Our Bipolar Free-Speech Disorder And How To Fix It (Part 3)

Free Speech

from the social-media-and-free-speech-needs-a-new-framework dept

Part 1 and Part 2 of this series have emphasized that treating today’s free-speech ecosystem in “dyadic” ways?that is, treating each issue as fundamentally a tension between two parties or two sets of stakeholders?doesn’t lead to stable or predictable outcomes that adequately protect free speech and related interests.

As policymakers consider laws that affect platforms or other online content, it is critical that they consider Balkin’s framework and the implications of this “new-school speech regulation” that the framework identifies. Failure to apply it could lead?indeed, has led in the recent past?to laws or regulations that indirectly undermine basic free expression interests.

A critical perspective on how to think about free speech in the twenty-first century requires that we recognize the extent to which free speech is facilitated by the internet and its infrastructure. We also must recognize that free speech is in some new ways made vulnerable by the internet and its infrastructure. In particular, free speech is particularly enhanced by the lowering barriers to entry for speakers that the internet creates. At the same time, free speech is made vulnerable insofar as the internet and the infrastructure it provides for freedom of speech is subject to legal and regulatory action that may not be transparent to users. For example, a government may seek to block the administration of a dissident website’s domain name, or may seek to block the use by dissident speakers of certain payment systems.

There are of course non-governmental forces that may undermine or inhibit free speech?for example, the lowered barriers to entry make it easier for harassers or stalkers to discourage individuals from participation. This problem is in some sense an old problem in free-speech doctrine?the so-called “heckler’s veto”?is a subset of this problem. The problem of harassment may give rise to users’ complaints directly to the platform provider, or to demands that government regulate the platforms (and other speakers) more.

Balkin explores the methods in which government can exercise both hard and soft power to censor or regulate speech at the infrastructure level. This can include direct changes of the law aimed at compelling internet platforms to censor or otherwise limit speech. This can include pressure that doesn’t rise to the level of law or regulation, as when a lawmaker warns a platform that it must figure out how to regulate certain kinds of troubling expression because “[i]f you don’t control your platform, we’re going to have to do something about it.” It can include changes in law or regulation aimed at increasing incentives for platforms to self-police with a heavier hand. Balkin characterizes the ways in which government can regulate speech of citizens and press indirectly, through pressure on or regulation of platforms and other intermediaries like payment systems, as “New School Speech Regulation.”

The important thing to remember is that government itself, although often asked to arbitrate issues that arise between internet platforms and users, is not always a disinterested party. For example, a government may have its own reasons for incentivizing platforms to collect more data (and to disclose the data it has collected), such as with National Security Letters. Because the government may regulate speech indirectly and non-transparently, there is a sense in which government cannot position itself on all issues as a neutral referee of competing interests between platforms and users. In a strong sense, the government itself may have its own interests that themselves may be in opposition to either user interests or platform interests or both.

Toward a new Framework

It is important to recognize that entities at each corner of Balkin’s “triangular” model may each have valid interests. For example, governmental entities may have valid interests in capturing data about users, or in suppressing or censoring certain (narrow) classes of speech, although only within a larger human-rights context in which speech is presumptively protected. End-users and traditional media companies share a presumptive right to free speech, but also other rights consistent with Article 19 of the ICCPR:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The companies, including but not limited to internet infrastructure companies in the top right corner of the triangle, may not have the same kind of legal status that end users or traditional media have. By the same token they may not have the same kind of presumptively necessary role in democratic as governments have. But we may pragmatically recognize that they have a presumptive right to exist, pursue profit, and innovate, on the theory that their doing so ultimately redounds to the benefit of end users and even traditional media, largely by expanding the scope of voice and access.

Properly, we should recognize all these players in the “triangular” paradigm as “stakeholders.” With the exception of the manifestly illegal or malicious entities in the paradigm (e.g., “hackers” and “trolls”), entities at all three corners each have their respective interests that may be in some tension with actors at other corners of the triangle. Further, the bilateral processes between any two sets of entities may obscure or ignore the involvement of the third set in shaping goals and outcomes.

What this strongly suggests is the need for all (lawful, non-malicious) entities to work non-antagonistically towards shared goals in a way that heightens transparency and that improves holistic understanding of the complexity of internet free speech as an ecosystem.

Balkin suggests that his free-speech-triangle model is a model that highlights three problems: (1) “new school” speech regulation that uses the companies as indirect controllers and even censors of content, (2) “private governance” by companies that lacks transparency and accountability, and (3) the incentivized collection of big data that makes surveillance and manipulation of end users (and implicitly the traditional media) easier. He offers three suggested reforms: (a) “structural” regulation that promotes competition and prevents discrimination among “payment systems and basic internet services,” (b) guarantees of “curatorial due process,” and (c) recognition of “a new class of information fiduciaries.”

Of the reforms, the first may be taken as a straightforward call for “network neutrality” regulation, a particular type of regulation of internet services that Balkin has expressly and publicly favored (e.g., his co-authored brief in the net neutrality litigation). But it actually articulates a broader pro-competition principle that has implications for our current internet free-speech ecosystem.

Specifically, the imposition of content-moderation obligations by law and regulation actually inhibits competition and discriminates in favor of incumbent platform companies. Which is to say, because content moderation requires a high degree both of capital investment (developing software and hardware infrastructure to respond to and anticipate problems) and of human intervention (because AI filters make stupid decisions, including false positives, that have free-speech impacts), highly capitalized internet incumbent “success stories” are ready to be responsive to law and regulation in ways that startups and market entrants generally are not. The second and third suggestions?that the platforms provide guarantees of “due process” in their systems of private governance, and that the companies that collect and hold Big Data meet fiduciary obligations?need less explanation. But I would add to the “information fiduciary” proposal that we would properly want such a fiduciary to be able to invoke some kind of privilege against routine disclosure of user information, just as traditional fiduciaries like doctors and lawyers are able to do.

Balkin’s “triangle” paradigm, which gives us three sets of discrete stakeholders, three problems relating to the stakeholders’ relationships with one another, and three reforms is a good first step to framing internet free-speech issues non-dyadically. But while the taxonomy is useful it shouldn’t be limiting or necessarily reducible to three. There are arguably some additional reforms that ought to be considered, at a “meta” level (or, if you will, above and outside the corners of the free-speech triangle). With this in mind let us add the following “meta” recommendations to Balkin’s three specific programmatic ones.

Multistakeholderism. The multipolar model that Balkin suggests, or any non-dyadic model, actually has been addressed in different ways by institutionalized precursors in the world of internet law and policy. That model is multistakeholderism. Those precursors, ranging from hands-on regulators and norm setters like ICANN to broader and more inclusive policy discussion forums like the Internet Governance Forum, are by no means perfect and so must be subjected to ongoing critical review and refinement. But they’re better at providing a comprehensive, holistic perspective than lawmaking and court cases. Governments should be able to participate, but should be recognizes as stakeholders and not just referees.

Commitment to democratic values, including free speech, on the internet. Everyone agrees that some kinds of freedom of expression are disturbing and disruptive on the internet?yet, naturally enough, not everybody agrees about what should be banned or controlled. We need to work actively to uncouple the commitment to free speech on the internet?which we should embrace as a function of both the First Amendment and international human-rights instruments?from debates about particular free-speech problems. The road to doing this lies in bipartisan (or multipartisan, or transpartisan) commitment to free-speech values. The road away from the commitment lies expressly in the presumption that “free speech” is a value that is more “right” than “left” (or vice versa). To save free speech for any of us, we must commit in the establishment of our internet policies to what Brandeis called “freedom for the thought that we hate.”

Commitment to “open society” models of internet norms and internet governance institutions. Recognition, following Karl Popper’s The Open Society and Its Enemies (Chapter 7) that our framework for internet law and regulation can’t be “who has the right to govern” because all stakeholders have some claims of right regarding this. And it can’t be “who is the best to govern” because that model leads to disputed notions of who’s best. Instead, as Popper frames it,

“For even those who share this assumption of Plato’s admit that political rulers are not always sufficiently ‘good’ or ‘wise’ (we need not worry about the precise meaning of these terms), and that it is not at all easy to get a government on whose goodness and wisdom one can implicitly rely. If that is granted, then we must ask whether political thought should not face from the beginning the possibility of bad government; whether we should not prepare for the worst leaders, and hope for the best. But this leads to a new approach to the problem of politics, for it forces us to replace the question: Who should rule? by the new question: How can we so organize political institutions that bad or incompetent rulers can be prevented from doing too much damage?”

