ken “Popehat” White famously says that “vagueness in legal threats is the hallmark of meritless thuggery,” and that appears to be the case here. Schmidt’s quotes seem clearly to be giving her take — her non-defamatory opinion — on the history of Tayloe’s family. Tayloe may not like that, but as an apparently proud American, he might want to thank the First Amendment for allowing that kind of free speech.

There is much more in the response, which you can read below, but this case should easily be tossed out. Even if someone were to make the case that the statements at issue were factual defamatory statements towards Tayloe, Tayloe would need to prove “actual malice” — meaning that Schmidt knew the statement was false (which, she doesn’t, since she stands by her words) or that they were made with “reckless disregard” for the truth. While the suit suggests that a failure to get Tayloe’s side of the story is evidence of such negligence, that is not the standard at all, and there is no such requirement.

Thankfully, Virginia has a recently updated anti-SLAPP law that is now deemed to be “adequate” by the Public Participation Project (which advocates for better anti-SLAPP laws). Virginia’s law should be a lot better and has some flaws, but hopefully it will be applied here. Schmidt and the ACLU of Virginia are seeking attorneys’ fees under the statute, and hopefully they will succeed.

Notably, Schmidt has also written up a blog post for the ACLU talking about the chilling effects of these kinds of SLAPP suits.

Tayloe?s lawsuit against me not only fails to meet the legal requirements for a defamation case, it is also a disdainful attempt to stifle speech and prevent me from speaking out about matters of public concern. These types of claims, known as strategic lawsuits against public participation, or SLAPP suits, are designed to silence, censor and intimidate critics with the threat of costly litigation.

[….]

History belongs to everyone, not just scholars. Marginalized narratives of vulnerable groups of our community must be included in our collective story in order to inform our efforts to make changes in the present and to promote a more just and equitable future. First Amendment protections should not be stifled by lawsuits designed to make anyone fearful of the consequences of exercising their rights.

Some may argue that there is nothing exceptional about this particular SLAPP suit. It appears similar to many others that we write about here on Techdirt. And that’s a big part of the problem. These kinds of lawsuits create massive chilling effects, even if they won’t win in court. It’s also why we need much stronger anti-SLAPP laws, both at the state level and at the federal level. These kinds of lawsuits keep getting filed because the lawsuit alone is all too frequently enough to stifle critical voices.

Filed Under: 1st amendment, anti-slapp, charlottesville, confederate monuments, edward tayloe, free speech, jalane schmidt, slapp, virginia
Companies: c-ville

No Immunity For Cops Who Arrested A Man For Creating A Facebook Page Mocking The Police Department

Free Speech

from the limited-but-mostly-good-ruling dept

A few years ago, the Parma (OH) Police Department decided to turn its hypersensitivity into a criminal investigation. A local man, Anthony Novak, created a Facebook page parodying the PD’s social media front. It wasn’t particularly subtle satire. Most readers would have immediately realized this wasn’t the Parma PD’s official page — not when it was announcing the arrival of the PD’s mobile abortion clinic or the institution of a ban on feeding the homeless. Not only that, but the official logo had been altered to read “We No Crime.”

The Parma PD decided to treat this parody as a dangerous threat to itself and the general public. It abused an Ohio state law forbidding the use of computers to “disrupt” police services to go after Novak. Not that there was any disruption other than the rerouting of PD resources to investigate a non-criminal act.

The end result was the arrest of Novak, the seizure of his electronic devices, and a four-day stay in jail for the parodist before he was acquitted of all charges. Novak sued the police department, but the district court decided to award immunity across the board to everyone involved. The Sixth Circuit Appeals Court has rolled back some of that ruling, allowing Novak’s civil rights lawsuit to proceed.

The opinion [PDF] opens with a brief discussion of how parody works — and how the court treats parody — which is more reprimand than reminder.

Apple pie, baseball, and the right to ridicule the government. Each holds an important place in American history and tradition. So thought Anthony Novak when he created a Facebook page to mock the Parma Police Department. He styled his page to look like the department’s official Facebook page. But the similarities ended there. Novak shared posts like an advertisement for a “Pedophile Reform event,” at which pedophiles would receive honorary police commissions.

Novak’s page delighted, disgusted, and confused. Not everyone understood it. But when it comes to parody, the law requires a reasonable reader standard, not a “most gullible person on Facebook” standard. The First Amendment does not depend on whether everyone is in on the joke. Neither is it bothered by public disapproval, whether tepid or red-hot.

This misuse of police resources was mobilized by an entire twelve hours of posts by Novak. The page offered up a recruitment ad that “strongly encouraged minorities to not apply” and promised swift justice would be brought against an “African American woman” for “loitering outside a Subway” while it was being robbed by an “armed white male,” who was presumably not under investigation. A certain number of readers were so upset by what they saw they phoned the police department, tying it up for a total of twelve minutes.

The PD assigned two officers to the case and sent an email to Facebook reps demanding the page be taken down. The parody page made a brief appearance on the local news as Parma’s brave crime fighters announced their desire to take down this Facebook criminal. Novak deleted the page shortly thereafter, but the Parma PD continued its investigation, ultimately arresting him for “disrupting” the PD’s apparently endless supply of waste-able time.

The Appeals Court says there is no doubt Novak’s speech was protected, citing none other than The Onion.

[A] parody need not spoil its own punchline by declaring itself a parody. “Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).” Campbell, 510 U.S. at 583 n.17. Imagine if The Onion were required to disclaim that parodical headlines like the following are, in reality, false: Presidential Debate Sidetracked By Booker, De Blasio Arguing About Best Place In Lower Manhattan To Get Tapas, or, John Bolton Urges War Against the Sun After Uncovering Evidence It Has Nuclear Capabilities. News in Brief, The Onion (June 26, 2019); News in Brief, The Onion (June 10, 2019). The law of parody does not require us to strain credulity so far. And that is not because everyone always understands the joke. Susanna Kim, All the Times People Were Fooled by The Onion, ABC News (June 1, 2015).

Unfortunately, this doesn’t necessarily mean Novak’s claims of First Amendment retaliation will hold up. As the court notes, the Supreme Court recently gave officers a free pass to retaliate against protected speech, provided they can find some sort of probable cause to support an arrest. In some cases, it could be nothing more than jaywalking or not signalling before a turn. In this case, it could be an Ohio state law the Sixth Circuit court views as unconstitutional.