Popper’s focus on institutions that prevent “too much damage” when “the worst leaders” in charge is the right one. Protecting freedom of speech in today’s internet ecosystem requires protecting against the excesses or imbalances that necessarily result from merely dyadic conceptions of where the problems are or where the responsibilities for correcting the problems lie. If, for example, government or the public want more content moderation by platforms, there need to be institutions that facilitate education and improved awareness about the tradeoffs. If, as a technical and human matter it’s difficult (maybe impossible) to come up with a solution that (a) scales and (b) doesn’t lead to a parade of objectionable instances of censorship/non-censorship/inequity/bias, then we need create institutions in which that insight is fully shared among stakeholders. (Facebook has promised more than once to throw money at AI-based solutions, or partial solutions, to content problems, but the company is in the unhappy position of having a full wallet with nothing that’s worth buying, at least for that purpose. (See “Can Mark Zuckerberg Fix Facebook Before It Breaks Democracy?”). The alternative will be increasing insistence that platforms engage in “private governance” that’s both inconsistent and less accountable. In the absence of an “ecosystem” perspective, different stakeholders will insist on short-term solutions that ignore the potential for “vicious cycle” effects.

Older models for mass-medium free-speech regulation were entitles like newspapers and publishers, with high degrees of editorial control, and common carriers like the telephone and telegraph, which mostly did not make content-filtering determinations. There is likely no version of these older models that would work for Twitter or Facebook (or similar platforms) while maintaining the great increase in freedom of expression that those platforms have enabled. Dyadic conceptions of responsibility may lead to “vicious cycles,” as when Facebook is pressured to censor some content in response to demands for content moderation, and the company’s response creates further unhappiness with the platform (because human beings who are the ultimate arbiters of individual content-moderation decisions are fallible, inconsistent, etc.). At that point, the criticism of the platform may frame itself as a demand for less “censorship” or for more “moderation” or for the end of all unfair censorship/moderation. There may also be the inference that platforms have deliberately been socially irresponsible. Although that inference may be correct in some specific cases, the general truth is that the platforms have more typically been wrestling with a range of different, competing responsibilities.

It is safe to assume that today’s mass-media platforms, including but not limited to social media, as well as tomorrow’s platforms will generate new models aimed at ensuring that the freedom of speech is protected. But the only way to increase the chances that the new models will be the best possible models is to create a framework of shared free-speech and open-society values, and to ensure that each set of stakeholders has its seats at the table when the model-building starts.

Mike Godwin (@sfmnemonic) is a distinguished senior fellow at the R Street Institute.

Filed Under: frameworks, free speech, social media

How Civil Subpoenas Are Used To Unmask Online Speakers, And How A Recent Decision Will Help Deter Bogus Ones

Free Speech

from the unexpected-good-news dept

Important cases don’t always happen with a lot of fanfare. It may be easy to follow what the US Supreme Court is up to, with its relatively small docket of high-profile matters, but plenty of other important cases get resolved by state and lower courts around the country with much less attention but just as much import.

This decision by a California appeals court, Roe v. Halbig, is one such example, and happily the impact it stands to have is a good one. It isn’t a showy decision declaring some new principle of liberty. Rather, it stands to quietly help ensure that codified protections for speech, and anonymous speech in particular, work as intended.

We’ve written many times before about how important it is that anonymous speech be protected. Indeed, the US Supreme Court has found that the First Amendment includes the right to speak anonymously, because without that right a lot of important speech could not happen. But it’s one thing to say that anonymous speech must be protected; it’s another to make sure that anonymous online speakers can remain anonymous on a practical level. If it is too easy to unmask speakers, then their right to speak anonymously becomes illusory.

To prevent the right to anonymous speech from becoming meaningless, it’s important that discovery instruments, like subpoenas, intended to unmask speakers, not be vulnerable to being abused, especially by plaintiffs who don’t have a legitimate need to unmask their critics. Because not only is a SLAPP suit chilling to speech, but so is a subpoena arising from a SLAPP suit that strips a speaker of the anonymous protection they counted on having when they spoke.

This decision will help prevent the latter. To understand how, it helps to understand how these subpoenas get used.

What typically happens is that a SLAPP is filed in another state (or country), likely one that does not have a robust anti-SLAPP law, and names a “John Doe” defendant. The plaintiff then issues a subpoena connected to the case targeted at whatever Internet platform (e.g., Twitter, Google, Facebook, Automattic/WordPress, Yelp, Glassdoor, etc.) or platforms may have information that would help identify who the speaker was. Obviously this information would be needed in order to maintain the lawsuit ? you need to know who you are suing in order to actually sue them ? but there is nothing requiring a lawsuit to continue once the identification is made. Sometimes SLAPP plaintiffs file lawsuits only as a vehicle to learn who their critic was because that’s all they need to be able to make their critic regret speaking against them.

If the platform is exposed to the jurisdiction of this other state, and thus subject to the subpoena, then all of that state’s rules about subpoenas will govern what comes next. But if the California-based platform is not subject to the jurisdiction of this other state, then the plaintiff will need to “domesticate” it with the court of the county in California where the platform is located. It is generally easy to domesticate a subpoena; any California-licensed attorney can issue one on a special form provided by the California courts. It contains the same demand to produce information that the out-of-state subpoena had, only now the demand is governed by California law with its various speech-protecting rules.

In general, a platform will try to notify the user that it has received the subpoena to unmask them. (This is an important step, which is why we’ve also been so critical of discovery rules preventing this notice.) Sometimes the platforms might even try to fight the subpoena themselves, which some recent California appellate cases said they have the right to do. It also means that when the courts consider whether to quash a subpoena they will use the Krinsky test, which is a relatively speaker-protective test used by courts to decide whether there is a sufficient basis to warrant a speaker being unmasked. Courts won’t definitively decide the case at this stage, but per the test they will not allow a speaker to be identified if the plaintiff has not made at least a prima facie showing that the claims in the lawsuit may be valid. Speakers shouldn’t lose their anonymity if there’s no chance that the plaintiff might win.

And then that’s where this case comes in. Because if the motion to quash the subpoena is successful, the party who brought the motion gets to recover the fees and costs of doing so.

The rule at issue here is much like the anti-SLAPP statute, which serves to both compensate a wronged speaker who has been forced to defend a lawsuit targeting their protected speech and also to deter plaintiffs from bringing these garbage lawsuits in the first place by making the plaintiffs pay the defendant’s legal fees. But the anti-SLAPP statute only governs actual lawsuits [p. 13]. It doesn’t have any effect on similarly meritless subpoenas arising from out-of-state SLAPPs. In order to prevent litigants from filing their lawsuits in other states (or countries) beyond the reach of the California anti-SLAPP law, and then using those meritless lawsuits as a basis to issue subpoenas to unmask their critics, in 2008 the California legislature inserted some language into its rules of civil procedure to address this situation. Section 1987.2 of the California Code of Civil Procedure reads:

(c)?If a motion is filed under Section 1987.1 for an order to quash or modify a subpoena from a court of this state for personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code , for use in an action pending in another state, territory, or district of the United States, or in a foreign nation, and that subpoena has been served on any Internet service provider, or on the provider of any other interactive computer service, as defined in Section 230(f)(2) of Title 47 of the United States Code , if the moving party prevails, and if the underlying action arises from the moving party’s exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action, the court shall award the amount of the reasonable expenses incurred in making the motion, including reasonable attorney’s fees.

In other words, if a subpoena targeting protected online speech is successfully quashed, then, like with the anti-SLAPP statute, the court must award the party who expended the resources to quash the subpoena the fees and costs they had to spend to do it. Like the anti-SLAPP statute this language both serves to compensate a wronged-speaker for the defense of their speech rights and is a deterrent to others who otherwise might be inclined to casually issue subpoenas to harass their anonymous critics.

[T]he legislative history of section 1987.2, subdivision (c) highlights the Legislature?s focus on the burden on free speech posed by subpoenas derived from out-of-state cases targeting anonymous speakers on the Internet; the Legislature?s concern with the costs of litigating cases threatening free speech; and the Legislature?s intent to protect the exercise of free speech on the Internet. The anti-SLAPP statute reflects similar considerations. [p. 15]

Given how many Internet platforms there are in California, this is a particularly powerful piece of legal code. It’s a significant reason why we’ve praised decisions requiring subpoenas to be domesticated in California, where so many platform companies are based, so that their users can benefit from the protection that this legal code affords. Similar protection is not generally available in other states (although it really should be), which means that if a platform is forced to respond to a subpoena governed by another state’s law, the users will be on their own to fund their own defense.

But even though this powerful language has been on the books for a decade, there have not been many cases interpreting or affirming it. In fact, the court here suggests it may be the first, which is partly why this case is so important. [p. 28].

For one thing, it helps make it much more usable for Doe defendants. To explain why, we need to return to the story about how these subpoenas play out. After all, the courts don’t automatically run the Krinsky test on every issued subpoena. First the Doe defendant has to find counsel to help challenge it, which is much easier to do when there is the more certain promise of fee recovery. Next, the Doe defendant has to get the subpoena challenge in the courthouse door. Unhelpfully, every California county’s courts handle these petitions to quash a bit differently (which can present challenges for counsel, who needs to figure out what these procedures are ? this is not an area of law well-documented in practice guides).

Also, some counties’ courts require these petitions to quash be adjudicated by a rotating batch of pro-tem judges. These are practicing lawyers trusted by the courts to help clear the thicket of day-to-day discovery disputes that regularly arise from California litigation and would otherwise drown the courts without the extra help. Unfortunately they are not necessarily equipped to adjudicate the significant free speech issues that happen to end up before them because they come wrapped as a discovery matter ? in this case, a motion to quash a subpoena.