First, it notes the only thing Novak engaged in was speech. And it was only determined to be criminal by using a very loose reading of a very loosely-written law.

Besides posting to his Facebook page, Novak committed no other act that could have created probable cause. In other First Amendment retaliation cases on point, by contrast, the defendant’s conduct was a mix of protected speech and unprotected conduct. That is, the defendants both said something and did something.

[…]

Here, we have nothing like that. Novak did not create a Facebook page criticizing police and use his computer to hack into police servers to disrupt operations. The sole basis for probable cause to arrest Novak was his speech. And there is good reason to believe that, based on the reasoning underlying the First Amendment retaliation cases, this is an important difference.

But if officers reasonably believed the law supported this arrest, they can avail themselves of qualified immunity. The state law against “disrupting” police operations is broad enough it could conceivably allow these officers to escape retaliation allegations. The Appeals Court doesn’t like this law much.

[T]he vague language of the Ohio statute further heightens the concern raised in Issue 2. That statute makes it a crime to “use any computer . . . or the internet so as to disrupt, interrupt, or impair the functions of any police . . . operations.” Ohio Rev. Code § 2909.04(B). To see how broad this statute reaches, consider an example. An activist tweets the following message: “The police are violating our rights #TakeAction #MakeYourVoiceHeard.” People in the community see the tweet and begin calling the police department to share their views. A small protest even forms in the town square. Police station employees spend time fielding the calls, and a couple of officers go down to monitor the protest. Under the plain text of the Ohio statute, have these acts of civic engagement “interrupt[ed]” police operations? Taken at face value, the Ohio law seems to criminalize speech well in the heartland of First Amendment protection. This broad reach gives the police cover to retaliate against all kinds of speech under the banner of probable cause. Critical online comments, mail-in or phone bank campaigns, or even informational websites that incite others to “disrupt” or “interrupt” police operations could violate the law.

The vagueness of the law could help or hurt Novak, depending on the lower court’s interpretation of the law and its application in this case. The Appeals Court only hints that an easily-abused law that blurs the line between legitimate enforcement and speech-targeting misuse may work out better for the plaintiff than the law enforcement defendants. No qualified immunity… at least not yet.

A few other claims survive as well, including Novak’s allegation that the Parma PD’s announcement it would prosecute him for his parody page was prior restraint. The court agrees, allowing this claim to continue for further factual development. A number of his other claims rest on the same issue as his retaliation claim: probable cause or the lack thereof. If it’s determined the Parma PD had no probable cause to arrest Novak, his claims of malicious prosecution and Privacy Protection Act violations will survive.

The most important decision is the most immediate: no qualified immunity for the Parma PD officers and no early exit from the lawsuit. There’s no question the search and arrest were retaliatory. The only question remaining is how much Ohio’s terrible law will help these cops get away with it.

Filed Under: anthony novak, arrest, free speech, ohio, parma, parody, police, satire

Court Dismisses Democrats' Nutty Lawsuit Against Russia, Wikileaks And Trump Associates

Free Speech

from the phew dept

A little over a year ago we wrote about a truly ridiculous lawsuit filed by the Democratic National Committee against the country of Russia, Wikileaks, the GRU, Julian Assange, the Donald Trump campaign, and a long list of Donald Trump associates, including Paul Manafort, Roger Stone, Jared Kushner, Donald Trump Jr. and more. As we discussed in great detail, this was a pro se-level lawsuit full of absolutely crazy legal theories that stood no chance in court, ostensibly over the hacking of the DNC’s computers that occurred during the 2016 election. The complaint was mostly a conspiracy theory wrapped in a legal complaint, tossing in absolutely silly CFAA claims, SCA claims, DMCA claims and (because why not?) a RICO claim, despite the fact that it’s never RICO.

We predicted that this lawsuit would go nowhere fast, and separately noted that many of the theories the DNC put into the lawsuit represented a very real threat to basic press freedoms. Thankfully, though not surprisingly, federal Judge John Koeltl, has dismissed the case. The order runs over 80 pages, but the judge does a nice job summarizing the many, many faults of the complaint upfront. Let’s start with suing Russia. That’s not how any of this works.

The primary wrongdoer in this alleged criminal enterprise is undoubtably the Russian Federation, the first named defendant in the case and the entity that surreptitiously and illegally hacked into the computers and thereafter disseminated the results of its theft. But, as explained below, under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602 et seq. (“FISA”), the Russian Federation cannot be sued in the courts of the United States for governmental actions, subject to certain limited exceptions not present in this case, just as the United States government generally cannot be sued in courts abroad for its actions. The remedies for hostile actions by foreign governments are state actions, including sanctions imposed by the executive and legislative branches of government.

I mean, this seems like basic lawyering 101. You can’t just randomly sue foreign governments in the US for state actions. How about all those other defendants? Well, they’re not the ones who did anything. And the things they did — publishing or sharing documents — is so obviously protected under the First Amendment:

The DNC seeks to hold the second-level participants in this alleged activity — the Campaign, the Campaign defendants, WikiLeaks, Assange, the Agalarovs, Mifsud, and Stone — liable for dissemination of the stolen materials. But, as also explained below, the First Amendment prevents such liability in the same way it would preclude liability for press outlets that publish materials of public interest despite defects in the way the materials were obtained so long as the disseminator did not participate in any wrongdoing in obtaining the materials in the first place. The plausible allegations against the remaining defendants are insufficient to hold them liable for the illegality that occurred in obtaining the materials from the DNC. Therefore, for the reasons explained below, the defendants’ motion to dismiss the Second Amended Complaint is granted.

The judge did reject a request by the Trump Campaign for Rule 11 sanctions against the DNC’s lawyers, and even if this was obviously a frivolous lawsuit, courts are very, very reluctant to ever issue Rule 11 sanctions unless the activity is incredibly egregious. This dumb lawsuit was just everyday egregious.

The judge here clearly understood all of the myriad problems with the lawsuit, and the long ruling is a masterclass in pointing out how each of the DNC’s theories is crazy. Let’s start with the First Amendment/freedom of the press issues. It seems clear that the court understood how dangerous this kind of precedent would be. The judge cites the key cases on this issue which are pretty damn well established: the NYTimes v. the United States, which decided that it was protected by the 1st Amendment for the Times to publish the Pentagon Papers, and the more recent Bartnicki v. Vopper, which made it clear that even illegally obtained materials can be released by journalists, so long as the journalists did not participate in the illegal activities to obtain the materials. As the court notes:

As Bartnicki makes clear, there is a significant legal distinction between stealing documents and disclosing documents that someone else had stolen previously.

The DNC tried to get around this by playing the “but RICO!” card, and arguing that there was a grand conspiracy at work, that magically meant that the Trump Campaign and all the associates did participate in the “stealing” of documents. The judge points out this is… not a sound legal theory.

However, the DNC has not alleged that any defendant other than the Russian Federation participated in the hack of the computers or theft of the DNC’s documents. The DNC argues that the various meetings and conversations between the defendants in this case and with persons connected to the Russian government during the time that Russian GRU agents were stealing the information show that the defendants conspired with the Russian Federation to steal and disseminate the materials…. That argument is entirely divorced from the facts actually alleged in the Second Amended Complaint.

The judge further points out that just showing certain people met with one another or worked with one another doesn’t automatically establish either a conspiracy or anything suggesting that they participated in the illegal obtaining of the DNC’s content.

For example, the DNC argues in its opposition to the current motions that the conspiracy between the Russian Federation and the other defendants to hack the computers and steal its electronic information began in March 2016…. However, the only events alleged to have taken place in March 2016 are that Manafort was hired as the Campaign’s convention manager, Papadopoulos was hired as a foreign policy advisor, and Papadopoulos met with Mifsud on March 14 and 24. The entirety of the allegations regarding the March meetings between Mifsud and Papadopoulos are that “[o]n March 14, 2016, Mifsud met with Papadopoulos in Italy,” and “[o]n March 24, 2016, Mifsud met again with Papadopoulos, this time bringing along a Russian national who was introduced as a relative of Putin.” … Papadoponlos reported back to the Campaign that “his conversation was to arrange a meeting between us and the Russian leadership to discuss U.S.-Russia ties under President Trump.” These vague references to meetings between Papadopoulos, a foreign policy advisor to the Campaign, and Mifsud, a London-based academic not officially affiliated with the Russian Federation, do not raise a plausible inference that the defendants agreed to participate with the Russian Federation in hacking the computers and stealing its documents…. To the contrary, Mifsud is alleged to have told Papadapoulos about emails harmful to the Hillary Clinton campaign only after the Russian Federation had hacked the DNC and had those emails in its possession.

The section on Wikileaks shows just how awful the DNC’s case really was — as their own complaint undermined their own argument.

The DNC also repeatedly argues in its brief that WikiLeaks participated in the theft of the DNC documents…. But in the Second Amended Complaint the DNC alleges that WikiLeaks first requested stolen DNC materials from Guccifer 2.0 only after the Russian Federation had already stolen them and after Russian agents began disseminating them through Guccifer 2.0…. The Second Amended Complaint does not allege that WikiLeaks agreed to participate in the theft or that it had any advance knowledge that the Russian Federation was planning to hack the DNC.

The court also points out that the infamous “meeting at Trump Tower” that has been subject to much speculation, happened after the DNC hacking had already occurred, meaning that it couldn’t possibly have been held to establish a conspiracy to hack the DNC (and, of course, the DNC has no evidence to suggest, and thus, no allegations, to say that there was any discussion at that meeting of hacking the DNC). In other areas the judge points out that allegations “are even more threadbare.” As we said, this is a conspiracy theory disguised as a legal complaint.

In short, the DNC raises a number of connections and communications between the defendants and with people loosely connected to the Russian Federation, but at no point does the DNC allege any facts in the Second Amended Complaint to show that any of the defendants other than the Russian Federation participated in the theft of the information. Nor does the DNC allege that the defendants ever agreed to help the Russian Federation steal the documents. Indeed, the DNC does not raise a factual allegation that suggests that any of the defendants were even aware that the Russian Federation was planning to hack the DNC’s computers until after it had already done so. At most, the DNC has alleged that after the Russian Federation stole the documents, Mifsud and the Agalarovs told campaign members about the stolen documents (although it is unclear whether the communications were about stolen DNC documents or generally about documents harmful to Hillary Clinton), WikiLeaks requested the stolen documents and published them, and some of the other defendants welcomed the publication of the documents at times helpful to the Campaign.

And thus, the actions of the others in passing around or publishing those documents later is quite clearly protected under the 1st Amendment.

The judge does separately deal with the issue of Wikileaks. This was the one that most concerned press freedom advocates, and the judge clearly understands the issues:

The argument for liability is strongest against WikiLeaks because it is the only defendant other than the Russian Federation that is alleged to have published the stolen information. The DNC alleges that WikiLeaks solicited stolen documents from the GRU and then coordinated with the GRU and the Campaign defendants to publish the stolen documents at times helpful to the Trump Campaign. Like the defendant in Bartnicki, WikiLeaks did not play any role in the theft of the documents and it is undisputed that the stolen materials involve matters of public concern. However, the DNC argues that this case is distinguishable from Bartnicki because WikiLeaks solicited the documents from the GRU knowing that they were stolen and coordinated with the GRU and the Campaign to disseminate the documents at times favorable to the Trump Campaign. The DNC argues that WikiLeaks should be considered an after-the-fact coconspirator for the theft based on its coordination to obtain and distribute the stolen materials.

As an initial matter, it is constitutionally insignificant that WikiLeaks knew the Russian Federation had stolen the documents when it published them. Indeed, in Bartnicki the Supreme Court noted that the radio host either did know, or at least had reason to know, that the communication at issue was unlawfully intercepted….

And, contrary to the argument, it is also irrelevant that WikiLeaks solicited the stolen documents from Russian agents. A person is entitled publish stolen documents that the publisher requested from a source so long as the publisher did not participate in the theft…. Indeed, the DNC acknowledges that this is a common journalistic practice.

The argument that WikiLeaks can be held liable for the theft as an after-the-fact coconspirator of the stolen documents is also unpersuasive. That argument would eviscerate Bartnicki; such a rule would render any journalist who publishes an article based on stolen information a coconspirator in the theft….