(Note also that because these subpoenas are often channeled through the discovery departments of the county courts that is likely why there has been so little written precedent before now, because this sort of adjudication generally leaves no formal written decision, or even much of a record at all.)

So this case allows Doe defendants to more efficiently educate these judges. Not only does it provide a clear judicial precedent interpreting the procedural language and showing that its protection is real and meaningful, but, in rejecting the fee award as being unduly discounted, it tells these judges that the fee awards at stake in these cases are not only mandatory but potentially substantial. It is an important admonition because it is extremely rare that in a normal discovery dispute a judge would award a prevailing party more than a few thousand dollars. Judges hearing discovery matters may therefore be disinclined to ever award more. But it may realistically require an amount deep into five figures in order to properly quash one of these speech-chilling subpoenas, and here the appellate court says that these cost claims should not be presumptively discounted simply because they may be large.

The total bill came to $42,273 for 192 hours of attorneys? work plus $308 for the paralegal?s time. Based on these numbers, the trial court stated, ?[$]42,000 was a lot, extreme in setting in this case. . . . I think a petition to quash a subpoena should not require that amount of time. So I?m going to award $22,000 in fees.? The trial court made clear that, in its view, Roe?s attorneys had spent an unreasonable amount of time on the case. The trial court is entitled to draw that conclusion, for, ?an ?experienced trial judge is the best judge of the value of professional services rendered in [her] court.? ? (Walent v. Commission on Professional Competence etc. (2017) 9 Cal.App.5th 745, 748.) Nevertheless, the starting point for the trial court?s calculation must be all of the hours counsel has spent on the case. Roe suggests that perhaps the trial court awarded an amount equal to the time his attorneys spent on the initial motion to quash. If the trial court?s fee award were based on this metric, it would constitute an abuse of discretion. Halbig filed an opposition to the motion to quash and withdrew the subpoena; both of those events reasonably required further briefing from Roe. An award based solely on the attorney hours spent preparing the initial motion to quash would violate the principle that the starting point of the fee calculation must be all of the attorney hours actually spent on the case. (Ketchum, supra, 24 Cal.4th at pp. 1131-1132.) [p. 27]

This decision also cleared up an area of potential ambiguity in the code’s applicability by discussing what it means to be a “prevailing party” eligible to recover fees and costs. Here’s the problem that this case illustrated: the Doe defendant had to spend a lot of money trying to quash the subpoena, but before the court was able to rule on the original motion to quash, the plaintiff withdrew the subpoena. The question the appeals court had to decide was whether that withdrawal made the Doe defendant ineligible to recover as a “prevailing party” since there was no judicial victory.

The appeals court decided that the Doe defendant could still collect, observing that it was impossible for the defendant to know whether they were out of the woods. The plaintiff, in rescinding the subpoena, did so explicitly “without prejudice,” meaning that it could be reissued at any time, and the court found it contrary to the purpose of 1987.2 to leave the defendant uncompensated for the expenditure they had been forced to make.

Halbig argues that, once he had withdrawn the subpoena, Roe had no reason to fear that Halbig?s further efforts would unmask his identity, and he maintains that Roe?s refusal to withdraw the motion to quash needlessly incurred extra costs [?] Halbig?s argument, however, ignores the possibility that he could have sought another subpoena for Roe?s identity. Halbig asked for and received a ?dismissal? of the Google subpoena ?without prejudice.? The record contains no evidence that at the time of the hearing on the motion to quash Halbig had determined the identity of the ?Doe? defendants or dismissed the underlying lawsuit in Florida. As noted in the analogous anti-SLAPP context, ?[t]he specter of the action being refiled (at least until the statute of limitations had run) would continue to have a significant chilling effect on the defendant?s exercise of its First Amendment rights. At that point, the plaintiff would have accomplished all the wrongdoing that triggers the defendant?s eligibility for attorney?s fees, but the defendant would be cheated of redress.? (Coltrain, supra, 66 Cal.App.4th at pp. 106-107.) [p. 21-22]

Filed Under: anonymous speech, anti-slapp, california, halbig, slapp, subpoenas, supreme court, unmasking

Our Bipolar Free-Speech Disorder And How To Fix It (Part 2)

Free Speech

from the the-free-speech-triangle dept

In Part 1 of this series, I gave attention to law professor Jack Balkin’s model of “free speech as a triangle,” where each vertex of the triangle represents a group of stakeholders. The first vertex is government and intergovernmental actors. The second is internet platform and infrastructure providers, and the third is users themselves. This “triangle” model of speech actors is useful because it enables us to characterize the relationships among each set of actors, thereby illuminating how the nature of regulation of speech has changed and become more complicated than it used to be.

Take a look again at Balkin’s Figure 1.

Although it’s clearer when we visualize all the players in the free-speech regulation landscape that a “free-speech triangle” at least captures more complexity than the usual speakers-against-the-government or speakers-against-the-companies or companies-against-the-government models, the fact is that our constitutional law and legal traditions predispose us to think of these questions in binary rather than, uh, “trinary” terms. We’ve been thinking this way for centuries, and it’s a hard habit to shake. But shaking the binary habit is a necessity if we’re going to get the free-speech ecosystem right in this century.

To do this we first have to look at how we typically reduce these “trinary” models to the binary models we’re more used to dealing with. With three classes of actors, there are three possible “dyads” of relationships: user?platform, government?platform, and user?government.

(a) Dyad 1: User complaints against platforms (censorship and data gathering)

Users’ complaints about platforms may ignore or obscure the effects of government demands on platforms and their content-moderation policies.

Typically, public controversies around internet freedom of expression are framed by news coverage and analysis as well as by stakeholders themselves, as binary oppositions. If there is a conflict over content between (for example) Facebook and a user, especially if it occurs more than once, that user may conclude that that her content was removed for fundamentally political reasons. This perception may be exacerbated if the censorship occurred and was framed as a violation of the platform’s terms of service. A user subject to such censorship may believe that her content is no more objectionable than that of users who weren’t censored, or that her content is being censored while content that is just as heated, but representing a different political point of view, isn’t being censored. Naturally enough, this outcome seems unfair, and a user may infer that the platform as a whole is politically biased against those of her political beliefs. It should be noted that complaints about politically motivated censorship apparently come from most and perhaps all sectors.

A second complaint from users may derive from data collection by a platform. This may not directly affect the direct content of a user’s speech, but it may affect the kind of content she encounters, which, when driven by algorithms aimed increasing her engagement on the platform, may serve not only to urge her participation in more or more commercial transactions, but also to “radicalize” her, anger her, or otherwise disturb her. Even if an individual may judge herself more or less immune from algorithmically driven urges to view more and more radical and radicalizing content, she may be disturbed by the radicalizing effects that such content may be having on her culture generally. (See, e.g., Tufekci, Zeynep, “YouTube, the Great Radicalizer.”) And she may be disturbed at how an apparently more radicalized culture around her interacts with her in more disturbing ways.

Users may be concerned both about censorship of their own content (censorship that may seem unjustified) and platforms’ use of data, which may seem to be designed to manipulate them or else manipulate other people. In response, users (and others) may demand that platforms track bad speakers or retain data about who bad speakers are (e.g., to prevent bad speakers from abandoning “burned” user accounts and returning with new accounts to create the same problems) as well as about what speakers say (so as to police bad speech more). But there are two likely outcomes of a short-term pursuit of pressuring platforms to censor more or differently, or to gather less data (about users themselves) or to gather more data (about how users’ data are being used). One obvious, predictable outcome of these pressures is that, to the extent the companies respond to them, governments may leverage platforms’ responses to user complaints in ways that make it easier for government to pressure platforms for more user content control (not always with the same concerns that individual users have) or to provide user data (because governments like to exercise the “third-party” doctrine to get access to data that users have “voluntarily” left behind on internet companies’ and platform providers’ services).

(b) Dyad 2: Governments’ demands on platforms (content and data)

Government efforts to impose new moderation obligations on platforms, even in response to user complaints, may result in versions of the platforms that users value less, as well as more pressure on government to intervene further.

In the United States, internet platform companies (like many other entities, including ordinary blog-hosting servers and arguably bloggers themselves) will find that their First Amendment rights are buttressed and extended by Section 230 of the Communications Decency Act, which generally prohibits content-based liability for those who reproduce on the internet content that is originated by others. Although a full discussion of the breadth and the exceptions to Section 230?which was enacted as part of the omnibus federal Telecommunications Act reform in 1996?is beyond the scope of this particular paper, it is important to underscore that Section 230 extends the scope of protection for “intermediaries” more broadly than First Amendment case law alone, if we are to judge by relevant digital-platform cases prior to 1996, might have done. But the embryonic case law in those early years of the digital revolution seemed to be moving in a direction that would have resulted in at least some First Amendment protections for platforms consistent with principles that protect traditional bookstores from legal liability for the content of particular books. One of the earliest cases prominent cases concerning online computer services, Cubby v. CompuServe (1991), drew heavily on a 1959 Supreme Court case, Smith v. California, that established that bookstores and newsstands were properly understood to deserve First Amendment protections based on their importance to the distribution of First Amendment-protected content.