WikiLeaks and its amici argue that holding WikiLeaks liable in this situation would also threaten freedom of the press. The DNC responds that this case does not threaten freedom of the press because WikiLeaks did not engage in normal journalistic practices by, for example, “asking foreign intelligence services to steal ‘new material’ from American targets.” … The argument misconstrues its own allegations in the Second Amended Complaint. In the Second Amended Complaint, the DNC states that “WikiLeaks sent GRU operatives using the screenname Guccifer 2.0 a private message, asking the operatives to “[s]end any new material [stolen from the DNC] here for us to review.'” … This was not a solicitation to steal documents but a request for material that had been stolen. Journalists are allowed to request documents that have been stolen and to publish those documents…. Therefore, the DNC cannot hold WikiLeaks or Assange liable for publishing the information that Russian agents stole.

The court then rejects the DNC’s argument that “trade secrets” (by which it meant donor lists) are somehow excluded from Bartnicki, and therefore publishing them is not protected by the 1st Amendment. As the court explains, this is a pretty blatant misreading of Bartnicki, which acknowledged that there could be a different calculus when it involved things like trade secrets — whereas the DNC pretended that Barnicki outright excluded them. Either way, the court says that in this case, the publishing of donor lists is obviously protected by the 1st Amendment:

In this case it is plain that the conclusory allegations that “donor lists” and “fundraising strategies” were among those documents published by WikiLeaks does not provide a basis to overcome the First Amendment. The interest in keeping “donor lists” and “fundraising strategies” secret is dwarfed by the newsworthiness of the documents as whole….

If WikiLeaks could be held liable for publishing documents concerning the political financial and voter-engagement strategies simply because the DNC labels them “secret” and trade secrets, then so could any newspaper or other media outlet. But that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern. The published internal communications allowed the American electorate to look behind the curtain of one of the two major political parties in the United States during a presidential election. This type of information is plainly of the type entitled to the strongest protection that the First Amendment offers….

And, as basically anyone with a passing familiarity with how RICO works expected, the court also explicitly rejects the whole RICO nonsense:

The allegations provide no basis to infer either that the alleged AIF members formed an ongoing organization or that the defendants formed a coherent entity that was separate and apart from the predicate acts that allegedly comprise the alleged fraudulent scheme….

This is, in part, because the DNC alleges in conclusory fashion that various individuals and entities have committed acts to further the scheme despite not having any apparent connection to most of the other defendants. The DNC asserts only that there were scattered contacts between the alleged AIF members and does not assert any facts suggesting hierarchy or organization. For example, none of the asserted AIF members are alleged to have participated in the theft of the documents with the Russian Federation or to have even been aware that the Russian Federation was planning such a theft. The Russian Federation published at least some of the documents via Guccifer 2.0, and there is no allegation that any of the defendants participated in that publication. WikiLeaks contacted the GRU to obtain the stolen documents, but there is no indication that any of the other asserted AIF members were aware of this contact.

There’s also this:

Moreover, the alleged common goal of the AIF enterprise to get Donald Trump elected is not an unlawful or fraudulent goal.

The final claims in the complaint are dismissed pretty quickly as well. Wiretapping? Wha…? For it to be wiretapping, it has to involve recording something as it happens (“intercepted contemporaneously with transmission”) and that did not happen:

There is no allegation that any of the documents provided to WikiLeaks contained communications that were intercepted contemporaneously with transmission. The documents that the Russian Federation disclosed to WikiLeaks are described as reports and documents rather than items that would suggest electronic communications that were recorded simultaneously with their transmission…. In any event, there is no allegation that WikiLeaks was aware that any documents it published were intercepted contemporaneously with transmission.

The Defend Trade Secrets Act claim flops as well. The earlier discussion about publishing trade secrets being protected by the 1st Amendment mostly covers that, but the claim makes even less sense for the other defendants:

The DNC does not allege that any defendant other than the Russian Federation and WikiLeaks possessed or published its alleged trade secrets. However, the DNC argues that the remaining defendants are still liable under the DCUTSA because they “used” the documents after they had been published by WikiLeaks and the Russian Federation. This argument is untenable — a “trade secret that becomes public knowledge is no longer a trade secret.”… That the defendants might have used documents that had already been published by the Russian Federation and WikiLeaks is not an unlawful or improper use of the documents.

As for the computer hacking claims, again, only the Russians did that, and you can’t bring them into a US court. The DNC tried to argue that there was “aiding and abetting” by the others, but (1) they then “failed to allege facts showing any defendant aided or abetted the hack into the DNC computer systems,” and (2) it doesn’t appear that the Virginia Computer Crimes Act (the local state version of the CFAA) even includes liability for aiding and abetting. But, hey, why would that stop the DNC?

The court doesn’t even seem to bother with the rather insane copyright claim, which was based on DMCA 1201 — the anti-circumvention part of the DMCA, in which the DNC argued that the DMCA 1201 acted as a sort of mini-CFAA, because any activity to get around “technical protection measures” is automatically infringing under 1201. But, that theory is so nuts it looks like the court just skipped right over it.

Again, none of this is surprising, but it’s nice to see a clear and decisive ruling on this — and one hopes the DNC and its lawyers just let this one go rather than trying to appeal (a wish that seems unlikely to be fulfilled). It’s possible this case is more about politics than any legal theory (because there is no reasonable legal theory here), but if so that’s even more abusive of the federal judicial system.

Filed Under: 1st amendment, conspiracy, donald trump, free speech, freedom of the press, hacking, jared kushner, julian assange, paul manafort, rico, russia
Companies: dnc, wikileaks

Court Tosses Lawsuit Claiming Muting A Runescape Character Violates The First Amendment

Free Speech

from the as-one-does dept

Here’s a bit of a weird one: a First Amendment lawsuit over the “muting” of a player’s character. (h/t Volokh Conspiracy)

Amro Elansari — in a handwritten complaint [PDF] — contends Jagex Inc., the company behind Runescape, violated loads of rights and other things when it apparently muted his character back in March of this year. The allegations include discrimination, violations of his free speech rights along with his due process rights, and other “adverse action.”

He claims he was muted for no reason and without notification — this despite being a “streamer + 2000 hours + invested.” He also claims this happened while he was streaming and that viewers witnessed this egregious violation of multiple rights as it happened. Elansari’s lawsuit asks for the court to order the “mute” removed and whatever else a jury might find proper to award him.