Section 230’s broad, bright-line protections (taken together with the copyright-specific protections for internet platforms created by the Digital Millennium Copyright Act in 1998) are widely interpreted by legal analysts and commentators as having created the legal framework that gave rise to internet-company success stories like Google, Facebook, and Twitter. These companies, as well as a raft of smaller, successful enterprises like Wikipedia and Reddit, originated in the United States and were protected in their infancy by Section 230. Even critics of the platforms?and there are many?typically attribute the success of these enterprises to the scope of Section 230. So it’s no great surprise to discover that many and perhaps most critics of these companies (who may be government actors or private individuals) have become critics of Section 230 and want to repeal or amend it.

In particular, government entities in the United States, both at the federal level and at the state level, have sought to impose greater obligations on internet platforms not merely to remove content that is purportedly illegal, but also to prevent that content from being broadcast by a platform in the first place. The notice-and-takedown model of the Digital Millennium Copyright Act of 1998, which lends itself to automated enforcement and remedies to a higher degree than non-copyright-related content complaints, is frequently suggested by government stakeholders as a model for how platforms ought to respond to complaints about other types of purportedly illegal content, including user-generated content. The fact that copyright enforcement, as distinct from enforcement other communications-related crimes or private causes of action, is comparatively much simpler than most other remedies in communications law, is a fact that is typically passed over by those who are unsympathetic to today’s social-media landscape.

Although I’m focusing here primarily on U.S. government entities, this tendency is also evident among the governments of many other countries, including many countries that rank as “free” or “partly free” in Freedom House’s annual world freedom report. It may be reasonably asserted that the impulse of governments to offload the work of screening for illegal (or legal but disturbing) content is international. The European Union, for example, is actively exploring regulatory schemes that implicitly or explicitly impose content-policing norms on platform companies and that impose quick and large penalties if the platforms fail to comply. American platforms, which operate internationally, must abide by these systems at least with regard to their content delivery within EU jurisdictions as well as (some European regulators have argued) anywhere else in the world.

Added to governments’ impulse to impose content restrictions and policing obligations on platforms is governments’ hunger for the data that platforms collect. Not every aspect of the data that platforms like Google and Facebook and Twitter collect on users is publicly known, nor have the algorithms (decision-making processes and criteria implemented by computers) that the platforms use to decide what content may need monitoring, or what content users might prefer, being generally published. The reasons some aspects of the platforms’ algorithmic decision-making may be generally reduced to two primary arguments. First, the platforms’ particular choices about algorithmically selecting and serving content, based on user data, may reasonably classed as trade secrets, so that if they were made utterly public a competitor could free-ride on the platforms’ (former) trade secrets to develop competing products. Second, if platform algorithms are made wholly public, it becomes easier for anyone?ranging from commercial interests to mischievous hackers and state actors?to “game” content so that it is served to more users by the platform algorithms.

Governments’ recognition that protections for platforms has made it easier for the platforms to survive and thrive may wish to modify the protections they have granted, or to impose further content-moderation obligations on platforms as a condition of statutory protections. But even AI-assisted moderation measures will necessarily be either post-hoc (which means that lots of objectionable content will be public before the platform curates it) or pre-hoc (which means that platforms will become gatekeepers of public participation, shoehorning users into a traditional publishing model or an online-forum model as constrained by top editors as the early version of the joint Sears-IBM service Prodigy was).

(c) Dyad 3: People (and traditional press) versus government.

New, frequently market-dominant internet platforms for speakers create new government temptations and capabilities to (i) surveil online speech, (ii) leverage platforms to suppress dissident or unpopular speech or deplatform speakers, and/or (iii) employ or compel platforms to manipulate public opinion (or to regulate or suppress manipulation).

It’s trivially demonstrable that some great percentage of complaints about censorship in open societies is grounded in individual speakers’ or traditional publishers’ complaints that government is acting to suppress certain kinds of speech. Frequently the speech in question is political speech but sometimes it is speech of other kinds (e.g., allegedly defamatory, threatening, fraudulent, or obscene) of speech. This dyad is, for the most part, the primary subject matter of traditional First Amendment law. It is also a primary focus of international free-expression law where freedom of expression is understood to be guaranteed by national or international human-rights instruments (notably Article 19 of the International Covenant on Civil and Political Rights).

But this dyad has been distorted in the twenty-first century, in which, more often than not, troubling political speech or other kinds of troubling public speech are normally mediated by internet platforms. It is easier on some platforms, but by no means all platforms, for speakers to be anonymous or pseudonymous. Anonymous or pseudonymous speech is not universally regarded by governments as a boon to public discourse, and frequently governments will want to track or even prosecute certain kinds of speakers. Tracking such speakers was difficult (although not necessarily impossible) in the pre-internet era of unsigned postcards and ubiquitous public telephones. But internet platforms have created new opportunities to discover, track, and suppress speech as a result of the platforms’ collection of user data for their own purposes.

Every successful internet platform that allows users to express themselves has been a target of government demands for disclosure of information about users. In addition, internet platforms are increasingly the target of government efforts to mandate assistance (including the building of more surveillance-supportive technologies) in criminal-law or national-security investigations. In most ways this is analogous to the 1994 passage of CALEA in the United States, which obligated telephone companies (that is, providers of voice telephony) to build technologies that facilitated wiretapping. But a major difference is that the internet platforms more often than not capture far more information about users than telephone companies traditionally had done. (This generalization to some extent oversimplifies the difference, given that there is frequently convergence between the suites of services that internet platforms and telephone companies?or cable companies?now offer their users.)

Governmental monitoring may suppress dissenting (or otherwise troubling) speech, but governments (and other political actors, such as political parties) may also use internet platforms to create or potentiate certain kinds of political speech in opposition to the interests of users. Siva Vaidhyanathan documents particular uses of Facebook advertising in ways that aimed to achieve political results, including not just voting for an approved candidate but also dissuasion of some voters from voting at all, in the 2016 election.

As Vaidhyanathan writes: “Custom Audiences is a powerful tool that was not available to President Barack Obama and Governor Mitt Romney when they ran for president in 2012. It was developed in 2014 to help Facebook reach the takeoff point in profits and revenue.” Plus this: “Because Facebook develops advertising tools for firms that sell shoes and cosmetics and only later invites political campaigns to use them, ‘they never worried about the worst-case abuse of this capability, unaccountable, unreviewable political ads,’ said Professor David Carroll of the Parsons School of Design.”

There are legitimate differences of opinion regarding the proper regime for regulation of political advertising, as well as regarding the extent to which regulation of political advertising can be implemented consistent with existing First Amendment precedent. It should be noted, however, that advertising of the sort that Vaidhyanathan discusses raises issues not only of campaign spending (although in 2016, at least, the spending on targeted Facebook political advertising of the “Custom Audiences” variety seems to have been comparatively small) as of transparency and accountability. Advertising that’s micro-targeted and ephemeral is arguably not accountable to the degree that an open society should require. There will be temptations for government actors to use mechanisms like “Custom Audiences” to suppress opponents’ speech?and there also will be temptations by government to limit or even abolish such micro-targeted instances of political speech.

What is most relevant here is that the government may address temptations either to employ features like “Custom Audiences” or to suppress the use of those features by other political actors in non-transparent or less formal ways, (e.g., through the “jawboning” that Jack Balkin describes in his “New School Speech Regulation” paper). Platforms?especially market-dominant platforms that, as a function of their success and dominance, may be particularly targeted on speech issues?may feel pressured to remove dissident speech in response to government “jawboning” or other threats of regulation. And, given the limitations of both automated and human-based filtering, a platform that feels compelled to respond to such governmental pressure is almost certain to generate results that are inconsistent and that give rise to further dissatisfaction, complaints, and suspicions on the part of users?not just the users subject to censorship or deplatforming, but also users who witness such actions and disapprove of them.

Considered both separately and together, it seems clear that each of the traditional “dyadic” models of how to regulate free speech tend to focus on two vertices of the free-speech triangle while overlooking a third vertex, whose stakeholders may intervene or distort or exploit or be exploited by outcomes of conflicts of the other two stakeholder groups. What this suggests is that no “dyadic” conception of the free-speech ecosystem is sufficiently complex and stable enough to protect freedom of expression or, for that matter, citizens’ autonomy interests in privacy and self-determination. This leaves us with the question of whether it is possible to direct our law and policy in a direction that takes into account today’s “triangular” free-speech ecosystem in ways that provide stable, durable, expansive protections of freedom of speech and other valid interests of all three stakeholder groups. That question is the subject of Part 3 of this series.

Mike Godwin (@sfmnemonic) is a distinguished senior fellow at the R Street Institute.