Obviously, there’s nothing the judicial system can do for him.

To start with, Elansari is suing a (UK) company for violating his (American) rights. Even without these particular modifiers, there’s nowhere Elansari can go with this. He’s suing a private company for violating his Constitutional rights — something that’s almost impossible for a private company to do. Especially First Amendment rights, which can only be violated by the government.

Early on in the order [PDF], the court notes there’s no federal claim it can even attempt to handle given the particulars of the allegations.

[Elansari] cannot state a constitutional claim against a private company precluding him [from] amending to assert a federal question.

It gets a bit more particular a couple of pages later:

While he alleges Jagex Inc., an entity located in the United Kingdom, muted and denied his appeal, these allegations cannot state a plausible constitutional claim.

Now, pay attention everyone lining up to sue social media platforms for moderating them.

The First Amendment and its constitutional free speech guarantees restrict government actors, not private entities.

The same goes for the due process claims. Only the government can violate these rights. For a private company to violate the Fifth Amendment, it has to be working in concert with the government when the violation occurs. Obviously, a Runescape muting does not involve state actors — not even UK-located ones.

I know our civics textbooks said nice things about the judicial system and the redress of grievances, but sometimes a (legal) complaint is just a (regular) complaint. The plaintiff gets to bitch a bit and the court just kind of nods along like a tolerant bartender until closing time.

The only place Elansari comes out ahead is at the cash register. The court grants his request to file without paying fees, but the only thing that does is keep him from falling farther behind.

Once again with feeling:

The First Amendment and its constitutional free speech guarantees restrict government actors, not private entities.

Some people out there need this tattooed to the inside of their eyelids… or at the very least, across the foreheads of their legal representation.

Filed Under: 1st amendment, amor elansari, free speech, muting, runescape
Companies: jagex

Three Years Later: 1st Amendment Challenge Over DMCA's Anti-Circumvention Provisions Can Move Forward

Copyright

from the took-'em-long-enough dept

Almost exactly three years ago we wrote about how well known computer security professor Matthew Green and famed hardware hacker Bunnie Huang had teamed up with EFF and the law firm Wilson Sonsini to file a fascinating 1st Amendment challenge to the DMCA’s Section 1201. 1201 is the so-called “anti-circumvention” or digital locks provision of the DMCA, that says that it’s infringing to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” that is designed to “circumvent” DRM or other “technological protection measures.” Basically, if there’s a digital lock on something — doing anything to get around it (or to help others get around it) is potentially a copyright violation even if (and this is important) the purpose and result of circumventing the DRM has nothing to do with infringing on copyright.

Even Congress knew that this part of the law was crazy when they passed it. It knew that this would lead to all sorts of perfectly reasonable activities suddenly being declared infringing — so it came up with a really annoying hack to deal with that. A triennial review, where every three years everyone could go beg the Copyright Office and the Librarian of Congress to grant categories of exemptions from Section 1201. Those exemptions only last for three years, so even if you get one, you need to keep applying.

The lawsuit took an interesting approach to challenging 1201. Noting that the Supreme Court has long held that fair use is a necessary safety valve to make copyright compatible with the 1st Amendment, they noted that 1201 does not allow fair use as a defense. And if it’s true that fair use is necessary to make copyright compliant with the 1st Amendment, then that should mean that 1201 is not constitutional.

The lawsuit has more or less sat in lawsuit purgatory for nearly three years when the court finally ruled that the case can move forward… in part. In a detailed 61-page opinion the court allowed some claims to move forward while dismissing other ones. It’s a victory that the case is moving forward, but among the dismissed claims were the general challenge to the constitutionality of 1201. That’s disappointing.

Green and Huang argued that 1201 violated their 1st Amendment rights, because the very threat of violating 1201 caused them to avoid working on various projects — and those projects were expressive in nature. The court buys that argument — and says that they have standing to make claims that their own expression was stifled by 1201 and the whole triennial review process. The DOJ argued that they hadn’t shown any actual injury, but the court points out that’s ridiculous:

First, plaintiffs have sufficiently alleged that their proposed course of conduct is arguably proscribed by the DMCA. With regard to section 1201(a)(1)(A)?s circumvention prohibition, Dr. Green has alleged that he plans to circumvent TPMs for purposes of his academic research… and Mr. Huang and Alphamax have alleged that they plan to circumvent TPMs to create the NeTVCR… With regard to section 1201(a)(2)?s trafficking prohibition, Dr. Green has sufficiently alleged that he plans to include ?detailed information regarding how to circumvent security systems? in a book about his research, and he has indicated that the ?detailed information? will include computer code…. (?I am now writing an academic book . . . . I would like to include examples of code capable of bypassing security measures, for readers to learn from.?)…. And Mr. Huang and Alphamax have alleged that they intend to disseminate ?information about how to build NeTVCR,?… which permits the reasonable inference that they will disseminate the technological know-how and computer code required to circumvent the TPMs that bar access to HDMI signals…. Accordingly, plaintiffs have put forth a sufficiently ?credible statement of intent to engage in violative conduct.?

So, that’s good.

Also nice is that the court explicitly recognizes that “code is speech.”

The Court, as do defendants… agrees with plaintiffs that the DMCA and its triennial rulemaking process burden the use and dissemination of computer code, thereby implicating the First Amendment. Although the question has not been addressed by the D.C. Circuit, as other courts have explained, code ?at some level contains expression, thus implicating the First Amendment.?… Code is speech precisely because, like a recipe or a musical score, it has the capacity to convey information to a human.

However, the court rejects the straight up Constitutional challenge that 1201 itself is over-broad.