Filed Under: 1st amendment, free speech, jack balkin, social media

Our Bipolar Free-Speech Disorder And How To Fix It (Part 1)

Free Speech

from the free-speech-and-social-media dept

When we argue how to respond to complaints about social media and internet companies, the resulting debate seems to break down into two sides. On one side, typically, are those who argue that it ought to be straightforward for companies to monitor (or censor) more problematic content. On the other are people who insist that the internet and its forums and platforms?including the large dominant ones like Facebook and Twitter?have become central channels of how to exercise freedom of expression in the 21st century, and we don’t want to risk that freedom by forcing the companies to be monitors or censors, not least because they’re guaranteed to make as many lousy decisions as good ones.

By reflex and inclination, I usually have fallen into the latter group. But after a couple of years of watching various slow-motion train wrecks centering on social media, I think it’s time to break out of the bipolar disorder that afflicts our free-speech talk. Thanks primarily to a series of law-review articles by Yale law professor Jack Balkin, I now believe free-speech debates no longer can be simplified in terms of government-versus-people, companies versus people, or government versus companies. No “bipolar” view of free speech on the internet is going to give us the complete answers, and it’s more likely than not to give us wrong answers, because today speech on the internet isn’t really bipolar at all?it’s an “ecosystem.”

Sometimes this is hard for civil libertarians, particularly Americans, to grasp. The First Amendment (like analogous free-speech guarantees in other democracies) tends to reduce every free-speech or free-press issue to people-versus-government. The people spoke, and the government sought to regulate that speech. By its terms, the First Amendment is directed solely at averting government impulses to censor against (a) publishers’ right to publish controversial content and/or (b) individual speakers’ right to speak controversial content. This is why First Amendment cases most commonly are named either with the government as a listed party (e.g., Chaplinsky v. New Hampshire) or a representative of the government, acting in his or her government role as a government official, as a named party (e.g. Attorney General Janet Reno in Reno v. ACLU).

But in some sense we’ve always known that this model is oversimplified. Even cases in which the complainant was nominally a private party still involved government action in the form of enactment of speech-restrictive laws that gave rise to the complaint. In New York Times Inc. v. Sullivan, the plaintiff, Sullivan, was a public official, but his defamation case against the New York Times was grounded in his reputational interest as an ordinary citizen. In Miami Herald Publishing Company v. Tornillo, plaintiff Tornillo was a citizen running for a state-government office who invoked a state-mandated “right of reply” because he had wanted to compel the Herald to print his responses to editorials that were critical of his candidacy. In each of these cases, the plaintiff’s demand did not itself represent a direct exercise of government power. The private plaintiffs’ complaints were personal to them. Nevertheless, in each of these cases, the role of government (in protecting reputation as a valid legal interest, and in providing a political candidate a right of reply) was deemed by the Supreme Court to represent exercises of governmental power. For this reason, the Court concluded that these cases, despite their superficial focus on a private plaintiff’s cause of action, nonetheless fall under the scope of the First Amendment. Both newspaper defendants won their Supreme Court appeals.

By contrast, private speech-related disputes between private entities, such as companies or individuals, normally are not judged as directly raising First Amendment issues. In the internet era, if a platform like Facebook or Twitter chooses to censor content or deny service to a subscriber because of (an asserted) violation of its Terms of Service, or if a platform like Google chooses to delist a website that offers pharmaceutical drugs in violation of U.S. law or the law of other nations, any subsequent dispute is typically understood, at least initially, as a disagreement that does not raise First Amendment questions.

But the intersection between governmental action and private platforms and publishers has become both broader and blurrier in the course of the last decade. Partly this is because some platforms have become primary channels of communication for many individuals and businesses, and some of these platforms have become dominant in their markets. It is also due in part to concern about various ways the platforms have been employed with the goal of abusing individuals or groups, perpetrating fraud or other crimes, generating political unrest, or causing or increasing the probability of other socially harmful phenomena (including disinformation such as “fake news.”)

To some extent, the increasing role of internet platforms, including but not limited to social media such as Facebook and Twitter in Western developed countries, as one of the primary media for free expression was predictable. (For example, in Cyber Rights: Defending Free Speech in the Digital Age (Times Books, 1998), I wrote this: “Increasingly, citizens of the world will be getting their news from computer-based communications-electronic bulletin boards, conferencing services, and networks-which differ institutionally from traditional print media and broadcast journalism.” See also “Net Backlash = Fear of Freedom,” Wired, August 1995: “For many journalists, ‘freedom of the press’ is a privilege that can’t be entrusted to just anybody. And yet the Net does just that. At least potentially, pretty much anybody can say anything online – and it is almost impossible to shut them up.”)

What was perhaps less predictable, prior to the rise of market-dominant social-media platforms, is that government demands regarding content may result in “private governance” (where market-dominant companies become the agents of government demands but implement those demands less transparently than enacted legislation or recorded court cases do). What this has meant is that individual citizens concerned about exercising their freedom of expression in the internet era may find that exercising one’s option to “exit” (in the Albert O. Hirschman sense) may impose great costs.

At the same time, lack of transparency about platform policy (and private government) may make it difficult for individual speakers to interpret what laws or policies the censorship of their content (or the exclusion of themselves or others) in ways that enable them to give effective “voice” to their complaints. For example, they may infer that their censorship or “deplatforming” represents a political preference that has the effect of “silencing” their dissident views, which in a traditional public forum might be clearly understood as protected by First Amendment-grounded free-speech principles.

These perplexities, and the current public debates about freedom of speech on the internet, create the need for a reconsideration of the internet free speech not as a simplistic dyad, or as a set of simplistic, self-contained dyads, but instead as an ecosystem in which decisions in one part may well lead to unexpected, undesired effects in other parts. A better approach would be to consider internet freedom of expression “ecologically,” to consider expression on the internet an “ecosystem,” and to think about various legal, regulatory, policy, and economic choices as “free-speech environmentalists,” with the underlying goal of protecting the internet free-speech ecosystem in ways that protect individuals’ fundamental rights.

Of course, individuals have more fundamental rights than freedom of expression. Notably, there is an international consensus that individuals deserve, inter alia, some kind of rights to privacy, although, as with expression, there is some disagreement about what the scope of privacy rights should be. But changing the consensus paradigm of freedom of expression so that it is understood as an ecosystem not only will improve law, regulation, and policy regarding free speech, but also will provide a model that possibly may be fruitful in other areas, like privacy.

In short, we need a theory of free speech that takes into account complexity. We need to build consensus around that theory so that stakeholders with a wide range of political beliefs nevertheless share a commitment to the complexity-accommodating paradigm. In order to do this, we need to begin with a taxonomy of stakeholders. Once we have the taxonomy, we need to identify how the players interact with one another. And ultimately we need some initiatives that suggest how we may address free-speech issues in ways that are not shortsighted, reactive, and reductive, but forward-looking, prospective, and inclusive.

The internet ecosystem: a taxonomy.

Fortunately, Jack Balkin’s recent series of law-review articles has given us a head start on building that theory, outlining the complex relationships that now exist among citizens, government actors, and companies that function as intermediaries. These paradigm-challenging articles culminate in a synthesis is reflected in his 2018 law-review article “Free Speech is a Triangle.”

Balkin rejects simple dyadic models of free speech. Because an infographic is sometimes worth 1000 words, it may be most convenient to reproduce Balkin’s diagram of what he refers to as a “pluralistic” (rather than “dyadic”) model of free speech. Here it is:

Balkin recognizes that the triangle may be taken as oversimplifying the character of particular entities within any set of parties at a “corner.” For example, social-media platforms are not the same things as payment systems, which aren’t the same things as search engines or standard-setting organizations. Nevertheless, entities in any given corner may have roughly the same interests and play roughly the same roles. End-users are not the same things as “Legacy Media” (e.g., the Wall Street Journal or the Guardian), yet both may be subject to “private governance” from internet platforms or subject to “old-school speech regulation” (laws and regulation) imposed by nation-states or treaties. (“New-school speech regulation” may arise when governments compel or pressure companies to exercise speech-suppressing “private governance.”)

Certainly some entities within this triangularized model may be “flattened” in the diagram in ways that don’t reveal the depth of their relationships to other parties. For example, a social-media company like Facebook may collect vastly more data (and use it in far more unregulated ways) than a payment system (and certainly far more than a standard-setting organization). Balkin addresses the problem of Big Data collection by social-media companies and others?including the issue of how Big Data may be used in ways that inhibit or distort free speech– by suggesting that such data-collecting companies be considered “information fiduciaries” with obligations that may parallel or be similar to those of more traditional fiduciaries such as doctors and lawyers. (He has developed this idea further in separate articles both sole-authored and co-authored with Jonathan Zittrain.)

Properly, the information-fiduciary paradigm maps more clearly to privacy interests rather than to free-expression interests, but collection, maintenance, and use of large amounts of user data may be used in free-speech contexts. The information-fiduciary concept may not seem to be directly relevant to content issues. But it’s indirectly relevant if the information fiduciary (possibly but not always at the behest of government) uses user data to try to manipulate users through content, or to disclose user content choices to government (for example).