The Court is not persuaded that plaintiffs have alleged facts sufficient to state a claim that DMCA provisions are unconstitutionally overbroad because they ?have failed to identify any significant difference? between their claim that the DMCA provisions are invalid on overbreadth grounds and their claim that those provisions are unconstitutional when applied to their proposed course of conduct…. Plaintiffs? argument in both scenarios is that fair use is constitutionally required and that the DMCA inhibits fair use rights and thus is unconstitutional…. Plaintiffs allege a number of potential fair uses that the DMCA burdens because the Librarian denied exemptions requested by third parties in the 2015 triennial rulemaking process…. Plaintiffs? as-applied claims, however, arise out of the denials of exemptions either they requested, or that would have covered their conduct…. Plaintiffs have not alleged that the DMCA ?will have any different impact on third parties? interests in free speech than it has on? their own. (?[W]hen, as here, the plaintiffs are themselves engaged in protected activity?when the challenged statute would have no greater impact upon the rights of nonparties than it would have upon the rights of the parties before the Court?there is no need to employ a traditional overbreadth analysis.?). The Court therefore need not reach the question of whether the ?DMCA?s anti-circumvention and antitrafficking provisions are plainly legitimate in the vast majority of applications.?

In other words, the case can and should focus on the direct impact on Green and Huang based on what they were trying to do — and the claims failed (in the court’s opinion) to make a clear case how the statute itself was over-broad and unconstitutional. That at least leaves open the possibility of other cases making a better argument on that front.

It also rejects the claim that the Librarian of Congress violates the 1st Amendment in failing to grant certain exemptions.

The Court is not persuaded that plaintiffs have sufficiently alleged facts to state a claim that the exemption rulemaking process is an unconstitutional speech-licensing regime because plaintiffs have not alleged that the rulemaking process results in censorship through ?suppressing disfavored speech or disliked speakers,?

Indeed, the court then claims that the DMCA 1201 triennial review process is not “content-based” and therefore it’s not violating the 1st Amendment.

Plaintiffs have not alleged facts indicating that the rulemaking defendants? decision of whether to grant exemptions in the 2015 rulemaking process was based on the content of what those who sought exemptions wanted to say, their viewpoint, or who they are…. The allegations here are therefore entirely distinguishable from speech licensing regimes where the scheme created a prior restraint based on the content of what the speaker wanted to express.

So, all in all a mixed bag. The case is still worth watching and could lead to some interesting rulings, but the bigger attempt to have the entire law declared unconstitutional seems to have hit a dead end.

Filed Under: 1201, bunnie huang, copyright, dmca, dmca 1201, fair use, free speech, matthew green

Germany Cashes Out, Hits Facebook With Fines For Failing To Comply With Its Ultra-Vague 'Hate Speech' Law

Free Speech

from the WITHDRAW-CHECK-BALANCE-WITHDRAW-AGAIN dept

The German government is finally getting around to fining social media companies for violating its absurd “hate speech” law. The law, which took effect January 1, 2018, wasn’t even able to make it a week without causing collateral damage.

Unable to construct a machine capable of killing fascists, the German parliament built one that kills satire. Shortly, after it took effect, the hate speech law took down tweets from a long-running German satirical magazine. More debacles followed — so many that the German equivalent of the alt-right was able to score political points on government censorship, even as they called for government censorship in the other direction.

The new law turned social media companies into ATMs with its demand that something as nebulous as “hate speech” be removed with extreme haste lest its principals and moderation teams be fined personally for stuff German assholes posted to the internet.

It’s time to cash out.

Facebook has been slapped with a fine of over $2 million by Germany for “under reporting” complaints it receives about alleged “illegal” online content.

Whoops. I guess that’s the sort of thing that happens when a.) the law is uber-vague about what constitutes “hate speech” and b.) gives you only 24 hours to do something about it. This is the main complaint by Facebook. The law “lacks clarity.” Nevertheless, demands for something to be done have been made, therefore something must be done, “clarity” notwithstanding.

Facebook has responded. It has tried to do what the German government demands, even without helpful things like narrow definitions or realistic turnaround time. This report shows the social media behemoth has fielded 1,700 complaints from the German government over the last half of 2018. The claim that it hasn’t complied with reporting requirements is absurd, given the lack of guidance from the German government.

As Mike Masnick has pointed out on multiple occasions, moderation at scale is difficult. It becomes impossible when dozens of competing interests push for expedient moderation of content not clearly defined by the laws Facebook is now subject to. The thing is, it doesn’t matter to these governments. They just want a scapegoat with a full wallet, and Facebook certainly fits the bill. So we get what we have here: a law that nukes lawful content while still extracting cash from Facebook’s coffers. Win-win, I guess, if that’s all Germans expect from their government.

Filed Under: free speech, germany, hate speech
Companies: facebook

Following Trump Ruling Against Twitter Blockade, AOC Sued For Her Blocks On Twitter

Free Speech

from the yup dept

So we just wrote about the 2nd Circuit Appeals court affirming a victory for the Knight 1st Amendment Center against Donald Trump, making it clear that he cannot block followers on social media. As we noted, the case is very fact specific, and people shouldn’t read too much into it. But, in general, it does find that if someone is a public official, using social media for official government purposes, and creating an open public forum out of that, they cannot block followers based on the views of those followers — as that is the state engaging in impermissible viewpoint discrimination.

Some Trump supporters then spun that around on the other side of the aisle, picking out the fact that freshman Congresswoman Alexandria Ocasio-Cortez has blocked people on Twitter as well. Indeed, as Scott Greenfield points out, in the wake of the 2nd Circuit ruling, former NY State Assemblyman Dov Hikind has already sued Ocasio-Cortez, pointing out that she has him blocked on Twitter.

And, again, the whole point we tried to make with our post about the Trump ruling is that the rules are very fact specific — but based on what’s known so far, it looks like Hikind is absolutely correct. AOC famously uses her Twitter feed for official government business all the time. And if she’s blocked Hikind for the way he expresses his views, it seems likely that she, too, is on the wrong side of the Constitution. From the lawsuit, it appears Hikind is very much blocked by AOC:

I’ve seen some people trying to distinguish the two cases — but mostly that seems based on their political views, and whether they tend to support Trump or AOC. And that’s a problem. There may be distinguishing factors that come out later, but from what’s laid out in the lawsuit as presented, it seems like Hikind’s case is pretty much identical to the Knight case, and AOC shouldn’t be allowed to block people from this particular account. One possible distinction would be if AOC can prove that the decisions to block were not based on content (a violation of the 1st Amendment), but on actions, such as harassment — however, it would be very, very difficult to make that case in a credible way that doesn’t also create all sorts of knock-on consequences for speech.

I’ve seen some raise issues about how she should be able to make use of the tools provided on the platform to block trolls and harassers, but, again, that applies equally to Trump. And going back to basics, if the government official is creating an open forum, they cannot block people based on their expression. That’s sort of fundamental to the 1st Amendment. And thus, if you agree that Trump can’t block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

Filed Under: alexandria ocasio-cortez, blocks, donald trump, dov hikind, first amendment, free speech, public forum, social media
Companies: twitter

Indonesian Court Convicts Woman Of Criminal Defamation For Recording Her Boss Trying To Harass Her Into An Affair With Him

Free Speech

from the we've-heard-the-complaints-and-move-to-prosecute-the-person-harmed dept

Let’s hear it for prosecutorial discretion!

A school bookkeeper in Indonesia who recorded her boss’s lewd phone call as proof she was being harassed must serve at least six months in prison for distributing obscene material, the country’s Supreme Court has ruled.

[…]

Her boss, who goes by the single name Muslim, as is common in Indonesia, was the principal at Senior High School Seven in Mataram, Lombok’s largest city. Ms. Nuril recorded him using explicit language and hounding her to have an affair. He was never punished for harassing her and instead has been promoted repeatedly.

To be fair, we have to consider the extremely unfair political/human rights atmosphere in Indonesia, where women are expected to put up with sexual harassment and sexual assault if they expect to hold onto their jobs. And this definitely is a case of prosecutorial discretion — a case in which prosecutors decided to press charges against the person who recorded evidence of workplace harassment, rather than the government employee who harassed her.

This recording was shared with others, who then shared it with other people. Once enough people had heard it, the asshole known only by the name “Muslim” decided to file a complaint. This prosecution for criminal defamation — that is, Muslim claimed he was defamed by a recording of him saying and doing harassing things — has led to a six month jail sentence and a $35,000 fine. If the fine isn’t paid, it’s two more months in jail for the harassment victim.

But let’s not get carried away with feeling better about living in an open society like ours in the US of A, land of the free and begrudging proponent of civil rights. We hear a lot of talk here about “prosecutorial discretion,” especially when bad laws are being written, passed, or enforced. Our prosecutors tend to believe they’re tough but fair and possessors of hearts of gold, but we looooove to punish victims just as much as more “backwards” societies.

On multiple occasions, prosecutors have levied child porn production charges against teens who have sent naked photos of themselves to other teens. If that charge can’t be made to stick, prosecutors labor long and hard to find some way to stick stupid teens with lifetime sex offender labels simply for doing stupid teen things like sexting.

Our prosecutors also punish victims of school violence and harassment. In at least one case, a bullied student who recorded his bullies was hit with criminal charges for trying to document these attacks by other students. School administrators have also called the cops on students who surreptitiously record conversations with school officials, claiming these violate state wiretap ordinances.

The fine people in law enforcement have, for years, abused state wiretapping laws to punish bystanders for recording abusive police behavior. And there are dozens of cases of negligent homicide generated every year that punish crime victims for being the victims of crime. Our prosecutors will even charge a mother for “killing” an infant, when it was actually an off-duty cop doing double the speed limit blowing through a red light and demolishing the minivan containing the now-dead infant.

Are we really better than other countries that treat perpetrators of sexual oppression as “victims” of crimes? Maybe. But not by much. We may have a better system of recourse, but the qualified immunity doctrine has allowed many perpetrators of crimes and rights violations to walk away untouched from allegations of abuse and misconduct.

No, this is an institutional problem all over the world. The phrase “prosecutorial discretion” can routinely be taken to mean “the stupidest, most-abusive prosecutions” will result from any law that can be twisted to serve government employees who choose to behave badly.

Filed Under: defamation, free speech, indonesia, sexual harassment

Appeals Court Affirms: Trump Can't Block Followers On Social Media

Free Speech

from the the-1st-amendment-abides dept

A little over a year ago, we wrote about the district court ruling saying that it’s unconstitutional for the President to block followers on social media. The case was pretty interesting, raising questions about what counts as a “designated public forum” online. As we noted at the time, plenty of people were likely to misinterpret this ruling to mean that social media sites themselves were “public forums” and therefore had to abide by the 1st Amendment — though one might hope that the Supreme Court’s pretty clear ruling suggesting that social media sites are not in any way public forums would put a rest to that argument (spoiler alert: it won’t).

Either way, the Trump administration appealed the lower court ruling and earlier this week, the 2nd Circuit affirmed the lower court ruling and agreed that it was a 1st Amendment violation for Trump to block followers. Once again, the legal specifics here are a bit in the weeds, and as Ken White noted in a tweet, it would have been nice if the ruling was more careful and more clear in dealing with the various complicated concepts at play. On that front, it failed. Overall, though, the ruling is the right decision — it just would have been nice if the judges had been more careful in explaining it.

The key point, though, is that if (1) a public official is (2) using social media (3) for official purposes (4) to create a space of open dialogue (and all four of those factors are met) then they cannot block people from following them based on the views those users express, as it violates the 1st Amendment. The court is explicit that this ruling has nothing to do with whether or not private companies are bound by the 1st Amendment (because they are not):

We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account. Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms. We do conclude, however, that 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

The court makes it clear that President Trump’s Twitter account meets the various factors above. He’s a public official (duh) using Twitter (also duh). There is some discussion of how it’s used for official purposes:

The President and multiple members of his administration have described his use of the Account as official. The President has stipulated that he, with the assistance of Defendant Daniel Scavino, uses the Account frequently ?to announce, describe, and defend his policies; to promote his Administration?s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his Administration he believes to be unfair.? Id. at 56. In June 2017, then?White House Press Secretary Sean Spicer stated at a press conference that President Trump?s tweets should be considered ?official statements by the President of the United States.? Id. at 55?56. In June 2017, the White House responded to a request for official White House records from the House Permanent Select Committee on Intelligence by referring the Committee to a statement made by the President on Twitter.

Moreover, the Account is one of the White House?s main vehicles for conducting official business. The President operates the Account with the assistance of defendant Daniel Scavino, the White House Director of Social Media and Assistant to the President. The President and his aides have characterized tweets from the Account as official statements of the President. For example, the President used the Account to announce the nomination of Christopher Wray as FBI director and to announce the administration?s ban on transgender individuals serving in the military. The President used the Account to first announce that he had fired Chief of Staff Reince Priebus and replaced him with General John Kelly. President Trump also used the Account to inform the public about his discussions with the South Korean president concerning North Korea?s nuclear program and about his decision to sell sophisticated military hardware to Japan and South Korea.