In addition, information fiduciaries functioning as social-media platforms have a different relationship with the users, who create the content that makes these platforms attractive. In the traditional world of newspapers and radio, publishers had a close voluntary relationship with the speakers and writers who created their content, which meant that traditional-media entities had strong incentives to protect their creators generally. To some large degree, publisher and creator interests were aligned, although there are predictable frictions, as when a newspaper’s or broadcaster’s advertisers threaten to remove financial support for controversial speakers and writers.

With online platforms, that alignment is much weaker, if it exists at all: Platforms lack incentives to fight for their users’ content, and indeed may have incentives to censor it themselves for private profit (e.g., advertising dollars). In the same way that the traditional legal or financial or medical fiduciary relationship is necessary to correct possible misalignment of incentives, the “information fiduciary” relationship ought to be imposed on platforms to correct their misaligned incentives toward private censorship. In a strong sense, this concept of information fiduciary is a key to understanding how a new speech framework is arguably necessary, and how it might work.

I’ve written elsewhere about how Balkin’s concept of social-media companies (and others) as information fiduciaries might actually position the companies to be stronger and better advocates of free expression and privacy than they are now. But that’s only one piece of the puzzle when it comes to thinking ecologically about today’s internet free-speech issues. The other pieces require us to think about the other ways in which “bipolar thinking” about internet free speech not only causes us to misunderstand our problems but also tricks us into coming up bad solutions. And that’s the subject I’ll take up in Part 2.

Mike Godwin (@sfmnemonic) is a distinguished senior fellow at the R Street Institute.

Filed Under: 1st amendment, free speech, social media

Court Tells Former NRA President The First Amendment Protects Far More Than Polite Speech

Free Speech

from the what's-this-about-the-2nd-Amendment-protecting-the-First? dept

Here in America, unpleasant speech is still protected speech, something a federal court recently reminded a plaintiff. (h/t Adam Steinbaugh)

The person bringing the lawsuit is Marion Hammer, the first female president of the National Rifle Association. A frequent target of online criticism, hate mail, and harassment, Hammer decided to sue a handful of her many, many detractors. The lawsuit [PDF] alleges an ongoing campaign of harassment and cyberstalking engaged in by the four defendants.

The suit was filed in July. Three of the four defendants failed to respond. The fourth, Lawrence T. “LOL” Sorensen, responded with a motion to dismiss for failure to state a claim. Sorensen argued his communications with Hammer were protected speech. The judge agrees. In Robert Hinkle’s short decision [PDF], the judge reminds Hammer that the First Amendment protects a lot of speech people don’t like, even when it’s targeting them.

Mr. Sorensen sent Ms. Hammer two emails, each transmitting one or more photographs showing injuries from gunshot wounds. Sending these unsolicited to anyone, even a public figure who advocates gun rights, was inappropriate, indeed disgusting. As Ms. Hammer correctly notes in response to the motion to dismiss, “there are limits on how people can treat those with whom they disagree.” Or at least on how people should treat those with whom they disagree. Emails like these should not be sent in a civilized society.

That does not mean, though, that emails like these can be made criminal or even tortious. Tolerating incivility, at least to some extent, is a price a nation pays for freedom. There is no clear line between incivility, on the one hand, and effective advocacy, on the other. Turning loose a legislature, judge, or jury to ferret out incivility would deter and even sometimes punish the robust public discourse that is essential to freedom—the public discourse whose protection is the main object of the First Amendment.

The judge notes that simply finding someone else’s behavior unseemly isn’t a federal case, especially not when First Amendment rights are on the line. He notes Sorensen never threatened Marion Hammer “explicitly or implicitly” when he sent her photos of gunshot wounds. All the email said was “Thought you should see a few photos of handiwork of the assault rifles you support.” The second was along the same line, noting that the attached photo of a dead John F. Kennedy showed the damage done by an “outdated military rifle” and that today’s rifles were far more powerful and “far more destructive.”

The court reminds Hammer the First Amendment doesn’t work the way she wants it to work. If the First Amendment only protected polite discourse, it would be useless. Not only that, but the sending of gunshot wound photos to an advocate of gun ownership is not harassment or cyberstalking. It’s a discussion of a matter of public interest, even if the discussion is largely one-sided.

The photographs were germane to the policy debate that Ms. Hammer regularly participated in and Mr. Sorensen apparently sought to join. Sending these photographs, at least in these circumstances, was not tortious. And treating them as tortious would violate the First Amendment.

As Adam Steinbaugh notes in his follow-up tweet, it would be nice to have a federal anti-SLAPP law in place to deter lawsuits like these. If Hammer felt she may have to pay Sorensen’s legal fees for bringing a misguided lawsuit against him, she may have decided to leave him out of it. Now, Sorensen’s out time and money for doing nothing more than engaging in protected speech.

Filed Under: 1st amendment, 2nd amendment lawrence sorensen, anti-slapp, first amendment, free speech, marion hammer
Companies: nra

Judge Lets NRA's 1st Amendment Lawsuit Against Andrew Cuomo Move Forward

Free Speech

from the when-the-2nd-meets-the-1st dept

Let’s put some cards on the table to start off this post: I think Andrew Cuomo is a terrible governor of NY (and he was a terrible Attorney General before that), and doesn’t deserve to be in office. I also think the NRA is a joke of an organization, that stirs up bullshit fear and racial divisions, and frequently shits on the 1st Amendment plenty of times when people try to challenge the 2nd Amendment. I recognize that some percentage of you probably feel differently about Cuomo and (chances are…) a non-overlapping venn diagram of you probably feel differently about the NRA. I think they’re both terrible and should disappear from public life. And I say that upfront because my position on this particular lawsuit has nothing to do with which side I “like.” I don’t like either one.

But on the law in this particular case, clearly the NRA is in the right, while Cuomo is wrong. And thankfully, so far a judge agrees.

Let’s take a step back, though, to look at what’s happening. Cuomo is no fan of the NRA. And he decided to use his position as governor to punish the NRA for its advocacy. Back in April, he put pressure on banks and other financial institutions to cut all ties with the NRA. It’s kind of incredible that he would think this would fly. Indeed, the situation is pretty damn close to that time that Cook County (Illinois) Sheriff Thomas Dart pressured credit card companies to stop doing business with Backpage, leading to a pretty massive judicial smackdown from Judge Richard Posner.

A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff?s First Amendment rights, regardless of whether the threatened punishment comes in the form of the use (or, misuse) of the defendant?s direct regulatory or decisionmaking authority over the plaintiff, or in some less-direct form.

Posner, in the Dart/Backpage case, recognized that allowing government officials to pressure third parties into avoiding businesses they disliked over speech was a real problem:

For where would such official bullying end, were it permitted to begin? Some public officials doubtless disapprove of bars, or pets and therefore pet supplies, or yard sales, or lawyers, or ?plug the band? (a listing of music performances that includes such dubious offerings as ?SUPERCELL Rocks Halloween at The Matchbox Bar & Grill?), or men dating men or women dating women…

Or, you could add to that list, and say “the 2nd Amendment.” And it would fit right in with what Cuomo did regarding the NRA:

“I am directing the Department of Financial Services to urge insurers and bankers statewide to determine whether any relationship they may have with the NRA or similar organizations sends the wrong message to their clients and their communities who often look to them for guidance and support. This is not just a matter of reputation, it is a matter of public safety, and working together, we can put an end to gun violence in New York once and for all.”

Even if you think that the NRA is a horrible organization, and that various private entities should rethink any association they have with the NRA, that’s entirely different than a powerful government official making such a statement.

But, of course, what many in the press writing about this have ignored is that this kind of bullying has been Cuomo’s playbook for years. When he was Attorney General, we had a ton of articles about the same grandstanding move, in which Cuomo would pick some high profile issue, then publicly threaten to sue organizations if they didn’t go along with his “voluntary” plan, which would be announced at a giant press conference with a smiling Andrew Cuomo. He did this in forcing broadband providers to set up porn filters. He did it in forcing social media sites to block access to porn sites again. He also did it in trying to force broadband providers to kick users off their networks over copyright infringement. And no one calls him on this abuse of power.

Except, now the NRA has. And a federal judge is letting the case move forward after denying a motion to dismiss from Cuomo’s team. The order makes it clear that Cuomo might finally face some constitutional push-back on his intimidation techniques. It’s still early in the case, so things could change, but Judge Thomas McAvoy is not impressed by Cuomo so far.

Viewing the allegations in the light most favorable to the NRA, and drawing reasonable inferences in its favor, the temporal proximity between the Cuomo Press Release, the Guidance Letters, and the Consent Orders plausibly suggests that the timing was intended to reinforce the message that insurers and financial institutions that do not sever ties with the NRA will be subject to retaliatory action by the state.

The judge finds, as in other cases, that there’s a clear implied threat in the message coming from the Governor of the state of New York:

While neither the Guidance Letters nor the Cuomo Press Release specifically directs or even requests that insurance companies and financial institutions sever ties with the NRA, a plausible inference exists that a veiled threat is being conveyed.

There’s still much more to go in the case, and as the case moves into discovery, perhaps there will be other revelations, but right now it certainly looks like a government official abusing his position to try to retaliate against an organization he doesn’t like for their expressive speech.

And, yes, there’s something potentially ironic in the NRA now being protected by the very same 1st Amendment that it so frequently complains about in blaming video games, TV, and movies for gun violence, but it turns out that you don’t actually have to believe in the Constitution to be protected by it, and that’s kind of a good thing.

Filed Under: 1st amendment, advertisers, andrew cuomo, censorship, coercion, free speech, government, intimidation
Companies: nra

CNN Lawsuit Seeks To Show That Trump Can't Kick Reporters Out For Asking Tough Questions

Free Speech

from the but-what-about-the-flip-side? dept

As you’ve probably heard by now, last week there was a bit of a scuff up in which the President in his standard manner got irritable and annoyed when CNN’s Jim Acosta kept asking questions the President didn’t feel like answering. This has resulted in a bunch of nonsense involving everyone trying to justify their own side’s talking points — but the simple fact of the matter is that it’s a journalist’s job to ask tough questions of politicians. There was a made up controversy involving claims that Acosta “assaulted” an intern who sought to take away his microphone, and the White House supported it with video evidence that some have claimed was doctored, while others have noted just happened (coincidentally) to have been re-encoded in a way that made Acosta’s hand motions look more menacing than they really were. Either way, the end result was that the White House removed Acosta’s press pass, claiming it was because of what happened with the intern, when literally everyone knows it was because of his questioning (if you want to honestly argue that it was because of the intern, go away).

On Tuesday, CNN announced that it had filed a lawsuit against the White House over the removal of the press pass, arguing that it violated both 1st Amendment and 5th Amendment rights. CNN and Acosta are represented by Ted Boutrous and Ted Olson (along with some other Gibson, Dunn lawyers) which is some serious firepower as they’re two of the most high profile lawyers out there. Olson, a former Solicitor General during the George W. Bush administration, was rumored earlier this year to be considering joining Trump’s legal team, before declining. And now he’s suing Trump’s White House.

The filing is only 18 pages and makes for fairly quick reading. The 1st Amendment claims are basically this:

Defendants initially claimed that they revoked Acosta?s press pass because he ?plac[ed] his hands? on an intern. That contention is not accurate. The President himself has stated that the Acosta?s conduct was not ?overly horrible? and that Acosta?s credentials were actually suspended because he failed to ?treat the White House with respect.?

Defendants? justifications for impeding Plaintiffs? First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta?s White House credentials. Consequently, the only reasonable inference from Defendants? conduct is that they have revoked Acosta?s credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs? exercise of protected First Amendment activity.

The sole justification for Defendants? conduct is their dislike for Plaintiffs? coverage of the administration and critique of the President. But that is insufficient to justify such a substantial restriction on Plaintiffs? First Amendment rights.

The 5th Amendment claims are basically a “due process” claim:

Plaintiffs have protected liberty and property interests in Acosta?s press credentials and the access it affords to the White House. The credentials allow Acosta access to his office in the White House and allow him to do his job effectively. Absent his credentials, he cannot serve as a White House correspondent.

Acosta received no direct notice from the White House that his credentials had been revoked, let alone any notice prior to the revocation. Instead, the White House announced the revocation itself via Twitter after Defendants already decided to effectively ban Acosta from the White House grounds.

Defendants did not provide Plaintiffs a written explanation, nor any explanation at all, before revoking Acosta?s press credentials. The only written explanation was a short statement posted on Twitter that Acosta was suspended because he ?plac[ed] his hands? on a White House staffer. Even if this tweet were accurate?and it is not, as the reportedly doctored video Defendant Sanders posted would later show?it would not suffice to demonstrate prior notice of the revocation.

Defendants did not provide Plaintiffs an opportunity to be heard before revoking Acosta?s press credentials. Nor have they provided him any avenue to challenge or appeal the revocation of his credentials. Rather, Defendants have stated that they do not plan to ever rescind the revocation of Acosta?s credentials.

There are good reasons to think that CNN/Acosta may have a decent chance of prevailing. The key case, as many are pointing out, is the DC Circuit’s ruling in Sherrill v. Knight, which more or less says that if the government opens up a briefing to the press, it can’t arbitrarily deny a member of the press entrance. That ruling makes it clear that the President doesn’t need to grant interviews to anyone who comes asking, but he can’t arbitrarily bar a member of the press from an open press briefing. And the court also includes a due process requirement.

On the 1st Amendment claim in that case, the court noted that the White House needs to have a compelling interest in keeping a reporter out, and the details of the standards used by the White House need to be clear:

Given these important first amendment rights implicated by refusal to grant White House press passes to bona fide Washington journalists, such refusal must be based on a compelling governmental interest. Clearly, protection of the President is a compelling, “even an overwhelming,” interest, Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969), and we have no basis for rejecting the explicit finding of the District Court that the record in this case demonstrates that denial of a press pass to appellee proceeded solely from concern for “the physical security of the President.” 416 F.Supp. at 1036 n.10. However, this standard for denial of a press pass has never been formally articulated or published. Merely informing individual rejected applicants that rejection was for “reasons of security” does not inform the public or other potential applicants of the basis for exclusion of journalists from White House press facilities. Moreover, we think that the phrase “reasons of security” is unnecessarily vague and subject to ambiguous interpretation.

Therefore, we are of the opinion that appellants must publish or otherwise make publicly known the actual standard employed in determining whether an otherwise eligible journalist will obtain a White House press pass. We do agree with appellants that the governmental interest here does not lend itself to detailed articulation of narrow and specific standards or precise identification of all the factors which may be taken into account in applying this standard. It is enough that the Secret Service be guided solely by the principle of whether the applicant presents a potential source of physical danger to the President and/or his immediate family so serious as to justify his exclusion. See A Quaker Action Group v. Morton, 170 U.S.App.D.C. 124, 516 F.2d 717 (1975). This standard is sufficiently circumspect so as to allow the Secret Service, exercising expert judgment which frequently must be subjective in nature, considerable leeway in denying press passes for security reasons. At the same time, the standard does specify in a meaningful way the basis upon which persons will be deemed security risks, and therefore will allow meaningful judicial review of decisions to deny press passes. We anticipate that reviewing courts will be appropriately deferential to the Secret Service’s determination of what justifies the inference that an individual constitutes a potential risk to the physical security of the President or his family.

And it also notes a 5th Amendment issue:

In our view, the procedural requirements of notice of the factual bases for denial, an opportunity for the applicant to respond to these, and a final written statement of the reasons for denial are compelled by the foregoing determination that the interest of a bona fide Washington correspondent in obtaining a White House press pass is protected by the first amendment. This first amendment interest undoubtedly qualifies as liberty which may not be denied without due process of law under the fifth amendment. The only further determination which this court must make is “what process is due,” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).[23] We think that notice to the unsuccessful applicant of the factual bases for denial with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is indeed in furtherance of Presidential protection, rather than based on arbitrary or less than compelling reasons. See Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 58 L.Ed. 1363 (1914). The requirement of a final statement of denial and the reasons therefor is necessary in order to assure that the agency has neither taken additional, undisclosed information into account, nor responded irrationally to matters put forward by way of rebuttal or explanation.

That ruling is likely to make this a tough case for the Trump White House. For what it’s worth, many are highlighting that the case in the district court has been assigned to Judge Timothy Kelly, who is a Trump appointee, though I wouldn’t read very much into that. Kelly has already ordered the White House to file a response this morning, and there will be a hearing held this afternoon, so things are moving quickly.

I’ve seen some people, perhaps reasonably, arguing that CNN filing this lawsuit is a distraction — and one that plays into Trump’s claims that the press is out to get him. I’m not sure I buy that, as Trump’s supporters already believe that, and this isn’t likely to change anyone’s mind. But more clearly establishing rules for the press to be declined press passes is an interesting question. Of course, it’s also one where I wonder if many of the people cheering this on would be freaking out if things were in reverse. Imagine a Democratic President denying a press pass to Infowars and/or Breitbart — and imagine how a CNN victory in this case might be used in such a scenario.

Frankly, I think the issue here should be rather straightforward: if the government is holding a press conference, it should have clearly defined content-neutral rules for who qualifies for a press pass. If the press pass is in any way contingent upon the type of coverage, that would be unconstitutional. But other rules that are more objective and apply across the board seem perfectly reasonable. Over the years we’ve had many stories on journalists from more alternative outlets being denied press passes for dubious reasons, and on the whole I think governments should be much more inclusive of media. But, at the very least, if the decisions are based on the content of their reporting, it would appear to be entirely unconstitutional. And here it is abundantly obvious that Acosta was removed for reasons related to his content, with the claims about contact with the intern being purely pretextual.