The court then notes that the President chose to block certain individuals because they were criticizing the President.

In May and June of 2017, the President blocked each of the Individual Plaintiffs (but not the Knight First Amendment Institute) from the Account. The government concedes that each of them was blocked after posting replies in which they criticized the President or his policies and that they were blocked as a result of their criticism.

In court, the DOJ tried to argue that while the Twitter account is part of Trump’s presidency, that the blocking was not a “state action.” The court does not buy this. At all.

No one disputes that the First Amendment restricts government regulation of private speech but does not regulate purely private speech. If, in blocking, the President were acting in a governmental capacity, then he may not discriminate based on viewpoint among the private speech occurring in the Account?s interactive space. As noted, the government argues first that the Account is the President?s private property because he opened it in 2009 as a personal account and he will retain personal control over the Account after his presidency. However, the fact that government control over property is temporary, or that the government does not ?own? the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547?52 (1975) (holding privately?owned theater leased to and operated by city was public forum). Temporary control by the government can still be control for First Amendment purposes.

The government?s contention that the President?s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to ?Donald J. Trump, ?45th President of the United States of America, Washington, D.C.?? App?x at 54. The President has described his use of the Account as ?MODERN DAY PRESIDENTIAL.? Id. at 55. The White House social media director has described the Account as a channel through which ?President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!? Id. The @WhiteHouse account, an undoubtedly official Twitter account run by the government, ?directs Twitter users to ?Follow for the latest from @POTUS @realDonaldTrump and his Administration.? Id. Further, the @POTUS account frequently republishes tweets from the Account. As discussed earlier, according to the National Archives and Records Administration, the President?s tweets from the Account ?are official records that must be preserved under the Presidential Records Act.? Id. at 57.

Second, since becoming President he has used the Account on almost a daily basis ?as a channel for communicating and interacting with the public about his administration.? Id. at 54. The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce ?matters related to official government business,? including high?level White House and cabinet?level staff changes as well as changes to major national policies. Id. at 56. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the ?like,? ?retweet,? ?reply,? and other functions of the Account to understand and to evaluate the public?s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non?private nature of the Account and its interactive features are overwhelming.

The government argues that since any Twitter user can block people, so should the President be able to do the same. But, again, the Court (correctly) notes that he President is different and held to a different standard (known as the Constitution) that regular people don’t have to follow.

The court notes that not every public official account is automatically covered this way. They need to actually use it for government business, among other things:

Of course, not every social media account operated by a public official is a government account. Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact?specific inquiry. The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, 1 regard and treat the account. But these are concerns for other cases and other days and are ones we are not required to consider or resolve on this appeal.

The next section is where the opinion gets a little… less-than-clear in its explanation, which might lead to people annoyingly presenting it as something it is not. First, the government tried to argue that the replies to Trump’s Twitter account are not a public forum. But the court notes that it’s well established that the First Amendment does apply online (note: this is not saying that private internet companies are bound by the 1st Amendment — but just that the government is unable to engage in viewpoint discrimination online).

If the Account is a forum?public or otherwise?viewpoint discrimination is not permitted. Int?l Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992); see also Pleasant Grove, 555 U.S. at 469?70 (viewpoint discrimination prohibited in traditional, designated, and limited public forums); Cornelius, 473 U.S. at 806 (viewpoint discrimination prohibited in nonpublic forums). A blocked account is prevented from viewing any of the President?s tweets, replying to those tweets, retweeting them, or liking them. Replying, retweeting, and liking are all expressive conduct that blocking inhibits. Replying and retweeting are messages that a user broadcasts, and, as such, undeniably are speech. Liking a tweet conveys approval or acknowledgment of a tweet and is therefore a symbolic message with expressive content. See, e.g., W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632?33 (1943) (discussing symbols as speech). Significantly, the parties agree that all of this expressive conduct is communicated to the thousands of users who interact with the Account. By blocking the Individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment prohibits.

The court is also not impressed by the DOJ’s claim that blocking does not burden anyone’s speech.

That assertion is not well?grounded in the facts presented to us. The government is correct that the Individual Plaintiffs have no right to require the President to listen to their speech. See Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283 (1984) (a plaintiff has ?no constitutional right to force the government to listen to their views?). However, the speech restrictions at issue burden the Individual Plaintiffs? ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.

Again: here the ruling could have been clearer. Some will argue (incorrectly) that this shows that when people say that if you’re banned from one particular platform, even if you have many others, you’ve had your 1st Amendment rights taken away from you. But, again, the key factor here is whether or not it is state action doing the banning. That’s where it’s unconstitutional.

It’s a good overall ruling and the correct outcome. I just wish the judge had been a bit clearer in some of the statements. And, for those who will falsely use this ruling to argue that the case says that Twitter itself is a public forum and must abide by the 1st Amendment, law professor Eugene Volokh does a nice job explaining why you’re wrong:

Whether the First Amendment applies to a speech restriction generally depends on who is imposing the restriction. If the government is imposing the restriction, then the First Amendment does apply, whether or not the speech is on private property. Likewise, if a private entity is imposing the restriction, then the First Amendment doesn’t apply, whether or not the speech is on government property. (If, for instance, I hit you because of an offensive message that you’re wearing on a city sidewalk, I’m guilty of a crime and a tort, but not a First Amendment violation, unless I’m acting in my capacity as an agent for the government. If your private employer fires you because it learns of your having said something offensive on a city sidewalk, then in many states it wouldn’t be guilty of anything, and in any event not of a First Amendment violation.)

So, again, one can argue that @RealDonaldTrump is run by President Trump in his personal capacity, not his official capacity; but once the court rejected that view, then it doesn’t matter that @RealDonaldTrump is a forum set up on a private company’s computers. Though Twitter, as a private actor, isn’t bound by the First Amendment, a government official, acting in his official capacity, is bound by it.

Either way, kudos to the team at the Knight 1st Amendment Center who brought this case and have continued to pursue this key (and very interesting) aspect of 1st Amendment law.

Filed Under: 1st amendment, donald trump, elected officials, free speech, public forums