Filed Under: 1st amendment, 5th amendment, jim acosta, press credentials, press pass, white house, white house briefing, white house press corp.
Companies: cnn

Pennsylvania Attorney General Sends Broad, Unconstitutional Gag Order To Gab's New DNS Provider

Legal Issues

from the security-through-intimidation dept

Because nothing motivates stupid legislative activity better than a tragedy, various officials are moving forward with dubious activities in the wake of the Pittsburgh synagogue shooting. In the state of New York, a couple of politicians have just announced a Constitutional violation two-fer, offering to separate residents from their Second Amendment rights by using their First Amendment rights against them.

Eric Adams, the president of Brooklyn Borough, and state Senator Kevin Palmer are currently writing the proposed legislation, which would give law enforcement authorities the power to check up to three years of an individual’s social media accounts and internet search history before they are allowed to buy a gun, WCBS Newsradio 880 reported. One of the main aims is to identify any hate speech shared by the users, as the politicians noted that such offensive comments are generally only discovered after mass shootings occur.

This proposal was offered up with complete sincerity despite:

a.) Hate speech being protected under the First Amendment, and

b.) the bill not targeting Gab — the site where the shooter’s anti-Semitic speech/threats were posted.

Josh Shapiro, Pennsylvania’s attorney general, has decided to do some “doing something” himself. In a statement to Haaretz one day after the shooting, the state AG promised to get to the bottom… of something.

“My office is reviewing this platform, which was used by the killer to spread his hateful messages,” Shapiro told Haaretz in an interview. “We have strong first amendment protections in this country, and that’s very important for me, but when that speech includes incitement to violence, that crosses a line. We cannot tolerate that.”

“Reviewing the platform…” Those are imprecise words promising imprecise actions. And the imprecise actions have arrived. Gab was the first to report on Shapiro’s “review” of its platform. Via Twitter, Gab announced the receipt of a broad, vague subpoena from Shapiro’s office. The tweets have since been deleted, but not before being archived. Here’s a screenshot of the first two tweets Gab sent to AG Shapiro. (via Timothy Lee at Ars Technica)

The subpoena wasn’t sent to Gab, but rather Epik, the domain provider Gab picked up after being dropped by GoDaddy in the days after the shooting. The whole subpoena — rescued from deleted tweets — can be found at Unicorn Riot. The subpoena demands Epik turn over pretty much any document the domain provider might have on Gab, including names and addresses of “any and all persons or entities employed by, representing, or otherwise acting on behalf of Gab.”

Shapiro’s fishing expedition — which decided to bypass Gab (most likely in hopes of finding its DNS provider more cooperative) — comes complete with a very half-assed gag order request.

Any disclosure to any person or entity, other than the person or entity identified as the Respondent, that a subpoena has been issued in this matter may jeopardize an ongoing civil investigation. Therefore, you are hereby requested to refrain from notifying any person or entity, other than said Respondent, that the subpoena has been issued.

The tweets from Gab to AG Shapiro, which included screenshots of the subpoena, likely made it clear Epik didn’t think much of the AG’s “shut up, please” request. Now, the overbroad demand is all over the internet, showing AG Shapiro would rather score political points post-tragedy than respect enshrined rights or statutory immunity.

First, Epik should be shielded from any civil enforcement actions against Gab under Section 230. It doesn’t appear the AG is seeking to take action against Epik, but nothing about these early developments that rules this course of action out. Second, the nominal target of Shapiro’s investigation contains a whole lot of unpleasant, but Constitutional speech. Third, it’s unclear what Shapiro is trying to accomplish. It appears Shapiro just wants to gather a bunch of information and then decide what sort of investigation he’d like to pursue. That’s not how investigations (and their attendant paperwork) are supposed to work.

It seems more like a Sheriff Dart-esque campaign of intimidation than a legitimate use of the AG’s office, as Eric Goldman points out in the Ars Technica article. I guess we’ll know more if Gab is forced to change registrars again. If Shapiro’s office arrives shortly thereafter with subpoena in hand, the “investigation” is nothing more than a quick and dirty way to push providers away from doing business with Gab.

Filed Under: dns, domain registrars, free speech, gag order, josh shapiro, pennsylvania
Companies: epik, gab

Philippines Continues To Spit On Free Speech; Plans To Charge Key Media Critic With Bogus Claims Of Tax Evasion

Free Speech

from the enemy-of-the-people? dept

At the beginning of this year, we had a fairly long post about a dangerous situation brewing in the Philippines, where President Duterte was clearly trying to retaliate against one of his chief media critics, The Rappler, run by Maria Ressa. As I mentioned, I got to see Ressa speak at a conference last year, and the former CNN bureau chief is a force of nature who seems completely devoted to accurately reporting on President Duterte, no matter how much he dislikes it.

When we wrote about Ressa and Rappler in January, it was over some trumped up charges concerning claims of “foreign ownership.” That story is a bit complex, but in order to get a grant from the philanthropic Omidyar Network, Rappler sold what are known as Philippine Depository Receipts (or PDRs). PDRs do have value, which are tied to the value of shares in the company, but which don’t grant any of the related ownership rights. And yet, Duterte and the Filipino SEC have been arguing that Rappler committed tax evasion by somehow “not reporting” the PDR’s.

Rappler notes that’s a complete fabrication:

Tiglao argues that Rappler?s PDR sale ?is not reported in its financial statements submitted to the Securities and Exchange Commission.? (SEC)

This does not seem right.

Rappler?s financial statements and SEC general information statements have been posted on the internet. You can compare these financial statements to those in the prospectuses of ABS-CBN and GMA in the years these media companies sold PDRs, which show how PDRs are recorded by top audit firms.

Furthermore, Rappler notes that the law is pretty clear that if you sell PDRs to fewer than 20 people, you are exempt from registration requirements.

But, of course, none of this is actually about taxes and financial statements. It’s about intimidating and silencing a free (and critical) press. And that’s what’s happening. The government has announced that it is going to charge Rappler and Ressa with tax evasion charges that basically everyone can see is completely bogus. Here’s the UN’s free speech guru (and recent Techdirt podcast guest) David Kaye calling out what a travesty this is:

At a time when authoritarian leaders around the world are increasingly targeting and threatening the press, we should be extra vigilant over how these attacks are expanding in both scope and in brazenness.

Here is a case where it seems quite clear that the charges are being trumped up based on Rappler’s reporting, rather than based on anything even remotely legitimate. And whether or not Ressa and Rappler continue is beyond the point. The message to anyone else who wants to follow in their shoes is “don’t bother, we’ll make your life a living hell.” Obviously that won’t (and shouldn’t) stop many reporters, but it can have an enormous chilling effect on many, many people.

Filed Under: censorship, chilling effects, free press, free speech, intimidation, maria ressa, philippines, rodrigo duterte, tax evasion
Companies: omidyar network, rappler

Governor Of Tanzania's Capital Announces Plan To Round Up Everyone Who Was Too Gay On Social Media

(Mis)Uses of Technology

from the tanzanian-devil dept

There has been an unfortunate trend in far too many African nations in which governments there look at the internet as either a source of evil in their countries or purely as a source for tax revenue, or both. The end result in many cases is a speech tax of sorts being placed on citizens in these countries, with traffic being taxed, bloggers being forced to register with the federal government, and populations that could otherwise benefit from a free and open internet being essentially priced out of the benefit altogether.

But things have taken a different and far worse turn in Tanzania, where the governor of the country’s capital city, Dodoma, has announced his plan to round up anyone who is perceived as being gay on the internet and chucking them in prison.

He announced his plans for sweeping arrests of gay citizens in an interview on Monday that was shared on social media, reports CNN Africa. “I have received reports that there are so many homosexuals in our city, and these homosexuals, are advertising and selling their services on the internet,” said Governor Paul Makonda. “Therefore, I am announcing this to every citizen of Dar es Salaam. If you know any gays…report them to me.”

“These homosexuals boast on social networks,” he added.

This, of course, is horrific on many levels, from the blatant homophobia, to the inciting a mob mentality against the LGBTQ community, to the bizarre focus on their internet usage and silly claims of “advertising and selling their services” online. When called on all of this, Magufuli hid behind antiquated religious beliefs, which suggest the talk about “advertising and selling their services” is just part of the moral panic because he’s homophobic:

When asked about the international backlash that the decision will undoubtedly draw, Makonda, described as a pious Christian and a loyal supporter of president John Magufuli stated “I prefer to anger those countries than to anger God,” adding that same-sex relationships “trample on the moral values of Tanzanians and our two Christian and Muslim religions,” as quoted in News 24.

In which case anything to do with “selling services” is complete bullshit and this is entirely about hating gay people. And, importantly, it’s about using people’s speech on social media platforms as the basis for rounding up those “gay” people and throwing them in jail for no other crime than being gay on the internet.

And if anything were anathema to the very concept of a free and open internet, it surely must be this. The chief benefit of a communications platform like the internet is to allow for expression and the introduction of new ideas and personas to a wider populace. Turning that very platform into a weaponized platform for building hit lists should be sending up all kinds of red flags across the world.

If this indeed goes forward, the international moral outrage had better be swift and massive, or we’ll have confirmation that the world has lost its way.

Filed Under: dodoma, lgbtq, paul makonda, social media, tanzania